Opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

LILIAN MUNOZ ALVAREZ CIVIL ACTION NO. 26-1053

SECTION P

VS.

JUDGE S. MAURICE HICKS, JR.

U.S. IMMIGRATION & CUSTOMS MAG. JUDGE KAYLA D. MCCLUSKY

ENFORCEMENT, ET AL.

REPORT AND RECOMMENDATION

Petitioner Lilian Munoz Alvarez,1 a detainee at Richwood Correctional Center in the

custody of the Department of Homeland Security (“DHS”) and the Bureau of Immigration and

Customs Enforcement (“ICE”), petitions for a writ of habeas corpus under 28 U.S.C. § 2241.2

[doc. # 1]. For reasons that follow, the Court should deny the petition as premature.

Background

Petitioner is a citizen of Ecuador. She entered the United States of America on December

26, 2025. [doc. # 1-2, p. 3]. She was taken into immigration custody the same day. [doc. # 1, p.

4]. She was ordered removed from the United States to Guatemala, a “third country,” on

February 2 or 17, 2026. [doc. #s 1, p. 4; 1-2, p. 3]. The immigration judge “gave [her] voluntary

departure to Guatemala[,]” but she does not know anyone in Guatemala. [doc. # 1-3, p. 5]. She

did not appeal the order to the Board of Immigration Appeals. Id.

1 Petitioner’s ‘A-Number’ is 220-904-468.

2 This matter has been referred to the undersigned for review, report, and recommendation under

28 U.S.C. § 636, and the standing orders of the Court.

Petitioner filed this proceeding on March 28, 2026. [doc. # 1, p. 8]. Citing Zadvydas v.

Davis, 533 U.S. 678 (2001), she claims that she has been detained for over three months, that

ICE is not likely to remove her in the near future, and that ICE is thereby violating her right to

due process. [doc. #s 1, p. 6; 1-2, p. 4]. She states that she has fully cooperated with ICE in its

efforts to remove her. [doc. # 1-2, p. 3]. ICE is allegedly “still working on [her] case.” Id. at 4.

She does not know when ICE will finish. Id.

Petitioner seeks release from detention on bond or on parole. [doc. # 1, p. 7].

Jurisdiction

Under 28 U.S.C. § 2241(c)(3), the Court has federal subject-matter jurisdiction over

habeas petitions filed by aliens claiming they are being detained “in violation of the Constitution

or laws or treaties of the United States.” See Zadvydas v. Davis, 533 U.S. 678, 687 (2001).

However, the ‘REAL ID Act’ of 2005 divests federal courts of jurisdiction over several

categories of immigration proceedings. See Pub. L. No. 109-13, Div. B, 119 Stat. 231 (2005).

District courts may not review challenges to final orders of removal. 8 U.S.C. § 1252(a)(5);

Moreira v. Mukasey, 509 F.3d 709, 712 (5th Cir. 2007). And no federal court may review any

action that is committed to the discretion of the Attorney General or the DHS Secretary, 8 U.S.C.

§ 1252(a)(2)(B)(ii), including decisions “regarding the detention or release of any alien or the

grant, revocation, or denial of bond or parole,” 8 U.S.C. § 1226(e).

The Supreme Court recognized a distinction between challenges to individual,

discretionary detention decisions—which are prohibited—and “challenges to the statutory

framework that permits [an] alien’s detention without bail”—which remain cognizable under the

habeas statute. Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) (internal alterations omitted)

(citing Demore v. Kim, 538 U.S. 510, 516 (2003)); see Aracely, R. v. Nielsen, 319 F. Supp. 3d

110, 135 (D.D.C. 2018) (“While§ 1252(a)(2)(B)(ii) undoubtedly bars judicial review of

individual parole decisions, courts have declined to apply it to claims challenging the legality of

policies and processes governing discretionary decisions under the INA.”).

Despite any statutory limitations on judicial review, federal courts retain “jurisdiction to

review [an alien’s] detention insofar as that detention presents constitutional issues,” Oyelude v.

Chertoff, 125 F. App’x 543, 546 (5th Cir. 2005), such as “questions of law regarding the AG’s

statutory authority or the regulatory framework” governing immigration detention, Garza-Garcia

v. Moore, 539 F. Supp. 2d 899, 903 (S.D. Tex. 2007); see also Maldonado v. Macias, 150 F.

Supp. 3d 788, 794 (W.D. Tex. 2015) (“[E]ven after the passage of the REAL ID Act, district

courts retain the power to hear statutory and constitutional challenges to civil immigration

detention under § 2241 when those claims do not challenge a final order of removal, but instead

challenge the detention itself.”).

Law and Analysis

In Zadvydas v. Davis, 533 U.S. 678, 701 (2001), the Supreme Court held that if an alien

is detained for six months after a final order of removal and if the alien petitioning for habeas

corpus “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.” “[A]n 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.

Here, however, Petitioner’s claim is premature because she has not been detained more

than six months following the date her order of removal became final. At the earliest, she was

ordered removed on February 2, 2026. Under 8 U.S.C. § 1101(47)(B), an order of removal

“shall become final upon the earlier of--(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.”3 An alien ordered removed has

thirty days to appeal that decision to the Board of Immigration Appeals. 8 C.F.R. § 1003.38(b).

Here, Petitioner did not file an appeal with the Board of Immigration Appeals. Thus, her order of

removal became final thirty days after she was ordered removed, or on March 4, 2026.

Petitioner filed this proceeding on March 28, 2026, less than six months after her order of

removal became final (six months after March 4, 2026, is September 4, 2026). See Chance v.

Napolitano, 453 F. App'x 535 (5th Cir. 2011) (per curiam) (concluding that the district court did

not err in finding that the “challenge to [petitioner's] continued post removal detention was

premature” when the petitioner “had not been in post-removal-order detention longer than the

presumptively reasonable six-month period” authorized by Zadvydas); Okpoju v. Ridge, 115 F.

App'x 302 (5th Cir. 2004) (per curiam) (finding that a continued detention claim was

“premature” because the petitioner “had not yet been in custody longer than the presumptively

reasonable six-month post removal order period”), cert. denied, 544 U.S. 1066 (2005).

The Court should deny this claim as premature.

Recommendation

For the reasons above, IT IS RECOMMENDED that Petitioner Lilian Munoz Alvarez’s

petition for release under Zadvydas be DISMISSED WITHOUT PREJUDICE to her right to

re-file the claim should her confinement become unconstitutional.

Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties aggrieved by

this recommendation have fourteen (14) days from service of this Report and Recommendation

3 See also Riley v. Bondi, 606 U.S. 259, 267 (2025).

to file specific, written objections with the Clerk of Court. A party may respond to another

party’s objections within fourteen (14) days after being served with a copy of any objections or

response to the district judge at the time of filing.

Failure to file written objections to the proposed factual findings and/or the

proposed legal conclusions reflected in this Report and Recommendation within fourteen

(14) days following the date of its service, or within the time frame authorized by Fed. R.

Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the

legal conclusions accepted by the District Court, except upon grounds of plain error. See

Douglass v. United Services Automobile Association, 79 F.3d 1415 (Sth Cir. 1996).

In Chambers, Monroe, Louisiana, this 9" day of April, 2026.

Kayla Dye McClusky

United States Magistrate Judge