# Rigueiro-Orruela

> District Court, N.D. Ohio · September 2, 2026

URL: https://www.frixlaw.com/law-library/cases/11434078

## Case

- **Full name:** Modesto Rigueiro-Orruela v. Director of Detroit Field Office, United States Immigration and Customs Enforcement, Kevin Raycraft
- **Court:** District Court, N.D. Ohio
- **Decided:** September 2, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MODESTO RIGUEIRO-ORRUELA, ) CASE NO. 4:25-CV-02340
)
Petitioner, ) JUDGE CHRISTOPHER A. BOYKO
)
vs. )
)
DIRECTOR OF DETROIT FIELD )
OFFICE, UNITED STATES )
IMMIGRATION AND CUSTOMS )
ENFORCEMENT, KEVIN RAYCRAFT )
) Memorandum of Opinion and Order
)
Respondent. )

CHRISTOPHER A. BOYKO, J.:
This matter is before the Court on Petitioner Modesto Rigueiro-Orruela’s Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, challenging his continued detention under
8 U.S.C. § 1231(a)(6). (ECF #1). Magistrate Judge Darrell A. Clay issued a Report and
Recommendation (“R&R”) recommending that this Court grant the Petition. (ECF #17).
Respondent, Director of the Detroit Field Office of United States Immigration and
Customs Enforcement1 (“ICE”) filed his objection to the R&R. (ECF #18).
I. BACKGROUND
The Magistrate Judge’s R&R set forth a thorough factual and procedural history of this
matter. (ECF # 17). For brevity, the Court summarizes only the facts relevant to Petitioner’s
detention.

1 Department of Homeland Security (“DHS”) and ICE will be used interchangeably throughout this Order.
Petitioner, a citizen of Spain, entered the United States as a lawful permanent resident in
1953, before his second birthday. (ECF # 17 pg. 1; ECF #9-1 ¶ 5). Petitioner served in the
United States Marine Corps from 1969 to 1971 and was honorably discharged after returning
from Vietnam. (ECF # 17 pg. 1). Between 1972 to 1980, Petitioner committed a series of

offenses leading to his conviction and sentence of two consecutive life terms for Aggravated
Murder, a consecutive term of seven to twenty-five years for Attempted Murder and a
consecutive term of six months to five years for Escape. (ECF #17 pg. 2; ECF 9-1 pg. 2).
In 1985, immigration authorities issued an Order to Show Cause and Notice Hearing.
(Id.). Petitioner conceded his deportability in 1989 under former2 §§ 241(a)(4)3 and 241(a)(11)4
of the Immigration and Nationality Act. (Id.). An immigration judge denied his application for
relief under former § 212(c)5 of the INA in 1990 and ordered him removed to Spain; the Board
of Immigration Appeals (“BIA”) affirmed. (Id.). Petitioner took no further action until April
2024, when he moved to reopen and stay his removal proceedings before an immigration judge,
who denied the motion for lack of jurisdiction. (ECF #9-1 pg. 3). In November 2024, Petitioner

applied for a certificate of citizenship with United States Citizenship and Immigration Services,
which was later denied.

2 Former § 241 now appears in INA § 237, 8 U.S.C. § 1227. See Illegal Immigration Reform and Immigration
Responsibility Act of 1996 (“IIRIRA”).
3 INA § 241(a)(4) provided deportation of any noncitizen who, at any time after entry, is convicted of two crimes
involving moral turpitude.
4 INA § 241(a)(11) provided deportation of any noncitizen convicted of a controlled substance violation.
5 Repealed by the IIRIRA, INA § 212(c) permitted certain noncitizens to apply for a discretionary waiver from
deportation.
On April 14, 2025, after forty-five years of incarceration, the Ohio Parole Board granted
Petitioner parole and Petitoner was immediately taken into ICE custody. 6 (ECF #17 pg. 2). Ten
days later Petitioner again moved to reopen and stay his removal, which the BIA denied. (Id.).
Petitioner filed the instant Petition, arguing his continued post-removal order detention is

unlawful. (ECF # 1). The Magistrate Judge ordered Respondent to show cause why the Court
should not grant the Petition. (ECF # 6). Respondent filed a Return of Writ arguing continued
detention is lawful under 8 U.S.C. § 1231(a)(6), supported by a declaration of Deportation
Officer Bradley Shaver. (ECF # 9; ECF # 9-1). Petitioner responded and the Magistrate Judge
ordered Respondent to file a sur-reply, to which Petitioner provided a brief response. (ECF # 13;
ECF # 14). Following the Magistrate Judge’s R&R, Respondent filed a timely objection. (ECF
# 18).
The matter is now before the Court.
II. STANDARD OF REVIEW
A. Review of Report and Recommendation

