Krajekian v. Cantu et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Garbis Krajekian,
Petitioner,
v.
John Cantu, et al.,
Respondents.
No. CV 25-02666 PHX DJH (CDB)
REPORT AND
RECOMMENDATION
TO THE HONORABLE DIANE J. HUMETEWA:
Before the Court is Petitioner’s motion seeking an award of attorney fees. (ECF
No. 27).
I. Background
On July 28, 2025, Petitioner filed a petition seeking a writ of habeas corpus pursuant
to 28 U.S.C. § 2241. (ECF No. 1). Petitioner asserted he was being wrongfully detained by
Respondents in violation of federal statutes and his federal constitutional right to due
process of law. Petitioner also filed a motion seeking a temporary restraining order. (ECF
No. 2).
Petitioner is a native of Syria, who has been present in the United States since 1994.
Petitioner first entered the United States on a student visa in 1994, when he was
approximately nineteen years of age. Petitioner remained in the United States and
eventually married a United States citizen. On October 15, 2003, Petitioner’s spouse filed
a Form I-130, a Petition for Alien Relative, on Petitioner’s behalf. On January 2, 2008,
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United States Citizenship and Immigration Services adjusted his status to that of a lawful
permanent resident. (ECF No. 11 at 2).
On June 8, 2015, the United States District Court for the District of Arizona found
Petitioner guilty on a charge of uttering counterfeit obligations and securities, and
sentenced him to forty-one months of incarceration followed by three years of supervised
release. On August 30, 2017, Petitioner was released from incarceration on supervised
probation and, pursuant to a detainer, he was placed in the custody of Immigration and
Customs Enforcement (“ICE”). Petitioner was charged as being removable as an alien who,
at any time after admission, had been convicted of an aggravated felony as defined by
Immigration and Nationality Act (“INA”) §101(a)(43)(R), i.e., for committing an offense
relating to, inter alia, counterfeiting, for which the term of imprisonment is more than one
year.1
Petitioner was detained by ICE for three months in 2017 during his removal
proceedings. On October 3, 2017, Petitioner was ordered removed to Syria or Switzerland,
and he waived his right to appeal the order of removal. Petitioner did not appeal the
issuance of the order of removal because at that time his goal was be released from
detention as soon as possible; Petitioner would likely have remained detained had he
appealed the order of removal, because he could not be repatriated to Syria due to the
suspension of diplomatic relations between the United States and Syria.
On October 18, 2017, ICE requested travel documents to facilitate Petitioner’s
removal either to Switzerland or Syria. On October 26, 2017, the Consulate of Switzerland
denied ICE’s request for travel documents. On December 15, 2017, ICE conducted a Post
Order Custody Review, evaluating whether there was a significant likelihood that
Petitioner could be removed from the United States in the reasonably foreseeable future.
On December 29, 2017, ICE released Petitioner under an Order of Supervision (Form I-
1 Petitioner entered a guilty plea to one count of uttering counterfeit obligations or
securities in violation of 18 U.S.C. § 472. See United States v. Krajekian, 2:14-cr-1245 GMS.
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220B) (“OSUP”), having concluded there was no significant likelihood Petitioner could be
removed in the reasonably foreseeable future.
Petitioner was released from ICE custody in December of 2017. The OSUP required
Petitioner to attend regular appointments at the Phoenix ICE office and permitted him to
apply for work authorization. From December of 2017 through January of 2025, a period
of eight years, Petitioner complied with all of the terms of the OSUP.
On January 3, 2025, Petitioner attended his regularly scheduled appointment at the
Phoenix ICE office. Petitioner was ordered to return for another appointment on July 10,
2025. However, on April 6, 2025, without advance notice that it was revoking Petitioner’s
release under supervision, ICE took Petitioner into custody in or near his home in Phoenix,
in what it describes as a “targeted enforcement operation.” (ECF No. 11-1 at 4). In its
response to Petitioner’s motion for injunctive relief the government asserted: “the United
States Government has been successful in removals to Syria in recent months, and during
a targeted enforcement operation in Chandler, Arizona, on April 6, 2025, ICE re-arrested
Petitioner and transported him to the Florence Detention Center for further processing.”
