Kurdobadze vs Venegas

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
TINATIN KURDOBADZE, §
Petitioner, §
§
v. § Civil Action No. 1:25-cv-00157
§
FRANCISCO VENEGAS, Warden of
El Valle Detention Facility,
Respondent.
§
§
§
MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Before the Court is: (1) Tinatin Kurdobadze’s “Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241” (Kurdobadze’s “§ 2241 Petition”) [Dkt. No. 1]; (2) the
Government’s “Response to Petition for Writ of Habeas Corpus and Motion to Dismiss”
(the Government’s “Motion to Dismiss”) [Dkt. No. 22]; (3) Kurdobadze’s “Reply to
Response to Petition for Habeas Corpus and Opposition to Motion to Dismiss”
(Kurdobadze’s “Reply”) [Dkt. No. 26]; (4) Kurdobadze’s “Motion for a Preliminary
Injunction and Supporting Memorandum” (Kurdobadze’s “PI Motion”) [Dkt. No. 27]; and
(5) the Government’s “Response in Opposition to Petitioner’s Motion for a Preliminary
Injunction” (the Government’s “Response to PI Motion”) [Dkt. No. 31].1
For the reasons discussed below, it is recommended that the Court: (1) GRANT,
IN PART, Kurdobadze’s § 2241 Petition; (2) RELEASE Kurdobadze from detention
subject to supervision in accordance with 8 U.S.C. § 1231(a)(3) and 8 C.F.R. § 241.5; (3)
1 After the Court appointed counsel to assist Kurdobadze in the prosecution of her § 2241 Petition, she filed,
pro se, a “Supplemental Habeas Corpus Submission” [Dkt. No. 32] and “Motion for Release or alternative,
for a Bond Hearing (Pending Resolution of Habeas Petition)” [Dkt. No. 33 (errors in original)].
United States District Court
Southern District of Texas
ENTERED
April 24, 2026
Nathan Ochsner, Clerk
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DENY the Government’s Motion to Dismiss [Dkt. No. 22]; and (4) DIRECT the Clerk of
Court to CLOSE this case.
I. FACTUAL AND PROCEDURAL BACKGROUND2
Kurdobadze is a native and citizen of Georgia, and a citizen of Poland. Dkt. No. 22
at 2; Dkt. No. 26 at 3. She is currently detained at El Valle Detention Center (“El Valle”)
in Raymondville, Texas. Dkt. No. 26 at 5. On June 7, 2024, Kurdobadze entered the
United States at or near San Diego, California, and turned herself in to immigration
authorities, requesting asylum. Id. at 3. On June 9, 2024, the Department of Homeland
Security (“DHS”) found Kurdobadze inadmissible under 8 U.S.C. § 1182 as an alien not in
possession of a valid immigration document at the time of admission. Id. On June 16,
2024, the immigration judge issued a final removal order. Id. at 9.
DHS gave Kurdobadze a credible fear interview, where it found that she had a
credible fear of persecution in Georgia. Id. at 3–4. DHS reported its findings to an
immigration judge. Id. at 4. On December 16, 2024, an immigration judge found
Kurdobadze inadmissible under 8 U.S.C. § 1182 and removable to Georgia, or in the
alternative, to Poland. Dkt. No. 1 at 7. The immigration judge granted Kurdobadze
withholding of removal to Georgia because asylum was not available. Id. at 5, 7.
On February 3, 2025, Immigration and Customs Enforcement (“ICE”) made a
Request for Travel Documents from Poland for Kurdobadze to the Consulate General of
the Republic of Poland in Los Angeles, California. Dkt. No. 22 at 3. On March 4, 2025, the
Polish government denied acceptance of Kurdobadze. Id. That same day, ICE requested
2 Information obtained from Kurdobadze’s § 2241 Petition [Dkt. No. 1] and where necessary to obtain
historical dates, the Government’s Motion to Dismiss [Dkt. No. 22], and Kurdobadze’s Reply [Dkt. No. 26].
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Travel Documents from the Costa Rican, Dominican Republic, and Panama embassies.
Id. at 4. The Costa Rican government promptly denied acceptance of Kurdobadze. Id.
On April 14, 2025, ICE served Kurdobadze with a Form I-229(a) (“Warning for
Failure to Depart”), informing her of her continued obligations to assist ICE in good faith
with travel applications or other documents necessary to effectuate Kurdobadze’s
departure. Id. at 3–4. Kurdobadze did not sign the Warning for Failure to Depart. Id.
