Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Fahmy K. A.,1
Petitioner,
v.
United States of America,
Respondent.
Case No. 26-cv-223 (ECT/DLM)
REPORT AND
RECOMMENDATION
This matter is before the Court on pro se Petitioner Fahmy K. A.’s Petition for Writ
of Habeas Corpus, filed January 12, 2026. (Doc. 1.) Petitioner asserts that his detention
after a final order of removal has been unconstitutionally extended because there is not a
significant likelihood of his removal in the reasonably foreseeable future. (See generally
id.) Respondent counters that Petitioner cannot show that there is not a significant
likelihood of removal in the reasonably foreseeable future because any delay in his removal
is the result of his own attempts to frustrate the removal process. And, in any event, the
government expects that Petitioner will be removed in the reasonably foreseeable future.
The case has been referred to the undersigned United States Magistrate Judge for a Report
and Recommendation pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule
72.1. For the reasons stated below, the Court respectfully recommends that Petitioner
Fahmy K. A.’s Petition for Writ of Habeas Corpus be denied.
1 This District has adopted a policy of using only the first name and last initial of any
nongovernmental parties in immigration cases.
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BACKGROUND
Petitioner Fahmy K. A. is a native of Sudan subject to a final order of removal.
(Docs. 1 at 6; 5 ¶ 9; 5-2.) On July 6, 2023, an immigration judge at Fort Snelling, Minnesota
ordered Petitioner removed from the United States in absentia. (Docs. 5 ¶ 9; 5-2.) Because
Petitioner was not removed within 90 days of the removal order, on November 6, 2024,
Immigration and Customs Enforcement (“ICE”) served Petitioner with an Order of
Supervision, Form I-220B, while he was incarcerated at the Grand Forks County Jail in
North Dakota. (Docs. 5 ¶ 10; 5-3.) Then, on July 7, 2025, ICE “encountered [Petitioner]”
at the Grand Forks County Correctional Center and served the jail with a detainer
notification request. (Doc. 5 ¶ 11.) A week later, ICE arrested Petitioner upon his release
from the Grand Forks County Correctional Center. (Docs. 5 ¶ 12; 5-4.) Petitioner has been
in ICE custody in Minnesota since July 15, 2025. (Docs. 1 ¶ 11; 5 ¶¶ 12, 13; 5-4.))
On July 16, 2025, ICE reviewed Petitioner’s case consistent with 8 U.S.C. § 1231
and 8 C.F.R. § 241.4 (Doc. 5-5 at 1-3.) This review resulted in a decision to revoke
Petitioner’s release.2 (Id.) ICE determined that “[b]ased on recent discussion with the
2 Petitioner does not challenge the validity of ICE’s revocation of his release. (See generally
Doc. 1.) The Court notes that ICE could have revoked Petitioner’s release for violating any
conditions of his release. See 8 C.F.R. § 241.13(i)(1) (“Any [noncitizen] who has been
released under an order of supervision . . . who violates any of the conditions of release
may be returned to custody . . . The [noncitizen] may be continued in detention for an
additional six months in order to effect the [noncitizen’s] removal, if possible, and to effect
the conditions under which the alien had been released.”). And it appears that Petitioner’s
2025 criminal convictions may have violated the conditions of his release. (See Doc. 5-3
at 3 (imposing condition that Petitioner not commit any crimes while on supervision).) But
ICE’s Notice of Release Revocation did not invoke any violations of Petitioner’s release
conditions as a basis for revocation. (See Doc. 5-5 at 1.) Rather, ICE premised Petitioner’s
release revocation on changed circumstances. See § 242.13(i)(2) (“The Service may revoke
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government of Sudan, there is now a significant likelihood of [Petitioner’s] removal in the
reasonably foreseeable future” and Petitioner should therefore remain in ICE’s custody.
(Id. at 1.) On August 7, 2025, ICE requested travel documents from the Embassy of Sudan
on Petitioner’s behalf. (Docs. 5 ¶ 14; 5-6 at 1.) According to Respondent, Petitioner was
“uncooperative with the travel document request process, twice refusing to complete the
required travel document application forms.” (Docs. 5 ¶ 14; 5-6 at 1.) On August 12, 2025,
ICE again conducted a custody review of Petitioner and determined that he would not be
[a noncitizen’s] release under this section and return the [noncitizen] to custody if, on
account of changed circumstances, the Service determines that there is a significant
likelihood that the [noncitizen] may be removed in the reasonably foreseeable future.”).
