Solis Nolasco v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CARLOS ANTONIO SOLIS
NOLASCO,
Petitioner,
v.
KRISTI NOEM, et al.,
Respondents.
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Civil Action No. GLR-25-3847
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MEMORANDUM OPINION
THIS MATTER is before the Court on Petitioner Carlos Antonio Solis Nolasco’s
(“Solis Nolasco” or “Petitioner”) Petition for Writ of Habeas Corpus (ECF No. 1) and
Respondents Kristi Noem, Todd Lyons, Jeremy Bacon, and Pamela Bondi’s (collectively
“Respondents” or “the Government”) Motion to Dismiss (ECF No. 8). The Motion is ripe
for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2025). For the
reasons set forth below, the Court will grant the Petition in part and deny it in part and deny
the Motion as moot.
I. BACKGROUND
Petitioner Carlos Antonio Solis Nolasco is a citizen and native of El Salvador. (Pet.
Writ Habeas Corpus [“Pet.”] ¶ 5, ECF No. 1). He first entered the United States on July 9,
2015, due to fear of gangs and police harassment in El Salvador. (Aff. Carlos Antonio Solis
Nolasco [“Feb. 7, 2024 Aff.”] ¶¶ 1, 6–8, ECF No. 9-4). U.S. Border Patrol agents
encountered him the following day and determined that he had entered the U.S. as an
unaccompanied juvenile. (Mem. L. Supp. Response & Mot. Dismiss [“Response”] at 6,
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ECF No. 8-1).1 The U.S. Department of Homeland Security (“DHS”) issued a Notice to
Appear against Solis Nolasco, charging him with inadmissibility for entering the U.S.
without first being admitted or paroled. (Id. at 6–7 (citing Immigration & Nationality Act
[“INA”] § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i))). The U.S. Department of Health
and Human Services placed Solis Nolasco in a shelter temporarily, and he was reunited
with his mother in Temple Hills, Maryland on August 5, 2015. (Id. at 7).
On October 15, 2018, after being assaulted at a bar during what he believes was a
dispute between rival gangs, Solis Nolasco filed a petition for “special immigrant” status.
(Feb. 7, 2024 Aff. ¶ 8; Response at 7). This petition was later denied. (Response at 7). A
few months later, law enforcement officers detained Solis Nolasco during a traffic stop
because he did not have legal status. (Feb. 7, 2024 Aff. ¶¶ 12–13). U.S. Immigration and
Customs Enforcement (“ICE”) accused him of being part of a gang, but Solis Nolasco
denies any involvement or participation in gangs. (Id. ¶ 13).2
Solis Nolasco applied for asylum while he was detained in late 2018. (Id. ¶ 14). On
July 26, 2019, an Immigration Judge (“IJ”) in Annandale, Virginia, denied his application
and ordered that he be removed to El Salvador. (Response at 7). Solis Nolasco appealed
that decision. (Id.). The Board of Immigration Appeals dismissed his appeal, and he was
returned to El Salvador on February 27, 2020. (Id.; Feb. 7, 2024 Aff. ¶ 14; see also Notice
1 Unless otherwise noted, citations to the page numbers refer to the pagination
assigned by the Court’s Case Management/Electronic Case Files (“CM/ECF”) system.
2 The Government alleges that Solis Nolasco was detained by the Federal Bureau of
Investigation in 2018 and identified as a known MS-13 gang member. (Response at 3–4).
Solis Nolasco, however, denies any participation in gangs, and the Government provides
no evidence to support this allegation. (Feb. 7, 2024 Aff. ¶ 13; Reply at 11 n.6)
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of Intent/Decision to Reinstate Prior Order [“NOI”] at 2, ECF No. 8-2). He then filed a
petition for U Nonimmigrant Status on August 31, 2021, which remains pending.
(Response at 7).