(ECF No. 11 at 3). The government also asserted: “ICE provided a formal notice of
revocation of Petitioner’s prior OSUP on August 4, 2025 [a few days less than four months
after taking Petitioner into custody] and provided petitioner with an informal interview. …
see Exhibit B, Notice of Revocation of OSUP and Informal Interview.” (ECF No. 11 at 3-
4).2
2 Exhibit B to the response to the motion for injunctive relief is the record of an “Alien
Informal Interview Upon Revocation of Order of Supervision Under 8 C.F.R. § 241.4(l); 8 C.F.R.
§ 241.13(i),” dated August 4, 2025, stating that an ICE officer explained to Petitioner that “he has
committed crimes and ICE is going to review his case based on the change in circumstances.”
(ECF No. 11-2 at 2). Exhibit B also includes a “Notice of Revocation of Release” dated August 4,
2025, stating, inter alia,
ICE has determined that you can be expeditiously removed from the United States
pursuant to the outstanding order of removal against you. On October 3, 2017, you
were ordered removed to Switzerland with Syria in the alternative by an authorized
U.S. DHS official and you are subject to an administratively final order of removal.
Your case is under current review by Switzerland and Syria for the issuance of a
travel document.
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In his § 2241 habeas petition Petitioner asserted that, since his release from custody
in 2017 under the OSUP and prior to his detention in 2025, there was no evidence of any
change in circumstance relevant to his detention status, removability, or criminal record,
and that his order of release on supervision had never been revoked, withdrawn, or
otherwise cancelled. Petitioner maintained ICE did not have the statutory authority to re-
detain him eight years after a three-month ICE detention and his release on supervision,
arguing he had not violated any condition of release nor had he committed any crime since
the OSUP issued. He also asserted he had never been found to be a flight risk or a danger
to the community, and that there was no change in diplomatic relations between the United
States and Syria that would render his removal to Syria more likely. (ECF No. 1 at 3, 5).
Petitioner maintained he had a liberty interest in his freedom, which afforded him a due
process right to be free of detention absent notice and a hearing. Petitioner further asserted
that, pursuant to the United States Supreme Court’s opinion in Zadvydas v. Davis, 533
U.S. 678 (2001), his detention without a good faith probability that he would be removed
from the United States to Syria in the reasonably foreseeable future violated his federal
constitutional right to due process law.
The day after the § 2241 petition was filed the Court ordered Petitioner’s counsel to
immediately serve Respondents with a summons and the petition. (ECF No. 6).
Respondents answered the habeas petition on August 28, 2025. (ECF No. 21). In an order
entered September 5, 2025, the Court summarily granted Petitioner’s request for habeas
relief pursuant to § 2241, citing Zadvydas, and ordered his immediate release from
Respondents’ custody. (ECF No. 23). The Court declined to address Petitioner’s other
claims for relief, including his due process claim. (Id.).
On October 5, 2025, Petitioner’s counsel filed a motion seeking attorney fees and
costs in the amount of $8084.06, pursuant to the Equal Access to Justice Act (“EAJA”).
… If you are not released after the informal interview, you will receive notification
of a new review, which will occur within approximately three months of the date
of this notice.
(ECF No. 11-2 at 4).
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(ECF No. 27). Attached to the motion is an affidavit executed by Petitioner stating he has
paid his counsel $7,500 and any EAJA fees awarded to Petitioner in excess of that amount
will be paid to his counsel. Petitioner’s counsel avers they have billed Petitioner for 32.1
hours of attorney time at $251.84 per hour, the EAJA maximum, for a total of $8084.06.
(ECF No. 27-1 at 24-25).
