The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
RIGOBERTO CEPERO-LLANES CIVIL ACTION NO. 26-0476
SECTION P
VS.
JUDGE TERRY A. DOUGHTY
KRISTI NOEM, ET AL. MAG. JUDGE CAROL B.
WHITEHURST
REPORT AND RECOMMENDATION
Petitioner Rigoberto Cepero-Llanes,1 a detainee 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 Respondents oppose the petition. [doc. # 23]. For reasons below, the
Court should grant the petition.
Background
Petitioner is a citizen of Cuba. He entered the United States of America on
approximately March 29, 2019. [doc. # 22, p. 5]. On November 25, 2019, an
immigration judge ordered Petitioner removed from the United States to Cuba. [doc.
1 Petitioner’s “A Number” is 201-961-644.
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.
#s 22, p. 5; 23-2, p. 13]. Petitioner appealed the removal order to the Board of
Immigration Appeals (“BIA”). Id. On May 13, 2020, the BIA dismissed Petitioner’s
appeal. [doc. #s 22, p. 5; 23-3].
On August 6, 2020, ICE released Petitioner from detention under an Order of
Supervision. [doc. #s 22, pp. 2, 5-6; 23-4, p. 3]. On January 8, 2026, the
Government re-detained Petitioner. [doc. # 23, p. 8].
Petitioner filed this proceeding on February 16, 2026. [doc. # 1]. In his
amended, superseding petition, he first claims: “Despite full compliance and the
continued absence of any realistic prospect of removal, ICE has re-detained
Petitioner without lawful authority, without the procedural safeguards required by
statute and regulation, and without any showing that Petitioner is a danger or a flight
risk.” [doc. # 22, pp. 2, 9, 12].
Petitioner next claims: “The Government has not identified any significant
likelihood of removal in the reasonably foreseeable future, and Cuba has not issued
travel documents. Continued detention under these circumstances violates the Due
Process Clause of the Fifth Amendment, exceeds statutory authority under 8 U.S.C.
§ 1231(a)(6) as construed by Zadvydas v. Davis, 533 U.S. 678 (2001), violates
binding DHS regulations governing revocation of supervision, and is reviewable and
remediable through habeas corpus.” [doc. # 22, pp. 2, 10 (underlining removed)].
He adds: “The United States has been unable to remove Petitioner to Cuba. Cuba
has not issued travel documents, and removal has not occurred despite the passage
of several years. . . . ICE has not secured travel documents for Petitioner’s removal,
nor has it identified a country willing to accept him. . . . Respondents have not
removed Petitioner despite the passage of several years since the final order of
removal . . . . Respondents have not provided Petitioner with a concrete removal plan
or a reasonably foreseeable date of removal[,] and Petitioner was previously released
under supervision and complied with the conditions of that release.” Id. at 6, 11
(underlining removed). Petitioner argues, “These facts establish good reason to
believe that there is no significant likelihood of Petitioner’s removal in the
reasonably foreseeable future.” Id. at 11.
Petitioner claims next that the Government violated the Administrative
Procedure Act when it revoked his Order of Supervision in violation of statutory and
constitutional law. [doc. # 22, pp. 13-15]. Finally, Petitioner claims that the
Government violated the Accardi doctrine by failing to follow its “own binding
rules, procedures, and instructions . . . .” [doc. # 22, p. 15].
Respondents opposed the petition on July 22, 2026. [doc. # 23]. Petitioner
filed a reply on July 29, 2026.
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
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).
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. From when his order of removal became final on May 13, 2020, to
when the Government first released him on August 6, 2020, Petitioner endured
approximately 2 months and 24 days of detention. Then, from when the Government
re-detained him on January 8, 2026, to date, he endured (and is enduring)
approximately 7 months of detention.
Petitioner meets his initial burden of providing good reason to believe that
there is no significant likelihood of his removal in the reasonably foreseeable future.
Petitioner has endured approximately nine months of detention following his final
order of removal, and the Government has been unable to remove him. In addition,
Petitioner states: “The United States has been unable to remove Petitioner to Cuba.
Cuba has not issued travel documents, and removal has not occurred despite the
passage of several years. . . . ICE has not secured travel documents for Petitioner’s
removal, nor has it identified a country willing to accept him. . . . Respondents have
not removed Petitioner despite the passage of several years since the final order of
removal .... Respondents have not provided Petitioner with a concrete removal plan
or a reasonably foreseeable date of removall,] and Petitioner was previously released
under supervision and complied with the conditions of that release.” Jd. at 6, 11
(underlining removed).
