Xu

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ZHONG HUA XU, DECISION AND ORDER

Petitioner, 1:26-CV-00364 EAW

v.

PHILIP RHONEY, in his official capacity

as Field Office Director in charge of

Buffalo Federal Detention Facility, et al.,1

Respondents.

INTRODUCTION

Petitioner Zhong Hua Xu (“Petitioner”), a civil immigration detainee currently held

at the Buffalo Federal Detention Facility in Batavia, New York, seeks a writ of habeas

corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner claims that his removal from the

United States is not reasonably foreseeable, and therefore his continued detention without

a bond hearing violates his Fifth Amendment liberty interest. (Id. at ¶¶ 62-69). For the

reasons below, the Court grants Respondents’ motion to dismiss (Dkt. 9) pursuant to Fed.

R. Civ. P. 12(b)(6) and dismisses the petition without prejudice.

1 Philip Rhoney is the Acting Field Office Director of the Buffalo Field Office and is

substituted in place of Tammy Marich pursuant to Federal Rule of Civil Procedure 25(d).

In addition, Markwayne Mullin is the Secretary of the Department of Homeland Security

and is substituted in place of Kristi Noem and David Venturella is the Acting Director of

ICE and is substituted in place of Todd Lyons. The Clerk of Court is directed to update

the docket to reflect these substitutions.

BACKGROUND

Petitioner is a citizen and national of the People’s Republic of China. (Dkt. 1 at ¶ 5;

Dkt. 9-2 at ¶ 5). On October 18, 1996, Petitioner was issued an Order to Show Cause and

Notice of Hearing which alleged that he entered the United States on or about February 28,

1992, without a valid entry document. (Dkt. 9-2 at ¶ 6). On June 3, 1998, a final order of

removal was issued directing that Petitioner be deported to the People’s Republic of China.

(Dkt. 1 at ¶ 29; Dkt. 9-2 at ¶ 7). An immigration judge denied Petitioner’s motion to reopen

on March 29, 2011, and on February 26, 2013, the Board of Immigration Appeals (“BIA”)

dismissed Petitioner’s appeal of the denial of his motion to reopen. (Dkt. 9-2 at ¶¶ 8, 9).

Petitioner was detained by ICE on September 7, 2025. (Dkt. 1 at ¶ 14; Dkt. 9-2 at

¶ 10). Shortly thereafter, Petitioner’s son filed a Form I-130, Petition for Alien Relative,

on Petitioner’s behalf. (Dkt. 1 at ¶ 17). Petitioner also filed a Form 1-485, Application to

Adjust Status, or a green card application. (Id. at ¶ 18). Part of the Application to Adjust

Status process requires appearance at a biometrics appointment which Petitioner alleges

Respondents prevented him from attending. (Id. at ¶¶ 20-28). Respondents allege that

Petitioner’s biometrics were received on or about March 12, 2026. (Dkt. 9-2 at ¶ 12).

On March 2, 2026, Petitioner filed the instant § 2241 petition. (Dkt. 1). On March

3, 2026, the Court entered a Text Order directing the parties to propose a briefing schedule

and temporarily enjoining Respondents from transferring Petitioner outside the Western

District of New York pending a resolution of the matters in the petition. (Dkt. 3). On

March 17, 2026, Respondents filed a motion to dissolve the temporary restraining order

and dismiss the petition, and requested expedited consideration of the relief sought. (Dkt.

9). After hearing from Petitioner (Dkt. 12), the Court granted the portion of Respondents’

motion seeking to vacate the temporary restraining order (Dkt. 13). Petitioner filed a

response to Respondents’ motion to dismiss on March 26, 2026. (Dkt. 14).

Respondents obtained a travel document from the Chinese government on March

19, 2026, and Petitioner was transferred to Louisiana in preparation for his removal to

China on a March 24, 2026 flight. (Dkt 9-2 at ¶¶ 15, 16; Dkt. 24). But due to limited

seating capacity on the flight, Plaintiff was not given a seat on the flight, was returned to

BFDF, and scheduled for another flight on April 23, 2026. (Dkt. 23; Dkt. 24).