According to the Notice of Release Revocation, ICE determined there were changed
circumstances sufficient to revoke Petitioner’s release “[b]ased on recent discussion with
the government of Sudan” which, from ICE’s perspective, created a “significant likelihood
of [Petitioner’s] removal in the reasonably foreseeable future.” (Doc. 5-5 at 1-3.) Although
Petitioner bears the burden of showing his detention violates the law, courts in this district
“have concluded that 8 C.F.R. § 241.13(i)(2) places the burden on the government to
establish that changed circumstances justify a non-citizen’s re-detention.” Chou T. v.
Noem, No. 26-cv-01432 (SHL/ECW), 2026 WL 607413, at *4 (D. Minn. Feb. 20, 2026),
R. & R. adopted sub nom. Thao v. Noem, 2026 WL 613575 (D. Minn. Mar. 4, 2026).
Where, as here, the government makes only conclusory assertions of the likelihood of a
noncitizen’s removal, that burden is not satisfied. Id.; see also Roble v. Bondi, 803 F. Supp.
3d 766, 773 (D. Minn. 2025). Here, Respondent asserts that “discussion with the
government of Sudan” warranted revoking Petitioner’s release on July 16, 2025. But
considering ICE did not even request travel documents from Sudan until August 7 (Doc. 5
¶ 14) and did not receive a valid travel document from the Sudanese Embassy until August
18 (id. ¶ 16), it is hard to see how Respondent could satisfy its burden to justify Petitioner’s
re-detention based on changed circumstances on this record. After all, § 241.13(i)(2) places
the burden on the government “to show a change in circumstance before revoking an order
of supervision and detaining a person indefinitely.” Chou T., 2026 WL 607413, at *5
(quoting Vang v. Bondi, No. 26-cv-1381 (JMG/DLM), at *5 (D. Minn. Feb. 18, 2026)
(ordering release where Respondents obtained a travel document after detaining
Petitioner)). Any change here appears to have occurred after Petitioner was re-detained.
But it could be the record on this issue is insufficiently developed since Petitioner has not
challenged the revocation of his release.
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released. (Doc. 5-6 at 1.) As a basis for its decision, ICE stated that Petitioner’s August 7,
2025 refusal to “comply with an officer’s instruction to complete the required travel
document” amounted to conduct preventing his “removal from the United States.” (Id.)
ICE therefore extended Petitioner’s removal period. (Id.)
On August 18, 2025, ICE received a valid travel document for Petitioner from the
Embassy of Sudan and began to arrange for his removal to Sudan by commercial air travel.
(Doc. 5 ¶ 16.) But Respondent asserts that due to an extended security-related closure of
the airport in Khartoum, Sudan’s capital city, ICE was at first unable to schedule a
departure flight for Petitioner. (Id. ¶ 17.) By January 2026, the Khartoum airport had been
reopened, and ICE was cleared to schedule Petitioner’s removal flight. (Id. ¶ 18.)
According to Respondent, Petitioner was scheduled to depart the United States to
Sudan on January 15, 2026, but Petitioner “failed to cooperate with this scheduled
removal.” (Id. ¶ 19.) On February 12, 2026, Respondent submitted a supplemental
declaration and exhibit. (Docs. 8, 8-1.) The declaration states that on January 15, 2026,
ICE Deportation Officers (“DOs”) and a Customs and Border Protection Officer (“CBPO”)
attempted to remove Petitioner by a “witnessed departure” from the Minneapolis/St. Paul
International Airport (“MSP”).3 (Doc. 8 ¶¶ 5, 8.) But Petitioner refused to board his ticketed
flight despite several warnings from the officers that his failure to comply with his final
3 Respondent provides little clarity as to Petitioner’s destination. A Deportation Officer
represented to Petitioner that “his connection to Sudan would be via Chicago, IL (O’Hare
International Airport ORD).” (Doc. 8 ¶ 7.) But once Petitioner arrived at MSP, he was
ticketed to Chicago, IL and Addis Ababa, Ethiopia, without mention of a connecting flight
to Sudan. (Id. ¶ 8.)
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order of removal would result in his prosecution, as well as his inevitable removal by
charter flight to Sudan. (Id. ¶¶ 6-9.) After refusing several times to board the flight and
comply with removal, Petitioner was escorted by the officers to ICE’s St. Paul Field Office
and from there, transported back to the Kandiyohi County Jail. (Id. ¶ 10.) ICE served
Petitioner with a Notice of Failure to Comply based on his refusal of transport on January
27, 2026. (Doc. 8-1.)
