Eshaghian v. Howard et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Nader Eshaghian,
Petitioner,
v.
Chris Howard, et al.,
Respondents.
No. CV-25-04141-PHX-DWL (ASB)
ORDER
On November 5, 2025, Petitioner filed a habeas corpus petition under 28 U.S.C.
§ 2241, a motion for discovery, a motion for appointment of counsel, and a motion for
preliminary injunction or temporary restraining order (“PI/TRO motion”). (Docs. 1-4.) In
a November 7, 2025 order, the Court granted the motion for appointment of counsel and
motion for discovery and ordered Respondents to answer the petition and respond to the
PI/TRO motion on an expedited basis. (Doc. 7).1 Both the petition and PI/TRO motion
are now fully briefed. (Docs. 22, 30). For the reasons that follow, the Court grants the
petition and orders that Petitioner be immediately released from custody.
I. Background
Petitioner is a native of Iran who entered the United States in 1974 on a student visa
and was granted lawful permanent resident status in 1978. (Doc. 1 ¶ 10; Doc. 22-1 ¶¶ 3-
1 Respondents sought reconsideration of the portion of the November 7, 2025 order
granting the motion for discovery. On November 17, 2025, the Court granted
reconsideration, reinstated the motion for discovery as pending, and set a briefing schedule.
(Doc. 14.) However, the parties later verified that no further discovery dispute existed.
(Docs. 17, 28, 29.)
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4.) However, after Petitioner was subsequently convicted of various criminal offenses in
California state court, he was placed in removal proceedings. (Doc. 22-1 ¶¶ 5-9.) On
August 1, 1995, an immigration judge (“IJ”) ordered Petitioner removed to Iran. (Id. ¶ 11.)
Petitioner appealed to the Board of Immigration Appeals (“BIA”). (Id. ¶ 12.) On
March 24, 1997, the BIA dismissed Petitioner’s appeal, and Petitioner subsequently
appealed to the Ninth Circuit. (Id. ¶ 15.) On June 23, 1999, while that appeal was pending,
Petitioner was arrested by federal immigration authorities. (Id. ¶ 17.) On January 27, 2000,
the Ninth Circuit dismissed Petitioner’s appeal. (Id. ¶ 18.) On July 31, 2000, and again on
September 22, 2000, Petitioner asked the BIA to reopen his immigration proceedings. (Id.
¶¶ 19-20.) On or about November 29, 2000, Petitioner was released from immigration
custody on an order of supervision (“OSUP”). (Id. ¶ 21.) After being released, Petitioner
was convicted of several additional crimes. (Id. ¶¶ 23, 24.)
On February 11, 2002, the BIA granted Petitioner’s motions to reopen. (Id. ¶¶ 22,
25.) However, on April 28, 2003, Petitioner failed to appear at the hearing (presumably
because he was incarcerated at the time), and an IJ ordered him removed in absentia. (Id.
¶ 25.)
On August 26, 2005, Petitioner was again arrested by federal immigration
authorities. (Id. ¶ 27.) On January 12, 2006, Petitioner was again released from detention
on an OSUP. (Id. ¶ 28.) After being released, Petitioner was again convicted of additional
crimes. (Id. ¶¶ 29-31.)
On July 7, 2025, Petitioner was arrested by federal immigration authorities for the
third time. (Id. ¶ 32.) On October 31, 2025, while in immigration detention, Petitioner
was telephonically interviewed by an Iranian consular representative. (Id. ¶ 38.) Petitioner
attests that this representative informed him that Iran would not issue travel documents for
him without an original Iranian birth certificate or passport, neither of which he possesses.
(Doc. 31-1 ¶ 5.) As of the date of this order, Petitioner remains in immigration custody.
II. Legal Standard
Under 8 U.S.C. § 1231(a)(1), the government has a 90-day period—called the
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“removal period”—in which to remove an alien after a removal order becomes final. Under
§ 1231(a)(2), detention during the removal period is mandatory.
