Thiam

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MAMADOU THIAM, CASE NO. 1:26-cv-0610

Petitioner, DISTRICT JUDGE

SOLOMON OLIVER, JR.

vs.

MAGISTRATE JUDGE

SCOTT A. HILDEBRAND, et al., JAMES E. GRIMES JR.

Respondents.1

REPORT AND

RECOMMENDATION

Petitioner Mamadou Thiam has filed a petition under 28 U.S.C. § 2241

for a writ of habeas corpus. Doc. 1. The Court referred this matter to a

Magistrate Judge under Local Rule 72.2 for the preparation of a Report and

Recommendation. For the following reasons, I recommend that the Court

dismiss Thiam’s petition.

1 To the extent that Thiam is attempting to challenge his immigration

detention, the proper respondent in an immigration habeas for a noncitizen

detained in this District is the Field Director of the Detroit Field Office for U.S.

Immigration and Customs Enforcement. Mendoza v. Raycraft, No. 4:25-cv-

2183, 2025 WL 3157796, at *8 (N.D. Ohio Nov. 12, 2025). To the extent that he

seeks to challenge decisions reached in his removal proceedings, the proper

respondent is the Attorney General. 8 U.S.C. § 1252(b)(3)(A). As is discussed,

however, this Court lacks jurisdiction to review these latter sorts of challenges.

The Court should dismiss Scott Hildebrand and the Secretary of the

Department of Homeland Security from this action. See Roman v. Ashcroft, 340

F.3d 314, 320 (6th Cir. 2003).

Background

Factual background and Immigration Court proceedings

Thiam, who is represented by counsel, does not give the Court much to

work with. The Court thus relies on documents presented by Respondents in

their return.

Thiam is a native and citizen of Senegal. Doc. 6-1, at 2.2 Immigration

authorities initially encountered him in late October 2023, within days after

he crossed the United States border without being inspected. Id. at 3. At that

time, authorities issued Thiam a Notice to Appear, placing him in removal

proceedings on a charge that he was an alien present without being admitted

or paroled. See Doc. 6-2; see also 8 U.S.C. § 1182(a)(6)(A)(i). The Notice to

Appear directed Thiam to appear before an immigration judge for a hearing in

Cleveland on July 24, 2025. Doc. 6-2, at 1.

In July 2025, immigration authorities issued Thiam a Notice and Order

of Expedited Removal, alleging that he was subject to removal under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), as an alien who was not in possession of a valid travel

document when he applied for admission. Doc. 6-3; see 8 U.S.C. § 1225(b)(1).

At the same time, the Government moved to dismiss Thiam’s removal

2 The Court cites the CM/ECF-generated page numbers at the top of the

parties’ filings. Document 6-1 is a Form I-213, which courts regard as

“reliable,” absent evidence that might undermine the information contained in

it. See Pagoada-Galeas v. Lynch, 659 F. App’x 849, 856 (6th Cir. 2016).

proceedings in light of his placement in expedited removal proceedings. Doc. 6-

4.

After an immigration judge granted the motion, Thiam received a

credible-fear interview with an asylum officer, who determined that Thiam did

not have a credible fear of persecution in his native country. Docs. 6-5, 6-7, 6-

8; see 8 U.S.C. § 1225(b)(1)(A)(ii); 8 C.F.R. § 208.30(b), (d). In September 2025,

the immigration judge determined that Thiam had shown “a reasonable

possibility of persecution” and vacated the asylum officer’s determination. Doc.

6-8; see 8 C.F.R. §1208.30(g) (providing for review by an immigration judge of

“negative fear determinations”). Immigration authorities thus issued Thiam a

new Notice to Appear, in which the Government alleged that he was removable

under 8 U.S.C. § 1182(a)(6)(A)(i) and (a)(7)(A)(i)(I). Doc. 6-9; see 8 C.F.R. §

1208.30(g)(2)(iv)(B).