Under 28 U.S.C. § 636(b)(1)(C), “[a] judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.” See also Powell v. United States, 37 F.3d 1499 (Table), 1994 WL
532926, at *l (6th Cir. Sept. 30, 1994) (“Any report and recommendation by a magistrate judge
that is dispositive of a claim or defense of a party shall be subject to de novo review by the
district court in light of specific objections filed by any party.” (citations omitted)); Fed. R. Civ.

6 Pursuant to § 1231(a)(1)(B), the removal period for an alien who has been ordered removed but is incarcerated at
the time of the removal order, begins on the date an alien is released from state confinement. Accordingly,
Petitioner’s removal period began on April 14, 2025. Johnson v. Guzman Chavez, 594 U.S. 523, 528 (2021).
P. 72(b)(3) (“[t]he district judge must determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”).
B. 28 U.S.C. § 2241
The Constitution guarantees that the writ of habeas corpus is “available 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 primary habeas corpus statute, 28 U.S.C. § 2241,
confers upon the federal courts the power to issue writs of habeas corpus to persons “in custody
in violation of the Constitution or laws or treaties of the United States.”
While this generally includes challenges by noncitizens in immigration-related matters,
Zadvydas v. Davis, 533 U.S. 678, 687 (2001), Congress has statutorily limited the specific
circumstances under which district courts may issue writs for noncitizens detained in such
matters.
III. ANALYSIS
Petitioner has been detained for over 16 months with no firm removal date and now seeks

release through a writ of habeas corpus.
The Magistrate Judge recommends the Court grant the Petition. Respondent objects on
three grounds: (1) the Magistrate Judge erred in finding no significant likelihood that Petitioner
will be removed to Spain or a third country; (2) the Magistrate Judge disregarded the risk that
Petitioner will commit further crimes; and (3) the Magistrate Judge failed to address Petitioner’s
claims regarding medical care. (ECF #18).
The Court finds no error in the Magistrate Judge’s findings. Respondent has failed to
rebut Petitioner’s showing that good reason exists to believe there is no significant likelihood of
removal in the reasonably foreseeable future. The Court does not reach Respondent’s third
objection regarding medical care, as Petitioner withdrew that claim before the Magistrate Judge
issued the R&R. (ECF # 11 pg. 4).
For the reasons set forth below, Respondent’s objections are OVERRULED and the Court
ADOPTS AND ACCEPTS the R&R, including the Court’s ultimate resolution of the Petition.

A. Federal Law on Post-Removal Order Detention
1. Statutory Framework and Constitutional Constraints
Petitioner is detained under 8 U.S.C. § 1231, which governs the detention, release and
removal of individuals ordered removed. The statute affords the DHS7 Secretary 90 days from
the date a removal order becomes administratively final to remove a noncitizen from the country,
i.e., the removal period. Id. § 1231(a)(1)(A), (B)(i).
8 U.S.C. § 1231(a)(6) governs detention beyond that 90-day period. By its very terms, it
applies to three categories of noncitizens: (1) those ordered removed who are inadmissible under
8 U.S.C. § 1182; (2) those ordered removed who are removable under 8 U.S.C. § 1227; and (3)
those ordered removed whom the Secretary determines to pose a risk to the community or a

flight risk. Clark v. Martinez, 543 U.S. 371, 377, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005).
Congress set no limit on the length of such detention. Nevertheless, the Supreme Court
held in Zadvydas v. Davis that the Executive Branch may not detain a noncitizen indefinitely
pending removal. 533 U.S. 678 (2001). Confronting the “serious question” whether the
Constitution permits detention that is “indefinite and potentially permanent,” id. at 696, the Court
construed § 1231(a)(6) to "limit an alien's post-removal-period detention to a period reasonably
necessary to bring about that alien's removal from the United States." Id. at 689.