Under § 1231(a)(6), if the government is unable to effect removal within the 90-day
removal period, continued detention becomes discretionary. That discretion, however, is
not unfettered and indefinite detention is not permitted. Zadvydas v. Davis, 533 U.S. 678,
689 (2001) (“[W]e read an implicit limitation into the statute before us. In our view, the
statute, read in light of the Constitution’s demands, limits an alien’s post-removal-period
detention to a period reasonably necessary to bring about that alien’s removal from the
United States. It does not permit indefinite detention.”). In Zadvydas, the Supreme Court
held that six months is a “presumptively reasonable period of detention.” Id. at 701. “After
this 6-month period, once the alien 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. And 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. This 6-month
presumption, of course, 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 been
determined that there is no significant likelihood of removal in the reasonably foreseeable
future.” Id. If, after considering the evidence, a court finds that “removal is not reasonably
foreseeable, the court should hold continued detention unreasonable and no longer
authorized by statute.” Id. at 699-700.
III. Discussion
By any calculation, Petitioner has now been detained beyond the 90-day removal
period and beyond the presumptive six-month limit identified in Zadvydas. As noted, two
separate orders of removal have been issued against Petitioner. The first order of removal
was issued on August 1, 1995 and became final on March 24, 1997, when the BIA
dismissed Petitioner’s appeal. (Doc. 22-1 ¶¶ 11, 15.) Petitioner spent approximately 16
months in immigration custody after the first order of removal became final. (Id. ¶¶ 17,
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21.) The second order of removal was issued on April 28, 2003 and become final 30 days
later (on approximately May 28, 2003) when Petitioner failed to appeal to the BIA. (Id.
¶ 25.) Petitioner spent approximately five months in immigration custody after the second
order of removal became final. (Id. ¶¶ 27-28.) Finaly, Petitioner entered immigration
custody for a third time on July 7, 2025. (Id. ¶ 32.) As of today, Petitioner has spent more
than six months in immigration custody since that arrest.
Given this backdrop, the initial burden falls onto Petitioner to “provide[] good
reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future.” Zadvydas, 533 U.S. at 701. If Petitioner meets this burden, “the
Government must respond with evidence sufficient to rebut that showing.” Id.
Petitioner has met his initial burden. Petitioner asserts there is no significant
likelihood of his removal to Iran in the reasonably foreseeable future because he lacks
documents sufficient to satisfy the Iranian government that he is an Iranian citizen (i.e. an
original birth certificate or passport). In support, Petitioner proffers unrebutted evidence
that he was told as much by an Iranian consular representative during his telephonic
interview on October 31, 2025: “Mrs. Oghabi told me that the Iranian Interests Section
would not issue travel documents to me because I do not have my original Iranian passport
or birth certificate.” (Doc. 31-1 ¶ 5.)
In response, Respondents argue that “[t]he mere fact that an alien’s detention lacks
a certain end date does not render their detention unlawfully indefinite” and cite cases
supporting the proposition that “mere delay in the issuance of a travel document is
insufficient to justify relief under Zadvydas particularly where efforts to obtain the travel
document are ongoing.” (Doc. 22 at 3-4, cleaned up.) Respondents also point to the fact
that “Iran granted Petitioner a consular interview” as purported proof that “the Iranian
government is willing to cooperate with ICE’s repatriation efforts, which means that
Petitioner’s removal is practicable.” (Id. at 4.) Respondents continue: “Petitioner claims
that Iran will not issue travel documents for him ‘without the originals of [Petitioner’s]
Iranian birth certificate and passport, which he does not have.’ But Petitioner cannot
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explain why, if ICE’s prior attempt failed because they lacked these documents, Iran chose
to grant him a consular interview. If his lack of documents was an absolute bar to his
repatriation, as Petitioner claims, then Iran would have had no reason to interview him.”
(Id. at 5.)
Respondents’ arguments are unavailing, particularly when evaluated against the
broader context of Petitioner’s immigration history. Petitioner was ordered removed from
the United States more than 30 years ago. Nevertheless, despite repeated efforts over the
ensuring three decades, Respondents have been unable to effectuate his removal to Iran.
