Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
ERNESTO PABLO LORENZO,
Petitioner,
v. 	Case No. 2:25-cv-00923 KWR-GJF
PAMELA BONDI, in her official capacity as
Attorney General of the United States,
KRISTI NOEM, in her official capacity as Secretary
of the Department of Homeland Security,
MARY DE ANDA-YBARRA, Field Office Director,
DORA CASTRO, Warden of Otero County Processing Center,
Respondents.
MEMORANDUM OPINION AND ORDER GRANTING PETITIONER’S HABEAS
PETITION
THIS MATTER comes before the Court on Ernesto Pablo Lorenzo’s (“Petitioner”)
Petition for Writ of Habeas Corpus (Doc. 1). In seeking release from custody, Petitioner, a citizen
of Guatemala, alleges violations of the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(6),
and his Fourth and Fifth Amendment rights. Doc. 1 at 9–13. The Government contests this Petition
arguing that Petitioner failed to exhaust the administrative remedies available to him, and
alternatively, he fails to demonstrate that there is not a significant likelihood of removal in the
reasonably foreseeable future. Doc. 9 at 11. Because exhausting the administrative procedure that
the Government provides is prudential and Petitioner’s interest in prompt access to a federal
judicial forum outweighs the countervailing institutional interests, the Court will not require
administrative exhaustion.
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Petitioner cannot be removed to Guatemala. Doc. 9-3 at 1. Petitioner has been detained for
more than six months, and the Government has failed to demonstrate that Mexico has responded
to their request to accept Petitioner. Doc. 9-4 ¶¶ 10, 14. Thus, the Court finds that Petitioner
demonstrates that there is not a significant likelihood of removal in the reasonably foreseeable
future and that the Government has failed to rebut his showing.
Having reviewed the briefing, exhibits, and the relevant law, the Court finds that the
Petition is well-taken, and therefore, is GRANTED.
BACKGROUND
On November 9, 2014, Petitioner entered the United States without proper documentation
and was processed for removal. Id. ¶ 4. Petitioner expressed fear of returning to Guatemala, and
an immigration judge issued an order withholding removal to Guatemala. Id. ¶¶ 5, 8. Petitioner
was released on bond on December 16, 2014. Id. ¶ 7. On April 24, 2018, Petitioner was placed on
an order of supervision and his bond was cancelled. Id. ¶ 9.
On or about June 10, 2025, Enforcement and Removal Operations (“ERO”) arrested and
detained Petitioner.1 Id. ¶ 10. Petitioner, alongside several other Latino men, was waiting in a
Home Depot parking lot for potential employment as a laborer. Doc. 1 ¶ 21. ERO processed
Petitioner as a noncitizen with a final order of removal. Doc. 9-4 ¶ 10.
On June 12, 2025, ERO issued Petitioner a Form I-241 notifying him that the Government
pursued third country removal to Mexico. Id. ¶ 14. On August 20, 2025, ERO emailed Mexico
requesting that Petitioner be accepted “under [the] CVNH program.” Id. On September 4, 2025,
ERO completed a “90 Day Post Custody Review,” and Petitioner remained detained. Id. ERO
1 Petitioner alleges he was detained on June 9, 2025. Doc. 1 ¶ 21. However, DHS Officer Francisco
Ruiz, per his declaration, stated that Petitioner was detained on June 10, 2025. Doc. 9-4 ¶ 10. The
difference of one day does not impact the Court’s analysis.
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referred Petitioner to United States Citizenship and Immigration Services for a credible fear
determination. Id. On September 17, 2025, Petitioner’s credible fear determination was conducted
without his attorney present. Doc. 1 ¶ 27. ERO attempted to remove Petitioner to Mexico on
September 24, 2025, but ERO claims that removal was unsuccessful due to procedural issues with
his credible fear determination. Doc. 9-4 ¶ 14. Petitioner has since been given a credible fear
determination, with counsel present, and the determination was negative. Id. The Government has
provided no communications indicating that Mexico will accept, or is considering accepting,
Petitioner. But ERO asserts that it continues to pursue third country removal. Id. ¶ 15.