7 While 8 U.S.C. § 1231 explicitly refers to the Attorney General as having enforcement and detention authority,
Congress transferred these functions to the Secretary of Homeland Security through the Homeland Security Act of
2002.
To effectuate this “reasonableness” standard, Zadvydas established a burden-shifting
framework. After the 90-day removal period, the government may continue to detain an alien
who poses a flight risk or a “danger to the community” for up to six months. Once six months
have passed without removal, the noncitizen may “provide good reason to believe that no

significant likelihood of removal exists in the reasonably foreseeable future.” If the noncitizen
makes that showing, the burden shifts to the government to rebut with sufficient evidence.
The six-month presumption does not entitle every noncitizen to release; they may be
detained until it has been determined that there is no significant likelihood of removal in the
reasonably foreseeable future. Notably, as the period of prior post-removal confinement grows,
what counts as the reasonably foreseeable future conversely would have to shrink. Zadvydas
unequivocally held that once removal is no longer reasonably foreseeable, continued detention is
no longer authorized.
Still, the Zadvydas framework leaves several questions unresolved. The Court did not
specify what kind or quantity of evidence a petitioner must offer to show that removal is not

reasonably foreseeable, nor what evidence the government may use to rebut that showing. The
Court merely noted that "the six-month presumption of reasonableness [for postremoval
detention] is merely a tool to 'guide lower courts' in making those 'determinations.'" Zadvydas,
533 U.S. at 700-701.
2. Implementing Regulations and Custody Review Process
DHS responded to Zadvydas by promulgating regulations to implement the newly
established constitutional constraints. 8 C.F.R. § 241.4; 66 Fed. Reg. 56967, 56969 (Nov. 21,
2001) (explaining the Zadvydas decision and stating that the new regulations were issued to
provide a process for DHS to determine whether there is a significant likelihood of removal in
the reasonably foreseeable future). These regulations confer procedural safeguards on
noncitizens detained beyond the removal period to ensure compliance with due process and
because they confer such rights, DHS is bound to follow them. United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260, 268, 74 S. Ct. 499, 98 L. Ed. 681 (1954); see Morton v. Ruiz, 415

U.S. 199, 235, 94 S. Ct. 1055, 39 L. Ed. 2d 270 (1974) (requiring agency compliance with
unpublished agency rules and manuals); see also Hammouda v. Dep't of Homeland Sec., 2026
U.S. Dist. LEXIS 6602, *9.
Under these regulations, the District Director must conduct a post-order custody review
("POCR") before the 90-day removal period expires if removal cannot be accomplished within
that period. 8 C.F.R. § 241.4(k)(1)(i). In conducting the POCR, officials must review the
noncitizen’s records and any documents the noncitizen submits and must inform the noncitizen
of the resulting decision. 8 C.F.R. § 241.4(h)(1). The 90-day POCR evaluates three criteria: (1)
flight risk; (2) danger to the community; and (3) likelihood of obtaining travel documents. 8
C.F.R. § 241.4(e)&(f). Based on this review, the District Director or Director of the Detention

and Removal Field Office decides whether to release the noncitizen or continue detention
pending removal or further review. § 241.4(k)(1)(i).
If a noncitizen has cooperated with the removal process but remains neither released nor
removed after the initial POCR, he or she receives a second review once 180 days have elapsed
since the removal period began. The Headquarters Post-Order Detention Unit (“HQPDU”)
conducts this review and considers whether there is a significant likelihood of removal exists in
the reasonably foreseeable future. 8 C.F.R. § 241.13. That determination depends on several
factors, including whether the government’s efforts, the receiving country’s willingness to
cooperate and other relevant factors make it reasonable to believe travel documents can be
obtained. 8 C.F.R. § 241.4(e), (f). If the HQPDU determines that removal is not likely in the
foreseeable future, it must release the noncitizen unless continued detention is justified by a
special circumstance.
§ 241.14 identifies four categories of noncitizens who may be detained beyond 180 days

