Unreported / Non-Citable
Background
Petitioner Jack Kevin Martinez Rojas, a native and citizen of Peru, entered the United States near San Luis, Arizona, on or about September 20, 2022, and was released under the Alternative to Detention Program. USCIS issued a Notice to Appear charging him as removable for lacking valid entry documents and entering without inspection. On February 23, 2026, Petitioner was arrested for allegedly engaging in unlawful sexual activity with a minor and was encountered at Broward County Jail the following day. ICE took him into custody on February 24, 2026, pending removal proceedings.
Petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2241 on September 14, 2026, alleging his arrest and continued detention violated the Fifth Amendment Due Process Clause and the INA. On September 22, 2026, an Immigration Judge denied Petitioner’s applications for asylum, withholding of removal, and CAT protection, and ordered him removed to Peru. Petitioner reserved the right to appeal but waived that right through counsel on September 30, 2026. He has remained in ICE custody since February 24, 2026.
The Court’s Holding
The Magistrate Judge recommends denying the petition without prejudice. The court concludes it has jurisdiction under 28 U.S.C. § 2241(c)(3) because the challenge to detention is sufficiently independent of the merits of the removal order. The removal order became administratively final on September 30, 2026, when Petitioner waived his right to appeal, pursuant to 8 C.F.R. § 1003.39 and 8 C.F.R. § 1241.1(b).
Consequently, Petitioner’s detention is governed by 8 U.S.C. § 1231(a), which mandates detention during the 90-day removal period. As the petition was adjudicated on October 28, 2026, Petitioner remains within this mandatory detention window. The court declines to address Respondents’ alternative argument for mandatory detention under 8 U.S.C. § 1226(c)(1)(E). The denial is without prejudice to Petitioner’s ability to challenge prolonged detention at a later date if removal is not effected within the statutory period.
Key Takeaways
- A noncitizen’s waiver of appeal before the BIA renders the removal order administratively final immediately, triggering the 90-day removal period under 8 U.S.C. § 1231(a).
- During the 90-day removal period, detention is mandatory under § 1231(a)(2), and a habeas challenge to the fact of detention during this period will fail.
- The court may take judicial notice of the EOIR case information website to confirm the absence of a pending appeal.
- A denial without prejudice preserves the detainee’s right to file a subsequent habeas petition challenging prolonged detention if removal does not occur within the statutory 90-day period.
- The court need not reach alternative grounds for mandatory detention (e.g., § 1226(c)) if detention is authorized under § 1231(a).
Why It Matters
This decision illustrates the procedural posture of post-final-order detention under Zadvydas v. Davis and 8 U.S.C. § 1231(a).
It confirms that a voluntary waiver of appeal accelerates the finality of a removal order and the commencement of the 90-day removal period, during which the government enjoys a presumptively reasonable period of mandatory detention. The ruling reinforces that habeas corpus remains available to challenge detention that exceeds the statutory removal period or becomes otherwise unreasonable, but not to challenge the fact of detention within the initial 90-day window. The opinion also demonstrates the court’s reliance on administrative records and official government websites to verify the finality of removal orders and the absence of pending appeals.