On December 19, 2025, the Court directed the parties to provide supplemental briefing on
the issues of whether exhaustion is prudential and should be required, and whether the Petitioner’s
90 Day Post Custody Review rendered further review futile. Doc. 11 at 2– 5. The Court also
welcomed any new documentation weighing on the likelihood of Petitioner’s removal. Doc. 11 at
5. Only the Government provided a response. Doc. 12.
LEGAL STANDARD
An immigration detainee “in custody in violation of the Constitution or laws or treaties of
the United States” may seek habeas relief. 28 U.S.C. § 2241(c)(3); see also Zadvydas v. Davis,
533 U.S. 678, 687 (2001).
Pursuant to the Immigration and Nationality Act, the Government must remove a
noncitizen within a 90-day removal period. 8 U.S.C. § 1231(a)(1)(A). During the 90-day removal
period, the noncitizen must be detained. Id. § 1231(a)(2). The removal period begins when the
removal order “becomes administratively final.” Id. § 1231(a)(1)(B)(i).
Upon expiration of the initial removal period, the Government may continue to detain the
noncitizen, but not indefinitely. Id. § 1231(a)(6); Zadvydas, 533 U.S. at 699. Continued detainment
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for six months is “presumptively reasonable.” Zadvydas, 533 U.S. at 701. After six months, if the
noncitizen provides “good reason to believe that there is no significant likelihood of removal in
the reasonably foreseeable future,” the Government must then rebut the noncitizen’s showing. Id.
DISCUSSION
The Government argues that Petitioner should be required to exhaust the administrative
remedies available to him under 8 C.F.R. § 241.13, and in the alternative, that he fails to meet his
burden under Zadvydas. Doc. 9 at 11. The Court will address each argument in turn.
I. 	The Court declines to require that Petitioner exhaust the remedies available to him
under Section 241.13.
The Government argues that Petitioner should be required to exhaust administrative
remedies under Section 241.13 or show the procedure’s futility. Doc. 9 at 11–12. Petitioner
contends that he has fully exhausted all available administrative remedies, and that administrative
review would be futile. Doc. 10 at 2–3. The Court finds that administrative exhaustion under
Section 241.13 is prudential and not required, and additionally, Petitioner’s interest in prompt
access to a federal judicial forum outweighs the countervailing institutional interests calling for
exhaustion.
Generally, those seeking habeas relief must exhaust their administrative remedies, see
Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986), but the Tenth Circuit has not addressed
whether exhaustion of the procedure under Section 241.13 is required, see Quintana Casillas v.
Sessions, No. 1:17-cv-01039-DME-CBS, 2017 WL 3088346, at *8 (D. Colo. July 20, 2017).
However, the Tenth Circuit has held that regarding “immigration laws, exhaustion of remedies is
statutorily required only for appeals of final orders of removal.” Id. (citing Hoang v. Comfort, 282
F.3d 1247, 1254 (10th Cir. 2002)); see also 8 U.S.C. § 1252(d)(1) (“A court may review a final
order only if . . . the alien has exhausted all administrative remedies available.”). Courts in this
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circuit have found that exhausting Section 241.13’s procedure is prudential, not jurisdictional. See
Quintana 	Casillas, 	2017 WL 3088346, 	at 	*8; 	see 	also 	Jimenez 	Chacon 	v. 	Lyons, 	No.
2:25-cv-977-DHU-KBM, 2025 WL 3496702, at *5 (D.N.M. Dec. 4, 2025). Moreover, the Tenth
Circuit has noted that challenges to immigration detention under Zadvydas “are properly brought
directly through habeas” and that “the exhaustion deficiencies we have noted in other respects do
not affect habeas jurisdiction over such claims.” Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th
Cir. 2004). Exhaustion may not be required if “a petitioner can demonstrate that exhaustion is
futile.”2 Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010).
