El Ahrach v. Baltazar et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 25-cv-03195-PAB
MOUAD EL AHRACH,
Petitioner,
v.
JUAN BALTAZAR, in his official capacity as warden of the Aurora Contract Detention
Facility owned and operated by GEO Group, Inc.,
KRISTI NOEM, in her official capacity as Secretary, U.S. Department of Homeland
Security,
ROBERT HAGAN, 1 in his official capacity as Acting Field Office Director, Denver Field
Office, U.S. Immigration and Customs Enforcement,
PAM BONDI, in her official capacity as Attorney General, U.S. Department of Justice,
and
TODD LYONS in his official capacity as Acting Director of Immigration and Customs
Enforcement (ICE),
Respondents.
ORDER
This matter comes before the Court on the Verified Petition for Writ of Habeas
Corpus [Docket No. 1]. 2 The Court has jurisdiction pursuant to 28 U.S.C. § 2241.
1 Pursuant to Federal Rule of Civil Procedure 25(d), Robert Hagan is
automatically substituted as a party in this action.
2 Neither party requested a hearing on this matter. A federal court is not required
to hold a hearing on a habeas petition. See Semien v. United States, 746 F. App’x 303,
308 (5th Cir. 2018) (“A federal habeas court is not required to conduct an evidentiary
hearing.”); Erikson v. Rowland, 991 F.2d 803, 1993 WL 128865, at *4 (9th Cir. Apr. 26,
1993) (unpublished table decision) (“The district court is not required to hold an
evidentiary hearing when considering habeas corpus petitions.”); Davis v. Kobach, 2023
WL 2375111, at *5 (D. Kan. Mar. 6, 2023) (“Petitioner . . . has no right to a hearing in a
federal habeas matter, nor is it standard practice for the Court to hold such hearings.”).
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I. BACKGROUND 3
On July 2, 2024, petitioner Mouad El Ahrach entered the United States at the
southern border, seeking refuge from severe family abuse. Docket No. 1 at 8, ¶¶ 31-33,
35; Docket No. 14 at 2. Ms. El Ahrach is a 25-year-old transgender woman who is a
citizen of Morocco. Docket No. 1 at 5, ¶ 17; Docket No. 14 at 2. Her family began
habitually physically abusing her at the age of 13, due to their belief that she was gay.
Docket No. 1 at 8, ¶ 31. Ms. El Ahrach fled Morocco after her brother attempted to
murder her by attacking her with knife. Id. On July 3, 2024, one day after entering the
United States, Ms. El Ahrach was encountered by the United States Customs and
Border Protection and was detained for entering the country without valid entry
documents. Docket No. 14 at 2-3.
The United States Citizenship and Immigration Services (“USCIS”) sought Ms. El
Ahrach’s removal. Docket No. 14 at 4. Ms. El Ahrach applied for relief from removal.
Id. at 5. On April 7, 2025, an immigration judge conducted a hearing and ordered Ms.
El Ahrach removed from the United States to Morocco, but granted Ms. El Ahrach
withholding of removal to Morocco under 8 U.S.C. § 1231(b)(3) because it was more
likely than not that Ms. El Ahrach would face persecution in Morocco due to her sexual
orientation and gender identity. 4 Docket No. 1 at 8, ¶ 33. After the April 7, 2025
hearing, Ms. El Ahrach’s removal order became administratively final. Id., ¶ 34; Docket
No. 14 at 4. Respondents claim that, on April 9, 2025, they solicited Mexico, Panama,
3 The following facts are undisputed unless otherwise noted.
4 When a noncitizen is granted withholding relief, she may not be removed to the
country designated in the removal order. Johnson v. Guzman Chavez, 594 U.S. 523,
531 (2021). Instead, the noncitizen can only be removed to a third country. Id. at 531-
32.
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and Guatemala to accept Ms. El Ahrach. 5 Docket No. 14 at 4. However, respondents
did not inform Ms. El Ahrach of these efforts, despite her repeated inquiries into whether
third country removal was being pursued. Docket No. 1 at 9-10, ¶¶ 40, 43-44; Docket
No. 15 at 3. Respondents have not received responses from these potential third
countries. Docket No. 14 at 4.
Ms. El Ahrach argues that she was entitled to a Post Order Custody Review
(“POCR”) within 90 days of her removal order becoming administratively final, namely,
by July 6, 2025. Docket No. 1 at 9-10, ¶¶ 38, 41; see also 8 C.F.R. § 241.4(k)(1)(i).