Furthermore, Respondents’ declarant admits that Petitioner cannot be removed to Iran
unless “Iran . . . issue[s] a travel document” (Doc. 22-1 ¶ 40), and Petitioner has come
forward with unrebutted evidence that an Iranian consular representative recently told him
that Iran will not issue a travel document to him (Doc. 33-1 ¶ 5). In light of that statement,
it would be absurd (as Respondents argue) to view the consular interview as somehow
undermining rather than supporting Petitioner’s Zadvydas claim. The bottom line is that
Petitioner has established “good reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701.
Because Petitioner has made this showing, “the Government must respond with
evidence sufficient to rebut that showing.” Id. The only evidence proffered by
Respondents is a declaration from Deportation Officer (“DO”) Sergio Cabrera. (Doc. 22-
1). In relevant part, DO Cabrera avows that on July 22, 2025, ICE “ordered documents
related to [Petitioner’s] removal order”2 (Doc. 22-1 ¶ 33); that on August 4, 2025,
Petitioner’s “A file was sent to [Enforcement and Removal Operations] ERO unit to request
a travel document” (id. ¶ 34); that on August 20, 2025, “the travel document request was
sent”3 (id. ¶ 35); that on or around October 30, 2025, “the Embassy of Iran4 contacted the
2 DO Cabrera does not identify what these documents are or explain what effect, if
any, they might have on effectuating Petitioner’s removal.
3 DO Cabrera does not specify whether this “request” was sent from ICE to Iran or
was instead an internal request between different units of ICE.
4 This appears to be a reference to the Iranian Interests Section of the Embassy of
Pakistan.
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travel document officer to conduct a telephonic interview as soon as possible” (id. ¶ 37);
and that on October 31, 2025, the interview took place (id. ¶ 38). DO Cabrera does not
identify any other efforts to remove Petitioner to Iran and acknowledges that a remaining
necessary step “is for Iran to issue a travel document.” (Id. ¶ 40.) Nor does DO Cabrera
identify any efforts to remove Petitioner to a third-party country (and Respondents do not
assert that they are attempting to do so). This evidence is insufficient to rebut Petitioner’s
showing.
Although the analysis could end there, it is also notable that Respondents previously
informed the Court that in response to Petitioner’s discovery requests for “all documents
from Petitioner’s A-File that pertain to Respondents’ ability to remove [Petitioner] in the
reasonably foreseeable future, specifically including documents that relate to prior or
current removal efforts” and for all “communications between ICE and diplomatic
representatives of the government of Iran” pertaining to travel documents that would
facilitate Petitioner’s removal to Iran, Respondents located “only two responsive
documents,” both of which Respondents then withheld from Petitioner on privilege
grounds. (Doc. 25 at 2-3.) Respondents described the first withheld document as “a copy
of a formal request made to the Iranian government in 2000 for travel documents” and the
second withheld document as “one email sent to diplomatic representatives of Iran to
request a consular interview for Petitioner.” (Id.) This description of the universe of
responsive-but-withheld documents, if anything, further undermines Respondents’
position, as Respondents conspicuously do not identify any document suggesting that
Iran’s diplomatic representatives have ever voiced an intent to issue a travel document to
Petitioner or otherwise facilitate Petitioner’s removal to Iran. Instead, the latest word on
this subject is Petitioner’s unrebutted avowal that an Iranian consular representative told
him on October 31, 2025 that Iran would not issue travel documents to him. (Doc. 31-1
¶ 5.)
Accordingly, Petitioner is entitled to release based on Ground One of the petition.5
5 In Ground Two of the petition, Petitioner raises a challenge to the possibility he
might be removed to a third country. (Doc. 1 at 6-7.) However, the parties’ subsequent
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IT IS ORDERED:
(1) Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is granted as to
Ground One. Ground Two is dismissed without prejudice.
(2) Respondents must immediately release Petitioner from custody.
(3) No more than 48 hours from the time of this Order, Respondents must file a
notice of compliance.
(4) Petitioner’s Motion for Preliminary Injunction or Temporary Restraining
Order (Doc. 3) is denied as moot.
(5) The Clerk of Court must enter judgment accordingly and close this case.
Dated this 8th day of January, 2026.
filings are devoid of any evidence that Respondents are seeking to remove Petitioner to a
third country. Petitioner’s claim in Ground Two is thus too conjectural and hypothetical
to support standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Accordingly, Ground Two is dismissed without prejudice.
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