On April 21, 2025, ICE informed Kurdobadze that it intended to continue her
detention based on “The Significant Likelihood of Removal in the Reasonably Foreseeable
Future.” Id. On August 27, 2025, ICE issued a second decision to continue detention,
indicating that ICE “continues to seek a third country alternative” for Kurdobadze’s
removal. Id. Since then, DHS has been unsuccessful in its attempt to find a country to
which to remove Kurdobadze. See id.
On July 29, 2025, the Court appointed counsel to assist Kurdobadze in the
prosecution of her § 2241 Petition. See Dkt. No. 9.
II. LEGAL STANDARDS
A. Petition for a Writ of Habeas Corpus
To be entitled to the issuance of a writ of habeas corpus, the petitioner must show
that she is “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3); see Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per
curiam) (“[N]either habeas nor civil rights relief can be had absent the allegation by a
plaintiff that he or she has been deprived of some right secured to him or her by the United
States Constitution or the laws of the United States.”) (quoting Hilliard v. Bd. Of Pardons
& Paroles, 759 F.2d 1190, 1192 (5th Cir. 1985) (per curiam)). A court considering a habeas
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petition must “determine the facts, and dispose of the matter as law and justice require.”
28 U.S.C. § 2243.
B. Federal Rule of Civil Procedure 12(b)(1)
Under Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”), a trial court must
dismiss an action for lack of subject matter jurisdiction when the court is without the
statutory or constitutional power to adjudicate the case. Home Builders Ass’n of Miss.,
Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The party seeking the federal
forum bears the burden of establishing facts supporting federal jurisdiction by a
preponderance of the evidence. Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748
(5th Cir. 2009); Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998).
A Rule 12(b)(1) motion challenges the court’s subject matter jurisdiction. FED. R.
CIV. P. 12(b)(1). Federal courts possess limited jurisdiction—they “possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994). One way that a federal district court may acquire subject matter
jurisdiction is via federal question jurisdiction. 28 U.S.C. § 1331. Pursuant to Section 1331,
the district courts have original jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.”
“[A] 12(b)(1) factual attack” challenging subject matter jurisdiction may be based
on: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” Kling v. Hebert, 60 F.4th 281, 284 (5th Cir. 2023).
When a Rule 12(b) motion is on point, the court must construe the facts in favor of the
nonmoving party. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 104 (1998).
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When a Rule 12(b)(1) motion is filed with a Rule 12(b)(6) motion, a court should
generally consider the Rule 12(b)(1) jurisdictional attacks before addressing any attack on
the merits. Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam).3 This
requirement prevents a court without jurisdiction from prematurely dismissing a case
with prejudice. The court’s dismissal of a plaintiff’s case because the court lacks subject
matter jurisdiction is not a determination of the merits and does not prevent the plaintiff
from pursuing a claim in a court that does have proper jurisdiction. Id.
C. Federal Rule of Civil Procedure 12(b)(6)
Dismissal is appropriate under Rule 12(b)(6) if the plaintiff fails “to state a claim
upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) is read in
conjunction with Rule 8(a), requiring “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Richter v. Nationstar Mortgage, LLC, Civil Action
No. H–17–2021, 2017 WL 4155477, at *1 (S.D. Tex., 2017) (Rosenthal, J) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 556 U.S. 662,
678-80 (2009)); FED. R. CIV. P. 8(a)(2).
To withstand a Rule 12(b)(6) challenge, a complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. 544, 570. This
means that a complaint, taken as a whole, “must contain either direct or inferential
allegations respecting all the material elements necessary to sustain recovery under some
viable legal theory[.]” Id. at 562 (quoting Car Carriers, Inc. v. Ford 3/12 Motor Co., 745
3 In Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., the Supreme Court explained that, although
“a federal court generally may not rule on the merits of a case without first determining that it has
jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal
jurisdiction),” as without jurisdiction it cannot decide the merits of the case, “there is no mandatory
‘sequencing of jurisdictional issues.’” 549 U.S. 422, 428-29 (2007) (citations omitted). “[A] federal court
has leeway ‘to choose among threshold grounds for denying audience to a case on the merits.” Id. at 431
(citation omitted).
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F.2d 1101, 1106 (7th Cir. 1984) (internal quotation marks omitted; emphasis and omission
in original)).
D. Zadvydas v. Davis
Immigration judges are authorized to issue orders of removal, which become final
once the Board of Immigration Appeals (“BIA”) has acted or the time to seek review of a
removal order expires. See generally 8 C.F.R. § 1241.1; Texas v. United States, 524 F.
