Koca v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Case No. 26-cv-00443-NYW
ERCAN KOCA,
Petitioner,
v.
KRISTI NOEM, in her official capacity,
TODD LYONS, in his official capacity,
ROBERT HAGAN, in his official capacity, and
JUAN BALTAZAR, in his official capacity,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Verified Petition for a Writ of Habeas Corpus
(the “Petition”) filed by Petitioner Ercan Koca (“Petitioner” or Mr. Koca”). 	[Doc. 1].
Respondents filed a Response to the Petition on February 17, 2026. [Doc. 7]. No reply
has been filed, and the time to do so has elapsed. See [Doc. 4 at 3]. For the reasons set
forth below, the Petition is respectfully GRANTED in part and DENIED in part.
BACKGROUND
Petitioner is a citizen of Turkey who has been detained in the ICE Denver Contract
Detention Facility since December 7, 2024. [Id. at ¶ 11]. On July 7, 2025, an immigration
judge determined that Petitioner faced a probability of future prosecution in Turkey and
granted withholding of removal. 	[Id. at ¶¶ 11, 17]. 	No Party appealed the immigration
judge’s decision. [Doc. 7 at 4]. Petitioner remains detained in ICE custody on the basis
that ICE is “looking for another country” for removal, but no other country has been
identified thus far. 	[Doc. 1 at ¶ 18]. 	Indeed, Respondents state that they “do not have
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information to present to the Court concerning their efforts to remove Petitioner to a third
country.” [Doc. 7 at 7].
Petitioner brings the following claims: 	(1) a claim asserting that his prolonged
detention violates his substantive due process rights; (2) a claim asserting that his
prolonged detention violates the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(6),
and Zadvydas v. Davis, 533 U.S. 678 (2001); (3) a procedural due process claim asserting
that Petitioner’s procedural due process rights have been violated because “Respondents
have failed to provide Petitioner with a constitutionally adequate custody review and have
further failed to provide notice and an opportunity to seek protection from third-country
removal”; and (4) a claim arguing that “Respondents’ policy of ‘surprise’ third-country
removal” is unlawful under the Administrative Procedure Act. [Doc. 1 at 12–14].
LEGAL STANDARD
Section 2241 of Title 28 authorizes a court to issue a writ of habeas corpus when
a person is “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). “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).
“Challenges to immigration detention are properly brought directly through habeas.”
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas, 533 U.S.
at 687–88).
ANALYSIS
I. 	Detention of Noncitizens
Generally, when a noncitizen is ordered removed from the United States, the
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removal 	“shall” 	occur 	within 	the 	next 	90 	days—the 	“removal 	period.” 	8 	U.S.C.
§ 1231(a)(1); Morales-Fernandez v. Immigr. & Naturalization Serv., 418 F.3d 1116, 1123
(10th 	Cir. 	2005). 	Detention 	is 	mandatory 	during 	the 	removal 	period, 	8 	U.S.C.
§ 1231(a)(2)(A), but once the removal period expires, the noncitizen “may” be detained,
id. § 1231(a)(6) (emphasis added). 	The Supreme Court has recognized that this
permissive language “suggests discretion,” but “does not necessarily suggest unlimited
discretion.” 	Zadvydas, 533 U.S. at 697. 	Indeed, “read in light of the Constitution’s
demands,” section 1231(a)(6) “limits an alien’s post-removal-period detention to a period
reasonably necessary to bring about that alien’s removal from the United States.” Id. at
689. In Zadvydas, the Court explained 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)). 	Finding “nothing in the
history of these statutes that clearly demonstrates a congressional intent to authorize
indefinite, perhaps permanent, detention,” the Zadvydas Court held that “once removal is
no longer reasonably foreseeable, continued detention is no longer authorized by statute.”
Id. at 699.
The 	Court 	did 	recognize, 	however, 	a 	presumptively 	reasonable 	six-month
detention period. Id. at 701. “After this 6-month period,” if the noncitizen demonstrates
“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. 	The Supreme Court explained that a six-month presumptive period does
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not mean that every noncitizen detained for six months must be released; rather, a
noncitizen may remain in detention “until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.” 	Id. 	But “if the government
fails to demonstrate a significant likelihood of removal in the reasonably foreseeable
future, the noncitizen must be released.” Ahrach v. Baltazar, No. 25-cv-03195-PAB, 2025
WL 3227529, at *2 (D. Colo. Nov. 19, 2025) (citing Zadvydas, 533 U.S. at 701).
II. 	Petitioner’s Detention
Respondents do not dispute that the length of Petitioner’s detention since the
removal order exceeds the presumptively reasonable six-month period recognized in
Zadyvas. 	See [Doc. 7 at 7 (“Petitioner’s order of removal became administratively final
on August 6, 2025, after expiration of the appeal period. . . . To date, Petitioner has been
detained for approximately six months (195 days) since his removal order became
final.”)]. Therefore, Petitioner bears the burden of providing “good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable future.”
