Vizguerra-Ramirez v. Choate et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 25-cv-00881-NYW
JEANETTE VIZGUERRA-RAMIREZ,
Petitioner-Plaintiff,
v.
JUAN BALTAZAR,
ROBERT GUADIAN,
KRISTI NOEM, and
PAMELA BONDI,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the following filings submitted by Petitioner
Jeanette Vizguerra-Ramirez (“Petitioner” or “Ms. Vizguerra-Ramirez”):
(1) The Amended and Verified Petition for Writ of Habeas Corpus (“Second
Amended Petition”), [Doc. 61];
(2) Petitioner’s Verified Motion to Clarify Scope of Temporary Restraining Order
(“Motion to Clarify”), [Doc. 31];
(3) Petitioner’s Motion for Expedited Discovery, [Doc. 37]; and
(4) Petitioner’s Motion for Release on Bond or, in the Alternative, a Preliminary
Injunction Ordering Release Pending a Final Judgment (“Motion for
Release”), [Doc. 45].
All filings are fully briefed. Upon review, the Court concludes that oral argument would
not materially assist in the disposition of the Second Amended Petition or the Motions.
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For the reasons set forth herein, the Second Amended Petition is respectfully
GRANTED in part, TAKEN UNDER ADVISEMENT in part, and DISMISSED in part
without prejudice. The Motion to Clarify is DENIED. The Motion for Expedited
Discovery is TAKEN UNDER ADVISEMENT. The Motion for Release is DENIED as
moot.
BACKGROUND
The following facts are drawn from the Second Amended Petition and the exhibits
submitted by the Parties. Many of the basic facts of this case are undisputed, and the
Court notes disputed facts as relevant.
Ms. Vizguerra-Ramirez is a native and citizen of Mexico. [Doc. 61 at ¶ 6]. She
entered the United States without inspection in 1997 and 2013 and has no current lawful
status. [Id. at ¶¶ 6, 11, 16]. She has lived in the United States for nearly thirty years, and
three of her four children are U.S. citizens. [Id. at ¶ 6].
Ms. Vizguerra-Ramirez was first placed in removal proceedings in 2009. [Id. at
¶ 12]. In November 2011, an immigration judge denied Ms. Vizguerra-Ramirez’s
application for cancellation of removal. [Id. at ¶ 13]. The immigration judge granted Ms.
Vizguerra-Ramirez’s request for voluntary departure and ordered her to do so within 60
days. [Id.]; see also [Doc. 16-1 at ¶ 7]. Ms. Vizguerra-Ramirez appealed to the Board of
Immigration Appeals (“BIA”). [Doc. 61 at ¶ 14]. While the appeal was pending, she
voluntarily departed to Mexico, triggering an automatic withdrawal of the appeal. [Id. at
¶ 15]; 8 C.F.R. § 1003.4 (2025).
In April 2013, Ms. Vizguerra-Ramirez reentered the United States without
inspection. [Doc. 61 at ¶ 16]. She was apprehended shortly thereafter and charged with
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and convicted of illegal reentry. [Id.]. In June 2013, Ms. Vizguerra-Ramirez was released
under an order of supervision that required her to report to a U.S. Immigration and
Customs Enforcement (“ICE”) Field Office in Centennial, Colorado. [Id. at ¶ 17].
On July 24, 2013, ICE officials detained Ms. Vizguerra-Ramirez at her check-in.
They presented her with a Form I-871, i.e., a Notice of Intent/Decision to Reinstate Prior
Order, that purported to reinstate the immigration judge’s November 2011 order as an
order of removal (“July 2013 Reinstatement Order”). [Id. at ¶ 18; id. at 52]. Ms. Vizguerra-
Ramirez declined to sign the form. She contends that the July 2013 Reinstatement Order
was (and is) deficient under 8 C.F.R. § 241.8(b) because it appears that ICE officials
finalized the order before informing her of her right to challenge the reinstatement
decision. [Id. at ¶¶ 18–20, 89, 91]. Ms. Vizguerra-Ramirez subsequently sought and
received successive stays of removal through 2016. [Doc. 16-1 at ¶¶ 17–22].
In February 2017, however, ICE denied Ms. Vizguerra-Ramirez’s application for a
further stay of removal and instead issued a Notice of Revocation of Release. [Id. at
¶ 23]. Ms. Vizguerra-Ramirez did not report to ICE and took sanctuary at a church in
Denver. [Id. at ¶ 24; Doc. 61 at ¶ 31]. This incident garnered Ms. Vizguerra-Ramirez
“significant national attention” as an immigration activist, including a feature as one of
Time Magazine’s “100 most influential people” in April 2017. [Doc. 61 at ¶ 31]. Starting
in December 2021, ICE granted Ms. Vizguerra-Ramirez several more stays of removal
that ultimately expired in February 2024. [Doc. 16-1 at ¶¶ 27–28].
On March 17, 2025, ICE agents detained Ms. Vizguerra-Ramirez while she was
on her lunch break. [Doc. 61 at ¶ 22]. She was handcuffed and photographed. [Id.].
One agent allegedly told her, “We finally got you!” [Id.]. The Denver ICE account on X
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(formerly Twitter) posted a picture of Ms. Vizguerra-Ramirez in handcuffs and chains
during her arrest, which was “amplified” by the main ICE X account with a comment
including the statement that “[a] high-profile status does not exempt a person from
immigration law.” [Id. at ¶ 32(a)]. Tricia McLaughlin, the Assistant Secretary for Public
Affairs within DHS (“Assistant Secretary McLaughlin”), also posted on X that “Under
President Trump and Secretary Noem, we are once again a nation of laws. We will find,
arrest, and deport illegal aliens regardless of if they were a featured ‘Time Person of the
Year.’” [Id. at ¶ 32(b)].
Ms. Vizguerra-Ramirez was transported to an ICE detention facility in Aurora,
Colorado, where she has remained in custody. [Id. at ¶ 22]; see also [Doc. 67-1 at ¶ 3].
Damian Morales, an ICE Deportation Officer, has submitted a Declaration averring that
Ms. Vizguerra-Ramirez is detained, and will be deported, based on the July 2013
Reinstatement Order. [Doc. 16-1 at ¶ 30].
Soon after arriving in detention, Ms. Vizguerra-Ramirez expressed a fear of return
to Mexico. [Doc. 67-1 at ¶ 4]. An immigration judge subsequently found that she had
established a reasonable possibility that she would be persecuted in Mexico on the basis
of a protected ground. [Id. at ¶ 9]. Ms. Vizguerra-Ramirez’s withholding-only
proceedings, which seek to determine whether she may be removed to Mexico, are
currently ongoing. [Id. at ¶ 24; Doc. 68-2]; see also Johnson v. Guzman Chavez, 594
U.S. 523, 530–32 (2021) (describing withholding-only process).
The day after she was detained, Ms. Vizguerra-Ramirez commenced this lawsuit
by filing a Petition for Writ of Habeas Corpus (“Original Habeas Petition”) against the
Warden of the Aurora ICE Processing Center, now Juan Baltazar; the Acting Director of
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ICE’s Denver Field Office, now Robert Guadian; Kristi Noem, the Secretary of the United
States Department of Homeland Security; and Pamela Bondi, the United States Attorney
General (collectively, “Respondents”). [Doc. 1]. The Court ordered Respondents to show
cause why Ms. Vizguerra-Ramirez’s petition should not be granted. [Doc. 9]. The Court
further ordered Respondents not to remove Ms. Vizguerra-Ramirez from the District of
Colorado or the United States until further order by this Court or the United States Court
of Appeals for the Tenth Circuit (“Tenth Circuit”). [Doc. 11]. On April 29, 2025, Ms.
Vizguerra-Ramirez filed the Motion to Clarify, asking the Court to “clarify” that its order
prohibiting Ms. Vizguerra-Ramirez’s removal also extends to certain procedural actions
by Respondents. [Doc. 31]. After amending her Original Habeas Petition to add a claim
for First Amendment retaliation, [Doc. 26], Ms. Vizguerra-Ramirez moved for expedited
discovery, [Doc. 37], and immediate release, [Doc. 45].
The operative Second Amended Petition includes four claims. First, Ms.
Vizguerra-Ramirez brings two related claims based on her argument that the July 2013
Reinstatement Order is insufficient to provide a basis for detention, such that her
detention violates both the Fifth Amendment and 8 U.S.C. § 1231(a)(5) and its
implementing regulations (the “Reinstatement Order Claims”). [Doc. 61 at ¶¶ 87–92].
The relevant regulation provides that:
If an officer determines that an alien is subject to removal under this section,
he or she shall provide the alien with written notice of his or her
determination. The officer shall advise the alien that he or she may make
a written or oral statement contesting the determination. If the alien wishes
to make such a statement, the officer shall allow the alien to do so and shall
consider whether the alien’s statement warrants reconsideration of the
determination.
