Abdul Khaliq v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
HEITHEM MOHAMMAD ABDUL KHALIQ, )
)
Petitioner, )
)
v. ) Case No. CIV-25-1154-SLP
)
KRISTI NOEM, et al., )
)
Respondents. )
O R D E R
Before the Court is the Report and Recommendation [Doc. No. 26] of United States
Magistrate Judge Chris M. Stephens, recommending the denial of habeas relief pursuant to
28 U.S.C. § 2241. Petitioner has filed an Objection [Doc. No. 27] and Respondents have
filed their Response to the Objection [Doc. No. 28].1 The matter is at issue. For the reasons
that follow the Court respectfully DECLINES TO ADOPT the recommendation of the
Magistrate Judge and finds that habeas relief should be GRANTED.
I. Introduction
Petitioner brings a petition for habeas relief pursuant to 28 U.S.C. § 2241 claiming
that he is in custody “in violation of the Constitution or laws . . . of the United States,” id.
§ 2241(c)(2), and seeking release from civil immigration detention.2 Petitioner challenges
1 Citations to the parties’ briefing submissions and record reference the Court’s ECF pagination.
2 Petitioner is currently detained at Cimarron Correctional Facility in Cushing, Oklahoma. See
https://locator.ice.gov/odls/#/results (last visited January 26, 2026).
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his detention as a violation of the Fifth Amendment’s Due Process Clause, relying on the
Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001). 3
Petitioner is subject to an order of removal from the United States as a result of a
state-court felony conviction. His statutory ninety-day removal period expired more than
five years ago. Petitioner was previously detained by the United States Immigrations and
Customs Enforcement (ICE) from February 2020 until August 2021 – a period of
approximately 19 months. From August 2021 to March 2025, Petitioner was released
from confinement and subject to an Order of Supervision (OOS). However, in March 2025
ICE redetained Petitioner.
Petitioner seeks his release from continued immigration detention because he
argues there is no significant likelihood of his removal in the reasonably foreseeable future.
As of the date of this Order, Petitioner has been redetained for approximately ten months.
The Magistrate Judge recommended denying the Petition. The Magistrate Judge
found, under Zadvydas, that there is a significant likelihood of Petitioner’s removal to
Jordan in the reasonably foreseeable future.
The Magistrate Judge found that Zadvydas applies but acknowledged that in
Zadvydas, the petitioners sought relief from their original detention under 8 U.S.C.
§ 1231(a)(6) and not redetention as raised here. See R&R at 8, n. 1. As the Magistrate
3 Petitioner brings a related statutory challenge under 8 U.S.C. § 1231(a) to his continued
redetention. That challenge, in turn, relies on Zadvydas. See Pet., Count Two, at 8-9, citing
Zadvydas and alleging that “[b]ecause Petitioner’s removal is not reasonably foreseeable, his
detention does not effectuate the purpose of the statute and is accordingly not authorized by
§ 1231(a).”
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noted, Respondents rely on § 1231(a)(6) as the statutory authority upon which Petitioner
is subject to redetention and “all parties focus their briefing on whether Petitioner’s
redetention is constitutional under Zadvydas alone.” Id. Neither party challenges this
finding so the Court confines its analysis accordingly.4
In his Objection, Petitioner argues that the Magistrate Judge erred by failing to
aggregate his initial period of detention and his continuing period of redetention. Petitioner
further argues the Magistrate Judge did not properly follow the directive in Zadvydas that
“for detention to remain reasonable, as the period of prior postremoval confinement grows,
what counts as the “reasonably foreseeable future” conversely would have to shrink.” Id.
at 701.
II. Factual Record
The following facts are undisputed. Petitioner was born on March 27, 1974, in
Saudi Arabia and is of Palestinian descent.5 In 1990, he immigrated to the United States
as a Lawful Permanent Resident. He held a temporary Jordanian passport.6 The passport
issued in 1989 and expired in 1994. See Doc. No. 23 at 19, 23.
4 Petitioner attempts to raise, for the first time in his Objection, a new and additional issue as to
the regulatory authority governing his redetention. As discussed infra, that issue is not properly
before the Court.