Solis Nolasco experienced harassment and violence by the police and gangs when
he returned to El Salvador, so he fled back to the U.S. (Feb. 7, 2024 Aff. ¶¶ 15–21). He
reentered the U.S. at McAllen, Texas in January 2021. (Id. ¶ 21). On October 23, 2023, he
was arrested as a noncitizen previously removed under INA § 241(a)(5), 8 U.S.C.
§ 1231(a)(5). (Response at 7). DHS then issued a Notice of Intent/Decision to Reinstate
Prior Order against him. (Id.). On March 29, 2024, an IJ in Elizabeth County, Pennsylvania,
found that Solis Nolasco had established that it was more likely than not that he would be
persecuted if he returned to El Salvador, and granted his request for withholding of removal
to El Salvador under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). (Response at 7; Pet. ¶ 24;
see also Withholding of Removal Order at 1, ECF No. 1-1). The Government did not appeal
that decision and has not sought to reopen the case or rescind the withholding of removal
order in the time since. (Pet. ¶¶ 24, 26). Solis Nolasco was released from detention soon
after the IJ issued the withholding of removal order, and on April 22, 2024, he was placed
on an Order of Supervision (“OSUP”). (Id. ¶ 24).
Solis Nolasco attended all scheduled ICE check-ins in accordance with his OSUP
and did not otherwise violate the terms of his OSUP or receive convictions for any crimes
since the OSUP has been in effect. (Id. ¶¶ 27, 29). He also obtained an Employment
Authorization Document under 8 U.S.C. § 1231(a)(7) on July 22, 2024. (Id. ¶ 26).
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On November 22, 2025, Solis Nolasco attended a scheduled ICE check-in in
Baltimore. (Id. ¶ 28; Response at 8). According to Respondents, ICE Enforcement and
Removal (“ERO”) officers reviewed their records and determined that he was subject to a
final order of removal as an inadmissible alien, so they detained him in the Baltimore Hold
Room. (Response at 8; Notice of Revocation of Release [“NRR”] at 2, ECF No. 8-3).
Officers then served Solis Nolasco with a Notice of Revocation of Release, which revoked
his OSUP and stated that ICE intends to remove him to Mexico (NRR at 2), and a Notice
of Removal, which notified Solis Nolasco of ICE’s intent to deport him to Mexico (Notice
Removal at 2, ECF No. 8-6; Response at 8). The following day, Solis Nolasco received a
Notice of Intent/Decision to Reinstate Prior Order, which reinstated the removal order that
became final on February 27, 2020 (NOI at 2), and a Warrant of Removal/Deportation
(Warrant at 2, ECF No. 8-5). ICE officials conducted an informal interview on November
22, 2025, but Solis Nolasco declined to make a statement or answer questions. (Response
at 8; Sworn Statement at 2–3, ECF No. 8-4). On November 25, 2025, Solis Nolasco,
through counsel, submitted a declaration indicating his fear of removal to Mexico and
requesting a Reasonable Fear Interview. (Aff. Carlos Antonio Solis Nolasco [“Fear Decl.”]
at 1–2, ECF No. 9-3). The Government has not yet afforded him a Reasonable Fear
Interview. (Reply at 10). On December 13, 2025, Solis Nolasco was transferred to the El
Paso Camp East Montana, where, as of December 19, 2025, he remains detained. (Paula
Flores Roman Decl. ¶¶ 13–14, ECF No. 9-2).
On November 24, 2025, while detained in Baltimore, Solis Nolasco filed the instant
Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. (ECF No. 1). Respondents
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filed a consolidated Response and Motion to Dismiss on December 8, 2025. (ECF No. 8).
Solis Nolasco filed a Reply in Opposition to the Government’s Motion and in Support of
his Petition on December 22, 2025. (ECF No. 9).
II. DISCUSSION
A. Standard of Review
A district court may grant a writ of habeas corpus if a petitioner is in federal custody
in violation of the United States Constitution or federal law. 28 U.S.C. § 2241(c)(3). If a
district court entertains a habeas petition, then it must either award the writ or order the
respondent to show cause as to why the writ should not be granted, unless it is apparent
from the application that the petitioner is not entitled to the requested relief. 28 U.S.C.