8 C.F.R. § 241.8(b) (2025). Ms. Vizguerra-Ramirez argues, in essence, that
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Respondents finalized their determination before informing her of her right to contest the
determination and failed to consider her statement in opposition. [Doc. 61 at ¶¶ 89, 91].
Next, she contends that her detention, combined with subsequent “procedural
violations and irregularities,” amounts to unlawful retaliation for her immigration-related
advocacy, in violation of the First Amendment (the “First Amendment Claim”). [Id. at
¶¶ 93–97]. Ms. Vizguerra-Ramirez’s Motion for Expedited Discovery and Motion for
Release both relate to her First Amendment Claim.
Finally, she claims that to the extent she is detained under 8 U.S.C. § 1231(a), her
detention is now unreasonably prolonged under the Fifth Amendment (the “Prolonged
Detention Claim”). [Id. at ¶¶ 98–124]. Respondents have responded to each claim as it
was added to the case, [Doc. 16; Doc. 30; Doc. 67], and Ms. Vizguerra-Ramirez has
replied, [Doc. 18; Doc. 39; Doc. 68]. The Motion to Clarify, Motion for Expedited
Discovery, and Motion for Release are also fully briefed.
LEGAL STANDARD
Section 2241 of Title 28 authorizes federal district courts to grant writs of habeas
corpus when a person is “in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(a), (c)(3). “[T]he essence of habeas corpus is an
attack by a person in custody upon the legality of that custody, and that the traditional
function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411
U.S. 475, 484 (1973). “Challenges to immigration detention are properly brought directly
through habeas.” Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing
Zadvydas v. Davis, 533 U.S. 678, 687–88 (2001)).
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ANALYSIS
I. Jurisdiction
Respondents contend that the Court lacks jurisdiction over the Reinstatement
Order Claims and the First Amendment Claim. That contention chiefly arises from three
statutory provisions that limit a district court’s jurisdiction in the immigration context. The
first of those provisions is 8 U.S.C. § 1252(a)(5), which provides in relevant part:
Notwithstanding any other provision of law (statutory or nonstatutory),
including section 2241 of title 28, or any other habeas corpus provision, and
sections 1361 and 1651 of such title, a petition for review filed with an
appropriate court of appeals in accordance with this section shall be the
sole and exclusive means for judicial review of an order of removal entered
or issued under any provision of this chapter, except as provided in
subsection (e).
Section 1252(b)(9) further consolidates judicial review of removal orders with the courts
of appeals:
Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action
taken or proceeding brought to remove an alien from the United States
under this subchapter shall be available only in judicial review of a final
order under this section. Except as otherwise provided in this section, no
court shall have jurisdiction, by habeas corpus under section 2241 of title
28 or any other habeas corpus provision, by section 1361 or 1651 of such
title, or by any other provision of law (statutory or nonstatutory), to review
such an order or such questions of law or fact.
8 U.S.C. § 1252(b)(9). Finally, § 1252(g) limits removal-related jurisdiction to the petition
for review process outlined in § 1252:
Except as provided in this section and notwithstanding any other provision
of law (statutory or nonstatutory), including section 2241 of title 28, or any
other habeas corpus provision, and sections 1361 and 1651 of such title,
no court shall have jurisdiction to hear any cause or claim by or on behalf
of any alien arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders
against any alien under this chapter.
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Id. § 1252(g). The Court addresses its jurisdiction over the Reinstatement Order Claims
and the First Amendment Claim in turn.
A. Reinstatement Order Claims
Respondents argue that “§ 1252(a)(5) bars district-court jurisdiction” over the
Reinstatement Order Claims and grants exclusive jurisdiction over such claims to the
Tenth Circuit. [Doc. 16 at 14]. Under § 1252(a)(5), a petition for review with the
“appropriate court of appeals” is the “sole and exclusive” method of obtaining “judicial
review of an order of removal.” [Id. at 10–11]. And because a challenge to a reinstated
removal order counts as a challenge to an “order of removal” for purposes of § 1252(a)(5),
Respondents argue that Ms. Vizguerra-Ramirez’s constitutional and regulatory
challenges to the July 2013 Reinstatement Order can only be heard by the Tenth Circuit.
[Id. at 11–13].
Ms. Vizguerra-Ramirez replies that her claims are not focused on the “substantive
legality or validity” of the reinstatement order, but rather whether the order “meet[s] the
regulatory definition of a reinstatement order.” [Doc. 18 at 6]. Any authority to detain her
stems from that order, she reasons, so these claims are properly brought in habeas. [Id.].
The Tenth Circuit has held that “a reinstatement order is a ‘final order of removal’”
for purposes of § 1252. Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007)
(quoting § 1252(a)(1)). A challenge to a reinstatement order is therefore subject to the
judicial review provisions in § 1252(a). Id. That includes § 1252(a)(5)’s instruction that
the “appropriate court of appeals” possesses exclusive jurisdiction to hear such a
challenge in a petition for review. See Gonzalez-Alarcon v. Macias, 884 F.3d 1266, 1274–
75 (10th Cir. 2018) (affirming district court’s conclusion that § 1252(a)(5) deprived it of
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jurisdiction to review habeas claim premised on alleged invalidity of reinstated removal
order). And as the Tenth Circuit explained in Gonzalez-Alarcon, “the jurisdiction-stripping
provisions apply to indirect challenges to the merits of a removal order.” Id. (collecting
cases).
Ms. Vizguerra-Ramirez’s Reinstatement Order Claims present an indirect
challenge to the merits of her reinstated removal order. Although she frames the inquiry
as whether a reinstatement order exists, the Reinstatement Order Claims depend on her
argument that the July 2013 Reinstatement Order fails to comply with the regulatory
requirements set out in 8 C.F.R. § 241.8. That position plainly requires the Court to
assess the validity of the July 2013 Reinstatement Order. And because the July 2013
Reinstatement Order is the asserted basis for both her detention and her removal, [Doc.
16-1 at ¶¶ 29–30]; 8 U.S.C. § 1231(a)(5)–(6), a ruling in Ms. Vizguerra-Ramirez’s favor
as to her detention would also implicate the legality of her removal. Section 1252(a) and
Tenth Circuit precedent mandate that such claims be brought in a petition for review in
the Tenth Circuit.1 Accordingly, the Reinstatement Order Claims are DISMISSED
without prejudice for lack of subject matter jurisdiction.
B. First Amendment Claim
Respondents also argue that § 1252(b)(9) and § 1252(g) strip the Court of
jurisdiction over Ms. Vizguerra-Ramirez’s First Amendment Claim. [Doc. 30 at 11–14].
1 The Court takes judicial notice that Ms. Vizguerra-Ramirez has filed two petitions for
review in Vizguerra-Ramirez v. Bondi, Case No. 25-9532 (10th Cir. Mar. 18, 2025), and
Vizguerra-Ramirez v. Bondi, Case No. 25-9559 (10th Cir. Jul. 28, 2025). See Stan Lee
Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1298 n.2 (10th Cir. 2014) (recognizing
that Federal Rule of Evidence 201(b)(2) allows a Court to take judicial notice of
“documents and docket materials filed in other courts”); see also [Doc. 16 at 4 (citing [Doc.
16-2])].
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As with the Reinstatement Order Claims, Respondents argue that the First Amendment
Claim challenges conduct that is “inextricably linked” to an order of removal and thus
outside this Court’s habeas jurisdiction pursuant to § 1252(b)(9). [Id. (quoting Martinez
v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012))]. And because the First Amendment
Claim arises from the Attorney General’s actions to “execute the 2013 Reinstatement
Order” by “arresting and detaining” Ms. Vizguerra-Ramirez, Respondents urge that
§ 1252(g) limits the Court’s jurisdiction as well. [Id. at 14]. Respondents suggest that this
conclusion is confirmed by the Supreme Court’s decision in Reno v. American-Arab Anti-
Discrimination Committee (AADC), 525 U.S. 471 (1999), which Respondents
characterize as interpreting § 1252(g) to foreclose judicial review of selective-
enforcement claims in the immigration context, [Doc. 30 at 14].
