Unreported / Non-Citable
Background
Emmanuel Ortiz Alvarado, a citizen of Mexico, first entered the United States in 2015 and was immediately detained by Customs and Border Protection. He was ordered removed through expedited removal and physically removed to Mexico the next day. At some later, unspecified date, Ortiz Alvarado reentered the United States without being inspected or paroled.
On June 19, 2026, Immigration and Customs Enforcement located him and reinstated his 2015 removal order under the reinstatement-of-removal statute. Ortiz Alvarado then filed a habeas petition under 28 U.S.C. § 2241, arguing that holding him without an individualized bond hearing violated due process. The government opposed the petition, arguing that his detention was mandatory under the post-removal-order detention statute, 8 U.S.C. § 1231, because his prior removal order had been reinstated.
The Court’s Holding
The court denied the petition. It explained that once a removal order is reinstated under 8 U.S.C. § 1231(a)(5), it is treated as reinstated from its original date, and the government may remove the noncitizen under that order at any time. During the statutory 90-day removal period that follows, detention is mandatory under § 1231(a)(2). Even after that period ends, the government may continue to detain the person under § 1231(a)(6).
Under Zadvydas v. Davis, post-removal-period detention is presumptively reasonable for up to six months; only after that point does the burden shift to the government to show removal remains likely, or else release the detainee. Because Ortiz Alvarado’s removal order had been reinstated only a little over three months before the ruling — well short of six months — the court held that any Zadvydas challenge to the length of his detention was premature. The court also rejected, for lack of any developed argument, his suggestion that a pending visa application undermined the finality of his removal order. With a final, reinstated removal order in place and the presumptively reasonable period not yet exhausted, the court found his detention lawful and denied the petition, while also lifting a prior order that had barred his transfer out of the district.
Key Takeaways
- Reinstatement of a prior removal order under 8 U.S.C. § 1231(a)(5) revives that order from its original date and authorizes detention under the post-removal-order framework, not the pending-proceedings statute.
- The six-month Zadvydas presumption of reasonableness runs from the reinstatement (or other triggering event), not from the noncitizen’s original entry or first removal years earlier.
- A due-process challenge to prolonged detention filed before the six-month mark is likely to be denied as premature, regardless of how long ago the underlying removal order originally issued.
- Simply mentioning a pending visa application, without developed legal argument about why it undermines the removal order’s finality, will not defeat the government’s detention authority.
Why It Matters
Read together with other recent Eastern District rulings on prolonged detention, this order shows how timing drives outcomes in immigration habeas litigation: a petitioner who files before the six-month mark will almost always lose on a Zadvydas theory, no matter how sympathetic the broader facts, while one who waits past that point — and can show the government has made no real progress — stands a better chance. For practitioners, it underscores the importance of counseling detained clients on when, not just whether, to file a prolonged-detention habeas petition.