Supp. 3d 598, 614 (S.D. Tex. 2021) (Tipton, J.). The Government typically has 90 days to
execute a final removal order and remove the alien from the United States. 8 U.S.C. §
1231(a)(1)(A).
Though § 2241 proceedings “remain available as a forum for statutory and
constitutional challenges to post-removal-period detention,” the alien’s ability to seek
habeas relief is subject to certain time constraints. Zadvydas v. Davis, 533 U.S. 678, 688
(2001). When the Government fails to execute a removal order within the 90-day period,
post-removal detention must be limited to a period “reasonably necessary” to effectuate
removal; indefinite detention is impermissible. Id. at 689.
This does not mean that any amount of post-removal-period confinement is
unlawful; rather, the Government’s obligation to rebut a presumption of indefinite
detention does not activate until after detention has been ongoing longer than six months,
and only after the alien first makes a showing that “there is no significant likelihood of
removal in the reasonably foreseeable future.” Id. at 701. Up to six months of immigration
detention after entry of a final removal order is, therefore, “presumptively reasonable.”
Id.; Chance v. Napolitano, 453 F. App'x 535, 536 (5th Cir. 2011) (per curiam).
The presumptively reasonable period “does not mean that every alien not removed
must be released after six months. To the contrary, an alien may be held in confinement
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until it has been determined that there is no significant likelihood of removal in the
reasonably foreseeable future.” Zadvydas, 533 U.S. at 701; see Clark v. Martinez, 543
U.S. 371, 386 (2005) (extending the Supreme Court’s interpretation of the statute to
inadmissible aliens).
After the expiration of the six-month period, an alien is eligible for release only if
she shows that “no such likelihood of removal exists.” Andrade v. Gonzales, 459 F.3d 538,
543 (5th Cir. 2006) (citing Zadvydas, 533 U.S. at 701). If the petitioner “provides good
reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future,” the burden shifts to the Government to either rebut that showing or
release her. Zadvydas, 533 U.S. at 701; see also 8 C.F.R. § 241.13 (establishing the
Zadvydas procedures). Conclusory statements suggesting that removal is not likely in the
reasonably foreseeable future are insufficient to make this showing. Andrade, 459 F.3d at
543. Zadvydas offers guidance for applying this standard. See 533 U.S. at 701–702. The
Supreme Court saw a “serious constitutional problem” in “indefinite detention” and
limited the chances that its standard would allow for such detention through two
principles. Id. at 690. First, the Government’s good faith efforts to remove an alien alone,
are insufficient to establish a significant likelihood of removal. Id. at 702. Such a standard
“would seem to require an alien seeking admission to show the absence of any prospect
of removal–no matter how unlikely or unforeseeable.” Id. (emphasis in original). Second,
the window for the “reasonably foreseeable future” “shrink[s]” the longer the alien is
detained. Id. at 701. Zadvydas inquiry, then, becomes more suspicious of detention as it
continues, even while the Government vigorously pursues the alien’s removal. Id. at 701–
702.
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The district courts have elaborated upon the “reasonably foreseeable” standard.
Villanueva v. Tate, 801 F.Supp.3d 689, 702 (S.D. Tex. 2025) (Hittner, J) (finding that
petitioner’s removal was not reasonably foreseeable when the Government failed to find
a country willing to accept him); Leksina v. Rice, No. 6-25-1767 2026 WL 655563 at *2–
3 (W.D. La. 2026) report and recommendations adopted 2026 WL 642195 (2026)
(petitioner’s removal was not reasonably foreseeable when she demonstrated that ICE
failed to identify a third country that would accept her); Mustafa IQBAL v. McBride, 4-
25-5217 2025 WL 4634563 at *1–2 (S.D. Tex. 2025) (Eskridge, J) (finding that the
Government’s continued requests for travel documents from a third country were, by
themselves, insufficient to establish that removal was reasonably foreseeable).
E. Exhaustion of Administrative Remedies
Administrative remedies should be exhausted before a habeas action is brought
under 28 U.S.C. § 2241. See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). Exhaustion is
required because it protects administrative agency authority, promotes judicial efficiency,
and “acknowledges the commonsense notion of dispute resolution that an agency ought
to have an opportunity to correct its own mistakes with respect to the programs it
administers before it is hauled into federal court.” McCarthy v. Madigan, 503 U.S. 140,
144–45 (1992) (superseded by statute on other grounds).
