Rahimzadeh v. NOEM et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
ERFAN RAHIMZADEH,
Petitioner,
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v. Civil No. 5:26-cv-00154
KRISTI NOEM,
TODD LYONS,
MIGUEL VERGARA,
and WARDEN,
Respondents.
REPORT AND RECOMMENDATION
This matter was referred to the undersigned for a hearing and report and recommendation
pursuant to 28 U.S.C. § 636(b)(1). For the following reasons, the undersigned respectfully
RECOMMENDS that Petitioner’s Petition be GRANTED and Respondents’ Motion to Dismiss
be DENIED. It is further RECOMMENDED that the District Court order the Department of
Homeland Security (“DHS”) and Immigration and Customs Enforcement (“ICE”) to release
Petitioner immediately with appropriate terms of supervision determined by DHS in its discretion.
Background
Petitioner is an Iranian citizen currently detained by ICE. Dkt. No. 1 at ¶¶ 7, 12; Dkt. No.
11 at 1. His mother and sister live in the United States, residing in Virginia, while his father was
previously removed to Iran. May 27 Hr’g [hereinafter Hr’g] at 10:49. This case began when
Petitioner was detained while crossing into the United States without inspection near Eagle Pass,
Texas, on or about December 24, 2022. Dkt. No. 11 at 3. Consequently, Petitioner was convicted
United States District Court
Southern District of Texas
ENTERED
June 11, 2026
Nathan Ochsner, Clerk
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in the Western District of Texas of failure to comply with report documents under 19 U.S.C. § 1459
on November 7, 2023, and sentenced to ten months’ imprisonment. Id.
An Immigration Judge (“IJ”) denied Petitioner’s applications for asylum, withholding of
removal, and withholding under the Convention Against Torture (“CAT”) and ordered Petitioner
removed to Iran on November 26, 2024. Dkt. No. 1 at ¶ 13; Dkt. No. 11 at 4. Petitioner timely
appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”), and the BIA dismissed
his appeal on June 18, 2025. Dkt. No. 1 at ¶ 14; Dkt. No. 11 at 4. Thus, Petitioner’s position is
that his removal order became administratively final on June 18, 2025. Dkt. No. 1 at ¶ 14.1
Petitioner did not seek judicial review of this decision by the Fifth Circuit.
Respondents advise that from July 15 to September 3, 2025, ICE Enforcement and
Removal Operations (“ERO”) sought assistance from Petitioner to obtain travel documents from
the Iranian consulate. Dkt. No. 11 at 4–5; Dkt. No. 11-1 at ¶¶ 13–15. On July 24, 2025, ICE ERO
spoke with Petitioner’s attorney at the time, and his attorney indicated that she would advise
Petitioner to sign a Form I-229(a). Id. at ¶ 14. However, ICE ERO served Petitioner with a copy
of Form I-229(a) (Warning for Failure to Depart) on September 3, 2025, and Petitioner refused to
sign the form. Dkt. No. 11 at 5; Hr’g at 9:54. Rather, Petitioner states that he “merely directed
Respondents to speak to his attorney . . . .” Dkt. No. 12 at 3 (citing Dkt. No. 11-1 at 2). It is
therefore unclear whether Petitioner had the opportunity to confer with his attorney prior to being
presented with Form I-229(a). Hr’g at 10:03–10:04. Regardless, Respondents contend that
Petitioner’s refusal to sign the form delayed his potential removal to Iran and caused his removal
1 Respondents have presented contradictory arguments regarding when Petitioner’s Final Order of Removal became
administratively final. In their Motion to Dismiss, Respondents agreed that the Final Order of Removal became
administratively final on June 18, 2025. Dkt. No. 11 at 4. However, at the May 27 Hearing, Respondents initially
argued that Petitioner’s Final Order of Removal was not administratively final until July 29, 2025. Hr’g at 9:41–42.
Even after correcting the date of the BIA’s dismissal of Petitioner’s appeal on the record, Hr’g at 9:43–44; Pet’r’s Ex.
4, Respondents maintained that the order of removal was not administratively final until the time for Petitioner to
appeal to the Fifth Circuit expired. Hr’g at 9:45. The undersigned addresses these arguments in greater detail below.