5 Initially, Respondents attested to the Court that Petitioner “was born in Jordan.” See Nation Decl.
[Doc. No. 10-1], ¶ 10. But after the Magistrate Judge directed further development of the record,
see Order [Doc. No. 15], Respondents now attest that Petitioner was born in Saudi Arabia and is
of Palestinian descent. See Nation Decl. [Doc. No. 18-1], ¶ 10.
6 Petitioner disputed information provided by ICE that he held a Jordanian passport. Again, after
the Magistrate Judge directed further development of the record, Petitioner now states that
although he “cannot confirm he had a Jordanian passport, he does not currently dispute it[.]” See
Suppl. Resp. [Doc. No. 20] at 3 (emphasis in original).
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In January 2018, Petitioner entered a guilty plea in the District Court of Oklahoma
County, State of Oklahoma, to charges of driving under the influence, possession of a
controlled dangerous substance, possession of drug paraphernalia, and driving while
privilege revoked. In April 2019, as a consequence of his felony conviction on those
charges, Petitioner was turned over to ICE custody for removal proceedings. On August
30, 2019, an immigration judge ordered that Petitioner be removed to Saudi Arabia.7
Petitioner’s attempts to overturn the immigration judge’s order of removal were
unsuccessful.
Respondents have submitted the Declaration of Aaron Nation, a Deportation Officer
employed by ICE, to establish certain facts related to ICE’s removal efforts and Petitioner’s
detention history. See Nation Decl. [Doc. No. 18-1]. Sometime after July 2020,
Petitioner’s case was sent to ICE’s Enforcement and Removal Operations (ERO) to execute
the order of removal. Id., ¶ 6.8 In September 2020, ERO sent a travel document request to
the Consulate of Saudi Arabia. Id., ¶ 7. In December 2020, based on responses received
by the Consulate of Saudi Arabia, ERO suspended efforts to obtain travel documents from
Saudi Arabia.9 ERO has subsequently focused its efforts on Petitioner’s removal to Jordan.
7 Petitioner was removable based on his state-court conviction for a controlled substance offense.
See 8 U.S.C. § 1227(a)(2)(B)(i).
8 ERO is an operational branch of ICE. See https://www.ice.gov/about-ice.
9 The Consulate of Saudi Arabia notified ERO that Petitioner is not a Saudi citizen, that his last
name was not correctly identified, and that the translation of the birth certificate submitted by
Petitioner was not accurate. See Nation Decl., ¶ 8.
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Mr. Nation states that he is “aware that Jordan issues passports to certain
individuals of Palestinian descent.” Id., ¶ 10.10 Mr. Nation further states that in January
2021, ERO sought assistance from the Consulate of Jordan to inquire about Petitioner’s
country of birth and country of citizenship. Id., ¶ 9. But there is no record that any
documentation was sent to Jordan on this date. Id.
In July 2021, ICE’s Headquarters Removal International Operations (HQRIO)
requested an update on travel documents from the Embassy of Jordan. Id., ¶ 11. But there
is no record of the Jordanian Embassy responding to this request. Id.
In August 2021, Petitioner was released from custody.11 Petitioner was subject to
periodic check-ins under an OOS.
On March 6, 2025, at one of his periodic check-ins, Petitioner was taken into ICE
custody and redetained. Id., ¶ 14.12 Approximately one month later, on April 13, 2025,
10 Although Mr. Nation states that he is “aware” of the issuance of such passports, he provides no
details or statistical information to support the assertion or even provide a generalized explanation
as to why he is “aware” of the same.
11 The parties dispute whether his release was due to reasons related to the COVID-19 pandemic,
or whether his release was due to the ICE’s inability to effect his removal, i.e., that his removal
was not significantly likely in the reasonably foreseeable future. Respondents equivocate
somewhat on contending release was due to COVID stating: “Petitioner’s release was, at least
partly, a function of his validated COVID risk factor rather than solely a function of there being
no significant likelihood of removal in the reasonably foreseeable future.” Resp. [Doc. No. 28] at
6 (emphasis added). The Magistrate Judge found that “[t]he reason for Petitioner’s release does
not impact the undersigned’s analysis on whether he is currently entitled to release.” R&R at 3, n.
4. Neither party challenges that finding or otherwise assert any claim that the reason for his release
impacts analysis of the issues before the Court.
12 There is no indication in the record that Petitioner has not been compliant with the terms of his
OOS.
