Shaltapour v. Cantu et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Sarkis Shaltapour,
Petitioner,
v.
John Cantu, et al.,
Respondents.
No. CV 25-03995 PHX DWL (CDB)
REPORT AND
RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA:
Petitioner Sarkis Shaltapour seeks relief pursuant to 28 U.S.C. § 2241. At the time
the petition was filed Shaltapour was in custody at the Florence Immigration Detention
Facility in Florence, Arizona.1 The Court described the § 2241 petition, filed October 26,
2025, as follows:
Petitioner states he fled to the United States from Iraq and was a
lawful permanent resident alien from 1983 to 2011. He claims he was ordered
removed in absentia in 2011, but the Board of Immigration Appeals granted
his Motion to Reopen Proceedings. Petitioner contends that in 2019, the
Immigration Court denied his application for asylum, ordered him removed,
but granted a deferral of removal pursuant to the Convention Against
Torture. He alleges he was released from custody in 2021 on an order of
supervision and has complied with the conditions of his release. At some
point, ICE re-detained Petitioner; he is currently in ICE custody.
In Ground One, Petitioner alleges he has been denied his Fifth
Amendment right to procedural due process. He claims he has a “vested
liberty interest in his conditional release” and the government cannot “strip
1 A search of the U.S. Immigration and Customs Enforcement Online Detainee Locator
System on December 17, 2025, indicates that Shaltapour is currently in custody at the Imperial
Regional Adult Detention Facility in California.
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him of that liberty” without first providing a hearing before a neutral
adjudicator.
In Ground Two, Petitioner contends he has been denied his Fifth
Amendment right to substantive due process. He asserts he has a “vested
liberty interest in his conditional release” and the government cannot “strip
him of that liberty without it being tethered to one of the two constitutional
bases for civil detention: to mitigate against the risk of flight or to protect the
community from danger.” Petitioner claims his detention, without a hearing,
is punitive because he has complied with the conditions of his release and is
neither a flight risk nor a danger to the community.
In Ground Three, Petitioner claims Respondents’ decision to revoke
his release is unlawful, arbitrary, capricious, and an abuse of discretion. He
asserts he was previously released because he did not pose a danger and was
not a flight risk and Respondents only have authority to revoke his release if
circumstances have changed. He contends he should be provided with a “full
and fair hearing before a neutral arbiter where the government bears the
burden of showing that circumstances have changed[,] such that his removal
is reasonably foreseeable, and otherwise evidence of his dangerousness and
flight risk is established by clear and convincing evidence.”
In Ground Four, Petitioner alleges that pursuant to the Immigration
and Naturalization Act and its applicable regulations, Respondents cannot
detain him “on the basis of his prior order of removal” without establishing,
“by clear and convincing evidence, that his removal is reasonably foreseeable
and that he is a danger to the community or a flight risk.”
In Ground Five, Petitioner alleges a Fifth Amendment procedural due
process violation claiming that removing him to a third country without
adequate notice and an opportunity to apply for relief under the Convention
Against Torture would violate his due process rights.
(ECF No. 6 at 1-3). The Court ordered Respondents to answer the Petition. In their response
to the petition Respondents state, in total:
Respondents, by and through counsel, hereby respond to the Petition
for a Writ of Habeas Corpus (Doc. 1). Undersigned counsel is unable to
ascertain sufficient facts at this time to establish that there is a “significant
likelihood of removal in the reasonably foreseeable future.” Zadvydas v.
Davis, 533 U.S. 678, 701 (2001). Accordingly, Respondents do not oppose
Petitioner’s request for release at this time.
(ECF No. 13 at 1).
Respondents do not dispute any of the following facts alleged in the petition.
Shaltapour was born in Iraq. In 1983 Shaltapour obtained lawful permanent residence as a
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refugee. In 1987 Shaltapour was convicted of attempted armed robbery. In 2001,
Shaltapour was convicted of possessing cocaine. Shaltapour has not been convicted of any
crime since 2001. Shaltapour was ordered removed, in abstentia, by the Immigration Court
on October 11, 2011. In 2013, the Board of Immigration Appeals (“BIA”) granted
Shaltapour’s motion to reopen his removal proceedings based on materially changed
conditions for Christians in Iraq. Shaltapour then applied for asylum. On October 16, 2019,
the Immigration Court denied his application for asylum and ordered him removed to Iran,
but granted him deferral of removal pursuant to the Convention Against Torture (“CAT”).2
At some point during his removal proceedings Shaltapour was detained by Immigrations
and Customs Enforcement (“ICE”) “and subsequently released on an OSUP [order of
supervision].” (ECF No. 1 at 11). Shaltapour has obtained work authorization pursuant to
8 C.F.R. § 241.5, and Shaltapour lived and worked in and around Phoenix, Arizona.
At some point prior to the date his § 2241 petition was filed, Shaltapour was detained
by ICE. Shaltapour was not given any form of hearing prior to or after his detention.
