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3 4 UNITED STATES DISTRICT COURT AT SEATTLE 6 Petitioner, 8 v. C26-0624 TSZ 9 ICE FIELD OFFICE DIRECTOR; and ORDER 10 BRUCE SCOTT,1 11 Respondents. 12 THIS MATTER comes before the Court on a petition for a writ of habeas corpus, 13 docket no. 3, and related motions. Having reviewed all papers filed in support of, and in 14 opposition to, the petition and related motions, the Court enters the following Order. 15 Background 16 Petitioner Fernieri Boza-Rosales is a citizen of the Republic of Cuba. Soraghan 17 Decl. at ¶ 5 (docket no. 9); Traverse at 2 (docket no. 12). In November 2019, petitioner 18 entered the United States from Mexico, was detained, and was then sent back to Mexico 19
20 1 The proper respondent for a petition brought under 28 U.S.C. § 2241 is “the person who has 21 custody over” the petitioner. See Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004) (citing 28 U.S.C. §§ 2242 & 2243); Doe v. Garland, 109 F.4th 1188, 1197 (9th Cir. 2024). The Clerk is 22 DIRECTED to add Warden Bruce Scott as a respondent. 1 pursuant to Migrant Protection Protocols (“MPP”). See Soraghan Decl. at ¶¶ 5–6 (docket 2 no. 9); see also Ex. 1 to Van Daley Decl. (docket no. 10-1). Under MPP, also known as
3 the “Remain in Mexico” policy, which was adopted in 2019, essentially abandoned by 4 the Biden administration, resurrected in January 2025, and then partially stayed pending 5 further judicial proceedings, noncitizens arriving from a foreign territory contiguous to 6 the United States were returned to such territory pending a proceeding under Immigration 7 and Nationality Act (“INA”) § 240, codified as 8 U.S.C. § 1229a. See Immigrant 8 Defenders Law Ctr. v. Noem, 145 F.4th 972, 979–80 & 996 (9th Cir. 2025); see also
9 8 U.S.C. § 1225(b)(2)(C). In December 2019, and again in January 2020, petitioner re- 10 entered the United States and was sent back to Mexico. Soraghan Decl. at ¶ 7 (docket 11 no. 9); Ex. 2 to Van Daley Decl. (docket no. 10-2). 12 In February 2020, petitioner did not appear for a hearing in El Paso, Texas, of 13 which he had been provided written notice, and the immigration judge issued a decision
14 in absentia, ordering him removed to Cuba. Ex. 3 to Van Daley Decl. (docket no. 10-3). 15 The record does not indicate whether petitioner was in the United States on the date of 16 the immigration hearing in El Paso or during the subsequent year and eight-and-a-half 17 months. In November 2021, however, an Order of Supervision (“OSUP”) was issued, 18 see Soraghan Decl. at ¶ 9 (docket no. 9), which suggests that petitioner had been in
19 U.S. Immigration and Customs Enforcement (“ICE”) custody for some period preceding 20 his release. Petitioner appears to indicate that he was held for 330 days (possibly at the 21 Northwest ICE Processing Center (“NWIPC”)) before being placed on an OSUP because 22 he could not be removed to Cuba. See Traverse at 2 (docket no. 12). 1 In March 2022 and December 2022, petitioner was arrested in Dallas, Texas, for 2 criminal offenses. See Soraghan Decl. at ¶¶ 4(a)&(b) (docket no. 9). After serving a 90-
3 day sentence for the first crime and/or a 150-day sentence for the second crime, agents 4 with ICE’s Office of Enforcement and Removal Operations (“ERO”) “encounter[ed] and 5 detain[ed]” petitioner at the Dallas County Jail, and then released him on September 29, 6 2023, on another OSUP. Id. at ¶¶ 4(a), 4(b), & 10. Copies of the OSUPs have not been 7 provided to the Court. In 2024, petitioner was arrested, convicted on various charges, 8 and sentenced to terms of three days and 48 days in jail, respectively. Id. at ¶¶ 4(c)&(d).
