De Souza-Ferreira v. Decker: When CAT Withholding Meets Indefinite Detention
- Citation
- De Souza-Ferreira v. Decker (D.N.J. March 2026)
- Court
- U.S. District Court for the District of New Jersey
- Statute
- 28 U.S.C. § 2241; 8 U.S.C. § 1231(a)(6); INA § 241(b)(3); CAT regulations
- Holding
- Government’s third-country-removal speculation insufficient to justify continued detention; indefinite detention without realistic removal prospect violates statute and due process; habeas granted.
The petitioner in De Souza-Ferreira was a Brazilian national who had been granted Convention Against Torture withholding of removal to Brazil. The IJ’s grant precluded the government from sending him back to his country of citizenship. ICE’s response, after his June 2025 re-detention, was to assert that he might be removed to a third country instead. After nine months of detention without any concrete progress on the third-country track, the District of New Jersey granted habeas.
The third-country speculation problem
The court’s analysis focused on the difference between a realistic prospect of removal and an aspirational one. ICE had referenced negotiations with potential receiving countries but had identified no specific country that had agreed to accept the petitioner. There was no operational timeline. There was no documented progress. The court treated the government’s position as fundamentally indistinguishable from saying that detention might be justified by some future event the government hoped would occur.
That is not what Zadvydas permits. The Supreme Court’s framework requires a particularized showing that removal is significantly likely in the reasonably foreseeable future. Generic representations about diplomatic efforts do not satisfy that standard, and the post-2025 expansion of third-country removal practice does not change the burden the government bears in the individual Zadvydas case.
“The possibility that some country, somewhere, might at some indeterminate future point agree to accept the petitioner is not, on this record, a basis for indefinite detention.”
The CAT-protection dimension
Withholding of removal under CAT is a country-specific protection. It bars removal to the country where torture is feared but does not formally bar removal to a third country in which no such fear exists. The third-country removal docket explored elsewhere on this site (the D.V.D. litigation, the South Sudan flights) addresses the procedural protections owed before such third-country removals occur. De Souza-Ferreira addresses the related but distinct question: how long can the government detain a CAT-protected person while it tries to arrange one?
The answer, on these facts, was not nine months. The court’s reasoning leaves room for shorter detention periods where genuine progress is documented, but it draws a clear line against using third-country aspirations as a justification for prolonged confinement.
Significance
De Souza-Ferreira is one of the cleaner intersections of the Zadvydas docket and the third-country removal docket. The two lines of cases are increasingly entangled. ICE’s post-2025 practice has been to detain CAT/withholding recipients on the theory that third-country removal is imminent; De Souza-Ferreira insists that the imminence be real before detention can be sustained.
For practitioners representing CAT/withholding clients facing re-detention, the case supplies a useful framework: demand particularization, document the absence of operational progress, and invoke Zadvydas’s burden-shifting framework. The combination has proven powerful in district courts that have engaged the issue.
Filed under Post-Removal Detention. Published March 2026.