Salad v. State of Alaska, Department of Corrections et al

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATIONS. See Order for details. Signed by Judge Timothy M. Burgess on 3/7/2025. (HJR, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ROBEL AHMED SALAD,
Petitioner,

Case No. 3:25-cv-00029-TMB-KFR

v.
STATE OF ALASKA, Department of Corrections;
ARLANDO HERNANDEZ, Superintendent of the
Anchorage Correctional Complex, in his official
capacity; U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT; THOMAS HOMAN, White
House Border Czar, in his official capacity; and
CALEB VITELLO, Acting Director of U.S.
Immigration and Customs Enforcement, in his
official capacity;

ORDER ON HABEAS PETITION
[DKT. 1]

Respondents.

I.

INTRODUCTION

This matter comes before the Court on the Final Report and Recommendation (“Final
R&R”) of the Magistrate Judge recommending the Court grant Petitioner Roble Ahmed Salad’s
Petition for Habeas Corpus Relief at Docket 1 (the “Petition”).1 Federal Respondents U.S.
Immigration and Customs Enforcement (“ICE”); Thomas Homan, White House Border Czar, in
his official capacity; and Caleb Vitello, Acting Director of ICE, in his official capacity
(collectively, “Federal Respondents”) oppose and move to dismiss the Motion.2 Federal
Respondents filed objections to the Final R&R,3 and Salad replied.4

1

Dkt. 33 (Report and Recommendation Regarding Habeas Petition); Dkt. 1 (Petition for Habeas
Corpus Relief).
2
Dkt. 12 (Federal Respondents’ Response in Opposition and Motion to Dismiss).
3
Dkt. 37 (Federal Respondents’ Objection).
4
Dkt. 38 (Petitioner’s Reply).
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Upon review and consideration of the full record and briefing in this case, the Court finds
that Petitioner’s continued detention pursuant to 8 U.S.C. § 1231(a)(6) violates federal law. After
de novo review of the objections, and for the reasons discussed below, the Court ACCEPTS and
ADOPTS the Final R&R at Docket 33 with modification. Accordingly, the Petition at Docket 1 is
GRANTED.

II.

BACKGROUND

A. Immigration Proceedings
This Court adopts and incorporates the Magistrate Judge’s statement of facts set forth in
the “Background” portion of the Final R&R and as summarized below.5
Salad is a citizen of Somalia and entered the country without inspection on December 8,
2022.6 He applied for asylum after he was apprehended by Border Patrol shortly after crossing into
the United States.7 Salad was then placed into removal proceedings, but he claimed fear of return.8
A credible fear interview was conducted while he was in Immigration and Customs Enforcement
("ICE") custody and a hearing was conducted.9 An Immigration Judge found Salad’s claim of fear
not credible, denied his application for asylum, and ordered him removed to Somalia.10 Salad
reserved appeal of the Immigration Judge’s decision, but the Board of Immigration Appeals
dismissed Salad’s appeal and the removal order became final.11 ICE began trying to obtain a travel
document necessary to remove Salad to Somalia.12

5

Dkt. 33 at 2–6.
Dkt. 13 (Declaration of Officer Bradley Hayes) at 1.
7
Id.
8
Id. at 2
9
Id.
10
Id.
11
Id.
12
Id.
6