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period to be prolonged through the beginning of the Iran-United States conflict in February 2026.
Hr’g at 9:54–55.
Petitioner argues that this refusal to sign has no practical effect because it merely informs
detainees of the consequences of failure to cooperate with removal efforts. Hr’g at 9:55–56.
Moreover, there is no indication that ERO renewed their requests for Petitioner to sign Form I-
229(a) after speaking with his attorney. Dkt. No. 12 at 3. However, ERO submitted a travel
document request to Iran’s government on behalf of Petitioner on October 16, 2025, and that
request has gone unanswered to date. Dkt. No. 11 at 5. The parties agree that Petitioner has been
cooperative with the Government’s removal efforts since October 16, 2025. Hr’g at 10:02.
Respondents further advise that ICE has conducted two administrative custody reviews pursuant
to 8 C.F.R. § 241.4: a ninety-day custody review on September 24, 2025, and a 180-day custody
review on January 6, 2026. Id. ICE recommended Petitioner’s continued detention following each
administrative custody review. Id.
In a formal declaration filed with Respondents’ most recent advisory, ICE ERO Officer
Jose Aguilar attests that ERO re-submitted a travel document request regarding Petitioner on
March 3, 2026, and was notified “that all commercial and charter removals to Iran are currently
paused and will resume once the Iranian airspace returns to normal operating procedures.” Dkt.
No. 18-1 at ¶ 5. ERO received the same response to a request for an update regarding Petitioner’s
travel documents on May 21, 2026. Id. at ¶ 7. In the meantime, ICE also completed a 270-day
post-order custody review on April 25, 2026. Id. at ¶ 6.
Petitioner filed his petition for writ of habeas corpus in the instant case, challenging the
constitutionality of his continued detention by ICE, on January 28, 2026. Dkt. No. 1. He remains
in detention at La Salle County Regional Detention Center in Pearsall, Texas, to date. Dkt. No. 1
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at ¶ 2; Hr’g at 9:39. At the time of this Report and Recommendation, Petitioner has been in custody
for approximately three years and six months since he was originally apprehended near Eagle Pass,
Texas. See Dkt. No. 11 at 3. This timeframe includes the year, nearly to the day, that has elapsed
since the BIA dismissed his appeal and his order of removal became administratively final on June
18, 2025. Dkt. No. 1 at ¶ 14. Petitioner seeks relief under Zadvydas v. Davis, arguing that “[g]iven
the absence of a confirmed travel document or flight and the operational and diplomatic barriers
to repatriation, there is no significant likelihood that Petitioner will be removed to Iran in the
reasonably foreseeable future.” Dkt. No. 1 at ¶ 19.
Legal Standards
Where Respondents have filed a Motion to Dismiss but attached evidentiary exhibits, as in
this case, the Court construes such a motion as a Motion for Summary Judgment. Tuley v. Heyd,
482 F.2d 590, 592 (5th Cir. 1973) (“A motion to dismiss for failure to state a claim upon which
relief can be granted must be treated as a motion for summary judgment if matters outside the
pleadings are considered.”). Accordingly, the undersigned analyzes Respondents’ Motion to
Dismiss, Dkt. No. 11, as a motion for summary judgment.
Summary judgment is appropriate where the movant shows that there is no genuine dispute
of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
“As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary
judgment, applies with equal force in the context of habeas corpus cases.” Clark v. Johnson, 202
F.3d 760, 764 (5th Cir. 2000). To meet its burden, “the moving party must inform the Court of the
basis for the motion and identify those portions of the record which demonstrate the absence of a
genuine dispute of material fact and the appropriateness of judgment as a matter of law.”
Villanueva v. Tate, 801 F. Supp. 3d 689, 697 (S.D. Tex. 2025). A dispute of material fact is genuine
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“if the evidence is such at a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Courts considering a motion for
summary judgment construe “all facts and inferences in the light most favorable to the nonmoving
party.” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012) (quoting Dillon v. Rogers, 596
F.3d 260, 266 (5th Cir. 2010)).