Ms. Vizguerra-Ramirez replies that Respondents overread AADC and the relevant
statutory provisions. [Doc. 39]. She argues that § 1252(g) applies only to “three discrete
actions”—i.e., the decision or action to commence proceedings, adjudicate cases, or
execute removal orders—whereas her First Amendment Claim challenges only the
“decision to detain.” [Id. at 4]; see also AADC, 525 U.S. at 482. Ms. Vizguerra-Ramirez
further argues that AADC left open the possibility of selective enforcement claims based
on “outrageous” discrimination. [Doc. 39 at 3–6]. She urges the Court to adopt the
Second Circuit’s formulation of a test for outrageous discrimination in Ragbir v. Homan,
923 F.3d 53 (2d Cir. 2019), vacated sub nom., Pham v. Ragbir, 141 S. Ct. 227 (2020).
[Doc. 39 at 3–6]. Finally, she retreads her same argument as to § 1252(b)(9), contending
that this provision is inapplicable because the salient “threshold question” is whether a
removal order exists at all. [Id. at 6–7].
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The Court begins with the Parties’ statutory arguments. As an initial matter, the
Court notes that the record is unclear as to the precise statutory basis the Government
invokes for Ms. Vizguerra-Ramirez’s detention. Respondents repeatedly assert that
detention of an individual subject to a reinstated removal order is authorized by “8 U.S.C.
§ 1231.” See, e.g., [Doc. 16 at 8; Doc. 30 at 5]. Broadly, that position is correct. See
Guzman Chavez, 594 U.S. at 526. But § 1231 contains two potentially salient detention
provisions. First, § 1231(a)(2)(A) mandates detention during the 90-day “removal period”
after “an alien is ordered removed,” as defined by § 1231(a)(1)(A). Second, § 1231(a)(6)
allows for, but does not require, detention past the removal period if, among other things,2
the Government determines that the individual is “a risk to the community or unlikely to
comply with the order of removal.” The Parties generally do not address this issue, but
Respondents’ brief opposing the Motion for Release suggests that they believe §
1231(a)(2)(A) required Ms. Vizguerra-Ramirez’s initial detention for 90-days, followed by
a period of discretionary detention authorized by § 1231(a)(6). See [Doc. 53 at 4–5
(indicating that ICE did not determine whether Petitioner was likely to comply with her
removal order until 90 days after her initial arrest)].
Because Ms. Vizguerra-Ramirez frames her First Amendment Claim as
challenging the “decision to detain,” this distinction has significant ramifications for the
2 Section 1231(a)(6) also permits detention beyond the removal period if the individual is
inadmissible under 8 U.S.C. § 1182 or removable under certain subsections of 8 U.S.C.
§ 1227(a). Respondents do not argue that Ms. Vizguerra-Ramirez fits into either of these
categories. For purposes of this Order, the Court assumes that these categories do not
apply and § 1231(a)(6) could only authorize Ms. Vizguerra-Ramirez’s detention if the
Government determines her to be a flight risk or danger to the community. However,
even if Ms. Vizguerra-Ramirez could be detained on one of the other bases listed in
§ 1231(a)(6), that would not affect the Court’s assessment of its jurisdiction over the
claims in the Second Amended Petition.
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Court’s jurisdiction. Most of the alleged evidence of retaliation—such as several social
media posts from individuals associated with ICE and the ICE agent’s statement that, “We
finally got you!”—occurred during or immediately after Ms. Vizguerra-Ramirez’s arrest.
See [Doc. 61 at ¶ 32]. But if § 1231(a)(2)(A) applied and required Respondents to
apprehend and detain Ms. Vizguerra-Ramirez for at least 90 days after the decision to
enforce the July 2013 Removal Order, then the “decision to detain” might be fairly
characterized as “inextricably intertwined” with the decision to execute the reinstated
removal order, thus depriving the Court of jurisdiction under § 1252(b)(9) and (g).
Upon inspection of § 1231(a), however, the Court concludes that the decision to
detain Ms. Vizguerra-Ramirez was not mandated by § 1231(a)(2)(A). Section
1231(a)(1)(B) provides that the 90-day removal “period begins on the latest of the
following”: (1) “[t]he date the order of removal becomes administratively final”; (2) “[i]f the
removal order is judicially reviewed and if a court orders a stay of the removal of the alien,
the date of the court’s final order”; or (3) “[i]f the alien is detained or confined (except
under an immigration process), the date the alien is released from detention or
confinement.” 8 U.S.C. § 1231(a)(1)(B). In the context of a reinstated removal order, the
date of reinstatement typically serves as the date of the final order of removal, triggering
the removal period. See, e.g., Alva v. Kaiser, No. 25-cv-06676-RFL, 2025 WL 2419262,
at *3 (N.D. Cal. Aug. 21, 2025) (“Petitioner’s 90-day removal period began to run on
December 1, 2018, the date that his removal order was reinstated after his reentry into
the United States.”); Garcia Uranga v. Barr, No. 20-cv-03162-JWL, 2020 WL 4334999, at
*5 (D. Kan. July 28, 2020) (collecting cases); Uttecht v. Napolitano, No. 8:12-cv-00347,
2012 WL 5386618, at *2 & n.1 (D. Neb. Nov. 1, 2012) (collecting cases). Here, the July
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2013 Reinstatement Order was dated July 24, 2013. [Doc. 61 at 52]. Setting aside
Petitioner’s arguments about the validity of the July 2013 Reinstatement Order, crediting
the Government’s perspective, the Reinstatement Order became “administratively final”
in July 2013 at the latest. Thus, the 90-day removal period for mandatory detention under
§ 1231(a)(2)(A) expired long before Ms. Vizguerra-Ramirez’s arrest in March 2025.
That means Ms. Vizguerra-Ramirez’s detention after her arrest could only be
discretionary, as authorized by § 1231(a)(6). The inquiry, then, is whether a decision to
detain her under § 1231(a)(6) falls within the jurisdiction-stripping provisions in
§ 1252(b)(9) and (g).
1. Section 1252(b)(9)
With respect to § 1252(b)(9), Ms. Vizguerra-Ramirez’s challenge to Respondents’
decision to detain her does not “aris[e] from” an “action taken or proceeding brought to
remove an alien.” “The question [under § 1252(b)(9)] is not whether detention is an action
taken to remove an alien but whether the legal questions in this case arise from such an
action.” Jennings v. Rodriguez, 583 U.S. 281, 295 n.3 (2018) (plurality opinion).
While Respondents’ decision to enforce the July 2013 Reinstatement Order was
essentially an exercise of prosecutorial discretion, cf. AADC, 525 U.S. at 488–92, the
decision to detain under § 1231(a)(6) requires a separate determination that an individual
is a “risk to the community or unlikely to comply with the order of removal.” In other words,
Ms. Vizguerra-Ramirez’s detention “did not flow naturally as a consequence of her
removal proceedings.” Ozturk v. Trump (Ozturk I), 779 F. Supp. 3d 462, 484 (D. Vt.
2025). To be sure, Ms. Vizguerra-Ramirez’s detention may, in a strictly factual sense,
arise from the decision to execute her reinstatement order. But the Jennings plurality
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rejected “uncritical literalism” in interpreting the phrase “arising from” in favor of a
narrower approach that focuses on the legal questions at issue. 583 U.S. at 293–95 &
n.3 (quotation omitted). And the legal questions presented by Ms. Vizguerra-Ramirez’s
First Amendment Claim arise from whether Respondents properly determined that she
was subject to detention under § 1231(a)(6) or whether they elected to arrest and detain
her based on a retaliatory motive. Ozturk I, 779 F. Supp. 3d at 484 (finding that
§ 1252(b)(9) did not apply where habeas inquiry focused on whether petitioner’s detention
“comport[ed] with the law and the Constitution”); Mahdawi v. Trump, 781 F. Supp. 3d 214,
228 (D. Vt. 2025) (reaching similar conclusion where habeas petition arose from alleged
retaliatory arrest, not the “Government’s decision to place [petitioner] in removal
proceedings”), appeal docketed, No. 25-1113 (2d Cir. May 1, 2025). Accordingly, the
Court respectfully concludes that § 1252(b)(9) does not deprive the Court of jurisdiction
over Ms. Vizguerra-Ramirez’s First Amendment claim.
2. Section 1252(g)
The analysis with respect to § 1252(g) is more straightforward. The Supreme
Court has read § 1252(g) to preclude judicial review of only the “three discrete actions”
identified therein: the “‘decision or action’ to ‘commence proceedings, adjudicate cases,
or execute removal orders.’” AADC, 525 U.S. at 482 (quoting § 1252(g)). The “many
other decisions or actions that may be part of the deportation process” are not subject to
this provision. Id. As explained above, Ms. Vizguerra-Ramirez’s First Amendment claim
is properly framed as challenging the “decision to detain.” [Doc. 39 at 4]. Based on AADC
and the plain text of § 1252(g), the Court has jurisdiction over Ms. Vizguerra-Ramirez’s
First Amendment claim.