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Nearly one year after his detention began, on November 29, 2023, ICE released Salad after
it determined that there was not a significant likelihood of removal in the reasonably foreseeable
future because it could not obtain a travel document from Somalia.13 Under the terms of his release
outlined in his order of supervision (“OSUP”), Salad was required to report any change of address
to the San Antonio Enforcement and Removal Operations (“ERO”) office.14 A local ERO officer
asserted that Salad failed to report back to the San Antonio ERO office on December 18, 2024, as
required and Salad became an “immigration fugitive.”15 However, Salad testified that he did report
to the ERO office on that day and informed ERO that he was living in Alaska.16
On January 15, 2025, Salad filed an Application for Temporary Protected Status (“TPS”)
with the United States Citizenship and Immigration Services.17 Then, on February 5, 2025, the
Alaska ERO office learned that Salad’s case was under review by Somalia to issue a travel
document for Salad.18 A warrant for Salad’s arrest was subsequently issued by the Department of
Homeland Security (DHS).19At that time, Salad was living in Alaska and working as a caregiver
for elderly people.20 Salad provided his Anchorage address on his TPS application.21
On February 5, 2025, Salad was arrested by officers from ICE, Anchorage ERO, and agents
from ICE's Homeland Security Investigations ("HSI") and FBI Anchorage.22 Salad was taken into
ICE custody and transported to the Anchorage jail.23 On February 8, 2025, an ERO officer served

13

Id.
Id. at 3.
15
Id.
16
Dkt. 30 (Transcript of Proceedings on February 19, 2025) at 8, 15.
17
Dkt. 13 at 3.
18
Id.
19
Id.
20
Dkt. 30 at 6.
21
Dkt. 13 at 3.
22
Id.
23
Id. at 3–4.
14

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Salad with a Notice of Revocation of Release (“Notice”) and informed him he was subject to a
final order of removal.24 However, ICE did not have the travel document at that time because
Salad’s case was under review by Somalia for issuance of the document.25
On February 7, 2025, Salad filed the Petition challenging his detention.26 In the early hours
of February 10, 2025, Salad was transported to a detention facility in Texas.27 Later that morning,
the Court ordered the Federal Respondents to file a return showing the true cause of Salad’s
detention.28 On February 11, 2025, ICE received a temporary Somali travel document for Salad.29
A hearing was scheduled on the Petition for February 14, 2025,30 but ICE failed to transport Salad
back to Alaska in time to attend the hearing.31 Due in part to ICE’s failure to timely transport Salad

24

Id. at 4; Dkt. 20-1 (Notice of Revocation of Release).
Dkt. 13 at 4; Dkt. 20-1.
26
Dkt. 1.
27
Dkt. 13 at 4. Salad’s counsel informed the Court that she attempted to visit him at the Anchorage
jail on Friday, February 7, 2025, but was told that he was in medical segregation. Dkt. 14-1
(Declaration of Margaret Stock) at 3. Jail staff also informed her that the phone call scheduling
service was unavailable until the following Monday, February 10, so she could not speak with him
by phone. Id. at 3–4. Finally, jail staff informed her that Salad could not receive documents while
he was in medical segregation. Id. at 4. Salad’s counsel called the next morning (Saturday) and
was informed Salad was still in medical segregation. Id. Despite Salad’s medical segregation and
complete unavailability to his counsel, an ERO officer was able to serve Salad with the Notice and
determine on Sunday it was safe to transport him to Texas. Id. at 4–5. This was done without
informing either his counsel or the Court even though the present proceeding had yet to be
concluded. Id. at 5. Salad’s counsel was not informed that Salad had been transported to Texas
until she called the Anchorage jail on Monday morning. Id. at 4. Salad’s counsel has expressed
concern that she was denied access to her client while an ERO officer served and removed Salad
to Texas. Id. at 5. Salad’s counsel has asserted these facts to the Court under penalty of perjury
and no contradicting information has been provided. Id. at 8. While the Court cannot determine
on this record whether Salad was intentionally or inadvertently moved without informing either
his counsel or the Court, the Court counsels against any future unilateral action in the middle of
court proceedings.
28
Dkt. 4 (Order to Show Cause).
29
Dkt. 13 at 4.
30
Dkt. 17 (Minute Entry).
31
Dkt. 13 at 4.
25

