Ashour v. Noem et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
SULAIMAN ASHOUR,
Petitioner,
v.
KRISTI NOEM, Secretary of the Department
of Homeland Security, et al.,
Respondents.
Case No.: 3:26-cv-00422-RBM-SBC
ORDER DENYING WITHOUT
PREJUDICE PETITION FOR
WRIT OF HABEAS CORPUS
[Doc. 1]
Pending before the Court is Petitioner Sulaiman Ashour’s (“Petitioner”) Petition for
Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241. 	(Doc. 1.) 	Petitioner
represents that he is ready and willing to be removed to Kuwait, and that Kuwait is willing
to issue a travel document for him, but that Respondents “will not communicate with [the
Kuwaiti] embassy to retrieve the [travel] document.” 	(Id. at 2.)1 Therefore, Petitioner
claims, his continued detention violates the Supreme Court’s decision in Zadvydas v.
Davis, 533 U.S. 678 (2001), because there is no significant likelihood of removal in the
reasonably foreseeable future. (Id. at 3–7.)
For the reasons set forth below, the Petition is DENIED without prejudice.
1 The Court cites the CM/ECF electronic pagination unless otherwise noted.
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I. 	BACKGROUND
Petitioner was born in Kuwait. 	(Doc. 1-2 at 1, Declaration of Sulaiman Ashour
(“Ashour Decl.”) ¶ 1.) 	He entered the United States in August 2014 on a nonimmigrant
visitor visa, which expired on December 1, 2014, and overstayed his visa. (Doc. 4-1 at 1–
4, Declaration of Deportation Officer Ryan Robert Dale Smith (“Smith Decl.”) ¶ 4.) On
January 15, 2016, Petitioner “was convicted of domestic battery, for which he was
sentenced to 36 months of probation.” 	(Id. ¶ 5.) 	On February 15, 2018, Petitioner was
taken into Immigration and Customs Enforcement (“ICE”) custody and served with a
Notice to Appear charging him as inadmissible under the Immigration and Nationality Act
for overstaying his visa. (Id. ¶ 6.) After several bond hearings and appeals (see id. ¶¶ 8–
13), Petitioner was released from ICE custody on an Order of Recognizance on April 5,
2019. 	(Id. ¶ 14.) 	On November 20, 2020, the Board of Immigration Appeals denied
Petitioner adjustment of status and ordered Petitioner removed to Kuwait. (Id. ¶ 15.)
On January 7, 2025, “the condition of Petitioner’s bond was breached when he failed
to report in person to the [Alternatives to Detention] unit as scheduled.” 	(Id. ¶ 16.) 	On
October 22, 2025, ICE re-detained Petitioner. 	(Id. ¶ 17.) 	On November 25, 2025, ICE
submitted a travel document request to the Consul General of the State of Kuwait. 	(Id.
¶ 20.) 	On December 18, 2025, ICE referred Petitioner to the United States Attorney’s
Office for criminal prosecution for “an incident concerning assault on a federal officer that
occurred” when Petitioner was taken into ICE custody in October 2025. (Id. ¶ 21.) “The
Consul General of Kuwait was prepared to issue a travel document once the pending
criminal case against Petitioner was resolved.” (Id. ¶ 22.) On January 22, 2026, the United
States Attorney’s Office declined to prosecute Petitioner. (Id. ¶ 23.) After learning of this,
ICE obtained a travel document from the Embassy of Kuwait that same day. 	(Id. ¶ 24.)
On January 28, 2026, ICE identified a flight for removal to occur before February 22, 2026.
(Id. ¶ 25.)
Petitioner filed the Petition on January 23, 2026. (Doc. 1.) Respondents filed their
Return to Petition for Writ of Habeas Corpus (“Response”) on January 30, 2026. (Doc. 4.)
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Petitioner filed his Traverse in Support of Petition for Writ of Habeas Corpus (“Reply”) on
February 3, 2026. (Doc. 5.)
