BOZA ROSALES v. BLANCHE ICE (2026)

ORDER

THIS MATTER comes before the Court on an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, docket no. 16. The Court denied without prejudice petitioner's original habeas petition, docket no. 3, which was brought pro se. See Order (docket no. 14). Since then, the attorney appointed to represent petitioner has filed an amended habeas petition, docket no. 16. Having reviewed all papers filed in support of, and in opposition to, the amended habeas petition, as well as the balance of the record in this matter, the Court enters the following Order.

Background

Petitioner Fernieri Boza-Rosales is a citizen of the Republic of Cuba. Am. Pet. at 7 (docket no. 16). He fled Cuba after experiencing persecution. Id. In November 2019, petitioner entered the United States from Mexico, was detained, and was then sent back to Mexico pursuant to Migrant Protection Protocols (“MPP”). See Soraghan Decl. at ¶¶ 5–6 (docket no. 9); see also Ex. 1 to Van Daley Decl. (docket no. 10-1); Am. Pet. at 7 (docket no. 16). Under MPP, also known as the “Remain in Mexico” policy, which was adopted in 2019, essentially abandoned by the Biden administration, resurrected in January 2025, and then partially stayed pending further judicial proceedings, noncitizens arriving from a foreign territory contiguous to the United States were returned to such territory pending a proceeding under Immigration and Nationality Act (“INA”) § 240, codified as 8 U.S.C. § 1229a. See Immigrant Defenders Law Ctr. v. Noem, 145 F.4th 972, 979–80 & 996 (9th Cir. 2025); see also 8 U.S.C. § 1225(b)(2)(C).

In December 2019, and again in January 2020, petitioner re-entered the United States and was sent back to Mexico. Soraghan Decl. at ¶ 7 (docket no. 9); Ex. 2 to Van Daley Decl. (docket no. 10-2). In February 2020, petitioner did not appear for a hearing in El Paso, Texas, and the immigration judge issued a decision in absentia, ordering him removed to Cuba. Ex. 3 to Van Daley Decl. (docket no. 10-3). The record does not indicate whether petitioner was even in the United States on the date of the immigration hearing. In late 2021, however, petitioner reported to an immigration station near the southern border to attempt to address his case. See Am. Pet. at 9 (docket no. 16). He was briefly detained and released pursuant to an Order of Supervision (“OSUP”). See id.; see also Soraghan Decl. at ¶ 9 (docket no. 9).

In March 2022 and December 2022, petitioner was arrested in Dallas, Texas, for “low-level” criminal offenses. See Am. Pet. at 9 (docket no. 16); Soraghan Decl. at ¶¶ 4(a)&(b) (docket no. 9). After serving time at the Dallas County Jail for those crimes, petitioner was encountered and detained by agents with ICE's Office of Enforcement and Removal Operations (“ERO”), and then released on September 29, 2023, on another OSUP. Soraghan Decl. at ¶¶ 4(a), 4(b), & 10 (docket no. 9). In 2024, petitioner was convicted of additional low-level offenses in Houston and Brazoria County, Texas. See id. at ¶¶ 4(c)&(d). In late April 2025, after completing a sentence at the Bell County Jail for failing to identify himself and related charges, petitioner was detained by ICE ERO agents and eventually transferred to the Northwest ICE Processing Center (“NWIPC”).² See id. at ¶ 11; Ex. 4 to Van Daley Decl. (docket no. 10-4); see also Am. Pet. at 9 (docket no. 16). On October 17, 2025, the government of Cuba refused to repatriate petitioner. Soraghan Decl. at ¶ 15 (docket no. 9). Petitioner has now been in ICE's custody for over a year.

Discussion

After a removal order becomes final, ICE is authorized to detain a noncitizen, but not indefinitely. See Zadvydas v. Davis, 533 U.S. 678, 698–99 (2001); see also 8 U.S.C. § 1231(a). If, after the presumptively reasonable six-month period following entry of a final removal order, the individual at issue cannot be removed from the United States, the noncitizen is entitled to habeas relief if (i) he or she provides “good reason to believe” that “no significant likelihood” exists of “removal in the reasonably foreseeable future,” and (ii) the habeas respondent fails to rebut this contention. See Zadvydas, 533 U.S. at 701. In this matter, the presumptively reasonable six-month post-removal-order period has expired; subsequent to an order of removal becoming final, petitioner has been in the NWIPC for over a year. Moreover, petitioner has made the requisite showing, and respondents do not dispute, that no significant likelihood exists of petitioner's removal to Cuba in the reasonably foreseeable future.