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ERO sent a travel document request to the Embassy of Jordan. Id., ¶ 15. There is no
evidence in the record that ERO made any contact with the Jordanian Embassy in the four
years between 2021 and the post-redetention April 13, 2025 travel document request.13
For the next seven months, ERO and/or HQRIO requested status updates from the
Jordanian Embassy as to the travel document request.14 According to Mr. Nation, “[o]n
July 31, 2025, ERO HQRIO stated the embassy is still waiting on approval from the
Government of Jordan to issue a [travel document].” Nation Decl., ¶ 21.15
On October 3, 2025, Petitioner filed the instant action. Approximately one month
later, on November 5, 2025, upon inquiry from ERO, an officer of the Jordanian Embassy
advised that “emergency travel documents” could not be issued based on Petitioner’s
“temporary passport.” Id., ¶ 23, 24. But the officer gave instructions for submitting a new
13 As evidence of the April 13, 2025 travel request, Mr. Nation refers to “Attachment A” to his
Declaration. See Nation Decl., ¶ 15. Attachment A is a letter dated April 28, 2020. See Doc. No.
23 at 1-2. It appears the date on the letter is a typographical error, though no explanation has been
provided to the Court. Coincidentally, April 28, 2020 is the date which appears on Petitioner’s
Form I-862 Notice to Appear for removal proceedings, which is also included as part of
Attachment A to Mr. Nation’s Declaration. See Doc. No. 23 at 12. Dates are particularly
significant here. As such, the Court has some pause about the inaccurate date reflected on the
attachment particularly where the record shows other inaccuracies in Mr. Nation’s Declaration
about which the Magistrate Judge required clarification and supplementation.
14 Specifically, ERO requested status updates on May 23, 2025 and July 23, 2025 and HQRIO
requested status updates on May 26, 2025 and June 17, 2025. Nation Decl., ¶¶ 17, 20, 21.
15 Mr. Nation states that on June 2, 2025, ERO “issued a decision to continue [Petitioner’s]
detention” and “determined that his criminal history demonstrated he is a danger, and his removal
is highly likely in the reasonably foreseeable future.” Nation Decl., ¶ 18. The ERO decision is
not included in the record and Respondents have not raised any issue or made any argument related
to Petitioner’s alleged dangerousness in their briefing submissions.
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passport and advised that it “could take some time as they would need to get approval from
the Jordanian authorities since [Petitioner] is detained.” Id., ¶ 24.
On that same date, the forms required to be completed by Petitioner for submitting
a new passport were “sent off to be translated.” Id., ¶ 25. ERO anticipated that the forms
would be “returned in a week or so” and that ERO would work with Petitioner to complete
the forms. Id. As of the date of this filing, no further information has been provided to the
Court as to the status of these forms.
Mr. Nation also states in his Declaration that “if the Jordanian Embassy does not
issue a travel document, [then] ERO . . . intends to submit a travel document request to the
Israeli Embassy for permission to travel to the West Bank if [Petitioner] completes the
travel document request.” Id., ¶ 30. As part of any such document request, Mr. Nation
states Petitioner’s passport, birth certificate and pages of his parents’ passport which reflect
they are Palestinian will be included and characterizes the same as “strong evidence of
[Petitioner’s] nationality for approval to travel to Palestine.” Id. Mr. Nation further states
that “[b]ased on Palestine’s acceptance of flights, and the record of acceptance of
individuals of Palestinian descent to Palestine, [he] believe[s] [Petitioner’s] removal is
significantly likely in the reasonably foreseeable future.” Id.16
16 As with Mr. Nation’s statements about the likelihood of Jordan’s issuance of a passport to
Petitioner, Mr. Nation provides no details or statistical information to support these assertions.
Because the Magistrate Judge deemed Petitioner’s removal to Jordan significantly likely in the
reasonably foreseeable future, the Magistrate Judge did not address “the alternative removal plan
of Petitioner to Palestine through Israel.” R&R at 16, n. 9.
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III. Findings of the Magistrate Judge
The Magistrate Judge denied relief to Petitioner. The Magistrate Judge determined
that “a delay in the issuance of necessary travel documents by the country to which ICE is
seeking to remove him” is insufficient to satisfy Petitioner’s burden to show that his
removal is “not significantly likely in the reasonably foreseeable future.” R&R at 11, 12.
