Opinion

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 SERGIO ARIBU COMAS Case No. 1:26-cv-04387-KES-CDB (HC)

(A-Number: 039-137-919),

12 FINDINGS AND RECOMMENDATIONS TO

Petitioner, (1) DENY PETITION FOR WRIT OF

13 HABEAS CORPUS, (2) DENY AS MOOT

v. RESPONDENTS’ MOTION TO DISMISS,

14 AND (3) DENY AS MOOT PETITIONER’S

WARDEN OF THE CENTRAL VALLEY MOTION FOR APPOINTMENT OF

15 ANNEX DETENTION FACILITY, et al., COUNSEL

16 Respondents. (Docs. 1, 2, 8, 9)

17 14-Day Objection Period

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19 Petitioner Sergio Aribu Comas (“Petitioner”), a federal immigration detainee originally

20 proceeding pro se, initiated this action by filing a petition for writ of habeas corpus pursuant to 28

21 U.S.C. § 2241 on June 8, 2026, while in custody of the Immigration and Customs Enforcement

22 (“ICE”) at the Central Valley Annex facility, where he remains detained. (Doc. 1). Respondents

23 are the unnamed Warden of the Central Valley Annex Detention Facility; the unnamed Acting Field

24 Office Director of the ICE San Francisco Field Office; the unnamed Acting Director of ICE; the

25 unnamed Secretary of the Department of Homeland Security (“DHS”); and the unnamed Acting

26 United States Attorney General (collectively, “Respondents”). Id. at 1.

27 After the Court set a briefing schedule (Doc. 7), Respondents filed a motion to dismiss (Doc.

28 8) and Petitioner filed a traverse (Doc. 10). Thereafter, Petitioner, represented by counsel, filed a

1 separate but related petition in this Court. See Comas v. Warden, Case No. 1:26-cv-05782-KES-

2 CDB (“Comas II”). On August 7, 2026, the Court consolidated Comas II with this action and

3 granted counsel for Petitioner leave to file a supplemental brief in opposition to Respondents’

4 motion to dismiss. See (Doc. 14). Prior to the deadline by which counsel was to file any

5 supplemental opposition brief, the Court inadvertently entered findings and recommendations on

6 the merits of the petition, but later vacated those findings and recommendations to permit counsel

7 for Petitioner an opportunity respond to Respondents’ motion to dismiss. See (Docs. 15-18).

8 Counsel filed an untimely supplemental brief in opposition to Respondents’ motion to dismiss on

9 August 26, 2026. (Doc. 19).

10 For the reasons set forth herein, the undersigned recommends that Petitioner’s petition for

11 writ of habeas corpus be denied.

12 I. Relevant Background

13 Plaintiff is a native and citizen of Cuba who was admitted to the United States as a lawful

14 permanent resident on September 22, 1988. In August 2024, Petitioner was sentenced to a 30-

15 month term of incarceration in Florida for violation of probation related to a conviction for

16 aggravated assault with a weapon, and was notified upon release from custody in November 2025

17 that he was subject to a hold by ICE. He was detained in Jacksonville, Florida, then transferred to

18 El Paso, Texas, and transferred again to the Central Valley Annex facility in McFarland, California.

19 (Doc. 1 at 6-7; Doc. 8 at 1-2; Doc. 8-1; Doc. 8-2 at 14).

20 On December 10, 2025, Petitioner was served with a Notice to Appear charging him as

21 removable from the United States due to his conviction for an aggravated felony. (Doc. 8-3). On

22 February 23, 2026, Petitioner was ordered removed by an immigration judge. Any appeal of the

23 removal order was due by March 25, 2026; Petitioner did not file an appeal and the order became

24 final on March 26, 2026. (Doc. 8 at 2).

25 The undersigned takes judicial notice that the immigration judge ordered removal on

26 February 23, 2026, and no appeal was received.1

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1 See https://acis.eoir.justice.gov/en/caseInformation (last visited Aug. 6, 2026, using

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1 II. Governing Authority

2 Writ of habeas corpus relief extends to a person in custody under the authority of the United

3 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus

4 shall “award the writ or issue an order directing the respondent to show cause why the writ should

5 not be granted, unless it appears from the application that the applicant or person detained is not

6 entitled thereto.” 28 U.S.C. § 2243. “[T]he essence of habeas corpus is an attack by a person in

7 custody upon the legality of that custody, and [] the traditional function of the writ is to secure

8 release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas

9 corpus may be granted to a petitioner who demonstrates that custody is in violation of the U.S.

