Reported / Citable
Background
Dionicio Ortega-Pena is a Mexican citizen who entered the United States in 2009. In 2019, Immigration and Customs Enforcement (ICE) arrested him and initiated removal proceedings. An immigration judge granted him withholding of removal to Mexico under the Immigration and Nationality Act, making his home country an impermissible destination. Following this grant in August 2019, ICE released Ortega-Pena on an Order of Supervision because the government determined there was “no significant likelihood of removal in the reasonably foreseeable future.”
For more than six years, Ortega-Pena remained on supervised release without incident. However, on March 2, 2026, ICE re-detained him at a routine check-in and transferred him to an immigration detention facility in Pearsall, Texas. The government subsequently requested Honduras and El Salvador to accept Ortega-Pena for removal; both countries declined in April and May 2026. At the evidentiary hearing in June 2026, the government could not identify any additional countries being actively pursued, nor could it provide concrete evidence of diplomatic efforts to locate an accepting third country.
Ortega-Pena petitioned for a writ of habeas corpus, arguing that his continued detention violated his due process rights under Zadvydas v. Davis, 533 U.S. 678 (2001), because removal was no longer foreseeable in the reasonably foreseeable future.
The Court’s Holding
The magistrate judge recommended granting Ortega-Pena’s petition in part and ordering his release from custody. Under Zadvydas, detention beyond the initial 90-day removal period is constitutional only if there is a likelihood of removal in the reasonably foreseeable future. While detention within six months is “presumptively reasonable,” that presumption is not categorical, and a detainee may establish that removal is not foreseeable even before six months elapse.
The court found that Ortega-Pena carried his burden by a preponderance of the evidence. Because his withholding of removal to Mexico bars removal to his home country, he can only be removed to an accepting third country. After more than six years of having a final removal order in place, and nearly four months of renewed detention, the government had obtained rejections from Honduras and El Salvador and had not actively pursued any other third country. The court emphasized that even pending requests to other countries, without diplomatic assurances or travel documents, would be insufficient to demonstrate likelihood of removal.
The court found the government’s rebuttal evidence inadequate. The government offered only speculation that the Department of State was seeking to identify accepting countries but could not specify when these efforts began, how long they had been ongoing, or what percentage of similarly situated Mexican nationals had been successfully removed to third countries. The government conceded at the hearing that no country had accepted Ortega-Pena and that it was not actively seeking removal to any specific third country. Accordingly, removal was not significantly likely in the reasonably foreseeable future, and continued detention violated Ortega-Pena’s due process rights.
Key Takeaways
- Detention for immigration purposes must be supported by concrete progress toward removal, not mere speculation or legal authority alone.
- When an alien has withholding of removal to his home country, the government must actively identify and secure acceptance from a third country; passive diplomatic efforts are insufficient to justify prolonged detention.
- Rebuttal evidence to a habeas petitioner’s showing must include specific facts about removal prospects—percentage of successful removals, timeline of diplomatic efforts, and identified target countries—not conclusory assertions.
- A detainee may prevail on a Zadvydas claim even within the “presumptively reasonable” six-month window if he demonstrates no significant likelihood of removal in the foreseeable future.
- Release conditions must be no more restrictive than those previously imposed.
Why It Matters
This decision applies the Supreme Court’s Zadvydas framework to a common immigration scenario: a detainee with withholding of removal who cannot be deported to his home country and for whom the government has failed to identify an accepting third country. The opinion reinforces that detention requires active, fruitful removal efforts, not just legal custody authority. It shifts the burden onto the government to provide concrete, specific evidence of removal prospects rather than relying on general assertions about ongoing diplomatic outreach.
The ruling protects due process rights for immigration detainees by requiring courts to scrutinize whether removal is genuinely foreseeable. It may have broad implications for other Mexican nationals with withholding of removal who are similarly detained, as well as detainees from other countries where third-country removal is the only viable option. The decision underscores that indefinite detention without measurable progress toward removal violates constitutional protections, regardless of whether six months have elapsed.