Mendoza v. Mullin

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
HENRY MAURICIO AREVALO
MENDOZA,
)
)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-2123-R
)
MARKWAYNE MULLIN, DHS
Secretary,
)
)
)
Respondent. 	)
REPORT AND RECOMMENDATION
Petitioner Henry Mauricio Arevalo Mendoza, a noncitizen1 and Salvadoran national
proceeding pro se, filed a Petition for Writ of Habeas Corpus 	(“Petition”), 	Doc. 1,
challenging 	under 28 U.S.C. § 2241 his detention by U.S. Immigration and Customs
Enforcement (“ICE”). 	United States District Judge David L. Russell referred this matter
to the undersigned Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C).
Doc. 3. The undersigned set an expedited briefing schedule, Doc. 5, and the Petition is at
issue. Petitioner also filed an Emergency Request for Release from Immigration Detention.
Doc. 8.
For the reasons below, the undersigned recommends that the Court deny the Petition
and deny Petitioner’s pending motion as moot.
1 Unless 	quoting, 	this 	Report and Recommendation 	“uses 	the term ‘noncitizen’ 	as
equivalent to the statutory term ‘alien.’” 	Nasrallah v. Barr, 590 U.S. 573, 578 n.2 (2020)
(citing 8 U.S.C. § 1101(a)(3)).
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I. 	Background
Petitioner, a citizen of El Salvador, entered the United States as an unaccompanied
juvenile on or about February 18, 2019, near Hidalgo, Texas, without inspection or parole.
Doc. 7-1 at 1 (Notice to Appear); Resp. at 1. 	At a later, unspecified time, ICE released
Petitioner on an Order of Release on Recognizance.2 Resp. at 1.
On April 4, 2026, ICE issued a warrant for Petitioner’s arrest. Doc. 7-2 at 1 (Arrest
Warrant). 	ICE arrested him the same day. Id. Two days later, ICE placed Petitioner into
removal proceedings before the Immigration Court under 8 U.S.C. § 1229a through the
issuance of a Notice to Appear. 	Doc. 7-1 at 1, 3. 	Petitioner was charged with being
inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) as someone who entered the United States
without inspection. 	Doc. 7-1 at 1, 4. He was also charged with being an immigrant who,
when he entered the United States, was “not in possession of a valid unexpired immigrant
visa, reentry permit, border crossing card, or other valid entry document,” a valid unexpired
passport, 	or 	other 	suitable 	travel 	and 	identification 	documents, 	under 	8 	U.S.C.
§ 1182(a)(7)(A)(i)(I). 	Doc. 7-1 at 4.
On May 12, 2026, an Immigration Judge (“IJ”) granted Petitioner’s application for
voluntary departure from the United States. Doc. 7-3 at 1 (IJ Order); Pet. at 2 (confirming
Petitioner “asked for a voluntary departure” (citation modified)). 	See EOIR, Automated
2 Respondents do not attach evidence showing Petitioner’s status (as an unaccompanied
juvenile) when he entered the United States or the circumstances of his later release. 	See
Resp. at 1. Petitioner did not contest either assertion by filing a reply, so the undersigned
accepts Respondents’ factual assertions as accurate.
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Case Information, at https://acis.eoir.justice.gov/en/ (last accessed Oct. 8, 2026). The IJ’s
order required 	removal to occur “on or before 06/11/2026,” 	subject to any deadline
extensions. 	Doc. 7-3 at 1. 	Nothing in the record suggests this deadline was extended.
When Petitioner did not depart by June 11, 2026, the “grant of [his] pre-conclusion
voluntary departure [was] withdrawn without further notice or proceedings,” and the IJ’s
order granting voluntary departure matured into an order of removal that was “immediately
effective.” Id. Petitioner waived his right to appeal the IJ’s order and “all issues” included
in it. Id. at 1, 3.
Petitioner also applied for asylum to U.S. Citizenship and Immigration Services
(“USCIS”). 	Doc. 7-5 at 1 (Syed Decl.); Resp. at 2 (clarifying the “relief application”
referenced in Mr. Syed’s Declaration is an “application for asylum”). 	Petitioner now seeks
to withdraw his asylum application. 	Respondents state, “ICE ERO has been working with
Petitioner Arevalo-Mendoza and USCIS to have [his relief application] withdrawn and his
voluntary departure effectuated.” Doc. 7-5 at 1. 	The process for Petitioner to withdraw
his asylum application and to clear the way for his removal is not complete. 	Id.; Resp. at
3 (“Respondent[s are] diligently working with Petitioner to withdraw his application and
effectuate his voluntary departure.”).