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The Court respectfully disagrees with Respondents’ position that the portion of
AADC that addresses selective enforcement claims applies here. In AADC, the Supreme
Court held that § 1252(g) barred a habeas challenge to the Government’s decision to
commence removal proceedings, despite the petitioners’ allegations of First Amendment
retaliation. 525 U.S. at 487–88. The AADC Court held that “an alien unlawfully in this
country has no constitutional right to assert selective enforcement as a defense against
his deportation.” Id. at 488 (emphasis added). Such a rule was necessary to protect the
Government’s prosecutorial discretion and to avoid requiring the “disclosure of foreign-
policy objectives and . . . foreign-intelligence products and techniques.” Id. at 490–91.
AADC did, however, acknowledge “the possibility of a rare case in which the alleged basis
of discrimination is so outrageous” that a selective enforcement claim may be viable. Id.
at 491.
The Court need not decide whether this is that rare, “outrageous” case of
discrimination. AADC dealt with selective enforcement as a defense against deportation,
not detention. See Ozturk I, 779 F. Supp. 3d at 485 n.5 (“AADC was exclusively about
removal, not detention.”). The policy concerns underlying AADC’s near-ban on selective
enforcement as a defense to deportation carry far less weight in a habeas challenge to
the decision to detain under § 1231(a)(6). Unlike the discretionary decision to commence
removal proceedings or execute a removal order, which may implicate foreign policy
concerns not amenable to judicial review, the decision to detain under § 1231(a)(6)
focuses only on the more pedestrian considerations of whether the individual would be “a
risk to the community or unlikely to comply with the order of removal.” Accordingly, the
Court concludes that AADC is inapposite to Ms. Vizguerra-Ramirez’s First Amendment
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Claim based on her alleged retaliatory arrest and detention. See Bello-Reyes v. Gaynor,
985 F.3d 696, 700 n.4 (9th Cir. 2021) (declining to apply AADC in habeas case
challenging alleged retaliatory immigration detention, because “AADC forecloses
selective prosecution claims only as to the three actions listed in 8 U.S.C. § 1252(g)”).
3. Scope of Available Relief
The foregoing discussion relies on understanding Ms. Vizguerra-Ramirez’s First
Amendment Claim as challenging only her arrest and detention, not her removal. In part,
that is because the Court adopts the framing of the claim that Ms. Vizguerra-Ramirez
employs in her briefing. See [Doc. 39 at 4]. To be clear, though, the First Amendment
Claim fails insofar as it challenges her removal. As Respondents point out, the Second
Amended Petition appears to target the entire scope of “ICE’s enforcement actions
against Ms. Vizguerra-Ramirez,” [Doc. 61 at ¶ 32], and asks the Court to “[e]nter an
injunction restraining Respondents from taking any action to deport Petitioner unless
Respondents demonstrate that such action is untainted by unlawful First Amendment
retaliation and discrimination,” [id. at 48]; see also [Doc. 30 at 12–13]. To the extent Ms.
Vizguerra-Ramirez seeks to assert a constitutional challenge to ICE’s decisions or actions
to execute her removal order and commence removal proceedings, that claim must be
presented to the Tenth Circuit in a petition for review. 8 U.S.C. § 1252(a)(5), (b)(9), (g).
Moreover, to the extent she claims that a First Amendment challenge to her arrest and
detention entitles her to relief against removal, such a claim is not cognizable in habeas.
See DHS v. Thuraissigiam, 591 U.S. 103 (2020).
In Thuraissigiam, the Supreme Court reiterated that “habeas is at its core a remedy
for unlawful executive detention.” Id. at 119 (cleaned up). There, an asylum seeker in
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immigration detention brought a habeas claim seeking “vacatur of his ‘removal order’ and
‘an order directing the Department to provide him with a new opportunity to apply for
asylum and other relief from removal.’” Id. at 117–18 (alterations omitted). The Supreme
Court observed that the asylum seeker “[did] not want ‘simple release’ but, ultimately, the
opportunity to remain lawfully in the United States.” Id. at 119. Because that relief fell
outside the originalist “core” of habeas, the asylum seeker’s habeas claim failed. See id.
at 119–20 (“Respondent and amici . . . have not unearthed evidence that habeas was [at
the time of the founding] used to obtain anything like what is sought here, namely,
authorization for an alien to remain in a country other than his own or to obtain
administrative or judicial review leading to that result.”).
Thus, Ms. Vizguerra-Ramirez’s request that the Court enjoin Respondents from
taking action to remove her from the United States falls outside the scope of available
habeas relief. See Rauda v. Jennings, 55 F.4th 773, 779–80 (9th Cir. 2022) (applying
Thuraissigiam to conclude that requested relief fell outside the scope of habeas where
petitioner sought to “avoid being released (into El Salvador)” instead of seeking relief from
“unlawful custody”); I.M. v. U.S. Customs & Border Protection, 67 F.4th 436, 442 (D.C.
Cir. 2023) (“Because ‘the essence of habeas corpus is an attack by a person in custody,’
it cannot be used to challenge ‘something other than the fact or length of his
confinement.’” (quoting Preiser, 411 U.S. at 484, 494)). As explained above, this Court
lacks jurisdiction to substantively adjudicate Ms. Vizguerra-Ramirez’s requests for relief
related to her removal. Accordingly, Ms. Vizguerra-Ramirez’s First Amendment Claim is
DISMISSED in part to the extent she contests the decision to execute the July 2013
Reinstatement Order or seeks relief directed at her removal. The Court limits its review
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of the First Amendment Claim to Ms. Vizguerra-Ramirez’s challenge to her alleged
unlawful detention.
II. Merits
A. Prolonged Detention Claim
Because the Court’s analysis of the Prolonged Detention Claim affects its analysis
of the First Amendment Claim, the Court begins with the Prolonged Detention Claim. Ms.
Vizguerra-Ramirez contends that her post-removal period detention has become
unreasonably prolonged in violation of her due process rights. [Doc. 61 at ¶¶ 98–99].
1. Whether Zadvydas Provides the Controlling Standard
“It is well established that the Fifth Amendment entitles aliens to due process of
law in deportation proceedings.” Demore v. Kim, 538 U.S. 510, 523 (2003) (quotation
omitted). While it is undisputed that Ms. Vizguerra-Ramirez is entitled to the protections
of due process, the Parties contest, as an initial matter, what standard controls this claim.
Ms. Vizguerra-Ramirez asks the Court to follow three other judges in this District and
apply the six-factor test adopted in Singh v. Choate, No. 19-cv-00909-KLM, 2019 WL
3943960, at *5 (D. Colo. Aug. 21, 2019). [Doc. 61 at ¶¶ 99–120]; see Arostegui-
Maldonado v. Baltazar, 794 F. Supp. 3d 926, 938 (D. Colo. 2025) (Martinez, J.), appeal
dismissed per stipulation, No. 25-1377 (10th Cir. Oct. 10, 2025); Ramirez v. Bondi, No.
25-cv-01002-RMR, 2025 WL 1294919, at *6 (D. Colo. May 5, 2025) (Rodriguez, J.),
appeal docketed, No. 25-1263 (10th Cir. July 8, 2025); Juarez v. Choate, No. 24-cv-
00419-CNS, 2024 WL 1012912, at *4 (D. Colo. Mar. 8, 2024) (Sweeney, J.).
Respondents urge the Court to instead apply the standard articulated by the Supreme
Court in Zadvydas v. Davis, 533 U.S. 678 (2001). [Doc. 67 at 8–13].
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In Zadvydas, the Supreme Court confronted whether § 1231(a)(6) permits
indefinite detention of individuals subject to a removal order. 533 U.S. at 682. The Court
started from the assumption that civil immigration proceedings—and detention pursuant
to those proceedings—are “nonpunitive in purpose and effect.” Id. at 690. Recognizing
that indefinite civil detention would raise a serious constitutional issue under the Fifth
Amendment’s Due Process Clause, id., the Court interpreted § 1231(a)(6) to authorize
detention beyond an initial, presumptively reasonably six-month period only when
removal is “reasonably foreseeable,” id. at 699–701. Thus, once an individual has been
detained for more than six months, if “there is no significant likelihood of removal in the
reasonably foreseeable future,” then § 1231(a)(6) does not permit detention. Id. at 701.
The Supreme Court has subsequently confirmed that Zadvydas hinged on the
Court’s interpretation of the scope of § 1231(a)(6) based on the canon of constitutional
avoidance. Johnson v. Arteaga-Martinez, 596 U.S. 573, 579 (2022). Arteaga-Martinez
went on to hold that, as a matter of statutory interpretation, § 1231(a)(6) does not require
a bond hearing after six months of detention. Id. at 580–81. But the Arteaga-Martinez
Court declined to address the detainee’s constitutional claim that due process principles
demanded a bond hearing. Id. at 583. The Court acknowledged the Government’s
position that “as-applied constitutional challenges remain available to address
‘exceptional’ cases,” but left the issue of as-applied challenges for “lower courts to
consider in the first instance.” Id.