The Magistrate Judge based this finding on the “travel document requests and responses
from Jordan.” Id. at 10, 11. The Magistrate Judge further determined that “the fact that a
foreign government has not yet issued travel documents to a petitioner with a pending
request and ties to that country does not mean that his removal is not significantly likely in
the reasonably foreseeable future.” Id. at 12. And the Magistrate Judge noted that only
when delays are “extraordinarily long” does an inference arise that “travel documents will
likely never issue.” Id. at 13.
The Magistrate Judge also determined that even if Petitioner had met his burden to
show that his removal is not significantly likely in the reasonably foreseeable future,
Respondents had sufficiently rebutted that showing. The Magistrate Judge pointed to the
“indicat[ion]” from Respondents that “the Jordanian Embassy has provided instructions for
applying for a new passport for Petitioner and that the process could take some time.” Id.
at 14. The Magistrate Judge further found that “ERO has taken numerous steps to secure
travel documents and effectuate Petitioner’s removal, including multiple communications
with the Embassy of Jordan to obtain the proper documents for Petitioner’s removal to
Jordan.” Id. at 15.
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In reaching these conclusions, the Magistrate Judge acknowledged that “Petitioner
has been detained post-removal for nearly nine months this year” but found nonetheless
that the “government is making reasonably substantial efforts to remove him, and Jordan
appears to be cooperating with those efforts.” Id. at 16. The Magistrate Judge noted,
however, that “this may change in the future, and Petitioner is not precluded from filing
another habeas petition if removal to Jordan is no longer significantly likely to occur in the
reasonably foreseeable future.” Id.
IV. Petitioner’s Objections
Petitioner raises the following objections to the findings of the Magistrate Judge.
First, Petitioner argues the Magistrate Judge erred when focusing solely on the nine-month
period of confinement on redetention. Petitioner argues the Magistrate Judge should have
also considered the period of his prior detention on his order of removal.17 This is
important, Petitioner argues, because under Zadvydas, “as the period of post-order
confinement grows, the period of the reasonably foreseeable future shrinks.” Obj. at 3.
Petitioner refers to this principle as the Zadvydas “rule of relativism.” Id. Petitioner further
argues the alleged error of the Magistrate Judge was compounded by his failure to
“meaningfully consider the evidentiary effect of the government’s prior unsuccessful
deportation efforts and prior finding that release on OOS was appropriate in light of the
lack of any significant likelihood of removal in the reasonably foreseeable future.” Id. at
17 According to Petitioner, when aggregating his prior detention and his current detention, he has
been detained for approximately 2.21 years. See Obj. at 3.
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4.18 Finally, Petitioner contends he has established “clear barriers to third country removal”
and contests the Magistrate Judge’s findings that his removal to Jordan is significantly
likely in the reasonably foreseeable future. Obj. at 10-12.
V. Discussion
A. Legal Framework
Petitioner has been ordered removed from the United States, but his removal was
not effected within the statutory 90-day removal period. See 8 U.S.C. § 1231(a)(1)(A).
Petitioner, nonetheless, is subject to continued detention after expiration of the removal
period pursuant to 8 U.S.C. § 1231(a)(6).19 Such detention is civil and nonpunitive.
Zadvydas, 533 U.S. at 690.
18 In his Objection, Petitioner purports to raise a new issue not included in the Petition – whether
the revocation of Petitioner’s OOS was lawful under 8 C.F.R. § 241.13(g) or (i)(2)-(3) or under 8
C.F.R. § 241.4(c), (i)(7). See Obj. at 7. That Court does not address that issue. See Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the
magistrate judge's recommendation are deemed waived.”); see also Martinez v. Martinez, No. 24-
2105, 2025 WL 2424161 at *3 (10th Cir. Aug. 22, 2025) (citing United States v. Garfinkle, 261
F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to
the magistrate judge's report are deemed waived.”)).
19 Section 1236(a)(6) provides:
An alien ordered removed who is inadmissible under section 1182, removable
under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been
determined by the [the Secretary of Homeland Security] to be a risk to the
community or unlikely to comply with the order of removal, may be detained
beyond the removal period and, if released, shall be subject to the terms of
supervision in paragraph (3).
