Reported / Citable
Background
Massamba Soumare, a Malian citizen in immigration detention, filed a pro se habeas petition under 28 U.S.C. § 2241 challenging the legality of his detention under 8 U.S.C. § 1231. Soumare alleged that his detention was unlawful because he had been re-detained without committing any crime after being previously released on his own recognizance, and that the detention violated his Due Process rights under the standard established in Zadvydas v. Davis, 533 U.S. 678 (2001).
An immigration judge ordered Soumare removed on July 3, 2025. Soumare appealed that removal order to the Board of Immigration Appeals on August 4, 2025, and that appeal remained pending at the time of the petition.
The Court’s Holding
The Magistrate Judge recommended that Soumare’s habeas petition be dismissed without prejudice as premature. The critical issue was that § 1231 and the Zadvydas framework apply only when an alien is subject to a final order of removal. Because Soumare’s removal order remained under appeal to the BIA, it had not yet become final under 8 U.S.C. § 1101(a)(47)(B), which provides that a removal order becomes final only upon (i) the BIA’s affirmation or (ii) expiration of the period to seek BIA review.
The court noted that petitioner’s challenge to detention under § 1231 could not proceed until the removal order became final. The court distinguished between pre-finality detention challenges (governed by §§ 1225 and 1226) and post-finality detention challenges (governed by § 1231). Because Soumare’s petition implicated only § 1231, and his removal order was not yet final, the petition was premature. The court cited Agyei-Kodie v. Holder, 418 F. App’x 317 (5th Cir. 2011), which held that six months must elapse following the date a removal order becomes final before a habeas petition challenging Zadvydas detention can succeed.
Key Takeaways
- Habeas petitions challenging immigration detention under 8 U.S.C. § 1231 must wait until a removal order becomes final; appeals to the BIA keep the order non-final and render such challenges premature.
- The Zadvydas framework—which requires release if removal is unlikely in the reasonably foreseeable future—does not apply until a removal order is final.
- Dismissal without prejudice allows the petitioner to refile once the removal order becomes final and the six-month period has elapsed.
Why It Matters
This decision clarifies the procedural requirements for habeas challenges to immigration detention and reinforces that the timing of such challenges is jurisdictionally significant. Petitioners must understand that merely having a removal order pending appeal means any § 1231 detention challenge will fail as premature, even if they have strong arguments about the likelihood of removal. The decision establishes that premature dismissal without prejudice is the appropriate remedy, allowing the petitioner to proceed once the order is final.
For practitioners, this underscores the importance of monitoring BIA appeal status and timing habeas filings accordingly. The decision also demonstrates the Fifth Circuit’s consistent application of jurisdictional prerequisites to Zadvydas challenges, requiring finality of removal orders as a threshold matter before substantive Due Process arguments can be heard.