Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SERGEI IZBITSKI,
Petitioner,
vs. 	No. CV 25-0778 JB/JMR
RAY CARNES, Warden, Torrance County
Detention Facility, MARISSA A. FLORES,
Director of El Paso Field Office, U.S.
Immigration and Customs Enforcement,
KRISTI NOEM, Secretary of the U.S.
Department of Homeland Security,
PAM BONDI, Attorney General of the
United States, in their official capacities,
Respondent.
MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Respondents’ Objections to the Magistrate
Judge’s Proposed Findings and Recommended Disposition, filed January 12, 2026 (Doc.
33)(“Objections”). The Honorable Jennifer M. Rozzoni, United States Magistrate Judge for the
United States District Court for the District of New Mexico, files her Proposed Findings and
Recommended Disposition on December 29, 2025 (Doc. 32)(“PFRD”). The PFRD notifies the
parties of their ability to file Objections within fourteen days and that failure to file Objections
waives appellate review. See PFRD at 13-14. Izbitski does not file an objection to the PFRD. On
January 12, 2026, Respondents Marissa A. Flores, Director of El Paso Field Office, U.S.
Immigration and Customs Enforcement, Kristi Noem, Secretary of the U.S. Department of
Homeland Security, and Pam Bondi, Attorney General of the United States, (the “Federal
Respondents”), all in their official capacities, file Objections to the Magistrate Judge’s PFRD. See
Objections at 1. That same day, Petitioner Sergei Izbitski files a response to the Objections. See
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Letter from Eric M. Mark to the Hon. James O. Browning (dated January 12, 2026)(Doc.
34)(“Response”). The Federal Respondents do not object to most of the PFRD. The Court has
reviewed the portions of the PFRD to which the Federal Respondents do not object to see if they
are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. The court
concludes that the portions of the PFRD to which the Federal Respondents do not object are not
clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion, and adopts those
portions of the PFRD. Pursuant to rule 72(b) of the Federal Rules of Civil Procedure, the Court
conducts a de novo review of all parts of Magistrate Judge Rozzoni’s PFRD to which the Federal
Respondents properly object, and the record related to the objections. After conducting this limited
de novo review, the Court sees no sound reason either in the applicable law or in the relevant facts
to depart from Magistrate Judge Rozzoni’s recommended disposition. The Court adopts the PFRD.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a recommended
disposition. See Fed. R. Civ. P. 72(b)(1) (“A magistrate judge must promptly conduct the required
proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a
claim or defense. . . .”). Rule 72(b)(2) governs objections: “Within 14 days after being served with
a copy of the recommended disposition, a party may serve and file specific written objections to
the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). Finally, when resolving
objections to a Magistrate Judge's proposal, “[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. §
636 provides:
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A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1).
“The filing of objections to a magistrate's report enables the district judge to focus attention
on those issues -- factual and legal -- that are at the heart of the parties' dispute.” United States v.
One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and Contents, 73 F.3d
1057, 1059 (10th Cir.1996)(“One Parcel”)(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). As
the United States Court of Appeals for the Tenth Circuit notes, “the filing of objections advances
the interests that underlie the Magistrate's Act, including judicial efficiency.” One Parcel, 73 F.3d
at 1059 (citing Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir.1986); United States v.
Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
The Tenth Circuit holds “that a party's objections to the magistrate judge's report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” 	One Parcel, 73 F.3d at 1060. 	“To further advance the
policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, have
adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the
magistrate's findings or recommendations waives appellate review of both factual and legal
questions.’” One Parcel, 73 F.3d at 1059. In addition to requiring specificity in objections, the
Tenth Circuit states that “[i]ssues raised for the first time in objections to the magistrate judge's
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).
See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)(“In this circuit, theories
raised for the first time in objections to the magistrate judge's report are deemed waived.”). In an
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unpublished opinion, the Tenth Circuit states that “the district court correctly held that [a
petitioner] had waived [an] argument by failing to raise it before the magistrate.” Pevehouse v.