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back to Alaska, the hearing was then converted to a status conference. 32 At the status conference,
the Court heard the parties’ arguments as to the merits of the Petition and asked the Federal
Respondents to provide copies of Petitioner’s Notice, the administrative warrant that led to
Petitioner’s arrest, and Petitioner’s OSUP.33
B. Procedural History
At an evidentiary hearing on February 19, 2025, the Court heard testimony from Salad and
Salad’s roommate.34 The Court also admitted four exhibits offered by Salad.35 The Federal
Respondents did not submit any new evidence at the hearing.36
Upon review of the parties’ submissions and the full record, the Magistrate Judge found
that Salad’s continued detention violates federal law and recommended the Court grant the
Petition.37 Pursuant to United States v. Zadvydas, the Magistrate Judge determined that Salad has
shown “good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future” because the fact that Salad is prima facie eligible for TPS status means he is
currently not removable.38 Further, even if his TPS application is denied, he will remain
unremovable until the completion of the appeal process.39 The Magistrate Judge then determined
that the Federal Respondents failed to rebut Salad’s showing because (1) the travel document on
which they rely is temporary and (2) they presented no evidence tending to show the travel
document would be renewed in the future.40 The Magistrate Judge also found the Federal

32

Dkt. 17.
Dkt. 35 (Transcript of Proceedings on February 14, 2025) at 16, 25.
34
Dkt. 30 at 5, 16, 28–29.
35
Id. at 7, 9, 13.
36
Id. at 4.
37
See generally Dkt. 33.
38
Dkt. 33 at 11.
39
Id.
40
Id. at 12–13.
33

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Respondents’ argument that removal was foreseeable because Salad’s TPS application would end
with one of two outcomes—denial of the TPS application followed by Salad’s removal, or a grant
of his application followed by his release—unpersuasive.41 Therefore, the Magistrate Judge
recommends issuance of a writ ordering Salad’s immediate release from custody.42
The Federal Respondents object to the Magistrate Judge’s Final R&R on two grounds: (1)
that the Magistrate Judge incorrectly interpreted the standard in Zadvydas, and (2) that the
Magistrate Judge failed to give weight to the impact of the temporary travel document on
removability.43 The Federal Respondents argue that: “Zadvydas does not state that just because
something in the future may interfere with INS’s plans, there is no [significant likelihood of
removal in the reasonably foreseeable future].”44 They assert that a decision on his TPS application
would be a “definite end” to his detention.45 They also argue that “continued detention is
reasonably necessary to secure removal with a cooperating country.”46
Salad responds that there is no significant likelihood that he will be removed in the
reasonably foreseeable future because it is “virtually certain that he will not be removable through
the end of the most recent TPS designation.”47 He further argues that the Federal Respondents still
fail to rebut his showing.48 Salad maintains that whether he will become deportable again is
speculative because (1) the travel document will expire before the TPS determination will become

41

Id. at 14.
Id. at 15.
43
Dkt. 37 (Federal Respondents’ Objection) at 2–3.
44
Id. at 2.
45
Id. at 3.
46
Id.
47
Dkt. 38 (Petitioner’s Response) at 1.
48
Id. at 5.
42

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final and (2) the Federal Respondents provided no evidence that the travel document will be
renewed.49

III.

LEGAL STANDARD

A. The District Court’s Review of the Magistrate Judge’s Report and Recommendation
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1), which provides that
a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge” and shall review objections de novo.50
B. Detention of a Noncitizen During Immigration Proceedings
The Immigration and Nationality Act (“INA”) permits detention of noncitizens present in
the United States during immigration proceedings.51 Pursuant to 8 U.S.C. § 1231, a noncitizen who
is ordered removed shall be removed by DHS within 90 days.52 During the removal period, the
noncitizen must be detained.53 If the Government fails to remove the noncitizen during those 90
days, the statute only authorizes further detention if the noncitizen is: (1) “inadmissible” under
certain grounds, (2) “removable” as a result of violations of status requirements or entry
conditions, violations of criminal law, or reasons of security or foreign policy, (3) or has been
“determined by the Attorney General to be a risk to the community or unlikely to comply with the
order of removal.”54
In Zadvydas v. Davis, the Supreme Court addressed whether there was a limit to the time
a noncitizen can be detained after the initial 90-day removal period expires.55 The Court held that
49