Following Thiam’s concession of removability, the immigration judge

found him removable. Docs. 6-10, 6-11. In January 2026, the immigration

judge granted the Government’s motion—based on an Asylum Cooperation

Agreement (the Agreement) established between the United States and

Uganda—to “pretermit” Thiam’s asylum application.3 See Docs. 6-15, 6-17. On

February 11, 2026, the immigration judge also ordered Thiam removed to

3 Pretermit means to ignore. Pretermit, Black’s Law Dictionary (12th ed.

2024). In immigration proceedings, adjudicators seem to use it when a non-

citizen “is found ineligible to apply for some form of relief.” Gonzalez-Balderas

v. Holder, 597 F.3d 869, 870 (7th Cir. 2010). Effectively, to pretermit means to

deny.

Uganda. Doc. 6-18. On March 11, 2026, Thiam filed a notice of appeal with the

Board of Immigration Appeals. Doc. 6-19.

Thiam’s habeas petition

In his petition, Thiam briefly presents three arguments. First, he says

that he is subject to “indefinite incarceration” in violation of the Due Process

Clause. Doc. 1, at 15. Second, he challenges the immigration judge’s decision

to pretermit his asylum application based on the Agreement. Id. at 15–17.

Finally, Thiam says that the Agreement violates the Equal Protection Clause.

Id. at 17–19.

Legal Standard

Under 28 U.S.C. § 2241, a district court may grant a writ of habeas

corpus to any person who demonstrates that he is in custody in violation of the

Constitution or laws of the United States. 28 U.S.C. § 2241(c)(3). An alien may

challenge the lawfulness of immigration detention through a writ of habeas

corpus. See INS v. St. Cyr, 533 U.S. 289, 301 (2001) (observing that “the writ

of habeas corpus has served as a means of reviewing the legality of Executive

detention, and it is in that context that its protections have been strongest.”);

Zadvydas v. Davis, 533 U.S. 678, 687 (2001).

The Court lacks jurisdiction in habeas over challenges to the legality of

a removal order. See Hamama v. Adducci, 912 F.3d 869, 876 (6th Cir. 2018). It

has jurisdiction, however, to consider whether a noncitizen is lawfully

detained. See Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 117

(2020) (describing habeas corpus as the “‘appropriate remedy to’” determine

the legality of a person’s custody) (quoting 3 Commentaries on the Constitution

of the United States § 1333, p. 206 (1833)).

Discussion

1. The Court has lacks jurisdiction to review Thiam’s second and

third issues related to the immigration judge’s decision.

For reasons that he does quite explain, Thiam argues that the

immigration judge’s decision to deny Thiam’s asylum application based on the

Agreement is improper. Doc. 1, at 15–17. He also argues that the Agreement

violates the Equal Protection Clause. Id. at 17–19.

These challenges run headlong into 8 U.S.C. § 1252(a)(5) and (g).

Paragraph (5) provides:

Notwithstanding any other provision of law

(statutory or nonstatutory), including section 2241

of Title 28, or any other habeas corpus provision, and

sections 1361 and 1651 of such title, a petition for

review filed with an appropriate court of appeals in

accordance with this section shall be the sole and

exclusive means for judicial review of an order of

removal entered or issued under any provision of

this chapter, except as provided in subsection (e).

For purposes of this chapter, in every provision that

limits or eliminates judicial review or jurisdiction to

review, the terms “judicial review” and “jurisdiction

to review” include habeas corpus review pursuant to

section 2241 of Title 28, or any other habeas corpus

provision, sections 1361 and 1651 of such title, and

review pursuant to any other provision of law

(statutory or nonstatutory).

Subsection (g) provides:

Except as provided in this section and

notwithstanding any other provision of law

(statutory or nonstatutory), including section 2241

of Title 28, or any other habeas corpus provision, and

sections 1361 and 1651 of such title, no court shall

have jurisdiction to hear any cause or claim by or on

behalf of any alien arising from the decision or action

by the Attorney General to commence proceedings,

adjudicate cases, or execute removal orders against

any alien under this chapter.