Respondents, in turn, attach the declaration of Assistant Field Office Director
Matthew W. Reaves, who declares in pertinent part:
4, On or about November 25, 2019, Petitioner was ordered removed by an Immigration
Judge.
5. On or about May 13, 2020, the Board of Immigration Appeals dismissed Petitioner’s
appeal.
6. On or about May 20, 2020, Petitioner’s Emergency Travel Document was uploaded and
his case was nominated for removal. On the same day, Petitioner’s 1-229(a), Warrant of
Removal/Deportation, was generated for service on Petitioner. Petitioner I-229(a), Warrant
of Removal/Deportation, was served on Petitioner. ERO explained the removal process to
the Petitioner. ERO received Petitioner parole redetermination request.
7. On or about May 21, 2020, ERO’s recommendation of detention was sent to the
Supervisory Detention Deportation Officer after the review of his recent parole request.
8. On or about May 28, 2020, ERO spoke with Petitioner and afforded him an opportunity
for his to ask questions regarding his case or if he has any general questions or issues. ERO
informed him of his case status and the Post Order Custody Review process. ERO advised
him that his parole request was still pending.
9. On or about June 10, 2020, ERO spoke with the Petitioner about his removal process and
his parole denial which was sent to his attorney.
10. On or about June 17, 2020, Petitioner submitted his sponsor’s information for Post Order
Custody Review.
11. On or about June 18, 2020, Petitioner’s Final Custody Review was served on Petitioner
with him electing to have an interview. Petitioner’s interview was west for June 30, 2020.
ERO answered questions regarding the Post Order Custody Review process and gave an
update on removal efforts to Cuba, .
12. On or about June 30, 2020, Petitioner’s 90-day Post Order Custody Review Interview was
conducted. The staging detention center conducted the interview and answered questions
regarding Petitioner’s case and removal status.
13. On or about July 9, 2020, ERO spoke with detainee and answered general questions and
issues. ERO informed the Petitioner of his case status and the Post Order Custody Review
process,
14. On or about July 16, 2020, ERO spoke with detainee and answered general questions and
issues. ERO informed the Petitioner of his case status and the Post Order Custody Review
process.
15. On or about July 23, 2020, ERO spoke with detainee and answered general questions and
issues. ERO informed the Petitioner of his case status and the Post Order Custody Review
process.
16. On or about July 29, 2020, Petitioner’s 90-day Post Order Custody Review was sent to the
Supervisor Detention Deportation Officer.
17. On or about July 30, 2020, Petitioner Post Order Custody Review was reviewed and
submitted to the Assistant Field Officer Director for signature. On the same day, ERO
spoke to the detainee about pending Post Order Custody Review.
18. On or about July 31, 2020, the Deputy Field Officer Director noted Petitioner’s Post Order
Custody Review package was received and reviewed. ERO concurred with the release of
Petitioner on the Order of Supervision under the following stipulations: release is subject
to written conditions on the Order of Supervision and Addendum to the Order off
Supervision forms. Petitioner must abide. Petitioner will be required to participate in
Alternatives to Detention (ATD) Program which will include the use of Active GPS
monitoring, monthly reporting and telephonic reporting. Once the Petitioner is accepted
for repatriation, Ero is to take back Petitioner into custody for removal. A violation of any
conditions, or of any local, state or federal law will result in re-detention. Release from
custody is conditioned upon maintaining proper behavior.
19. On or about August 5, 2020, the Deputy Field Office Director noted the Petitioner would
be released on an Order of Supervision with ATD.
20. On or about August 6, 2020, Petitioner was released on an Order of Supervision due to
ERO not having a significant likelihood of removal in the reasonably foreseeable future.
21. On or about October 14, 2020, Petitioner was approved by the Government of Cuba ad
noted the Petitioner needed to be brought into custody.
22. On or about March 4, 2021, ERO noted Petitioner had been in compliance with the ATD
program and that it would be terminated and placed on the OSUP reporting. Ero noted the
Petitioner was a Post Order who was accepted by the Government of Cuba for repatriation
via the Cuba ERO Headquarters conducted flight. Being that the timeframe for departure
was unknown, the Petitioner did not fall as a priority.
