Abdirahman v. Noem et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MARWAN ABDULLAHI ABDIRAHMAN,
Petitioner,
v.
KRISTI NOEM, Secretary of the Department
of Homeland Security, et al.,
Respondents.
Case No.: 3:26-cv-00177-RBM-AHG
ORDER:
(1) GRANTING PETITION FOR
WRIT OF HABEAS CORPUS
[Doc. 1]; AND
(2) DENYING MOTION FOR A
TEMPORARY RESTRAINING
ORDER AS MOOT [Doc. 2]
Pending 	before 	the 	Court 	are 	Petitioner 	Marwan 	Abdullahi 	Abdirahman’s
(“Petitioner”) Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241
(Doc. 1) and Motion for a Temporary Restraining Order (“TRO Motion”) (Doc. 2). The
Petition and TRO Motion seek the same relief—Petitioner’s release from detention and an
order enjoining Respondents from removing him to a third country without notice and an
opportunity to be heard. 	(Doc. 1 at 14, Prayer for Relief ¶¶ 1–3; Doc. 2 at 2.)1 For the
reasons set forth below, the Petition is GRANTED.
1 The Court cites the CM/ECF electronic pagination for filings unless otherwise noted.
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I. 	BACKGROUND
On July 12, 2023, Petitioner, a native of Somalia, entered the United Stated and
requested asylum. (Doc. 1 at 2.) He was then released and issued a Notice to Appear on
July 13, 2023 charging him as inadmissible under § 212(a)(6)(A)(I) of the Immigration and
Nationality Act (“INA”) as a noncitizen “who is present in the United States without having
been admitted or paroled or who arrived at a time or place other than as designated.” (Doc.
5 at 2.) 	Upon his release from custody, on or around July 16, 2023, Immigration and
Customs Enforcement (“ICE”), Enforcement and Removal Operations (“ERO”) enrolled
Petitioner in Alternatives to Detention (“ATD”). 	(Id.) 	“On October 3, 2023, Petitioner
filed for asylum and for Withholding of Removal in his removal proceedings.” (Id.)
On November 14, 2023, Petitioner was re-detained and has remained in ICE custody
since then. 	(Doc. 1 at 2.) 	On June 6, 2024, an immigration judge denied Petitioner’s
asylum claim and ordered him removed to Somalia. (Doc. 5 at 2.) Petitioner was granted
withholding of removal to Somalia on May 28, 2025. (Id. at 2–3; Doc. 1 at 2.) Nonetheless,
“ICE refused to release him, stating that ICE would try to remove him to a third country.”
(Doc. 1 at 2.) “On October 16, 2025, Petitioner was served with a letter informing him that
ICE had determined that he would remain in custody beyond the removal period because
he had not demonstrated that, if released, he would not pose a significant risk of flight
pending removal from the United States.” (Doc. 5 at 3.) “To date, ICE still has not told
[Petitioner] of any third country that might take him.” (Doc. 1 at 3; Doc. 5 at 3.)
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
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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 claims his current detention violates the Fifth Amendment’s Due Process
Clause, 8 U.S.C. § 1231, and the Supreme Court’s ruling in Zadvydas v. Davis, 533 U.S.
678 (2001). (Doc. 1 at 5–10.) Petitioner also claims that “ICE may not remove [him] to a
third country without adequate notice and an opportunity to be heard.” 	(Id. at 10–14.)
Respondents argue that: (1) ICE “may remove Petitioner to a third country that will accept
Petitioner’s removal” because removal to other countries is “impracticable, inadvisable, or
impossible”; (2) “it would be premature to conclude that there is no significant likelihood
of removal in the reasonably foreseeable future”; (3) even if ICE’s “compliance with the
regulations 	fell 	short, 	Petitioner 	has 	not 	established 	prejudice 	nor 	a 	constitutional
violation”; and (4) “Petitioner’s concern that he will not receive adequate notice and an
opportunity to be heard prior to his third country removal is not borne out by the evidence
in this case.” (Doc. 5 at 4–6.)