Id. at 5.
28 U.S.C. § 636(b)(1).
51
8 U.S.C. §§ 1225(b), 1226(a), 1226(c), 1231(a).
52
8 U.S.C. § 1231(a)(1)(A).
53
8 U.S.C. § 1231(a)(2).
54
8 U.S.C. § 1231(a)(6); Zadvydas v. Davis, 533 U.S. 678, 682 (2001).
55
533 U.S. at 682.
50

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the statute limits a noncitizen’s “post-removal-period detention to a period reasonably necessary
to bring about [their] removal from the United States.”56 The statute “does not permit indefinite
detention.”57 A noncitizen may only be held in confinement until “it has been determined that there
is no significant likelihood of removal in the reasonably foreseeable future.”58 A six month period
of detention is presumptively reasonable.59
When detention exceeds this presumptively reasonable period, the noncitizen has the initial
burden to “provide[] good reason to believe that there is no significant likelihood of removal in
the reasonably foreseeable future.”60 If the noncitizen satisfies the initial burden, then the
Government “must respond with evidence sufficient to rebut that showing.”61 If the Government
fails to meet its burden, then the non-citizen must be released from detention.62
C. Eligibility for Temporary Protected Status
The TPS program “provides humanitarian relief to foreign nationals in the United States
who come from specified countries.”63 Under 8 U.S.C. § 1254a, “[t]he Government may designate
a country for the program when it is beset by especially bad or dangerous conditions, such as arise
from natural disasters or armed conflicts.”64 Unlawful entry into the United States does not
preclude a noncitizen from being granted TPS.65 TPS status protects a noncitizen “from removal
and authorizes them to work here for as long as the TPS designation lasts.”66 If a noncitizen

56

Id. at 689.
Id.
58
Zadvydas, 533 U.S. at 701.
59
Id. at 701.
60
Id.
61
Id.
62
Jennings v. Rodriguez, 583 U.S. 281, 299 (2018).
63
Sanchez v. Mayorkas, 593 U.S. 409, 412 (2021).
64
Id.
65
Id.
66
Id.
57

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“establishes a prima facie case of eligibility” for TPS status, then the noncitizen shall be provided
the benefit of TPS status until a final determination is made with respect to the noncitizen’s
eligibility.67
Somalia was first designated for TPS on September 16, 1991, and its designation has been
“consecutively extended” since that time.68 Somalia’s current designation will expire on March
17, 2026, unless it is extended.69
D. The District Court’s Review of Habeas Petitions
A noncitizen who is being detained may bring a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 if that person believes their detention violates the Constitution or other federal law.70
Administrative exhaustion is prudential rather than a jurisdictional requirement for habeas review
under § 2241.71

IV.

ANALYSIS

A. To the Extent Salad Has Not Exhausted Administrative Remedies, the Court Waives
the Exhaustion Requirement
On habeas review under § 2241, exhaustion is a prudential rather than jurisdictional
requirement.72 Courts may require prudential exhaustion if “(1) agency expertise makes agency
consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of
the requirement would encourage the deliberate bypass of the administrative scheme; and (3)

67

18 U.S.C. § 1254a(a)(4)(B).
Extension and Redesignation of Somalia for Temporary Protected Status, 89 Fed. Reg. 59135,
59136 (July 22, 2024).
69
Id.
70
28 U.S.C. § 2241(c)(3); see also Zadvydas, 533 U.S. at 688 (“We conclude that § 2241 habeas
corpus proceedings remain available as a forum for statutory and constitutional challenges to postremoval-period detention.”).
71
Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 541 (9th Cir. 2004).
72
Id.
68