23. Petitioner submitted a Motion to Reopen with the Board of Immigration Appeals which
was denied on or about November 22, 2021.
24. On or about January 8, 2026, Petitioner was taken back into ICE custody.
25. On or about January 29, 2026, ERO noted that Petitioner was pending flight from ELP
El Paso, TX to AEX Alexandria, LA.
26. On or about May 4, 2026, ERO noted the Petitioner was denied by the government of Cuba.
Petitioner’s third country removal documents were pending.
27. On or about May 28, 2026, ERO submitted an email to ERO Headquarters to nominate the
Petitioner for a third country removal to other than Mexico.
28. On or about May 30, 2026, ERO noted the Petitioner would be added to the upcoming
flight in June of 2026 to attempt removal from AEX in Alexandria, LA to ELP in El Paso,
TX.
29. On or about June 4, 2026, the docket officer noted that the Petitioner was scheduled for a
departure flight on June 3, 2026; however, he failed to depart the pod resulting in a Failure
to Comply. The Petitioner was subsequently served with a Form I-229.
30. On or about June 24, 2026, a follow up email was sent to ERO Headquarters for subject
nomination to a third country removal besides Mexico.
31. On or about July 17, 2026, ERO updated the Petitioner that his case was still pending third
country removal other than Mexico.
32. As of the date of this declaration, ERO is actively working to remove Petitioner to a third
country outside of Mexico. Procedurally, when a Petitioner refuses to be removed to
Mexico in any form, the Government of Mexico refuses to accept them. The Petitioner has
not expressed any fear of going to Mexico.
[doc. # 23-4].
That Respondents have not obtained a travel document or effected Petitioner’s
removal following the actions above suggests that a travel document is not
significantly likely to be forthcoming in the reasonably foreseeable future.
Respondents first present only bureaucratic paper shuffling for almost three
months before releasing Petitioner. Declarant Reaves even states, “Petitioner was
released on an Order of Supervision due to ERO not having a significant likelihood
of removal in the reasonably foreseeable future.” [doc. # 23-4, p. 3].
Two months later on October 14, 2020, Cuba “approved” Petitioner, and DHS
“noted the Petitioner needed to be brought into custody.” [doc. # 23-4, p. 3].
The Government then waited five months. On March 4, 2021: “ERO noted
the Petitioner was a Post Order who was accepted by the Government of Cuba for
repatriation via the Cuba ERO Headquarters conducted flight. Being that the
timeframe for departure was unknown, the Petitioner did not fall as a priority.” [doc.
# 23-4, p. 3].
The Government was then idle for approximately five years. [doc. # 23-4, p.
3]. Next, on May 4, 2026, Cuba declined to accept Petitioner.
Respondents next present: a failed attempt to transport Petitioner from
Alexandria, Louisiana, to El Paso, Texas due to Petitioner’s failure to comply (which
the undersigned discusses below), two ostensibly unanswered emails to “ERO
Headquarters to nominate Petitioner for a third country removal, and unspecified
“active[] working to remove Petitioner to a third country[.]” [doc. # 23-4, p. 3].
At bottom, Respondents present little indication that sufficient progress will
occur in the reasonably foreseeable future. The longer a request remains pending
without any action, “what counts as the ‘reasonably foreseeable future’ conversely
would have to shrink.” See Zadvydas, 533 U.S. at 701.
Respondents have not even identified a definitive third country for Petitioner’s
removal following their efforts described above. And they do not state how long the
process will take after identifying a specific country. Yet, they still detain him.
While not dispositive, the undersigned finds it persuasive that the Government has
been unable to remove Petitioner for over 6 years following his final order of
removal.
