Rad v. Rio Grande Processing Center et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
SEYDPOURIYA SALEHI RAD, 	§
§
§
§
§
§
§
§
§
Petitioner,
VS. 	CIVIL ACTION NO. 5:26-CV-67
KRISTI NOEM, et al.,1
Respondents.
REPORT AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is Petitioner’s First Amended Petition for Writ of Habeas Corpus and
Respondents’ Amended Response to the Petition for Writ of Habeas Corpus and Motion for
Summary Judgment (Dkt. Nos. 6, 24). United States District Judge Marina Garcia
Marmolejo 	referred 	these 	matters 	to 	the 	Undersigned 	to 	issue 	a 	Report 	and
Recommendation. (Dkt. No. 26).
For the reasons set forth below, the Undersigned RECOMMENDS that the Petition
for Writ of Habeas Corpus be GRANTED IN PART and that Respondents’ Motion for
Summary Judgment be DENIED.
I. FACTUAL HISTORY
A. Immigration Background
Petitioner SeydPouriya Salehi Rad is a native citizen of Iran who arrived in the United
States on or about January 27, 2025, and was taken into custody by United States Border
Patrol the same day. (Dkt. Nos. 6 at 1; 28 at 2).
1 Pursuant to Federal Rule of Civil Procedure 25(d), Markwayne Mullin is substituted for Respondent
Kristi Noem and David Venturella is substituted for Respondent Todd Lyons in this case. The Clerk
of Court is DIRECTED to substitute these parties on the docket sheet.
United States District Court
Southern District of Texas
ENTERED
June 26, 2026
Nathan Ochsner, Clerk
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In accordance with Presidential Proclamation No. 10888, issued the week before
Petitioner was detained, Respondents did not conduct a credible fear screening of Petitioner.
(Dkt. Nos. 28 at 2; 28-1 at 14). See also, 90 Fed. Reg. 8333 (Jan. 20, 2025). Instead, Petitioner
was referred to a withholding-only proceedings under the Convention Against Torture
(“CAT”). (Dkt. Nos. 28 at 3; 28-1 at 13–14).2
On April 29, 2025, an immigration judge (“IJ”) ordered Petitioner to file “[a]ny and all
applications for relief” by May 9, 2025. (Dkt. No. 25-1 at 7). On May 9, 2025, the IJ determined
that Petitioner had not submitted any applications and ordered that Petitioner be removed
to Iran. (Id. at 5-6).
After the District Court for the District of Columbia ruled that the Presidential
Proclamation violated the INA,3 the Government conducted a credible fear interview of
Petitioner on or about September 28, 2025, determined that he did not establish a credible
fear of persecution, and ordered him removed to Iran. (Dkt. No. 24-2 at 1-2.) Petitioner
appealed this decision to an IJ, who affirmed the negative credible fear determination on
September 29, 2025, and issued a second order of removal. (Dkt. No. 24-3).
B. Habeas Petition Background
Petitioner filed his initial pro se petition on January 16, 2026. (Dkt. No. 1). The next
day, the Court appointed Mr. Carlos M. Garcia to represent petitioner. (Dkt. No. 3). On
February 5, 2026, Petitioner filed his First Amended Petition for Writ of Habeas Corpus.
(Dkt. No. 6). On February 11, 2026, Respondents filed their Response to the Petition for Writ
2 “The guidance instructs asylum officers to perform CAT ‘assessments’ rather than credible fear
screenings.” See Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Noem, 793 F. Supp. 3d 19, 57
(D.D.C. 2025), aff'd sub nom. Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Mullin, 174 F.4th
81 (D.C. Cir. 2026) (finding the President lacked inherent constitutional authority to supplant INA's
removal procedures for noncitizens who had entered the United States).
3 Supra n.1
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of Habeas Corpus and Motion to Dismiss. (Dkt. No. 10). On April 24, 2026, the petition and
motion were referred to the Undersigned by the District Judge to issue a Report and
Recommendation. (Dkt. No. 14).