A. The prudential factors neither weigh for nor against requiring exhaustion.
The Government argues that Petitioner should be required to exhaust the administrative
process under Section 241.13 or show futility. Doc. 9 at 11. Petitioner contends that exhaustion
should not be required because no meaningful remedies are available to him and further pursuit
would be futile. Doc. 10 at 2. The Court finds that the prudential factors neither weigh in favor
nor against requiring exhaustion in this case.
2 Petitioner argues that exhaustion would be futile. Doc. 10 at 2–3. The Government contends that
Petitioner cannot show that exhaustion would be futile. Doc. 9 at 11. A court in this district has
found exhaustion to be futile when “ICE headquarters” already reviewed a petitioner’s custody
and 	decided 	to 	continue 	their 	detention. 	See 	Salazar-Martinez 	v. 	Lyons, 	No.
2:25-cv-00961-KG-KBM, 2025 WL 3204807, at *2 (D.N.M. Nov. 17, 2025). Here, on September
4, 2025, ERO conducted a “90 Day Post Custody Review” and continued Petitioner’s detention.
Doc. 9-4 ¶ 14. The 90 Day Post Custody Review does not render exhaustion futile. The 90 Day
Post Custody Review considered whether Petitioner was a flight risk warranting continued
detention, not whether Petitioner should have been released because removal was not reasonably
foreseeable. See Doc. 12 at 5. Nevertheless, the futility inquiry is an alternate ground for not
requiring 	exhaustion. 	Since 	Petitioner 	challenges 	his 	immigration 	detention, 	“exhaustion
deficiencies” do not necessarily present a jurisdictional bar to district court review. See Soberanes,
388 F.3d at 1310. Therefore, the futility inquiry is not dispositive to our exhaustion analysis.
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“[S]ound 	judicial 	discretion 	governs” 	where 	Congress 	has 	“not 	clearly 	required
exhaustion.” McCarthy v. Madigan, 503 U.S. 140, 144 (1992).3 Exhaustion is favored when (1)
the “action under review involves exercise of the agency’s discretionary power,” and (2) the agency
procedure at issue allows for “the agency to apply its special expertise.” Id. at 145. An individual’s
interests weigh heavily against requiring exhaustion in the following three circumstances: (1) when
the administrative remedy “may occasion undue prejudice to subsequent assertion of a court
action”; (2) when there is doubt that the agency is “empowered to grant effective relief”; and (3)
when an administrative body is “shown to be biased” or shown to have predetermined the issue
before it. Id. at 146–49.
Here, the factors favoring exhaustion are not particularly applicable. Although the decision
to detain and remove involves agency discretion, due process concerns and Zadvydas restrict that
discretion when a noncitizen is detained beyond the presumptively reasonable period, as is the case
here. See 533 U.S. at 695 (noting that Congress’s “plenary power” over immigration law is cabined
by “important constitutional limitations”). Further, determining whether future removal is
significantly likely does not call for specific “agency expertise.” See Jimenez Chacon, 2025 WL
3496702, at *9 (finding that determining the foreseeability of removal does not require the exercise
of agency expertise). The primary consideration of a Zadvydas claim concerns the likelihood of
future removal and determining that likelihood turns on the reasonableness of his detention under
Zadvydas. Further, the parties have presented the Court the relevant facts and documentation
concerning Petitioner’s likelihood of removal, and thus, the Court is well prepared to address the
3 McCarthy has been superseded by the Prison Litigation Reform Act, 42 U.S.C. § 1997e, but only
as it relates to prison litigation subject to the PLRA. See Jimenez Chacon, 2025 WL 3496702, at
*5 n.3.
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Zadvydas inquiry. Therefore, the factors weighing in favor of exhaustion do not hold particular
weight here.
