Zadeh v. Noem

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
KAZEM N. Z., 1 	§
Petitioner, 	§
§
v. 	§ 	CIVIL ACTION NO. 1:26-cv-126
§
MICHAEL BARRON, et al., 	§
in their official capacities, 	§
Respondents. 	§
REPORT AND RECOMMENDATION
TO GRANT PETITIONER’S HABEAS PETITION
Before the Court is Petitioner’s “Emergency Amended Petition for Writ of Habeas
Corpus” (Dkt. No. 11) (“Petition”), Respondents’ “Response to Amended Petition for Writ
of Habeas Corpus and Motion for Summary Judgment” (Dkt. No. 15) (“MSJ”), and
Petitioner’s “Reply to Government’s Response and Motion for Summary Judgment” (Dkt.
No. 16) (“Reply”). Because the Petitioner advances a viable claim for release under
Zadvydas v. Davis, 533 U.S. 678 (2001),2 it is recommended that the Court grant the Petition
(Dkt. No. 11).
To gain relief under Zadvydas, a petitioner must “provide[] good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable future,” after
which “the Government must respond with evidence sufficient to rebut that showing.”
Zadvydas, 533 U.S. at 701. For the reviewing habeas court, the point of this inquiry is to
assess how long “detention” can remain “reasonably necessary to secure removal” and
advance the “statute’s basic purpose, namely, assuring the alien’s presence at the moment
of removal.” Id. at 699. If, as the petitioner aims to establish, “removal is not reasonably
foreseeable,” id., detention is no longer “reasonably necessary” for removal; the detention,
having lost its “reasonable relation” to its statutory “purpose,” id. at 690, is no longer
1 Due to significant privacy concerns in immigration cases and noting that judicial opinions are not subject to Federal
Rule of Civil Procedure 5.2, any opinion, order, judgment, or other disposition in this case will refer to the petitioner
only by first name and last initial.
2 Because this is a sufficient ground for awarding release, this report declines to assess Petitioner’s other claims.
United States District Court
Southern District of Texas
ENTERED
April 22, 2026
Nathan Ochsner, Clerk
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authorized under § 1231, id. at 699; and the petitioner should be released, see id. at 700.
Petitioner has met his burden. He has established that he is a citizen of Iran, Dkt. No.
11 at 38; see also Dkt. No. 15-1 at 1, subject to an order withholding his removal to Iran, see
Dkt. No. 11 at 34; see also Dkt. No. 15 at 3. He has established that his order of removal
became final on July 30, 2025, and that his detention under § 1231 has thus lasted nearly
nine months. Dkt. No. 11 at 37; see also Dkt. No. 15 at 3. And he has indicated that, with
Iran off the table, Respondents have not communicated with him about any viable third
countries to which he may be removed. Dkt. No. 11 at 38-9. Given the extensive length of
his detention,3 the absence of any indication of a viable removal in the near future, and the
current impossibility of removing him to his home country, Petitioner has made his required
showing.
Respondents fail to rebut Petitioner’s claim. At its core, Respondents’ substantive
argument is that “the Enforcement and Removal Operation Office…is actively taking steps
to remove Petitioner by seeking third country removal,” Dkt. No. 15 at 6, including by
seeking removal to Canada (declined), id., Costa Rica (declined), id., Panama (outstanding
since October 11, 2025), Dkt. No. 15-1 at 2, Honduras (outstanding since March 7, 2026),
id., and Equatorial Guinea (outstanding since March 7, 2026), id. This is not, to this court’s
eye, sufficient to rebut a Zadvydas claim. The Zadvydas inquiry is not about effort; it is about
probability of an event (removal) within a reasonable time. See Zadvydas, 533 U.S. at 702.
At nearly nine months, see Dkt. No. 15 at 3, Petitioner’s removal still does not look likely,
3 Zadvydas saw, in “indefinite detention,” a “serious constitutional problem,” id. at 690, and it effectively
limited the chance that its standard would allow for such detention through two principles relevant to this
report, id. at 701-02. First, the Court emphasized that the government’s good faith efforts to remove a
petitioner are not, in themselves, sufficient to establish a significant likelihood of removal. See id. at 702.
To depend so heavily on such a fact would, in the Court’s description, effectively concede to an altogether
different standard—one that would “require an alien seeking release to show the absence of any prospect
of removal…which demands more than our reading of the statute can bear.” Id. Second, the “reasonably
foreseeable future,” the window in which petitioner must show removal is not significantly likely, is held
to “shrink” the longer petitioner is detained. Id. at 701. Time, in this sense, continuously eases petitioner’s
burden, and “reasonably foreseeable” increasingly means something like imminent. Id. The Zadvydas
inquiry, then, functionally turns more suspicious of detention as it goes on—even if the government is
vigorously pursuing the detainee’s removal, see id. at 702, and even as removal may remain technically
plausible, see id. at 701.
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and nothing Respondents have provided suggests there any viable next steps. If anything,
their recitation of their attempts at third-country removal only bolsters Petitioner’s claim:
if, in their best attempts, the Respondents have been left spinning their wheels, it stands to
reason that Petitioner’s removal is, and will continue to be, inherently difficult—which is
to say, unlikely. See, e.g., Trejo v. Warden of ERO El Paso E. Montana, 807 F. Supp. 3d
697, 707 (W.D. Tex. 2025).
It is thus recommended that the Court (1) GRANT the Petition (Dkt. No. 11), (2)
DENY the MSJ (Dkt. No. 15), (3) ORDER Respondents to release Petitioner subject to
supervision and, three weeks after this order, provide a status update verifying such release,
and (4) DIRECT the Clerk of Court to close this case.
The parties have fourteen (14) days from the date of being served with a copy of this
Report and Recommendation in which to file written objections, if any, with the United
States District Judge assigned to the instant case. 28 U.S.C. § 636(b)(1). When filing an
objection, a party must object to specific facts or legal findings in this Report and
Recommendation. The District Judge is not required to consider frivolous, conclusive, or
general objections. Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir.
1987).
If any party fails to timely object to any factual or legal findings in this Report and
Recommendation, the District Judge is not required to conduct a de novo review of the record
before adopting these findings. If the District Judge chooses to adopt such findings without
conducting a de novo review of the record, the parties may not attack those findings on
appeal, except on the grounds of plain error. Alexander v. Verizon Wireless Servs., L.L.C.,
875 F.3d 243, 248 (5th Cir. 2017).
Signed on April 22, 2026.
Karen Betancourt
United States Magistrate Judge
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