Carlos Ruben Basilio Mosso v. John E Cantu, et al.

• Court: District Court, D. Arizona
• Decided: March 5, 2026
• Docket: 2:25-cv-04257
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Carlos Ruben Basilio Mosso, No. CV-25-04257-PHX-MTL (DMF)

10 Petitioner, ORDER

11 v.

12 John E Cantu, et al.,

13 Respondents. 14 15 This case involves a petition for writ of habeas corpus under 28 U.S.C. § 2241. 16 I. 17 Petitioner, a Mexican citizen who entered the United States illegally, alleges that 18 the duration of his detention violates the United States Constitution. On August 15, 2018, 19 Petitioner was issued a final order of removal by an immigration judge but was granted 20 deferral of removal to Mexico under the CAT.1 (Doc. 1 ¶ 26.) According to the Petition, 21 his “removal was deferred only as to Mexico and at any time he may be removed to another 22 country where he is not likely to be tortured.” (Id. ¶ 27.) Petitioner was released from 23 United States Immigrations and Customs Enforcement (“ICE”) custody, under an order of 24 supervision, on September 11, 2018. (Id. ¶ 28.) 25 He was re-taken into custody by ICE personnel on July 1, 2025. (Id. ¶ 29.) By its 26 Enforcement and Removal Operations (“ERO”) group, ICE is seeking to remove petitioner 27 to Spain, Columbia, or Guatemala. (Doc. 7-1 ¶ 50; Doc. 16-1 ¶ 3.) 28 1 CAT refers to the Convention Against Torture. 1 Petitioner seeks a writ of habeas corpus, arguing that his detention is 2 unconstitutionally indefinite. The Court has considered the Petition and the parties’ briefs. 3 The Petition will be denied without prejudice. 4 II. 5 Petitioner’s continued detention is governed by 8 U.S.C. § 1231 and Zadvydas v. 6 Davis, 533 U.S. 678 (2001). Under § 1231(a)(1), the Government has 90 days in which to 7 remove an alien once a removal order becomes final. Detention during this removal period 8 is mandatory. 8 U.S.C. § 1231(a)(2). If the Government cannot affect removal within the 9 90-day removal period, however, continued detention of aliens such as Petitioner becomes 10 discretionary. 8 U.S.C. § 1231(a)(6). That discretion, however, is not unfettered, and 11 indefinite detention is not permitted. Zadvydas, 533 U.S. at 689 (8 U.S.C. § 1231(a)(6) 12 “does not permit indefinite detention.”). This is not to say that every alien like Petitioner 13 must be released once the 90-day removal period has expired. See 533 U.S. at 701. 14 Rather, the Supreme Court in Zadvydas recognized an implicit post-§ 1231(a)(2) 15 period in which continued detention is “presumptively reasonable” and does not violate the 16 Fifth Amendment. Id. The Zadvydas Court concluded that this “presumptively reasonable” 17 period extends for no more than 6-months once an order of removal becomes final 18 (including the 90-day mandatory detention period under § 1231(a)(2)). Id. From that point, 19 “once the alien provides good reason to believe that there is no significant likelihood of 20 removal in the reasonably foreseeable future, the Government must respond with evidence 21 sufficient to rebut that showing.” Id. If, after considering the evidence, the Court finds 22 that “removal is not reasonably foreseeable, the court should hold continued detention 23 unreasonable and no longer authorized by statute.” Id. at 699-700. 24 This finding should not be made lightly, as the alien must satisfy a high bar. Post- 25 Zadvydas cases have clarified that detention becomes unconstitutional only when it is 26 “indefinite and potentially permanent,” id. at 696, and removal is “no longer practically 27 attainable,” Demore v. Kim, 538 U.S. 510, 527-28 (2003). An alien’s detention that “lacks 28 a certain end date” does not equate to a constitutional violation. Prieto-Romero v. Clark, 1 534 F.3d 1053, 1063 (9th Cir. 2008). 2 III. 3 Petitioner has been detained longer than the six-month period that Zadvydas 4 considers “presumptively reasonable.” 5 The passage of six months, by itself, does not trigger a right for a detained alien to 6 be released from custody. Petitioner has a complex immigration history in which he cannot 7 be removed to his home country of Mexico. But that does not foreclose federal immigration 8 officials from successfully pursuing third-country removal. Indeed, the administration has 9 successfully pursued third-country removal. See Ladak v. Noem, — F. Supp. 3d —, 2025 10 WL 3764016, at *8 (N.D. Tex. Dec. 30, 2025). 11 As the Supreme Court clarified its Zadvydas holding in Demore, conditions of 12 unconstitutionality arise only where removal was “no longer practically attainable.” 538 13 U.S. at 527-28. In the context of third-country removal, “the lack of prior third-country 14 removal might be salient where there is presently no country in the world willing to accept 15 the petitioner.” Bayat v. Bradford, — F. Supp. 3d —, 2025 WL 3639441, at *2 (E.D. Tex. 16 Dec. 12, 2025) (citation modified). In situations where an illegal alien is “capable of being 17 removed . . . the government retains an interest in assuring [his] presence at removal.” 18 Prieto-Romero, 534 F.3d at 1065 (citation modified).2 19 Petitioner was re-taken into custody on July 1, 2025, eight months ago. In that time, 20 ERO has worked to remove Petitioner to Spain, Columbia, or Guatemala. The requests to 21 these governments are pending. (Doc. 16-1 ¶ 3.) These countries have not yet responded to 22 ERO’s inquiries. 23 The lack of response from a foreign government, over several months, does not, by 24 itself, raise constitutional problems with confinement. The “mere passage of time” and 25 “speculation and conjecture” are not enough for a petitioner to satisfy his burden to show 26 2 Pietro-Romero remained in immigration custody from February 2005 until, at least, the 27 Ninth Circuit’s decision in July 2008. Prieto-Romero, 534 F.3d at 1056 (“From February 2005 until the present, Prieto–Romero has remained in the continuous custody of the 28 federal government.”). The Ninth Circuit did not consider three-and-a-half years, and counting, unconstitutionally prolonged detention. 1 || that there is no good reason to believe that his removal is reasonably likely in the || foreseeable future. Salem v. Core Civic Warden, 4:25-cv-02058-PAB, 2026 WL 194156, at *3 (N.D. Ohio Jan. 26, 2026); Beckford v. Lynch, 168 F. Supp. 3d 533, 539 (W.D.N.Y. 2016). Immigration officials in the United States and in foreign governments are not 5 || expected to move at warp speed to implement a removal. 6 On this record, the Court finds that Petitioner has failed to satisfy his burden that 7 || there is no good reason to believe that his removal is reasonably unlikely in the foreseeable 8 || future. The Court further finds that the government has a strong interest in ensuring that Petitioner is available for removal, when the time comes. See Prieto-Romero, 534 F.3d at 1065. The Court will deny the Petition without prejudice to refiling later, if necessary. 11 IV. 12 The Court will not consider arguments raised by Petitioner at oral argument that 13 || were not presented as grounds for relief in the Petition. See Greene v. Henry, 302 F.3d 1067, 1070 n.3 (9th Cir. 2002) (claims not alleged in the federal habeas petition need not 15 || be considered). 16 IT IS THEREFORE ORDERED: 17 1. The Petition (Doc. 1) is denied without prejudice. 18 2. The reference to the Magistrate Judge is withdrawn. 19 3. The Clerk of Court must enter a judgment of dismissal without prejudice and close this case. 21 Dated this 5th day of March, 2026. 22 Michal T. Hbhurdle Michael T. Liburdi 25 United States District Judge 26 27 28

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