8 U.S.C. § 1231(a)(6).
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There is no express limitation on the length of an alien’s post-removal-period
detention under § 1231(a)(6). But in Zadvydas, the Supreme Court interpreted § 1231(a)(6)
narrowly and imposed “an implicit ‘reasonable time’ limitation” on such detention to avoid
any Fifth Amendment due process issues that could arise from indefinite detention. Id.,
533 U.S. at 682. After Zadvydas, an alien can be detained only “until it has been
determined that there is no significant likelihood of removal in the reasonably foreseeable
future.” Id. at 701.
In applying this limitation in the context of a habeas challenge to continued
detention, the ultimate question for the court is “whether the detention in question exceeds
a period reasonably necessary to secure removal.” Id. at 699. Significantly, the decision
to be rendered by the Court is not “[t]he choice . . . between imprisonment and the alien
‘living at large’” but “between imprisonment and supervision under release conditions that
may not be violated.” Id. at 696.
Reasonableness is measured “primarily in terms of the statute’s basic purpose,
namely, assuring the alien’s presence at the moment of removal.” Id. at 699. A six-month
period of detention is presumptively reasonable. Id. at 701. After the six-month period
has passed, however, the alien has the initial burden of providing “good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable future.” Id.
If the alien makes such a showing, “the [g]overnment must respond with evidence
sufficient to rebut the showing.” Id.
The six-month presumption “does not mean that every alien not removed must be
released after six months. To the contrary, an alien may be held in confinement until it has
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been determined that there is no significant likelihood of removal in the reasonably
foreseeable future.” Zadvydas, 533 U.S. at 701. Nevertheless, “for detention to remain
reasonable, as the period of prior postremoval confinement grows, what counts as the
‘reasonably foreseeable future’ conversely would have to shrink.” Id.20
The definitive issue addressed in Zadvydas is contextually important and bears
repeating here: “Whether aliens that the Government finds itself unable to remove are to
be condemned to an indefinite term of imprisonment within the United States.” Id. at 695.
As the Supreme Court noted, detention, like that of Petitioner that occurs after the 90-day
removal period, “has no obvious termination point.” Id. at 697.
What constitutes a “significant likelihood of removal” and how to measure the
“reasonably foreseeable future,” particularly in light of the “rule of relativism” identified
in Zadvydas, is incapable of any bright-line delineation. Instead the analysis is case-
specific and fact driven. For that reason, district courts across the country have utilized
an array of approaches in deciding when continued post-removal-period detention of an
immigrant becomes unconstitutional and reached varying conclusions.
Courts have looked to whether the mere passage of time is sufficient21, whether the
petitioner’s case fits within certain defined circumstances,22 or whether the petitioner is
20 Petitioner makes reference to this principle as “the Zadvydas rule of relativism.” Obj. at 3.
21 See, e.g., Wray v. Mukasey, No. CIV.A.-08-6042-WJM, 2009 WL 1834318 at *5 (D.N.J. June
26, 2009) (noting that “[f]ederal courts disagree as to the extent to which the passage of time can
suffice to meet the alien’s burden” to show his removal is not reasonably foreseeable and citing
cases).
22 See, e.g, Ahmed v. Brott, No. CIV-14-5000-DSD/BRT, 2015 WL 1542131 at *4 (D. Minn. Mar.
17, 2015) (identifying “five types of cases” where courts have found no significant likelihood of
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similarly situated to the two petitioners in Zadvydas.23 Within this judicial district, judges,
including the undersigned, have also looked to whether the petitioner has demonstrated
“institutional barriers to repatriation or obstacles particular to his removal.” Dusabe v.
Jones, No. 24-464-SLP, 2024 WL 5465749 at *3 (W.D. Okla. Aug. 27, 2024), report and
recommendation adopted, 2025 WL 486679 (W.D. Okla. Feb. 13, 2025).24
The Court is unaware of any Tenth Circuit precedent to address these standards post-
Zadvydas in the context raised here.25 Thus, in addressing the current record, the Court
focuses on the directives set forth in Zadvydas as the guide to its analysis.
removal to include: “(1) where the detainee is stateless and no country will accept him; (2) where
the detainee’s country of origin refuses to issue a travel document; (3) where there is no repatriation
agreement between the detainee’s native country and the United States; (4) where political
conditions in the country of origin render removal virtually impossible; and (5) where a foreign
country’s delay in issuing travel documents is so extraordinarily long that the delay itself warrants
an inference that the documents will likely never issue” (citing cases)).