9 For unexplained reasons, in late April 2025, petitioner was in custody at the Bell County 10 Jail, and upon his release, he was detained by ICE ERO agents and eventually transferred 11 to the NWIPC. See id. at ¶ 11; Ex. 4 to Van Daley Decl. (docket no. 10-4). 12 On May 22, 2025, a warrant of removal was issued, but it did not state a country to 13 which petitioner should be removed. See Ex. 5 to Van Daley Decl. (docket no. 10-5).
14 On July 29, 2025, a Third Country Screening Notice was issued, indicating that petitioner 15 was interviewed by an asylum officer who found that petitioner failed to establish he 16 would “more likely than not . . . be tortured in Mexico.” See Ex. 6 to Van Daley Decl. 17 (docket no. 10-6).2 The Third Country Screening Notice contains the words “Refused to 18 sign,” along with the initials “AK” and the date of August 1, 2025. Id. On October 17,
19 2025, the government of Cuba refused to repatriate petitioner. Soraghan Decl. at ¶ 15 20 21 2 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. 22 (docket no. 10-6). 1 (docket no. 9). On March 3, 2026, ICE ERO served petitioner with paperwork related to 2 his prospective removal to the Republic of El Salvador. Id. at ¶ 17. Petitioner now seeks
3 release or a bond hearing. See Pet. at 2 (docket no. 3). He also requests that counsel be 4 appointed to represent him, docket no. 5, and that he be granted in forma pauperis status 5 even though he has already paid the $5.00 filing fee, docket no. 13. 6 Discussion 7 After a removal order becomes final, ICE is authorized to detain a noncitizen, but 8 not indefinitely. See Zadvydas v. Davis, 533 U.S. 678, 698–99 (2001); see also 8 U.S.C.
9 § 1231(a). If, after the presumptively reasonable six-month period following entry of a 10 final removal order, the individual at issue cannot be removed from the United States, the 11 noncitizen is entitled to habeas relief if (i) he or she provides “good reason to believe” 12 that “no significant likelihood” exists of “removal in the reasonably foreseeable future,” 13 and (ii) the habeas respondent fails to rebut this contention. See Zadvydas, 533 U.S. at
14 701. In this matter, the presumptively reasonable six-month post-removal-order period 15 has expired; petitioner has been in the NWIPC for almost a year, and he was apparently 16 previously detained for close to a year before he was released pursuant to an OSUP in 17 November 2021. 18 Petitioner has made the requisite showing, and respondent does not dispute that,
19 no significant likelihood exists of petitioner’s removal to Cuba in the reasonably 20 foreseeable future. Respondent ICE Field Office Director attempts to argue, however, 21 that petitioner is not entitled to habeas relief because he is not cooperating with efforts to 22 remove him to a third country, citing Pelich v. INS, 329 F.3d 1057 (9th Cir. 2003), and 1 Lema v. INS, 341 F.3d 853 (9th Cir. 2003). See Return at 7–8 (docket no. 8). Neither 2 Pelich nor Lema supports respondent’s position. In both cases, the petitioner was
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3 4 UNITED STATES DISTRICT COURT AT SEATTLE 6 Petitioner, 8 v. C26-0624 TSZ 9 ICE FIELD OFFICE DIRECTOR; and ORDER 10 BRUCE SCOTT,1 11 Respondents. 12 THIS MATTER comes before the Court on a petition for a writ of habeas corpus, 13 docket no. 3, and related motions. Having reviewed all papers filed in support of, and in 14 opposition to, the petition and related motions, the Court enters the following Order. 15 Background 16 Petitioner Fernieri Boza-Rosales is a citizen of the Republic of Cuba. Soraghan 17 Decl. at ¶ 5 (docket no. 9); Traverse at 2 (docket no. 12). In November 2019, petitioner 18 entered the United States from Mexico, was detained, and was then sent back to Mexico 19
20 1 The proper respondent for a petition brought under 28 U.S.C. § 2241 is “the person who has 21 custody over” the petitioner. See Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004) (citing 28 U.S.C. §§ 2242 & 2243); Doe v. Garland, 109 F.4th 1188, 1197 (9th Cir. 2024). The Clerk is 22 DIRECTED to add Warden Bruce Scott as a respondent. 1 pursuant to Migrant Protection Protocols (“MPP”). See Soraghan Decl. at ¶¶ 5–6 (docket 2 no. 9); see also Ex. 1 to Van Daley Decl. (docket no. 10-1). Under MPP, also known as