Petitioner describes the day’s events differently. (See generally Doc. 9.) As
Petitioner tells it, he was taken to the Whipple Federal Building at Fort Snelling where ICE
agents presented him with papers that said he was to be removed to Ethiopia.4 (Id. at 3.)
Petitioner “protested and [declined] to sign the papers” because he “refused to be deported
to a second country[.]” (Id.) According to Petitioner, the agents then transported him to the
airport and along the way “they kept trying to persuade [him] to sign the papers.” (Id.)
Once at the airport, the agents “continued their efforts in removing [Petitioner] to
Ethiopia.” (Id.)
Though they differ on the details, both parties agree Petitioner did not depart the
United States on January 15, 2026. In its subsequent Notice of Failure to Comply, ICE
informed Petitioner that it had conducted yet another custody review and determined that
4 Respondent’s lack of clarity regarding Petitioner’s destination lends at least some
credence to Petitioner’s version of events, although neither party has provided evidence to
support or contradict this point. More importantly, Petitioner does not allege in his Petition
that the government is attempting to remove him to a country other than Sudan without
proper notice. (See generally Doc. 1.) Even so, there is conceivably a lawful basis for
Petitioner’s removal to a country other than his country of origin. See 8 U.S.C. § 1231(b)(2)
(explaining countries to which [noncitizens] may be removed).
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he would not be released from custody because of an extension of his removal period.5
(Doc. 8-1 at 1.) Petitioner remains in ICE’s custody in the Kandiyohi County Jail.
Immigration and Customs Enforcement, Detainee Locator,
https://locator.ice.gov/odls/#/results [https://perma.cc/4XF8-Q63S] (last visited April 9,
2026); (see also Doc. 7 (Respondent’s status update indicating Petitioner remains in ICE’s
custody at the Kandiyohi County Jail)). According to Respondent, Petitioner “will be re-
scheduled for removal when ERO [Enforcement and Removal Operations] Headquarters
has scheduled a charter flight to Sudan.” (Doc. 5 ¶ 20.) And although the timeframe for
Petitioner’s removal is “not currently known” due to the “complex nature of scheduling
charter missions,” ICE expects “[Petitioner’s] removal will occur within the foreseeable
future.” (Id.)
Petitioner argues that there is no significant likelihood of his removal in the
reasonably foreseeable future for two reasons. First, he says he has been detained since
July 15, 2025—over six months—and ICE has made no effort to remove him. (Doc. 1 at
6.) Second, Petitioner argues that his “country of citizenship (Sudan) isn’t taking any
person back” because his “country is at civil war.” (Id.) Respondent contends that the
petition should be denied because any delay in Petitioner’s removal is the result of his own
refusal to comply with removal, but in any event Petitioner’s removal is expected to occur
within the reasonably foreseeable future.
5 ICE based its determination on Petitioner’s failure to comply with its efforts to remove
him to Petitioner’s “native country of Russia.” (Doc. 8-1 at 1.) But as Petitioner has made
clear, and Respondent should know, Petitioner’s native country is Sudan. The Court
assumes this was a scrivener’s error.
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ANALYSIS
Federal courts have jurisdiction to order the release of a person who is
unconstitutionally detained. 28 U.S.C. § 2241(c)(3). The “primary federal habeas corpus
statute” is the appropriate vehicle for noncitizens to challenge the legality of their
immigration-related detention. Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001). Petitioner
has properly presented his matter via habeas petition, and as such the Court turns to the
merits of his claim of unlawful detention.
The Supreme Court’s seminal decision in Zadvydas established the contours and
framework for a circumstance like Petitioner’s—where a noncitizen does not question the
legality of their removal but challenges only the length of detention pending that removal.
Immigration proceedings, such as the removal proceedings Petitioner faces, are presumed
“nonpunitive in purpose and effect.” 533 U.S. at 690. For this reason, an “indefinite
detention of a [noncitizen] would raise a serious constitutional problem.” Id.
To address this concern, the Court concluded that administrative detention of a
noncitizen is permissible so long as the person’s removal is “reasonably foreseeable.” Id.
at 699-700. Recognizing the amorphous nature of that phrase, the Zadvydas Court set
certain parameters: detention for six months or less is presumed reasonable; after six
months, if a person “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. at 701.