23 See, e.g., Fahim v. Ashcroft, 227 F.Supp.2d 1359, 1366-67 (N.D. Ga. 2002) (addressing limited
circumstances confronted by the Supreme Court in Zadvydas, i.e., Zadvydas “had no country” and
Ma’s country “had no treaty with the United States” and noting Supreme Court’s “silence on the
practical ramifications of its holding” leaving federal district courts to put “meat on the bones” of
the holding and “arrive at standards of reasonableness that . . . make sense”). In Fahim, the court
concluded that “the reasonableness of detentions pending deportation cannot be divorced from the
reality of the bureaucratic delays that almost always attend such removals.” Id. at 1367.
24 In Dusabe, petitioner did not dispute that Rwanda was his county of birth and citizenship. Nor
did he argue that the Rwandan government had rejected immigration officials’ attempts to obtain
travel documents for him. Significantly, a Rwandan Embassy official had advised ICE that it
would be issuing travel documents for the petitioner but the review by the Rwandan government
had to be completed and would take some time. The evidence included several communications
back and forth between ICE and the Rwandan Consulate confirming that review was ongoing and
that issuance of travel documents was anticipated. Thus, the delay in Dusabe was “a result of
Rwanda’s slow machinations and not a denial or refusal to accept him.” Id., 2024 WL 5465749 at
*4. Under those facts, this Court concluded that Petitioner had not met his burden to show there
was no significant likelihood of his removal in the reasonably foreseeable future. Id.
25 In Soberanos v. Comfort, 388 F.3d 1305, 1311 (10th Cir. 2004), the Tenth Circuit dealt with the
distinct issue of continued detention “directly associated with a judicial review process that has a
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1. The Length of Petitioner’s Detention is Beyond What is
Presumptively Reasonable
There is no dispute that Petitioner has been redetained beyond the six-month
presumptively reasonable period of detention. And that was true as of the date he filed his
Petition. At that time, he had been redetained for approximately seven months. And, as
set forth, that redetention is now at the approximately ten-month mark and continues to
grow.
2. Petitioner has Shown Good Reason to Believe that There is No
Significant Likelihood of Removal in the Reasonably Foreseeable
Future
At issue in Petitioner’s Objection is whether the Court should consider Petitioner’s
prior post-removal detention in addressing the reasonableness of his continued detention,
i.e., whether the Court should aggregate the two periods of detention. The Magistrate
Judge considered only Petitioner’s period of current detention. See, e.g., R&R at 8
(addressing undisputed fact that “Petitioner has been re-detained since March 2025”). As
the parties’ briefing submissions demonstrate, courts are decidedly split on the aggregation
definite and evidently impending termination point” and thus was “clearly neither indefinite nor
potentially permanent like the detention held improper in Zadvydas.” In one unpublished decision,
the Tenth Circuit denied § 2241 habeas relief under Zadvydas, concluding that the petitioner’s
detention did not “raise the specter of indefinite detention” where the record demonstrated ICE
officials were “actively seeking [the petitioner’s] removal and there [was] no indication they
w[ould] not succeed.” Abiodun v. Mukasey, 264 F. App’x 726, 729 (10th Cir. 2008). In reaching
this conclusion, the court noted that it was “troubled” by “the inability of ICE to secure [the
petitioner’s] removal in a timely manner, even given [the petitioner’s] repeated court filings and
failure to cooperate.” Id. The record showed that the petitioner was awaiting deportation to his
homeland of Nigeria, that ICE had attempted to obtain travel documents and place the petitioner
on a chartered flight to Nigeria “on multiple occasions” and that the main reason the petitioner had
not been removed was due to “his repeated court challenges to removal and refusal to cooperate
with ICE officials in obtaining a Nigerian passport and other necessary travel documents.” Id.
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issue. See Obj. at 5-7 (citing cases in support of aggregation); Resp. to Obj. at 6-7 (citing
cases declining to aggregate periods of detention).
The Court finds a definitive ruling on the issue of aggregation is not necessary in
this case. As noted, Petitioner’s current redetention exceeded the presumptively reasonable
six-month period at the time of filing the Petition. Thus, he has established a prima facie
Zadvydas claim. To this end, although the length of the prior period of post-removal
detention need not necessarily be considered here, the Court finds that ICE’s unsuccessful
efforts at removing Petitioner during that prior period of post-removal detention remain
relevant.