A petitioner may apply for a writ of habeas corpus claiming that “[h]e is in custody under
or by color of the authority of the United States” or “is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(1), (3). Generally, when an alien is
ordered removed, they must be removed within ninety days. 8 U.S.C. § 1231(a)(1)(A). The alien
shall be detained during this removal period. 8 U.S.C. § 1231(a)(2)(A). If an alien may not be
removed to their country of origin, they may be removed to any country to which they have ties or
any country whose government will accept them into the country’s territory. 8 U.S.C.
§ 1231(b)(1)(C). The removal period begins on the latest of three dates: the date the order of
removal becomes administratively final, the date of a court’s final order staying removal, or the
date the alien is released from non-immigration detention. 8 U.S.C. § 1231(a)(1)(B). The removal
period may be extended if the detainee “fails to make a timely application for travel documents or
acts to prevent his removal.” Johnson v. Guzman Chavez, 594 U.S. 523, 528 (2021) (citing 8
U.S.C. § 1231(a)(1)(C)). Additionally, an alien may be detained beyond the removal period if
there is serious reason to believe they are a danger to the community or a threat to national security.
8 U.S.C. § 1231(a)(6), (b)(3)(B).
Regardless, the Supreme Court has specified that “the statute, read in light of the
Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably
necessary to bring about that alien’s removal from the United States. It does not permit indefinite
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detention.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). Accordingly, the proper inquiry is
whether a petitioner’s removal is reasonably foreseeable. See id. at 699. A six-month period of
detention is presumptively reasonable. Id. at 701. After this six-month period has passed, if the
petitioner “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. If removal is not reasonably foreseeable, detention is no longer authorized by
statute. Id. at 699. Because habeas corpus cases are civil in nature, the burden of proof is by a
preponderance of the evidence. Villanueva, 801 F. Supp. 3d at 696.
Discussion
As an initial matter, Respondents challenge the Court’s jurisdiction to adjudicate
Petitioner’s claims. Dkt. No. 11 at 2. Respondent is correct that the Court does not have
jurisdiction to directly review a final order of removal. See Andrade v. Gonzales, 459 F.3d 538,
544 (5th Cir. 2006). However, the Court “retains jurisdiction over pure questions of law,” such as
the constitutionality of Petitioner’s continued detention pending his removal. See id. In fact, “the
primary federal habeas corpus statute, 28 U.S.C. § 2241, confers jurisdiction upon the federal
courts to hear these cases.” Zadvydas, 533 U.S. at 687; see also Trejo v. Warden of ERO El Paso
East Montana, 807 F. Supp. 3d 697, 703 (W.D. Tex. 2025) (“Although several sections of the INA
curtail the jurisdiction of federal district courts in immigration [proceedings] . . . none of these
jurisdiction stripping provisions bar [the courts] from hearing a habeas petitioner’s challenge to
their detention, as opposed to their deportability.”). Therefore, because Petitioner is challenging
the lawfulness of his ongoing detention rather than the removal order itself, this Court retains
jurisdiction to consider his claims.
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Having established its jurisdiction to hear Petitioner’s claims, the Court proceeds to
evaluate the petition for writ of habeas corpus and Respondents’ Motion for Summary Judgment.
The parties have not outlined any genuine dispute of material fact. Accordingly, the undersigned
will evaluate whether Respondents are entitled to judgment as a matter of law under the Zadvydas
framework. The undersigned finds that Respondents are not entitled to judgment as a matter of
law. Rather, Petitioner has shown that he is not significantly likely to be removed in the reasonably
foreseeable future, and Respondents have failed to rebut this showing or provide other sufficient
justification for Petitioner’s continued detention.
First, Petitioner has met his burden to show that there is no significant likelihood that he
will be removed in the reasonably foreseeable future. Zadvydas, 533 U.S. at 701. Mere conclusory
statements alone are insufficient to meet this burden. See Andrade, 459 F.3d at 543–44. However,
Petitioner has presented more than conclusory statements here. Indeed, Petitioner states that both
the unanswered request for travel documents to Iran and the current conflict and breakdown of
diplomatic relations between Iran and the United States render his removal unlikely to occur in the
reasonably foreseeable future. Dkt. No. 1 at ¶ 19. Thus, the undersigned concludes that Petitioner
has met his initial burden under Zadvydas. Accordingly, the burden shifts to Respondents to
present rebuttal evidence showing that there is a significant likelihood that Petitioner will be
removed in the reasonably foreseeable future. Zadvydas, 533 U.S. at 701.