Zadvydas, 533 U.S. at 701. 	This standard does not require Mr. Koca to “show the
absence of any prospect of removal—no matter how unlikely or unforeseeable.” 	Id. at
702. 	“Rather, []he simply must show that removal is not significantly likely in the
reasonably foreseeable future.” Ahrach, 2025 WL 3227529, at *3.
Mr. Koca argues that the immigration judge’s grant of withholding of removal is a
“particular individual barrier” that “creates a permanent impediment to removal to his
home country.” 	[Doc. 1 at ¶¶ 30–31]. 	In their Response, Respondents do not contest
this assertion or argue that Petitioner has failed to meet his initial burden under Zadvydas.
See [Doc. 7]. 	The Court agrees that Petitioner has met his burden by showing “the
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existence of either institutional barriers to repatriation or obstacles particular to his
removal.” Dusabe v. Jones, No. 24-cv-00464-SLP, 2024 WL 5465749, at *3 (W.D. Okla.
Aug. 27, 2024), recommendation adopted, 2025 WL 486679 (W.D. Okla. Feb. 13, 2025).
Because Mr. Koca has been granted withholding of removal to his country of origin,
Turkey, and because Respondents have not identified any other country that would
accept him (or indicated that they have made any efforts to locate such a country), he has
shown “good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future.” Zadvydas, 533 U.S. at 701; see also Castellano v. U.S.
Dep’t of Homeland Security, No. 26-cv-00080-PAB, 2026 WL 472732, at *3 (D. Colo. Feb.
19, 2026) (finding that petitioner met his burden where respondents had not identified any
country that would accept him and had made little progress in securing deportation); Trejo
v. Warden of ERO El Paso E. Montana, 807 F. Supp. 3d 697, 705–06 (W.D. Tex. 2025)
(petitioner met his burden by showing he could not be removed to El Salvador, “the only
country of which he is a citizen,” and the government identified no alternative country for
removal).
The burden thus shifts to Respondents to present sufficient evidence to show that
removal is likely. 	Zadvydas, 533 U.S. at 701. 	Having presented no such evidence,
Respondents have not met their burden. At best, Respondents assert that “DHS and the
U.S. Department of State are working in coordination to evaluate and select a third
country for removal.” 	[Doc. 7-1 at ¶ 23]. This vague statement provides no meaningful
information to the Court and does not demonstrate that removal is likely. 	Respondents
do not, for example, “identify which countries they might contact” to effectuate removal,
nor do they list “concrete steps they will take to effectuate [Mr. Koca’s] timely removal.”
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Ahrach, 2025 WL 3227529, at *5. Indeed, Respondents concede that they “do not have
information to present to the Court concerning their efforts to remove Petitioner to a third
country.” 	[Doc. 7 at 7]. 	Respondents have, therefore, not met their burden to justify
Petitioner’s continued detention. 	See Balouch v. Bondi, No. 9:25-cv-00216-MJT, 2025
WL 2871914, at *3 (E.D. Tex. Oct. 9, 2025) (ruling that “conclusory statements via written
declarations that [the government was] taking steps to remove Petitioner to Iran” were
insufficient to meet government’s burden); Momennia v. Bondi, No. 25-cv-01067-J, 2025
WL 3011896, at *10 (W.D. Okla. Oct. 15, 2025) (“[M]ere intent to find a third country is
too speculative to permit indefinite detention or to overcome [the petitioner’s] showing.”),
recommendation adopted, 2025 WL 3006045 (W.D. Okla. Oct. 27, 2025).
While the government “has the right to enforce” Petitioner’s order of removal, it
“may not detain [him] for an indefinite and undetermined period of time while it tries to
effect that removal when the circumstances are such that his removal is not reasonably
likely in the foreseeable future.” Villanueva v. Tate, 801 F. Supp. 3d 689, 704 (S.D. Tex.
2025). 	For the reasons set forth in this Order, the Court concludes that Respondents’
continued detention of Petitioner violates the Fifth Amendment and the Immigration and
Nationality Act. See Pena-Gil v. Lyons, No. 25-cv-03268-PAB-NRN, 2025 WL 3268333,
at *4 (D. Colo. Nov. 24, 2025). 	The Court will order that Mr. Ercan be released from
custody pursuant to 28 U.S.C. § 2241(c)(3). 	See Ahrach, 2025 WL 3227529, at *5
(granting release in similar circumstances); Salazar-Martinez v. Lyons, No. 2:25-cv-
00961-KG-KBM, 2025 WL 3204807, at *2 (D.N.M. Nov. 17, 2025) (“The remedy for a
Zadvydas claim is generally release of the petitioner under conditions of supervision.”
(collecting cases)).
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III. 	Petitioner’s Other Requests for Relief
In addition to immediate release from detention, Petitioner asks the Court to
(1) “[d]eclare 	that 	Respondents’ 	actions 	or 	omissions 	violate 	the 	Immigration 	and
Nationality Act, 8 U.S.C. § 1231(a)(6), the Administrative Procedure Act, and the Due
Process Clause of the Fifth Amendment to the U.S. Constitution”; (2) “[p]ermanently
enjoin Respondents from removing Petitioner to any third country without providing at
least thirty (30) days’ advance written notice and a meaningful opportunity to seek fear-
based protection (Withholding of Removal or CAT) before an Immigration Judge,
consistent with the requirements of Procedural Due Process”; and (3) enter an award of
attorney’s fees and costs. [Doc. 1 at 15].
