Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
AMIR MARDANPOUR,
Petitioner,
v.
Case No. 2:26-cv-00550-MIS-LF
WARDEN, Otero County Processing Center;
MARY DE ANDA-YBARRA, Field Office
Director of Enforcement and Removal
Operations, El Paso Field Office,
Immigration and Customs Enforcement;
TODD LYONS, Acting Director of
Immigration and Customs Enforcement;
MARKWAYNE MULLIN, Secretary, U.S.
Department of Homeland Security; and
ATTORNEY GENERAL of the United
States,
Respondents.
ORDER GRANTING PETITION UNDER 28 U.S.C. § 2241 FOR A WRIT OF HABEAS
CORPUS
THIS MATTER is before the Court on Petitioner Amir Mardanpour’s Petition Under 28
U.S.C. § 2241 for a Writ of Habeas Corpus (“Petition”), ECF No. 1, filed February 23, 2026. The
federal Respondents filed a Response on March 11, 2026 (“Response”),1 ECF No. 6, to which
Petitioner filed a Reply on April 6, 2026 (“Reply”), ECF No. 17. Upon review of the Parties’
submissions, the record, and the relevant law, the Court will GRANT the Petition.
1 The Clerk’s Office served all Respondents with the Petition pursuant to this District’s Standing
Order Regarding Service of Process in Immigration Habeas Petitions filed Pursuant to 28 U.S.C. § 2241, Case 1:26-
mc-00004, ECF No. 3 (D.N.M. Jan. 28, 2026). ECF No. 3. However, as has become customary in these cases, the
Warden did not respond to the Petition.
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I. Background
Petitioner is an immigration detainee currently incarcerated at the Otero County Processing
Center in Chaparral, New Mexico. Pet. at 1. He is a citizen of Iran, where he was a university
professor and an architect. Id. at 5; see also License to Proceed to Engineering Profession, ECF
No. 1 at 27. He illegally entered the United States from Mexico on January 24, 2025. Form I-213
Record of Deportable/Inadmissible Alien at 2-3, ECF No. 6-1. The same day, a Border Patrol
Agent arrested Petitioner near the San Ysidro Port of Entry and delivered him to the custody of the
Department of Homeland Security. Id. at 2-4. Petitioner has been continuously detained since he
was arrested on January 24, 2025. Id.; see also Pet. at 3.
After his arrest, Petitioner filed an application for asylum. See Order of the Immigration
Judge at 1, ECF No. 6-2. On September 26, 2025, an Immigration Judge issued an Order finding
that Petitioner is inadmissible under Section 212(a)(6)(A)(i) of the Immigration and Nationality
Act (“INA”), denying Petitioner’s claim for asylum, denying Petitioner’s claim for withholding of
removal under INA § 241(b)(3), and granting Petitioner’s claim for withholding of removal under
the Convention Against Torture. Id. The Immigration Judge found that Petitioner established “it
is more likely than not that you will be tortured in IRAN[,]” Convention Against Torture
Assessment Notice for Alien(s) Whose Entry has Been Suspended and/or Restricted Pursuant to
INA §§ 212(f) and 212(a), ECF No. 1 at 16, apparently because Petitioner has converted to
Christianity, see Aff. of Behroz Hadji Abedi in Support for Amir Mardanpour, ECF No. 1 at 20
(indicating that “[i]ndividuals who convert from Islam to Christianity face serious persecution
from the government of the Islamic Republic of Iran, including harassment, imprisonment, torture,
and in some cases, the death penalty”). Petitioner appealed the Immigration Judge’s denial of
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asylum to the Board of Immigration Appeals. See Pet. at 6; Filing Receipt for Appeal or Motion,
ECF No. 1 at 19. That appeal remains pending. Pet. at 4.
On February 23, 2026, Petitioner, proceeding pro se, filed the instant Petition Under 28
U.S.C. § 2241 for a Writ of Habeas Corpus. ECF No. 1. On March 11, 2026, the federal
Respondents filed a Response. ECF No. 6. Thereafter, the Court issued an Order appointing
Petitioner counsel. ECF No. 7. On April 6, 2026, Petitioner, through counsel, filed a Reply. ECF
No. 17.