However, this POCR was never conducted. Docket No. 1 at 9-11, ¶¶ 38, 41, 47.
Respondents state that the POCR did not occur because of an “administrative
oversight.” Docket No. 14 at 5. Ms. El Ahrach’s POCR was conducted on October 10,
2025. 6 Id. Based on the POCR, ICE determined that Ms. El Ahrach was a flight risk.
Id. Ms. El Ahrach claims that, had an ICE official asked, she would have informed them
that she has a sponsor she plans to live with, that she is willing to provide her address,
and that she will go to ICE check-ins. Docket No. 15-1 at 3, ¶ 11.
On October 10, 2025, Ms. El Ahrach filed a petition for a writ of habeas corpus
requesting her immediate release. Docket No. 1. On October 31, 2025, respondents
filed their response. Docket No. 14. On November 7, 2025, Ms. El Ahrach filed a reply.
Docket No. 15.
5 Mexico, Panama, and Guatemala would be considered “third countries.” In the
context of immigration proceedings, a “third country” refers to a country not previously
designated by an immigration judge or by the Department of Homeland Security
(“DHS”) during the underlying removal proceedings. Docket No. 1 at 13, ¶ 57.
6 This is the same date Ms. El Ahrach filed her habeas corpus petition. See
Docket No. 1.
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II. LEGAL STANDARD
When a noncitizen is ordered removed from the United States, removal should
ordinarily be effectuated within a period of 90 days, known as the removal period. 8
U.S.C. § 1231(a)(1); see also Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1123 (10th
Cir. 2005). During the removal period, the noncitizen must be detained. 8 U.S.C.
§ 1231(a)(2)(A). After the removal period has expired, the noncitizen “may be
detained.” 8 U.S.C. § 1231(a)(6). In Zadvydas v. Davis, 533 U.S. 678 (2001), the
Supreme Court considered whether this language permitted indefinite detention. The
Court noted that, “while ‘may’ suggests discretion, it does not necessarily suggest
unlimited discretion. In that respect the word ‘may’ is ambiguous.” Id. at 697. The
Court did not find any evidence that demonstrated congressional intent to authorize
indefinite detention. Id. at 699. Additionally, the Court observed that:
A statute permitting indefinite detention of an alien would raise a serious
constitutional problem. The Fifth Amendment’s Due Process Clause forbids the
Government to “depriv[e]” any “person . . . of . . . liberty . . . without due process
of law.” Freedom from imprisonment—from government custody, detention, or
other forms of physical restraint—lies at the heart of the liberty that Clause
protects.
Id. at 690 (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). The Court
“interpret[ed] the statute to avoid a serious constitutional threat” and “conclude[d]
that, once removal is no longer reasonably foreseeable, continued detention is no
longer authorized by statute.” Id. at 699.
Recognizing the traditional deference shown to the executive branch in
foreign policy, the Court found it “practically necessary to recognize some
presumptively reasonable period of detention.” Id. at 700-01. The Court held that it
is presumptively reasonable to detain a noncitizen for six months to effectuate
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removal. Id. at 701. After six months, the noncitizen challenging detention bears
the initial burden to “provide[ ] good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future.” Id. Once she does so,
“the Government must respond with evidence sufficient to rebut that showing.” Id.
If the government meets its burden, continued detention is permitted; however, if
the government fails to demonstrate a significant likelihood of removal in the
reasonably foreseeable future, the noncitizen must be released. Id.
Zadvydas dealt with a noncitizen who was deemed removable after gaining
admission to the United States. Id. at 682. However, its holding has since been
expanded to apply to noncitizens who are deemed inadmissible. Clark v. Martinez,
543 U.S. 371, 378-379 (2005); see also Morales-Fernandez, 418 F.3d at 1123-24
(noting that Clark expanded the holding of Zadvydas to apply to inadmissible
noncitizens and granting an inadmissible noncitizen’s habeas petition).
The government should remove noncitizens to either: (i) the country of which
the noncitizen is a citizen, subject, or national; (ii) the country in which the
noncitizen was born; or (iii) the country in which the noncitizen has a residence. 8
U.S.C. § 1231(b)(1)(C)(i)-(iii). If removal to any of those countries is impracticable,
inadvisable, or impossible, then removal can be to any country with a government
that will accept the noncitizen into its territory. 8 U.S.C. § 1231(b)(1)(C)(iv).