Scibana, 229 Fed. Appx. 795, 796 (10th Cir.2007).1
In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expands the
waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060.
The Supreme Court of the United States -- in the course of approving the United States Court of
Appeals for the Sixth Circuit's use of the waiver rule -- notes:
It does not appear that Congress intended to require district court review of a
magistrate's factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings. The House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of review
the district court should perform when no party objects to the magistrate's report.
See S.Rep. No. 94-625, pp. 9-10 (1976)(hereafter Senate Report); H.R.Rep. No. 94-
1609, p. 11 (1976), U.S.Code Cong. & Admin. News 1976, p. 6162 (hereafter
House Report). There is nothing in those Reports, however, that demonstrates an
intent to require the district court to give any more consideration to the magistrate's
report than the court considers appropriate. Moreover, the Subcommittee that
drafted and held hearings on the 1976 amendments had before it the guidelines of
the Administrative Office of the United States Courts concerning the efficient use
of magistrates. Those guidelines recommended to the district courts that “[w]here
a magistrate makes a finding or ruling on a motion or an issue, his determination
should become that of the district court, unless specific objection is filed within a
reasonable time.” See Jurisdiction of United States Magistrates, Hearings on S.
1Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an unpublished
Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th
Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive
value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored. However,
if an unpublished opinion or order and judgment has persuasive value with respect
to a material issue in a case and would assist the court in its disposition, we allow
citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citing In re Citation of Unpublished
Opinions/Orders & Judgments, 151 F.R.D. 470 (10th Cir. 1993)). 	The Court concludes that
Pevehouse v. Scibana has persuasive value with respect to a material issue, and will assist the Court
in its disposition of the matters now before it.
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1283 before the Subcommittee on Improvements in Judicial Machinery of the
Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis
added)(hereafter Senate Hearings). The Committee also heard Judge Metzner of the
Southern District of New York, the chairman of a Judicial Conference Committee
on the administration of the magistrate system, testify that he personally followed
that practice. See id., at 11 (“If any objections come in, . . . I review [the record]
and decide it. If no objections come in, I merely sign the magistrate's order.”). The
Judicial Conference of the United States, which supported the de novo standard of
review eventually incorporated in § 636(b)(1)(C), opined that in most instances no
party would object to the magistrate's recommendation, and the litigation would
terminate with the judge's adoption of the magistrate's report. See Senate Hearings,
at 35, 37. Congress apparently assumed, therefore, that any party who was
dissatisfied for any reason with the magistrate's report would file objections, and
those objections would trigger district court review. There is no indication that
Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review
a magistrate's report to which no objections are filed. It did not preclude treating
the failure to object as a procedural default, waiving the right to further
consideration of any sort. We thus find nothing in the statute or the legislative
history that convinces us that Congress intended to forbid a rule such as the one
adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 150-52 (emphasis in original).
The Tenth Circuit also notes, “however, that ‘[t]he waiver rule as a procedural bar need not
be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060 (quoting Moore
v. United States, 950 F.2d 656, 659 (10th Cir.1991)(“We join those circuits that have declined to
apply the waiver rule to a pro se litigant's failure to object when the magistrate's order does not
apprise 	the 	pro 	se 	litigant 	of 	the 	consequences 	of 	a 	failure 	to 	object 	to 	findings 	and
recommendations.”). 	Cf. Thomas v. Arn, 474 U.S. at 154 (noting that, while “[a]ny party that
desires plenary consideration by the Article III judge of any issue need only ask,” a failure to object
“does not preclude further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard”). In One Parcel, the Tenth Circuit notes that the district
judge decides sua sponte to conduct a de novo review despite the objections’ lack of specificity,
but the Tenth Circuit deems the issues waived on appeal, because waiver advances the interests
underlying the waiver rule. 	See 73 F.3d at 1060-61 (citing cases from other Courts of Appeals
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where district courts elect to address merits despite potential application of waiver rule, but Courts
of Appeals opt to enforce waiver rule).