When Petitioner filed his Petition, he was detained at Diamondback Correctional
Facility in Watonga, Oklahoma. 	Pet. at 1. 	He remains detained there. 	See ICE Online
Detainee Locator System, 	at https://locator.ice.gov/odls/#/results 	(last 	visited 	Oct. 8,
2026).
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II. 	Petitioner’s Claims
Petitioner asserts one count in his Petition—that he was granted voluntary departure
but has not been removed, despite “fully cooperating with ICE to secure his removal.” Pet.
at 6 (citation modified). 	He asks to “be removed at the earliest possible” time or for the
Court to order him “released on an order of supervision.” 	Id. at 7 (citation modified).
Because Petitioner’s order of removal is final, the undersigned liberally construes his claim
as made under Zadvydas v. Davis, 533 U.S. 678 (2001) and asserting a violation of his right
to due process.
III. 	Standard of Review
To obtain habeas corpus relief, Petitioner must show that he is “in custody in
violation 	of 	the Constitution or 	laws or treaties 	of the United States.” 	28 U.S.C.
§ 2241(c)(3). 	“Challenges to immigration detention are properly brought directly through
habeas.” 	Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas,
533 U.S. at 687-88).
Petitioner has a final order of removal, 	meaning his detention is governed by
8 U.S.C. § 1231(a). 	Under that statute, “when an alien is ordered removed, the Attorney
General shall remove the alien from the United States within a period of 90 days.” 	Id.
§ 1231(a)(1)(A). 	This 90-day period is known as the “removal period.” Id. The removal
period begins on the latest of: (1) the date the order of removal becomes administratively
final, (2) the date of the court’s final order when a removal order is judicially reviewed, or
(3) the date the noncitizen is released from detention or confinement if detained, unless the
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noncitizen is confined under immigration 	processes. 	Id. § 1231(a)(1)(B). 	During the
removal period, noncitizens are subject to mandatory detention. Id. § 1231(a)(2)(A).
Removal of a noncitizen is not always completed during the removal period. 	And
the end of the removal period 	does not automatically 	trigger release. 	See 8 U.S.C.
§ 1231(a)(6) (allowing post-removal-period 	detention of, among others, noncitizens who
are 	“inadmissible 	under 	section 	1182” 	or 	“removable 	under section 	1227(a)(1)(C),
1227(a)(2), or 1227(a)(4)”); Morales-Fernandez 	v. INS, 418 F.3d 1116, 1123 (10th Cir.
2005). 	The detention of a noncitizen subject to a final order of removal may not be
indefinite and is presumptively reasonable for only six months beyond the removal period.
See Zadvydas, 533 U.S. at 701. “This 6-month presumption, of course, does not mean that
every alien not removed must be released after six months. 	To the contrary, an alien may
be held in confinement until it has been determined that there is no significant likelihood
of removal in the reasonably foreseeable future.” 	Id. 	Ordinarily, “if the alien does not
leave or is not removed within the removal period,” he may be released 	“subject to
supervision.” 	8 U.S.C. § 1231(a)(3) (citation modified).
As to the six-month period, courts have recognized Zadvydas only “adopt[ed] a
presumption—not 	a conclusive 	bar to adjudication of whether continued detention is
authorized that lifts only after six months have elapsed.” 	Cruz Medina v. Noem, 794 F.
Supp. 3d 365, 375 (D. Md. 2025); accord Roble v. Pontesso, 90 F. App’x 334, 336 (10th
Cir. 	2004) (acknowledging 	a “rebuttable presumption” 	in Zadvydas). 	Indeed, after
Zadvydas, the Supreme Court rejected an argument by the Government that Zadvydas
“authorizes detention until it approaches constitutional limits” and instead interpreted
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§ 1231(a)(6) 	“to authorize detention only for a period consistent with the purpose of
effectuating removal.” 	Clark v. Martinez, 543 U.S. 371, 384 (2005); see also id. at 387
(O’Connor, J., concurring) (noting “the 6-month presumption” “in Zadvydas, is just that—
a presumption” (citation modified)).