§ 2243.
B. Analysis
Solis Nolasco argues that his continued detention violates 8 U.S.C. § 1231 and his
due process rights and that his removal to a third country without an opportunity to express
his fear of persecution in that country violates his due process rights. (Pet. ¶¶ 33–42). The
Government responds that ICE is authorized to detain and remove Solis Nolasco under 8
U.S.C. § 1231(a)(6), that his continued detention is constitutionally permissible, and that
he has received all process due to him under law. (Response at 9–13). The Court will
address each issue in turn.
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1. Solis Nolasco’s Detention Under 8 U.S.C. § 1231(a)
There is no dispute that Solis Nolasco is detained under 8 U.S.C. § 1231(a). (See
Response at 9; Reply Mem. Opp’n Resp’ts’ Mot. Dismiss & Supp. Pet. Writ Habeas
Corpus [“Reply”] at 5, ECF No. 9). Section 1231(a) provides that, “when an alien is
ordered removed, the Attorney General shall remove the alien from the United States
within a period of 90 days” (the “removal period”) and that “the Attorney General shall
detain the alien” during the removal period. 8 U.S.C. §§ 1231(a)(1)(A), (a)(2)(A). Except
when the noncitizen is detained in a case outside the immigration process or when a court
orders a stay of removal, the removal period begins when the removal order becomes
administratively final. Id. §§ 1231(a)(1)(B). If the noncitizen does not leave or is not
removed during the removal period, then the noncitizen “shall be subject to supervision
under regulations prescribed by the Attorney General” pending their removal. Id.
§ 1231(a)(3). But certain noncitizens, including those who are inadmissible under 8 U.S.C.
§ 1182, may be detained beyond the removal period. Id. § 1231(a)(6).
Solis Nolasco does not dispute that he is inadmissible under 8 U.S.C. § 1182, (See
Response at 10; see generally Pet.; Reply); therefore, the Government may detain him
beyond the removal period, see 8 U.S.C. § 1231(a)(6). Relying on Zadvydas v. Davis, 533
U.S. 678 (2001), however, Solis Nolasco argues that his continued detention is no longer
permissible. (Pet. ¶ 34–39; Reply at 4–10).3 In Zadvydas, the Supreme Court considered
3 Solis Nolasco asserts that his continued detention violates 8 U.S.C. § 1231(a)(6)
(Count I) and his due process rights (Count II). (Pet. at 8). Permitting a cause of action
under 8 U.S.C. § 1231(a)(6), however, “would contravene 8 U.S.C. § 1231(h), which
expressly provides that ‘[n]othing in this section shall be construed to create any
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whether the Government may detain a noncitizen under 8 U.S.C. § 1231(a)(6) “indefinitely
beyond the removal period or only for a period reasonably necessary to secure the alien’s
removal.” 533 U.S. at 682. The two noncitizen-petitioners in Zadvydas received removal
orders and had been detained well beyond their removal periods under 8 U.S.C.
§ 1231(a)(6), partly because their native countries and other countries to which they had
connections had refused to accept them. Id. at 684–86. The petitioners challenged the
extent of the Attorney General’s authority to detain them on a seemingly indefinite basis
despite the unlikelihood of the Government securing their removal. Id. at 684–86, 688.
In assessing that authority, the Supreme Court recognized that “Congress has
‘plenary power’ to create immigration law, and that the Judicial Branch must defer to
Executive and Legislative Branch decisionmaking in that area.” Id. at 695. “But that
power,” the Court explained, “is subject to important constitutional limitations.” Id. And
“an alien’s liberty interest is, at the least, strong enough to raise a serious question as to
whether, irrespective of the procedures used, the Constitution permits detention that is
indefinite and potentially permanent.” Id. at 696 (citation omitted). Considering the
significant liberty interest at stake and the lack of “congressional intent to authorize
substantive or procedural right or benefit that is legally enforceable by any party against
the United States or its agencies or officers or any other person.’” Umanzor-Chavez v.