A motions hearing was held before the Undersigned on May 18, 2026. (See Minute
Entry Dated May 18, 2026). At the hearing the parties agreed that more than six months had
elapsed since Petitioner’s removal order became administratively final and stated that they
had no objection to the Court ruling on the pleadings without further motions. (Id. at 1:02,
1:05). Respondents conceded that Petitioner met his burden under Zadvydas v. Davis, 533
U.S. 678 (2001), and that he has no criminal history or background that would justify
confinement. (Id. at 1:02, 1:11). Respondents also conceded that, as Petitioner is a citizen of
Iran, there is no likelihood of removal to Iran in the reasonably foreseeable future because of
the ongoing conflict. (Id. at 1:07–1:08). Additionally, counsel for Respondents stated he is
unaware of any third country willing to accept Iranian citizens. (Id.). At both the hearing and
in their Motion to Dismiss, Respondents argued that petitioner was properly detained under
8 U.S.C. § 1231(a)(6). (Id. at 1:02) (Dkt. No. 10 at 4).
By regulation the Government is required to conduct custody reviews for aliens
detained under § 1231(a) during and after the removal period. See 8 C.F.R. §§ 241.4(a),
241.4(c)(1)-(2), 241.4(g), 241.4(h), 241.13(a). As no record of a post-order custody review
(“POCR”) had been filed in this case, after the hearing the Undersigned ordered Respondents
to file either a copy of any POCR they had conducted or an advisory explaining why no POCR
was completed. (Dkt. No. 20). Respondents filed an advisory on May 26, 2026, explaining that
it was the position of the Department of Homeland Security (“DHS”) that it was not required
to follow the custody-review procedures in this case because Petitioner is subject to an order
of expedited removal and is detained under 8 U.S.C. § 1225(b)(1)(B)(iii)(IV). (Dkt. No. 21). To
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address the discrepancy between this position and the position Respondents previously
advanced, the Undersigned set a hearing for May 29, 2026. (Dkt. No. 22). The night before
the hearing, Respondents filed a motion for leave to file an amended response, replacing their
motion to dismiss with a Motion for Summary Judgment (Dkt. Nos. 23, 24). Petitioner filed
a reply opposing the Motion for Leave that same night. (Dkt. No. 25).
During the hearing the next morning, Respondents retracted their position that §
1231(a)(6) and the standard set forth in Zadvydas apply to Petitioner. (See Minute Entry
Dated May 29, 2026, at 9:08). When asked why Respondents were just now making this new
argument, counsel for Respondents indicated he became aware of DHS’ position after filing
Respondents’ motion to dismiss. (Id. at 9:14–9:15). Both parties still agreed that the IJ’s
September 29, 2025, order4 affirming the denial of credible fear functioned as a final order of
removal, and that more than six months had elapsed since it became final. (Id. at 9:11).
On June 1, 2026, the District Judge issued an amended referral to the Undersigned,
which encompassed the newly filed motions. (Dkt. No. 26). That same day the Undersigned
granted the motion for leave and Respondent’s Motion for Summary Judgment became their
live pleading. (Dkt. Nos. 24, 27). Petitioner was ordered to file a reply to the amended motion,
which he did on June 5, 2026. (Dkt. No. 28).
Respondents argue that Petitioner is detained under 8 U.S.C. § 1225(b)(1)(B)(iii)(IV),
the Zadvydas standard does not apply, and Petitioner, as an arriving alien, does not have a
right to challenge his detention under the Due Process Clause. (Dkt. No. 24 at 1, 7). Petitioner
argues that he is detained under 8 U.S.C. § 1231(a)(6), Zadvydas controls, and that he is
subject to indefinite detention that violates due process. (Dkt. No. 28 at 6, 9).
4 At the hearing the Undersigned inadvertently referred to the September 29, 2025, order as taking
place on September 27, 2025. However, from all the records the controlling date is September 29, 2025,
and the parties affirmed that date.
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II. LEGAL AUTHORITY
A. 28 U.S.C. § 2241
Under 28 U.S.C. § 2241(c)(3), a detainee may seek habeas relief if he or she is “in
custody in violation of the Constitution or laws or treaties of the United States.” “The
petitioner ‘bears the burden of proving that [she] is being held contrary to law; and because
the habeas proceeding is civil in nature, the petitioner must satisfy [her] burden of proof by
a preponderance of the evidence.’” Puertas-Mendoza v. Bondi, No. SA-25-CV-00890-XR, 2025
WL 3142089, at *1 (W.D. Tex. Oct. 22, 2025) (Rodriguez, J.) (quoting Villanueva v. Tate, 801
F. Supp. 3d 689, 696 (S.D. Tex. Sept. 26, 2025)). A court entertaining a habeas petition shall
“award the writ or issue an order directing the respondent to show cause why the writ should
not be granted.” 28 U.S.C. § 2243.
