Reported / Citable
Background
Johana Josefina Andrade Barnos, a Venezuelan national in immigration custody, filed a pro se habeas petition under 28 U.S.C. § 2241 seeking release from ICE detention. She alleged that she was detained under 8 U.S.C. § 1231(a) beyond the period permitted by statute and the Constitution.
An immigration judge ordered Barnos removed on June 16, 2026. Because she did not appeal to the Board of Immigration Appeals, the magistrate judge determined that the order became administratively final on July 16, 2026—30 days after the removal decision. Barnos had filed her habeas petition on July 6, before the removal order became final.
The Court’s Holding
Magistrate Judge R. Rutherford recommended that the district judge summarily dismiss the petition without prejudice as premature. Under Zadvydas v. Davis, post-removal-order detention is presumptively reasonable for six months, after which a detainee may obtain relief by providing good reason to believe that removal is not significantly likely in the reasonably foreseeable future.
Because Barnos’s removal order became administratively final only on July 16, 2026, she had not been detained beyond the presumptively reasonable six-month period. The recommendation therefore concluded that her challenge was not yet ripe for habeas relief. This filing was a magistrate judge’s recommendation, not a final judgment by the district judge.
Key Takeaways
- A challenge to post-removal-order detention generally is premature before the presumptively reasonable six-month period recognized in Zadvydas has elapsed.
- When no appeal is taken, the removal period begins when the immigration judge’s removal order becomes administratively final.
- The recommended dismissal was without prejudice, leaving Barnos able to pursue a later challenge if her detention continues and she can make the required showing.
Why It Matters
The recommendation underscores that the timing of a § 2241 petition is critical in immigration-detention cases. A detainee ordinarily cannot establish a viable Zadvydas claim merely because the initial 90-day statutory removal period has passed—or, as here, before post-order detention has meaningfully begun.
Practitioners should identify the precise date the removal order became administratively final and calculate the six-month period from the legally applicable starting point before filing a habeas challenge.