II. Discussion
Petitioner argues that his prolonged detention violates his due process rights under the Fifth
Amendment to the United States Constitution. ECF No. 1 at 3-7. Because his claim focuses on
the length of his detention, the Court construes it as a substantive due process claim. See Reply at
1 (clarifying that Petitioner is asserting a substantive due process claim). He argues that he has
been continuously detained for more than fourteen months, and his removal is not reasonably
imminent because (1) he has appealed the Immigration Judge’s Order and (2) the Immigration
Judge ordered withholding of removal under the Convention Against Torture. Pet. at 3-4. He
argues that under these circumstances, his detention has become excessive and is not reasonably
connected to any legitimate purpose. Id. at 4. He further argues that he is not a flight risk or a
danger to the community. Id. at 5. Petitioner states that he is willing to comply with any condition
of release, including electronic monitoring and regular reporting. Id. He asserts that he has a job
offer from a construction company, id., and provided a letter from the construction company
confirming the job offer, ECF No. 1 at 26. He also attached to his Petition a letter from a U.S.
citizen living in California who has agreed to sponsor Petitioner. ECF No. 1 at 20.
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Respondents argue that Petitioner is an “arriving alien” subject to mandatory detention
under 8 U.S.C. § 1225(b)(2).2 Resp. at 5-7. They argue that because Petitioner has appealed the
Immigration Judge’s Order, “resolution of his removal proceedings is undoubtedly forthcoming.”
Id. at 6. They argue that “Petitioner’s ample available process in his current removal proceedings
demonstrate no lack of Procedural Due Process, nor any deprivation of liberty ‘sufficiently
outrageous’ required to establish a Substantive Due Process claim.” Id. They argue that a
noncitizen seeking initial entry into the United States “has no entitlement to any legal rights,
constitutional or otherwise, other than those expressly provided by statute.” Id. at 7 (citing Dep’t
of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 107 (2020)). Finally, Respondents argue that if
the Court finds that 8 U.S.C. § 1226 governs Petitioner’s detention, the appropriate remedy would
be to order a bond hearing in the Immigration Court. Id. at 8-9.
In his Reply, Petitioner argues that even if Section 1225(b)(2) governs his detention, his
ongoing, indefinite detention violates his substantive due process rights. ECF No. 17 at 2-5 (citing,
e.g., Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1385-90 (10th Cir. 1981); Singh v. Noem,
No. CIV 25-1110 JB/KK, 2026 WL 146005, at *39 (D.N.M. Jan. 20, 2026)). He argues that the
2 Although Respondents argue that Petitioner is subject to mandatory detention under 8 U.S.C. §
1225(b)(2), they also assert that on March 10, 2026—the day before Respondents filed their Response—Petitioner
received a bond hearing. Resp. at 2 n.1. They assert: “According to information received from U.S. Immigration and
Customs Enforcement Office of the Principal Legal Advisor, the order from the hearing was not immediately available,
but it is believed that the Immigration Judge found he had no jurisdiction over the bond hearing and that both parties
waived appeal of the decision. Respondents will provide this order to the Court when it is received if the petition
remains pending.” Id. To date, Respondents have not filed any such order.
In his Reply, Petitioner argues that providing Petitioner a bond hearing is inconsistent with Respondents’
position that he is properly classified under Section 1225(b)(2) and therefore subject to mandatory detention. Reply
at 9 (“Respondents have failed to explain why, if § 1225(b)(2) applies to Petitioner and mandates detention without a
bond hearing, Petitioner received a bond hearing at all.”). Petitioner attached a Declaration to his Reply summarizing
the bond hearing. ECF No. 17-1. Petitioner argues that the hearing was not constitutionally adequate for several
reasons, Reply at 10, and does not moot his substantive due process claim, id. at 11.
Whether Petitioner received a bond hearing is immaterial to the Court’s disposition on Petitioner’s
substantive due process claim.