Respondents first argue that the petition was premature and posit that Petitioner’s order of
removal did not become administratively final until the time for Petitioner to appeal to the Fifth
Circuit had elapsed. Hr’g at 9:41–45. This argument is unavailing. First, an order of removal
becomes administratively final “once the BIA has reviewed the order (or the time for seeking the
BIA’s review has expired), [at which point] DHS is free to remove the alien unless a court issues
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a stay.” Johnson, 594 U.S. at 534–35. Second, and more to the point, “nothing in Zadvydas
precludes a challenge to detention before the presumptively constitutional time period has elapsed.
Zadvydas specifically holds that continued detention is proper only when the noncitizen’s final
removal is reasonably foreseeable.” Villanueva, 801 F. Supp. 3d at 702. This is because “the
presumption of constitutionality during that six-month period is rebuttable.” Id. at 703. Thus,
even if Respondents were correct that the presumptively reasonable period of six months had not
expired when Petitioner filed his petition, that would not preclude the Court from evaluating the
constitutionality of his indefinite detention.
Next, Respondents argue that Petitioner failed to cooperate in procuring travel documents,
tolling the removal period. Dkt. No. 11 at 2; see 8 U.S.C. § 1231(a)(1)(C). Specifically,
Respondents contend that Petitioner’s refusal to sign the I-229(a) form constitutes non-cooperation
with procuring travel documents, rendering his ongoing detention reasonable under 8 U.S.C.
§ 1231. “There is limited precedent on the quantum of evidence necessary to establish lack of
cooperation under § 1231.” Lyimo v. Price, EP-16-CV-00457-FM, 2017 WL 8161003, at *2 (W.D.
Tex. Aug. 4, 2017). However, the Form I-229(a) is not a vehicle for procuring travel documents,
but rather “reiterates the general requirement that a noncitizen subject to a final order of removal
be willing to assist in his removal.” Morales Perez v. Mullin, Civil Action No. 4:26-cv-03389,
2026 WL 1349072, at *2 (S.D. Tex. May 14, 2026). Thus, although numerous refusals to sign
Form I-229(a) and “consistently refus[ing] to assist in obtaining travel documents” may toll the
removal period under § 1231, see Lyimo, 2017 WL 8161003, at *3, a single refusal to sign Form
I-229(a) before consulting an attorney, followed by consistent cooperation with removal efforts, is
insufficient to constitute bad faith under 8 U.S.C. § 1231(a)(1)(C). Moreover, to the extent the
Respondents argue that Petitioner failed to cooperate, they acknowledge that it is unclear whether
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Petitioner or his attorney was the reason for the alleged noncooperation. Hr’g at 10:03–10:04.
Thus, the allegations that Petitioner failed to cooperate with removal efforts in good faith rest on
tenuous grounds indeed. The undersigned finds these circumstances insufficient to show that
Petitioner’s removal period was tolled pursuant to 8 U.S.C. § 1231(a)(1)(C).
Finally, Respondents urge the Court to evaluate the probability of Petitioner’s removal at
the time the petition was filed, intervening events notwithstanding. Hr’g at 9:52–53, 10:26. Such
an approach would be inconsistent with Zadvydas and other governing legal standards. For one
thing, “habeas is not backward-looking.” Ladak v. Noem, 814 F. Supp. 3d 712, 724 (N.D. Tex.
2025). The question is whether, currently, Petitioner’s removal is reasonably foreseeable. Cf. id.
at 727 (holding that changed circumstances can justify an alien’s re-detention if they render a new
removal attempt “more than a shot in the dark”). Thus, it is reasonable to conclude that the
intervening dissolution of diplomatic relations between Iran and the United States will come to
bear on the Court’s evaluation of whether there is a significant likelihood of Petitioner’s removal
to Iran in the reasonably foreseeable future.