Where a party files timely and specific objections to the Magistrate Judge's PFRD, on
“dispositive motions, the statute calls for a de novo determination, not a de novo hearing.” United
States v. Raddatz, 447 U.S. 667, 674 (1980). “[I]n providing for a ‘de novo determination’ rather
than de novo hearing, Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate judge's proposed findings and
recommendations.” United States v. Raddatz, 447 U.S. at 676, (quoting 28 U.S.C. § 636(b) and
citing Mathews v. Weber, 423 U.S. 261, 275 (1976)). The Tenth Circuit requires a “district court
to 	consider 	relevant 	evidence 	of 	record 	and 	not 	merely 	review 	the 	magistrate 	judge's
recommendation” when conducting a de novo review of a party's timely, specific objections to the
magistrate judge's report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “When objections
are made to the magistrate's factual findings based on conflicting testimony or evidence . . . the
district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary
hearing.” Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination” when
a party objects to the Magistrate Judge's report “based upon conflicting evidence or testimony.”
Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet the requirements
of 28 U.S.C. § 636(b)(1) when it indicates that it gave “considerable deference to the magistrate's
order.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A district court
need not, however, “make any specific findings; the district court must merely conduct a de novo
review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir.2000). “[T]he
district court is presumed to know that de novo review is required. Consequently, a brief order
expressly stating the court conducted de novo review is sufficient.” 	Northington v. Marin, 102
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F.3d 1564, 1570 (10th Cir. 1996)(citing In re Griego, 64 F.3d at 583-84). “[E]xpress references
to de novo review in its order must be taken to mean it properly considered the pertinent portions
of the record, absent some clear indication otherwise.” Bratcher v. Bray-Doyle Indep. Sch. Dist.
No. 42, 8 F.3d 722, 724 (10th Cir. 1993). The Tenth Circuit holds that a district court properly
conducts a de novo review of a party's evidentiary objections when the district court's “terse” order
contains one sentence for each of the party's “substantive claims” and does “not mention his
procedural challenges to the jurisdiction of the magistrate to hear the motion.” Garcia v. City of
Albuquerque, 232 F.3d at 766. 	The Tenth Circuit explains that brief district court orders that
“merely repeat[ ] the language of § 636(b)(1) to indicate its compliance” are sufficient to
demonstrate that the district court conducts a de novo review:
It is common practice among district judges in this circuit to make such a statement
and adopt the magistrate judges' recommended dispositions when they find that
magistrate judges have dealt with the issues fully and accurately and that they could
add little of value to that analysis. We cannot interpret the district court's statement
as establishing that it failed to perform the required de novo review.
In re Griego, 64 F.3d at 584.
Notably, because “Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and
recommendations,” United States v. Raddatz, 447 U.S. at 676 (emphasis omitted), a district court
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate,” 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d
at 724-25 (holding that the district court's adoption of the Magistrate Judge's “particular
reasonable-hour estimates” is consistent with the de novo determination that 28 U.S.C. § 636(b)(1)
and United States v. Raddatz require).
Where no party objects to the Magistrate Judge's PFRD, the Court reviews, as a matter of
course and in the interests of justice, the Magistrate Judge's recommendations. In Pablo v. Soc.
