Memen v. Warden, Port Isabel Detention Center

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
ARAFATE M., 1 	§
Petitioner, 	§
§
v. 	§ 	CIVIL ACTION NO. 1:26-cv-315
§
WARDEN, PORT ISABEL SERVICE 	§
PROCESSING CENTER, et al., 	§
Respondents. 	§
REPORT AND RECOMMENDATION
TO DISMISS PETITIONER’S HABEAS PETITION
Before the Court is Petitioner Arafate M.’s (“Petitioner”) “Petition for Writ of Habeas
Corpus” (Dkt. No. 1) (“Petition”) and Respondents’ “Response to Petition for Writ of Habeas
Corpus and Motion to Dismiss for Failure to State a Claim” (Dkt. No. 14) (“MTD”).
Because Petitioner’s claim of excessive detention is premature, it is recommended
that the Court (1) DENY the Petition (Dkt. No. 1), (2) GRANT the MTD (Dkt. No. 14), and
(3) DIRECT the Clerk of Court to close the case.
I. 	Background and Procedural History
Petitioner is a native and citizen of Togo, currently held at the Port Isabel Service
Detention Center. Dkt. No. 14-1 at 2. On July 15, 2025, an Immigration Judge ordered him
removed, Dkt. No. 1 at 2 ¶ 6. Petitioner appealed timely. Dkt. No. 1 at 2 ¶ 7. On January 21,
2026, the Board of Immigration Appeals (“BIA”) dismissed Petitioner’s appeal, Dkt. No. 1
at 2 ¶ 7. On February 1, 2026, Petitioner appealed the BIA’s decision to the Ninth Circuit
Court of Appeals. Dkt. No. 1 at 5.2 The Ninth Circuit imposed a temporary stay of
1 Due to significant privacy concerns in immigration cases and noting that judicial opinions are not subject
to Federal Rule of Civil Procedure 5.2, any opinion, order, judgment, or other disposition in this case will
refer to the petitioner only by first name and last initial.
2 The facts provided by Petitioner indicate Petitioner has been detained in South Texas since January of
2025. Dkt. No. 1-1 at 2. The BIA’s opinion indicates that the appeal came from “a Decision of the
Immigration Court, Los Fresnos, TX.” Dkt. No. 14-1 at 2. Respondents contend that the Ninth Circuit does
not have jurisdiction over this case. Dkt. No. 14 at 5.ك
United States District Court
Southern District of Texas
ENTERED
May 06, 2026
Nathan Ochsner, Clerk
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Petitioner’s removal under a general order on February 27, 2026. See Case 26-759, Dkt. No.
10. Respondents represent that the Office of Immigration Litigation has requested the Ninth
Circuit Court of Appeals transfer the case to the Fifth Circuit Court of Appeals and lift the
stay of removal. Dkt. No. 14 at 5. Petitioner filed the instant habeas petition on March 17,
2026. Dkt. No. 1.
The Petition alleges that there is no end in sight to Petitioner’s current detention. Dkt.
No. 1 at 6. 3 Petitioner points to the pending case before the Ninth Circuit, alleges it will take
several more months or even longer before the Circuit Court renders a decision, and
Petitioner argues this detention period will add to what has been over 14 months of detention.
Id. 4
II. 	Legal Standard
“Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375, 377 (1994). A court has “an independent obligation to determine whether subject-
matter jurisdiction exists,” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006), and, if it
“determines…that it lacks subject-matter jurisdiction,” it “must dismiss the action.” Fed. R.
Civ. P. 12(h)(3). One “essential component[]” of “federal subject-matter jurisdiction” is
“ripeness.” Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005). For a court to exercise
jurisdiction, then, the case “must be ripe for decision, meaning that it must not be premature
or speculative.” Shields v. Norton, 289 F.3d 832, 835 (5th Cir. 2002).
III. 	Discussion
Because Petitioner has not been detained for over six months since his removal order
became final, see Dkt. No. 1 at 2 ¶ 7, his claim is premature.
3 The Court notes that, even under a liberal construction of Petitioner’s claims, the other stated grounds
encompass not grounds for relief, but arguments concerning Petitioner’s danger (or lackthereof) to the
community and flight risk assessment.
4 The Court notes these 14 months include the period of time in which removal proceedings were ongoing as
well as the period of time following his final order of removal.
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Once a removal order becomes final,5 8 U.S.C. § 1231 (“§ 1231”) authorizes
detention of the alien to effectuate removal under two provisions. In the first 90 days
(otherwise known as the “removal period”), 8 U.S.C. § 1231(a)(1), the “Attorney General
shall detain the alien” under 8 U.S.C. § 1231(a)(2). Once the removal period ends, the source
of authorization shifts to § 1231(a)(6), which states that the alien “may be detained” by the
Attorney General “beyond the removal period.” 8 U.S.C. § 1231(a)(6). To ensure §
1231(a)(6) would not lead to constitutionally excessive detention, the Court in Zadvydas v.
Davis, 533 U.S. 678 (2001) construed it to have an implied limit: authorization of detention
under § 1231(a)(6) would run out when continued detention “exceeds a period reasonably
necessary to secure removal” and removal “is no longer reasonably foreseeable.” Zadvydas,
533 U.S. at 699. The Court, however, also understood that a reasonableness standard,
standing alone, would risk too much judicial interference with the Executive’s “primacy in
foreign policy matters.” Id. at 701. The Court thus found it “practically necessary” to “limit”
its new standard by recognizing a “presumptively reasonable period of detention” of “six
months.” Id.