Therefore, to obtain habeas relief, a petitioner has the initial burden (1) to show his
post-removal-order 	detention has surpassed six months or to rebut the presumption of
reasonableness if such detention is less than six months, and (2) to “provide[] good reason
to believe that there is no significant likelihood of removal in the reasonably foreseeable
future.” Zadvydas, 533 U.S. at 701; see also Soberanes, 388 F.3d at 1311 (“If removal is
not reasonably 	foreseeable, 	the court should hold continued detention unreasonable.”
(citation modified)). 	If the petitioner meets his initial burden, “the Government must
respond with evidence sufficient to rebut that showing.” Zadvydas, 533 U.S. at 701.
IV. 	Analysis
Petitioner’s order of removal became administratively final on June 11, 2026, when
he had not departed the United States and the alternate order from the IJ took effect. See
Doc. 7-3 at 1 (showing the IJ-imposed deadline for voluntary departure and the terms of
the alternate order); see also Lopez Macias 	v. Mullin, 	No. CIV-26-484-J, 2026 WL
2455801, at *2 (W.D. Okla. Aug. 13, 2026) (R&R) (recommending dismissal of petition
as moot when IJ granted voluntary departure, order became administratively final, and
petitioner was then subject to mandatory detention under § 1231(a)), adopted, 2026 WL
2473668 (W.D. Okla. Aug. 21, 2026); Lopez v. Mullin, No. 26-cv-663, 2026 WL 1602614,
at *2 (D.N.M. June 4, 2026) (addressing finality of an alternate order in analogous
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circumstances when petitioner did not timely depart). The alternate order of removal was
final immediately because Petitioner “waived appeal of all issues.” 	Id.; see also 8 C.F.R.
§ 1003.39 (explaining “the decision of the [IJ] becomes final upon waiver of appeal or
upon expiration of the time to appeal if no appeal is taken whichever occurs first.”);
Muradyan v. Warden, No. 26-CV-63, 2026 WL 184206, at *2 (S.D. Cal. Jan. 23, 2026)
(“Petitioner was ordered removed . . . and because he waived his right to appeal, his order
of removal became administratively final the same day.” (citation omitted)).
The 	90-day removal 	period 	lasted 	until September 	9, 	2026. 	See 	8 U.S.C.
§ 1231(a)(1). 	Nothing in the record indicates the removal period was extended. See id.
§ 1231(a)(1)(C) (allowing for extension of the removal period beyond 90 days “if the alien
fails or refuses to make timely application in good faith for travel or other documents
necessary to the alien’s departure or conspires or acts to prevent the alien’s removal”). 	ICE
did not remove Petitioner during the removal period. 	See ICE Online Detainee Locator
System, at 	https://locator.ice.gov/odls/#/results 	(last 	visited Oct. 8, 2026) 	(indicating
Petitioner remains detained at Diamondback Correctional Facility).
A court can order release of an immigration detainee once a noncitizen’s 90-day
removal period has ended if the noncitizen has not been removed. 	Zadvydas, 533 U.S. at
682, 687-88. The principles of Zadvydas govern Petitioner’s continued detention:3
3 Respondents argue Petitioner is subject to mandatory detention under § 1231(a)(2)(A).
Resp. at 3. 	While Respondents’ position was correct when they filed their response on
August 28, 2026, the 90-day removal period ended. The undersigned analyzes Petitioner’s
current circumstances. 	See Lee v. Crawford, No. 25CV535, 2026 WL 745263, at *4 (E.D.
Va. Feb. 27, 2026) (R&R) (“Federal courts routinely consider post-filing developments in
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There is no express limitation on the length of an alien’s post-removal-period
detention under 	§ 	1231(a)(6). 	But in 	Zadvydas, 	the Supreme 	Court
interpreted § 1231(a)(6) narrowly and imposed an implicit reasonable time
limitation on such detention to avoid any Fifth Amendment due process
issues that could arise from indefinite detention. 	After Zadvydas, an alien
can be detained only until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.
Babakhani v. Gantt, No. CIV-26-705-SLP, 2026 WL 1822995, at *3 (W.D. Okla. June 24,
2026) (citation modified).
Petitioner’s detention has not extended beyond the presumptively reasonable six-
month period set out in Zadvydas. 	He has also provided no factual assertions beyond the
passage of time to rebut the Zadvydas presumption of reasonableness that applies during
the six-month period. In these circumstances, where less than four months of the six-month
Zadvydas period have elapsed and no other circumstances are identified to show removal
is not reasonably foreseeable, passage of time is not, by itself, enough.4 Cf. Babakhani,
habeas proceedings challenging 	immigration 	detention.”), adopted, 2026 WL 738591
(E.D. Va. Mar. 16, 2026). 	Even if the Court analyzes Petitioner’s circumstances when
filing the Petition (on August 13, 2026), he is not entitled to release because he was then
subject to § 1231(a)(2)(A)’s mandatory detention.