As Judge Sweeney observed in Juarez, lower courts have adopted various
standards for as-applied due process challenges to prolonged detention under
§ 1231(a)(6). Juarez, 2024 WL 1012912, at *6 (collecting cases). Indeed, some courts
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have held that the standard for an as-applied challenge is simply Zadvydas, because
detention authorized by Zadvydas’s interpretation of § 1231(a)(6) necessarily also
comports with due process. See, e.g., Castaneda v. Perry, 95 F.4th 750, 760 (4th Cir.
2024). That is likely true in most cases. If every habeas petitioner detained under
§ 1231(a)(6) could escape Zadvydas by simply styling their claim as an as-applied
constitutional challenge, the exception would swallow Zadvydas’s rule that § 1231(a)(6)
detention does not offend due process so long as removal is reasonably foreseeable.
See Castaneda, 95 F.4th at 760 (“[T]he Zadvydas standard is due process: a § 1231
detainee who fails the Zadvydas test fails to prove a due process violation.”). But the
non-Zadvydas constitutional backstop contemplated in Arteaga-Martinez avoids this
problem by referring to as-applied challenges in “exceptional” cases. 596 U.S. at 583.
Even Castaneda is equivocal on this point—the Fourth Circuit observed that “Zadvydas
largely, if not entirely” eliminates as-applied challenges to § 1231(a) detention, but
considered whether that petitioner’s case was indeed “exceptional.” 95 F.4th at 760–61.
Assuming an “exceptionality” inquiry is necessary before entertaining an as-
applied due process challenge to detention under § 1231(a)(6), the Court finds that Ms.
Vizguerra-Ramirez has satisfied such a standard. Unlike the petitioner in Castaneda,
who claimed exceptional circumstances based on length of detention alone, 95 F.4th at
761, Ms. Vizguerra-Ramirez’s Second Amended Petition includes specific, troubling
allegations that her detention was motivated by Respondents’ desire to retaliate against
her for activities protected by the First Amendment, [Doc. 61 at ¶¶ 32–33]; see also [Doc.
68 at 6 (Ms. Vizguerra-Ramirez arguing, in context of her due process claim, that
“Respondents have taken away her liberty for nearly eight months (predicated on a
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severe First Amendment violation)”)].
Ms. Vizguerra-Ramirez points to statements by individuals associated with
Respondents demonstrating that Respondents were aware of her protected activities3 at
the time of her arrest: (1) the posts on X by the Denver ICE account and main ICE
account; (2) Assistant Secretary McLaughlin’s post on X, including the statement that the
Government “will find, arrest, and deport illegal aliens regardless of if they were a
featured ‘Time Person of the Year’”; and (3) one of the ICE agents arresting Ms.
Vizguerra-Ramirez told her, “We finally got you!” [Doc. 61 at ¶ 32(a), (b), (g)]. The posts
by the Denver ICE account, the main ICE account, and Assistant Secretary McLaughlin
suggest that Respondents essentially sought to make an example of Ms. Vizguerra-
Ramirez by arresting and detaining an individual with a high profile as a labor and
immigration activist. Cf. Ozturk v. Trump (Ozturk II), 783 F. Supp. 3d 801, 809–10 (D. Vt.
2025) (concluding that petitioner’s arrest was likely motivated by retaliatory intent based
on, among other things, statements by Secretary of State Marco Rubio indicating that the
petitioner’s protected speech was “supportive of movements that run counter to the
foreign policy of the United States,” such that “detention was ‘basically asking them to
leave the country’”).
To be clear, the factual record remains relatively undeveloped as to Ms. Vizguerra-
Ramirez’s First Amendment Claim, and this Order does not resolve that claim on its
merits. But Ms. Vizguerra-Ramirez’s serious allegations of Respondents’ retaliatory
3 Although Respondents contend that the First Amendment Claim fails on the merits, they
do not dispute that Ms. Vizguerra-Ramirez engaged in activity protected by the First
Amendment by, among other things, protesting U.S. immigration policies. See [Doc. 30
at 17–22]; see also [Doc. 61 at ¶ 31; Doc. 45 at 6].
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motives—based on their own undisputed statements, see [Doc. 30 at 17–22]—raise
unique due process concerns that affect the Court’s analysis of her Prolonged Detention
Claim. Specifically, if Respondents’ detention determinations under § 1231(a)(6) have
been polluted by retaliatory intent, the mere fact that removal is reasonably foreseeable
under Zadvydas may be insufficient to safeguard Ms. Vizguerra-Ramirez’s due process
rights. See [Doc. 67 at 12 (Respondents arguing that Petitioner’s detention continues
only because of her “ongoing withholding-only proceedings”)]. “An impartial
decisionmaker is a fundamental requirement of due process.” Gwinn v. Awmiller, 354
F.3d 1211, 1220 (10th Cir. 2004); accord Goldberg v. Kelly, 397 U.S. 254, 271 (1970)
(“And, of course, an impartial decision maker is essential.”). Moreover, Zadvydas
expressly relied on the assumption that immigration detention proceedings are
“nonpunitive in purpose and effect.” 533 U.S. at 690. That assumption was necessary
because civil detention violates the Fifth Amendment’s Due Process Clause except “in
certain special and narrow nonpunitive circumstances, where a special justification, such
as harm-threatening mental illness, outweighs the individual’s constitutionally protected
interest in avoiding physical restraint.” Id. (cleaned up). But Ms. Vizguerra-Ramirez’s
substantial First Amendment allegations, taken to their logical conclusion, suggest that
ICE did not act as an impartial decisionmaker in determining that she was subject to
continued detention under § 1231(a)(6) and may have been motivated by a punitive
purpose. That presents far more serious due process concerns than a garden variety
prolonged detention claim, and the Court concludes that the unique facts of this case
amount to exceptional circumstances. Arteaga-Martinez, 596 U.S. at 583; cf. Ozturk II,
783 F. Supp. 3d at 811–12 (finding “extraordinary circumstances” warranting release on
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bail pending adjudication of habeas claims where, among other things, the petitioner
presented substantial claims that the government arrested and detained her in retaliation
for her political speech).
It may be that the exceptional circumstances of this case, on their own, require a
constitutionally adequate bond hearing to cure any due process issues in Respondents’
detention determinations under § 1231(a)(6). However, Petitioner makes no such
argument. And, as noted, other judges in this District have concluded that the Singh
factors provide a sufficient framework for assessing whether a noncitizen’s detention in a
particular case has become unreasonably prolonged for due process purposes. See
Arostegui-Maldonado, 794 F. Supp. 3d at 938 (collecting cases).
Having addressed Zadvydas and Arteaga-Martinez, the Court is respectfully
unpersuaded by Respondents’ other arguments against the Singh factors. First,
Respondents argue that the Singh factors should not apply in § 1231 cases because
Singh involved detention under 8 U.S.C. § 1226(c), and “noncitizens detained under
Section 1226 are differently situated from those detained under Section 1231 because
one group has not yet been deemed removable and the other group has.” [Doc. 67 at 12
(citing Guzman Chavez, 594 U.S. at 544)]. For purposes of due process, that is a
distinction without a difference. As Judge Sweeney explained in Juarez, “there appears
to be little substantial distinction between the liberty interest of noncitizens detained
pursuant to § 1226(c) and § 1231(a)(6), because regardless of the stage of the
proceedings, the same important interest is at stake—freedom from prolonged detention.”
2024 WL 1012912, at *6 (cleaned up); see also Arostegui-Maldonado, 794 F. Supp. 3d
at 938–39 (following Juarez on this issue). And to the extent Respondents contend that
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Ms. Vizguerra-Ramirez’s risk of flight is amplified due to the procedural posture of her
removal proceedings, [Doc. 67 at 12–13], they may press that argument at the bond
hearing.
Next, Respondents argue that the Singh factors are “inapposite here, amorphous,
and inconsistent with the well-defined Zadvydas standard.” [Id. at 13]. As explained, the
unique, exceptional constitutional concerns presented by this case mean that
Respondents cannot simply rely on the pendency of Ms. Vizguerra-Ramirez’s
withholding-only proceedings to demonstrate that they have afforded her the protections
of due process when determining whether to prolong her detention under § 1231(a)(6).
And although some Singh factors may bear on this case more heavily than others, that is
an inherent feature of a multi-factor balancing test. Again, the exceptional circumstances
of this case warrant a fact-specific inquiry to determine whether a bond hearing is
necessary. Courts in this District have adopted the Singh factors to make such a
determination, and this Court will follow suit.
2. Application of the Singh Factors
Singh prescribes six factors used to “determine whether a noncitizen’s detention
has become so prolonged as to violate due process.” Ramirez, 2025 WL 1294919, at *6.