Petitioner has shown good cause to believe that there is no significant likelihood of
removal in the reasonably foreseeable future. The record shows it has been almost six
years since Petitioner’s 90-day removal period expired. And five years ago – in December
2020 – ICE abandoned its efforts to obtain travel documents to Saudi Arabia.
In the ensuing five years, ICE has been unable to secure travel documents to Jordan
for Petitioner. The record is void of any meaningful, ongoing efforts by ERO to remove
Petitioner to Jordan during the period between his initial post-removal detention and his
redetention. At best, those efforts have been sporadic. Moreover, it has taken seven
months during his redetention for ERO to receive any “definitive” response from the
Jordanian Embassy. When ERO did receive such a response, it merely indicated the
process would have to start anew with an application for a passport.
Significantly, ERO does not state that a new passport will likely issue, only that the
Jordanian Embassy has provided “instructions for submitting a new application” and a
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caution that “the process could take some time.” Nation Decl., ¶ 4. Moreover, as to any
new passport application, there has been no supplementation of the record to indicate that
the necessary paperwork has now been translated and provided to Petitioner.
And finally, although ICE claims it is going to pursue travel documents to Palestine,
no communications with that country have yet been initiated. See Nation Decl., ¶ 30
(noting ERO “intends to” submit a travel document request to the Israeli Embassy “if” the
Jordanian Embassy does not issue a travel document). Given the length of Petitioner’s
current detention, the Court finds Petitioner has shown good reason to believe that there is
no significant likelihood of removal in the reasonably foreseeable future.
3. Respondents Have Failed to Rebut Petitioner’s Showing
Respondents’ showing of a significant likelihood of Petitioner’s removal in the
reasonably foreseeable future is limited to the following statement by Mr. Nation: “Because
the Jordanian Embassy has responded to our requests for updates on the travel document,
and included instructions for a new passport, I believe it is likely that they will renew his
passport and issue travel documents.” Id., ¶ 27. This evidence is rather threadbare,
particularly given the fact that communications with the Jordanian Embassy began in 2021.
Respondents provide no evidence to support Mr. Nation’s statements. For example,
Respondents provide no evidence as to the number of aliens that have been removed to
Jordan during Petitioner’s periods of detention, or any other evidence as to the prospects
of the removal of such aliens. Instead, in wholly conclusory fashion, Mr. Nation asserts
that “given the prioritization of removing individuals with final removal orders, there has
been an increase in overall removals of individuals, to include removals to Jordan.” Id.,
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¶ 29. There is no reference to any data underlying this statement and it so conclusory, that
it is difficult to discern whether the declarant even has personal knowledge of any alleged
increase in removals to Jordan.
The Magistrate Judge found that Jordan “appears to be cooperating” with removal
efforts, but the Court finds the record does not necessarily support such an inference.
Certainly the record shows there were multiple inquiries by ICE to Jordan officials that
went unanswered. Regardless, whether Jordan is cooperating is not dispositive. Rather,
the issue is whether removal is significantly likely in the reasonably foreseeable future. To
this end, in Zadvydas, the Supreme Court expressly rejected the Fifth Circuit’s holding that
continued detention is lawful “as long as ‘good faith efforts to effectuate . . . deportation
continue” and the detainee fails to show that “deportation will prove ‘impossible.’” Id. at
702. As the Supreme Court instructed: “this standard would seem to require an alien to
show the absence of any prospect of removal – no matter how unlikely or unforeseeable –
which demands more than [the Supreme Court’s] reading of the statute can bear.” Id.
(emphasis in original).
The Magistrate Judge also relied on the fact that “Petitioner was previously issued
a passport by the Government of Jordan.” R&R at 9. But as set forth, that passport – a
temporary one – was issued in 1989 and expired in 1995 – more than thirty years ago. The
passport issued when Petitioner was a child. Mr. Nation implicitly acknowledges that
Petitioner’s adult criminal history was a reason provided by the Jordanian Embassy as to
why Petitioner could face barriers to issuance of a new passport. Nation Decl., ¶ 24 (“The
officer [from the Jordanian Embassy] said the process could take some time as they would
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need to get approval from the Jordanian authorities since [Petitioner] is detained.”)
