Modifi v. DHS et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
NASSER M., 1 	§
Petitioner, 	§
§
v. 	§ 	CIVIL ACTION NO. 1:26-cv-059
§
DEPARTMENT OF HOMELAND 	§
SECURITY, et al., 	§
Respondent. 	§
REPORT AND RECOMMENDATION
TO GRANT PETITIONER’S HABEAS PETITION
Before the Court are Petitioner’s “Petition for a Writ of Habeas Corpus” (Dkt. No. 1)
(“Petition”) and Respondents’ “Motion to Dismiss or Alternatively Motion for Summary
Judgment” (Dkt. No. 19) (“MTD”). Because Petitioner has established that there is not a
significant likelihood of his removal in the reasonably foreseeable future, see Zadvydas v.
Davis, 533 U.S. 678, 699 (2001), it is recommended that the Court (1) GRANT the Petition
(Dkt. No. 1), (2) DENY the MTD (Dkt. No. 19), (3) ORDER Respondent to release
Petitioner subject to supervision and provide a status update verifying such release, and (4)
DIRECT the Clerk of Court to close this case.
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,
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.
United States District Court
Southern District of Texas
ENTERED
May 26, 2026
Nathan Ochsner, Clerk
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having lost its “reasonable relation” to its statutory “purpose,” id. at 690, is no longer
authorized under § 1231, id. at 699; and the petitioner should be released, see id. at 700.
While announcing a particular standard for the petitioner’s claim for release—i.e.,
“no significant likelihood of removal in the reasonably foreseeable future”—Zadyvdas also
offered guidance for applying that standard. Id. at 701. 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.
Petitioner has met his burden, and Respondents have failed to meet theirs of rebuttal.
In short, this detention has been too long: Petitioner has been detained since July 19, 2025,
and at this point Respondents still only gesture at ongoing efforts to find a third country
that will accept Petitioner. Dkt. No. 19 at 3-4. Petitioner’s removal is not, under these facts,
reasonably foreseeable and his detention is thus no longer justified under § 1231.
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
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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 May 26, 2026.
Karen Betancourt
United States Magistrate Judge
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