Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Luis Fernando Rosales-Navares
v. 	Case No. 1:26-cv-232-PB-AJ
Opinion No. 2026 DNH 046
FCI Berlin, Warden, et al.
MEMORANDUM AND ORDER
Luis Fernando Rosales-Navares, an alien subject to a reinstated final
order of removal, challenges his present detention while he pursues
withholding of removal to El Salvador. He argues that he is entitled to
immediate release under Zadvydas v. Davis, 533 U.S. 678 (2001), or,
alternatively, to a bond hearing based on the length of his detention to date.
The government objects to both.
Rosales-Navares is ineligible for relief under Zadvydas. However, I join
with other district courts in concluding that the Fifth Amendment requires
an individualized custody determination when an alien’s civil detention—
even when based on a final order of removal pursuant to 8 U.S.C. § 1231—
grows substantially prolonged. I therefore grant Rosales-Navares’s petition to
the extent of affording him that relief.
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I. BACKGROUND
Although Salvadoran by birth, Rosales-Navares was raised and “spent
the overwhelming majority of his life” in Guatemala. Doc. 1 at 4. He first
attempted to enter the United States by crossing the Rio Grande in April
2008, when he was twenty years old. See id. at 4-5; Doc. 7-2 at 3. He was
promptly apprehended and removed to Guatemala under an expedited order
of removal pursuant to 8 U.S.C. § 1225(b)(1). Doc. 7-1 at 2.
Rosales-Navares reentered the United States two years later. Doc. 1 at
5-6. He eventually settled in Clinton, Massachusetts, where he resided with
his wife and children for over fifteen years. See id. Throughout that period,
Rosales-Navares went undetected by immigration authorities. Doc. 7 at 3.
In January 2025, Rosales-Navares was arrested and notified that his
order of removal from 2008 would be reinstated based on his illegal reentry
pursuant to 8 U.S.C. § 1231(a)(5). Id.; Doc. 7-5 at 2. After his arrest, Rosales-
Navares expressed fear of returning to El Salvador, prompting an interview
with U.S. Customs and Immigration Services (“USCIS”). Doc. 7-6 at 2-3.
Based on that interview, USCIS concluded that Rosales-Navares had not
established a reasonable fear of persecution or torture in El Salvador. Id. at
2. Rosales-Navares sought review of that finding before an immigration judge
(“IJ”). Id. at 3; Doc. 7-7 at 2-4. In March 2025, an IJ vacated USCIS’s finding
and placed Rosales-Navares in withholding-only proceedings. Doc. 7-8 at 2-3.
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A different IJ ultimately denied his application for relief in August 2025. Doc.
7-9 at 2-9.
Rosales-Navares appealed the IJ’s denial to the Board of Immigration
Appeals (“BIA”). See Doc. 1 at 6. Initially, Rosales-Navares’s appellate brief
was due to the BIA on November 14, 2025. Doc. 7-10 at 2. Around that time,
Rosales-Navares filed an overlong brief accompanied by a motion to waive the
BIA’s thirty-page limit, adhering to the procedure for such requests laid out
in the BIA’s scheduling order. Doc. 7 at 4; see Doc. 7-10 at 3 (“If a party files a
motion to increase the page limit, the motion and the brief need to be filed
together.”). The BIA denied the motion and extended the briefing deadline for
both parties to February 19, 2026. Doc. 7-11 at 2-3; Doc. 7-12 at 2. Rosales-
Navares refiled on February 11, 2026, while the government elected not to
file a brief. Doc. 1 at 6. His appeal remains pending. Doc. 7 at 4.
Throughout the proceedings since his arrest, Rosales-Navares has
remained in federal custody. Doc. 1 at 2. Most recently, he has been
incarcerated at Federal Correctional Institution Berlin (“FCI Berlin”), a
medium-security prison in northern New Hampshire. See id. On March 27,
2026, Rosales-Navares filed the instant petition for a writ of habeas corpus in
this Court, contending that his continued detention contravenes the Supreme
Court’s decision in Zadvydas as well as the Fifth Amendment’s Due Process
Clause. See id. at 9-15. He asks this Court to release him under reasonable
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conditions of supervision or, in the alternative, order the government to
afford him an individualized bond hearing before an IJ. See id. at 17. The
government responded to his petition on April 6, opposing both forms of
requested relief. See Doc. 7.
I held a status conference on April 7, 2026, at which the parties agreed
that Rosales-Navares’s petition could be resolved on the papers already
submitted. I address their arguments below.