On petitioner's behalf, appointed counsel asks the Court to (i) order petitioner's release from custody, (ii) place certain conditions on any re-detention of petitioner, including respondents obtaining valid travel documents in advance of taking petitioner into custody, and (iii) enjoin respondents from removing petitioner to a country other than Cuba without notice and a meaningful opportunity to respond in reopened removal proceedings. See Am. Pet. at 40–41 (docket no. 16). In response to the amended habeas petition, respondents have not offered any additional exhibit or declaration concerning efforts to remove petitioner, and they repeat an argument previously rejected by the Court, namely that petitioner is not entitled to habeas relief because he is not cooperating with efforts to remove him to a third country. See Return to Am. Pet. at 2 & 6–8 (docket no. 17); see also Order at 4–5 (docket no. 14) (distinguishing the authorities on which then-respondent ICE Field Office Director relied, i.e., Pelich v. INS, 329 F.3d 1057 (9th Cir. 2003), and Lema v. INS, 341 F.3d 853 (9th Cir. 2003), and observing that respondent “cites no authority for the proposition that petitioner may not seek relief under Zadvydas because he declines to assist in his potentially unlawful removal to a third country”).

In support of their accusation of recalcitrance, respondents assert that, on May 22, 2025, petitioner “initially agreed to removal to Mexico,” citing Paragraph 12 of the Declaration of Rita Soraghan, an ICE ERO Deportation Officer. See Return to Am. Pet. at 3 (docket no. 17); see also Soraghan Decl. at ¶¶ 1 & 12 (docket no. 9). Soraghan, however, makes no representation that petitioner “agreed” to be removed to Mexico; rather, she clearly states that, on May 23, 2025, after being served with ICE Form I-205 (Warrant of Removal/Deportation), petitioner “claimed fear of removal to Mexico.” Soraghan Decl. at ¶ 12 (docket no. 9); see Ex. 5 to Van Daley Decl. (docket no. 10-5). On July 29, 2025, a Third Country Screening Notice was issued, indicating that petitioner was interviewed by an asylum officer who found that petitioner failed to establish he would “more likely than not ․ be tortured in Mexico.” See Ex. 6 to Van Daley Decl. (docket no. 10-6).³ The Third Country Screening Notice, which is solely in English, contains the handwritten words “Refused to sign,” along with the initials “AK” and the date of August 1, 2025. Id. Respondents fail to explain, however, why such notation was even made; the document contains no signature block for petitioner, and proving that the notice was provided to petitioner is more appropriately the role of the person who served it (presumably “AK”). AK's scribbles do not demonstrate any lack of cooperation on petitioner's part.

On March 3, 2026, ICE ERO served petitioner with paperwork related to his prospective removal to the Republic of El Salvador. See Soraghan Decl. at ¶ 17 (docket no. 9). Petitioner refused to sign these materials, which are in English and lack any accompanying Spanish translation. See Ex. 13 to Am. Pet. (docket no. 16-13). None of these documents relate to the procurement of travel documents for petitioner, and petitioner's conduct is not at all analogous to the behavior at issue in the cases cited by respondents. See Order at 5 (docket no. 14) (distinguishing Pelich and Lema because, “[i]n both cases, the petitioner was refusing to secure travel documents from the country of citizenship, to which the petitioner had been ordered removed.”). The only item checked on the Instruction Sheet that petitioner refused to sign, which was served with an ICE Form I-229(a) (Warning for Failure to Depart), was “Other: Accept a TCR (3rd Country removal).” Ex. 13 to Am. Pet. (docket no. 16-13 at 4). As aptly observed by petitioner's appointed counsel, if petitioner's removal to Mexico, El Salvador, or another country other than Cuba was lawful, then respondents would not need petitioner to “accept” or consent to such removal. See Traverse at 11 (docket no. 18). Respondents may not rely on petitioner's refusal to go along with their improper efforts to remove him to a third country as a basis for denying him habeas relief.

The process for selecting a country to which a noncitizen may be removed is set forth in INA § 241(b) (8 U.S.C. § 1231(b)). See Jama v. ICE, 543 U.S. 335, 337 (2005). The statute gives priority to the noncitizen's choice of country, and then outlines in sequence the selection criteria for other options, as follows:

(1) the noncitizen's country of choice, unless an eliminating condition applies;

(2) the country of citizenship, unless an eliminating condition applies;

(3) a country of “lesser connection,”4 unless the noncitizen's removal to such country is “impracticable, inadvisable, or impossible”; or

(4) a country whose government will accept the noncitizen.

