Unreported / Non-Citable
Background
Javier Perez is an immigration detainee who filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 on October 13, 2026, challenging his continued detention at the Mesa Verde ICE Processing Facility. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On October 15, 2026, the magistrate judge issued an order requiring the respondent to show cause why the writ should not be granted, and the respondent filed responses on October 18 and October 20, 2026.
Perez was ordered removed to Cuba on March 9, 2026, and that order became final on April 8, 2026. His presumptively reasonable detention period expired on October 5, 2026. The respondent argued that Perez remained subject to detention under 8 U.S.C. § 1231(a)(6) because he had not carried his burden to show that his removal was not likely under Zadvydas v. Davis, 533 U.S. 678 (2001). However, the respondent made no argument or showing about their attempts to remove Perez to Cuba or a third-party country.
The Court’s Holding
The magistrate judge disagreed with the respondent's contention that Perez had not met his burden, adopting the reasoning set forth in Kozlova v. Warden of the California City Det. Ctr., No. 1:26-CV-0499 DJC AC, 2026 WL 1785250 (E.D. Cal. June 22, 2026). Under that framework, ICE's failure to obtain travel documents during detention, combined with the absence of any indication that the removal country or another country has agreed to accept the petitioner, is sufficient to meet the petitioner's initial burden under Zadvydas. The magistrate judge found that Perez had been detained for over six months with no indication that any country was willing to accept him, shifting the burden to the respondent to rebut this showing.
To rebut, respondents must provide evidence showing why removal is significantly likely in the reasonably foreseeable future, including evidence that removal to the country of removal is common, that a repatriation agreement exists, that the noncitizen meets considerations the removal country's government might weigh in issuing travel documents, or that a new request for travel documents redresses prior issues. The evidence must also provide insight regarding the expected timing for removal. The magistrate judge concluded that the respondent had not met this burden, as they provided no evidence of their efforts to remove Perez, and the only record evidence indicated that no travel documents had been obtained.
The magistrate judge also noted that the respondent provided no evidence indicating compliance with the notice and custody determination requirements set by 8 C.F.R. § 241.4 for extending a detainee's detention beyond the initial 90-day mandatory detention period following entry of a final removal order. Accordingly, the magistrate judge concluded that Perez's continued detention under 8 U.S.C. § 1231(a)(6) violates his due process rights and recommended his immediate release under appropriate conditions of supervision.
Key Takeaways
- The magistrate judge recommends granting the habeas petition and ordering the respondent to immediately release Perez from custody subject to appropriate conditions of supervision.
- The recommendation further asks that the respondent be enjoined and restrained from re-detaining Perez for any purpose, absent exigent circumstances, without providing him notice and a pre-detention hearing before an immigration judge.
- The decision relies on the burden-shifting framework from Kozlova, under which a petitioner's prolonged detention without travel documents or any country's agreement to accept him satisfies the initial Zadvydas burden, shifting the burden to the government to show removal is significantly likely in the reasonably foreseeable future.
- The respondent failed to provide any evidence of efforts to remove Perez, and the only record evidence showed that no travel documents had been obtained for him.
- Because this is a findings and recommendations rather than a final order, a party may file written objections within five days of service, and the recommendation is not immediately appealable to the Ninth Circuit.
Why It Matters
This recommendation reinforces the growing body of Eastern District of California case law applying the Kozlova burden-shifting framework to Zadvydas claims, holding the government to its obligation to produce concrete evidence of removal likelihood once a detainee has made an initial showing. It underscores that prolonged immigration detention without any demonstrated progress toward removal cannot be sustained under 8 U.S.C. § 1231(a)(6).
The recommendation also highlights the importance of the government's compliance with 8 C.F.R. § 241.4 custody determination requirements when extending detention beyond the 90-day removal period, and it confirms that conditional supervised release remains the standard remedy for successful Zadvydas claims. The expedited five-day objection period reflects the urgency of the petitioner's continued detention.