Unreported / Non-Citable
Background
Ahmed El Haibe Mohamed Taher, a noncitizen held in immigration detention, filed a petition for a writ of habeas corpus in the U.S. District Court for the Southern District of California, asking the court to order his release from custody. On March 13, 2026, he was ordered removed from the United States, and after further litigation he sought relief from the Board of Immigration Appeals. On September 23, 2026, the BIA denied his appeal, which under Johnson v. Guzman Chavez, 594 U.S. 523 (2021), made his removal order administratively final.
That BIA ruling triggered the statutory "removal period"—a 90-day window under 8 U.S.C. § 1231(a)(1)(A) during which the government "shall detain the alien" while it seeks his removal. When the court issued its order on November 5, 2026, only 43 days of that 90-day period had elapsed, even though Taher had already been in immigration custody for seven months. The court stressed that § 1231 concerns only custodial time after the removal order became administratively final, so any pre-removal-order custody does not count toward the 90-day clock.
The petition also went beyond the detention claim: it directly challenged the merits of the immigration judge's findings, arguing that the immigration judge and the agency failed to conduct a meaningful inquiry into his specific, individualized fear. The court addressed that challenge separately, applying the jurisdictional limits that govern habeas review of immigration proceedings.
The Court’s Holding
The court denied the habeas petition. Because Taher's removal period had begun only 43 days earlier, he remained inside the 90-day window of statutorily mandated detention. His detention was therefore not merely lawful but required by statute, and he did not qualify for release—regardless of the seven months he had already spent in custody. The court relied on 8 U.S.C. § 1231(a)(1)(A) and Johnson v. Guzman Chavez, 594 U.S. at 533–34, which explain that the removal period begins when the removal order becomes administratively final.
Separately, to the extent the petition directly challenged the merits of the immigration judge's findings, the court held that it lacked jurisdiction over those claims. It cited Yousefi v. LaRose and Guerrier v. Garland, noting that binding precedent would seem to foreclose a petitioner's request for review of an immigration judge's negative credible fear determination.
In sum, the court denied Mohamed Taher's habeas petition in full, vacated the November 9, 2026 hearing, and directed the Clerk to issue a judgment and close the case—a final disposition of the petition rather than an interim ruling.
Key Takeaways
- The 90-day removal period under 8 U.S.C. § 1231 begins only when a removal order becomes administratively final, such as when the BIA denies an appeal.
- Time spent in immigration custody before the removal order becomes final does not count toward the 90-day removal period.
- Because only 43 days had passed since the removal period began, Taher's detention was statutorily mandated and he did not qualify for habeas release.
- District courts lack jurisdiction over habeas claims that directly challenge the merits of an immigration judge's findings, including negative credible fear determinations.
- The court vacated the scheduled hearing and ordered the case closed, making the denial a final disposition of the petition.
Why It Matters
This order illustrates how the statutory removal-period framework limits habeas relief for noncitizens detained after a final removal order. Even a lengthy total stay in custody—here, seven months—will not support release while the 90-day post-final-order window is still running, because the statute mandates detention during that period and excludes pre-removal custody from the calculation.
The decision also reinforces the jurisdictional boundary between challenges to detention and challenges to the underlying immigration proceedings. A petitioner who uses habeas to attack the merits of an immigration judge's findings, including a credible fear determination, faces dismissal for lack of jurisdiction, leaving those issues to the review channels Congress provided. By vacating the hearing and directing entry of judgment, the court confirmed that its denial was a final disposition.