Background
Gustavo Edgardo Castro Rivera, a native of El Salvador, entered the United States as an unaccompanied minor after escaping assassination attempts and torture. He was released from Office of Refugee Resettlement custody in October 2015 and was granted Special Immigrant Juvenile Status in 2017. On March 5, 2021, an immigration judge ordered him removed to El Salvador but simultaneously granted deferral of removal under the Convention Against Torture, meaning he could not legally be sent back to his home country. On July 31, 2026, immigration authorities arrested and detained him. He filed a pro se habeas corpus petition under 28 U.S.C. § 2241, after which the court referred the matter to the Federal Public Defender, and counsel entered an appearance on his behalf.
On September 1, 2026, respondents filed a Notice of Intended Removal stating that ICE had scheduled petitioner's removal to Mexico on or after September 5, 2026. Petitioner, through counsel, filed an Ex Parte Application for a Temporary Restraining Order seeking to prohibit his removal while the petition was pending and to bar removal to Mexico or any third country without notice and a meaningful opportunity to be heard. Petitioner alleged that his continued detention violated his due process rights under the Fifth Amendment and Zadvydas v. Davis, and that respondents' third-country removal policy was unconstitutional.
The Court’s Holding
The court first addressed subject matter jurisdiction, rejecting respondents' arguments that 8 U.S.C. § 1252(g), §§ 1252(a)(5) and (b)(9), and the Foreign Affairs Reform and Restructuring Act barred review. The court reasoned that petitioner's claims did not challenge the decision to commence, adjudicate, or execute a removal order, but rather challenged the lawfulness of his continued detention and the process required for third-country removal, placing them outside the scope of those jurisdictional bars.
On the merits, the court found that petitioner had rebutted the six-month presumption of reasonable detention under Zadvydas because his CAT deferral created a legal impediment to removal to El Salvador, the only country to which he had a claim to citizenship. The burden shifted to respondents to show removal was likely, and they failed to meet it, offering only a bare identification of Mexico as a potential removal destination without evidence of feasibility, such as a repatriation agreement or travel documents. The court concluded that continued detention was no longer authorized under § 1231(a)(6) and violated due process.
The court also found merit in petitioner's claim that he was entitled to notice and a meaningful opportunity to be heard before any third-country removal. It ordered respondents to release petitioner forthwith under reasonable conditions of supervision, file a notice of compliance within three days, and refrain from re-detaining him absent seven days' individualized notice and a pre-deprivation bond hearing. The court further barred any third-country removal without written notice to petitioner and his counsel and a meaningful opportunity to seek fear-based protections.
Key Takeaways
- A noncitizen with CAT deferral can challenge continued detention before reaching the six-month Zadvydas period because the six-month presumption is rebuttable when a legal impediment to removal exists.
- The government cannot meet its burden to show removal is reasonably foreseeable by merely identifying a potential third country without evidence of feasibility such as acceptance by that country or travel documents.
- Due process requires written notice and a meaningful opportunity to raise fear-based claims before the government can remove a noncitizen to a third country.
- Jurisdictional bars under 8 U.S.C. § 1252(g), §§ 1252(a)(5) and (b)(9), and FARRA do not preclude habeas review of detention challenges that are independent of challenges to removal orders.
- A court may order release with conditions of supervision and impose procedural safeguards on any future re-detention, including requiring a pre-deprivation bond hearing before a neutral decisionmaker.
Why It Matters
This decision reinforces the growing body of case law holding that prolonged immigration detention is unconstitutional when removal is not reasonably foreseeable, particularly where a legal impediment such as CAT deferral exists. It also underscores that due process protections apply to third-country removals, requiring the government to provide notice and an opportunity to raise fear-based claims before effectuating such removals.
The ruling is notable for its detailed procedural safeguards on any future re-detention, including a requirement that the government bear the burden at a bond hearing of proving flight risk or danger to the community. It adds to the consensus among district courts that ICE's third-country removal policy, as implemented, does not comport with due process requirements.
Read the full opinion (PDF) · Court docket