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administrative review is likely to allow the agency to correct its own mistakes and to preclude the
need for judicial review.”73 Even if these factors weigh in favor of prudential exhaustion, the court
may waive the exhaustion requirement if “administrative remedies are inadequate or not
efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will
result, or the administrative proceedings would be void.”74
First, the Court determines that an administrative appellate record is not necessary to
resolve the legal question of whether there is a significant likelihood of removal in the reasonably
foreseeable future. Second, the Court does not believe that waiver of prudential exhaustion would
encourage the deliberate bypass of the administrative scheme because this issue appears to arise
rarely and, once the question is addressed, it may cease to arise. Third, administrative review would
not preclude the need for judicial review, because litigants would undoubtedly seek this Court’s
determination of whether the standard applied by the agency was correct. Even if these factors
weighed against prudential exhaustion, the Court finds that the continued unlawful detention of
Salad would cause irreparable injury. Therefore, even if Salad has not exhausted administrative
remedies, the Court determines that waiver of prudential exhaustion is appropriate.
B. Continued Detention of Salad is Unlawful Because There is No Significant Likelihood
of Removal in the Reasonably Foreseeable Future
The Court accepts and adopts the Magistrate Judge’s determination that Salad has provided
good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future and that the Federal Respondents have failed to rebut this showing.75

73

Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007).
Hernandez v. Sessions, 872 F.3d 976, 897 (9th Cir. 2017) (quoting Laing v. Ashcroft, 370 F.3d
994, 1000 (9th Cir. 2004)).
75
Dkt. 33 at 10–15.
74

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1. Salad’s Continued Detention is Unlawful Under Zadvydas
The Federal Respondents challenge the Magistrate Judge’s interpretation of Zadvydas and
argue that Salad’s continued detention is permissible under its holding.76 They assert that Zadvydas
should not be applied to mean “that just because something in the future may interfere with INS’s
plans, there is no [significant likelihood of removal in the reasonably foreseeable future].”77
However, that is not how the Magistrate Judge, or this Court, interprets Zadvydas. Rather, the
“INS’s plans,” as the Federal Respondents describe Salad’s deportation, depend on the occurrence
of multiple unguaranteed future events—principally, the denial of Salad’s TPS application and the
issuance of a new travel document—and the Federal Respondents have failed to submit sufficient
evidence that any of these events are significantly likely to happen.
The parties do not contest that Salad’s detention has exceeded the reasonably foreseeable
six-month period established in Zadvydas.78 Salad has shown that he has applied for TPS and is
prima facie eligible.79 The parties also do not contest that Salad cannot be removed while his
application is pending.80 This position is reflected in statute: the INA prohibits removal of an
individual who is prima facie eligible for TPS.81 Although the ultimate decision whether to
approve or deny his application rests with the United States Customs and Immigration Services
(USCIS), Salad’s prima facie eligibility supports an inference that he is highly likely to obtain TPS

76

Dkt. 37 at 2–3.
Id. at 2.
78
Dkt. 12 at 11–12; Dkt. 30 at 21
79
Dkt. 35 at 7–8, 21–22; Dkt. 19-3 (TPS Application).
80
Dkt. 35 at 19.
81
8 U.S.C. § 1254a(a)(1)(A) (prohibiting removal of individuals granted TPS); 8 U.S.C.
§ 1254a(a)(4)(B) (“In the case of an alien who establishes a prima facie case of eligibility for
benefits under paragraph (1), until a final determination with respect to the alien’s eligibility for
such benefits under paragraph (1) has been made, the alien shall be provided such benefits.”).
77

