Birhanu

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

TSION BIRHANU CASE NO. 3:26-CV-573 SEC P

VERSUS JUDGE JAMES D. CAIN, JR.

US IMMIGRATION & CUSTOMS MAGISTRATE JUDGE HORNSBY

ENFORCEMENT

REPORT AND RECOMMENDATION

In accordance with the standing order of this court, this matter was referred to the

undersigned Magistrate Judge for review, report and recommendation.

STATEMENT OF CLAIM

Before the court is a petition for writ of habeas corpus filed pro se by Tsion Birhanu,

(“Petitioner’), pursuant to 28 U.S.C. § 2241. Petitioner is an immigration detainee at the

Richwood Correctional Center in Monroe, Louisiana. Petitioner challenges the legality

and constitutionality of her continued detention.

Petitioner is a native and citizen of Ethiopia. On December 28, 2024, Petitioner was

taken into immigration custody. On July 8, 2025, an immigration judge ordered Petitioner

removed from the United States. On February 2, 2026, the Board of Immigration Appeals

denied her appeal (Docs. 1 and 10).

Petitioner also complains about the conditions of her confinement. She claims her

prolonged detention is causing her serious medical conditions. Petitioner claims she is

suffering from anxiety, mental problems, tachycardia, and hypertension. She claims more

than one hundred people are housed in a room. She claims undergarments are not changed

and clothes are not regularly changed. Petitioner claims she is given small amounts of

food. also claims the uniforms, sheets, and towels are used and this is affecting her health.

Petitioner complains that her shoes have had pads in them for two months (Docs. 1, 7 and

13).

For the reasons stated below, Petitioner's application for habeas relief should be

denied without prejudice as premature and her claims regarding her conditions of

confinement should be dismissed for lack of subject matter jurisdiction.

LAW AND ANALYSIS

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 v. Davis, 533 U.S.

678, 687 (2001). However, 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, R. 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 F. 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.”).

Detention

In Zadvydas v. Davis, 533 U.S. 678, 701 (2001), the Supreme Court held that if an

alien is detained for six months after a final order of removal and if the alien petitioning

for habeas corpus “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.” “[A]n 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.

Petitioner's claim is premature because when she filed this proceeding, she was not

detained more than six months following the date her order of removal became final.

Petitioner was ordered removed from the United States on July 8, 2025. Under 8 U.S.C. §

1101(47)(B), an order of removal “shall become final upon the earlier of--(i) a

determination by the Board of Immigration Appeals affirming such order; or (ii) the

expiration of the period in which the alien is permitted to seek review of such order by the

Board of Immigration Appeals.” The Board of Immigration Appeals denied Petitioner’s

appeal on February 2, 2026. Thus, her order of removal became final on February 2, 2026.

Petitioner filed this proceeding on February 23, 2026, less than six months after her

order of removal became final on February 2, 2026. The court notes that six months after

February 2, 2026, is August 2, 2026. See Chance v. Napolitano, 453 F. App'x 535 (5th Cir.

2011) (per curiam) (concluding that the district court did not err in finding that the

“challenge to [petitioner's] continued post removal detention was premature” when the

petitioner “had not been in post-removal-order detention longer than the presumptively

reasonable six-month period” authorized by Zadvydas); Okpoju v. Ridge, 115 F. App'x

302 (5th Cir. 2004) (per curiam) (finding that a continued detention claim was “premature”

because the petitioner “had not yet been in custody longer than the presumptively

reasonable six-month post removal order period”), cert. denied, 544 U.S. 1066 (2005).

Accordingly, Petitioner’s claim regarding her detention should be denied as

premature. Petitioner may refile her habeas claim should her detention become

unconstitutional.

Conditions of Confinement

Petitioner raises claims regarding her health, overcrowding, clothing, shoes,

bedding, and food. To the extent Petitioner challenges the conditions of her confinement

in this petition, these claims should be dismissed for lack of subject matter jurisdiction. “A

§ 2241 habeas petition is the proper procedural vehicle for challenging an action that

‘directly implicates the duration of’ a prisoner's confinement. Davis v. Fechtel, 150 F.3d

486, 487, 490 (5th Cir. 1998). It is not, however, the proper procedural vehicle for claims

... regarding the conditions of confinement.” Boyle v. Wilson, 814 F. App'x 881, 882 (5th

Cir. 2020); Spencer v. Bragg, 310 F. App'x 678, 679 (5th Cir. 2009).

Accordingly, Petitioner’s claims regarding the conditions of confinement are

unrelated to the cause of Petitioner's detention and should be dismissed for lack of subject

matter jurisdiction. Petitioner may raise these claims in a separate civil rights action.

Accordingly, IT IS RECOMMENDED that Petitioner’s application for writ of

habeas corpus be DENIED as premature. IT IS FURTHER RECOMMENDED that

Petitioner’s condition of confinement claims be DISMISSED for lack of subject matter

jurisdiction.

OBJECTIONS

Under the provisions of 28 U.S.C. 636(b)(1)(C) and Fed. R. Civ. Proc. 72(b), parties

agerieved by this recommendation have fourteen (14) days from service of this report and

recommendation to file specific, written objections with the Clerk of Court, unless an

extension of time is granted under Fed. R. Civ. Proc. 6(b). A party may respond to another

party’s objections within fourteen (14) days after being served with a copy thereof.

Counsel are directed to furnish a courtesy copy of any objections or responses to the

District Judge at the time of filing.

A party’s failure to file written objections to the proposed findings, conclusions and

recommendation set forth above, within fourteen (14) days after being served with a copy

shall bar that party, except upon grounds of plain error, from attacking on appeal the

unobjected-to proposed factual findings and legal conclusions accepted by the district

court. See Douglas v. U.S.A.A., 79 F.3d 1415 (Sth Cir. 1996) (en banc).

THUS DONE AND SIGNED, in chambers, at Shreveport, Louisiana, on this the

5'h day of August, 2026.

Mark □□ Hornsby

U.S. Magistrate Judge

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