Citing 8 C.F.R. § 241.13(i),3 Shaltapour contends that because ICE does not have a
travel document for him, his removal is not reasonably foreseeable. He asserts that because
2 The petition states: “On October 16, 2019, the Immigration Court denied [Shaltapour’s]
application for asylum, and ordered him removed to Iran, but granted him deferral of removal
pursuant to the Convention Against Torture (‘CAT’).” (ECF No. 1 at 3).
3 8 C.F.R. § 241.13(i) provides, in pertinent part:
(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
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no travel document has been issued, there is no reasonably foreseeable end point to his
detention and therefore his detention will be unconstitutionally prolonged in violation of
federal law and his constitutional rights.
Shaltapour also argues there has been no change in circumstances since he was
granted deferral of removal warranting his detention. Shaltapour contends, and
Respondents do not dispute, that the deferral of removal has not been terminated.
Shaltapour argues that his detention is unconstitutional because it is in violation of United
States statutes and regulations, because it is absent any pre-deprivation hearing before a
neutral arbiter. He further asserts he is neither a flight risk nor a danger to the community.
Shaltapour also maintains he is entitled to a hearing before being removed to any third
country. Shaltapour asserts he must be released from detention unless and until ICE proves
to a neutral arbiter that his removal has become reasonably foreseeable, or that his detention
is necessary because there has been a material change in circumstances establishing that he
is a flight risk or a danger to the community.
The Constitution guarantees the writ of habeas corpus “to every individual detained
within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004), citing U.S. Const.,
art. I, § 9, cl. 2. The purpose of the “great writ,” which is “shaped to guarantee the most
fundamental of all rights, is to provide an effective and speedy instrument by which judicial
inquiry may be had into the legality of the detention of a person.” Carafas v. LaVallee, 391
U.S. 234, 238 (1968) (citations omitted). Historically, “the writ of habeas corpus has served
as a means of reviewing the legality of Executive detention, and it is in that context that its
protections have been strongest.” Immigration & Naturalization Serv. v. St. Cyr, 533 U.S.
289, 301 (2001) (citations omitted), superseded by statute on other grounds, Nasrallah v.
Barr, 590 U.S. 573, 580 (2020). Accordingly, the Court has jurisdiction to grant writs of
habeas corpus to noncitizens who are being detained “in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See also Trump v. J.G.G.,
contested facts relevant to the revocation and a determination whether the facts as
determined warrant revocation and further denial of release.
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604 U.S. 670, 672 (2025); Lopez-Marroquin v. Barr, 955 F.3d 759, 759 (9th Cir. 2020)
(“[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to consider habeas challenges
to immigration detention …”).
Following a final order of removal, ICE is directed by statute to detain an individual
for ninety days in order to effectuate their removal from the United States. 8 U.S.C.
§ 1231(a)(2). This ninety (90) day period, known as “the removal period,” generally
commences as soon as a removal order becomes administratively final. Id. at
§§ 1231(a)(1)(A) & 1231(a)(1)(B). If the individual is not removed during the removal
period, federal law requires ICE to release the individual under conditions of supervision,
including periodic reporting. 8 U.S.C. § 1231(a)(3) (“If the alien … is not removed within
the removal period, the alien, pending removal, shall be subject to supervision.”). Limited
exceptions to this rule exist, i.e., ICE “may” detain an individual beyond ninety days if the
individual was ordered removed on criminal grounds or is determined to pose a danger to
the community or determined to be a flight risk. See 8 U.S.C. § 1231(a)(6). However, ICE’s
authority to detain an individual beyond the removal period under such circumstances is
constrained by the constitutional requirement that the individual’s detention must “bear a
reasonable relationship to the purpose for which the individual [was] committed.”
Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Because the principal purpose of the post-
final-order detention statute is to effectuate the removal of the detainee, if the individual’s
removal cannot be effectuated it follows that their detention bears no reasonable relation
to the purpose for which the individual is detained. Id. at 697.
The governing statute does not explicitly limit the length of post-removal-period
detention. See 8 U.S.C. § 1231(a)(6). Because a statute that authorizes “indefinite, perhaps
permanent” detention poses a “serious constitutional threat,” the Supreme Court has “read
an implicit limitation” into § 1231(a)(6) “in light of the Constitution’s demands.”