As to the factors weighing against requiring exhaustion, Petitioner neither argues that the
administrative remedy may occasion undue prejudice on a later court action nor that the agency
has shown bias or predetermined the outcome. The Court finds that neither factor applies here.
Petitioner 	does 	contend, 	however, 	that 	the 	administrative 	process 	provided 	for 	under
Section 241.13 does not empower the agency to grant him the relief he seeks.4 Doc. 10 at 2. The
Court disagrees. Petitioner seeks immediate release either without or with conditions of supervised
release. Doc. 1 at 15. Pursuant to Section 241.13, the Headquarters Post-Order Detention Unit
(“HQPDU”) will conduct a formal review and issue a written decision whether there exists a
significant likelihood of removal in the reasonably foreseeable future after a petitioner submits a
written request for release. 8 C.F.R. § 241.13(d)–(f). If the HQPDU determines that the likelihood
of release is not significant, the HQPDU may release the noncitizen on supervision. 8 C.F.R.
§ 241.13(h).
If Petitioner followed the procedure set forth by Section 241.13, the HQPDU would
consider several factors similar to the Zadvydas inquiry of whether there is a significant likelihood
of removal in the reasonably foreseeable future. See 8 C.F.R. § 241.13(f); see also E.M.M. v.
Almodovar, No. 1:25-cv-08212-MMG, 2025 WL 3077995, at *3 (S.D.N.Y. Nov. 4, 2025) (noting
that Section 241.13 was promulgated “to codify” the Zadvydas procedures). If the HQPDU makes
a determination in Petitioner’s favor, the HQPDU would release Petitioner on conditions of
supervision. 8 C.F.R. § 241.13(h). Prior to his detention, Petitioner was already placed on an order
4 Petitioner also argues that “ICE never conducted the mandatory 90-day post-order custody
review,” and HQPDU review is not available until that takes place. However, Officer Ruiz states
that ERO completed a “90 Day Post Custody Review” on September 4, 2025. Doc. 9-4 ¶ 14.
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of supervision. Doc. 9-4 ¶ 9. Thus, the HQPDU is empowered to grant Petitioner the relief he
seeks. Therefore, the Court finds that the prudential considerations do not apply with particular
strength in this case.
B. Petitioner’s interest in prompt access to a federal judicial forum outweighs the
institutional interests favoring exhaustion.
The Government argues that if the Court does not require exhaustion, it would encourage
deliberate bypass of the administrative scheme and impact the administrative process. Doc. 9 at
12. Petitioner has already been detained beyond the presumptively reasonable period, and he
challenges his immigration detention which is “properly brought directly through habeas.”
Soberanes, 388 F.3d at 1310. Thus, the Court cannot find that the existence of an unspecified
impact on an administrative scheme outweighs the clear impact upon Petitioner’s due process
rights warranting prompt access to a federal judicial forum. See Zadvydas, 533 U.S. at 694–95.
In exercising sound judicial discretion, a court must “balance the interest of the individual
in retaining prompt access to a federal judicial forum against countervailing institutional interests
favoring exhaustion.” McCarthy, 503 U.S. at 146. In addition to the prudential considerations,
Petitioner’s due process rights at stake warrant judicial review. See Plyler v. Doe, 457 U.S. 202,
210 (1982) (noting that the Due Process Clause applies to all “persons” within the United States).
Petitioner has been detained for over six months, see Doc. 9-4 ¶ 10, and the presumptively
reasonable period of detainment has expired, see Zadvydas, 533 U.S. at 701.
