Unreported / Non-Citable
Background
Adriano Barcelos Oliveira, a Brazilian citizen proceeding pro se, filed a habeas petition under 28 U.S.C. § 2241 challenging his continued detention in federal immigration custody. He later requested permission to amend the petition.
An immigration judge ordered Oliveira removed to Brazil on May 21, 2026. He did not appeal by the June 22 deadline, so the removal order became administratively final when the time for appeal expired. Because Oliveira did not dispute the order’s finality, the court determined that 8 U.S.C. § 1231 governed his detention.
The Court’s Holding
The court dismissed the petition without prejudice as premature. Section 1231 mandates detention during the 90-day removal period, which generally begins when the removal order becomes administratively final. Oliveira filed his challenge before that statutory period had expired.
The court explained that Zadvydas v. Davis recognizes a six-month presumption that post-removal-order detention is reasonable, while Section 1231 requires detention during at least the initial 90-day removal period. Because Oliveira’s detention had not extended beyond either period, the court did not need to decide whether removal was significantly likely in the reasonably foreseeable future.
The court also denied Oliveira’s request for leave to amend as futile. It advised that he could file a new petition if he had not been removed after the removal period expired.
Key Takeaways
- Section 1231 governed because Oliveira’s removal order was administratively final and he did not contest its finality.
- A challenge to continued detention was premature while Oliveira remained within the mandatory 90-day removal period.
- The dismissal was without prejudice, allowing Oliveira to file again if he remained detained after the removal period expired.
Why It Matters
The decision underscores that a post-removal-order detention challenge ordinarily will not proceed before the mandatory 90-day removal period has run. At that stage, the court need not undertake the Zadvydas inquiry into whether removal is significantly likely in the reasonably foreseeable future.
For detained noncitizens and counsel, the timing of administrative finality is critical because it determines when the statutory removal period begins and whether a habeas challenge is ripe.