II. STANDARD OF REVIEW
When a person is held “in custody in violation of the Constitution or
laws or treaties of the United States,” habeas corpus relief is appropriate. 28
U.S.C. § 2241(c)(3). The habeas petitioner carries the burden of proving that
his detention is unlawful. Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009)
(“The burden of proof of showing deprivation of rights leading to unlawful
detention is on the petitioner.”). If a petition “present[s] only issues of law,” it
may be resolved on the merits without a hearing. See 28 U.S.C. § 2243; see
also R. Governing Section 2254 Cases 8(a); LR 7.4(c).
III. ANALYSIS
Rosales-Navares challenges his detention on two grounds, each of
which corresponds to a distinct form of relief. First, he asserts a Zadvydas
claim in support of his immediate release. Second, he argues in the
alternative that his detention’s continuation is constitutionally unreasonable
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absent an individualized bond hearing. As I explain below, Rosales-Navares
prevails on the latter theory only, warranting a bond hearing.
A. 	Zadvydas Claim
Beginning with his argument for outright release, Rosales-Navares
asserts that his detention violates the Immigration and Nationality Act
(“INA”) as construed by the Supreme Court in Zadvydas. However, his
arguments for immediate release under Zadvydas are indistinguishable from
those that this Court and the First Circuit held insufficient in G.P. v.
Garland. See 2024 DNH 001, 2024 WL 328435, at *4 (D.N.H. Jan. 29, 2024),
aff’d, 103 F.4th 898, 901-02 (1st Cir. 2024). His Zadvydas claim is thus
foreclosed by binding precedent.
In Zadvydas, the Supreme Court “read an implicit limitation” into the
INA which requires that an alien be released after six months if “it has been
determined that there is no significant likelihood of removal in the
reasonably foreseeable future.” 533 U.S. at 689, 701. While at bottom a
matter of statutory interpretation, this holding served “to avoid a serious
constitutional threat” to aliens’ substantive due process rights that would
arise from the statute’s apparent authorization of indefinite civil detention
for aliens ordered removed. See id. at 690-91, 699. To eschew that
constitutionally problematic result, the Court interpreted the statute to
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permit an alien to obtain release in the rare case where he can show a serious
improbability that the government will ever remove him. See id. at 701.
In G.P., the First Circuit further clarified the considerable limits on
Zadvydas claims, holding that an alien’s detention while he pursues
withholding of removal, without more, does not run afoul of Zadvydas. See
103 F.4th at 902-05. There, the alien had waited in immigration detention for
nearly four years while his withholding-only proceedings unfolded, which saw
his case falter before an IJ and the BIA before being remanded for further
consideration by the First Circuit. See id. at 899-901. Despite the prolonged
extent of his detention in the meantime, the court held that the alien’s
circumstance did not meet the Zadvydas standard for improbable removal.
See id. at 901-02. The court grounded this conclusion on the inevitable (even
if distant) resolution of the alien’s withholding-only proceedings, which would
eventually result in his release, removal to his country of origin, or removal
to a third country—any one of which would avoid the “indefinite and
potentially permanent detention” feared in Zadvydas. See id. (quoting
Castaneda v. Perry, 95 F.4th 750, 757 (4th Cir. 2024)).
Rosales-Navares’s Zadvydas claim is materially identical to the one
rejected in G.P. As I explained in that case and recently reiterated, Zadvydas
does not require release during the pendency of withholding-only proceedings
in the normal course, even when those proceedings drag on. See 2024 WL
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328435, at *5; De Leon v. Luna, 2026 DNH 041, 2026 WL 1048396, at *2-3
(D.N.H. Apr. 17, 2026). Beyond stating that his removal “is not presently
possible while [his] BIA appeal remains pending,” Rosales-Navares does not
explain how his future removal is less certain than in G.P. See Doc. 1 at
14-15. Rather, like in G.P., Rosales-Navares’s proceedings will eventually
conclude, after which he will either be released, removed to El Salvador, or
removed to a third country. See 103 F.4th at 901-02. That case’s reasoning
thus leads to the same conclusion here, and I cannot order Rosales-Navares’s
immediate release under Zadvydas.1
B. 	Prolonged-Detention Claim
Rosales-Navares additionally brings a second, as-applied constitutional
challenge to his detention, arguing that his fifteen-month incarceration
without a bond hearing violates his right to procedural due process under the
Fifth Amendment. This separate prolonged-detention claim raises an issue
not presented in G.P., in which the petitioner did not assert a constitutional
basis for relief beyond the underlying constitutional avoidance inherent to a
Zadvydas claim. See id. at 902 n.3 (noting that because “G.P. challenges his
1 	Like the petitioner in G.P., Rosales-Navares does not appear to assert a
standalone claim that the government has violated his right to substantive
due process by failing to immediately release him. See 2024 WL 328435, at
*5. Because he has not made that argument, I will leave resolution of that
issue for another day.
