Reported / Citable
Background
Jan Luis Antillano Prieto, a Venezuelan national proceeding pro se, filed a habeas petition under 28 U.S.C. § 2241 challenging his detention by Immigration and Customs Enforcement. He alleged that ICE had detained him since September 9, 2025, after previously releasing him on his own recognizance.
An immigration judge ordered Prieto removed on December 3, 2025. Prieto appealed to the Board of Immigration Appeals, and that appeal remained pending. He nevertheless argued that his detention was unlawful under 8 U.S.C. § 1231(a) and Zadvydas v. Davis because it had exceeded six months and his removal was not significantly likely in the reasonably foreseeable future. He sought release from custody.
The Court’s Holding
Magistrate Judge R. Rutherford recommended that the district judge summarily dismiss the petition without prejudice as premature. The magistrate judge explained that § 1231 and the Zadvydas framework govern detention following a final removal order, including detention extending beyond the statutory removal period.
Prieto’s removal order was not yet final because his timely BIA appeal remained pending. Accordingly, his detention was not governed by § 1231, the statutory removal period had not begun, and he could not yet pursue a Zadvydas challenge to post-removal-order detention.
The recommendation did not decide whether Prieto could challenge his detention under a statute governing detention before a removal order becomes final. Although his petition cited cases involving 8 U.S.C. §§ 1225 and 1226, it did not invoke either provision, and the magistrate judge declined to construct an unpleaded legal theory for him.
Key Takeaways
- A Zadvydas challenge under § 1231 is premature while a timely BIA appeal keeps the removal order from becoming final.
- The six-month period discussed in Zadvydas does not run merely from the date ICE detention began; the post-removal-order framework must first apply.
- The magistrate judge recommended dismissal without prejudice, leaving Prieto free to pursue an appropriate claim later or under a properly pleaded pre-final-removal-order theory.
Why It Matters
The recommendation underscores that the statutory basis and procedural stage of immigration detention determine the proper habeas analysis. A noncitizen awaiting a BIA decision cannot obtain relief by applying the post-final-order standards of § 1231 and Zadvydas to detention occurring before the removal order becomes final.
It also illustrates the limits of liberal construction for pro se petitions: courts may interpret pleaded claims generously, but they need not create a distinct challenge under §§ 1225 or 1226 when the petition does not assert one.