# Elias

> District Court, W.D. Louisiana · June 9, 2026

URL: https://www.frixlaw.com/law-library/cases/11391697

## Case

- **Full name:** Helen Lurene Elias v. U.S. Immigration & Customs Enforcement
- **Court:** District Court, W.D. Louisiana
- **Decided:** June 9, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

HELEN LURENE ELIAS CIVIL ACTION NO. 26-0020

SECTION P
VS.
JUDGE JAMES D. CAIN, JR.

U.S. IMMIGRATION & CUSTOMS MAG. JUDGE DAVID J. AYO
ENFORCEMENT

REPORT AND RECOMMENDATION

Petitioner Helen Lurene Elias,1 a detainee at South Louisiana ICE Processing Center
in the custody of the Department of Homeland Security (“DHS”) and the Bureau of
Immigration and Customs Enforcement (“ICE”) who proceeds pro se, petitions the Court for
a writ of habeas corpus under 28 U.S.C. § 2241.2 Respondents oppose the petition. [Doc. 16].
For reasons below, the Court should deny the petition.
Background

Petitioner is a citizen of Barbados. [Doc. 1-2, p. 3]. She entered the United States on
approximately March 15, 1991, “as a nonimmigrant visitor authorized to remain until June
14, 1991, and remained beyond that period without authorization.” [Doc. 16, p. 1].
On May 15, 2025, an immigration judge ordered Petitioner removed from the United
States. [Doc. 1, p. 4]. On June 13, 2025, Petitioner appealed the removal order to the Board
of Immigration Appeals (“BIA”). Id. On October 6, 2025, the BIA dismissed Petitioner’s
appeal. Id.

1 Petitioner’s “A-Number” is 206-552-763.

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.
On approximately October 20, 2025, Petitioner appealed the BIA’s decision to the
United States Court of Appeals for the Second Circuit. Elias v. Blanche, No. 25-2576 (2nd
Cir). The same day, Petitioner moved the appellate court for a stay of removal. Petitioner’s
appeal is pending. Id.
Petitioner filed this proceeding on approximately December 29, 2025. [Doc. 1, p. 8].
Citing Zadvydas v. Davis, 533 U.S. 678 (2001), she claims that she “has been detained by
ICE beyond the removal period” and that ICE is not likely to remove her in the near future.

[Docs. 1, p. 6; 1-2, p. 2]. She has fully cooperated with ICE “by providing fingerprints and
other identification documents including” her original passport. [Doc. 1-2, p. 3].
On April 24, 2026, Respondents moved the Second Circuit to expedite a decision on
Petitioner’s motion for a stay of removal. [Doc. 16-4].
Respondents opposed the instant petition on April 27, 2026. [Doc. 16]. They contend
that they are “actively pursuing Petitioner’s removal, including coordinating travel document
requests . . . .” Id. at 2. They attach the declaration of Charles Ward, Assistant Field Office
Director, who declares in part:
On or about March 23, 2026, ERO Headquarters noted that the travel
documents request needed to be submitted to the Barbados
Embassy/Consulate in Miami, FL. ERO Headquarters requested an
itinerary be submitted with the travel document request. [] On or about
April 9, 2026, ERO Headquarters noted the Petitioner has a stay of removal
and the Post Order Custody Review clock should be paused . . . .

[Doc. 16-3, p. 2].
Respondents highlight that they moved to expedite Petitioner’s motion for a stay of
removal because they intended to move forward with removing Petitioner. Id. at 1. When
Respondents filed their opposition, Petitioner’s motion for a stay of removal was pending. In
the opposition, Respondents state: “The only present impediment to execution of removal is
the forbearance policy associated with Petitioner’s pending petition for review before the
United States Court of Appeals for the Second Circuit.” Id. at 1. They maintain that “under
the Government’s forbearance policy, a noncitizen who has filed a motion for a stay of removal
will not be removed unless and until the Court denies that request.” Id. at 4. According to
Respondents, “Removal efforts are ongoing, subject to the temporary pause required by the
pending petition for review and the Second Circuit’s forbearance policy.” Id. at 5.
On May 7, 2026, the Second Circuit denied Petitioner’s motion for a stay of removal.
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, 533 U.S. at 687. 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 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 Fed. 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.”).
Here, under Zadvydas, this Court enjoys jurisdiction over Petitioner’s constitutional
claim.
Law and Analysis
Under 8 U.S.C. § 1231(a)(1)(A), “when an alien is ordered removed, the Attorney
General shall remove the alien from the United States within a period of 90 days (in this
section referred to as the ‘removal period’).” Under Section 1231(a)(6), “An alien ordered
removed who is inadmissible[,] . . . removable[,] . . . or who has been determined by the
Attorney General to be a risk to the community or unlikely to comply with the order of
removal, may be detained beyond the removal period and, if released, shall be subject to the
terms of supervision in paragraph (3).” In Zadvydas, 533 U.S. at 682, the Supreme Court
construed Section 1231(a)(6) “to contain an implicit ‘reasonable time’ limitation, the
application of which is subject to federal-court review.”
“[T]he Court construed § 1231(a)(6) to mean that an alien who has been ordered

