UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION
ASMEROM KIDANE,
Petitioner,
v. CAUSE NO. 3:26cv235 DRL-SJF
BRIAN ENGLISH,
Respondent.
OPINION AND ORDER Immigration detainee Asmerom Kidane filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241, alleging that he is unlawfully confined in violation of the laws or Constitution of the United States. Mr. Kidane is a Sudanese native who entered the United States as a refugee in 1993. On August 2, 2010, he was convicted of robbery and possession of crack cocaine with intent to deliver in Pennsylvania. On December 2, 2010, an immigration judge ordered him removed. Efforts to remove Mr. Kidane to Sudan failed because Sudan refused to issue him travel documents, and United States Immigration and Customs Enforcement (ICE) released him on an order of supervision after ten months of detention. He has no Sudanese identification documents or current relationships with anyone in Sudan. On August 5, 2025, ICE detained him again, and he is currently held at the Miami Correctional Facility. On March 3, 2026, the Warden filed a status report, stating that the government has requested travel documents from Sudan and South Sudan but that it was unlikely that Mr. Kidane would be removed within thirty days. Government correspondence indicates that the government requested travel documents from Sudan on September 10, 2025, and from South Sudan on October 7, 2025. However, on March 6, 2026, the Warden filed a response
brief representing that Sudan and South Sudan denied these requests. The Warden also alleges that Mr. Kidane has not cooperated with removal efforts by refusing to complete a travel documents application. He supports this allegation with a notice of failure to comply indicating that Mr. Kidane refused to complete and sign a travel document application form on February 12, 2026. The Warden first argues that the court lacks subject matter jurisdiction over Mr.
Kidane’s habeas petition under 8 U.S.C. § 1252(g) and § 1252(b)(9). The court has thoroughly considered its jurisdiction to review post-removal-order immigration detention. For the reasons previously stated, jurisdiction is secure insofar as this opinion goes. See Liang v. English, No. 3:25cv1052, 2026 WL 835853, 1 (N.D. Ind. Mar. 26, 2026) (Leichty, J.). Turning to the merits, 8 U.S.C. § 1231(a)(6) gives the government the authority to
detain a noncitizen while it effectuates a removal order. All noncitizens must be detained for a 90-day “removal period,” which for Mr. Kidane ended fifteen years ago. See 8 U.S.C. §§ 231(a)(1)(A), (a)(2)(A). Beyond this 90-day period, certain classes of noncitizens may be detained even longer—what the statute calls inadmissible aliens (under 8 U.S.C. § 1182), those who have violated their nonimmigrant status conditions (under 8 U.S.C.
§ 1227(a)(1)(C)), those who have committed certain crimes, such as aggravated felonies, drug trafficking, or illegal firearm offenses (under 8 U.S.C. § 1227(a)(2)), those removable for national security or foreign relations reasons (under 8 U.S.C. § 1227(a)(4)), and those whom the Attorney General determines to be a risk to the community or unlikely to comply with the order of removal. These noncitizens “may be detained beyond the removal period” or released on conditions of supervision. 8 U.S.C. § 1231(a)(6).1 Given his criminal
conviction, Mr. Kidane’s detention years ago was authorized by § 1231(a)(6). The Warden likewise relies on this same statute as the basis for his current detention. “The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law,” and “once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful,
unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). To avoid a constitutional due process problem with § 1231(a)(6), and specific to a noncitizen who is present within this country and who is ordered removed, the law requires that his detention be limited to a reasonable time—namely “a period reasonably necessary to bring about that alien’s removal from the United States.” Id. at 689; see also id. at 682, 690-91.
Any § 1231(a)(6) detention of a present-but-ordered-removed noncitizen has this limitation, as it guards against the possibility that he might be indefinitely detained should his removal not be reasonably achievable. His indefinite detention would raise a serious constitutional problem. Id. at 690; see also Clark v. Suarez Martinez, 543 U.S. 371, 378 (2005) (same). In short, “once removal is no longer reasonably foreseeable, continued detention is
no longer authorized by statute.” Zadvydas, 533 U.S. at 699.