Here, the Court cannot find that the institutional interests favoring exhaustion outweigh
Petitioner’s interest in prompt access to a federal judicial forum. The Government contends that
not requiring exhaustion “has an impact on the post detention process, but also on the preadmission
administrative process.” Doc. 9 at 12. The Government’s analysis concerning its administrative
interests stops there. Without more, the Court is not convinced that these unspecified impacts
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justify requiring Petitioner to pursue relief through Section 241.13 after already being detained for
over six months. Further, dismissing this Petition would not promote judicial efficiency as the
presumptively reasonable six months have already past and the Court already requested additional
documentation bearing on the likelihood of Petitioner’s removal to which the parties provided no
additional documents. See Doc. 11 at 5; Doc. 12 at 6. Thus, the Court is sufficiently presented
with the facts bearing on the likelihood of Petitioner’s removal. Requiring Petitioner to proceed
through Section 241.13’s procedures when neither party has given any indication of new facts
relevant to Petitioner’s likelihood of removal would unnecessarily delay the Zadvydas review that
is warranted after six months.
In addition to balancing Petitioner’s interest and the institutional interests, Tenth Circuit
precedent indicates that challenges to immigration detention “are properly brought directly through
habeas.” Soberanes, 388 F.3d at 1310 (citing Zadvydas, 533 U.S. at 678– 88)). Additionally, Tenth
Circuit precedent requiring exhaustion in habeas matters appears inapplicable here. The Williams
court reasoned that judicial intervention should be deferred until exhaustion because the Bureau
of Prisons was statutorily responsible for computing the service of the prison sentence under 18
U.S.C. § 3568. 792 F.2d at 987; see also Smoake v. Willingham, 359 F.2d 386, 388 (10th Cir. 1966)
(noting that judicial intervention prior to exhaustion would be taking the Attorney General’s
authority delegated by 18 U.S.C. § 4001). The Zadvydas inquiry concerning indefinite detention
has not been statutorily reserved for the agency like in Williams which is why challenges brought
under Zadvydas may be brought “directly through habeas.” Soberanes, 388 F.3d at 1310.
Accordingly, in finding that exhaustion of Section 241.13 is prudential and that exhaustion,
here, would unnecessarily delay the administration of justice, the Court will not require Petitioner
to exhaust his Section 241.13 remedies.
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II. 	Petitioner’s continued detention violates 8 U.S.C. § 1231 under Zadvydas.
The Government contends that Petitioner has failed to meet his burden demonstrating that
removal is not significantly likely in the reasonably foreseeable future. Doc. 9 at 12–13. Petitioner
argues that he has met his burden, and the Government has failed to rebut his showing. Doc. 10 at
3–5. Petitioner cannot be removed to Guatemala. Doc. 9-3 at 1. The Government failed to remove
Petitioner to Mexico, and the Government has not received any correspondence from Mexico
indicating that they will accept him. See Doc. 9-4 ¶¶ 14–15. Thus, the Court finds that Petitioner
has met his burden, and the Government has failed to rebut Petitioner’s showing.
A noncitizen may be detained beyond the removal period only for the time “reasonably
necessary to secure removal.” See Zadvydas, 533 U.S. at 699. Six months has been presumed to
be reasonable. Id. at 701. Thus, after six months, if a noncitizen provides “good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable future,” the
Government must rebut the noncitizen’s showing. Id. Given a sufficient showing by the
Government, the noncitizen may be confined “until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable future.” Id. Although Zadvydas
dealt with a noncitizen deemed removable after gaining admission to the United States, its holding
applies to noncitizens who are deemed inadmissible. Clark v. Martinez, 543 U.S. 371, 386 (2005);
see also Morales-Fernandez v. INS, 418 F.3d 1116, 1123–24 (10th Cir. 2005) (finding that, in Clark
v. Martinez, the Supreme Court expanded Zadvydas to apply to inadmissible noncitizens).
Petitioner demonstrates that there is not a significant likelihood that he will be removed in
the foreseeable future. It is undisputed that Petitioner is a Guatemalan citizen and a grant
withholding removal to Guatemala remains in place. Doc. 9-3 at 1. On June 12, 2025, Petitioner
was given notice that he would be removed to Mexico. Doc. 9-4 ¶ 14. On August 20, 2025, ERO
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submitted an email seeking “acceptance of [Petitioner] under [the] CVNH program to Mexico.”