Even so, Respondents argue that Petitioner is likely to be removed in the reasonably
foreseeable future. Namely, Respondents claim that there is no indication that Iran will not
approve Petitioner’s travel documents, and that the only issue affecting his removal is whether
flights to Iran will resume soon. Dkt. No. 18 at 2; Hr’g at 10:25, 10:29; see also Dkt. No. 18-1 at
¶ 8 (“Once travel documents are secured and removal flights resume to Iran, there is a significant
likelihood of removal in the reasonably foreseeable future.” (emphasis added)). Respondents,
however, could provide no insight or estimate regarding when said flights to Iran might resume.
See Hr’g at 10:25–26. Thus, the condition necessary to render Petitioner’s removal significantly
likely, namely the resumption of flights to Iran, is not reasonably foreseeable. The Court is not
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convinced that removal premised on an unforeseeable condition can itself be reasonably
foreseeable.
Additionally, Respondents are not pursuing Petitioner’s removal to a third country because
the IJ’s order specifies his removal to Iran. Hr’g at 10:41–42; see also Dkt. No. 11-4 at 26. If
Respondents were able to show viable third-country options for Petitioner’s removal, it is possible
that his removal would be more reasonably foreseeable. See Ladak, 814 F. Supp. 3d at 730
(holding that the petitioner was reasonably likely to be removed due to a “new and very real
potential for third-country removal”). That is not the case here.
Nor have Respondents provided any special circumstances that would justify Petitioner’s
indefinite detention. See Zadvydas, 633 U.S. at 691 (“In cases in which preventive detention is of
potentially indefinite duration, we have also demanded that the dangerousness rationale be
accompanied by some other special circumstance, such as mental illness, that helps create the
danger.”). Here, the only criminal history supported by the record is Petitioner’s illegal entry
conviction. Moreover, Respondents conceded that there is no evidence that Petitioner would be a
danger to the community—there is no indication that he has criminal history prior to his entry to
the United States or that he has any ties to criminal or terrorist organizations. Hr’g at 10:53–54.
Given these facts, the record does not support a finding that special circumstances allow Petitioner
to be detained indefinitely pending his removal to Iran, an event that presently dwells in the land
of speculation given the breakdown of diplomatic relations between Iran and the United States.
For these reasons, the undersigned finds that Respondents have failed to meet their burden
to rebut Petitioner’s showing that there is no significant likelihood that he will be removed in the
reasonably foreseeable future. Thus, Respondents have not shown that they are entitled to
judgment as a matter of law, and their Motion to Dismiss, construed as a motion for summary
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judgment, must fail. Because removal is not reasonably foreseeable, Petitioner’s detention is
“unreasonable and no longer authorized by statute.” Zadvydas, 533 U.S. at 699–700. Accordingly,
Petitioner should be released, subject to any terms of supervised release that are deemed
appropriate by DHS. Id. at 700.
Conclusion
For the foregoing reasons, the undersigned respectfully RECOMMENDS that Petitioner’s
Petition for Writ of Habeas Corpus be GRANTED, that Respondents’ Motion to Dismiss be
DENIED, and that the District Court order Petitioner’s immediate release under DHS supervision.
The undersigned further RECOMMENDS that the District Court’s order include any additional
conditions pertaining to Petitioner’s release that it finds necessary to effectuate the order.
IT IS SO RECOMMENDED
Signed this June 11, 2026, in Laredo, Texas.
______________________________
Diana Song Quiroga
United States Magistrate Judge
Warnings
The parties may file objections to this Report and Recommendation, unless they waive the
right to do so. A party filing objections must specifically identify those findings or
recommendations to which objections are being made. The District Court need not consider
frivolous, conclusive, or general objections. Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th
Cir. 1987) (quoting Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc)).
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A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after being served with a copy of the Report—
or the party’s waiver of the right to do so—shall bar that party from de novo review by the District
Court of the proposed findings and recommendations and, except upon grounds of plain error, shall
bar the party from appellate review of proposed factual findings and legal conclusions accepted by
the District Court to which no objections were filed. See 28 U.S.C. § 636(b)(1); Thomas v. Arn,
474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th
Cir. 1996) (en banc).
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