Noem, No. SAG-25-1634, 2025 WL 2467640, at *2 (D.Md. Aug. 27, 2025) (quoting 8
U.S.C. § 1231(h)). The Court, therefore, will deny relief under Count I and will address
the merits of Solis Nolasco’s Zadvydas argument as to his due process claim under Count
II. See Ghamelian v. Baker, No. SAG-25-2106, 2025 WL 2049981, at *3 (D.Md. July 22,
2025) (finding that 8 U.S.C. § 1231(h) did not permit a claim under 8 U.S.C. § 1231(a)(6),
but construing petitioner’s claim under that statute as one under the due process clause),
reconsideration denied, No. SAG-25-02106, 2025 WL 2074155 (D.Md. July 23, 2025).
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indefinite, perhaps permanent, detention,” id. at 699, the Court held that a noncitizen’s
detention pending removal is presumptively reasonable only for six months (inclusive of
the removal period), after which, if the noncitizen “provides good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable future, the
Government must respond with evidence sufficient to rebut that showing,” id. at 701.
Here, Solis Nolasco contends that his presumptively reasonable period expired on
October 26, 2024—six months after his withholding of removal order became
administratively final on April 29, 2024—and that the Government has provided “no
factual basis to believe” that his removal will occur in the reasonably foreseeable future.
(Pet. ¶¶ 34, 37; Reply at 4, 5 n.3). Respondents contend that Solis Nolasco’s argument is
premature because he has been detained only since November 22, 2025, and that even if
his argument is proper at this juncture, he has not provided a good reason to believe that
there is no significant likelihood that he will be removed in the reasonably foreseeable
future. (Response at 10–12). For the reasons set forth below, the Court finds that Solis
Nolasco’s argument is not premature and that he has met the “good reason” requirement
under Zadvydas.
a. The Six-Month Presumption
The Government first suggests that Solis Nolasco’s argument under Zadvydas is
“premature” because he has been detained only since November 22, 2025. (Id.). The
premise of this argument is that Solis Nolasco’s six-month period restarted when he was
detained on November 24, 2025. Some Courts agree with that premise, finding that the six-
month period restarts upon re-detention, see, e.g., Abedi v. Carter, No. 25-3141-JWL, 2025
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WL 3209009, at *1 (D.Kan. Oct. 6, 2025), or pauses while the noncitizen is not detained
and resumes upon re-detention, see, e.g., Rodriguez-Guardado v. Smith, 271 F.Supp.3d
331, 335 n.8 (D.Mass. 2017) (citation omitted). Other courts, however, “broadly agree that
‘the six-month period [under Zadvydas] does not reset when the government detains an
alien under 8 U.S.C. § 1231(a), releases him from detention, and then re-detains him
again.’” Diaz-Ortega v. Lund, No. 1:19-CV-670-P, 2019 WL 6003485, at *7 n.6 (W.D.La.
Oct. 15, 2019) (quoting Sied v. Nielsen, 17-CV-06785-LB, 2018 WL 1876907, at *6
(N.D.Cal. Apr. 19, 2018)), report and recommendation adopted, No. 1:19-CV-670-P, 2019
WL 6037220 (W.D.La. Nov. 13, 2019); Villanueva v. Tate, No. CV H-25-3364, 2025 WL
2774610, at *9 (S.D.Tex. Sept. 26, 2025) (“The government’s contention that it may avoid
the holding of Zadvydas and re-start the six-month presumptively constitutional detention
clock by simply releasing and then re-detaining a noncitizen has no basis in either the
statutes, the regulations, or Zadvydas itself.”); Zavvar v. Scott, No. TDC-25-2104, 2025
WL 2592543, at *4 (D.Md. Sept. 8, 2025) (“[T]here is, at a minimum, a reasonable
argument that the six-month period runs continuously from the beginning of the removal
period, even if the noncitizen is not detained throughout that period.”).