Respondents’ arguments are nearly identical to those addressed and rejected by this
Court in Azzo v. Noem, Case No.: 3:25-cv-03122-RBM-BJW, 2025 WL 3535208, at *2
(S.D. Cal. Dec. 10, 2025). 	There, the Court held that Respondents: (1) failed to satisfy
their burden under Zadvydas; and (2) must provide Petitioner with adequate notice and an
opportunity to be heard before removing him to a third country. 	Id. at *2. 	As to the
Zadvydas claim, the Court found the petitioner adequately demonstrated there was “good
reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future” because ICE had been unable to deport him or “even identify a third
country to deport him to.” 	Id. at *3 (citation omitted). 	Respondents also failed to
sufficiently rebut the petitioner’s showing under Zadvydas because they had “not even
identified a third country to which they plan to remove [the petitioner], much less submitted
a travel document or provided an estimate for how long it would take this unidentified third
country to respond.” 	Id. at *4. 	The Court also rejected Respondents’ arguments
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concerning third country removal “[b]ecause Respondents actively [sought] to remove [the
petitioner] to a third country.” Id. at *6.
Like in Azzo, Petitioner’s current detention is no longer presumptively reasonable
because he has been detained for more than six months following his final removal order.
(See Doc. 1 at 2.) Petitioner has also met his initial burden under Zadvyvas to show good
reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future; he was granted withholding of removal to Somalia, established that
“third country removal is exceedingly rare, and [noted that] ICE has not been able to
remove [him] to a third country for over 7 months.” (Doc. 1 at 8–10.)
The Court therefore adopts its reasoning in Azzo and applies it here. For those same
reasons, Petitioner’s continued detention is no longer reasonable or authorized by statute
and is therefore unlawful. 	Because Respondents have not yet identified a possible third
country for Petitioner’s removal and “‘offered little more than generalizations regarding
the likelihood that removal will occur,’ . . . 	the Court finds that they have not met their
burden to ‘respond with evidence sufficient to rebut’ Petitioner’s showing.” 	Azzo, 2025
WL 3535208, at *4 (quoting Kamyab v. Bondi, Case No. C25-389RSL, 2025 WL 2917522,
at *4 (W.D. Wash. Oct. 14, 2025)); see also Ndandu v. Noem, No. 3:25-CV-02939-RBM-
MSB, 2026 WL 25848, at *6 (S.D. Cal. Jan. 5, 2026) (finding ICE’s “good faith” efforts
to secure a travel document, without more, do not render detention reasonable).
Additionally, Petitioner claims that “in the unlikely event that ICE were able to
remove him to a third country, ICE threatens to do so in violation of the Fifth Amendment’s
Due Process Clause. 	(Doc. 1 at 2.) 	As an exhibit, Petitioner attaches the July 9, 2025
memo from ICE Director Todd Lyons (“ICE Memo”) titled “Third Country Removals
Following the Supreme Court's Order in Department of Homeland Security v. D.V.D., No.
24A1153 (U.S. June 23, 2025).” 	(Doc. 1-3, Ex. B at 1–3.) 	The Court has thoroughly
analyzed the ICE Memo in Azzo and rejected the same arguments by Respondents. 	As
such, the Court also adopts its reasoning in Azzo concerning the third country removal
claim and applies it here. 	See 2025 WL 3535208, at *6–8 (adopting reasoning and
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conclusion in Esmail v. Noem, Case No. 2:25-cv-08325-WLH-RAO, 2025 WL 3030589,
at *6–7 (C.D. Cal. Sept. 26, 2025)).) 	For the same reasons, Petitioner has demonstrated
there is a “‘credible threat of enforcement’ of [ICE’s] third-country removal plan.” (Doc.
1 at 10.) 	Respondents must therefore provide Petitioner with adequate notice and an
opportunity to be heard before removing him to a third country.
IV. 	CONCLUSION
Based on the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly:
1. Respondents are ORDERED to immediately release Petitioner from custody,
subject 	to 	“appropriate 	conditions” 	of 	supervision 	to 	be 	determined 	by
immigration authorities. See 8 C.F.R. § 241.13(h).2
2. Respondents and their officers, agents, employees, attorneys, and persons acting
on their behalf or in concert with them are PROHIBITED from removing
Petitioner to a third country without notice and a meaningful opportunity to be
heard, following the process laid out in D.V.D. v. United States Dep’t of
Homeland Sec., Civil Action No. 25-10676-BEM, 2025 WL 1453640 (D. Mass.
May 21, 2025).
3. The TRO Motion (Doc. 2) is DENIED AS MOOT.
IT IS SO ORDERED.
DATE: February 5, 2026
___________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
2 See Vlasov v. Bondi, Case No.: 25-cv-1342-AJB-MSB, 2025 WL 2258582, at *3 (S.D.
Cal. Aug. 7, 2025); Daneshfar v. Facility Admin., CASE NO. 2:25-cv-01708-DGE-MLP,
2026 WL 71405, at *1 (W.D. Wash. Jan. 9, 2026).
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