II. Governing Law
The EAJA, codified at 28 U.S.C.A. § 2412(d), allows for an award of attorney fees
to a prevailing party in a civil action against the United States, unless the government’s
position was “substantially justified” or special circumstances make an award of fees
unjust. The Ninth Circuit Court of Appeals has consistently interpreted the EAJA to apply
broadly, to encourage litigants to vindicate their rights when government action is
unreasonable. See, e.g., Ibrahim v. United States Dep’t of Homeland Sec., 912 F.3d 1147,
1166-67 (2019); Li v. Keisler, 505 F.3d 913, 919 (9th Cir. 2007). A purpose of the EAJA
is to remove the financial disincentive for individuals to challenge or defend against
government action, and encourage challenges to improper government action as a means
of helping the government to formulate better public policy. See, e.g., Commissioner, I.N.S.
v. Jean, 496 U.S. 154, 163 (1990); Boudin v. Thomas, 732 F.2d 1107, 1114 (2d Cir. 1984).
EAJA fees may be awarded in cases involving a petition seeking a writ of habeas
corpus pursuant to § 2241. See Nadarajah v. Holder, 569 F.3d 906, 914 (2009); Daley v.
Ceja, 158 F.4th 1152, 1162 (10th Cir. 2025); Diaz Cruz v. Didos, No. 25-cv-01117, 2025
WL 3628517, at *3 (D.N.M. Dec. 12, 2025); Dadfar v. Arnott, No. 25-cv-3329, 2025 WL
3452372, at *5 (W.D. Mo. Dec. 1, 2025) (awarding a § 2241 petitioner their attorney fees
where the government revoked the noncitizen’s parole without prior notice). A district
court abuses its discretion in this context if its decision regarding fees is based on an
erroneous legal conclusion or a clearly erroneous finding of fact. See United States v.
Marolf, 277 F.3d 1156, 1160 (9th Cir. 2002). , citing United States v. Rubin, 97 F.3d 373,
375 (9th Cir. 1996).
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To be awarded their attorney fees under the EAJA, a petitioner must be the
“prevailing party” in the litigation, i.e., they must achieve a favorable outcome such as the
granting of their habeas petition. Nadarajah, 569 F.3d at 909-10, 914. The Supreme Court
has held that a prevailing party need not win with respect to every issue. Hanrahan v.
Hampton, 446 U.S. 754, 758 (1980). A party prevails when they succeed “on any
significant issue” which results in the relief sought in the action. Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). Put another way, to be deemed a “prevailing party” the party seeking
attorney fees must obtain relief on the merits in the form of a judgment that alters the
parties’ legal relationship. See Li, 505 F.3d at 917, citing Buckhannon Bd. & Care Home,
Inc. v. West Va. Dep’t of Health & Human Res., 532 U.S. 598, 604-05 (2001).
Additionally, for fees to be assessed against the government, the government’s
position must not have been “substantially justified,” including both the government’s
litigation position and the underlying agency action that gave rise to the litigation. Li, 505
F.3d at 918; Marolf, 277 F.3d at 1161. An unreasonable agency action at any level entitles
the litigant to EAJA fees, regardless of the government’s conduct during the federal court
proceedings. Li, 505 F.3d at 918. “Substantially justified means justified in substance or in
the main—that is, justified to a degree that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks omitted). A substantially
justified position must have a reasonable basis in both law and fact. Id. Additionally, fees
should not be awarded when “special circumstances” exist that would make an award
unjust. However, the Ninth Circuit has applied the special circumstances exception
narrowly, requiring a clear showing of circumstances that would render an award
inequitable. See Abela v. Gustafson, 888 F.2d 1258, 1266 (9th Cir. 1989).
In deciding whether to award fees the Court may consider any “extraneous
circumstances bearing upon the reasonableness” of the government’s litigation position,
which can “include relevant legal or factual precedents.” Medina Tovar v. Zuchowski,
41 F.4th 1085, 1090 (9th Cir. 2022) (internal quotations omitted). If the government
violated its own regulations with regard to the underlying agency action, or failed to
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acknowledge settled law from the federal courts, this weighs heavily against a finding that
the government’s position was substantially justified. See Gutierrez v. Barnhart, 274 F.3d
1255, 1259-60 (9th Cir. 2001); Singh v. Gonzales, 502 F.3d 1128, 1129 (9th Cir. 2007). “It
is the responsibility of the Department of Justice and its lawyers to be aware when its
positions have been rejected by the court.” Singh, 502 F.3d at 1129.