With 	respect 	to 	Petitioner’s 	first 	request 	for 	declaratory 	relief 	related 	to
Respondents detention-related actions, this request is moot in light of the Court’s order
to release Petitioner. Pena-Gil, 2025 WL 3268333, at *5. Insofar as Petitioner asks for
a declaration about the legality of “Respondents’ policy of ‘surprise’ third-country
removal,” [Doc. 1 at ¶ 69], the Court cannot enter any such relief. The Court is aware that
many district courts have found that a recent ICE policy of deporting individuals to third
countries without providing an opportunity to be heard and present fear-based claims is
unlawful. 	See, e.g., Abghari v. Hermosillo, No. 2:26-cv-00269-JNW, 2026 WL 503317,
at *5 (W.D. Wash. Feb. 24, 2026); Kumar v. Wamsley, No. 25-cv-02055-KKE, 2025 WL
3204724, at *6 (W.D. Wash. Nov. 17, 2025) (collecting cases); D.V.D. v. U.S. Dep’t of
Homeland Sec., --- F. Supp. 3d. ----, 2026 WL 521557, at *34 (D. Mass. Feb. 25, 2026)
(vacating the policy as “not in accordance with law” under the Administrative Procedure
Act), appeal docketed, No. 26-1212 (1st Cir. Feb. 28, 2026). 	But Petitioner’s Petition
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does not discuss, let alone raise any arguments about, this policy. 	See [Doc. 1]. 	The
Court cannot weigh in on the constitutionality or lawfulness of a policy that is not
meaningfully or sufficiently challenged by Petitioner. 	See United States v. Walker, 918
F.3d 1134, 1151 (10th Cir. 2019) (arguments raised only in a perfunctory manner may be
deemed waived).
To the extent Petitioner seeks attorney’s fees, this District’s Local Rules require
that those requests be made by separate motion. See D.C.COLO.LCivR 54.3.
That leaves Petitioner’s request that this Court enjoin Respondents from removing
Petitioner to a third country without providing written notice and a meaningful opportunity
to seek fear-based protection. [Doc. 1 at 15]. Again, courts throughout the country have
concluded that ICE’s policy of removing individuals to third countries without meaningful
notice and an opportunity to be heard is unlawful, and a number of courts have granted
the type of relief sought by Petitioner here. See, e.g., Emara v. Bondi, No. 26-cv-00116-
KKE, 2026 WL 266067, at *5 (W.D. Wash. Feb. 2, 2026); Hernandez v. Bondi, No. 1:25-
cv-02020-EPG-HC, 2026 WL 350829, at *8 (E.D. Cal. Feb. 9, 2026); Al Zoubani v. Noem,
No. 26-cv-00378-BJC-KSC, 2026 WL 524053, at *3 (S.D. Cal. Feb. 25, 2026). The Court
acknowledges Petitioner’s concern that he will be removed to a (currently unidentified)
third country without an opportunity to raise a reasonable fear argument. 	However, as
explained above, Petitioner does not assert any argument challenging Respondents’
policy—or even discuss the policy at all. See [Doc. 1]; see also Vardumyan v. Noem, No.
5:26-cv-00641-MRA-MAA, 2026 WL 530759, at *7 (C.D. Cal. Feb. 20, 2026) (declining to
address similar request where the petitioner “[did] not substantively explain why such
relief is warranted”). 	Moreover, a “petition for writ of habeas corpus is only available to
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challenge the fact or duration of confinement,” Basri v. Barr, 469 F. Supp. 3d 1063, 1066
(D. Colo. 2020), so this requested relief “is outside the relief available on a petition for writ
of habeas corpus,” Fadwa v. Lyons, No. 25-cv-03660-PAB, 2025 WL 3525026, at *7 (D.
Colo. Dec. 9, 2025). 	Accordingly, the Court declines to enter the requested injunctive
relief.
For the reasons set forth in this Order, the Petition is GRANTED in part and
DENIED in part.
CONCLUSION
For the reasons set forth above, IT IS ORDERED that:
(1) 	The Verified Petition for a Writ of Habeas Corpus [Doc. 1] is GRANTED in
part and DENIED in part;1
(2) 	Respondents SHALL RELEASE Mr. Koca no later than 48 hours after the
issuance of this Order; and
(3) 	On or before March 9, 2026, the Parties shall file a joint status report
informing the Court of the status of Mr. Koca’s release and whether any
additional proceedings in this matter are required.
DATED: March 2, 2026 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
1 Because the Court has granted Petitioner the relief he seeks on his substantive due
process claim and has explained why his other requests for relief cannot be granted, the
Court need not address Petitioner’s other claims for relief. 	See Pena-Gil, 2025 WL
3268333, at *4.
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