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Sec. 	Admin., 	No. 	CIV 	11-0132 	JB/ACT, 	2013 	WL 	1010401 	(D.N.M. 	February 	27,
2013)(Browning, J.), the plaintiff fails to respond to the Magistrate Judge's PFRD, and thus waives
his right to appeal the recommendations, but the Court nevertheless conducts a review. See 2013
WL 1010401, at *1, *4. 	The Court generally does not, however, “review the PFRD de novo,
because the parties have not objected thereto, but rather review[s] the recommendations to
determine whether they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *4. 	The Court, thus, does not
determine independently what it would do if the issues had come before the Court first, when there
is no objection, but rather adopts the PFRD where “‘the Court cannot say that the Magistrate
Judge's recommendation . . . is clearly erroneous, arbitrary, obviously contrary to law, or an abuse
of discretion.’” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *3 (quoting Workheiser v. City
of Clovis, No. CIV 12–0485 JB/GBW, 2012 WL 6846401, at *3 (D.N.M. December 28,
2012)(Browning, J.). See Alexandre v. Astrue, No. CIV 11-0384 JB/SMV, 2013 WL 1010439, at
*4 (D.N.M. February 27, 2013)(Browning, J.)(“The Court rather reviewed the findings and
recommendations . . . to determine if they are clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. The Court determines that they are not, and will therefore adopt
the PFRD.”); Trujillo v. Soc. Sec. Admin., No. CIV 12-1125 JB/KBM, 2013 WL 1009050, at *5
(D.N.M. February 28, 2013)(Browning, J.)(adopting the proposed findings and conclusions, and
noting: “The Court did not review the ARD de novo, because Trujillo has not objected to it, but
rather reviewed the . . . findings and recommendation to determine if they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion, which they are not.”). This review,
which is deferential to the Magistrate Judge's work when there is no objection, nonetheless
provides some review in the interest of justice, and seems more consistent with the waiver rule's
intent than no review at all or a full-fledged review. Accordingly, the Court considers this standard
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of review appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is nothing in those Reports,
however, that demonstrates an intent to require the district court to give any more consideration to
the magistrate's report than the court considers appropriate.”). The Court is reluctant to have no
review at all if its name is going at the bottom of the order adopting the Magistrate Judge's PFRD.
ANALYSIS
The Court carefully reviews the PFRD and the relevant pleadings. In the PFRD, Magistrate
Judge Rozzoni recommends that the Court make three findings. 	See PFRD at 13. 	First, she
recommends that the Court find that Izbitski’s indefinite detention violates the Fifth Amendment
of the United States Constitution. See PFRD at 13. Second, she recommends that the Court waive
the exhaustion requirement for Izbitski’s indefinite-detention claim. See PFRD at 13. Third, she
recommends that the Court decline to address Izbitski’s outstanding request for relief. See PFRD
at 13. Based on these recommendations, Magistrate Judge Rozzoni recommends that the Court
grant Izbitski’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, filed August 14, 2025
(Doc. 1)(“Complaint”), and order Izbitski’s immediate release. See PFRD at 13. The Court first
concludes that the recommendations in the PFRD to which the Federal Respondent do not object
are not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion, and
therefore adopts them.
In their Objections, the Federal Respondents challenge only Magistrate Judge Rozzoni’s
recommendation that Izbitski’s indefinite detention violates the Fifth Amendment. See Objections
at 1-3. Specifically, they argue that: (i) Izbitski has failed to meet his burden to show good reason
to believe that there is no significant likelihood of removal in the reasonably foreseeable future by
“merely showing that the Republic of Kazakhstan initially refused travel documents”; and (ii) the
Federal Respondents’ continued attempts to obtain travel documents from Kazakhstan are
sufficient to rebut any such showing. See Objections at 1-3. Reviewing these objections de novo,
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the Court reaches the same conclusion as Magistrate Judge Rozzoni. 	Accordingly, the Court
overrules the Objections and orders Izbitski’s immediate release pursuant to an Order of
Supervision under the same terms that were in place before June 9, 2025.
I. 	THE PORTIONS OF THE PFRD TO WHICH THE FEDERAL RESPONDENTS
DO 	NOT 	OBJECT 	ARE 	NOT 	CLEARLY 	ERRONEOUS, 	ARBITRARY,
OBVIOUSLY CONTRARY OF LAW, OR AN ABUSE OF DISCRETION.