1 For noncitizens who don’t fall in these categories, if they are not removed during the 90-day removal period, they must be released, subject to conditions of supervision. 8 U.S.C. § 1231(a)(3). The historic writ of habeas corpus grants a federal court the authority to review a noncitizen's detention and to decide independently whether “a set of particular
circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal.” Id.; see also 28 U.S.C. § 2241(c)(3). “In answering that basic question, the habeas court must ask whether detention exceeds a period reasonably necessary to secure removal” and “should measure reasonableness primarily in terms of the statute's basic purpose, namely assuring the alien’s presence at the moment of removal.” Zadvydas, 533 U.S. at 699. When removal proves reasonably foreseeable, the court can consider other
factors (such as risk of crime) and often will deny habeas relief; whereas, when removal seems attenuated or unlikely, the court will order the individual’s release, albeit conditioned on appropriate terms of supervision and the noncitizen’s compliance with these terms. See id. at 699-700. After all, the choice isn’t between detention and a noncitizen “living at large,” but between detention and a noncitizen’s supervised release on conditions that he cannot
violate. Id. at 696. The law materially defers these difficult judgments to the Executive Branch for a six- month period during which detention is considered presumptively reasonable to execute a removal order. Id. at 700-01. Even thereafter, the court listens with care when the government’s “foreign policy judgments”—such as the status of repatriation negotiations—
are implicated and otherwise affords “appropriate leeway when its judgments rest upon foreign policy expertise.” Id. at 700.
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION
ASMEROM KIDANE,
Petitioner,
v. CAUSE NO. 3:26cv235 DRL-SJF
BRIAN ENGLISH,
Respondent.
OPINION AND ORDER Immigration detainee Asmerom Kidane filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241, alleging that he is unlawfully confined in violation of the laws or Constitution of the United States. Mr. Kidane is a Sudanese native who entered the United States as a refugee in 1993. On August 2, 2010, he was convicted of robbery and possession of crack cocaine with intent to deliver in Pennsylvania. On December 2, 2010, an immigration judge ordered him removed. Efforts to remove Mr. Kidane to Sudan failed because Sudan refused to issue him travel documents, and United States Immigration and Customs Enforcement (ICE) released him on an order of supervision after ten months of detention. He has no Sudanese identification documents or current relationships with anyone in Sudan. On August 5, 2025, ICE detained him again, and he is currently held at the Miami Correctional Facility. On March 3, 2026, the Warden filed a status report, stating that the government has requested travel documents from Sudan and South Sudan but that it was unlikely that Mr. Kidane would be removed within thirty days. Government correspondence indicates that the government requested travel documents from Sudan on September 10, 2025, and from South Sudan on October 7, 2025. However, on March 6, 2026, the Warden filed a response
brief representing that Sudan and South Sudan denied these requests. The Warden also alleges that Mr. Kidane has not cooperated with removal efforts by refusing to complete a travel documents application. He supports this allegation with a notice of failure to comply indicating that Mr. Kidane refused to complete and sign a travel document application form on February 12, 2026. The Warden first argues that the court lacks subject matter jurisdiction over Mr.
Kidane’s habeas petition under 8 U.S.C. § 1252(g) and § 1252(b)(9). The court has thoroughly considered its jurisdiction to review post-removal-order immigration detention. For the reasons previously stated, jurisdiction is secure insofar as this opinion goes. See Liang v. English, No. 3:25cv1052, 2026 WL 835853, 1 (N.D. Ind. Mar. 26, 2026) (Leichty, J.). Turning to the merits, 8 U.S.C. § 1231(a)(6) gives the government the authority to
detain a noncitizen while it effectuates a removal order. All noncitizens must be detained for a 90-day “removal period,” which for Mr. Kidane ended fifteen years ago. See 8 U.S.C. §§ 231(a)(1)(A), (a)(2)(A). Beyond this 90-day period, certain classes of noncitizens may be detained even longer—what the statute calls inadmissible aliens (under 8 U.S.C. § 1182), those who have violated their nonimmigrant status conditions (under 8 U.S.C.