10 Constitution or federal law. 28 U.S.C. § 2241(c)(3).

11 III. Discussion

12 Petitioner asserts a single claim for relief for violation of the Due Process Clause of the

13 Fifth Amendment to the U.S. Constitution. See (Doc. 1 at 17-18).

14 A. Mandatory 90-Day Removal Period

15 “Where an alien falls within [the Immigration and Nationality Act] statutory scheme can

16 affect whether his detention is mandatory or discretionary, as well as the kind of review process

17 available to him if he wishes to contest the necessity of his detention.” Prieto-Romero v. Clark,

18 534 F.3d 1053, 1057 (9th Cir. 2008). A removal order becomes final upon the earlier of either “(i)

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

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

21 Immigration Appeals.” 8 U.S.C. § 1101(47)(B); see 8 C.F.R. § 1003.39. Once an order of removal

22 is final, the “Attorney General shall remove the alien from the United States within a period of 90

23 days.” 8 U.S.C. § 1231(a)(1)(A). “During the removal period, the Attorney General shall detain

24 the alien.” 8 U.S.C. § 1231(a)(2)(A). “While removal proceedings are in progress, most aliens

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26 99 (9th Cir. 2010) (“It is appropriate to take judicial notice of this information, as it was made

publicly available by government entities ... and neither party disputes the authenticity of the web

27 sites or the accuracy of the information displayed [ ] therein.”); Argueta v. Walgreens Co., 760 F.

Supp. 3d 1028, 1034 (E.D. Cal. 2024) (taking judicial notice of information on federal government

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1 may be released on bond or paroled. After entry of a final removal order and during the 90–day

2 removal period, however, aliens must be held in custody.” Zadvydas v. Davis, 533 U.S. 678, 683

3 (2001).

4 Here, Petitioner was ordered removed by an immigration judge on February 23, 2026, with

5 a deadline to appeal the order no later than March 25, 2026. “Whether or not Petitioner appealed

6 the order of removal is significant here. If the decision was not appealed, then Petitioner’s removal

7 order would have become administratively final, and Section 1231(a)’s mandatory detention

8 scheme would apply … However, if Petitioner did appeal that decision, the order would not be

9 final, rendering Section 1231(a) inapplicable.” Cedeno v. Warden of Golden State Annex, No. 1:26-

10 cv-03611 (EJD), 2026 WL 1475818, at *2 (E.D. Cal. May 26, 2026) (citing cases; emphasis in

11 original).

12 There is no evidence in the record that an appeal was filed and the 30-day window to appeal

13 has expired. See (Docs. 8, 10); 8 C.F.R. § 1003.38(b)(2); 8 C.F.R. § 1241.1(c). The Executive

14 Office for Immigration Review’s database reflects that no such appeal was received. Thus,

15 Petitioner’s order of removal is administratively final and Petitioner must be held in custody for the

16 90-day removal period. See Zadvydas, 533 U.S. at 683; Martinez Reyes v. Warden of Mesa Verde

17 Det. Facility, No. 1:26-cv-1877-TLN-JDP, 2026 WL 1162728, at *2 (E.D. Cal. Apr. 29, 2026)

18 (“Here, petitioner was ordered removed on March 20, 2026. The order became final on April 21,

19 2026, which is when petitioner’s allotted time for an appeal expired. Consequently, petitioner is

20 subject to mandatory detention during his removal period, which runs through July 20, 2026.”)

21 (citation omitted).

22 The removal period begins on the “date the order of removal becomes administratively

23 final.” 8 U.S.C. § 1231(a)(1)(B). As the order of removal became final on March 26, 2026, the

24 mandatory detention period ran until June 24, 2026. “As many courts have held, once a removal

25 order becomes final triggering the Government’s detention authority under § 1231(a), claims of

26 error arising from pre-removal-order detention become moot.” Quizhpe Macas v. Warden,

27 California City Det. Ctr., No. 1:26-cv-03046-DJC-EFB (HC), 2026 WL 1506814, at *3 (E.D. Cal.

28 May 29, 2026) (citing cases). Petitioner’s “due process right to be free from unduly lengthy

1 detention, however, only attaches once the 90-day period of mandatory detention expires; in other

2 words, there is no cognizable liberty interest in being free from detention during that 90-day

3 period.” Id. (citing Zadvydas, 533 at 682-83).

4 B. Detainment Beyond the Removal Period

5 “An alien ordered removed [1] who is inadmissible ... [2] [or] removable [as a result of

6 violations of status requirements or entry conditions, violations of criminal law, or reasons of

7 security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to

8 the community or unlikely to comply with the order of removal, may be detained beyond the

9 removal period and, if released, shall be subject to [certain] terms of supervision ....” Zadvydas,

10 533 U.S. at 682 (quoting 8 U.S.C. § 1231(a)(6); alterations in original). “Applying the canon of

11 constitutional avoidance because a statute permitting indefinite detention of an alien would raise a

12 serious constitutional problem,’ the Supreme Court read an implicit limitation into § 1231(a)(6)

13 and held that the statute limits an alien’s post-removal-period detention to a period reasonably

14 necessary to bring about that alien's removal from the United States.” Vishal v. Chestnut, 811 F.

15 Supp. 3d 1179, 1183 (E.D. Cal. 2025) (citations and quotations omitted). “Thus, after a

16 presumptively reasonable 6–month period, once the alien provides good reason to believe that there

17 is no significant likelihood of removal in the reasonably foreseeable future, the Government must

18 respond with evidence sufficient to rebut that showing.” Id.