This Court agrees with the latter position and finds that Solis Nolasco’s six-month
period did not restart upon his re-detention on November 22, 2025. See Cordon-Salguero
v. Noem, No. GLR-25-1626, Mot. Hr’g Tr. 33:23–34:4 (D.Md. June 23, 2025) (ECF No.
21) (finding that the six-month period was not tolled upon petitioner’s release from
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detention in 2018). Therefore, Solis Nolasco’s six-month period expired in August 2020,4
and his challenge against his detention is not premature.5
b. The Likelihood of Solis Nolasco’s Removal
The Government argues that, even if Solis Nolasco’s argument is not premature, he
has not provided good reason to believe that his removal is not likely to occur in the
reasonably foreseeable future. (Response at 12). This Court disagrees.
Solis Nolasco has been granted withholding of removal from the only country to
which he has a claim to citizenship or legal immigration status. (Pet. ¶¶ 23–24; Reply at 3,
9; Withholding of Removal Order). This “substantially increases the difficulty of removing
him.” Munoz-Saucedo v. Pittman, 789 F.Supp.3d 387, 398 (D.N.J. 2025). Solis Nolasco
also has expressed fear of removal to Mexico, the only third country designated in the
notices issued on November 22 and 23, 2025. (See Fear Decl. at 2; NRR at 2; Notice
Removal at 2). According to DHS’s March 2025 Guidance Regarding Third Country
Removals (the “DHS Guidance”), the Government still must provide Solis Nolasco a
4 Using April 29, 2024 as the date on which the removal order became
administratively final, Solis Nolasco suggests that his six-month period expired in October
2024. (Reply at 5 n.3). It appears from the undisputed facts, however, that the relevant
removal order became final on February 27, 2020. (Response at 7; Feb. 7, 2024 Aff. ¶ 14;
NOI at 2 (reinstating February 27, 2020 removal order)). Under 8 U.S.C. § 1231(a)(5), if a
noncitizen reenters the U.S. after having been deported under a removal order, “the prior
order of removal is reinstated from its original date . . . .” Solis Nolasco’s six-month period,
then, ended on August 27, 2020. Even if the six-month period ended in October 2024 as
Solis Nolasco suggests, however, the Court’s analysis and conclusion remain the same.
5 As this Court explained in Cruz Medina v. Noem, 794 F.Supp.3d 365 (D.Md.
2025), the six-month presumption of reasonableness shifts the burdens between the
Government and the noncitizen-detainee, but it does not prohibit judicial review of a
noncitizen’s detention for six months. Id. at 375–76. Thus, even if Solis Nolasco’s six-
month period had not yet expired, his Petition still would not be premature.
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Reasonable Fear Interview and, if the U.S. Citizenship and Immigration Services
(“USCIS”) finds that he more likely than not will be persecuted in Mexico, then his case
will go to an Immigration Court for further proceedings. (Guidance re Third Country
Removals [“DHS Guidance”] at 3, ECF No. 8-7). The fact that such processes remain to
be done indicates that removal is not likely to occur in the reasonably foreseeable future.
Zavvar, 2025 WL 2592543, at *8; Munoz-Saucedo, 789 F.Supp.3d at 399.
Solis Nolasco further states, and the Government does not dispute, that he has
complied with his OSUP for over a year (Pet. ¶¶ 27, 29; see generally Response), during
which time Respondents could have, but apparently did not, work towards securing Solis
Nolasco’s removal (Reply at 6). Moreover, by granting Solis Nolasco an Employment
Authorization Document in July 2024, the Attorney General determined that Solis Nolasco
could not be removed either because the countries designated in his removal order refused
him or because his removal “is otherwise impracticable or contrary to the public interest.”
8 U.S.C. § 1231(a)(7).
The Government has provided no information to suggest that Solis Nolasco’s
removal will occur in the reasonably foreseeable future other than a general statement that
his case is “under current review by the Government of Mexico for third country removal.”