B. Motions for Summary Judgment
Summary judgment is proper when there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Rogers
v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). If the moving party meets
its burden of demonstrating the absence of a genuine factual dispute, the non-movant must
then come forward with specific facts showing there is a genuine issue for trial. Fed. R. Civ.
P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). “A
dispute is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict for
the nonmoving party,” and a “fact issue is ‘material’ if its resolution could affect the outcome
of the action.” Canady v. Davis, 687 F. App’x 362, 365 (5th Cir. 2017) (quoting Ramirez v.
Martinez, 716 F.3d 369, 374 (5th Cir. 2013)). Last, “[b]ecause this case arises in a summary
judgment posture, we view the facts in the light most favorable to [Petitioner], the nonmoving
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party.” Id. (quoting City & Cnty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 603
(2015)).
C. Indefinite Detention and Zadvydas v. Davis, 533 U.S. 678 (2001)
Pursuant to the INA, the Government ordinarily secures the removal of an alien
during the statutory 90-day period following an order of removal. 8 U.S.C. § 1231(a)(1)(A).
Relevant here is that the removal period begins to run on “[t]he date the order of removal
becomes administratively final.” § 1231(a)(1)(B)(i). Aliens are generally detained during the
removal period. § 1231(a)(2)(A).
If the alien is not removed during this statutory 90-day period, the Government may
continue to detain the alien for “a period reasonably necessary to bring about that alien’s
removal from the United States.” Zadvydas, 533 U.S. at 689. Reasonableness should be
measured “in terms of the statute’s basic purpose, namely, assuring the alien’s presence at
the moment of removal.” Id. at 699. To aid in this determination, the Supreme Court set a
presumptively reasonable six-month period of post-removal detention. Id. at 701. Beyond
that point, “once the alien provides good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future, the Government must respond
with evidence sufficient to rebut that showing.” Id. “And for detention to remain reasonable,
as the period of prior post-removal confinement grows, what counts as the reasonably
foreseeable future conversely would have to shrink.” Id. (citation modified). It is axiomatic,
however, that the Constitution forbids an alien’s indefinite or permanent post-removal
detention. Id. at 689-690.
III. ANALYSIS
A. Disputes of Material Fact
Despite Petitioner’s concerns about factual inconsistencies from the immigration
proceedings, there are no disputed issues of material fact. (Dkt. No. 28 at 6). The issue of
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whether Petitioner had a prior final order of removal when he was denied CAT withholding
is immaterial because it would not affect the outcome of this action. This is because all parties
agree that the September 29, 2025, order constitutes a final order of removal, and there is no
dispute that the substance of that order affirms the denial of Petitioner’s credible fear claim.
Petitioner does not argue the September 29, 2025, order is invalid nor that it failed to
supplant the May 9, 2025, order as the authority for removal. (Dkt. No. 28 at 3, n.1) Instead,
he argues that the length of his post-removal detention is greater than previously
established. (Dkt. No. 25 at 3). However, the time elapsed since both orders were entered
exceeds the presumptively reasonable six-month period from Zadvydas by several months.
Additionally, if the Court adopts Respondents’ position that the time limits from 8 U.S.C.
§ 1231 and Zadvydas do not apply to Petitioner’s detention, then the exact length of detention
would not affect the outcome of the action. In that case, the real question would be whether
any period of post-removal detention is prolonged or arbitrary such that it violates
Petitioner’s rights under the Due Process Clause to the Fifth Amendment.
Thus, the Undersigned finds that there are no genuine disputes of material fact and
now turns to the issue of whether either party is entitled to judgment as a matter of law,
beginning with the question of statutory detention authority.
B. Statutory Detention Authority
To 	ascertain 	what 	statute 	provides 	the 	basis 	for 	Petitioner’s 	detention, 	the
Undersigned begins with the plain text. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV)5 provides that, “Any
alien subject to the procedures under this clause shall be detained pending a final
determination of credible fear of persecution and, if found not to have such a fear, until
removed.” By contrast, 8 U.S.C. § 1231(a)(1)(A) states, “[W]hen an alien is ordered removed,
5 Hereinafter “§ IV.”
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the Attorney General shall remove the alien from the United States within a period of 90
days.” Additionally, 1231(a)(6) provides that, “An alien ordered removed who is inadmissible
under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or
1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to
the community or unlikely to comply with the order of removal, may be detained beyond the
removal period.”