II. 	LEGAL STANDARD
A writ of habeas corpus is “available 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 essence of habeas corpus is an attack by a person in custody upon the legality of that
custody, and . . . the traditional function of the writ is to secure release from illegal
custody.” 	Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may
be granted by the Supreme Court, any justice thereof, the district courts and any circuit
judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the
burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or
treaties of the United States.” Id. § 2241(c)(3).
III. 	DISCUSSION
Petitioner argues that his detention violates the Supreme Court’s decision in
Zadvydas because his removal is not significantly likely in the reasonably foreseeable
future. 	(Doc. 1 at 3–7.) 	Respondents counter that ICE has diligently pursued removal
efforts and has “identified a flight for [Petitioner’s] removal to occur before his travel
document expires on February 22, 2026.” (Doc. 4 at 3.) The Court finds that Petitioner’s
removal is significantly likely in the reasonably foreseeable future.
A. 	Zadvydas
The Supreme Court has recognized a six-month presumptively reasonable period of
detention after a noncitizen’s removal order becomes final. 	Zadvydas, 533 U.S. 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.” Id.
1. 	Presumption of Reasonableness
The six-month presumptively reasonable period has passed for Petitioner. Courts in
the Ninth Circuit, and most courts across the country, calculate detention “cumulatively
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based on all post-removal order detentions to determine whether Zadvydas’s presumption
of reasonableness is exceeded.” Phan v. Warden of Otay Mesa Det. Facility, — F. Supp.
3d —, 2025 WL 3141205, at *3 (S.D. Cal. Nov. 10, 2025) (collecting cases). 	Because
Petitioner has been in ICE custody for well over six months (see Smith Decl. ¶¶ 6–14),
Petitioner’s current detention is no longer presumptively reasonable.
2. 	Good Reason to Believe
After the six-month period expires, Petitioner has the initial burden of showing
“good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future.” Zadvydas, 533 U.S. at 701. “Good reason to believe does not place a
burden upon the detainee to demonstrate no reasonably foreseeable, significant likelihood
of removal or show that his detention is indefinite; it is something less than that.” Senor v.
Barr, 401 F. Supp. 3d 420, 430 (W.D.N.Y. 2019) (cleaned up). Assuming without deciding
that Petitioner met his burden through the arguments raised in his Petition, the burden shifts
to Respondents to “respond with evidence sufficient to rebut that showing.” 	Zadvydas,
533 U.S. at 701. As discussed below, Respondents have met that burden.
3. 	Significant Likelihood of Removal in the Reasonably Foreseeable Future
Respondents argue that they have rebutted Petitioner’s showing by contacting the
consulate of Kuwait, retrieving Petitioner’s travel document, and identifying a flight for
Petitioner’s removal to occur before February 22, 2026. 	(Doc. 4 at 3.) 	Under these
circumstances, the Court finds that Petitioner’s removal is significantly likely in the
reasonably foreseeable future. 	Accord Marquez v. Wolf, Case No.: 20-cv-1769-WQH-
BLM, 2020 WL 6044080, at *3 (S.D. Cal. Oct. 13, 2020) (denying Zadvydas claim where
the respondents had obtained travel document for the petitioner and scheduled a removal
flight to Peru in a few weeks). Accordingly, the Petition is DENIED.
The Court declines Petitioner’s invitation to “wait until February 22, 2026 to decide
this petition, as that will ensure that ICE’s predictions prove true and [Petitioner] is
removed.” (Doc. 5 at 1.) The Court will, however, order the Parties to file a Joint Status
Report on or before February 23, 2026 indicating whether Petitioner was removed to
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Kuwait. 	If Petitioner has not been removed, he may then file an amended Petition. 	See
Feliciano v. Warden of Mesa Verde Det. Facility, Case No. 1:25-cv-02031-KES-SKO
(HC), 2026 WL 63646, at *3 (E.D. Cal. Jan. 8, 2026) (dismissing a petition raising a
Zadvydas claim without prejudice).
IV. 	CONCLUSION
For the foregoing reasons, the Petition (Doc. 1) is DENIED without prejudice. The
Parties SHALL FILE a Joint Status Report on or before February 23, 2026 indicating
whether Petitioner has been removed to Kuwait.
IT IS SO ORDERED.
DATE: February 5, 2026
____________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
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