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III. DISCUSSION
A. Kurdobadze has exhausted her administrative remedies.
At any time after her removal order becomes final, an alien may submit a written
request to ICE’s Headquarters Post-Order Detention Unit (“HQPDU”) asserting the basis
for her belief that there is no significant likelihood that she will be removed “in the
reasonably foreseeable future.” 8 C.F.R. § 241.13(d). The HQPDU will then issue a written
decision based on the administrative record, regarding the likelihood of removal. 8 C.F.R.
§ 241.13(g). If the HQPDU determines that there is a significant likelihood that the alien
will be removed in the reasonably foreseeable future, the HQPDU will deny the alien’s
request. § 241.13(g)(2).
Here, the Government argues that Kurdobadze failed to exhaust her administrative
remedies before filing her § 2241 Petition, because she does not allege that the HQPDU
has determined whether there is a significant likelihood that she will be removed in the
reasonably foreseeable future. Dkt. No. 22 at 10–11 (citing Parker v. Sessions, No. 5-18-
2261, 2018 WL 11491450, at *2 (S.D. Tex. 2018) (Hittner, J) (dismissal of habeas petition
as premature was warranted because petitioner did not allege or show that there had been
an “administrative determination on the status of [ICE’s] removal efforts or the propriety
of his continuing confinement” in conformity with 8 C.F.R. § 241.13); Hung Van Le v.
Sessions, No. 5-18-1984, 2018 WL 3361515, at *1–2 (S.D. Tex. 2018) (Atlas, J)
(petitioner’s failure to show he exhausted available administrative remedies under 8
C.F.R. § 241.13 warranted dismissal of habeas petition).
For the reasons discussed below, the Court finds the Government’s argument
unconvincing. First, the Government argues that submitting a written request to the
HQPDU is required to satisfy administrative exhaustion. But the vehicle for pursuing an
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administrative appeal is phrased in the permissive: “An eligible alien may submit a
written request for release.” 8 C.F.R. § 241.13(d)(1) (emphasis added); see Tapia v.
Watkins, No. 1-11-102 2011 WL 13340417 at *1 n.1 (S.D. Tex. 2011) (Morgan, J) (noting
that the court was not persuaded that the petitioner was required to exhaust
administrative remedies prior to seeking habeas relief). “Where Congress has not clearly
required exhaustion, sound judicial discretion governs.” McCarthy, 503 U.S.at 144
(cleaned up).
Second, Kurdobadze appears to have received decision letters sufficient to satisfy
the exhaustion requirement. On April 21, 2025, and August 27, 2025, ICE sent
Kurdobadze two letters titled “Decision to Continue Detention.” Dkt. No. 18 at 85–88;
Dkt. No. 22 at 15–17. In both letters, ICE states that it reviewed Kurdobadze’s custody
status and rendered a decision based on Kurdobadze’s file, consideration of the
information she submitted to ICE’s reviewing officials, and the “factors for consideration
set forth at 8 C.F.R. § 241.4(e), (f), and (g).” Dkt. No. 18 at 85; Dkt. No. 22 at 15. ICE’s
decision letters appear to effectuate the procedural goal of 8 C.F.R. § 241.13(g). 8 C.F.R.
§ 241.13(g) (The HQPDU’s decision will be based on “the administrative record, including
any documentation provided by the alien, regarding the likelihood of removal and
whether there is a significant likelihood that the alien will be removed in the reasonably
foreseeable future under the circumstances.”). Kurdobadze’s case, then, is distinguishable
from both Parker and Hung Van Le. Unlike Kurdobadze, the petitioners in Parker and
Hung Van Le do not appear to have received decision letters regarding their continued
detention. See generally No. 5-18-2261, 2018 WL 11491450; see also No. 5-18-1984, 2018
WL 3361515.
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Third, the Government admits that its decision letters regarding continued
detention satisfy the administrative exhaustion required under § 241.13(g)(2). Dkt. No.
22 at 8 (stating that “the Government has issued two decisions in conformity with its
obligations under § 241.13(g)(2) on April 21, 2025, and August 27, 2025.”).
B. Kurdobadze has been in detention beyond the removal period.
It is clear from the record that Kurdobadze has been in custody well beyond both
the 90-day removal period and the six-month presumptively reasonable period. Dkt. No.