even absent a significant likelihood of removal: (1) those with a highly contagious disease that
threatens public safety; (2) those whose release would have serious adverse foreign policy
consequences; (3) those detained on security or terrorism grounds; and (4) those determined to
be especially dangerous. 8 C.F.R. § 241.14. Certifying a noncitizen under any of these
categories requires substantial factual support and the determination must be made by an
immigration judge or by the concurrence of senior government officials. Id.
B. Petitioner’s Likelihood of Removal According to Zadvydas
Turning to the merits of the Petition, it is undisputed that Petitioner’s detention has
surpassed the presumptively reasonable six-month period. The Magistrate Judge’s R&R
determined that Petitioner met his burden under Zadvydas to establish that his removal to Spain

or a third country is not likely in the reasonably foreseeable future and that Respondent failed to
sufficiently rebut that showing. Respondent objects, arguing that the Magistrate Judge
incorrectly determined the Petitioner met his burden.
Like the petitioners in Zadvydas, Petitioner is in a removable-but-unremovable limbo: he
is legally removable, but practically unremovable without a valid travel document. That gap puts
his post-removal order detention along this yardstick between “reasonably foreseeable” and
“effectively indefinite” that Zadvydas left for district courts to measure. Man Bohadur Das v.
Mullin, 2026 U.S. Dist. LEXIS 173193, *26 (2026). The role that a district court must play in
that measurement is clearly prescribed: “We live in a country where the Rule of Law is
paramount and it is the province of the federal judiciary to ensure that the government obeys the
law, particularly when it chooses to deprive someone of their liberty.” Mbonga v. Raycraft, 809
F. Supp. 3d 762, 765 (N.D. Ohio 2025).
The Court agrees with the Magistrate Judge’s determination that, on this record,

Petitioner has shown good reason to believe his removal is not reasonably foreseeable to Spain
or a third country.
1. Likelihood of Removal to Spain
The Magistrate Judge determined Petitioner’s removal to Spain is not likely in the
reasonably foreseeable future and that Petitioner met his burden under Zadvydas. Respondent’s
first objection asserts that the Magistrate Judge improperly found “it was not significantly likely
Petitioner would be removed to Spain or a third country.” The objection itself, however,
addresses only the likelihood of third country removal and says nothing about the Magistrate
Judge’s findings regarding Spain. The Court therefore deems that portion of the objection
waived. See Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004) (an ‘objection’ that

does nothing more than state a disagreement with a magistrate's suggested resolution is not an
‘objection’ as that term is used in this context). The Court nevertheless addresses whether the
Magistrate Judge correctly determined that Petitioner met his burden as to Spain.
Petitioner’s initial showing is straightforward: he has been detained well beyond8 the
presumptively reasonable six-month period; he could not return to Spain after his travel
document was issued and then revoked, and the government has taken no steps to effectuate his
removal to Spain or to identify a third country for removal. Respondent argues this showing was
insufficient to shift the burden, relying on three factually distinguishable cases for the

8 Petitioner has been detained for 506 days, as of the date of this Order.
proposition that Petitioner has identified no factual or particular legal basis to believe that he will
not be removed in the reasonably foreseeable future. To be sure, Zadvydas does not define what
either party must produce to meet its burden, therefore, the Court looks to other cases in our
Circuit to instruct the analysis.

In Woldeghergish v. Lynch, the magistrate judge’s report and recommendation followed
the framework in Ahmed v. Brott, which identified broad categories of cases in which courts have
found a significant likelihood that removal is not reasonably foreseeable, three of which apply
here: (1) where the detainee is stateless and no country will accept him; (2) the detainee's country
of origin refuses to issue a travel document; and (3) no repatriation agreement between the
detainee's native country and the United States. 2025 U.S. Dist. LEXIS 270488, *26-27 citing
Ahmed v. Brott, No. CIV. 14-5000, 2015 U.S. Dist. LEXIS 45346, 2015 WL 1542131, at *4 (D.
Minn. Mar. 17, 2015), report and recommendation adopted, No. CIV. 14-5000, 2015 U.S. Dist.
LEXIS 45017, 2015 WL 1542155 (D. Minn. Apr. 7, 2015). The court adopted the magistrate
judge’s determination based on those factors, holding that the petitioner had met his burden