The Court first must determine which portions of the PFRD the Federal Respondents
challenge and to which portions they do not object. When a party makes no objection to a PFRD
or a portion of a PFRD, the Court does not review that portion de novo; instead, it “reviews the
recommendations to determine whether they are clearly erroneous, arbitrary, obviously contrary
to law, or an abuse of discretion.” 	Gonzalez v. Franco, 163 F. Supp. 3d 1039, 1045 (D.N.M.
2016)(Browning, J.). 	Magistrate Judge Rozzoni recommends that the Court: (i) conclude that
Izbitski’s indefinite detention violates the Fifth Amendment; (ii) waive the exhaustion requirement
for Izbitski’s indefinite-detention claim; and (iii) decline to address Izbitski’s remaining requests
for relief. See PFRD at 3.
The Federal Respondents assert two Objections, both directed at Magistrate Judge
Rozzoni’s first recommendation -- that indefinite detention violates Izbitski’s Fifth Amendment
rights. See Objections at 1-3. Within those objections, however, the Federal Respondents do not
challenge the legal standard that Magistrate Judge Rozzoni applies in her PFRD. See Objections
at 1-3. The Federal Respondents agree that the Supreme Court’s framework in Zadvydas v. Davis,
533 U.S. 678 (2001)(“Zadvydas”), governs. 	Objections at 1. 	Instead, they dispute Magistrate
Judge Rozzoni’s conclusion that Izbitski satisfies his initial burden under Zadvydas and that the
Federal Respondents fail to rebut that showing. 	See Objections at 1-3. 	The Court therefore
reviews those objections de novo.
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The Court carefully reviews the PFRD and the relevant pleadings. As to Magistrate Judge
Rozzoni’s second and third recommendations -- waiver of the exhaustion requirement and
declining to address Izbitski’s remaining requests for relief -- the Court reviews the PFRD to
determine if those recommendations are clearly erroneous, arbitrary, obviously contrary to law, or
an abuse of discretion. 	The Court determines that those recommendations are not clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. Accordingly, the Court
adopts those portions of the PFRD to which no party objects.
II. 	THE COURT OVERRULES THE FEDERAL RESPONDENTS’ OBJECTION TO
MAGISTRATE JUDGE ROZZONI’S CONCLUSION THAT ITZBITSKI MEETS
HIS 	INITIAL 	BURDEN 	TO 	SHOW 	THAT 	THERE 	IS 	NO 	SIGNIFICANT
LIKELIHOOD 	OF 	REMOVAL 	IN 	THE 	REASONABLY 	FORESEEABLE
FUTURE.
The Federal Respondents first object to Magistrate Judge Rozzoni’s conclusion that
Izbitski satisfies his initial burden under Zadvydas to “show good reason to believe that there is
no significant likelihood of removal in the reasonably foreseeable future,” based on evidence that
the Republic of Kazakhstan refuses to issue travel documents after determining that Izbitski is not
a citizen of that country. 	Objections at 1. 	The Court disagrees with the Federal Respondents’
conclusion. Izbitski has met his initial burden under Zadvydas. Again, the Federal Respondents
do not object to Magistrate Judge Rozzoni’s standard and discussion of the applicable law -- what
the United States must do, and what the petitioner must show.
“[W]hen an alien is ordered removed, the Attorney General shall remove the alien from the
United States within a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A). This period of time is the
“removal period.” 8 U.S.C. § 1231(a)(1)(A). The removal period begins once the removal order
“becomes administratively final,” 8 U.S.C. § 1231(a)(1)(B), meaning that the order has been
affirmed on appeal or the time to file an appeal has expired, 8 U.S.C. § 1101(a)(47)(B). In certain
enumerated circumstances, an alien “may be detained beyond the removal period.” 8 U.S.C.A. §
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1231(a)(6). 	See Johnson v. Chavez, 594 U.S. 523, 528-29 (2021)(discussing the circumstances
where an alien may remain “detained after 90 days have passed”).