Given these provisions, the Sixth Circuit has made plain that a district

court reviewing a habeas petition lacks jurisdiction to review the sorts of

“removal-based claims” that Thiam raises. See Hamama, 912 F.3d at 874–77;

Elgharib v. Napolitano, 600 F.3d 597, 605 (6th Cir. 2010) (“we conclude that §

1252(a)(5) & (g) both preclude district-court jurisdiction over constitutional

challenges to final orders of removal”). Rather than presenting his claims in a

habeas petition, a non-citizen in Thiam’s shoes must follow the petition-for-

review procedure in 8 U.S.C. § 1252(a). See Nken v. Holder, 556 U.S. 418, 424

(2009) (stating the 1996 immigration amendments “substantially limited the

availability of judicial review and streamlined all challenges to a removal order

into a single proceeding: the petition for review”); Elgharib, 600 F.3d at 607

(“Congress has repeatedly sought to restrict an alien’s ability to obtain judicial

review of a final order of removal to the prescribed procedures in 8 U.S.C. §

1252, and we are not at liberty to craft exceptions that would be directly

contrary to the plain statutory language of those jurisdictional-bar

provisions.”).

The Court should dismiss Thiam’s petition to the extent he seeks to

challenge matter related to his removal proceedings.

2. The Court should reject Thiam’s custody challenge.

In his first issue, Thiam presents this circular argument heading:

“continued custody of the Petitioner is a ruse to allow further custody of the

Petitioner with the United States.” Doc. 1, at 15. From there he presents a five-

sentence argument:

Petitioner has been in ICE custody for nearly six

months. He is facing indefinite incarceration and as

such, his due process rights are being violated and

thus he may file for a writ of habeas corpus .

Zadsvydas v. Davis 533 U.S. 678 (2001) and A,A,R,P,

v. Trump, 145 S. Ct. 1364, 1367 (2025).

Petitioner has been ordered removed to Uganda,

country to which he has no connection, has never

been to and in which he know no one. Even so he

remains in custody in Geauga County, There is no

indication of when or how the Petitioner will be

transported to Uganda. The pretermit is thus simply

a ruse to continue incarceration.4

Id.

At the outset, Thiam doesn’t point to any evidence that he actually is

detained. But because Respondents concede the fact of Thiam’s detention, Doc.

6, at 2, I will assume that he is detained. But that assumption does not get

Thiam very far.

4 This passage is reproduced as written.

Relevant to this petition, the authority to detain non-citizens in removal

proceedings can conceptually be divided between those non-citizens who do not

yet have a final order of removal and those who do. An immigration judge’s

order of removal becomes final when upheld by the Board or on the expiration

of the 30-day appeal window. See 8 U.S.C. § 1101(a)(47)(B). The upshot of this

is that the authority to detain a non-citizen while his case is before an

immigration judge does not change based on the fact that he has appealed to

the Board. It only changes once the Board rules.

Depending on the non-citizen’s circumstance, detention before the

issuance of a final order of removal is governed either by 8 U.S.C. § 1225 or 8

U.S.C. § 1236. Detention after the entry of a final order of removal is governed

by 8 U.S.C. § 1231(a)(3) and (6). Section 1231(a) defines the term removal

period as the 90-day period following “when an alien is ordered removed,”

during which immigration authorities “shall remove the alien from the United

States.” 8 U.S.C. § 1231(a)(1)(A). Putting inapplicable circumstances aside,

this period begins when “the order of removal becomes administratively final.”

8 U.S.C. § 1231(a)(1)(B)(i). Immigration authorities “shall detain the alien”

during this 90-day period. 8 U.S.C. § 1231(a)(2)(A).

As anyone reading this report and recommendation knows, there is

currently a wide-ranging debate about whether the detention authority in 8

U.S.C. §§ 1225 or 1226 applies for non-citizens, like Thiam, who do not yet have

a final order of removal. The Court need not say anything about this issue,

however, because Thiam does not ask the Court to wade into this thicket.5

Thiam instead seemingly asks the Court to apply concepts that don’t

apply to his situation. In this regard, in Zadvydas v. Davis, the Supreme Court

rejected the argument that under Section 1231(a) the Government could detain

a non-citizen indefinitely after his removal period. 533 U.S. 678, 689–90 (2001).