based on the length of his detention and his country of origin’s refusal to accept its removable
nationals. 2026 U.S. Dist. LEXIS 4236, *12. This reasoning applies with equal force here:
Petitioner is effectively stateless and Spain has blocked his removal. It is imperative to
emphasize that under Zadvydas, a petitioner’s burden is not to prove removal is impossible, but
only to provide a good reason to believe that removal is not significantly likely in the foreseeable
future. Petitioner has cleared that bar. The burden accordingly shifts to Respondent.
Respondent offers three factually inapposite cases and a bare assertion from a deportation
officer that does not address the timing concerns central to Zadvydas or provide any evidence to
support that they are in fact “working to facilitate removal.” The Court will follow other
holdings in our Circuit that have determined prior requests for travel documents along with
conclusory statements that removal was likely in the foreseeable future is not enough to rebut a
petitioner's showing. See Masheli, 2026 U.S. Dist. LEXIS 12007 at *9-10 (the respondents
failed to refute the petitioner's showing because "Respondents' sole evidence is the assertion that

a travel document has been requested more than five months ago and that there is a 'significant
likelihood of removal in the reasonably foreseeable future'") (citation omitted); Tarkhorani, 2026
U.S. Dist. LEXIS 29525 at *7 (the respondents failed to refute the petitioner's showing because
"[t]here is nothing before the Court to suggest that the Iranian government is expected to issue
travel documents to Petitioner in the near future . . . [, or] that the process of removal to a third
country will be resolved [soon]"); Kai Yu, 2026 U.S. Dist. LEXIS 26419 at * 7 (the respondents
failed to refute the petitioner's showing because (1) "Respondents' sole evidence is the assertion
that after the failed attempt to remove Petitioner . . . , 'ICE Headquarters submitted an updated
[travel document request] to the Chinese Embassy'"; (2) "Respondents do not indicate that they
have received anything from the Chinese Embassy as of the date they filed their response"; and

(3) "Respondents acknowledge that the process 'historically can be prolonged'") (citations
omitted). Thabateh v. King, 2026 U.S. Dist. LEXIS 91349, *11-12 (2026).
The lackluster record Respondent has built raises more questions than answers: Why did
the effort to Spain fail - because Spain will not accept him, because the government cannot
procure travel documents, or something else entirely? Has the Government had any further
contact with the Spanish consulate since the travel document was revoked a year ago?9 Is

9 The Court notes it is difficult to obtain accurate data for criminally convicted noncitizens repatriations to Spain, as
DHS has not updated the statistics since January 2025. According to the available data from fiscal year of 2025, 13
noncitizens were removed to Spain and 49 were removed in fiscal year 2024. When nations hinder DHS removal
efforts by not accepting the return of their nationals by scheduled commercial or charter flights, or by untimely
issuance of travel documents, DHS may designate them as recalcitrant, or uncooperative. Because Spain does not
appear to be designated as a recalcitrant country, it is unclear why DHS has not attempted to obtain new travel
documents since July 2025. https://www.ice.gov/statistics
removal to Spain likely at any identifiable point in the future? The Magistrate Judge correctly
looked at Respondent’s showing with skepticism. Respondent’s filings are extraordinarily
vague, leaving the Court to speculate on the very facts that are needed to evaluate whether
removal is reasonably foreseeable. Respondent’s response, therefore, falls well short of rebutting

Petitioner’s showing.
Accordingly, Respondent’s objection is OVERRULED and the Court ADOPTS the
Magistrate Judge’s analysis of and conclusions that Respondent failed to meet their evidentiary
burden under Zadvydas and Petitioner’s removal to Spain is not likely in the reasonably
foreseeable future.
2. Likelihood of Removal to Third Country
Petitioner alleges that, after his removal to Spain became unlikely, he suggested
Guatemala as a third country for removal and received no response from ICE. The Magistrate
Judge determined that Petitioner’s removal to a third country is not likely in the reasonably
foreseeable future. Respondent objects, arguing that the burden never shifted because Petitioner