On April 13, 2026, Petitioner filed a motion to reopen his removal proceedings and

asked this Court to stay his removal (Dkt. 19), which the Court denied on April 14, 2026,

for lack of jurisdiction (Dkt. 20). Additional status reports from the parties reflect that

Petitioner’s motion to reopen was rejected by the immigration court on June 24, 2026.

(Dkt. 25-1). Petitioner then refiled the motion with the BIA on June 30, 2026, which

remains pending, and has the effect of automatically staying Petitioner’s removal efforts.

(Dkt. 26).

DISCUSSION

I. Jurisdiction

The Constitution guarantees the availability of the writ of habeas corpus “to every

individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525

(2004) (citing U.S. Const., Art. I, § 9, cl. 2). “The essence of habeas corpus is an attack by

a person in custody upon the legality of that custody, and . . . the traditional function of the

writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484

(1973). A writ of habeas corpus may be granted to a petitioner who demonstrates that he

is in custody in violation of the Constitution or federal law. 28 U.S.C. § 2241(c)(3).

In the immigration context, “recent Second Circuit precedent firmly establishes that

[a district] [c]ourt can hear and decide Section 2241 habeas petitions brought by individuals

in immigration detention, so long as the petitions challenge the constitutionality of the

petitioners’ detention rather than the underlying removal proceedings.” L.G.M. v.

LaRocco, 788 F. Supp. 3d 401, 404 (E.D.N.Y. 2025) (quoting Ozturk v. Hyde, 136 F.4th

382, 399-400 (2d Cir. 2025) (finding petitioner’s First and Fifth Amendment challenges to

her detention distinct from challenges to her removal proceedings and therefore properly

within the district court’s jurisdiction (collecting cases); Mahdawi v. Trump, 136 F.4th 443,

452 (2d Cir. 2025) (same)).

Petitioner’s § 2241 petition challenges the constitutionality of his continued

detention in the government’s custody. Therefore, the Court has subject matter jurisdiction

over this matter.

II. Due Process Claim

Petitioner contends that his ongoing detention without a bond hearing or release

under conditions of supervision violates his due process rights under the Fifth

Amendment.2

2 In his petition and in connection with his request for immediate release, Petitioner

also raises claims of inadequate medical treatment and challenges Respondents’ failure to

permit him to attend a biometric appointment and other medical appointments. (Dkt. 1;

Dkt. 7; Dkt. 27). In the first instance, Petitioner’s claim regarding his biometrics

appointment appears to be moot. (Dkt. 9-2 at ¶¶ 11, 12).

Because Petitioner is subject to a final removal order, it is undisputed that his

detention arises pursuant to 8 U.S.C. § 1231, which “authorizes detention ‘when an alien

is ordered removed’ and enters the ‘removal period,’ which begins on ‘[t]he date the order

of removal becomes administratively final.’” Johnson v. Guzman Chavez, 594 U.S. 523,

533 (2021) (alteration in original) (quoting 8 U.S.C. §§ 1231(a)(1)(A)-(B)).

To the extent that Plaintiff alleges inadequate medical treatment, the allegations do

not rise to the level of a constitutional violation. In order to sustain a Fifth Amendment

deliberate indifference claim, a detainee must show “(1) the existence of a ‘serious medical

need,’ and (2) that Respondents acted with deliberate indifference to such need.” Graterol

Ruiz v. Trump, No. 2:26-CV-00012, 2026 WL 483182, at *3 (D. Vt. Feb. 20, 2026)

(citation modified)). “The serious medical needs standard contemplates a condition of

urgency such as one that may produce death, degeneration, or extreme pain,” and to

establish deliberate indifference, “a detainee must prove ‘that the defendants knew that

failing to provide the complained of medical treatment would pose a substantial risk to [the

detainee’s] health or that the defendants should have known that failing to provide the

omitted medical treatment would pose a substantial risk to the detainee’s health.” Quintero

v. Francis, No. 25-CV-10107 (MKV), 2026 WL 265921, at *7 (S.D.N.Y. Feb. 2, 2026)

(quoting Charles v. Orange Cnty., 925 F.3d 73, 82, 85 (2d Cir. 2019) (citation modified))).