3 the “Remain in Mexico” policy, which was adopted in 2019, essentially abandoned by 4 the Biden administration, resurrected in January 2025, and then partially stayed pending 5 further judicial proceedings, noncitizens arriving from a foreign territory contiguous to 6 the United States were returned to such territory pending a proceeding under Immigration 7 and Nationality Act (“INA”) § 240, codified as 8 U.S.C. § 1229a. See Immigrant 8 Defenders Law Ctr. v. Noem, 145 F.4th 972, 979–80 & 996 (9th Cir. 2025); see also
9 8 U.S.C. § 1225(b)(2)(C). In December 2019, and again in January 2020, petitioner re- 10 entered the United States and was sent back to Mexico. Soraghan Decl. at ¶ 7 (docket 11 no. 9); Ex. 2 to Van Daley Decl. (docket no. 10-2). 12 In February 2020, petitioner did not appear for a hearing in El Paso, Texas, of 13 which he had been provided written notice, and the immigration judge issued a decision
14 in absentia, ordering him removed to Cuba. Ex. 3 to Van Daley Decl. (docket no. 10-3). 15 The record does not indicate whether petitioner was in the United States on the date of 16 the immigration hearing in El Paso or during the subsequent year and eight-and-a-half 17 months. In November 2021, however, an Order of Supervision (“OSUP”) was issued, 18 see Soraghan Decl. at ¶ 9 (docket no. 9), which suggests that petitioner had been in
19 U.S. Immigration and Customs Enforcement (“ICE”) custody for some period preceding 20 his release. Petitioner appears to indicate that he was held for 330 days (possibly at the 21 Northwest ICE Processing Center (“NWIPC”)) before being placed on an OSUP because 22 he could not be removed to Cuba. See Traverse at 2 (docket no. 12). 1 In March 2022 and December 2022, petitioner was arrested in Dallas, Texas, for 2 criminal offenses. See Soraghan Decl. at ¶¶ 4(a)&(b) (docket no. 9). After serving a 90-
3 day sentence for the first crime and/or a 150-day sentence for the second crime, agents 4 with ICE’s Office of Enforcement and Removal Operations (“ERO”) “encounter[ed] and 5 detain[ed]” petitioner at the Dallas County Jail, and then released him on September 29, 6 2023, on another OSUP. Id. at ¶¶ 4(a), 4(b), & 10. Copies of the OSUPs have not been 7 provided to the Court. In 2024, petitioner was arrested, convicted on various charges, 8 and sentenced to terms of three days and 48 days in jail, respectively. Id. at ¶¶ 4(c)&(d).
9 For unexplained reasons, in late April 2025, petitioner was in custody at the Bell County 10 Jail, and upon his release, he was detained by ICE ERO agents and eventually transferred 11 to the NWIPC. See id. at ¶ 11; Ex. 4 to Van Daley Decl. (docket no. 10-4). 12 On May 22, 2025, a warrant of removal was issued, but it did not state a country to 13 which petitioner should be removed. See Ex. 5 to Van Daley Decl. (docket no. 10-5).
14 On July 29, 2025, a Third Country Screening Notice was issued, indicating that petitioner 15 was interviewed by an asylum officer who found that petitioner failed to establish he 16 would “more likely than not . . . be tortured in Mexico.” See Ex. 6 to Van Daley Decl. 17 (docket no. 10-6).2 The Third Country Screening Notice contains the words “Refused to 18 sign,” along with the initials “AK” and the date of August 1, 2025. Id. On October 17,
19 2025, the government of Cuba refused to repatriate petitioner. Soraghan Decl. at ¶ 15 20 21 2 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. 22 (docket no. 10-6). 1 (docket no. 9). On March 3, 2026, ICE ERO served petitioner with paperwork related to 2 his prospective removal to the Republic of El Salvador. Id. at ¶ 17. Petitioner now seeks
3 release or a bond hearing. See Pet. at 2 (docket no. 3). He also requests that counsel be 4 appointed to represent him, docket no. 5, and that he be granted in forma pauperis status 5 even though he has already paid the $5.00 filing fee, docket no. 13. 6 Discussion 7 After a removal order becomes final, ICE is authorized to detain a noncitizen, but 8 not indefinitely. See Zadvydas v. Davis, 533 U.S. 678, 698–99 (2001); see also 8 U.S.C.