Those factors are:
(1) the total length of detention to date; (2) the likely duration of future
detention; (3) the conditions of detention; (4) delays in the removal
proceedings caused by the detainee; (5) delays in the removal proceedings
caused by the government; and (6) the likelihood that the removal
proceedings will result in a final order of removal.
Singh, 2019 WL 3943960, at *5 (quotation omitted). The Court addresses each factor in
turn.
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Total Length of Detention. Ms. Vizguerra-Ramirez has been detained since
March 17, 2025. See, e.g., [Doc. 61 at ¶ 22; Doc. 67-1 at ¶ 3]. She has therefore been
detained for approximately nine months, exceeding the presumptively reasonable six-
month detention period recognized in Zadvydas. 533 U.S. at 701. Accordingly, the first
Singh factor weighs in Ms. Vizguerra-Ramirez’s favor. See Juarez, 2024 WL 1012912,
at *6; Ramirez, 2025 WL 1294919, at *6; Villaescusa-Rios v. Choate, No. 20-cv-03187-
CMA, 2021 WL 269766, at *3 (D. Colo. Jan. 27, 2021) (collecting cases).
Likely Duration of Future Detention. “Courts examine the anticipated duration
of all removal proceedings—including administrative and judicial appeals—when
estimating how long detention will last.” Villaescusa-Rios, 2021 WL 269766, at *3
(quotation omitted). Ms. Vizguerra-Ramirez’s detention will likely continue while her
withholding-only proceedings and petition for review in the Tenth Circuit are pending.
[Doc. 61 at ¶ 103]. A hearing on her withholding-only proceedings has only recently
occurred, [Doc. 68-2], and briefing has not yet completed in the petition for review, nor
has oral argument been set, see Vizguerra-Ramirez v. Bondi, No. 25-9559 (10th Cir.
2025). Moreover, a decision in Ms. Vizguerra-Ramirez’s withholding-only proceedings
would likely be appealed to the BIA. And if she prevails on her petition for review, that
could trigger a further remand and possible re-initiation of removal proceedings. Given
the overall procedural posture of Ms. Vizguerra-Ramirez’s case, the Court concludes that
“detention will definitely terminate at some point, but that point is likely to be many months
or even years from now.” Villaescusa-Rios, 2021 WL 269766, at *3 (quoting Singh, 2019
WL 3943960, at *6). This factor weighs in Ms. Vizguerra-Ramirez’s favor. See, e.g.,
Juarez, 2024 WL 1012912, at *7.
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Conditions of Detention. The third factor requires the Court to consider “whether
the facility for the civil immigration detention is meaningfully different from a penal
institution for criminal detention.” Villaescusa-Rios, 2021 WL 269766, at *4 (quotation
omitted). Ms. Vizguerra-Ramirez is currently detained at ICE’s Contract Detention Facility
in Aurora, Colorado. [Doc. 61 at ¶ 54; Doc. 67-1 at ¶¶ 1, 3]. Ms. Vizguerra-Ramirez’s
factual allegations—which Respondents do not dispute—demonstrate that the conditions
at the Aurora Contract Detention Facility resemble criminal incarceration. [Doc. 61 at
¶ 107]. The clear weight of authority in this District supports this conclusion. See, e.g.,
de Zarate v. Choate, No. 23-cv-00571-PAB, 2023 WL 2574370, at *4 (D. Colo. Mar. 20,
2023); Arostegui-Maldonado, 794 F. Supp. 3d at 940; Villaescusa-Rios, 2021 WL 269766,
at *4. The third Singh factor weighs in Ms. Vizguerra-Ramirez’s favor.
Delays Attributable to Petitioner or the Government. The Court considers the
fourth and fifth factors together. Respondents suggest that Ms. Vizguerra-Ramirez is
responsible for some of the delays because she initiated withholding-only proceedings
and then sought (and obtained) two continuances in those proceedings. [Doc. 67 at 14].
But courts have consistently declined to “hold [a petitioner’s] efforts to seek relief through
the available legal channels against [her].” Martinez v. Ceja, 760 F. Supp. 3d 1188, 1195
(D. Colo. 2024) (citing German Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203,
212 (3rd Cir. 2020)). Nor will the Court fault Ms. Vizguerra-Ramirez for insisting on her
right to have counsel present at her initial reasonable fear interview (“RFI”). [Doc. 61 at
¶¶ 113–14; Doc. 67 at 14]. Ms. Vizguerra-Ramirez contends that U.S. Citizenship and
Immigration Services (“USCIS”) officers delayed the RFI for approximately a week by
attempting to “pressure” her to proceed with the RFI without counsel. [Doc. 61 at ¶¶ 113–
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14]. Respondents dispute this characterization of events, asserting that USCIS attempted
to contact Ms. Vizguerra-Ramirez’s counsel during all but one of the relevant attempts to
conduct an RFI. [Doc. 67 at 14]. Simone Grant, an Associate District Director for USCIS,
has submitted a Declaration averring that USCIS honored Ms. Vizguerra-Ramirez’s
requests to have counsel present. [Doc. 30-1 at ¶¶ 13, 15–16, 21, 24]. Ms. Grant further
asserts that for the one RFI attempt where USCIS did not attempt to contact Petitioner’s
counsel, USCIS agreed to reschedule the RFI. [Id. at ¶ 16]. Based on the record before
it, the Court cannot resolve this factual dispute as to whether USCIS delayed the RFI and,
by extension, the withholding-only proceedings. Thus, the fifth factor is neutral. But
because any delays are not attributable to Ms. Vizguerra-Ramirez, the Court finds that
the fourth factor weighs in her favor.
Likelihood of Removal. With respect to the sixth factor, “[t]he more likely that the
alien will be removed, the longer the detention that will be deemed reasonable.” Jamal
A. v. Whitaker, 358 F. Supp. 3d 853, 860 (D. Minn. 2019) (quotation omitted). Ms.
Vizguerra-Ramirez asserts that this factor can account for her likelihood of success on
her petition for review or in her withholding-only proceedings. [Doc. 68 at 10]. As the
Court has previously acknowledged, her petition for review presents a novel legal
question regarding the validity of reinstated removal orders. [Doc. 11 at 4]. The Court
thus respectfully declines to predict the outcome of Ms. Vizguerra-Ramirez’s petition for
review. Regarding the withholding-only proceedings, the Court assumes without deciding
that this factor also encompasses an assessment of whether Ms. Vizguerra-Ramirez will
obtain withholding of removal to Mexico. But as with the petition for review, the Court
lacks sufficient information to evaluate her likelihood of success. Although an immigration
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judge found that Ms. Vizguerra-Ramirez had a reasonable fear sufficient to initiate
withholding-only proceedings, the immigration judge has not yet issued a decision in
those proceedings. [Doc. 61 at ¶ 119; Doc. 68-2]; cf. Arostegui-Maldonado, 794 F. Supp.
3d at 941–42 (finding likelihood of success in withholding-only proceedings where
petitioner had partially prevailed in a petition for review to the Tenth Circuit and obtained
a favorable decision from an immigration judge on remand). Similarly, the Court cannot
predict whether Ms. Vizguerra-Ramirez will be able to secure military parole in place and
deferred action through her daughter’s service in the United States Air Force. [Doc. 69].
Accordingly, this factor is neutral. Jamal A., 358 F. Supp. at 860 (concluding that this
factor did not favor either party where court lacked “sufficient information to determine
whether Jamal is likely to be removed”).
In sum, four of the six Singh factors favor Ms. Vizguerra-Ramirez, and the
remaining two are neutral. Thus, her continued detention requires a constitutionally
adequate bond hearing before an immigration judge in order to comport with due process.
And because Respondents have not indicated that Ms. Vizguerra-Ramirez’s request for
a bond hearing within seven days of this Order is impractical, see [Doc. 67], the Court will
grant that request as well.
3. Procedures for Bond Hearing
Ms. Vizguerra-Ramirez requests that at the bond hearing, the Government bear
the burden of showing by clear and convincing evidence that her continued detention is
justified. [Doc. 68 at 11]. She further requests that the Court order the immigration judge
to consider her ability to pay and alternative conditions of release in a bond hearing. [Id.].
Respondents dispute whether the Government should bear the burden of proof but do
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not address whether the immigration judge should consider her ability to pay or alternative
conditions of release. Accordingly, the Court will follow other courts in this District and
require the immigration judge to consider Ms. Vizguerra-Ramirez’s ability to pay and
alternative conditions of release when deciding whether continued detention is warranted.
See Juarez, 2024 WL 1012912, at *9 (imposing similar conditions on bond hearing);
Ramirez, 2025 WL 1294919, at *8 (same).