Respondents provide no evidence—or reasons to conclude—that a travel
document is forthcoming.4 They do not, for example, provide any evidence that they
4 See Gabremicheal v. Gonzales, 2007 WL 624602, at *3 (W.D. La. Jan. 31, 2007)
(“There is simply no indication that any effort is being made to obtain a travel
document for Gabremicheal or that a travel document is likely to issue in the
reasonably foreseeable future.”); Azad v. Interim Dist. Director, New York, 2009 WL
2569132 (S.D.N.Y., August 19, 2009) (finding that ICE failed to rebut a showing by
petitioner where ICE’s contacts with the local Consulate of Bangladesh resulted only
in statements that the consulate was awaiting confirmation of information);
Mohamed v. Ashcroft, 2002 WL 32620339 (W.D. Wash., April 15, 2002) (granting
petitioner habeas corpus relief where the government failed to offer any “specific
information regarding how or when [it] expect[ed] to obtain the necessary
documentation or cooperation from the Ethiopian government.”); Islam v. Kane,
have made progress in obtaining travel documents, that they have been
communicating with a third country about removing Petitioner, that any country has
recently accepted others similarly situated to Petitioner, that any country has an
agreement or treaty with the United States affecting Petitioner’s removal, or that any
country is willing to accept Petitioner.5, 6
2011 WL 4374226, at *1 (D. Ariz. Aug. 30, 2011), report and recommendation
adopted, 2011 WL 4374205 (D. Ariz. Sept. 20, 2011) (“Other than stating that the
travel document request is ‘pending,’ Respondent provides no details about the status
of Petitioner’s travel document, such as whether DHS has received any assurances
that travel documents are forthcoming, or whether the Bangladesh Consulate is even
willing to issue a travel document for Petitioner.”); Shefqet v. Ashcroft, 2003 WL
1964290, at *5 (N.D. Ill. Apr. 28, 2003) (finding that the government failed to meet
its burden in part because there was no evidence that Guyana had responded to the
request for travel documents); Butt v. Holder, 2009 WL 1035354, at *5 (S.D. Ala.
March 19, 2009) (holding that the petitioner met his initial burden when he was held
in ICE custody for more than ten months after the issuance of his removal order with
no indication from the Pakistani Embassy that travel documents would be issued);
Palma v. Gillis, 2020 WL 4880158, at *2 (S.D. Miss. July 7, 2020).
5 The undersigned lists these non-exhaustive examples for general illustrative
purposes only.
6 See generally Heagan v. Jolicoeur, 2006 WL 897709, at *3 (W.D. Tex. Mar. 31,
2006) (“Other than providing evidence that they are working with the governments
of Liberia and Ghana to establish Petitioner’s identity, Respondents have not
presented evidence regarding the time period that they will need to establish
Petitioner’s identity. Nor have the Respondents, using their significant expertise,
established any time period in which they believe they will be able to effectuate
Petitioner’s removal . . . . Respondents have not provided the Court with, nor does
the Court envision, a way to determine whether the Liberian, Nigerian or Ghanian
governments will issue the necessary travel documents to effect Petitioner’s removal
in the reasonably foreseeable future.”); Shengelia v. Ortega, 2025 WL 3654368, at
*3 (W.D. Tex. Dec. 16, 2025) (“The Government has undertaken third-country
inquiries for months now and has produced no acceptances, travel documents,
Respondents cannot rest on bald assertions that removal is foreseeable without
providing sufficient supporting evidence. “A theoretical possibility of eventually
being removed does not satisfy the Government’s burden once the removal period
has expired and the petitioner establishes good reason to believe [that] his removal
is not significantly likely in the reasonably foreseeable future.” Kane v. Mukasey,
2008 WL 1139137 at *5 (S.D. Tex. 2008).
Respondents even suggest that obtaining travel documents is beyond their
control. They state specifically that the “processes for obtaining a temporary travel
document from another country are complex, multi-faceted, and include
considerations of diplomacy that are beyond the control of ICE.” [doc. # 23, p. 11].
As one Court stated, “if [ICE] has no idea of when it might reasonably expect
[Petitioner] to be repatriated, this Court certainly cannot conclude that his removal
is likely to occur—or even that it might occur—in the reasonably foreseeable
future.” Singh v. Whitaker, 362 F. Supp. 3d 93, 102 (W.D.N.Y. 2019). Petitioner
need not show that removal is impossible. Zadvydas, 533 U.S. at 702. Although
timelines, or scheduled removal. While it has received refusals from France and
Uganda, inquiries to Canada, Armenia, Azerbaijan, and Turkey remain pending
without response. . . . Even when ICE has ‘identified a third country,’ noncitizens
like Petitioner ‘would be entitled to seek fear-based relief from removal to that
country, which would require additional, lengthy proceedings.’”) (quoting Munoz-
Saucedo v. Pittman, 789 F. Supp. 3d 387, 399 (D.N.J. 2025)).
there may be some possibility that Petitioner could be removed, an unsubstantiated
possibility does not satisfy Respondents’ burden.