The Supreme Court holds that statutes -- such as 8 U.S.C. § 1231(a)(6) -- which permit the
indefinite detention of an alien raise Constitutional concerns. See Zadvydas, 533 U.S. at 690. To
avoid those concerns, the Supreme Court construes § 1231(a)(6) to limit post-removal-period
detention to a period reasonably necessary to effectuate removal. See Zadvydas, 533 U.S. at 690.
“Thus, if removal is not reasonably foreseeable, the Court should hold continued detention
unreasonable and no longer authorized.” Zadvydas, 533 U.S. at 699-700.
A six-month detention is “presumptively reasonable.” Zadvydas, 533 U.S. at 701. After
that period, “once the alien 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.” Zadvydas, 533 U.S. at 701. This presumption does not mean
that the United States must release every alien after six months; rather, detention may continue
until it is determined that removal is not significantly likely in the reasonably foreseeable future.
See Zadvydas, 533 U.S. at 701.
To meet the “good reason” standard, a petitioner need not “show the absence of any
prospect of removal.” 	Zadvydas, 533 U.S. at 702. 	Magistrate Judge Rozzoni cites several
decisions recognizing that good reason exists when detention exceeds six months and additional
circumstances indicate that removal is unlikely. See Ahrach v. Baltazar, No. 25-CV-03195-PAB,
2025 WL 3227529, at *4 (D. Colo. Nov. 19, 2025)(Brimmer, J.)(finding good reason where the
petitioner is detained for over six months and where ICE makes no efforts to remove petitioner
beyond soliciting acceptances from three countries on one day); Salazar-Martinez v. Lyons, No.
2:25-CV-00961-KG-KBM, 	2025 WL 3204807, 	at 	*2 	(D.N.M. 	Nov. 	17, 	2025)(Gonzales,
J.)(finding good reason where the petitioner is detained for over six months and where ICE does
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not identify any country that has agreed to accept the petitioner); Zhuzhiashvili v. Carter, No. 25-
3189-JWL, 2025 WL 2837716, at *2 (D. Kan. Oct. 7, 2025)(Lungstrum, J.)(finding good reason
where the petitioner is detained for over six months and where officials make no progress towards
his removal); Vargas v. Noem, No. 25-3155-JWL, 2025 WL 2770679, at *2 (D. Kan. Sept. 29,
2025)(Lungstrum, J.)(finding good reason where the petitioner is detained for over six months and
where officials do not name any country to which an inquiry has been made or to which petitioner
may possibly be removed). Against this body of authority which the Federal Respondents do not
challenge, object, or deny, the Federal Respondents argue in one-sentence that Izbitski fails to meet
his initial burden. See Objections at 1. The Federal Respondents state:
The PFRD suggests that Petitioner met his burden to show good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable
future, as required by [Zadvydas], by merely showing that the Republic of
Kazakhstan initially refused travel documents because they found the Petitioner
was not a citizen of that country.
Objections at 1. The Court agrees with Magistrate Judge Rozzoni that Izbitski has met his initial
burden.
The Federal Respondents do not object to Magistrate Judge Rozzoni’s statement of the
facts. The United States has detained Izbitski for nearly seven months, and nothing in the record
suggests that his removal is imminent. See PFRD at 7. Izbitski was born in the Kazakh Soviet
Socialist Republic, a country that no longer exists. See PFRD at 7. After declaring independence,
the Kazakh Soviet Socialist Republic became the present-day Republic of Kazakhstan. See PFRD
at 7. Kazakhstan states that Izbitski “is not a citizen.” See Complaint at 11. On this record, there
is no indication that Kazakhstan is willing to accept Izbitski. During Izbitski’s nearly seven months
of detention, the Federal Respondents’ only documented effort to secure his removal has been to
request travel documents from Kazakhstan. See Response to Petitioner for Writ of Habeas Corpus
Under 28 U.S.C. § 2241 at 8, filed December 22, 2025 (Doc. 30)(“Response”). 	In the Reply,
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Izbitski states that he has requested citizenship from Kazakhstan three times at ICE’s insistence
and that Kazakhstan has denied his request three times. See Reply at 1. There is no evidence that
a fourth attempt will be successful. 	Moreover, the Federal Respondents do not identify an
alternative country to which the Federal Respondents might remove Izbitski.