As for the burden of proof, the Court assesses “the type of process required in a
given case” using the so-called Mathews balancing test.4 L.G. v. Choate, 744 F. Supp.
3d 1172, 1180 (D. Colo. 2024) (first quoting Marin v. King, 720 F. App’x 923, 940–41
(10th Cir. 2018); and then citing J.B. v. Washington Cnty., 127 F.3d 919, 924 (10th Cir.
1997)); see also, e.g., Black v. Decker, 103 F.4th 133, 147–48 (2d Cir. 2024) (applying
Mathews to “due process challenges to prolonged detention under [8 U.S.C. § 1226(c)]”
4 The Court acknowledges that its decision in this case differs from its prior ruling in Diaz-
Ceja v. McAleenan, No. 19-cv-00824-NYW, 2019 WL 2774211 (D. Colo. July 2, 2019).
In Diaz-Ceja, the Court declined to apply the Mathews factors when determining what
burden of proof applies in a bond hearing for a noncitizen who was detained under 8
U.S.C. § 1226(a). Id. at *9. Instead, the Court adopted an approach consistent with the
Supreme Court’s analysis in involuntary detention cases and compared “the
government’s and the individual’s respective interests, and then consider[ed] whether the
existing process adequately balanced and protected the two.” Id. In this case, however,
the Court applies the Mathews factors to assess what burden of proof should apply in a
bond hearing for a noncitizen in civil immigration detention. Although the Supreme Court
has not applied Mathews in its civil confinement jurisprudence, the test the Court distilled
in Diaz-Ceja is functionally equivalent to the Mathews factors, which have been adopted
by a persuasive weight of authority both within and outside of this District. See, e.g., L.G.,
744 F. Supp. 3d at 1180–81; Black v. Decker, 103 F.4th 133, 147–48 (2d Cir. 2024)
(collecting cases). Compare, e.g., German Santos, 965 F.3d at 213–14 (applying
Mathews to determine that the government bears the burden at a bond hearing for an
individual subject to prolonged detention under 8 U.S.C. § 1226(c)), with Miranda v.
Garland, 34 F.4th 338, 358–65 (4th Cir. 2022) (applying Mathews to conclude that due
process does not require the government to bear the burden at a bond hearing for a
noncitizen detained under § 1226(a), whose detention is not “indefinite and potentially
permanent”).
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and observing that “[m]any courts” have used Mathews to “determine what process is due
to noncitizens in removal proceedings” (collecting cases)). The Mathews test includes
three factors: (1) “the private interest that will be affected by the official action”; (2) “the
risk of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards”; and (3) “the
Government’s interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail.” Mathews
v. Eldridge, 424 U.S. 319, 335 (1976).
First, the private interest impacted by Respondents’ actions is “the most significant
liberty interest there is—the interest in being free from imprisonment.” Velasco Lopez v.
Decker, 978 F.3d 842, 851 (2d Cir. 2020) (citing Hamdi v. Rumsfeld, 542 U.S. 507, 529
(2004)). Because freedom from restraint is “at the core of the liberty interest protected by
the Due Process Clause[,] . . . commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection.” Foucha v. Louisiana, 504 U.S.
71, 80 (1992) (quotation omitted). To be sure, “Congress may make rules as to aliens
that would be unacceptable if applied to citizens.” Demore, 538 U.S. at 522. But that
power remains subject to “important constitutional limitations.” Zadvydas, 533 U.S. at
695. Nor does it erase Ms. Vizguerra-Ramirez’s significant interest in being free from
detention. Moreover, the Court has already concluded that her detention presents
exceptional circumstances with unique constitutional concerns, resembles criminal
incarceration, and has become unreasonably prolonged. The first Mathews factor favors
Ms. Vizguerra-Ramirez.
Second, the Court considers “the risk of an erroneous deprivation of such interest
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through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards.” Mathews, 424 U.S. at 335. Based on the specific circumstances
of this case, the Court finds that requiring Ms. Vizguerra-Ramirez to bear the burden—as
Respondents propose—would create a risk of an erroneous deprivation. For one, it puts
Ms. Vizguerra-Ramirez in the more difficult position of proving a negative—that is, proving
that she is neither a flight risk nor a danger to the community. L.G., 744 F. Supp. 3d at
1183–84 (citing Hernandez-Lara v. Lyons, 10 F.4th 19, 40 (1st Cir. 2021)). To the extent
the Government contends that a risk of flight or danger to the community warrants Ms.
Vizguerra-Ramirez’s continued detention, the Court has no reason to doubt that
information establishing those risks is within the Government’s possession and control.
Id. at 1184. Additionally, as the Court has observed, Ms. Vizguerra-Ramirez has put
forward substantial allegations that Respondents have sought her detention based on a
retaliatory, punitive motive. There is thus a risk that her detention has not been properly
justified by a determination of flight risk or danger to the community. Although ICE
conducts periodic post-order custody reviews (“POCR”) designed to ensure that an
individual’s “detention complies with [c]onstitutional due process requirements,” [Doc. 67-
1 at ¶ 10], that is not enough to dispel the risk of constitutional error here. Pursuant to
applicable regulations, the detainee bears the burden of proof in a POCR. See 8 C.F.R.
§ 241.4(a)(4), (d)(1) (2025). That means ICE’s POCRs reflect only its determination that
Ms. Vizguerra-Ramirez had not “demonstrated that, if released, she would not pose a
significant risk of flight pending removal.” [Doc. 67-1 at ¶ 15]. Thus, requiring the
Government to affirmatively establish its case for continued detention will cure any
constitutional issues in its decisions to detain Ms. Vizguerra-Ramirez. Cf. Black, 103
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F.4th at 153 (finding that second Mathews factor favored imposing burden of proof on
government where “minimal procedures” used in prior detention determinations “led to an
unwarranted detention”). The second Mathews factor favors Ms. Vizguerra-Ramirez.
Finally, the Court considers the Government’s interest, including any fiscal or
administrative burdens. Mathews, 424 U.S. at 335. Respondents do not address this
factor—neither of the Parties mentioned the Mathews factors in their briefing. But the
Court discerns no significant administrative or fiscal burden associated with placing the
burden of proof with the Government. “[T]he administrative burden of a bond hearing is
minimal.” Arostegui-Maldonado, 794 F. Supp. 3d at 943 (quotation omitted). Having
determined that due process requires a hearing to be held, any additional costs from
shifting the burden of proof to the Government seem negligible. The Court also concurs
with the Second Circuit that placing the burden of proof on the Government promotes the
Government’s interest in “minimizing the enormous impact of incarceration in cases
where it serves no purpose.” Velasco Lopez, 978 F.3d at 854. That impact reaches both
the taxpayers whose dollars fund detention and the communities of the detained
individuals. Id. at 854–55.
In sum, all three Mathews factors—particularly the first two factors—support
shifting the burden of proof at Ms. Vizguerra-Ramirez’s bond hearing to the Government.
The Court acknowledges that due process does not require this result in all cases. See,
e.g., Martinez v. Ceja, 760 F. Supp. 3d at 1196–97. But the Court’s consideration of the
Mathews factors in light of the record before it leads the Court to conclude that such a
procedural protection is necessary in this case to afford Ms. Vizguerra-Ramirez her due
process rights. Cf. Velasco Lopez, 978 F.3d at 855 (“Habeas corpus . . . is an ‘adaptable
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remedy,’ the ‘precise application and scope’ of which changes ‘depending upon the
circumstances.’” (quoting Boumediene v. Bush, 553 U.S. 723, 779 (2008)).
The Court further concludes that clear and convincing evidence is the appropriate
evidentiary standard, given the weight of persuasive authority since its decision in Diaz-
Ceja v. McAleenan, No. 19-cv-00824-NYW, 2019 WL 2774211 (D. Colo. Jul. 2, 2019).5
See, e.g., German Santos, 965 F.3d at 213–14; L.G., 744 F. Supp. 3d at 1186; Cabrera
Galdamez v. Mayorkas, No. 22-cv-09847-LGS, 2023 WL 1777310, at *8 (S.D.N.Y. Feb.
6, 2023). But see Hernandez-Lara, 10 F.4th at 41 (adopting same evidentiary standards
as Diaz-Ceja); Barreno v. Baltasar, No. 25-cv-03017-GPG-TPO, 2025 WL 3190936, at *2
(D. Colo. Nov. 14, 2025) (surveying different approaches to burden allocation in this
District, including Diaz-Ceja); Black v. Almodovar, 156 F.4th 171, 206–09 (2d Cir. 2025)
(Chin, J., and Carney, J., supporting denial of rehearing en banc) (discussing competing
circuit precedent regarding burden allocation in prolonged and non-prolonged detention
cases under § 1226(a) and § 1226(c)).