Petitioner contends that prior to detention, he was seeing a mental health provider

who spoke Chinese but that at BFDF, he is only provided with an English-speaking health

professional who utilizes a Chinese-speaking interpreter. (Dkt. 1 at ¶¶ 45, 53). Petitioner’s

allegations do not rise to the level of deliberate indifference. While Petitioner may prefer

treatment from his own mental health providers or from one who speaks his native

language, the law does not allow those preferences to manifest themselves into a

constitutional violation.

Petitioner also contends that he receives regular medical treatment from medical

providers for hepatitis B, fatty liver disease, liver hemangioma, and anemia, and seeks

permission to attend scheduled medical appointments. (Dkt. 27). Respondents note that

transportation to medical appointments can be accommodated through an established

process with proper notice and that Petitioner has not availed himself of those processes.

These allegations too do not amount to a cognizable claim for inadequate medical

treatment. Graterol Ruiz, 2026 WL 483182, at *4 (“Courts grant prison officials wide

discretion in treating detainees and treatment plans by medical providers are given a

presumption of correctness. . . . Even if Mr. Graterol Ruiz would prefer his treatment at

the Boston Medical Center, the Department of Corrections has wide discretion in

determining where and how he receives medical treatment.” (citation modified)).

Under § 1231, there are three relevant periods. First, § 1231(2)(A) provides that

“when an alien is ordered removed, the Attorney General shall remove the alien from the

United States within a period of 90 days” during which time “the Attorney General shall

detain the alien.” Id. “Critically, the statutory text uses ‘shall,’ denoting mandatory

detention.” Neilova, 812 F. Supp. 3d at 839 (citation omitted).

The 90-day removal period “begins on the latest of” three dates, specifically:

(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.

8 U.S.C. § 1231(a)(1)(B). Once the 90-day mandatory detention period ends, § 1231(a)(3)

provides that “[i]f the alien does not leave or is not removed within the removal period, the

alien, pending removal, shall be subject to supervision under regulations prescribed by the

Attorney General.” 8 U.S.C. § 1231(a)(3).

If the Government continues to detain the noncitizen beyond the removal period

pursuant to § 1231(a)(6), such detention is “limit[ed]. . . to a period reasonably necessary

to bring about that alien’s removal from the United States,” Zadvydas v. Davis, 533 U.S.

678, 689 (2001), and is deemed “presumptively reasonable” for a period of six months, see

id. at 701. If, after this six-month period, the noncitizen “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.” Id.

Here, there is no question that the presumptively reasonable six month period under

Zadvydas has expired, and Petitioner has been held in custody since September 7, 2025—

i.e., over 10 months. However, this does not end the inquiry, as “the mere passage of time

beyond the six-month presumptively reasonable period does not satisfy [the petitioner’s]

burden under Zadvydas.” Lorenzo v. Barr, No. 20-cv-1372 (JLS), 2021 WL 84283, at *6

(W.D.N.Y. Jan. 11, 2021) (citation modified). Rather, in addition, the Petitioner must

provide good reason to believe that his removal is unlikely in the reasonably foreseeable

future. See Zadvydas, 533 U.S. at 701.

“In analyzing the likelihood of removal, courts consider a variety of factors,

including the existence of a repatriation agreement with the target country, the target

country’s prior record of accepting removed noncitizens, and specific assurances from the

target country regarding its willingness to accept a noncitizen.” Yousif Al Nassar v.

Rhoney, No. 26-CV-311-RCW, 2026 WL 1800891, at *6 (W.D.N.Y. June 23, 2026)

(quoting Dong v. Charles, No. 26-cv-85-LJV, 2026 WL 1473790, at *4 (W.D.N.Y. May

26, 2026)). In support of this argument, Petitioner alleges that his March 19, 2026 travel

document is expired and there is no current valid travel document authorizing his removal.