19 The 90-day removal period for Petitioner, requiring mandatory detention, ended on June

20 24, 2026. The six-month period found presumptively reasonable by the Supreme Court does not

21 run until September 26, 2026. Courts within this circuit have found that this six-month period of

22 detention does not need to be consecutive to reach the limit established in Zadvydas. See Jaranow

23 v. Bondi, 819 F. Supp. 3d 1229, 1236 (W.D. Wash. 2026) (citing cases). In other words, any other

24 period of time a petitioner has spent in civil immigration detainment following a final entry of

25 removal, and separate from the current period of detention, may be considered in regard to the

26 presumptively reasonable period of time. See Tang v. Bondi, No. 2:25-cv-01473-RAJ-TLF, 2025

27 WL 2637750, at *4 (W.D. Wash. Sept. 11, 2025) (“Here, Mr. Tang was detained for 92 days

28 following his order of removal in 2011, and has been in custody for 113 days as of this order. Thus,

1 his total period of confinement exceeds six months and is not presumptively reasonable under

2 Zadvydas.”).

3 There is no indication in the record that Petitioner was in immigration custody following an

4 order of removal at some other instance in time. Additionally, time spent in custody on criminal

5 charges does not count toward this period. See Jaranow, 819 F. Supp. 3d at 1236. Thus, the six-

6 month period of presumptively reasonable detainment following a final order of removal has not

7 run.

8 The fact that a noncitizen has been in immigration custody following a final order of

9 removal for a period less than six months does not necessarily foreclose a claim that the detention

10 is unlawful under Zadvydas. See Clark v. Martinez, 543 U.S. 371, 384 (2005) (“Zadvydas did not

11 hold that the statute authorizes detention until it approaches constitutional limits; it held that, since

12 interpreting the statute to authorize indefinite detention (one plausible reading) would approach

13 constitutional limits, the statute should be read (in line with the other plausible reading) to authorize

14 detention only for a period consistent with the purpose of effectuating removal.”) (emphasis in

15 original). “The six-month presumption of reasonability under Zadvydas is ‘just that—a

16 presumption.’” Burunsuzyan v. Noem, No. 5:26-cv-00049-RGK-AGR, 2026 WL 246067, at *5

17 (C.D. Cal. Jan. 27, 2026) (quoting Clark, 543 U.S. at 387).

18 Regardless, it is Petitioner’s burden to provide “good reason to believe that there is no

19 significant likelihood of removal in the reasonably foreseeable future,” after which the government

20 “must respond with evidence sufficient to rebut that showing.” Zadvydas, 533 U.S. at 701. Here,

21 Petitioner’s only argument that there is no significant likelihood of removal in the reasonably

22 foreseeable future is that there is no record evidence the government “contacted the Cuban Embassy

23 to initiate the deportation process, or contacted any other embassy to begin the removal process.”

24 See (Doc. 19). But this argument improperly asks the Court to shift the burden to Respondents to

25 disprove that removal is not likely to occur in the reasonably foreseeable future. Because

26 Petitioner’s post-removal-order detention remains within the presumptively reasonable six-month

27 period under Zadvydas through September 26, 2026, Petitioner bears the burden of proffering

28 affirmative evidence that there is no significant likelihood of removal in the reasonably foreseeable

1 | future. Cf Burunsuzyan, 2026 WL 246067, at *5 (noting evidence in the petitioner’s favor that

2 | immigration and other government officials repeatedly advised the petitioner of its unsuccessful

3 | efforts to obtain travel documents from Syria).

4 Thus, as the six-month period of presumptively reasonable detention has not run and

5 | Petitioner has not met his burden under Zadvydas, the undersigned will recommend that the petition

6 || be denied.

7 WIV. Conclusion and Recommendation

8 Accordingly, IT IS HEREBY RECOMMENDED that:

9 1. The petition for writ of habeas corpus (Doc. 1) be DENIED;

10 2. Respondent’s motion to dismiss (Doc. 8) be DENIED as moot;

11 3. Petitioner’s motions to appoint counsel (Docs. 2, 9) be DENIED as moot; and

12 4. The Clerk of the Court be DIRECTED to close this case.

13 These findings and recommendations will be submitted to the United States District Judge

14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after

15 | being served with these findings and recommendations, the parties may file written objections with

16 | the Court. Any objections filed should be captioned, “Objections to Magistrate Judge’s Findings

17 | and Recommendations” and shall not exceed 15 pages without leave of Court and good cause

18 | shown. The Court will not consider exhibits attached to the Objections. To the extent a party

19 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF

20 | document and page number, when possible, or otherwise reference the exhibit with specificity.

21 | Any pages filed in excess of the 15-page limitation may be disregarded by the District Judge

22 | when reviewing these findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

23 A party's failure to file objections within the specified time may result in the waiver of

24 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

25 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

26 | IT IS SO ORDERED.

27 Dated: _ August 27, 2026 | by

28 UNITED STATES MAGISTRATE JUDGE