Pieced 	together, 	the 	Zadvydas 	framework 	slots claims 	challenging 	post-final-
removal-order detention into two phases:6 1) a six-month period where the statute
5 A removal order becomes “administratively final” under 8 U.S.C. § 1231(a)(1)(B)(i) upon “(i) a
determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period
in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.” 8 U.S.C.
§ 1101(a)(47)(B).
6 Some district courts in this circuit remain skeptical of this tidy two-phase scheme. See, e.g., Ali v. Dep’t
of Homeland Sec., 451 F. Supp. 3d 703 (S.D. Tex. 2020); Villanueva v. Tate, 801 F. Supp. 3d 689 (S.D.
Tex. 2025). They, like Petitioner, suggest that Zadvydas prescribes a (rebuttable) presumption of
reasonableness during those first six months—and does not, in effect, proscribe claims brought before that
period elapses. See, e.g., Villaneuva, 801 F. Supp. at 703. Admittedly, Zadvydas is not precise about what
its presumption means for the first six months. Zadvydas, 533 U.S. at 701. But the formulation offered by
the Court in and after that case only contemplates petitioners proving their detention is unreasonable after
the six-month period ends. Id. at 701 (“After this 6-month period, 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”) (emphasis added); Clark, 543
U.S. at 378 (“after that [presumptive period], the alien is eligible for conditional release if he can
demonstrate…”) (emphasis added); Johnson v. Guzman Chavez, 594 U.S. 523, 529 (2021) (same). The
Fifth Circuit, though not settling the issue, has issued strong signals of its own. It has described the timing
of Zadvydas claims in the same terms, see Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006); Hersh
v. United States ex rel. Mukasey, 553 F.3d 743, 757 (5th Cir. 2008), approved of district courts dismissing
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constitutionally authorizes detention (and Zadvydas claims are thus not viable); and 2) a
period “after that,” in which the alien can seek conditional release under Zadvydas “if he can
demonstrate there is ‘no significant likelihood of removal in the reasonably foreseeable
future.’” Clark v. Martinez, 543 U.S. 371, 378 (quoting Zadvydas, 533 U.S. at 701). If a
petitioner seeks release from detention in the first phase—the presumptively reasonable
period—his or her claim is not yet ripe.7 Agyei-Kodie v. Holder, 418 F. App’x 317, 318 (5th
Cir. 2011); see also Kakhidze v. Venegas, No. 1:25-cv-00136, 2025 WL 2412854, at *3
(S.D. Tex. July 30, 2025), report and recommendation adopted, 2025 WL 2411229 (S.D.
Tex. Aug. 20, 2025).
Petitioner acknowledges that there is an order of removal, Dkt. No. 1 at 2 ¶ 6, and that
his appeal of that order was dismissed by the BIA, “on January 21, 2026,” Dkt. No. 1 at 2 ¶
7, which would make his removal order final on that same date. See 8 U.S.C. §
1101(a)(47)(B). These facts show Petitioner is, at most, a little over three months into the
initial six-month period of presumptively valid detention.
The Government contests that Petitioner has frustrated DHS’s ability to execute his
final order of removal by filing for review of his immigration case to the Ninth Circuit Court
of Appeals, which the Government contends lacks jurisdiction over Petitioner’s case. The
Court declines to find whether tolling is appropriate in the instant case, because whether or
not the Court tolls the time, Petitioner’s claim is not yet ripe under Zadvydas.
Ultimately, the Petitioner’s claims are not yet ripe, and the Court therefore lacks
subject matter jurisdiction to hear this case.
Zadvydas claims as “premature” when made during the presumptive period, Okpoju v. Ridge, 115 F. App’x
302 (5th Cir. 2004) (per curiam); Chance v. Napolitano, 453 F. App’x 535, 536 (5th Cir. 2011) (per curiam),
and itself found a Zadvydas claim to be “premature” for the same reason. Agyei-Kodie v. Holder, 418 F.
App’x 317, 318 (5th Cir. 2011).
7 Whether a claim of unreasonably prolonged detention is offered in statutory or constitutional terms, the
result is the same: it is “presumptively constitutional for an alien to be detained for six months after a final
order of removal.” Agyei-Kodie v. Holder, 418 F. App’x 317, 318 (5th Cir. 2011) (emphasis added), and a
constitutional challenge to prolonged detention fails unless it meets the standard set by Zadvydas. See
Andrade v. Gonzales, 459 F. 3d 538, 543 (5th Cir. 2006).
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IV. 	Recommendation
It is recommended that the Court (1) DENY the Petition (Dkt. No. 1),8 (2) GRANT
the MTD (Dkt. No. 14), and (3) DIRECT the Clerk of Court to close the case.
V. 	Notice to the Parties
The parties have fourteen (14) days from the date of being served with a copy of
this Report and Recommendation in which to file written objections, if any, with the United
States District Judge assigned to the instant case. 28 U.S.C. § 636(b)(1). When filing an
objection, a party must object to specific facts or legal findings in this Report and
Recommendation. The District Judge is not required to consider frivolous, conclusive, or
general objections. Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir.
1987).
If any party fails to timely object to any factual or legal findings in this Report and
Recommendation, the District Judge is not required to conduct a de novo review of the
record before adopting these findings. If the District Judge chooses to adopt such findings
without conducting a de novo review of the record, the parties may not attack those findings
on appeal, except on the grounds of plain error. Alexander v. Verizon Wireless Servs.,
L.L.C., 875 F.3d 243, 248 (5th Cir. 2017).
Signed on May 6, 2026.
Karen Betancourt
United States Magistrate Judge
8 Because dismissal for lack of subject matter jurisdiction is without prejudice, Petitioner may file another
habeas petition once his claims are ripe. See Ruiz v. Brennan, 851 F. 3d 464, 472 (5th Cir. 2017).
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