Finally, Respondents argue that Petitioner thwarted efforts to remove him
when he refused to “depart the pod” to board a flight to Texas. [doc. # 23, p. 14].
They argue, “This blatant refusal to comply, which the Petitioner does not mention
in his petition, precludes him from relief under Zadvydas and tolls the running of the
90 days plus six-month period.” Id.
Respondents’ attached declaration, however, tells a different story. According
to Declarant Reaves, Petitioner did not cooperate in boarding a flight to El Paso,
Texas. [doc. # 23-4, p. 3]. Reaves does not declare that Petitioner failed to cooperate
in boarding a flight to another country.7 And Respondents do not explain the
significance of Petitioner’s failure to cooperate in his transportation to Texas. To be
sure, Respondents argue that Petitioner refused to cooperate when “ERO attempted
to remove him to Mexico and had a flight scheduled[,]” but Respondents do not
provide any evidence in support.
Also of import, the Government appears to argue that Petitioner’s non-
cooperation forced it to consider countries other than Mexico for Petitioner’s
7 Respondents even acknowledge in their response: “On or about May 30, 2026,
ERO noted the Petitioner would be added to the upcoming flight in June of 2026 to
attempt removal from AEX in Alexandria, LA to ELP in El Paso, TX.” [doc. # 23,
p. 8].
removal because Petitioner refused removal to Mexico. Again, however,
Respondents provide no evidence in support. Rather, the attached declaration shows
that the Government attempted to “nominate the Petitioner for a third country
removal to other than Mexico” on May 28, 2026, approximately one week before
Petitioner refused to “depart the pod.” [doc. # 23-4, p. 3].
Respondents appear to suggest that Petitioner must have “expressed his
refusal to be removed to Mexico” because “on May 28, 2026, ERO submitted an
email [to] ERO Headquarters to inquiry [sic] about a third country removal to other
than Mexico.” [doc. # 23, pp. 13-14]. But Respondents do not provide any evidence;
Declarant Reaves does not declare that Petitioner ever refused removal to Mexico.
Declarant Reaves states: “ERO is actively working to remove Petitioner to a third
country outside of Mexico. Procedurally, when a Petitioner refuses to be removed
to Mexico in any form, the Government of Mexico refuses to accept them.” [doc. #
23-4, p. 3]. However, Reaves qualifies that “Petitioner has not expressed any fear
of going to Mexico.” Id.
In Balogun v. I.N.S., 9 F.3d 347, 351 (5th Cir. 1993), the Fifth Circuit held
“that if it is shown that petitioner by his conduct has intentionally prevented the INS
from effecting his deportation, the six-month period should be equitably tolled until
petitioner begins to cooperate with the INS in effecting his deportation or his
obstruction no longer prevents the INS from bringing that about.” Here, however,
Respondents do not provide any evidence indicating that Petitioner actually impeded
his removal. Otherwise stated, they provide no evidence indicating that they were
powerless to remove Petitioner to Mexico because of Petitioner’s actions (or
inaction).
Accordingly, Petitioner’s detention is unreasonable; the Court should grant
habeas corpus.8
Conclusion
For the reasons above, IT IS RECOMMENDED that Petitioner Rigoberto
Cepero-Llanes’ petition for habeas corpus be GRANTED: Respondents, and the
Warden of El Paso Camp East Montana, shall (A) immediately release Petitioner
from custody without bond, under reasonable conditions of supervision if necessary
and (B) notify Petitioner’s counsel of the exact location and time of his release no
less than two hours before his release.
IT IS FURTHER RECOMMENDED that any possible or anticipated
removal or transfer of Petitioner under this present detention be PROHIBITED.9
8 The undersigned finds no need to address any claim or request for relief not
addressed herein.
9 In other words, it is the intent of the Court that Petitioner shall not be released only
to be immediately taken back into custody. The Court expresses no opinion as to
whether Petitioner could or should be taken into custody at a later date if travel
documents were to be obtained.
Respondents shall, within 24 hours after Petitioner’s release, file a status report
confirming his release.
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. See Douglass v. United
Services Automobile Association, 79 F.3d 1415 (5" Cir. 1996).
In Chambers, Lafayette, Louisiana, this 3" day of August, 2026.
CarolB. Whitehurst
United States Magistrate Judge
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