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detention under only Zadvydas,” the court “need[ed] not consider any
constitutional claim”); see also 2024 WL 328435, at *5 (same).
Turning to that pure constitutional claim, Rosales-Navares argues that
the Fifth Amendment precludes the government from detaining him for as
long as it has without an individualized custody determination. Significantly,
he does not contest the government’s authority to initially detain him without
a bond hearing, as he acknowledges that his inadmissibility under § 1182
renders him initially detainable under § 1231(a)(6). See 8 U.S.C. § 1231(a)(6)
(“An alien ordered removed who is inadmissible under section 1182 . . . may
be detained beyond the removal period . . . .”); id. § 1182(a)(9)(C)(i) (“Any
alien who . . . has been ordered removed . . . and who enters or attempts to
reenter the United States without being admitted is inadmissible.”); see also
Johnson v. Guzman Chavez, 594 U.S. 523, 535 (2021) (holding that “aliens
subject to reinstated orders of removal” are properly detained under § 1231).
Rather, Rosales-Navares contends that while his detention was without a
doubt lawful at its outset, it has since grown constitutionally unreasonable
because of its prolonged duration without individualized review.
Presently, no binding authority from either the First Circuit or the
Supreme Court directly addresses pure constitutional claims of prolonged
detention brought by alien detainees. The First Circuit previously set forth a
non-exhaustive list of factors for courts to use in assessing the constitutional
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reasonableness of aliens’ categorical detention under 8 U.S.C. § 1226(c) in
Reid v. Donelan, but it later withdrew its opinion in light of the Supreme
Court’s decision in Jennings v. Rodriguez, 583 U.S. 281 (2018), see 819 F.3d
486, 500 (1st Cir. 2016), withdrawn, 2018 WL 4000993, at *1 (1st Cir.
May 11, 2018), and indicated that it is “in no way bound” by it, G.P., 103
F.4th at 904. And in Jennings, the Supreme Court expressly declined to
address the question. See 583 U.S. at 312.
Confronted with this vacuum of binding authority, I turn to other
circuits that have considered aliens’ constitutional claims of prolonged
detention since Jennings—the Second and Third Circuits, specifically. The
Second Circuit, for its part, examines these claims through the conventional
interest-balancing framework for procedural due process claims established
by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976). See
Black v. Decker, 103 F.4th 133, 147-48 (2d Cir. 2024). The Third Circuit,
meanwhile, uses a multi-factor reasonableness test much like the First
Circuit’s discarded approach in Reid. See German Santos v. Warden Pike
Cnty. Corr. Facility, 965 F.3d 203, 211 (3d Cir. 2020). Rosales-Navares
advocates that I adopt the latter view, and indeed, all my colleagues on this
Court to have considered prolonged-detention claims have done exactly that.
See Fils-Aime v. FCI Berlin, Warden, 2025 DNH 126, 808 F. Supp. 3d 218,
224-26 (D.N.H. 2025); K-S- v. Warden, FCI-Berlin, 2025 DNH 145, 2025 WL
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3671774, at *4-5 (D.N.H. Dec. 17, 2025); Beneche v. FCI Berlin Warden, 2026
DNH 038, 2026 WL 1031050, at *3-5 (D.N.H. Apr. 16, 2026); see also Rocha v.
Barr, 422 F. Supp. 3d 472, 480-82 (D.N.H. 2019) (conducting a similar
inquiry under Reid).
The government nonetheless objects, arguing instead that for § 1231
detainees like Rosales-Navares, Zadvydas supplies the only recourse against
infinite detention. As I noted above, however, Zadvydas was a statutory
construction case asserting a claim for immediate release; it did not foreclose
aliens from challenging their detention on alternative, as-applied
constitutional grounds. See G.P., 2024 WL 328435, at *5. Indeed, contrary to
the government’s representation, the application of multi-factor
reasonableness tests like the Third Circuit’s above to § 1231 detainees is
increasingly common, not only among my colleagues, but also courts in
circuits that have yet to expressly require the practice. See, e.g., Arostegui-
Maldonado v. Baltazar, 794 F. Supp. 3d 926, 938-42 (D. Colo. 2025).