4 It is unclear why withdrawal of Petitioner’s asylum application was not completed
quickly. Though the undersigned does not recommend relief based on these circumstances,
Petitioner may later be entitled to habeas relief if he has not been removed and can establish
his removal is not likely in the reasonably foreseeable future. See Zadvydas, 533 U.S. at
701 (“As the period of prior postremoval confinement grows, what counts as the reasonably
foreseeable future conversely . . . ha[s] to shrink.” (citation modified)). The undersigned’s
analysis 	also might be different if Petitioner had not sought to withdraw his asylum
application and an additional barrier to removal existed. 	See Martinez v. Hyde, 810 F.
Supp. 3d 135, 139 n.10 (D. Mass. 2025) (finding the J.O.P. settlement agreement’s
requirements 	to be “striking 	evidence that Petitioner’s 	removal is apparently 	neither
imminent nor inevitable,” and reading them to seemingly prevent the Government from
“mov[ing] forward with . . . removal proceedings . . . unless and until it adjudicate[d the]
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2026 WL 1822995, at *3 & nn.6-8 (identifying, in a case where detention had lasted
approximately 23 months, the factors used in Zadvydas analyses).
As a result, Petitioner has failed to meet the Zadvydas requirement to establish
“good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future.” 	533 U.S. at 701. 	He has not provided evidence of any institutional
barriers to his removal such as an unavailability 	of travel documents for removal to El
Salvador or refusal by El Salvador to accept him. 	See, e.g., Abiodun v. Mukasey, 264 F.
App’x 726, 729 (10th Cir. 2008) (finding a petitioner was not entitled to relief because
there had been “no showing” he would “not be accepted by his homeland of Nigeria”).
Instead, the only indicated reason for delay of Petitioner’s removal is the time
required to complete withdrawal of his asylum application under the settlement agreement
in J.O.P. v. DHS, No. Civ-19-1944, Doc. No. 199-2 (D. Md. July 30, 2024). Respondents
state they are “working with Petitioner . . . to have [his] application [for asylum] withdrawn
and his voluntary departure effectuated.” Doc. 7-5 at 1. Petitioner provides no indication
otherwise, and this is not a case where it appears from the record there is a “lack of
meaningful, ongoing efforts by [ICE] to remove Petitioner.” Khaliq v. Noem, 828 F. Supp.
3d 1260, 1269 (W.D. Okla. 2026).5 This case presents a close call whether Petitioner has
still-pending asylum application on the merits,” when the noncitizen was seeking asylum
rather than withdrawing his asylum application).
5 In his emergency motion for release, Petitioner acknowledges his “case is subject to a
J.O.P.-related hold.” Doc. 8 at 2 (citation modified). He requests release or a bond hearing
but does not contest his class membership or Respondents’ efforts to resolve his hold. Id.
at 1-2.
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rebutted the Zadvydas presumption because (a) Respondents provide limited information
about progress 	toward Petitioner’s 	removal pending final withdrawal of 	his asylum
application, (b) they did not indicate his removal is imminent, and (c) they did not estimate
how much additional time will be needed to withdraw his asylum application. 	Still, all
circumstances considered, the undersigned does not find the delay caused by the J.O.P.
settlement agreement to be a “good reason to believe that there is no significant likelihood
of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701.
V. 	Recommendation and Notice of Right to Object
For these reasons, the undersigned recommends that the Court DENY the Petition,
Doc. 1, for habeas relief. 	Adoption of the recommendation 	would moot Petitioner’s
pending Emergency Request for Release from Immigration Detention, Doc. 8.
The parties are advised of their right to object to this Report and Recommendation.
See 28 U.S.C. § 636. Any objection must be filed not later than October 22, 2026. See id.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(2). 	If a party wishes to respond to the other party’s
objections, such response must be filed not later than October 29, 2026. See Fed. R. Civ.
P. 72(b)(2). 	Failure to object timely waives the right to appellate review of the factual and
legal issues addressed in this Report and Recommendation. 	See Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991).
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This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 8 th day of October, 2026.
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