Id. Despite requesting acceptance nearly five months ago, the Government fails to state or provide
documentation demonstrating that Mexico has accepted Petitioner under the CVNH program. A
months-old email request, without any response indicating an acceptance, does not amount to a
significant likelihood that Petitioner will be removed in the reasonably foreseeable future.
The Government fails to rebut Petitioner’s showing. The Government argues that
Petitioner was “on the cusp of being removed” and, after his negative credible fear determination,
“nothing suggests that there is no significant likelihood or removal in the reasonably foreseeable
future.” Doc. 9 at 13. While the Government contends that Petitioner was “on the cusp” of being
removed to Mexico, the Government has not demonstrated that Mexico has provided any response
that indicates Petitioner might be accepted. See Doc. 9-4 ¶ 14. Several courts have granted habeas
petitions under Zadvydas when the government has only demonstrated unilateral effort without
establishing actual progress toward removal. See Ahrach v. Baltazar, No. 25-cv-03195-PAB, 2025
WL 3227529, at *5 (D. Co. Nov. 19, 2025) (finding that the government did not meet its burden
by reaching out to three countries soliciting removal without receiving a response); see also
Hassoun v. Sessions, No. 1:18-cv-00586-FPG, 2019 WL 78984, at *5 (W.D.N.Y. Jan. 2, 2019)
(finding that the government failed to meet its burden when it had four requests for travel
documents pending for about five months). Further, the Court welcomed additional documentation
bearing on the likelihood of Petitioner’s removal, but the Government provided no such
documentation. See Doc. 11 at 5.
The Government contends that Petitioner was not removed because of “issues raised by his
legal counsel”; presumably, an issue being that the first credible fear determination was conducted
without counsel present. See Doc. 9-4 ¶ 14; see also Doc. 10 at 4. On October 14, 2025, Petitioner
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received a negative credible fear determination, based upon a second interview with counsel
present. Doc. 9-4 ¶ 14. But still, Petitioner has not been removed, and the Government has not
provided any documentation or argument that Mexico has responded to their email or agreed to
accept Petitioner. The Government’s contention that “ERO continues to pursue third country
removal,” Doc. 9-4 ¶ 15, for Petitioner does not demonstrate a significant likelihood that he will
be removed in the reasonably foreseeable future, see Jimenez Chacon, 2025 WL 3496702, at *8
(noting that reaching out to a third party country about removal without receiving any indication
of likely acceptance fails to demonstrate a significant likelihood of removal in the reasonably
foreseeable future); see also Salazar-Martinez, 2025 WL 3204807, at *2 (finding that the
government failed to meet its burden when it submitted repatriation requests to four countries and
two were denied and two received no response for five months). Accordingly, the Government has
failed to rebut Petitioner’s showing that there is no significant likelihood of removal in the
reasonably foreseeable future.
III. 	The Court need not address Petitioner’s Fourth and Fifth Amendment claims.
In further pursuit of immediate release, Petitioner argues that the initial seizure violated his
Fourth Amendment rights, see Doc. 10 at 5–6, and he contends that being issued a Form I-229(a)
“Warning for Failure to Depart” violated his Fifth Amendment rights,5 Doc. 7 at 1. The
Government contends that the initial seizure did not violate Petitioner’s Fourth Amendment rights,
but the Government does not address Petitioner’s Fifth Amendment argument about the Form
I-229(a). Doc. 9 at 13. Since the Court will grant habeas relief under Petitioner’s Zadvydas claim,
5 Petitioner moves to supplement this claim to his original Habeas Petition. Doc. 7. The
Government did not contest this supplement at any point. Because the Court considers Petitioner’s
supplemental claim here, Petitioner’s Motion to Supplement Petition for Writ of Habeas Corpus
(Doc. 7) is denied as moot.