The government is similarly mistaken to rely on Johnson v. Arteaga-
Martinez, 596 U.S. 573 (2022). In Arteaga-Martinez, the Supreme Court
undertook a textual analysis of § 1231(a)(6), determining that the provision
does not require bond hearings for aliens like Rosales-Navares who have been
detained for over six months. See id. at 580-82. But the Court was careful to
make clear that its decision did not address whether aliens in the same
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position have a separate constitutional right to bond hearings. See id. at 583
(“The courts below did not reach Arteaga-Martinez’s constitutional claims
because they agreed with him that the statute required a bond hearing. We
leave them for the lower courts to consider in the first instance.”); see also
Arostegui-Maldonado, 794 F. Supp. 3d at 938 (observing the same limitation
in Arteaga-Martinez). Much like in Zadvydas, the Court thereby cabined its
holding to statutory construction, leaving open the door to aliens with pure
constitutional challenges.
Apart from citing Zadvydas and Arteaga-Martinez, the government
does not explain why Rosales-Navares lacks the same right against
unreasonably prolonged detention recognized by my colleagues in Fils-Aime,
K-S-, and Beneche. Persuaded instead that my colleagues’ view is correct, I
join their consensus and proceed to examine Rosales-Navares’s prolonged-
detention claim under the same multi-factor rubric.
As articulated by the Third Circuit, that rubric requires courts to
consider four factors in assessing the reasonableness of an alien’s detention:
(1) the “duration of detention,” (2) “whether the detention is likely to
continue,” (3) “the reasons for the delay,” and (4) “whether the alien’s
conditions of confinement are ‘meaningfully different[]’ from criminal
punishment.” German Santos, 965 F.3d at 211 (alteration in original)
(quoting Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 478 (3d
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Cir. 2015)). Like the First Circuit’s list of considerations in Reid, this list is
an open set, and courts should consider its factors “along with all the other
circumstances” of an alien’s detention. See id. Nonetheless, Rosales-Navares
raises only the four above in his petition. I assess each in turn.
1. 	Length of Detention
“Though no bright-line rule dictates when detention has become
unreasonably prolonged, ‘detention is likely to be unreasonable if it lasts for
more than one year during removal proceedings before the agency, excluding
any delays due to the alien’s dilatory tactics.’” Fils-Aime, 808 F. Supp. 3d at
225 (quoting Smorodska v. Strafford Cnty. Dep’t of Corr., No. 20-cv-446, slip.
op. at 3 (D.N.H. May 14, 2020)).
Here, Rosales-Navares has remained in custody for over fifteen months,
surpassing the one-year mark and aligning with the range of lengths that my
colleagues have held unreasonable. See id. (fourteen months); K-S-, 2025 WL
3671774, at *4 (sixteen months); Beneche, 2026 WL 1031050, at *4 (thirteen
months). While the government attributes the length of Rosales-Navares’s
detention to his own pursuit of relief from removal, it does not otherwise
contend that he tactically maneuvered to delay resolution of those
proceedings. I therefore conclude that the length of Rosales-Navares’s
detention weighs in his favor.
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2. 	Likely Duration of Future Detention
In Beneche, my colleague noted that an alien’s detention can “extend
for years” after filing an appeal with the BIA, as the BIA’s eventual decision
is usually followed either by further proceedings before the IJ or an appeal to
the First Circuit. See 2026 WL 1031050, at *4. Especially in the latter case,
the First Circuit is additionally prone to stay an alien’s removal while such
an appeal is pending, all but ensuring that he remains in custody while his
case is briefed and decided. See De Leon, 2026 WL 1048396, at *1.
To its credit, the government represents that it expects the BIA to
resolve Rosales-Navares’s appeal in due course. However, the government
does not suggest that it would move to release Rosales-Navares should
proceedings continue to unfold after that decision, whether before the IJ or
the First Circuit. With many months (if not years) of further detention in the
offing, the likely extent of Rosales-Navares’s future incarceration thus weighs
in his favor.
3. 	Reasons for Delay
Where an alien’s own actions have delayed the resolution of his
immigration claims, his role in prolonging those proceedings can sometimes
weigh against finding the concomitant extension of his detention
unreasonable. See German Santos, 965 F.3d at 212 (suggesting that delay
caused by a failure to pay a filing fee or a request for a continuance may
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disfavor relief). However, an alien’s exercise of his rights to contest removal
through “bona fide immigration proceedings,” even if “initiated by the alien,”
cannot serve as a basis for continued detention. See Fils-Aime, 808
F. Supp. 3d at 226 (quoting Smorodska, No. 20-cv-446, slip. op. at 4). Indeed,
if it did, we “would effectively punish an alien for pursuing applicable legal
remedies.” German Santos, 965 F.3d at 211 (citation modified).