(emphasis added).
Petitioner’s only other ties to Jordan are based on two facts: (1) his parents (born in
Palestine) had Jordanian passports issued in 1990; and (2) his older brother, born in 1955,
has a birth certificate from Jordan. See R&R at 9 (citing Doc. No. 23 at 14).26 But the
record indicates Petitioner’s “five older brothers and one older sister” are now all United
States citizens. See Doc. No. 18-2 at 5 (Decision of the Immigration Judge in Removal
Proceedings). And it appears that Petitioner’s mother, who is in her eighties, has been in
the United States since Petitioner’s arrival in 1990. See id. at 1-3.
Additionally, although the Magistrate Judge acknowledged that what counts as the
reasonably foreseeable future “shrinks” as the period of postremoval confinement
increases, the Magistrate Judge did not further address this issue, instead noting that
Petitioner “is not precluded from filing another habeas petition if removal is no longer
likely to occur in the reasonably foreseeable future.” R&R at 16. But the R&R provides
no direction to Petitioner with respect to any guideposts that would signal it was time to
refile.
Although the Court ultimately disagrees with the findings of the Magistrate Judge,
the Court does so cautiously and underscores that this case presents a close call. As set
26 As to the birth certificate, the Court notes that during Petitioner’s period of redetention an ICE
Officer showed Petitioner the birth certificate and purported that it belonged to Petitioner, but
Petitioner was adamant that the birth certificate belonged to his oldest brother. See Walsh Aff.
[Doc. No. 12-1], ¶¶ 9-11. Respondents now acknowledge that Petitioner has no birth certificate
from Jordan.
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forth above, post-Zadvydas, courts have disagreed whether the passage of time, alone, is
sufficient to establish that removal is not likely to occur in the reasonably foreseeable
future. But here, the passage of time together with the additional record before the Court
leads to the conclusion that Petitioner is entitled to relief.
Prior efforts by ICE to remove Petitioner – over the course of nearly five years –
have been sporadic and unsuccessful. The rebuttal evidence submitted by Respondents is
scant – an invitation from Jordan to essentially “start anew” with the passport application
process. The record lacks any evidence to show that removal of aliens similarly situated
to Petitioner (or even removal of aliens to Jordan, generally) has been successful. And
Petitioner’s ties to Jordan, while not non-existent, are significantly attenuated. Under these
circumstances, the passage of time takes on more significance as inaction and/or lack of
progress in effectuating removal is precisely what Zadvydas guards against. See, e.g.,
Douglas v. Baker, No. 25-cv-2243-ABA, 2025 WL 2997585 at *3, 4 (D. Md. Oct. 24,
2025) (finding that passage of time coupled with “the absence of any evidence that the
government has used that time to advance efforts to remove” the petitioner demonstrate
that detention no longer authorized by Zadvydas (citing cases)).
Accordingly, the Court finds that Petitioner’s removal is not significantly likely in
the reasonably foreseeable future. Petitioner is entitled to habeas relief pursuant to 28
U.S.C. § 2241 as he is in custody “in violation of the Constitution or laws . . . of the United
States.” Id. § 2241(c)(2).
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VI. Conclusion
IT IS THEREFORE ORDERED as follows:
1. The Court DECLINES to ADOPT the Report and Recommendation [Doc.
No. 26] and GRANTS the Petition for Writ of Habeas Corpus [Doc. No. 1] to the extent it
seeks habeas relief pursuant to 28 U.S.C. § 2241.
2. The Court ORDERS that Petitioner be released from custody immediately,
subject to an appropriate Order of Supervision.27
3. The Court DIRECTS Respondents to submit a declaration, pursuant to 28
U.S.C. § 1746, within 7 days of the date of this Order confirming Petitioner’s release from
custody.
3. The Court DENIES as MOOT Petitioner’s Emergency Motion or Request
for Expedited Handling [Doc. No. 25].
IT IS SO ORDERED this 26th day of January, 2026.
27 See Zadvydas, 533 U.S. at 700 (“[T]he alien’s release may and should be conditioned on any of
the various forms of supervised release that are appropriate in the circumstances, and the alien may
no doubt be returned to custody upon a violation of those conditions.” (citations omitted)).
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