“The longer the [noncitizen’s] post-removal detention, the easier it is for him to
satisfy his initial burden . . . because what counts as the ‘reasonably foreseeable future’
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shrinks as the period of prior post-removal confinement grows.” Ahmed v. Brott, No. 14-
cv-5000 (DSD/BRT), 2015 WL 1542131, at *3 (D. Minn. Mar. 17, 2015), R. & R. adopted,
2015 WL 1542155 (D. Minn. Apr. 7, 2015) (quoting Zadvydas, 533 U.S. at 701) (cleaned
up). But “[w]hen [a noncitizen] refuses to cooperate in securing his removal, or actively
thwarts the removal process, he can be detained for longer than the Zadvydas
presumptively reasonable six-month period.” Williams v. Sessions, No. 18-cv-
2633(DSD/SER), 2019 WL 234350, at *4 (D. Minn. Jan. 16, 2019), aff’d as modified sub
nom. Williams v. Barr, 786 F. App’x 71 (8th Cir. 2019) (collecting cases).
There is no dispute that Petitioner has been in ICE’s custody since July 15, 2025—
over six months. Even so, the Court concludes that Petitioner has failed to meet his burden
under Zadvydas to show that there is no significant likelihood of removal in the reasonably
foreseeable future. Respondent has presented documentary evidence that Petitioner failed
or refused to cooperate with his removal in August 2025 when he failed to complete his
travel documents, and in January 2026 when he refused to board his ticketed removal flight.
(Docs. 5-6 at 1; 8-1 at 1.) Petitioner provides some context for those events—namely,
confusion over his final destination for the January 15, 2026 trip—but no real evidence to
rebut Respondent’s position that he failed to cooperate. Because the only evidence before
the Court shows that Petitioner acted to frustrate his removal as recently as January 15,
2026, he cannot show that there is no significant likelihood of removal in the reasonably
foreseeable future. Williams, 2019 WL 234350, at *4. The Court therefore recommends
that Petitioner Fahmy K. A.’s Petition be denied.
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Although the Court has concluded that the Petition should be denied based on
Petitioner’s refusal to cooperate with his removal, the Court will address Petitioner’s
second argument for the sake of thoroughness. Separate from the length of his post removal
detention, Petitioner contends that there is no significant likelihood of his removal in the
reasonably foreseeable future because Sudan, his country of citizenship, is fighting a civil
war and not accepting people into the country. Cases in this District have identified five
general circumstances where courts have found there was no significant likelihood of
removal: (1) where a person is stateless and will not be accepted by another country; (2)
where the person’s country of origin will not issue travel documents; (3) where there is no
repatriation agreement; (4) where political conditions in the country of origin make it
“virtually impossible” to return the person; and (5) where the delay in getting travel
documents is so long that it seems they will never issue. Ahmed, 2015 WL 154131, at *4.
The Court construes Petitioner’s argument to be that civil war in Sudan has resulted
in political conditions which make it virtually impossible for him to return there. While
civil war may have made it impossible to return noncitizens to Sudan in the past,
Respondent has provided evidence through the declaration of Deportation Officer Angela
Minner that ICE is now working with the government of Sudan to process travel documents
for its citizens and repatriate people to Sudan. (Docs. 5 ¶¶ 14, 16; 5-5 at 1.) Petitioner
himself has even received a valid travel document from the Sudanese Embassy. (Doc. 5 ¶
16.) Petitioner has provided no evidence to the contrary. There is thus no evidence on this
record that political conditions in Sudan make it virtually impossible for Petitioner to return
there. As a result, Petitioner again fails to show that there is no significant likelihood of his
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removal in the reasonably foreseeable future. The Court therefore recommends that
Petitioner Fahmy K. A.’s Petition for Writ of Habeas Corpus (Doc. 1) be denied and this
matter be dismissed without prejudice.
RECOMMENDATION
Accordingly, based on all the files, records, and proceedings in this case, IT IS
RECOMMENDED that:
1. Petitioner Fahmy K. A.’s Petition for Writ of Habeas Corpus (Doc. 1) be
DENIED; and
2. This action be DISMISSED WITHOUT PREJUDICE.
Date: April 14, 2026 s/Douglas L. Micko
DOUGLAS L. MICKO
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals. Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed findings and recommendations within 14 days
after being served with a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after being served a copy of the
objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the
word or line limits set forth in Local Rule 72.2(c).
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