However, noncitizens may not be removed to a country if the Attorney General
decides that their life or freedom would be threatened in that country because of the
noncitizens’ race, religion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1231(b)(3)(A).
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III. ANALYSIS
Ms. El Ahrach raises three separate grounds for relief, claiming that each
justifies her immediate release. Docket No. 1 at 26-29, ¶¶ 114-133. First, she
claims that her current detention is unlawful under Zadvydas. Id. at 26-27, ¶¶ 114-
121. Next, she claims that her current detention violates her procedural due
process rights under the Fifth Amendment. Id. at 27-28, ¶¶ 122-125. Finally, she
claims that her current detention violates her substantive due process rights under
the Fifth Amendment. Id. at 28-29, ¶¶ 126-133. In their response, respondents
note that Zadvydas “set a unitary due process standard to govern when the
government may detain a noncitizen more than six months under a final order of
removal,” namely, “whether there is a significant likelihood of removal in the
reasonably foreseeable future.” Docket No. 14 at 11. Thus, respondents claim that
the constitutionality of Ms. El Ahrach’s continued detention should be evaluated
solely under that standard. 7 Id.
A. Constitutionality of Continued Detention under Zadvydas
Ms. El Ahrach has been detained for over seven months since the issuance
of her April 7, 2025 removal order. Thus, the presumptively reasonable six-month
7 Because the Court will grant habeas relief on Ms. El Ahrach’s Zadvydas claim,
it need not address her other due process claims or determine the appropriate standard
for analyzing those claims. See Banks v. Dretke, 540 U.S. 668, 689 n.10 (2004)
(finding it unnecessary to address an additional claim in a habeas petition after granting
full relief on one claim because “any relief [petitioner] could obtain on that claim would
be cumulative.”); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445
(1988) (stating that “[a] fundamental and longstanding principle of judicial restraint
requires that courts avoid reaching constitutional questions in advance of the necessity
of deciding them.”); Scott v. Mullin, 303 F.3d 1222, 1232 (10th Cir. 2002) (declining to
address the remaining claims in a habeas petition after already granting habeas relief
on one claim).
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timeframe for effectuating her removal under Zadvydas has expired. However,
respondents claim Ms. El Ahrach has not met her initial burden to “provide good
reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future.” Docket No. 14 at 9 (citing Zadvydas, 533 U.S. at 701)
(alterations and emphasis omitted). This standard does not require Ms. El Ahrach
to “show the absence of any prospect of removal—no matter how unlikely or
unforeseeable.” Zadvydas, 533 U.S. at 702. Rather, she simply must show that
removal is not significantly likely in the reasonably foreseeable future. Id. at 701.
Courts tend to require that petitioners put forth specific evidence to meet this
standard. Quang Minh Lien v. Sessions, No. 18-cv-2146-WJM-SKC, 2018 WL
4853339, at *5 (D. Colo. Oct. 5, 2018) (“conclusory allegations are not ‘good
reason[s]’ to believe that Petitioner will not be removed in the reasonable
foreseeable future.”) (citation omitted).
The Court finds that Ms. El Ahrach has met her burden to provide the Court
with good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future. It is undisputed that Ms. El Ahrach has been in post-
removal detention since the immigration judge ordered withholding of removal over
seven months ago, on April 7, 2025. Docket No. 1-1 at 2; Docket No. 1 at 20, ¶ 87;
Docket No. 14 at 4. On July 18, 2025, ICE notified Ms. El Ahrach’s counsel that Ms.
El Ahrach was being transferred to another ICE facility. Docket No. 1-2 at 12. On
August 23, 2025, Ms. El Ahrach’s counsel learned that she was transferred back to
the Aurora facility. Id. at 9-10. An ICE officer informed Ms. El Ahrach’s counsel that
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this transfer was not for third country removal. Id. at 9. In fact, in a declaration, 8
Eliasib Luna—a deportation officer assigned to Ms. El Ahrach’s case—stated that
ICE made no efforts to remove Ms. El Ahrach beyond soliciting acceptances from
Mexico, Guatemala, and Panama on April 9, 2025. Docket No. 14-1 at 4, ¶ 14.