“offered no facts indicating that he will not be removed to a third country” and that the absence
of a travel date does not render removal not reasonably foreseeable.
Again, Petitioner’s showing is straightforward: after Spain prevented Petitioner’s removal
the Government has taken no steps in the last year to remove him to a third country. Spain’s
foreclosure of Petitioner’s removal leaves third-country removal as the only remaining avenue -
one ICE has seemingly not explored. Petitioner has met his burden under Zadvydas and the
burden shifts to Respondent.
Despite the twelve months since Spain refused to accept Petitioner, Respondent identifies
no third country and explains no steps taken to arrange Petitioner’s removal. As to Guatemala
specifically, Respondent does not address Petitioner’s suggestion at all. Respondent instead cites
Jiang Lu for the proposition that the absence of a secured travel date does not mean third-country
removal is not in the reasonably foreseeable future. (ECF # 9 pg. 5; ECF # 18 pg. 4). Jiang Lu
does not rebut Petitioner’s showing because the issue here is not whether a date has been

secured, rather, the apparent lack of any effort to effectuate Petitioner’s removal. More
problematic still is the lack of transparency about what efforts, if any, have been made.
Respondent once more asks the Court to rely on a deportation officer’s stated intent to remove
Petitioner at some future point. This assurance says nothing about the likelihood of removal to a
third country, let alone a specific one. The Court is not persuaded that removal to a third country
is likely in the reasonably foreseeable future on this record and agrees with the Magistrate Judge
that Respondent failed to meet its burden under Zadvydas.
Accordingly, Respondent’s objection is OVERRULED and the Court ADOPTS the
Magistrate Judge’s analysis of and conclusions that Respondent failed to meet their evidentiary
burden under Zadvydas and Petitioner’s removal to a third country is not likely in the reasonably

foreseeable future.
C. Petitioner’s Risk of Committing Further Crimes
Having adopted the Magistrate Judge’s conclusions as to removal to Spain and to a third
country, the Court turns to whether Petitioner poses a danger to the public sufficient to justify
continued detention despite the absence of any significant likelihood of removal in the
reasonably foreseeable future.
The Magistrate Judge determined that Petitioners convictions for “multiple, serious
offenses, including aggravated murder,” could, in principle, justify extended detention on
dangerousness grounds. (ECF #17 pg. 8). The Magistrate Judge reasoned, however, that
because the Ohio Parole Board’s determination that Petitioner was suitable for supervised release
allayed that concern, since Petitioner remains subject to both state supervision and ICE
supervision. (ECF #17 pg. 8). Respondent objects, arguing the Magistrate Judge improperly
disregarded Petitioner’s risk of committing further crimes, in a manner contrary Zadvydas. (ECF

#18 pg. 4-5).
Respondent contends that Zadvydas requires a habeas court to independently assess
whether a petitioner will commit further crimes. (Id.). The authority Respondent cites for this
proposition, however, confirms a different sequence: a habeas court’s threshold inquiry is
whether removal is reasonably foreseeable. If it is not, the government’s authority to detain has
expired and the court must order release. Only if removal is reasonably foreseeable does the risk
of further crimes become relevant, but only as one discretionary factor among several that may
justify continued confinement within that reasonable removable period. In any event, the
Magistrate Judge did independently assess Petitioner’s risk of future crimes; he did not, as
Respondent suggests, simply substitute the Ohio Parole Board’s judgment for his own. Working

from the limited record before him, the Magistrate Judge reasonably concluded that Petitioner’s
state and federal supervision mitigated that risk.
Respondent’s position that Petitioner may be detained for as long as it takes to remove
him is indistinguishable from the argument the government made and lost in Zadvydas. (ECF #
18 pg. 3; ECF # 9 pg. 4; ECF # 9-1 pg. 3). That argument failed before the Supreme Court and it
fails here for the same reason. Zadvydas involved two petitioners: one with a “long criminal
record” and a “history of flight,” and another convicted of manslaughter in connection with a
gang-related shooting. 533 U.S. at 684-86. The Court granted both petitions despite their
criminal histories because removal was not reasonably foreseeable for either petitioner.
Petitioner’s criminal history does not warrant a different result here. Because Respondent’s
dangerousness argument cannot rest on Zadvydas itself, the Court looks to the record for support
and finds none.
On July 8, 2025, ICE completed the 90-day POCR and continued Petitioner’s detention