In the government’s view, Rosales-Navares bears responsibility for
perpetuating his own detention by filing an overlong brief to the BIA, which
triggered a three-month postponement of the filing deadlines in his case.
While undisputed that his overlong brief triggered the delay, Rosales-
Navares notes that his filing was nonetheless timely and that he sought to
comply with the BIA’s scheduling order by filing the overlong brief, consistent
with the scheduling order’s instructions. See Doc. 7-10 at 3 (“If a party files a
motion to increase the page limit, the motion and the brief need to be filed
together.”).
True enough, the BIA’s scheduling order does not seemingly present a
more expedient procedure by which an alien may obtain permission to file an
overlong brief. See id. Still, a complete reading of the order’s instructions
makes clear that Rosales-Navares was on notice of the risk of further delay
he bore by filing an overlong brief, as the BIA also emphasizes its
disinclination to grant such exceptions. See id. (“Motions to accept briefs that
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exceed the page limitation . . . are disfavored, and will not be granted absent
a showing of extraordinary and compelling circumstances.”). Rosales-
Navares’s decision to file such a brief despite that risk thus seems more akin
to seeking a continuance—a departure from the ordinary (fastest) course of
review which, while permissible, is entirely optional. See German Santos, 965
F.3d at 212; cf. Demore v. Kim, 538 U.S. 510, 530-31 & n.15 (2003)
(attributing extended duration of detention to alien’s own decision to
“request[] a continuance of his removal hearing”). If the lion’s share of
Rosales-Navares’s time in detention were attributable to that delay, then, it
would likely work against him.
The government’s argument mistakenly narrows the temporal frame,
however. Recall that, to date, Rosales-Navares has been incarcerated for a
full fifteen months. Even attributing the filing-triggered delay to him, that
setback only explains three months—a fifth—of the fifteen he has been in
custody so far. As discussed above, that time will only grow and the fraction
attributable to Rosales-Navares only diminish while he awaits a decision
from the BIA. And where an alien’s self-inflicted delay only accounts for only
a small subset of his detention, the government’s responsibility for the rest
may still cut in his favor. See Leslie v. Att’y Gen., 678 F.3d 265, 271 (3d Cir.
2012), abrogated on other grounds by Jennings, 583 U.S. at 305 (concluding
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that government’s delay was unreasonable where alien was responsible for
five weeks out of a four-year delay).
Here, Rosales-Navares’s procedural moves are responsible for a
sizeable share of his time in detention, but by no means most of it. On
balance, I conclude that the reasons for his delay weigh in neither his nor the
government’s favor.
4. 	Conditions of Confinement
An alien’s detention “under conditions indistinguishable from those
meant for criminal punishment” weighs in his favor. K-S-, 2025 WL 3671774,
at *5. Penal facilities are the archetypal example of such conditions. See id.
As in every one of my colleagues’ cases, Rosales-Navares has spent
most of his detention at FCI Berlin alongside convicted criminals. See Fils-
Aime, 808 F. Supp. 3d at 226; K-S-, 2025 WL 3671774, at *5; Beneche, 2026
WL 1031050, at *5. I agree with my colleagues that such conditions of
confinement evince his detention’s unreasonableness.
* * *
Weighing the three factors in favor of Rosales-Navares against his
partial responsibility for delaying his withholding proceedings, I conclude
that his prolonged detention without a bond hearing has become
constitutionally unreasonable. And as the appropriate remedy for a prolonged
detention “is a bond hearing before an immigration judge,” I grant Rosales-
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Navares’s requested relief in that respect. Rivera-Medrano v. Wolf, 2020
DNH 055, 2020 WL 1695628, at *5 (D.N.H. Apr. 6, 2020). The government is
to provide Rosales-Navares with a bond hearing consistent with the
allocations and burdens of proof required by the First Circuit as soon as
practicable. See Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).
IV. CONCLUSION
Because his detention without a bond hearing has developed into a
violation of his procedural due process rights, I grant Rosales-Navares’s
petition in part. See Doc. 1. The government is ordered to afford Rosales-
Navares with a bond hearing before an IJ as soon as practicable.
The parties shall file a status report within fourteen days.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
April 27, 2026
cc: 	Counsel of Record
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