Thus, the Court has good reason to believe that she will not be removed in the
reasonably foreseeable future. Therefore, the burden shifts to respondents to
present sufficient evidence to show that removal is likely. Zadvydas, 533 U.S. at
701.
Respondents argue that, even if Ms. El Ahrach met her initial burden, her
continued detention is nevertheless permissible because they have sufficient
evidence to show that Ms. El Ahrach’s removal will occur in the reasonably
foreseeable future. Docket No. 14 at 9. In his declaration, Mr. Luna states that ICE
contacted the governments of Mexico, Guatemala, and Panama on April 9, 2025
about allowing Ms. El Ahrach into their countries. Docket No. 14-1 at 4, ¶ 14.
However, Mr. Luna concedes that ICE has not yet received responses from any of
these countries. Id. Mr. Luna’s declaration states that “ICE anticipates that it will
pursue additional options for Petitioner’s removal to a third country,” but
acknowledges that “additional third countries for Petitioner’s removal have not yet
been identified.” Id. at 5, ¶ 25. Finally, the declaration states that ICE will provide
the Court with a status report in thirty days regarding its progress on third country
removal efforts. Id., ¶ 26.
8 Mr. Luna’s declaration, purportedly made under 28 U.S.C. § 1746, is deficient
because it is not made under penalty of perjury.
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Nothing in Mr. Luna’s declaration effectively rebuts Ms. El Ahrach’s belief
that removal is not likely in the reasonably foreseeable future. Zadvydas rejected
the proposition that continued detention is permissible “as long as good faith efforts
to effectuate . . . deportation continue.” 533 U.S. at 702 (internal quotations and
citation omitted). Instead, the government must actually make legitimate progress
towards removal. See Hassoun v. Sessions, 2019 WL 78984, at *5 (W.D.N.Y. Jan.
2, 2019) (stating that “the reasonableness of Petitioner’s detention turns on whether
and to what extent the government’s efforts are likely to bear fruit. Diligent efforts
alone will not support continued detention.”). Here, respondents have not shown
any progress. In fact, the only evidence respondents provide to show that they are
pursuing Ms. El Ahrach’s removal is the April 9, 2025 outreach to Mexico,
Guatemala, and Panama. Docket No. 14-1 at 4, ¶ 14. However, this solicitation
prompted no response, and respondents do not claim that ICE has followed up on
these efforts. Moreover, Ms. El Ahrach’s status as a transgender woman further
complicates any efforts to remove her to a third country because it increases her
risk of persecution in many parts of the world. 9 Docket No. 1 at 21, ¶ 91. This
makes it even less likely that her removal will occur in the reasonably foreseeable
future. Ms. El Ahrach cannot be removed to a given country if the Attorney General
decides her life or freedom would be threatened because of her membership in a
particular social group. 10 8 U.S.C. § 1231(b)(3)(A).
9 It was for this very reason that she was granted withholding of removal to
Morocco. Docket No. 1 at 2, ¶ 4.
10 In May 2025, the United States District Court for the District of Massachusetts
issued a preliminary injunction requiring the government to provide notice and a
meaningful opportunity to present fear-based claims before removing a noncitizen to a
third country. D.V.D. v. U.S. Dep't of Homeland Sec., 778 F. Supp. 3d 355, 364 (D.
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Next, respondents have not committed to continuing their search for a third
country that will accept Ms. El Ahrach. Rather, they only “anticipate” that they will
do so. Docket No. 14 at 10. Respondents provide no further information about how
they might undertake that search. Respondents do not identify which countries they
might contact next, fail to explain how they will follow up with the countries they
already reached out to, and list no concrete steps they will take to effectuate Ms. El
Ahrach’s timely removal. 11 Instead, they offer to provide a status report in thirty
days providing an update on their progress. Id. However, respondents provide no
Mass.), reconsideration denied sub nom. D.V.D v. U.S. Dep't of Homeland Sec., 786 F.