on the ground that it was in the process of securing a travel document to Spain. (ECF # 9-1 pg.
3). That determination finds some support in the record, as Petitioner was in fact issued a travel
document later that month. On September 27, 2025, ICE initiated another POCR. (Id.). The
deportation officer’s declaration dated December 5, 2025, states only that the review was
initiated on that date, meaning 69 days had passed between the initiation and the officer’s
declaration with no indication that the review had been concluded or the result. (Id. pg. 4).
The 180-day POCR asks whether a significant likelihood of removal exists in the reasonably
foreseeable future. If not, the noncitizen may still be detained only upon a finding that he meets
one of four “special circumstance” criteria previously discussed.10 8 C.F.R. § 241.14.
Respondent’s dangerousness argument appears to invoke the fourth category, that Petitioner is

“especially dangerous,” but the regulation sets a demanding standard: the government must
prove that the petitioner (1) has previously committed one or more crimes of violence as defined
in 18 U.S.C. § 16; (2) is likely, due to a mental condition or personality disorder, to engage in
future acts of violence; and (3) cannot be safely released under any conditions. 8 C.F.R. §
241.14(f). Respondent has made no attempt to satisfy any element of this standard, let alone all
three.

10 8 C.F.R. § 241.14 identifies four categories of noncitizens who may be detained beyond 180 days even absent a
significant likelihood of removal: (1) those with a highly contagious disease that threatens public safety; (2) those
whose release would have serious adverse foreign policy consequences; (3) those detained on security or terrorism
grounds; and (4) those determined to be especially dangerous.
What concerns the Court is not simply Respondent’s continued lack of transparency, but
that Respondent’s entire dangerousness argument rests on the claim that the Magistrate Judge
erred in his determination without offering any evidence that would support the finding
Respondent insists should have been made instead. Did ICE ever determine that Petitioner’s

removal was not reasonably foreseeable? If so, and if Respondent nonetheless considers
Petitioner too dangerous for release, did Respondent hold the hearing that 8 C.F.R. § 241.14(h)
requires before making such a finding? On this record, or rather, its absence, Respondent’s
conduct disregards the Zadvydas Court’s explicit guidance that “[i]n cases in which preventive
detention is of potentially indefinite duration, we have also demanded that the dangerousness
rationale be accompanied by some other special circumstance, such as mental illness, that helps
to create the danger.” 533 U.S. at 691.
Setting aside these procedural failures, Respondent’s conclusory assertions that removal
is “expected in the reasonably foreseeable future” and that Petitioner “would pose a danger to
society” if released are again unaccompanied by any factual support or explanation. Such bare

assertions come close to a pretextual formality rather than the individualized review that due
process demands. The POCR process exists precisely to ensure meaningful, case-specific
review, because the interest at stake is “the most elemental of liberty interests — the interest in
being free from physical detention.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992).
The Court does not discount the government’s interest in protecting the public, nor does it
take lightly Respondent’s warning that Petitioner remains a danger to the community. But a
generalized interest in preventing danger to the community cannot, standing alone, justify
indefinite civil detention. Zadvydas makes clear that civil detention becomes impermissibly
punitive once it grows potentially permanent or indefinite once its stated purpose, effectuating
removal, is no longer practically attainable.
The Court will not find Petitioner to be so dangerous to the community as to justify his
continued detention where Respondent has failed to comply with the very regulations Zadvydas

prompted DHS to promulgate to prevent the indefinite deprivation of liberty without procedural
safeguards.
IV. CONCLUSION
For the reasons stated above, Respondent’s objections have been OVERRULED and the
R&R (ECF # 17) is ADOPTED, including the Court’s ultimate resolution of the Petition.
Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 is GRANTED.
Respondent is ordered to release Petitioner from detention. This Order does not
determine what “release conditions” may be appropriate for the Petitioner's “supervision.”
Zadvydas, 533 U.S. at 696.
The Court orders Respondent to file a status report within five days of the date of this

Court's Opinion and Order to certify compliance.
IT IS SO ORDERED.

/s Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

Dated: September 2, 2026

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11434078. Public record. Not legal advice.