(Response at 8). Respondents cite to the Notice of Revocation of Release for this
information (id.), but the Notice does not contain that language—it states simply that “ICE
is taking steps to remove [Solis Nolasco] to MEXICO” (NRR at 2). Additionally,
Respondents cite no travel documents or requests for such, and they provide no information
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on how far along ICE is in the process of securing Solis Nolasco’s removal to Mexico. (See
generally Response).
Overall, Solis Nolasco has provided good reason to believe that his removal to
Mexico is not likely to occur in the reasonably foreseeable future, and the Government’s
bare assertions that his removal to Mexico is likely to occur in the reasonably foreseeable
future, without more, are insufficient to rebut Solis Nolasco’s contrary showing. See
Cordon-Salguero v. Noem, No. GLR-25-1626, Mot. Hr’g Tr. at 34:23–35:18 (D.Md. June
23, 2025) (ECF No. 21) (finding Government failed to rebut petitioner’s showing under
Zadvydas where petitioner had no claim to immigration status in Mexico, and Government
provided no evidence on the status of requests for travel documents or evidence that
Mexico would accept and allow petitioner to remain in Mexico). Solis Nolasco’s continued
detention, therefore, violates his due process rights as interpreted under Zadvydas.
2. Solis Nolasco’s Removal to a Third Country
Alongside his detention, Solis Nolasco argues that his removal to a third country
without “an individualized determination as to whether he will be persecuted or tortured”
in that country and without IJ review of a negative fear finding violates his right to
procedural due process. (Pet. ¶ 41; Reply at 11–14). Respondents contend that Solis
Nolasco has received all process due to him under 8 U.S.C. § 1231(b)(1)—the provision
that governs to which country a noncitizen may be deported—and the DHS Guidance on
third country removals. (Response at 13). Respondents further argue that this claim is more
appropriately addressed in D.V.D. v. U.S. Department of Homeland Security, 778
F.Supp.3d 355 (D.Mass. 2025), a class action suit that is currently on appeal in the Court
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of Appeals for the First Circuit (Response at 13–17). This Court agrees that this claim is
more appropriately addressed in D.V.D.
Section 1231(b)(1) permits third country removals when other options (i.e., removal
to the country from which the noncitizen travelled to the U.S., to the noncitizen’s native
country, or to a country in which the noncitizen has citizenship or legal immigration status)
are not available. 8 U.S.C. §§ 1231(b)(1). According to the DHS Guidance, the
Government may remove a noncitizen to a third country so long as “that country has
provided diplomatic assurances that aliens removed from the United States will not be
persecuted or tortured,” and “the Department of State believes those assurances to be
credible . . . .” (DHS Guidance at 2–3). If the third country does not provide such
assurances or the Department of State does not believe such assurances to be credible, then
DHS must inform the noncitizen of the third country to which they will be removed and, if
the noncitizen “affirmatively states a fear of removal” to that country, “USCIS will
generally screen the alien within 24 hours of referral from the immigration officer” to
determine “whether the alien would more likely than not be persecuted on a statutorily
protected ground or tortured in the country of removal.” (Id. at 3). If the noncitizen does
not meet that standard, then the Government may remove them to the third country—no IJ
review of that negative fear finding is required. (Id.). If the noncitizen meets that standard,
then USCIS must refer the matter to the Immigration Court. (Id.).
In D.V.D., noncitizens who were subject to third country removal orders challenged
the DHS Guidance as failing to provide the constitutionally required notice and opportunity
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to be heard on their individualized fears of removal to third countries. 778 F.Supp.3d at
368–69. The district court certified a class of:
[a]ll individuals who have a final removal order issued in
proceedings under Section 240, 241(a)(5), or 238(b) of the INA
(including withholding-only proceedings) whom DHS has
deported or will deport on or after February 18, 2025, to a
country (a) not previously designated as the country or
alternative country of removal, and (b) not identified in writing
in the prior proceedings as a country to which the individual
would be removed.