Here, Petitioner is subject to a final order of removal in which an Immigration Judge
found he could not establish a credible fear of persecution. (Dkt. No. 24-2 at 1). Petitioner
argues that, despite the “until removed” language of § IV, his detention under that statute
ended the moment the Immigration Judge entered the final order of removal, and he is
instead detained under § 1231. (Dkt. No. 28 at 6). This argument conflicts with the overriding
principle of statutory construction, which “requires the court to ‘give effect, if possible, to
every clause and word of a statute ... rather than to emasculate an entire section.’” Texas
Educ. Agency v. United States Dep't of Educ., 908 F.3d 127, 133 (5th Cir. 2018). Were
Petitioner to be correct, the statute’s meaning would be directly at odds with its language.
In making the above argument, Petitioner relies on language from the Supreme
Court’s decision in Jennings v. Rodriguez, 583 U.S. 281 (2018), which found that the six-
month post-removal period from Zadvydas could not be applied to ongoing proceedings under
8 U.S.C. § 1225(b). (Dkt. No. 28 at 7). In relying on Jennings, Petitioner cites to a specific
passage of the opinion: “Once proceedings under 8 U.S.C. § 1225(b)(1) end, ‘detention under
§ 1225(b) must end as well.’” (Dkt. No. 28 at 7) (quoting Jennings, 583 U.S. at 297). A full
reading of the opinion, however, shows the Court was not referring to § IV.6 Unlike the
6 “Section 1225(b)(1) aliens are detained for ‘further consideration of the application for asylum,’ and
§ 1225(b)(2) aliens are in turn detained for ‘[removal] proceeding[s].’ Once those proceedings end,
detention under § 1225(b) must end as well. Until that point, however, nothing in the statutory text
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instant matter, the detainees in Jennings were challenging their detention during ongoing
proceedings for those who have been found to have made a credible fear claim. Jennings, 583
U.S. at 297.
Additionally, part of the dissent in Jennings briefly contrasts the clauses of 1225(b)
with § IV. Id. at 348. Specifically, Justice Breyer describes § IV as, “[A] separate statutory
provision that purports to do precisely what the majority says [§ 1225(b)(1)(B)(ii)] does,
providing that certain aliens ‘shall be detained...until removed.’ The problem for the majority
is that this other provision applies only to those who, unlike the respondents, have no credible
fear of persecution. The provision that applies here lacks similar language.” Id. (citations
omitted). For those reasons, the Undersigned does not agree that Jennings can be read as
mandating the cessation of detention authority under § IV.7
Petitioner argues that, even if he is detained under § IV, § 1231 and § IV ought to be
read together so that the time limitations of §1231(a)(1)(A) and Zadvydas still apply. (Dkt.
No. 28 at 7). This argument, however, runs headlong into one of the primary holdings of
Jennings, which was that the plain language of the challenged clauses in §§ 1225(b)(1) and
(b)(2) could not be understood as imposing any time limitations. See Jennings, 583 U.S. at
300-301 (“While Zadvydas found § 1231(a)(6) to be ambiguous, the same cannot be said of §§
1225(b)(1) and (b)(2): Both provisions mandate detention until a certain point and authorize
release prior to that point only under limited circumstances. As a result, neither provision
can reasonably be read to limit detention to six months.”). In rejecting any implied time
limits, the Court paid particular attention to 1225(b)’s use of the word “shall.” Id. at 300 (“[I]n
imposes any limit on the length of detention.” Jennings, 583 U.S. at 297 (quoting 8 U.S.C. §§
1225(b)(1)(B)(ii), 1225(b)(2)(A)).
7 As will be addressed later, the reasoning from Jennings is not wholly inapplicable to the instant
matter.
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Zadvydas, the Court saw ambiguity in § 1231(a)(6)'s use of the word ‘may.’ Here, by contrast,
§§ 1225(b)(1) and (b)(2) do not use the word ‘may.’). See also Kingdomware Technologies, Inc.
v. United States, 579 U.S. 162, 171 (2016) (“Unlike the word ‘may,’ which implies discretion,
the word ‘shall’ usually connotes a requirement.”).