removed may not be detained beyond ‘a period reasonably necessary to secure removal,’ 533
U.S., at 699, 121 S.Ct. 2491 and it further held that six months is a presumptively reasonable
period, id., at 701, 121 S.Ct. 2491. After that, the Court concluded, if the alien ‘provides good
reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future,’ the Government must either rebut that showing [with evidence] or
release the alien.” Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018) (quoting Zadvydas, 533
U.S. at 699).3 If removal is not reasonably foreseeable, “the alien’s release may and should
be conditioned on any of the various forms of supervised release that are appropriate in the

circumstances, and the alien may no doubt be returned to custody upon a violation of those
conditions.” Id. at 700. “[R]eview must take appropriate account of the greater immigration-
related expertise of the Executive Branch, of the serious administrative needs and concerns
inherent in the necessarily extensive INS efforts to enforce this complex statute, and the
Nation’s need to ‘speak with one voice’ in immigration matters.” Id. at 700.
Here, Petitioner has been in custody beyond the presumptively reasonable six-month
period. To date, she has been detained over one year following her administratively final
order of removal. Petitioner, however, does not meet her initial burden of providing good
reason to believe that there is no significant likelihood of her removal in the reasonably
foreseeable future. Stripped of her formulaic assertions that removal is not reasonably
foreseeable, Petitioner pleads only that she has fully cooperated with ICE “by providing
fingerprints and other identification documents including” her original passport. [Doc. 1-2,
p. 3]. This does not meet her initial burden of proof in showing that there is no significant
likelihood of removal in the reasonably foreseeable future.4 As Respondents argue, Petitioner

3 “The alien bears the initial burden of proof in showing that no such likelihood of removal exists.”
Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006).

4 See Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006) (aliens must present sufficient evidence
establishing that there is no significant likelihood of removal in the reasonably foreseeable future and
“identifies no diplomatic barrier, no refusal by the receiving country, and no legal impediment
to repatriation.” [Doc. 16, p. 3]. Moreover, Petitioner has not been detained for an extended
and excessive duration. And as to efforts to remove Petitioner, Respondents maintain that
“ICE is actively pursuing removal to Barbados, including initiating travel document requests
and coordinating with relevant authorities.” [Doc. 16, p. 3].
In addition, Petitioner is largely responsible for any asserted delay in her removal.
Her order of removal became administratively final on October 6, 2025, when the BIA denied

her appeal.5 However, from approximately October 20, 2025—when Petitioner moved the
Second Circuit for a stay of removal—until May 7, 2026—when the Second Circuit denied the
motion—the Government adhered to the ‘forbearance policy’ and forbore removal because
Petitioner chose to move for a stay of her removal. For the majority of the six-month
‘presumptively reasonable period’ set forth in Zadvydas, the Government forbore removal
because of Petitioner’s motion. Petitioner moved for a stay, and, in a sense, the Government
obliged (until the Second Circuit denied the motion).
Respondents argue that the delay while Petitioner’s motion for a stay was pending
was “temporary and litigation-based, not diplomatic or practical.” [Doc. 16, p. 4]. They argue

not merely offer conclusory statements); Ropati v. Lynch, No. 6:17-CV-0219, 2017 WL 5560656, at *2
(W.D. La. Apr. 18, 2017), adopted by, No. 6:17-CV-00219, 2017 WL 5614942 (W.D. La. Nov. 16, 2017).