III. Analysis
In response to the habeas petition Respondents asserted, inter alia, that Petitioner’s
detention was authorized. Respondents argued:
DHS has enacted regulations relating to aliens who are detained beyond the
removal period and subject to release. See 8 C.F.R. § 241.4; see also 8 C.F.R.
§ 241.13. Here, ICE properly provided notice of the revocation of release
under 8 C.F.R. § 241.13(i)(2)3 because there is a significant likelihood
Petitioner can be removed in the reasonably foreseeable future, as established
below. Exhibit A ¶¶ 25, 27; see also Exhibit B. Consistent with this
regulation, on August 4, Petitioner was provided notice of the revocation of
her [sic] prior release order and an informal interview where he was advised
of his right to produce evidence supporting his release.4 Exhibit A ¶ 26; see
3 (i) Revocation of release—
***
(2) Revocation for removal. The Service may revoke an alien’s release under this
section and return the alien to custody if, on account of changed circumstances, the
Service determines that there is a significant likelihood that the alien may be
removed in the reasonably foreseeable future. Thereafter, if the alien is not released
from custody following the informal interview provided for in paragraph (h)(3) of
this section, the provisions of § 241.4 shall govern the alien’s continued detention
pending removal.
(3) Revocation procedures. Upon revocation, the alien will be notified of the
reasons for revocation of his or her release. The Service will conduct an initial
informal interview promptly after his or her return to Service custody to afford the
alien an opportunity to respond to the reasons for revocation stated in the
notification. The alien may submit any evidence or information that he or she
believes shows there is no significant likelihood he or she be removed in the
reasonably foreseeable future, or that he or she has not violated the order of
supervision. The revocation custody review will include an evaluation of any
contested facts relevant to the revocation and a determination whether the facts as
determined warrant revocation and further denial of release.
8 C.F.R. § 241.13.
4 Petitioner was taken into custody on April 6, 2025, accordingly, the notice of revocation
of his status of release under supervision, dated August 4, 2025, was not provided until four months
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also Exhibit B. ICE has complied with the regulations for revoking release
under this section, where there is now a significant likelihood of removal in
the reasonably foreseeable future. 8 C.F.R. § 241.13(i)(2).
***
Here, Petitioner’s OSUP was revoked, and he was re-detained, because at
this time, the Government has determined it is significantly likely to be able
to effectuate his removal to Syria in the reasonably foreseeable future. See
8 C.F.R. §241.13(i)(2).
(ECF No. 11 at 12) (emphasis added).
“Upon” revoking a noncitizen’s release, ICE must notify the noncitizen “of the
reasons for revocation.” 8 C.F.R. 241.13(i)(3). ICE must also “conduct an initial informal
interview promptly after” the detained person’s return to custody “to afford [them] an
opportunity to respond to the reasons for revocation stated in the notification.” Id.
(emphasis added). Respondents did not comply with these regulations by serving Petitioner
with notice that his OSUP was revoked approximately four months after his detention. See
Puertas-Mendoza v. Bondi, No. 25-ca-00890, 2025 WL 3142089, at *4 (W.D. Tex. Oct.
22, 2025) (“Here, ICE did not comply with at least the first of these requirements—it did
not provide Puertas any reason for his detention ‘upon’ his being detained. Instead, it took
three weeks to provide a reason—assuming the reason it eventually gave was even
sufficient to satisfy the requirement.”).
Moreover, the government provides no evidentiary support for the statement that in
April of 2025, when Petitioner was detained, it was “significantly likely” that Petitioner’s
removal to Syria could be accomplished in the “reasonably foreseeable future.” And, at the
time it filed its response to the § 2241 petition, the government still had not been able to
“effectuate” Petitioner’s removal to Syria.