Zadvydas, 533 U.S. at 680, 689. See also Johnson v. Guzman Chavez, 594 U.S. 523, 529
(2021). Specifically, in Zadvydas the Supreme Court held that a noncitizen may be detained
only for “a period reasonably necessary to bring about” the noncitizen’s removal from the
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United States. 533 U.S. at 689. Moreover, the Zadvydas Court held that the period
“reasonably necessary” to “secure” a noncitizen’s removal is presumptively six months. Id.
at 699-701. After this six-month period, if a detainee makes a sufficient showing their
removal is not significantly likely in the “reasonably foreseeable future,” the government
must respond with evidence sufficient to rebut that showing. Guzman Chavez, 594 U.S. at
529. If the government fails to provide such evidence, the detainee must be released. Id.
Accordingly, pursuant to the principles espoused in Zadvydas and Guzman Chavez, post-
removal-period detention violates the Immigration and Nationality Act and the United
States Constitution when a non-citizen’s removal is not significantly likely in the
reasonably foreseeable future.
The parties allow that Shaltapour’s order of removal is final, and that Shaltapour
was granted deferral of removal pursuant to CAT. Respondents do not dispute that
Shaltapour was at some point previously detained for a period of at least some months.4
Respondents do not dispute that, since Shaltapour’s order of removal became final and he
4 When determining whether the noncitizen has been detained for six months past the
removal period, the district courts within the jurisdiction of the Ninth Circuit Court of Appeals
consider the full amount of time that the noncitizen has spent in immigration detention since they
were ordered removed, i.e., the courts total multiple periods of detention in the aggregate.
Otherwise, the government could circumvent the relevant statute by detaining and releasing and
re-detaining noncitizens such that they are never continuously detained for six months, which
would constitute de facto indefinite detention. See, e.g., Nguyen v. Scott, 796 F. Supp. 3d 703, 722
(W.D. Wash. 2025) (“under the reasoning of Zadvydas, a series of releases and re-detentions by
the government ... in essence results in an indefinite period of detention, albeit executed in
successive six month intervals.” (internal quotations omitted, ellipses in original)); Phan v.
Warden of Otay Mesa Det. Facility, No. 25-cv-02369, 2025 WL 3141205, at *3 (S.D. Cal.
Nov. 10, 2025) (collecting cases). Moreover, as the Court recently held, a detainee is eligible for
release even before six months of detention if they meet a heightened burden of establishing their
removal is not reasonably foreseeable. See Sweid v. Cantu, No. 25-03590, 2025 WL 3033655, at
*3-4 (D. Ariz. Oct. 30, 2025) (collecting cases, including Munoz-Saucedo v. Pittman, 789 F. Supp.
3d 387, 396 (D.N.J. 2025) (“Although some courts have read Zadvydas as creating a bright-line
rule—one that effectively allows the government to detain a person for at least six months without
judicial review, even if there was no possibility of removal—a close reading of Zadvydas does not
support that interpretation.”), and Trinh v. Homan, 466 F. Supp. 3d 1077, 1093 (C.D Cal. 2020)
(“Zadvydas established a ‘guide’ for approaching detention challenges, not a categorical
prohibition on claims challenging detention less than six months.”)).
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was granted deferral of removal, he has not committed any crime nor has there been any
other changed circumstance which would warrant Shaltapour’s current detention.
Shaltapour plausibly alleges there is no good reason to believe that his removal is
significantly likely in the reasonably foreseeable future. Shaltapour asserts, and
Respondents do not dispute, that ICE has been unable to deport him over the last six years.
The burden thus shifts to Respondents to “respond with evidence sufficient to rebut that
showing,” Zadvydas, 533 U.S. at 701, a burden Respondents have declined to bear. To the
contrary, Respondents allow that Shaltapour should be released at this time. Respondents
have not provided a legal basis for Shaltapour’s continued detention given the facts stated
in the Petition, which facts Respondents do not dispute.
Because Shaltapour is being held in custody in violation of the laws of the United
States and in violation of his Constitutional rights, relief pursuant to § 2241 is warranted.
Accordingly, on the facts and relevant law, and on the basis of Respondents’ consent,
IT IS RECOMMENDED that the petition for § 2241 at ECF No. 1 be granted,
and that Respondents be ordered to release Shaltapour immediately, and that Respondents
be required to docket a notice of compliance with any order issued by the Court.
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.
Rule 72(b), Federal Rules of Civil Procedure, provides that 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. However, because Respondents do not
object to Shaltapour’s release,
IT IS FURTHER RECOMMENDED that the Court order any objections to the
Report and Recommendation be filed no later than December 23, 2025.
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
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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).
Dated this 17th day of December, 2025.
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