On 15 December 2022 an immigration judge ordered the petitioner removed but granted withholding of removal to Mexico, the only country of which he is a citizen. During the 90-day removal period ICE asked Guatemala, the Dominican Republic and Honduras to accept him; Guatemala and the Dominican Republic declined and Honduras never responded, and he was released on an order of supervision on 15 March 2023. On 28 March 2025 ICE re-detained him at a regularly scheduled check-in in Newark; the respondents alleged that revocation was warranted because he “failed to provide written travel document requests or acceptance letters from alternate countries to facilitate his removal.”
His petition was filed on 2 April 2025 while he was in transit to Texas and ICE had not told his lawyers where he was. The court applied the unknown custodian exception, finding that “his custodian was, for all practical purposes, unknown at the time of filing. This not only deprived Petitioner of meaningful access to counsel and the courts, but also rendered any attempt to seek habeas relief during transit impossible if the Court applied the district of confinement and immediate custodian rules.”
The court rejected the argument that a challenge before six months of detention is premature, noting that “a detainee might be able to show that he is barred from returning to his country of origin and that no other country is willing to accept him.” It recorded that ICE made no inquiry to any country between March 2023 and the re-detention, and that “Respondents offer no explanation for the lack of any efforts whatsoever to remove Petitioner during this two-year period of time.” ICE did not ask Canada, Guatemala and Honduras until 12 May 2025; Guatemala replied that it had “not received instructions about accepting migrants from other nationalities,” and by the 9 June 2025 hearing all three had refused. ICE conceded that “Petitioner’s removal is not, at present, imminent.”
The court also considered evidence that third-country removal of people granted withholding is rare, finding that “the data nevertheless supports the general inference that removal for this particular class of detainees is substantially more difficult.” It held that the petitioner “has sufficiently established that his removal is not reasonably foreseeable and that his detention has exceeded the ‘period reasonably necessary to secure [his] removal,’” overcoming the presumption for his 164-day detention. It rejected as lacking credibility a danger argument first raised at the hearing, and removed a location monitoring condition from the proposed release order.