See id. at 341; see also 8 U.S.C. § 1231(b)(2). Unless certain circumstances not at issue in this matter exist, the statute prohibits removal to a country in which a noncitizen's life or freedom would be threatened because of the noncitizen's race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1231(b)(3)(A)–(B).

When an immigration judge specifies a particular country in a removal order, the immigration judge does not limit the authority of the U.S. Department of Homeland Security (“DHS”) to designate a different country of removal, but DHS must exercise its discretion in an appropriate way. See Aden v. Nielsen, 409 F. Supp. 3d 998, 1009 (W.D. Wash. 2019). DHS's designation of a third country must comport with both § 1231(b) and due process, meaning that a noncitizen must be provided sufficient notice of an intended removal and a meaningful opportunity to challenge it. See id. at 1009–10; see also Revenko v. Bondi, No. 25-cv-2149, 2025 WL 4070027, at *3 (W.D. Wash. Dec. 29, 2025) (“if DHS seeks to remove [the p]etitioner to a third country, it must move to reopen Section 240 removal proceedings, and a hearing must be held before an immigration judge so the petitioner can apply for relief as to the specific country of removal”), adopted, 2026 WL 191988 (W.D. Wash. Jan. 21, 2026); Nguyen v. Scott, 796 F. Supp. 3d 703, 727–29 (2025). To date, DHS has not allowed petitioner to designate a country of removal, see Am. Pet. at 12 & n.2 (docket no. 16), and it has not initiated the proceedings necessary to lawfully remove petitioner to a country other than Cuba. Thus, petitioner has made the requisite showing that his removal (whether to Cuba, Mexico, El Salvador, or another country) is not likely to occur in the reasonably foreseeable future, respondents have not rebutted this contention, and petitioner is entitled to habeas relief under Zadvydas.

Conclusion

For the foregoing reasons, the Court ORDERS:

(1) The amended petition for a writ of habeas corpus, docket no. 16, is GRANTED, and respondents shall immediately RELEASE petitioner Fernieri Boza-Rosales from custody at the NWIPC;

(2) Within twenty-four (24) hours of the entry of this Order, respondents shall file a declaration confirming that petitioner has been released from custody;

(3) Respondents shall not re-detain petitioner without (i) obtaining valid travel documents for petitioner and providing copies of them to petitioner and his appointed attorney, and (ii) at least seven (7) days’ advance written notice and a pre-deprivation hearing before a neutral decisionmaker, unless probable cause exists for believing petitioner has committed or is attempting to commit a criminal offense;

(4) Respondents may reinstate the OSUP issued in 2023, with the same conditions previously imposed, unless they are amended after providing petitioner at least thirty (30) days’ advance written notice and an opportunity to be heard, and petitioner shall comply with the OSUP conditions;

(5) Respondents are prohibited from removing petitioner to a country other than the Republic of Cuba without at least seven (7) days’ advance written notice and an opportunity to respond in a reopened removal proceeding before an immigration judge, including an ability to raise concerns about facing imprisonment or other punishment upon removal to the third country;

(6) The Clerk is directed to enter judgment consistent herewith after the declaration required by Paragraph 2, above, has been filed and to send a copy of this Order and the Judgment to all counsel of record.

IT IS SO ORDERED.

FOOTNOTES

2.   Petitioner was initially detained in Texas and then brought to the NWIPC in May or June 2025. See Am. Pet. at 9 (docket no. 16). He was later transported back to Texas where, as a result of poor conditions at the facility (El Paso Camp East Montana), he had to be hospitalized for over a month. See id. at 11–12. After his discharge from the hospital in February 2026, petitioner was returned to the NWIPC, id. at 12, and he shortly thereafter commenced this habeas action, see Prop. Pet. (docket no. 1) (filed Feb. 19, 2026).

3.   The Third Country Screening Notice reflects a determination date of July 29, 2025, but it states that the asylum interview did not occur until July 30, 2025. See Ex. 6 to Van Daley Decl. (docket no. 10-6).

4.   Countries of “lesser connection,” Jama, 543 U.S. at 341, include the country from which the noncitizen was admitted, the country with the port from which the noncitizen left for the United States or a contiguous foreign territory, the country in which the noncitizen resided before entering the United States, the noncitizen's country of birth, the country that had sovereignty over the noncitizen's birthplace at the time of birth, and the country in which the birthplace is now located. See 8 U.S.C. §§ 1231(b)(2)(E)(i)–(vi).

Thomas S. Zilly, United States District Judge