26 at 9; 8 U.S.C. § 1231(a)(1); 8 C.F.R. § 241.4(g)(1)(ii) (after a removal order is entered,
the Government must detain the alien for 90 days, during which the government must
attempt to remove the alien); Zadvydas, 533 U.S. at 688–89.
C. Kurdobadze’s removal is not reasonably foreseeable.
Removal is not reasonably foreseeable where the Government has attempted and
failed to find a third country for removal. See Villanueva, 801 F.Supp.3d at 702. DHS has
yet to locate a third country to which to remove Kurdobadze, over 19 months since her
final order of removal. See Dkt. No. 22 at 9; see also Dkt. No. 26 at 10–12.
In determining whether a petitioner’s removal is in the reasonably foreseeable
future, a court may consider delays caused by proceedings contesting removal to a third
country. Villanueva, 801 F.Supp.3d at 703 (citing Johnson v. Guzman Chavez, 594 U.S.
523, 528, 530–31 (2021); Zavvar v. Scott, No. 25-2104-TDC, 2025 WL 2592543, at *5 (D.
Md. 2025) (finding relevant to the reasonably foreseeable analysis the fact that “even if
ICE identified a third country, Petitioner … would be entitled ‘to seek fear-based relief
from removal to that country,’ which would require ‘additional, lengthy proceedings.’”).
In Villanueva, this Court found that the petitioner’s removal was not in the
reasonably foreseeable future, in part, because of the delay that would result from
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proceedings contesting his removal to a third country finally identified. 801 F.Supp.3d at
703. There, the petitioner had been granted a withholding of removal to Mexico, the only
country to which the petitioner had a claim to citizenship or legal immigration status. The
Government’s efforts to remove the petitioner to a third country were unsuccessful. Id.
Kurdobadze’s circumstances are similar. Here, as in Villanueva, the undisputed
facts show that Kurdobadze has been granted a withholding of removal to Georgia and
that Poland will not take her. Dkt. No. 22 at 3. These are the only countries to which she
has a claim to citizenship or legal immigration status. Id. at 2; see also Villanueva, 801
F.Supp.3d at 703 (where the only country to which petitioner had claim to citizenship or
legal immigration status was Mexico). Although the Government has attempted to have
Kurdobadze removed, it has thus far found no country willing to accept her. Dkt. No. 22
at 4.
The Court recognizes the Government’s right to enforce Kurdobadze’s order of
removal. However, the Government may not detain Kurdobadze for an indefinite and
undetermined period of time while it tries to affect that removal, when the circumstances
indicate her removal is not reasonably likely in the foreseeable future. Zadvydas, 533 U.S.
at 697–97; Villanueva, 801 F.Supp.3d at 704; see Tran v. Mukasey, 515 F.3d 478, 482
(5th Cir. 2008).
D. Kurdobadze is entitled to relief under Zadvydas.
The remedy for a Zadvydas claim is generally the release of the petitioner under
conditions of supervision. 8 U.S.C. § 1231(a)(3) (if an alien is not removed within the
removal period, she shall be subject to supervision under regulations prescribed by the
Attorney General); 8 C.F.R. § 241.5 (an alien granted release from detention will be
released pursuant to an order of supervision); see Ali v. Department of Homeland
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Security, 451 F.Supp.3d 703, 710 (S.D. Tex. 2020) (Ellison, J); see also Misirbekov v.
Venegas, No. 1-25-cv-00168 2025 WL 3033732 at *2 (S.D. Tex. 2025) (Olvera, J); Trejo
v. Warden of ERO El Paso East Montana, 807 F.Supp.3d 697, 712 (W.D. Tex. 2025)
(citing Khan v. Gonzales, 481 F.Supp.2d 638, 643 (W.D. Tex. 2006)).
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the Court: (1) GRANT, IN
PART, Kurdobadze’s § 2241 Petition [Dkt. No. 1]; (2) RELEASE Kurdobadze from
detention subject to supervision in accordance with 8 U.S.C. § 1231(a)(3) and 8 C.F.R. §
241.5; (3) DENY the Government’s Motion to Dismiss [Dkt. No. 22]; and (4) DIRECT
the Clerk of Court to CLOSE this case.
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V. NOTICE TO PARTIES
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within fourteen
days after being served with a copy shall bar that party, except upon grounds of plain
error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court, provided that the party has been served with
notice that such consequences will result from a failure to object. Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1);
FED. R. CIV. P. 72(b).
SIGNED on this 24th day of April, 2026 at Brownsville, Texas.
____________________________
Ignacio Torteya, III
United States Magistrate Judge
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