Id. at 378, 386. The court further found that “blanket diplomatic assurances” do not satisfy
due process or the “statutory and regulatory framework” under which DHS must
“undertake an individualized assessment as to the sufficiency of such assurances . . . .” Id.
at 390. As a result, the court granted in part the plaintiffs’ request for a preliminary
injunction and ordered the Government to satisfy more fulsome procedural requirements
before removing the plaintiffs to the third countries designated in their removal orders. Id.
at 392–93. The Government appealed to the First Circuit. The Supreme Court stayed the
preliminary injunction pending disposition of that appeal but left the class certification
intact. Dep’t of Homeland Sec. v. D.V.D., 145 S.Ct. 2153 (2025).
Here, Solis Nolasco does not dispute that he is a member of the D.V.D. class due to
his impending third country removal and the nature of the instant claim. (See Reply at 14–
17). Therefore, in the interest of “[b]asic principles of comity and judicial economy,” this
Court finds that Solis Nolasco’s claim regarding his removal to Mexico (Count III) is more
appropriately addressed in D.V.D. and will deny the Petition as to that claim without
prejudice to seeking the same or similar relief through the D.V.D. litigation. I.V.I. v. Baker,
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No. JKB-25-1572, 2025 WL 1519449, at *2 (D.Md. May 27, 2025); see also Tanha v.
Warden, Balt. Det. Facility, No. JRR-25-2121, 2025 WL 2062181, *8 (D.Md. July 22,
2025) (finding that third country removal claim more appropriately addressed in D.V.D.
and denying without prejudice); Ghamelian v. Baker, No. SAG-25-2106, 2025 WL
2049981, at *3, 5 (D.Md. July 22, 2025) (same).
2. The Attorney General as a Proper Respondent
Finally, the Government contends that Defendant Bondi, the U.S. Attorney General,
is not a proper respondent in this case because she does not have the power to produce
Solis Nolasco before this Court. (Response at 18). This Court disagrees.
The Government cites to 28 U.S.C. § 2242 and Rumsfeld v. Padilla, 542 U.S. 426
(2004), as support for its argument (Response at 18). Section 2242 states that a petition for
a writ of habeas corpus shall include “the name of the person who has custody over [the
petitioner] and by virtue of what claim or authority, if known.” 28 U.S.C. § 2242. Similarly,
Section 2243 states that a writ of habeas corpus “shall be directed to the person having
custody of the person detained.” 28 U.S.C. § 2243. In Padilla, the Supreme Court
considered whether the U.S. President and Secretary of Defense were proper respondents
to a habeas petition filed by a person who had been detained as an “enemy combatant.”
542 U.S. at 430, 434. Turning to 100-year-old precedent, the Court concluded that 28
U.S.C. §§ 2242 and 2243 “contemplate a proceeding against some person who has the
immediate custody of the party detained,” such that “the default rule is that the proper
respondent is the warden of the facility where the prisoner is being held, not the Attorney
General or some other remote supervisory official.” Id. at 434–35 (quoting Wales v.
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Whitney, 114 U.S. 564, 574 (1885)). The Court, however, left unresolved the question of
“whether the Attorney General is a proper respondent to a habeas petition filed by an alien
detained pending deportation.” Id. at 435 n.8. Thus, “the Government’s reliance
exclusively on the holding in Padilla does little to support its contention that” Bondi is not
a proper respondent here. Jarpa v. Mumford, 211 F.Supp.3d 706, 723 (D.Md. 2016).
Courts are split on whether the “immediate custodian” rule of Padilla applies to
immigration proceedings. See id. at 723–24 (collecting cases). This Court finds persuasive
the reasoning of courts that hold that the rule does not apply in such cases. See id. at 724
(“Applying the immediate custodian rule here would yield the ‘impractical result’ of
having the immediate custodian (the Warden of a detention facility) unable to grant the
relief requested. Rather the relief sought can only practically be delivered by the head of
the agency in charge of interpreting and executing the immigration laws.” (quoting
Sanchez-Penunuri v. Longshore, 7 F.Supp.3d 1136, 1148 (D.Colo. 2013))). As the Court
of Appeals for the Second Circuit explained in Henderson v. I.N.S., 157 F.3d 106 (2d Cir.