§ 1227(a)(1)(C)), those who have committed certain crimes, such as aggravated felonies, drug trafficking, or illegal firearm offenses (under 8 U.S.C. § 1227(a)(2)), those removable for national security or foreign relations reasons (under 8 U.S.C. § 1227(a)(4)), and those whom the Attorney General determines to be a risk to the community or unlikely to comply with the order of removal. These noncitizens “may be detained beyond the removal period” or released on conditions of supervision. 8 U.S.C. § 1231(a)(6).1 Given his criminal
conviction, Mr. Kidane’s detention years ago was authorized by § 1231(a)(6). The Warden likewise relies on this same statute as the basis for his current detention. “The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law,” and “once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful,
unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). To avoid a constitutional due process problem with § 1231(a)(6), and specific to a noncitizen who is present within this country and who is ordered removed, the law requires that his detention be limited to a reasonable time—namely “a period reasonably necessary to bring about that alien’s removal from the United States.” Id. at 689; see also id. at 682, 690-91.
Any § 1231(a)(6) detention of a present-but-ordered-removed noncitizen has this limitation, as it guards against the possibility that he might be indefinitely detained should his removal not be reasonably achievable. His indefinite detention would raise a serious constitutional problem. Id. at 690; see also Clark v. Suarez Martinez, 543 U.S. 371, 378 (2005) (same). In short, “once removal is no longer reasonably foreseeable, continued detention is
no longer authorized by statute.” Zadvydas, 533 U.S. at 699.
1 For noncitizens who don’t fall in these categories, if they are not removed during the 90-day removal period, they must be released, subject to conditions of supervision. 8 U.S.C. § 1231(a)(3). The historic writ of habeas corpus grants a federal court the authority to review a noncitizen's detention and to decide independently whether “a set of particular
circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal.” Id.; see also 28 U.S.C. § 2241(c)(3). “In answering that basic question, the habeas court must ask whether detention exceeds a period reasonably necessary to secure removal” and “should measure reasonableness primarily in terms of the statute's basic purpose, namely assuring the alien’s presence at the moment of removal.” Zadvydas, 533 U.S. at 699. When removal proves reasonably foreseeable, the court can consider other
factors (such as risk of crime) and often will deny habeas relief; whereas, when removal seems attenuated or unlikely, the court will order the individual’s release, albeit conditioned on appropriate terms of supervision and the noncitizen’s compliance with these terms. See id. at 699-700. After all, the choice isn’t between detention and a noncitizen “living at large,” but between detention and a noncitizen’s supervised release on conditions that he cannot
violate. Id. at 696. The law materially defers these difficult judgments to the Executive Branch for a six- month period during which detention is considered presumptively reasonable to execute a removal order. Id. at 700-01. Even thereafter, the court listens with care when the government’s “foreign policy judgments”—such as the status of repatriation negotiations—
are implicated and otherwise affords “appropriate leeway when its judgments rest upon foreign policy expertise.” Id. at 700. A noncitizen “may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Id. at 701. But “once [he] provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the government must respond with evidence sufficient to rebut that showing.” Id. (cleaned up); see also Suarez
Martinez, 543 U.S. at 385-86. The petitioner bears the initial burden, and the court sees no reason today to alter this. See 28 U.S.C. § 2241; Zadvydas, 533 U.S. at 700; see also Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011); Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009). Nor must the court engage the same constitutional dilemma that § 1231(a)(6) could present merely because this is a second period of detention and not his first. See Zadvydas, 533 U.S. at 690.
The court may consider not just what led to his original detention and release years ago, to the extent still pertinent, but also what circumstances newly exist today. Despite the old adage, past isn’t always prologue in this context, and just because removal couldn’t occur before doesn’t mean it can’t reasonably occur today under renewed efforts. At the same time, nothing in § 1231(a)(6) and nothing in Zadvydas suggests that the mere passage of time
erases everything about the initial showing to make it all irrelevant. See also Vu v. English, No. 3:25cv999, 2026 WL 194171, 11-14 (N.D. Ind. Jan. 26, 2026) (Leichty, J.); cf. Kem v. Noem, No. 3:25cv997, 2026 WL 100566, 10-11 (N.D. Ind. Jan. 14, 2026) (Leichty, J.).2 After all, as the period of confinement grows, what qualifies as a reasonably foreseeable future conversely must shrink. Id. at 701.