Similarly, § IV unequivocally expresses a requirement when it provides that aliens
subject to the clause “shall be detained… if found not to have such a fear, until removed.” 8
U.S.C. § 1225(b)(1)(B)(iii)(IV). Just as the Jennings Court explained, this requirement of
detention precludes a court from finding ambiguity that could be resolved via the imposition
of a specific time limit. See Jennings, 583 U.S. at 300.
Thus, the Undersigned finds that Petitioner, as an alien found not to have a credible
fear of persecution, is detained under 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) and the specific time
limits enumerated in 8 U.S.C. §§ 1231(a)(1)(A), 1231(a)(6), and Zadvydas do not apply.
However, this is not the end of the inquiry because Petitioner also argues that his detention
under § IV violates the Due Process Clause of the Fifth Amendment. (Dkt. No. 28 at 11). For
their part, Respondents do not actually argue in their Motion for Summary Judgment that §
IV is constitutional as applied to Petitioner (See generally Dkt. No. 24). Instead, they argue
that Petitioner is not entitled to due process protection, and that § IV is not susceptible to
due process claims. (Dkt. No. 24 at 9–10).
C. Aliens’ Due Process Rights
The text of the Fifth Amendment does not distinguish among citizens and noncitizens;
rather, it provides that no “person” may be deprived of life, liberty, or property without due
process of law. U.S. Const. amend. V. The Fifth Amendment's Due Process Clause applies to
noncitizens and guarantees them constitutional protections. See Zadvydas, 533 U.S. at 693;
Wong Wing v. United States, 163 U.S. 228, 238 (1896) (“even aliens shall not be ... deprived
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of life, liberty, or property without due process of law”); see also Yamataya v. Fisher, 189 U.S.
86, 100–01 (1903); Mathews v. Diaz, 426 U.S. 67, 77 (1976). Therefore, the “Due Process
Clause applies to all ‘persons’ within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent.” See Zadvydas, 533 U.S. at 693.
Despite the above, Respondents reference several cases to argue that aliens are not
entitled to due process protection. (Dkt. No. 24 at 7–9). First, Respondents conflate an alien’s
limited rights for admission into the United States with the fundamental right to liberty. But
Petitioner is not challenging the Immigration Court’s decision regarding his admission or
removal, merely the position that he can be indefinitely detained when Respondents have
admitted that they are unable to carry out his removal. (Dkt. No. 28 at 3, n.1) (See Minute
Entry Dated May 18, 2026, at 1:04).
Second, Respondents argue that “entry fiction,” the doctrine that excludable aliens
are to be treated as if detained at the border despite their physical presence in the United
States, determines the due process rights to which an alien is entitled. (Dkt. No. 24 at 9).
Respondents again confuse admission and liberty. “The ‘entry fiction’ determines the aliens’
rights with regard to immigration and deportation proceedings. It does not limit the right of
excludable aliens detained within United States territory to humane treatment.” Lynch v.
Cannatella, 810 F.2d 1363, 1373 (5th Cir. 1987). See also Giri v. Lyons, No. 5:26-CV-00149,
2026 WL 1361557 (S.D. Tex. May 12, 2026) (Saldaña, J.) (“To hold that Petitioner is not
entitled to Fifth Amendment due process protections in the context of his current prolonged
detention because he is subject to the entry fiction would be to decide that there are not
constitutional limits on his civil immigration [detention] under 8 U.S.C. § 1225.”).
Simply put, Petitioner’s continued detention—regardless of his status in the United
States—entitles him to review under the Fifth Amendment. See Zadvydas, 533 U.S. at 693.
Therefore, finding that Petitioner is entitled to due process protection, the Undersigned must
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now consider whether the statute, as applied to Petitioner, violates his rights under the Due
Process Clause to be free from prolonged, indefinite, arbitrary detention. See Zadvydas, 533
U.S. at 689–690.
D. Arbitrary Detention in Violation of Due Process
“A 	statute 	permitting 	indefinite 	detention 	of 	an 	alien would 	raise 	a serious
constitutional problem.” Zadvydas, 533 U.S. at 690. While the specific time limitation of
Zadvydas is inapplicable to detention under § IV, the Undersigned finds that the framework
the Supreme Court established for analyzing whether detention of an alien ordered removed
is unreasonable still applies. This is because the issue addressed in Zadvydas, “whether
aliens that the Government finds itself unable to remove are to be condemned to an indefinite
term of imprisonment within the United States,” see 533 U.S. at 695, is exactly the issue
before the Court today. The Zadvydas Court explained the analytical framework in the
following manner:
[T]he habeas court must ask whether the detention in question exceeds a
period 	reasonably 	necessary 	to 	secure 	removal. 	It 	should 	measure
reasonableness primarily in terms of the statute's basic purpose, namely,
assuring the alien's presence at the moment of removal. Thus, if removal is not
reasonably 	foreseeable, 	the 	court 	should 	hold 	continued 	detention
unreasonable and no longer authorized by statute.