9 § 1231(a). If, after the presumptively reasonable six-month period following entry of a 10 final removal order, the individual at issue cannot be removed from the United States, the 11 noncitizen is entitled to habeas relief if (i) he or she provides “good reason to believe” 12 that “no significant likelihood” exists of “removal in the reasonably foreseeable future,” 13 and (ii) the habeas respondent fails to rebut this contention. See Zadvydas, 533 U.S. at
14 701. In this matter, the presumptively reasonable six-month post-removal-order period 15 has expired; petitioner has been in the NWIPC for almost a year, and he was apparently 16 previously detained for close to a year before he was released pursuant to an OSUP in 17 November 2021. 18 Petitioner has made the requisite showing, and respondent does not dispute that,
19 no significant likelihood exists of petitioner’s removal to Cuba in the reasonably 20 foreseeable future. Respondent ICE Field Office Director attempts to argue, however, 21 that petitioner is not entitled to habeas relief because he is not cooperating with efforts to 22 remove him to a third country, citing Pelich v. INS, 329 F.3d 1057 (9th Cir. 2003), and 1 Lema v. INS, 341 F.3d 853 (9th Cir. 2003). See Return at 7–8 (docket no. 8). Neither 2 Pelich nor Lema supports respondent’s position. In both cases, the petitioner was
3 refusing to secure travel documents from the country of citizenship, to which the 4 petitioner had been ordered removed. See Pelich, 329 F.3d at 1058–62; see also Lema, 5 341 F.3d at 854–55. Respondent cites no authority for the proposition that petitioner may 6 not seek relief under Zadvydas because he declines to assist in his potentially unlawful 7 removal to a third country. See Revenko v. Bondi, No. 25-cv-2149, 2025 WL 4070027, at 8 *3 (W.D. Wash. Dec. 29, 2025) (indicating that, if the U.S. Department of Homeland
9 Security seeks to remove a petitioner to a third country, “it must move to reopen 10 Section 240 removal proceedings, and a hearing must be held before an immigration 11 judge so the petitioner can apply for relief as to the specific country of removal”). 12 Nevertheless, the Court is not persuaded that petitioner has made the necessary 13 showing that his removal to Mexico, El Salvador, or another country is not likely to occur
14 in the reasonably foreseeable future, and thus, his habeas petition will be DENIED 15 without prejudice. His related motion to appoint counsel is GRANTED as follows. The 16 Court REFERS this matter to the Office of the Federal Public Defender for review and 17 consultation with petitioner. The Office of the Federal Public Defender is requested to 18 advise the Court by April 24, 2026, whether it will seek appointment in this case pursuant
19 to 18 U.S.C. § 3006A(a)(2)(B). If the Office of the Federal Public Defender enters a 20 notice of appearance in this matter, it may file on petitioner’s behalf a renewed or 21 amended petition for a writ of habeas corpus, and upon such submission, the briefing 22 schedule set forth in General Order 10-25 shall apply. 1 Conclusion 2 For the foregoing reasons, the Court ORDERS:
3 (1) Because petitioner has already paid the $5.00 filing fee and has not sought a 4 refund, his motion for leave to proceed in forma pauperis, docket no. 13, is STRICKEN 5 as moot; 6 (2) The petition for a writ of habeas corpus, docket no. 3, is DENIED without 7 prejudice; 8 (3) The related motion to appoint counsel, docket no. 5, is GRANTED;
9 (4) The notice requirements set forth in the scheduling order entered 10 February 24, 2026, docket no. 4, remain in full force and effect; any notice provided to 11 petitioner shall be immediately filed thereafter with the Court, and the date and time of 12 such filing with the Court shall commence the notice period; and 13 (5) The Clerk is directed to send a copy of this Order to all counsel of record
14 and to the Office of the Federal Public Defender. 16 Dated this 3rd day of April, 2026. 17 A 18 Thomas S. Zilly 19 United States District Judge 20 21 22