Because Mr. Kidane has been in detention for longer than six months, the court turns to whether his removal is reasonably foreseeable. To start, the respondent identifies Sudan
2 No one should read either Vu or Kem as indicating that an original showing always remains gospel or shifting the burden. and South Sudan as the only countries under consideration for removal. In 2011, he was released on an order of supervision after efforts to remove him to Sudan were unsuccessful.
Sudan and South Sudan have both rejected recent requests for travel documents, and there is no suggestion that the government is attempting to remove him to any other country. His most recent term of detention now spans eight months. The court finds that Mr. Kidane has met his preliminary burden. In response, the respondent argues that Mr. Kidane has declined to cooperate with the government’s efforts to remove him by refusing to sign a travel documents application.
The respondent argues that this refusal should preclude any finding that his removal will not occur within the reasonably foreseeable future. The first federal appellate case to have addressed this issue appears to be Pelich v. I.N.S., 329 F.3d 1057 (9th Cir. 2003). There, the immigration detainee refused to complete an application for travel documents to Poland, and Poland expressly required the information on the application to determine whether it
would issue him travel documents. Id. at 1059. The immigration detainee further frustrated removal efforts by providing the government with conflicting information about his identity and family. Id. The Ninth Circuit reasoned that “the detainee cannot convincingly argue that there is no significant likelihood of removal in the reasonably foreseeable future if the detainee controls the clock” and held that “an alien cannot assert a viable constitutional
claim when his indefinite detention is due to his failure to cooperate with the [government’s] efforts to remove him.” Id. at 1060-61. Though neither the Supreme Court nor the Seventh Circuit appear to have addressed this precise issue in the immigration context, this seems a rather sensible rule—after all, one cannot typically create or self-inflict an alleged constitutional or other harm all one’s own and then maintain standing to complain about it. See, e.g., Clapper v. Amnesty Int’l USA, 568
U.S. 398, 418 (2013); see also Uzuegbunam v. Preczewski, 592 U.S. 279, 285 (2021) (injury must be fairly traceable to defendant for standing to exist). Several federal courts that have addressed this concern in immigration cases have unanimously agreed with the Ninth Circuit. See, e.g., Singh v. U.S. Att’y Gen., 945 F.3d 1310, 1314 (11th Cir. 2019); Hook v. Lynch, 639 F. Appx. 229 (5th Cir. 2016); Kovalev v. Ashcroft, 71 F. Appx. 919, 924 (3d Cir. 2003); Souleymane v. Olsen, 2026 WL 785596, 4 (S.D. Ind. Mar. 20, 2026).
The question is often one of causation or degree—whether the alleged harm derives from the petitioner’s self-inflicting conduct or the government’s actions. And there the court requires additional information from the parties before resolving this argument and the habeas petition. Most notably, the Warden does not explain how Mr. Kidane’s refusal to complete a travel document application is frustrating the government’s efforts to remove
him. The Warden represents that Sudan and South Sudan have both declined to issue travel documents to Mr. Kidane, and he has identified no other country for removal, so the precise relationship between the incomplete application and removal efforts is unclear. Further, Mr. Kidane did not address this argument in his reply brief, and neither party has described the circumstances of Mr. Kidane’s refusal. It is also unclear as to whether any relevant events
have occurred since the government sent him the Notice of Failure to Comply on February 26, 2026. For these reasons, the court: (1) ORDERS the Warden to file a response consistent with this Order, a copy of the incomplete application for travel documents, and any other relevant facts or
documentation by May 1, 2026; and (2) ORDERS Asmerom Kidane to file any reply by May 15, 2026. SO ORDERED.
April 24, 2026 s/ Damon R. Leichty Judge, United States District Court