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because USCIS makes the decision to grant TPS “consistent with the standards of eligibility.”82
Further, the Court agrees with the Magistrate Judge’s assessment that Somalia’s continued TPS
designation since 1991 provides some indication that the government may continue to renew the
designation.83 If Salad is granted TPS, he would not be removable unless Somalia’s designation
expires.84
Even if Salad’s TPS application is denied, Salad would have a right to appeal the decision,
during which time he would remain unremovable.85 This further attenuates the likelihood of his
removal in the reasonably foreseeable future. Salad has shown there is great likelihood that he will
be granted TPS and will remain unremovable for the foreseeable future, and even if his application
is denied, he has shown the likelihood of his removal in the reasonably foreseeable future is by no
means significant. Salad has met his burden under Zadvydas.
Having failed to rebut this showing, the Federal Respondents argue that the constitutional
concerns raised in Zadvydas are not present here because Salad’s case will end one of two ways:
“he will be removed or he will be granted TPS to stay.”86 The Court is not persuaded by the Federal
Respondent’s argument that, because Salad’s case will end one of two ways, “there is a definite
end to [Salad’s] detention in the reasonably foreseeable future.”87 This argument presents a gloss
on the operative language in Zadvydas: “if removal is not reasonably foreseeable, the court should
hold continued detention unreasonable and no longer authorized by statute.”88 Because Salad
could be granted TPS—and even if he is not granted TPS, his application likely will not be resolved

82

8 C.F.R. § 244.10(b).
Dkt. 33 at 12.
84
8 U.S.C. § 1254a; Sanchez, 593 U.S. at 412.
85
8 C.F.R. §§ 244.10(c); 244.10(e)(2).
86
Dkt. 30 at 44; see also Dkt. 37 at 2–3.
87
Dkt. 37 at 3.
88
533 U.S. at 699–700.
83

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for some time—the Federal Respondents have not shown a significant likelihood of Salad’s
removal in the reasonably foreseeable future. Based on the evidence before the Court, Salad has
provided good reason to believe that, because he is prima facie eligible for TPS, there is no
significant likelihood of removal in the reasonably foreseeable future which the Federal
Respondents have failed to rebut.
2. The Temporary Travel Document Does Not Show a Significant Likelihood
of Salad’s Removal in the Reasonably Foreseeable Future
The Federal Respondents objected “to the notion that the current travel documents do not
have any bearing on [Salad’s] removability.”89 They point to a temporary travel document issued
by Somalia and assert that even after the expiration of that travel document “there is no reason to
believe . . . a new travel document [would not be] issued in the future.”90 The Magistrate Judge
gave proper weight to the existence of the travel document. The fact that the Federal Respondents
presented a travel document does not convince the Court that there is a significant likelihood of
removal in the reasonably foreseeable future. The Court reviewed the temporary travel document,
as did the Magistrate Judge, and observes that it expires before any appeal of USCIS’s initial TPS
determination could reasonably be expected to conclude. Similarly, the Court is not persuaded by
the Federal Respondents’ argument that the present travel document indicates a likelihood that
they will be able to obtain another travel document in the future.91 The Federal Respondents
presented no evidence to support this position92 and their argument is simply too attenuated. They
rely on the occurrence of multiple unguaranteed future events, the denial of Salad’s TPS
application and the issuance of a new travel document. The Court is not convinced that these

89

Dkt. 37 at 3.
Dkt. 30 at 40; see also Dkt. 22-1 (travel document).
91
Id. at 2.
92
See generally Dkt. 30 (absence); Dkt. 37 (absence).
90

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potential future events create a significant likelihood of removal in the reasonably foreseeable
future.
V.

CONCLUSION

Accordingly, the Court ACCEPTS and ADOPTS the Final R&R at Docket 33 with the
following modification at page 15:
1.

Strike: “appropriate conditions of supervision to be determined by immigration
authorities.”

2. Add: “the conditions of release dictated in his November 28, 2023, OSUP.93 If
immigration authorities deem these conditions insufficient, they shall modify the
conditions through appropriate administrative process after Salad’s release from
detention. 94”
THEREFORE, the Court GRANTS the Petition at Docket 1 and finding the Petitioner is
entitled to immediate release from custody, a Writ shall issue. Salad shall file on or before
12:30 PM, on March 7, 2025, a proposed writ of habeas corpus in word format with the Court at
[e-mail].
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 7th day of March, 2025.
/s/ _Timothy M. Burgess________________
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE

93
94

Dkt. 19-1 (OSUP).
8 C.F.R. § 241.13(h)(1).
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