Petitioner asserts that the government was unable to obtain travel documents for
him in 2017 when the order of removal was issued, and that the government was unable to
obtain travel documents for him in the subsequent years and since he was taken into
after the order of supervision was “revoked.” Notably, the notice of revocation was served on
Petitioner one week after his § 2241 petition was filed.
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custody in April of 2025. Petitioner notes that the government “made no efforts to obtain
travel documents” for Petitioner from April 6, 2025, when he was taken into custody, until
June 6, 2025, when the government “initiated efforts to obtain travel documents.” (ECF
No. 27-1 at 7-8). Petitioner further notes that, as of August 28, 2025, the government was
“unable to provide any evidence to support their assertion that they would soon be able to
execute Mr. Krajekian’s removal order,” i.e., to obtain travel documents allowing
Petitioner to be removed to Syria. (ECF No. 27-1 at 8). Therefore, Petitioner argues, the
government’s position with regard to the underlying agency action taking him into custody
without notifying him of the revocation of his release under supervision, and establishing
changed circumstances, was not substantially justified.
Citing to an affidavit, rather than to a document produced to the Court, the
government asserts:
The removal order was issued and enforceable either to Switzerland or Syria.
Id. Originally, ICE was unable to obtain travel documents from Switzerland
and therefore released Petitioner pursuant to an OSUP. Id. ¶ 22. ICE’s actions
in re-detaining Petitioner, were based on recent success in obtaining travel
documents to Syria and therefore, during a targeted enforcement operation,
ICE re-detained Petitioner. Id. ¶ 23.
(ECF No. 30 at 5) (emphasis added).
The statement that the government has had “recent success in obtaining travel
documents to Syria” is non-specific and non-quantified. Additionally, this statement is not
accompanied by any evidence that in April of 2025, when Petitioner was re-detained, the
government had actually had any “recent success” in obtaining travel documents from
Syria allowing the United States to remove a noncitizen from the United States to Syria,
This statement is arguably not entirely plausible, because in April of 2025 Syria was still
on the United States’ list of countries facilitating terrorism.
The government further asserts:
Upon re-detaining Petitioner, ICE complied with the regulations for
properly revoking an OSUP when ICE provided a formal notice of revocation
of Petitioner’s prior OSUP on August 4, 2025, and provided petitioner with
an informal interview. Doc. 11, Exhibit A ¶ 16. At Petitioner’s informal
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interview, he was notified that he could submit evidence in support of
release. Id. Here, ICE’s recent prior success obtaining travel documents to
Petitioner’s country of removal, Syria, coupled with its compliance with its
own regulations for revoking OSUP’s renders ICE’s re-detention of
Petitioner pursuant to a valid final executable removable order, that it
believed it could execute in the reasonably foreseeable future, substantially
justified.
***
… Petitioner’s OSUP was revoked, and he was re-detained, because
at this time, the Government had determined it was significantly likely to be
able to effectuate his removal to Syria in the reasonably foreseeable future.
See 8 C.F.R. §241.13(i)(2). It properly revoked his OSUP and Petitioner had
only been re-detained for approximately five months while the Government
attempted to execute his valid final removal order to Syria
(ECF No. 30 at 5-6).
Nothing in the government’s declaration effectively rebuts the contention that at the
time he was detained Petitioner’s removal was not likely in the reasonably foreseeable
future. The United States Supreme Court has rejected the contention that continued
immigration detention is permissible “as long as good faith efforts to effectuate ...
deportation continue.” Zadvydas, 533 U.S. at 702 (internal quotations and citation omitted).