1998), the Attorney General has a “unique role” in immigration matters:
[T]he extraordinary and pervasive role that the Attorney
General plays in immigration matters is virtually unique. Thus,
the Attorney General continues to be “in complete charge of
the proceedings leading up to the order directing the[ ] removal
[of aliens] from the country” and has “complete discretion to
decide whether or not removal shall be directed.”
Id. at 126 (quoting Ahrens v. Clark, 335 U.S. 188, 199 (1948) (Rutledge, J., dissenting)).
Considering the Attorney General’s authority in this context, this Court, like other district
courts, finds that the immediate custodian rule does not apply and that the Attorney General
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is a proper respondent where, as here, “the petitioner challenges [his] detention under the
immigration laws.” Farez-Espinoza v. Chertoff, 600 F.Supp.2d 488, 494 (S.D.N.Y. 2009);
see also Somir v. United States, 354 F.Supp.2d 215, 217 (E.D.N.Y. 2005) (“[T]he Attorney
General is a proper respondent in immigration cases where the petitioner is challenging the
government’s efforts to remove him from this country.”); Carmona v. Aitken, No. 14-CV-
05321-JSC, 2015 WL 1737839, at *4 (N.D.Cal. Apr. 10, 2015) (“The Court thus concludes
that the proper respondents are at least the DHS Secretary and Attorney General because
of their far-reaching authority to administer detention and removal proceedings of
noncitizens.”); Hernandez v. Sessions, No. CV 18-01483-PHX-GMS (DMF), 2018 WL
11426587, at *1 n.1 (D.Ariz. May 18, 2018) (declining to dismiss Attorney General and
Secretary of DHS as respondents); Mandarino v. Ashcroft, 318 F.Supp.2d 13, 17 (D.Conn.
2003) (finding Attorney General was proper respondent to noncitizen-detainee’s habeas
petition). The Court, therefore, denies the Government’s request to dismiss Defendant
Bondi as a Respondent.
3. The Government’s Motion to Dismiss
After a Petition for a Writ of Habeas Corpus is filed, the proper response by the
Respondent is the filing of an Answer, to be followed by a Reply filed by the Petitioner.
See Rules 2, 5, Rules Governing Section 2254 Cases in the United States District Courts
(“Habeas Rules”); see also Habeas Rule 1(b) (“The district court may apply any or all of
these rules to a habeas corpus petition not covered by Rule 1(a).”).
There is no corresponding action or motion to dismiss under the Habeas Rules.
Although the Federal Rules of Civil Procedure “may” be applied to a habeas petition, see
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Habeas Rule 12, the Court ordinarily does not apply Federal Rule of Civil Procedure 12,
which governs the filing of a motion to dismiss, to a habeas petition because such a motion
is effectively duplicative of an Answer to a Petition, in which all relevant arguments that
could be made on such a motion can and should be made.
Here, where the Motion to Dismiss was simultaneously Respondents’ Answer
through a single brief addressing both the Motion and the Answer (see ECF No. 8), the
Court finds that (1) there was no need for a Motion to Dismiss; and (2) the Court’s
resolution of the Petition necessarily resolves the Motion to Dismiss. The Court, therefore,
denies Government’s Motion to Dismiss as moot. See Tanha, 2025 WL 2062181, *8
(addressing habeas petition and denying as moot Government’s motion to dismiss).
III. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Solis Nolasco’s Petition for Writ of Habeas Corpus (ECF No. 1) and DENIES as MOOT
the Government’s Motion to Dismiss (ECF No. 8). A separate Order follows.
Entered this 5th day of January, 2026.
/s/
George L. Russell, III
Chief United States District Judge
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