(Dkt. 24). He also argues that there is no indication when his motion to reopen will be

resolved and that “[g]iven the absence of a valid travel document, the pending Motion to

Reopen, and the likelihood of lengthy appellate proceedings, Petitioner’s removal is not

reasonably foreseeable.” (Id. at 3).

The Court is not persuaded. Petitioner was about to be removed to China on March

24, 2026, but he was not able to secure a seat on the plane because of its size limitations;

then, he was scheduled to be removed on April 23, 2026, but the motion to reopen

automatically operated to stop those efforts. The motion to reopen has now been denied

by the immigration court, and Petitioner’s pursuit of that relief before the BIA is the only

apparent restriction on his removal. Moreover, while the Court’s role is not to resolve the

merits of Petitioner’s motion to reopen, Respondents have presented a credible argument

that Petitioner’s current stance on the motion to reopen contradicts the prior position when

initially defending against the efforts to remove him. (Compare Dkt. 21-1 (2011 Motion

to Reopen); Dkt. 21-2 (Petitioner’s 2011 Affidavit); Dkt. 19-1 (2026 Second Motion to

Reopen)). Furthermore, Respondents have come forward with evidence that travel

documents will be obtained as soon as the automatic stay of removal is lifted—just as they

were previously.

Under these circumstances, particularly when it is the automatic stay resulting from

Petitioner’s own eleventh hour filings that have delayed his removal, the Court is not

convinced that Petitioner has established that there is no significant likelihood of his

removal in the reasonably foreseeable future, and even if Petitioner could make that

showing, Respondents have rebutted that showing. See, e.g., Guangzu Zheng v. Decker,

618 F. App’x 26, 28 (2d Cir. 2015) (“[T]he Government has been prevented from removing

Zheng by the BIA’s stay of removal (sought by Zheng) and by its own forbearance policy

(also resulting from Zheng’s pursuit of an additional stay.”); Abimbola v. Ridge, 181 F.

App’x 97, 99 (2d Cir. 2006) (“The District Court and the Government both correctly

identify the real reason for Abimbola’s lengthy detention: Abimbola’s consistent pattern

of seeking and/or receiving numerous judicial stays and filing his numerous petitions for

reconsideration and appeals. . . . As the District Court noted, a self-inflicted wound should

not establish grounds for Abimbola’s Zadvydas claim.”); Bailey v. Marich, No. 26-CV-

250-RCW, 2026 WL 1703737, at *3 (W.D.N.Y. June 12, 2026) (“[A] discrete

administrative stay pending [petitioner’s] own motion to reopen is not the kind of

indeterminate obstacle that Zadvydas addresses.”); Turcios v. Mullin, No. 1:25-CV-8150-

MKV, 2026 WL 1180124, at *13 (S.D.N.Y. Apr. 30, 2026) (“Aside from the stay he

requested and obtained, Petitioner has not come forward with any ‘good reason to believe

that there is no significant likelihood of removal in the reasonably foreseeable future.’”

(quoting Zadvydas, 533 U.S. at 701)); Portillo v. Decker, No. 21 CIV. 9506 (PAE), 2022

WL 826941, at *5 (S.D.N.Y. Mar. 18, 2022) (“For obvious reasons, a noncitizen’s use of

the American judicial process, to the extent it delays removal, does not warrant release

under Zadvydas.”).

Accordingly, Respondents’ motion to dismiss the petition on this ground is granted.

That said, because Petitioner’s detention may not continue indefinitely, the dismissal is

without prejudice to potential renewal of the requested relief at some point in the future in

the event that “removal can no longer be expected in the reasonably foreseeable future.”

Bailey, 2026 WL 1703737, at *4.

CONCLUSION

For the reasons discussed above, the Court grants Respondents’ motion to dismiss

the petition pursuant to Fed. R. Civ. P. 12(b)(6) without prejudice, and the Clerk of Court

is directed to close this case.

SO ORDERED. co) /

LIZABETH AAWOLFOBDL”

Chief Judge

United States District Court

Dated: July 20, 2026

Rochester, New York

-10-