Under these circumstances, the Court concludes that Izbitski meets his initial burden to
show “good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future.” Zadvydas, 533 U.S. at 702. This conclusion aligns with other district court
decisions dealing with comparable periods of detention, and similarly minimal and unpromising
removal efforts. 	The Federal Respondents’ Objection does not alter that conclusion. 	See
Objections at 1. 	The Court therefore overrules the Federal Respondents’ Objections insofar as
they challenge Magistrate Judge Rozzoni’s determination that Izbitski satisfies his initial Zadvydas
burden.
III. 	THE COURT OVERRULES THE FEDERAL RESPONDENTS’ OBJECTION TO
MAGISTRATE 	JUDGE 	ROZZONI’S 	CONCLUSION THAT THE 	FEDERAL
RESPONDENTS 	DO 	NOT 	RESPOND WITH 	EVIDENCE 	SUFFICIENT TO
REBUT IZBITSKI’S SHOWING.
In the PFRD, Magistrate Judge Rozzoni concludes that the Federal Respondents do not
carry their burden to rebut Izbitski’s showing that there is no significant likelihood of removal in
the reasonably foreseeable future. See PFRD at 8. The Federal Respondents object, arguing that
they offer sufficient evidence to rebut Izbitski’s showing. See Objections at 1-2. The Court agrees
with Magistrate Judge Rozzoni that the Federal Respondents have not met their burden.
Once a petitioner shows “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.” Zadvydas, 533 U.S. at 701. The “mere intent to find a third
country is too speculative to permit indefinite detention or to overcome [the petitioner’s] showing.”
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Momennia v. Bondi, No. CIV 25-1067 J, 2025 WL 3011896, at *10 (W.D. Okla. 2025)(Maxfiled,
J.). 	As Magistrate Judge Rozzoni correctly observes, in immigration-based habeas cases, the
Federal Respondents typically submit an affidavit from a relevant government official to rebut the
petitioner’s initial showing. See Diaz-Cruz v. Dedos, No. CIV 25-1117 MLG/JMR (filed Dec. 8,
2025)(Doc. 14-1)(Declaration of DHS Acting Assistant Field Office Director); Lorenzo v. Anda-
Ybarra, No. CIV 25-0923 KWR/GJF (filed Nov. 14, 2025)(Doc. 9-4)(Declaration of DHS
Supervisory Detention and Deportation Officer); Jimenez Chacon v. Lyons, No. CIV 25-0977
DHU/KBM (filed Oct. 29, 2025)(Doc. 18-1)(Declaration from DHS Assistant Field Officer
Director); Salazar-Martinez v. Lyons, No. VIC 25-0961 KG/KBM (filed Oct. 28, 2025)(Doc. 17-
1)(Declaration of DHS Assistant Field Officer Director). Here, the Federal Respondents offer no
similar evidence. 	Instead, they first submit an Order of Supervision at 1, filed in this Court
December 22, 2025 (Doc. 30-1). That document reflects Izbitski’s release under supervision and
confirms that the United States is unable to remove him following proceedings commenced on or
after April 1, 1997. See Order of Supervision at 1. The Order of Supervision does not show that
Izbitski is any closer to removal.
Second, the Federal Respondents assert, without evidentiary support, that, “[i]n the current
matter, the request for travel documents from Kazakhstan remains pending” and that, “[a]bsent a
denial of that request, there is no reason to believe that Petitioner’s removal is unlikely in the
reasonably foreseeable future.” 	Response at 8. The Federal Respondents do not indicate when
they made this second request. Moreover, the Federal Respondents offer no explanation for why
Kazakhstan will reverse its May 30, 2023, position that Izbitski “is not a citizen.” See Complaint
at 11. The Federal Respondents also do not identify any alternative country willing to accept him.
