Hussain

SIATES DISTRIGF

CO FILED □□

UNITED STATES DISTRICT COURT S

WESTERN DISTRICT OF NEW YORK AUG 1 2 2026

5 WW. MOELLER, ae □□

MOHAMMED KHARYUL HUSSAIN, AN DISTRICI

Petitioner,

v. 26-CV-850 (JLS)

WARDEN OF BUFFALO SERVICE

PROCESSING CENTER; DIRECTOR,

BUFFALO FIELD OFFICE FOR THE

U.S. IMMIGRATION AND CUSTOMS

ENFORCEMENT AND REMOVAL

OPERATIONS (“ICE/ERO”) FIELD

OFFICE; MARKWAYNE MULLIN, in his

official capacity, Secretary of the U.S.

Department of Homeland Security; TODD

LYONS, in his official capacity, Acting

Director U.S. Immigration and Customs

Enforcement; TODD BLANCHE, in his

official capacity, U.S. Attorney General of

the United States,

Respondents.

DECISION AND ORDER

Petitioner Mohammed Kharyul Hussain, a citizen of Bangladesh, commenced

this habeas corpus proceeding under 28 U.S.C. § 2241, challenging his detention in

the custody of the Department of Homeland Security (“DHS”). See Dkt. 1; see also

Dkt. 7, at 4 (“Petitioner is a citizen of Bangladesh.”). For the reasons below,

Respondents’ motion to dismiss is granted, and the petition is dismissed.

BACKGROUND

In 1998, Petitioner entered the United States on a tourist visa. Dkt. 1, at 2

{ 3. He has been physically present in the United States for over twenty-eight

years. Dkt. 7, at 4; see also Dkt. 1, at 2 § 3 (‘Petitioner and his family members

have resided in the United States for more than twenty years.”).

Some time after he entered the United States, Petitioner applied for

cancellation of removal.! Dkt. 1, at 2 9 4. He was placed in removal proceedings in

2011. Dkt. 7, at 4. Petitioner was ordered removed on September 10, 2020. Dkt. 1,

at 2 4. He appealed the removal order to the Board of Immigration Appeals,

which dismissed his appeal on March 20, 2026. Id. On April 15, 2026, Petitioner

filed a petition for review of the denial of his application for cancellation of removal

with the United States Court of Appeals for the Second Circuit and, on April 21,

2026, he moved in that court for a stay of removal. Id.; see also Dkt. 7, at 30

(indicating Second Circuit filing dates). According to the Second Circuit docket, the

Second Circuit dismissed the petition for review and denied as moot the motion to

stay removal on July 22, 2026. See Hussain v. Blanche, 26-983 (2d Cir. 2026), at

Dkt. 25.

On April 22, 2026, Petitioner was arrested. Dkt. 1, at2 75. He has

remained detained since that time.

1 Petitioner also is the beneficiary of a Petition for Alien Relative (Form I-130). Dkt.

1,at2 73.

Petitioner commenced this proceeding on April 27, 2026. Dkt. 1. He also

moved for a temporary restraining order (“TRO”). Dkt. 2. The Court denied the

TRO to the extent that it sought an order enjoining Respondents from transferring

Petitioner outside the Western District of New York and from removing him from

the United States while this proceeding is pending. Dkt. 3. On May 18, 2026,

Respondents moved to dismiss the petition. Dkt. 5. Petitioner responded to the

motion to dismiss. Dkt. 7.

Because Petitioner’s detention is lawful under 8 U.S.C. § 1231, the petition

must be dismissed.

DISCUSSION

I. Jurisdiction

Habeas corpus review is available to persons who are “in custody in violation

of the Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2241(c)(3). In the immigration context, only circuit courts have jurisdiction over

challenges to the legality of final orders of deportation, exclusion, and removal. See

Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005) (“[The REAL ID Act, 119 Stat.

231, § 106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of

deportation, exclusion, and removal, providing instead for petitions of review ...,

which circuit courts alone can consider.”). District courts, however, can review

claims by aliens challenging the constitutionality of their pre-removal detention.

See Demore v. Kim, 538 U.S. 510, 516-17 (2008).

Petitioner asks the Court to review his detention—a request that falls within

this Court’s limited jurisdiction over immigration matters.

II. Petitioner’s Detention is Lawful under 8 U.S.C. § 1231

The Court concludes that 8 U.S.C. § 1231 governs Petitioner’s detention

because: (1) he is subject to a final order of removal, and (2) has not obtained a stay

of removal from the Second Circuit.

Section 1231 governs the detention of aliens during and after the removal

period—in other words, those subject to final orders of removal. This period is

derived from the statute, which allows DHS ninety days to effectuate removal from

the United States following the entry of a final order of deportation or removal. Jd.

§ 1231(a)(1)(A). The removal period begins at the latest of the following events:

(i) The date the order of removal becomes administratively final;

(ii) Ifthe 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;

(ii) Ifthe alien is detained or confined (except under an immigration

process), the date the alien is released from detention or confinement.

Id. § 1231(a)(1)(B).

During the ninety-day removal period, detention is mandatory. Id.

§ 1231(a)(2). After this removal period is over, detention is discretionary; an alien

may be detained beyond the removal period if, among other things, he or she is

removable under certain provisions of 8 U.S.C. § 1227. See id. § 1231(a)(6).

Six months of detention is “presumptively reasonable” pursuant to the

Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678, 701 (2001). After six

months, an alien may seek release by demonstrating “good reason to believe that

there is no significant likelihood of removal in the reasonably foreseeable

future.” Id. If he or she is able to do so, “the Government must respond with

evidence sufficient to rebut that showing.” Jd. The six-month presumption “does

not mean that every alien not removed must be released after six months.” Jd. An

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.

When the Board of Immigration Appeals dismissed Petitioner’s appeal on

March 20, 2026, his order of removal became administratively final. See 8 U.S.C.

§ 1231(a)(1)(B)a);? 8 C.F.R. § 1241.1(a). The ninety-day removal period under the

statute expired on June 18, 2026. Dkt. 5-1, at 4. The six-month “presumptively

reasonable” period under Zadvydas expires on September 20, 2026.3 Petitioner has

been detained—under Section 1231—for less than six months. The petition,

therefore, is premature.

2 Neither of the other subsections of Section 1231(a)(1)(B) applies here. The Second

Circuit did not order a stay of removal, see 8 U.S.C. § 1231(a)(1)(B)(ii), and (to this

Court’s knowledge), Petitioner has not been released from detention, see 8 U.S.C.

§ 1231(a)(1)(B) Gu).

3 Respondents calculate the six-month expiration date as September 16, 2026. Dkt.

5-1, at 4. This Court calculates it as September 20, 2026. The outcome is the same

under either date.

CONCLUSION

For these reasons, Respondents’ motion to dismiss (Dkt. 5) is GRANTED, and

Petitioner’s petition (Dkt. 1) is DISMISSED without prejudice. The balance of

Petitioner’s motion for a TRO (Dkt. 2) is DENIED AS MOOT. The Clerk of Court

shall enter judgment and close this case.

SO ORDERED.

Dated: August 12, 2026

Buffalo, New York Z

et SINATRA, JR.

ITED STATES DISTRICT JUDGE