Zadvydas, 533 U.S. at 699-700. Petitioner has been detained for almost nine months since
his final order of removal, and for nearly seventeen months overall. (Dkt. Nos. 24-3 at 1; 6 at
1). Considering Petitioner is detained under the statutory framework for expedited removal,8
the Undersigned finds that his detention is prolonged well past any period reasonably
necessary to secure removal. Further, the concern with Petitioner’s detention is not confined
merely to its duration. Detention must also be reasonably related to its statutory purpose.
8 See 8 U.S.C. § 1225, titled “Inspection by immigration officers; expedited removal of inadmissible
arriving aliens; referral for hearing.”
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Zadvydas, 533 U.S. at 695 (quoting Jackson v. Indiana, 406 U.S. 715, 738.) (“[W]here
detention's goal is no longer practically attainable, detention no longer ‘bear[s][a] reasonable
relation to the purpose for which the individual [was] committed.’”). Here, Respondents seek
to detain Petitioner for no presently applicable purpose. Respondents conceded that, as
Petitioner is a citizen of Iran, there is no likelihood of removal to Iran in the reasonably
foreseeable future because of the ongoing conflict. (See Minute Entry Dated May 18, 2026, at
1:07–1:08). Respondents also conceded that Petitioner has no criminal history or background
that would justify confinement. (Id. at 1:11). Finally, counsel for Respondents stated he is
unaware of any third country willing to accept Iranian citizens.9 (Id. at 1:07–1:08).
Respondents do not withdraw or contradict any of these statements in their Motion
for Summary Judgment. (See generally Dkt. No. 24). 	Instead, they merely argue that the
statutory and constitutional standards under which they provided these concessions do not
apply to Petitioner because he is detained under § IV. (Dkt. No. 24 at 1, 7). However, § IV’s
basic purpose is to detain those who are found not to have a credible fear so they can be
removed from the United States. That purpose is now the exact thing Respondents have
represented they cannot do.
Additionally, as the Jennings Court found, the standard justifications for civil
detention do not factor into this sort of mandatory detention. See Jennings, 583 U.S. at 300
(finding nothing in the statutory text of § 1225(b) that could be interpreted to allow for bond
if an alien is neither a flight risk nor a danger to the community). The Zadvydas Court also
found that the remoteness of removal and the potential indefiniteness of detention limit the
9 Because Petitioner is detained under § IV, the Undersigned is also skeptical of whether Respondents
have the authority to remove Petitioner to a third country as the authority for that executive action
comes from § 1231. However, this issue need not be resolved for the Court to issue this Report and
Recommendation.
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Government’s ability to rely on these justifications even where they do apply.10 Ultimately,
this leaves Respondents without any justification for Petitioner’s continued detention.
“Freedom from bodily restraint has always been at the core of the liberty protected by the
Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S. 71,
80 (1992). For that reason, the Undersigned finds that Petitioner has met his burden to show
that his detention is contrary to law by a preponderance of the evidence.
To be clear, the Undersigned is not recommending a saving statutory construction
that would interpret § IV to implicitly contain specific deadlines to avoid unconstitutional
ambiguity. The statute, by its plain language, is so unambiguous that adopting any such
interpretation would be a rejection of the directives on statutory construction established in
Jennings. However, Zadvydas too is more than just an analysis of § 1231(a)(6), and it would
be a rejection of its directives on constitutional liberty to find indefinite detention tolerable
under these circumstances. The Undersigned also does not find the statute is facially
unconstitutional because, when an alien’s removal can be carried out on an expedited basis,
detention would be neither prolonged nor arbitrary. Instead, as a statute designed to provide
for expedited removal, § IV cannot be constitutionally applied to Petitioner when his
detention presently bears no relation to the statute’s intended aim.
