Unreported / Non-Citable
Background
Kefah Shahoud, a pro se immigration detainee and a native and citizen of Syria, entered the United States without inspection on January 7, 2025, and was encountered by Border Patrol near Otay Mesa, California. Because he was apprehended within 14 days of entry and within 100 miles of the border, he was placed in expedited removal proceedings under 8 U.S.C. § 1225(b)(1). After an asylum officer found a credible fear of persecution or torture, USCIS issued a Notice to Appear on February 28, 2025, vacating the expedited removal order and charging him as removable. On September 8, 2025, an Immigration Judge denied asylum, withholding of removal and Convention Against Torture protection, and ordered him removed to Syria. The Board of Immigration Appeals dismissed his appeal on June 30, 2026. He has been in custody since his apprehension, and his Ninth Circuit petition for review, docketed August 11, 2026, remains pending.
Shahoud filed a petition under 28 U.S.C. § 2241 on March 6, 2026. Liberally construed, it alleged that 13 months of detention without a bond hearing violated the Fifth Amendment's Due Process Clause, that detention was illegal because no country would accept him in the reasonably foreseeable future, and that detention conditions harmed his health. He sought immediate release. Respondents moved to dismiss, first invoking mandatory detention under § 1225(b)(1)(B)(ii). They later amended the motion to argue that detention rests on § 1231(a)(2) because the removal order became final on June 30, 2026. Shahoud moved for a preliminary injunction and did not reply to the amended motion. After reviewing the Ninth Circuit docket, the court ordered supplemental briefing on the status of the removal proceedings.
The Court’s Holding
These are findings and recommendations from a magistrate judge, not a final judgment. The assigned district judge has not yet ruled, and the parties had 14 days to object. The magistrate judge recommends granting the motion to dismiss and denying the petition without prejudice. Under 8 C.F.R. § 1241.1(a), an Immigration Judge's removal order becomes final when the BIA dismisses the appeal, so the order became final on June 30, 2026. Section 1231(a)(2) required detention during the 90-day removal period, which the findings calculate as running from June 30 to September 30, 2026. After that period, the findings treat § 1231(a)(6) as the basis for detention, and under Zadvydas v. Davis six months is a presumptively reasonable period. Because fewer than six months had passed since June 30, 2026, the findings conclude that the Zadvydas claim is premature.
The findings also recommend denying as moot the preliminary injunction motion (Doc. 14) and a motion to respond (Doc. 11). Dismissal is without prejudice to a renewed Zadvydas prolonged-detention claim later, if appropriate. In a footnote, the court stated that any challenge to conditions of confinement is not cognizable on habeas review, citing Doe v. Garland. The findings do not separately analyze the bond-hearing due process theory or the argument that no country will accept Shahoud. They do not address the merits of the removal order, which is before the Ninth Circuit, and they do not say whether removal is stayed.
Key Takeaways
- The findings treat an Immigration Judge's removal order as administratively final when the BIA dismisses the appeal, even while a petition for review is pending in the Ninth Circuit.
- During the 90-day removal period, the findings hold that detention is required by § 1231(a)(2). Afterward, they treat § 1231(a)(6) as the source of authority for detention.
- A Zadvydas claim is premature, in this court's view, if fewer than six months have passed since the removal order became final.
- The footnote states that habeas relief reaches the fact of confinement rather than conditions of confinement, so the conditions allegations were not a basis for habeas relief.
- Dismissal without prejudice would let Shahoud bring a new prolonged-detention claim later, but these recommendations do not decide how any such claim would come out.
Why It Matters
This is an unpublished recommendation from a district court magistrate judge, so it has no precedential weight and is not binding even within the Eastern District of California. Its practical value is as an example of how one court handled a detainee who first challenged detention under the expedited-removal statute and then faced a final order that changed the governing detention provision.
The findings measure the Zadvydas six-month period from the date the BIA made the removal order final, rather than from the end of the 90-day removal period. They leave open what happens if the district judge adopts them, what the Ninth Circuit does with the pending petition for review, and whether any renewed claim would succeed. A renewed petition would depend on the facts at that later time, including whether removal to Syria is reasonably foreseeable.