5 Under 8 U.S.C. § 1231(a)(1)(B), “The removal period begins on the latest of the following: (i) The date
the order of removal becomes administratively final. (ii) If the removal order is judicially reviewed and
if a court orders a stay of the removal of the alien, the date of the court's final order. (iii) If the alien is
detained or confined (except under an immigration process), the date the alien is released from
detention or confinement.” Here, Petitioner’s removal period began when the date of her removal order
became administratively final. It did not begin under (ii) above because a court did not order a stay of
her removal.
further, “Petitioner may not rely on a delay attributable to her own petition for review to
establish that removal is not reasonably foreseeable.” 6 Id. The undersigned agrees.7
That Petitioner’s appeal is still pending before the Second Circuit does not mean that
removal is not significantly likely in the reasonably foreseeable future. In Soberanes v.
Comfort, 388 F.3d 1305, 1311 (10th Cir. 2004), for instance, the petitioner’s “sole challenge
to detention depend[ed] on the outcome of his petition for review, which only the Ninth
Circuit ha[d] jurisdiction to resolve.” The court concluded that the petitioner’s detention was

“neither indefinite nor potentially permanent like the detention held improper in Zadvydas;
it [was], rather, directly associated with a judicial review process that has a definite and
evidently impending termination point, and, thus, [was] more akin to detention during the
administrative review process, which was upheld in Demore v. Kim, 538 U.S. 510, 527–29,
531, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (‘Detention during removal proceedings is a
constitutionally permissible part of that process.’).” Id.; see Andrade, 459 F.3d at 543-44

6 Respondents also point out that they “actively [sought] to remove that procedural barrier through
expedited consideration of the stay motion . . . .” Id.

7 See Guangzu Zheng v. Decker, 618 F. App’x 26, 28 (2d Cir. 2015) (“Thus the Government has been
prevented from removing Zheng by . . . its own forbearance policy (also resulting from Zheng’s pursuit
of an additional stay). If this Court denies Zheng’s petition for review and pending stay motion, the
Government can seek another travel document. Given this record, Zheng has not ‘provide[d] good
reason to believe that there is no significant likelihood of removal in the reasonably foreseeable
future.’”); Thelemaque v. Gillis, No. 5:20-CV-103-DCB-MTP, 2020 WL 8091143, at *2 (S.D. Miss. Dec.
4, 2020), report and recommendation adopted, No. 5:20-CV-103-DCB-MTP, 2021 WL 76973 (S.D. Miss.
Jan. 8, 2021) (“[Petitioner] argues that the forbearance agreement, and the resulting delay in removal,
make it unlikely that he will be removed in the reasonably foreseeable future. . . . Courts, however,
have held that the forbearance agreement, without more, does not give petitioners a basis to argue
that there is no significant likelihood of removal in the reasonably foreseeable future. . . . [T]he
forbearance agreement is no longer preventing Petitioner's removal, and Petitioner has failed to show
any remaining barriers to his removal now that his appeal is resolved.”) (citing similar holdings);
Abimbola v. Ridge, 181 F. App’x 97, 99 (2d Cir. 2006) (“[S]ince the filing of this appeal in June 2005,
Abimbola has filed two other actions in this Court alone, and filed motions to stay his removal, which
trigger the application of this Court's forbearance policy. As the District Court noted, a self-inflicted
wound should not establish grounds for Abimbola’s Zadvydas claim.”); Jimenez v. Searls, No. 23-CV-
379 (JLS), 2024 WL 1286039, at *3 (W.D.N.Y. Mar. 25, 2024); D'Alessandro v. United States, No. 13-
CV-416-RJA, 2024 WL 3759759, at *3 (W.D.N.Y. Aug. 12, 2024).
(“Andrade has offered nothing beyond his conclusory statements suggesting that he will not
be immediately removed to Cape Verde following the resolution of his appeals.”).
Conclusion
For the reasons above, IT IS RECOMMENDED that Petitioner Helen Lurene Elias’s
petition for habeas corpus be DISMISSED WITHOUT PREJUDICE to Petitioner’s right
to re-urge her claim of prolonged detention if she has good reason to believe, in light of any
changes in circumstance or new evidence, that her removal is not significantly likely in the
reasonably foreseeable future.
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 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.
In Chambers, Lafayette, Louisiana, this 9th day of 2026.

David J. Ayo
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11391697. Public record. Not legal advice.