Thus, the Undersigned finds that § IV, as applied to Petitioner under the present
circumstances, provides for prolonged, indefinite, arbitrary detention in violation of the Due
Process Clause of the Fifth Amendment.
10 Zadvydas, 533 U.S. at 690 (“The first justification—preventing flight—is weak or nonexistent where
removal seems a remote possibility. Preventive detention based on the second justification—protecting
the community—has been upheld only when limited to specially dangerous individuals and subject to
strong procedural protections. When preventive detention is potentially indefinite, this dangerousness
rationale must also be accompanied by some other special circumstance, such as mental illness, that
helps to create the danger. The civil confinement here is potentially permanent, and once the flight
risk justification evaporates, the only special circumstance is the alien's removable status, which bears
no relation to dangerousness.”).
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E. Remedy
Petitioner 	requests 	release, 	or 	in 	the 	alternative 	a 	bond 	hearing 	before 	an
Immigration Judge. As previously established, nothing in the language of § IV can reasonably
be interpreted 	to require a bond 	hearing. Further 	a bond 	hearing even on purely
constitutional grounds may not be appropriate because “the Due Process Clause contains a
substantive component that bars certain arbitrary, wrongful government actions ‘regardless
of the fairness of the procedures used to implement them.’” Zinermon v. Burch, 494 U.S. 113,
125 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331). For that reason, the Undersigned
finds that conditional release is the only appropriate remedy for Respondents’ violation of
Petitioner’s rights.
IV. RECOMMENDATIONS
For the foregoing reasons, the Undersigned RECOMMENDS Petitioner’s Habeas
Petition (Dkt. No. 6) be GRANTED IN PART.
It is further RECOMMENDED that Respondents’ Motion to Dismiss (Dkt. No. 10)
be DENIED AS MOOT.
It is further RECOMMENDED that Respondents’ Motion for Summary Judgment
(Dkt. No. 24) be DENIED.
It is further RECOMMENDED that the Clerk of Court be DIRECTED to update the
nature of this suit to 8:1105(a) Aliens: Habeas Corpus to Release INS Det.
It is further RECOMMENDED that, should this Report and Recommendation be
adopted, Respondents be ordered to release Petitioner from custody to a public place no later
than 5:00 p.m. on the second day after this Report and Recommendation is adopted.
It is further RECOMMENDED that Petitioner’s release be subject to 8 U.S.C.
§ 1231(a)(3) and 8 C.F.R. § 241.5.
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It is further RECOMMENDED that Respondents be ordered to notify Petitioner’s
counsel of the exact location and exact time of his release as soon as practicable and no less
than two hours before his release.
It is further RECOMMENDED that the Parties be ordered to file a Joint Status
Report no later than 5:00 p.m. on the fourth day after this Report and Recommendation is
adopted, confirming that Petitioner has been released and advising the Court of his
conditions of release.
It is further RECOMMENDED that the Court’s prior Order that Respondents notify
Petitioner’s counsel and the Court of any planned removal of him from the United States, at
least five (5) days before any such removal, (Dkt. No. 8 at 2), remain in place.
V. WARNINGS
The parties may file objections to this Report and Recommendation, unless they waive
the right to do so. A party filing objections must specifically identify those findings or
recommendations to which objections are being made. The District Court need not consider
frivolous, conclusive, or general objections. Battle v. United States Parole Comm’n, 834 F. 2d
419, 421 (5th Cir. 1987) (quoting Nettles v. Wainwright, 677 F. 2d 404, 410 n.8 (5th Cir. 1982)
(en banc)). Unless the District Judge directs otherwise, the objecting party must promptly
arrange for transcribing the record, or whatever portions of it the parties agree to or the
Magistrate Judge considers sufficient. See Fed. R. Crim. P. 59(b)(2).
A 	party’s 	failure 	to 	file 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations contained in this Report within fourteen (14) days after being served with
a copy of the Report shall bar that party from de novo review by the District Court of the
proposed findings and recommendations and, except upon grounds of plain error, shall bar
the party from appellate review of proposed factual findings and legal conclusions accepted
by the District Court to which no objections were filed. 28 U.S.C. § 636(b)(1); Fed. R. Crim.
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P. 59(b); Thomas v. Arn, 474 U.S. 140, 150–53 (1985); Douglass v. United States Auto Ass’n,
79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED on June 26, 2026.
___________________________________
Brian C. Bajew
United States Magistrate Judge
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