It added that whether detention after the removal period is reasonable depends

on whether an alien’s removal is “reasonably foreseeable.” Id. at 699–700. After

remarking that it “believe[d] … that Congress [had] previously doubted the

constitutionality of detention for more than six months,” the Court provided a

rule:

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. And for detention

to remain reasonable, as the period of prior

postremoval confinement grows, what counts as the

“reasonably foreseeable future” conversely would

have to shrink. 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

5 To be clear, Thiam has not argued that he is being detained without

bond. Particularly because he is represented by counsel and has presented no

basis to conclude that he has asked to be released, I’m not inclined “to search

the record and construct arguments” for Thiam about whether he should be

released on bond. United States v. Robinson, 99 F.4th 344, 356 n.3 (6th Cir.

2024) (quoting Brenay v. Schartow, 709 F. App’x 331, 337 (6th Cir. 2017)); see

Clark v. Sweeney, 607 U.S. 7, 9 (2025).

determined that there is no significant likelihood of

removal in the reasonably foreseeable future.

Id. at 701 (emphasis added).

In other words post-final-removal-order detention is presumptively

reasonable for six months. After that six-month period of detention, a burden-

shifting framework applies in which the initial onus is on the detained alien to

provide “good reason to believe that there is no significant likelihood of removal

in the reasonably foreseeable future.” Id. If the alien makes that showing, the

Government must respond with “evidence sufficient to rebut that showing.” Id.

So, when Thiam remarks that (1) he “has been in ICE custody for nearly

six months”—taking the parties at their word, it has actually been eight

months—(2) “[h]e is facing indefinite incarceration,” and (3) “[t]here is no

indication of when or how [he] will be transported to Uganda,” Doc. 1, at 15,

he’s talking about the Zadvydas framework. Indeed, he cites Zadvydas. Id.

As the Supreme Court has explained, however, Zadvydas does not apply

before entry of a final order of removal. See Demore v. Kim, 538 U.S. 510, 527–

28 (2003); see also Zadvydas 533 U.S. at 682 (“we must decide whether this

post-removal-period statute authorizes the Attorney General to detain a

removable alien indefinitely beyond the removal period or only for a period

reasonably necessary to secure the alien’s removal. We deal here with aliens

who were admitted to the United States but subsequently ordered removed.

Aliens who have not yet gained initial admission to this country would present

a very different question.”). And the Sixth Circuit has similarly confirmed

Zadvydas’s inapplicability in this circumstance. See Hamama, 946 F.3d at

879–80. Thiam’s implicit argument that the Court should apply Zadvydas

therefore fails.

Moreover, even taking Thiam’s argument on its terms, it cannot succeed.

Zadvydas’s framework puts the initial burden on the non-citizen to provide

“good reason to believe that there is no significant likelihood of removal in the

reasonably foreseeable future.” 533 U.S. at 701. Thiam, however, ignores this

burden and baldly claims that there is no indication when he’ll be removed.

But Thiam has the burden backwards. The alleged absence of an indication of

when he will be removed is not a “good reason to believe that there is no

significant likelihood of removal in the reasonably foreseeable future.” Id.

Rather, because Thiam has not shown that he won’t be removed if the Board

denies his appeal, he has failed to carry his burden.

Finally, Thiam says that he has no connection to Uganda. Doc. 1, at 15.

But he doesn’t explain what his lack of any connection to Uganda has to do

with whether his detention violates the Constitution. Thiam has thus forfeited

any argument he is making as to this point. See Buetenmiller v. Macomb Cnty.

Jail, 53 F.4th 939, 946 (6th Cir. 2022).

Conclusion

The Court should dismiss Thiam’s petition.

Dated: March 30, 2026

/s/James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th

Cir. 2019).