This conclusion is consistent with the clear-and-convincing standard has been
adopted by several courts in this District facing comparable prolonged-detention claims
5 In the context of considering whether a noncitizen could be detained based on the
determination that his prior drug offense rendered him a per se danger to the community,
the Court imposed a standard of proof equivalent to the one applicable under the Bail
Reform Act. Diaz-Ceja, 2019 WL 2774211, at *11. Under that standard, “[t]he
government must prove risk of flight by a preponderance of the evidence, and it must
prove dangerousness to any other person or to the community by clear and convincing
evidence.” Id. at *11 (quoting United States v. Cisneros, 328 F.3d 610, 616 (10th Cir.
2003)). The Court explained that it found “no persuasive justification to conclude that the
same noncitizen must face different standards for the same actions, depending upon the
forum, i.e., an administrative charge for removal versus a criminal charge of illegal
reentry.” Id. But the Court is persuaded by the weight of authority since Diaz-Ceja to
reconsider its prior analysis.
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under § 1231(a)(6). Juarez, 2024 WL 1012912, at *8; Ramirez, 2025 WL 1294919, at *7;
Arostegui-Maldonado, 794 F. Supp. 3d at 944. Such a standard is also consistent with
the Supreme Court’s jurisprudence in civil detention cases. Arostegui-Maldonado, 794
F. Supp. 3d at 944 (“[T]he Supreme Court has long held that the clear and convincing
evidence standard applies to civil detention where an individual’s liberty interest is at
stake.” (collecting cases)); Black, 103 F.4th at 157–58 (“Where an individual’s liberty is at
stake, the Supreme Court has consistently used this evidentiary standard for continued
detention.” (collecting cases)). Upon consideration of the record and applicable case law,
the Court concludes that a clear-and-convincing standard, with the burden placed on the
Government, is appropriate in this case.
Accordingly, at Ms. Vizguerra-Ramirez’s bond hearing, the Government must
prove by clear and convincing evidence that she is either a flight risk or a danger to the
community in order to justify continued detention. The Second Amended Petition is
respectfully GRANTED as to Ms. Vizguerra-Ramirez’s Prolonged Detention Claim.
B. First Amendment Claim
Having granted Ms. Vizguerra-Ramirez relief on her Prolonged Detention Claim,
the Court will not address the merits of her First Amendment Claim at this time. As the
Court has intimated, Ms. Vizguerra-Ramirez’s allegations raise serious First Amendment
concerns, but the factual record at present is not sufficiently developed to rule on the
merits. Assuming without deciding that this entitles Ms. Vizguerra-Ramirez to limited
discovery regarding Respondents’ decisions to arrest and detain her, practical
considerations suggest that the Court need not make such a ruling at this time. The Court
has granted Ms. Vizguerra-Ramirez a constitutionally adequate bond hearing within
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seven days of the date of this Order. It is highly unlikely, if not impossible, that the Parties
could complete discovery within that timeframe. And once the immigration judge has held
a hearing and determined whether Ms. Vizguerra-Ramirez is entitled to bond, it is unclear
to the Court what portion, if any, of the First Amendment Claim would remain.
The First Amendment Claim is accordingly TAKEN UNDER ADVISEMENT.
Within fourteen days of Ms. Vizguerra-Ramirez’s bond hearing, the Parties shall MEET
and CONFER and FILE a Joint Status Report addressing (1) the outcome of the bond
hearing; (2) what, if any, of the First Amendment Claim remains for the Court to decide;
and (3) what impact, if any, this Order and the outcome of the bond hearing have on the
merits of the First Amendment Claim and the issues raised in conjunction with the Motion
for Expedited Discovery, [Doc. 37].
III. Pending Motions
The Court next considers Ms. Vizguerra-Ramirez’s pending motions. First, the
Motion to Clarify asks the Court to declare that its Order under the All Writs Act, 28 U.S.C.
§ 1651(a)—which prevented Respondents from removing Petitioner from this District or
the United States, see [Doc. 11]—also bars Respondents from proceeding with her
removal process, see [Doc. 31]. The Court respectfully declines to rewrite its Order in
this manner. As the Court explained, an exercise of the Court’s authority under the All
Writs Act was necessary to preserve the status quo, because the Court could not “assure
itself of jurisdiction to consider this habeas petition if Ms. Vizguerra-Ramirez is removed
from the United States during the pendency of this action.” [Doc. 11 at 4]. Ms. Vizguerra-
Ramirez does not suggest that permitting Respondents to conduct withholding-only
proceedings short of removal would threaten this Court’s jurisdiction. To the contrary, it
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appears that removal proceedings have continued during the pendency of this action
without detriment to the Court’s ability to resolve Ms. Vizguerra-Ramirez’s substantive
claims. Put simply, the rationale underlying the Court’s All Writs Act Order does not
support expanding it beyond the Order’s current, limited scope. Accordingly, the Motion
to Clarify, [Doc. 31], is respectfully DENIED.
Next, the Court declines to resolve the Motion for Expedited Discovery, [Doc. 37],
for substantially the same reasons that the Court declined to rule on the merits of the First
Amendment Claim. Because the bond hearing may impact Ms. Vizguerra-Ramirez’s First
Amendment Claim, the Court defers addressing her request for discovery on the First
Amendment Claim at this juncture. Accordingly, the Motion for Expedited Discovery is
TAKEN UNDER ADVISEMENT.
Finally, the Court’s decision on the merits of the Prolonged Detention Claim moots
the Motion for Release. [Doc. 45]. Even if preliminary relief was appropriate, a bond
hearing considering whether Ms. Vizguerra-Ramirez is a flight risk or danger to the
community would be appropriate prior to her release. See Ozturk II, 783 F. Supp. 3d at
813 (considering, after a bail hearing, whether habeas petitioner presented a flight risk or
danger to the community before ordering petitioner’s release pursuant to the court’s
inherent habeas authority); Arostegui-Maldonado, 794 F. Supp. 3d at 938 (granting
preliminary injunction compelling respondents to conduct a bail hearing based on habeas
petitioner’s due process challenge to his unreasonably prolonged detention); cf. Mahdawi,
781 F. Supp. 3d at 232 (addressing “conventional bail issues of risk of flight and danger
to society” before granting preliminary release under inherent habeas authority). In other
words, the Court’s grant of final relief on the Prolonged Detention Claim has afforded Ms.
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Vizguerra-Ramirez all the relief she would have received had the Court granted the
Motion for Release’s request for preliminary relief. Accordingly, the Motion for Release
is respectfully DENIED as moot.
CONCLUSION
Accordingly, it is ORDERED that:
(1) The Order to Show Cause [Doc. 8] is DISCHARGED;
(2) The Amended and Verified Petition for Writ of Habeas Corpus is DISMISSED
in part without prejudice, GRANTED in part, and TAKEN UNDER
ADVISEMENT in part.
(3) Counts 1 and 2 of the Second Amended Petition, the Reinstatement Order
Claims, are DISMISSED without prejudice;
(4) Count 3, the First Amendment Claim, is DISMISSED without prejudice in
part to the extent Ms. Vizguerra-Ramirez challenges the decision to enforce
the July 2013 Reinstatement Order or seeks relief preventing her removal;
(5) Count 3, the First Amendment Claim, is TAKEN UNDER ADVISEMENT to
the extent it challenges Respondents’ decisions to arrest and detain
Petitioner;
(6) Count 4, the Prolonged Detention Claim, is GRANTED;
(7) No later than December 24, 2025, Respondents shall bring Petitioner before
an impartial immigration judge for a constitutionally adequate bond hearing,
in which the Government bears the burden of establishing by clear and
convincing evidence that Petitioner presents a flight risk or danger to the
community, such that continued detention is justified. When deciding
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whether continued detention is justified, the immigration judge shall consider
potential alternative conditions of release and Petitioner’s ability to pay;
(8) Petitioner’s Verified Motion to Clarify Scope of Temporary Restraining Order
[Doc. 31] is DENIED;
(9) The Motion for Expedited Discovery [Doc. 37] is TAKEN UNDER
ADVISEMENT;
(10) Within fourteen days of the bond hearing, the Parties shall MEET and
CONFER and FILE a Joint Status Report addressing (1) the outcome of the
bond hearing; (2) what portion, if any, of the First Amendment Claim
remains for the Court to decide; and (3) what impact, if any, this Order and
the outcome of the bond hearing have on the merits of the First Amendment
Claim and the issues raised in conjunction with the Motion for Expedited
Discovery, [Doc. 37]; and
(11) Petitioner’s Motion for Release on Bond or, in the Alternative, a Preliminary
Injunction Ordering Release Pending a Final Judgment [Doc. 45] is DENIED
as moot.
DATED: December 17, 2025 BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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