The question, then, is whether a renewed request, which the Federal Respondents do not give a
renewed date, for travel documents from Kazakhstan that already does not recognize Izbitski’s
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citizenship in kind rebuts Izbitski’s showing. The Court agrees with Magistrate Judge Rozzoni
that the Federal Respondents do not rebut Izbitski’s showing.
The Federal Respondents rely on Misirbekov v. Venegas, 796 F. Supp. 3d 436 (S.D. Tex.
2025)(Olvera, J.)(“Misirbekov”), arguing that the Court should defer to the United States’
judgment regarding the time required to effect removal. 	See Objections at 2. 	Misirbekov is
inapposite. In Misirbekov, the petitioner states that the United States is unlikely to remove him,
because he does not have citizenship or ties to any other county, and the United States’ efforts to
remove him are unsuccessful. See Misirbekov, 796 F. Supp. 3d at 439. The Honorable Rolando
Olvera, United States District Judge for the United States District Court for the Southern District
of Texas, holds that the United States rebutted the petitioner’s initial showing because it had
already contacted a third country,2 and that contact was likely to result in removal in the reasonably
foreseeable future. 	796 F. Supp. 3d at 439. 	Although Judge Olvera ultimately orders the
petitioner’s release on procedural due process grounds, he explained that: “While the waiting
period for the third country’s decision may seem long, this Court defers to Respondents’ expertise
in these matters and has no reason to believe that these efforts will be unsuccessful.” 796 F. Supp.
3d at 439. Here, by contrast, the Federal Respondents do not identify any third country willing to
accept Izbitski or active engagement with a country other than Kazakhstan. 	The only country
contacted -- Kazakhstan -- has rejected his removal, stating that Izbitski is not a citizen and refusing
acceptance for more than a decade. Unlike in Misirbekov, the Court has sound reason to conclude
that the Federal Respondents’ efforts will remain unsuccessful.
2 Although Judge Olvera does not specify which country the United States has contacted
for the petitioner’s removal, he makes clear that the United States has contacted a country other
than the petitioner’s country of origin to for removal purposes. See Misirbekov, 796 F. Supp. 3d
at 439.
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The Federal Respondents do not rebut Izbitski’s showing that there is no significant
likelihood of removal in the reasonably foreseeable future. Accordingly, the Court overrules the
Federal Respondents’ Objections and adopts Magistrate Judge Rozzoni’s conclusion.
IT IS ORDERED that: (i) the Federal Respondents’ Objections to the Proposed Findings
and Recommended Disposition, filed January 12, 2026 (Doc. 33), are overruled; (ii) Magistrate
Judge Rozzoni’s Proposed Findings and Recommended Disposition, filed December 29, 2025
(Doc. 32), is adopted; (iii) Petitioner Sergei Izbitski’s Petition for a Writ of Habeas Corpus Under
28 U.S.C. § 2241, filed August 14, 2025 (Doc. 1), is granted; and (iv) the Court orders immediate
release and restores the Petitioner’s Order of Supervision under the same terms as were in place
before June 9, 2025.
_________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Santiago E. Juarez
Santiago E. Juarez Attorney at Law
Albuquerque, New Mexico
- - and --
Eric M. Mark
Eric M. Mark, Attorney at Law, LLC
Newark, New Jersey
Attorneys for the Petitioner
Ryan Ellison
Acting United States Attorney
Allison Shokes
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
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Attorneys for the Federal Respondents Marissa A. Flores, Director of El Paso Field Office,
U.S. Immigration and Customs Enforcement, Kristi Noem, Secretary of the U.S. Department of
Homeland Security, & Pam Bondi, Attorney General of the United States, in their official
capacities.
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