Instead, the government must actually make legitimate progress towards removal before it
may continue a noncitizen’s detention. See Seretse-Khama v. Ashcroft, 215 F. Supp. 2d 37,
48 (D.D.C. 2002) (finding a noncitizen subject to removal to Liberia should be released
from custody, noting that even if Liberia had repatriated some of its citizens in recent years
INS had not been able to obtain travel documents for the petitioner, Liberia had not
indicated that travel documents were forthcoming, and the noncitizen did not present a
clear risk of flight or threat to safety to community); S.F. v. Bostock, 25-cv-01084, 2025
WL 2841022, at *4 (D. Or. Oct. 7, 2025) (finding the government’s evidence that the
petitioner “could be a candidate” for a scheduled charter flight to Iran “speculative” and
“insufficient to rebut Petitioner’s showing that removal is not significantly likely within
the reasonably foreseeable future.”); Hassoun v. Sessions, 18-cv-586, 2019 WL 78984, at
*5 (W.D.N.Y. Jan. 2, 2019) (finding the government had not met its burden when it had
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four requests for travel documents from third countries pending for about five months and
only made “general and vague” assertions regarding the status of those requests).
With regard to its litigation position, the federal courts have clearly held that,
pursuant to Zadvydas, a noncitizen under an order of removal may not be detained when
there is no reasonable probability that they will be removed from the United States in the
reasonably foreseeable future. See Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1102 (9th Cir.
2001). At best, if the government must provide the noncitizen a bond hearing if it seeks to
detain the noncitizen when there is no reasonable probability that they will be removed
from the United States in the reasonably foreseeable future. See Owino v. Napolitano, 575
F.3d 952, 955-56 (9th Cir. 2009); Tuan Thai v. Ashcroft, 366 F.3d 790, 799 (9th Cir. 2004);
Khalafala v. Kane, 836 F. Supp. 2d 944, 948 (D. Ariz. 2011). Accordingly, the
government’s litigation position that it was legally permitted to detain Petitioner, who at
the time the petition was granted had been detained for more than the “presumably
reasonable” period of six months without any type of hearing, was not substantially
justified. Nor did the government actually establish at any point in this litigation, through
competent evidence, that it was actively seeking Petitioner’s removal to Syria or a third
country. In a different case, the government failed on the same argument raised herein, i.e.,
that although the government was not able to remove noncitizens to Syria in the summer
of 2025, “this is a rapidly evolving area and subject to change.” Alimam v. Kline, No. 25-
cv-02437, 2025 WL 2552605, at *2 (D. Ariz. Aug. 29, 2025), report and recommendation
adopted, 2025 WL 2576707 (D. Ariz. Sept. 5, 2025) (“On this record, there is no significant
likelihood that Petitioner will be removed to Syria in the reasonably foreseeable future.
Indeed, the prospect and timing of possible removal to Syria is speculative.”). At the time
this matter was being litigated Syria was (and still is) one of four countries (Cuba, North
Korea, and Iran are the other three) designated as a state sponsor of terrorism. It is also
noted at all times relevant to these proceedings temporary protected status has been
extended to Syrian nationals due to the conditions in Syria affecting repatriation. U.S.
CITIZENSHIP & IMMIGR. SERV., TEMPORARY PROTECTED STATUS,
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https://www.uscis.gov/humanitarian/temporary-protected-status (last visited Dec. 17,
2025). Accordingly, any position taken by the government that Petitioner could
legitimately be taken into custody in April of 2025, or held in custody since April of 2025,
because he could be removed to Syria in the reasonably foreseeable future was not
substantially justified.
Petitioner was the prevailing party in this matter. The government’s underlying
agency action was not substantially justified. The government’s litigation position in this
matter was not substantially justified. The amount of attorney fees sought by Petitioner is
not unreasonable. There are no special circumstances in this matter that would make an
award of fees unjust. Accordingly,
IT IS RECOMMENDED that the motion at ECF No. 27 be granted, and that
Petitioner be awarded $8,084.06 in attorney fees pursuant to the Equal Access to Justice
Act.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the District Court’s judgment.
Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from the date of service of a copy of this recommendation within which
to file specific written objections with the Court. Thereafter, the parties have fourteen (14)
days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the
Local Rules of Civil Procedure for the United States District Court for the District of
Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in
length. Failure to timely file objections to any factual or legal determinations of the
Magistrate Judge will be considered a waiver of a party’s right to de novo appellate
consideration of the issues. See United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th
Cir. 2003) (en banc).
//
//
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Dated this 2nd day of January, 2026.
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