Supp. 3d 223 (D. Mass. 2025). However, the Supreme Court stayed the preliminary
injunction pending disposition of the appeal to the First Circuit and disposition of a
petition for a writ of certiorari in the Supreme Court. Dep't of Homeland Sec. v. D.V.D.,
145 S. Ct. 2153 (2025). Nonetheless, internal DHS guidelines still provide procedural
protections to noncitizens before being deported to a third country. Docket No. 1 at 14,
¶ 62; Docket No. 1-4 at 2-3. Under these guidelines, the government must receive
credible assurances from the third country that the noncitizen will not be persecuted or
tortured. Docket No. 1-4 at 2-3. If the government does not receive these assurances,
or if the Department of State does not believe them to be credible, then DHS must
inform the noncitizen of removal to the third country. Id at 3. After the Supreme Court
granted the stay in D.V.D., ICE issued a memorandum further reinforcing that “ICE must
adhere” to this policy. Docket No. 1 at 15, ¶¶ 66-67; Docket No. 1-5 at 2. This
memorandum specifies that noncitizens have an opportunity to raise fear-based claims
if the third country did not give credible assurances of their safety. Docket No. 1-5 at 3.
Thus, it would be contrary to DHS policy if Ms. El Ahrach was removed to a third
country that did not give credible assurances of her safety without being given notice
and an opportunity to raise fear-based claims.
11 Courts have found that unsubstantiated assertions that the government will
pursue removal are insufficient to satisfy its burden. See Vaskanyan v. Janecka, 2025
WL 3050075, at *3 (C.D. Cal. Sept. 10, 2025) (“That the government was ‘pursuing the
possibility of removing Petitioner to Armenia’ did not show that Petitioner's removal was
likely in the reasonably foreseeable future. In fact, that position—that a showing of
continued good faith efforts to effectuate deportation is sufficient to prolong detention—
was squarely rejected by the Supreme Court in Zadvydas as ‘demand[ing] more than
our reading of the [INA] can bear.’”) (internal citation omitted); Ahmed v. Freden, 744 F.
Supp. 3d 259, 267 (W.D.N.Y. 2024) (“DHS’s active efforts to obtain travel documents
from Pakistan are not enough to demonstrate a likelihood of removal in the reasonably
foreseeable future where the record before the Court contains no information to suggest
a timeline on which such documents will actually be issued.”).
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reason to believe her removal would be any closer in another thirty days. Other
courts have granted habeas petitions under Zadvydas when the government has
not offered evidence that there is progress towards removal. See S.F. v. Bostock,
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.”); Vaskanyan v.
Janecka, 2025 WL 2014208, at *5 (C.D. Cal. June 25, 2025) (finding that
petitioner’s pending citizenship application to Armenia was insufficient to rebut
petitioner’s showing even when “the government may receive a response from
Armenia in the near term”); Hassoun, 2019 WL 78984, at *5 (finding that the
government had not met its burden when it had 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). Here, respondents have
not provided concrete evidence that removal is likely in the foreseeable future, nor
have they committed to continue pursuing such removal. Accordingly, they have
not rebutted Ms. El Ahrach’s showing that she has good reason to believe removal
is likely in the reasonably foreseeable future. Ms. El Ahrach has been in post-
removal detention for over seven months, and the Court finds that her continued
detention contravenes Zadvydys.
Finally, respondents indicate that they have continued to hold Ms. El Ahrach
because she is a significant flight risk. Docket No. 14 at 13. However, under
Zadvydas, whether Ms. El Ahrach is a flight risk has no bearing on the
constitutionality of her continued detention. One of the petitioners in Zadvydas had
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a history of flight from both criminal and deportation proceedings. 533 U.S. at 684.
Nevertheless, the Supreme Court held that preventing flight provides a “weak or
nonexistent” justification for indefinite civil detention “where removal seems a
remote possibility at best.” Id. at 690. Thus, even if Ms. El Ahrach does present a
flight risk, that fact does not permit her continued detention when there is no
evidence that removal is likely in the reasonably foreseeable future. Therefore, the
Court will grant Ms. El Ahrach’s habeas petition and order her release. 12
IV. CONCLUSION
Accordingly, it is
ORDERED that the Verified Petition for Writ of Habeas Corpus [Docket No.
1] is GRANTED. It is further
ORDERED that Ms. El Ahrach shall be released from custody on or before
December 3, 2025.
DATED November 19, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
12 Ms. El Ahrach also requests that the Court award her costs and attorney fees.
Docket No. 1 at 30. Pursuant to the Local Rules of Practice for the United States
District Court of the District of Colorado, Ms. El Ahrach must make this request in a
separate motion. See D.C.COLO.LCivR 54.3; D.C.COLO.LAPR 16.1(b).
____________________	_ ______
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