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granting further relief under Petitioner’s remaining claims would be cumulative. See Banks v.
Dretke, 540 U.S. 668, 689 n.10 (2004) (declining to address an additional claim in a habeas petition
after granting full relief on a separate claim because any additional relief would be cumulative);
see also Scott v. Mullin, 303 F.3d 1222, 1232 (10th Cir. 2002) (declining to address the remaining
habeas claims after granting habeas relief on a separate claim). This approach is consistent with a
fundamental principle of judicial restraint that requires courts to avoid constitutional questions
unless their decision becomes necessary. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485
U.S. 439, 445 (1988) (noting that if “no additional relief would have been warranted, a
constitutional decision would have been unnecessary and therefore inappropriate”). Accordingly,
the Court declines to address Petitioner’s remaining Fourth and Fifth Amendment claims.
IV. 	Petitioner may file an Equal Access to Justice Act application to pursue reasonable
costs and fees.
Petitioner requests that the Court award attorney’s fees and costs under the Equal Access
to Justice Act (“EAJA”). Doc. 1 at 15. The Government does not address Petitioner’s request for
fees and costs. In light of recent Tenth Circuit precedent and the relevant procedure, the Court
finds that it may consider Petitioner’s request for attorney’s fees and costs provided that Petitioner
follows proper EAJA procedure.
The EAJA provides for the following procedure:
[A] court shall award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to subsection (a), incurred
by that party in any civil action . . . brought by or against the United States in any
court having jurisdiction of that action, unless the court finds that the position of
the United States was substantially justified or that special circumstances make an
award unjust.
28 U.S.C.§ 2412(d)(1)(A). Finding that “‘civil action’ unambiguously refers to any legal action
brought to enforce a private or civil right, or to redress a private wrong,” the Tenth Circuit held
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that the EAJA “unambiguously authorize[s] fees in habeas actions challenging immigration
detention.” Daley v. Ceja, 158 F.4th 1152, 1159, 1166 (10th Cir. 2025).
A fee award is required if (1) the plaintiff prevails, (2) the Government’s position was not
“substantially justified,” and (3) there are no special circumstances rendering an award of fees
unjust. 	Hackett 	v. 	Barnhart, 	475 F.3d 	1166, 1172 	(10th 	Cir. 	2007) 	(quoting 	28 	U.S.C.
§ 2412(d)(1)(A)). While fees are authorized, the EAJA requires that Petitioner, “within thirty days
of final judgment in the action, submit to the court an application for fees and other expenses,” and
an allegation demonstrating that “the position of the United States was not substantially justified.”
28 U.S.C. § 2412(d)(1)(A), (B). Upon filing this application, the Government must justify its
position in any underlying proceedings and district court litigation. See Hackett, 475 F.3d at 1170.
Since the Court grants Petitioner’s habeas relief, should Petitioner continue to pursue costs
and fees, Petitioner is instructed to file an EAJA application following the appropriate procedure.
CONCLUSION
In sum, the Court finds that exhaustion under Section 241.13 is prudential and not required
here. The Court also finds that Petitioner’s continued detention runs afoul of 8 U.S.C. § 1231(a)(6)
and Zadvydas. Accordingly, the Court finds that Petitioner is entitled to habeas relief.
IT IS THEREFORE ORDERED that Petitioner’s Petition for Writ of Habeas Corpus
(Doc. 1) is hereby GRANTED for reasons described in this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that Petitioner be released from custody by 5:00 p.m. on
January 13, 2026, under the same terms of supervision, if any, that were in place at the time of his
detention on June 10, 2025. The Government is directed to file certification that Petitioner has
been released.
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IT IS FURTHER ORDERED that Petitioner’s Motion to Supplement Petition for Writ
of Habeas Corpus (Doc. 7) is DENIED AS MOOT.
______/S/____________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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