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U.S. cannot remove him to Iran and Respondents have provided no evidence of efforts to remove
him to a third country. Id. at 4. He argues that
[t]he punitive nature of Petitioner’s prolonged and indefinite detention is
underscored by the fact that, although release is routinely granted following an
award of withholding of removal under CAT,3 Respondents’ only apparent
justification for continued detention is that Petitioner has chosen to exercise his
right to appeal and pursue a meritorious asylum claim. But exercising the right to
appeal should not require surrendering one’s physical liberty as collateral. “[S]uch
imprisonment is impermissible punishment rather than detention pending
deportation.” See Rodriguez-Fernandez, 654 F.2d at 1387. Detaining Petitioner
solely because he seeks to exhaust his right to an appeal is not a legitimate
regulatory measure—it is punishment in violation of his substantive due process
rights.
Id. at 4-5 (footnote in original); see also id. at 6-9 (arguing that Petitioner’s detention is punitive
and no longer serves a removal purpose). Petitioner further argues that Thuraissigiam does not bar
his substantive due process claim, as that case dealt only with procedural rights. Id. at 5-6. He
argues that because his detention is punitive and no longer serves a removal purpose, the Court
should order his conditional release. Id. at 12.
“Substantive due process analysis must begin with a careful description of the asserted
right.” Reno v. Flores, 507 U.S. 292, 302 (1993) (internal quotation marks omitted). “Freedom
from imprisonment—from government custody, detention, or other forms of physical restraint—
3 The Court should take judicial notice that for many years, it has been the United
States Immigration and Custom Enforcement’s (“ICE”) policy to favor release of noncitizens
granted relief from removal, including grants of withholding of removal and CAT relief. See Austin
Rose, Continued Detention of Noncitizens Who Win Immigration Relief, AMICA: CENTER FOR
IMMIGRANT RIGHTS, https://amicacenter.org/app/uploads/2024/07/Continued-Detention-Brief-
Amica-Version.pdf (last visited Apr. 6, 2026) (“There have been four iterations of ICE’s policy since
2000, each time reiterating and elaborating on a policy favoring release of noncitizens granted relief
from removal, including those with final grants of withholding of removal and CAT relief.”);
NATIONAL IMMIGRATION PROJECT, https://nipnlg.org/sites/default/files/2024-
07/all_ice_policies_on_post-relief_release.pdf (showcasing such policies). This Court has
previously taken judicial notice of government material. See, e.g., Tenorio v. Gerlach, No. 18-0240
JB/CG, 2020 WL 1308648, at *1 (D.N.M. Mar. 19, 2020) (observing other cases where judicial
notice was appropriate for state and federal agency websites).
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lies at the heart of the liberty [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S.
678, 690 (2001). “In order to determine Petitioner’s liberty interest, however, the Court first
determines Petitioner’s legal status in the United States as well as the statutory and regulatory
framework that authorizes Petitioner’s detention.” Maldonado v. Macias, 150 F. Supp. 3d 788,
796 (W.D. Tex. 2015).
Because Petitioner does not argue that his detention is governed by 8 U.S.C. § 1226 (or
any other statute), the Court will assume without deciding that Respondents are correct that
Petitioner is an “arriving alien” whose detention is governed by Section 1225(b)(2). See St.
Charles v. Barr, 514 F. Supp. 3d 570, 576 (W.D.N.Y. 2021) (“[Noncitizens] who unlawfully enter
the United States and are detained within 14 days of entry and within 100 miles of the border are
treated the same as ‘arriving aliens’ under the current statutory and regulatory scheme.”) (citing
Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48879 (Aug. 11, 2004)).
According to the statute, arriving aliens are subject to expedited removal and are
not entitled to a hearing or appeal on this decision. 8 C.F.R. § 1235.3(b)(1)(i),
(b)(2)(ii). Generally, aliens subject to expedited removal are to be removed
immediately, but arriving aliens who express an intention to apply for asylum or a
fear of persecution are referred to an asylum officer for a credible fear interview. 8
U.S.C. § 1225(b)(1)(A)(ii), (b)(1)(B)(i). If the alien is found to have a “credible
fear of persecution,” the alien remains detained, subject to the parole provisions for
arriving aliens . . . , pending consideration of the asylum application. 8 U.S.C. §
1225(b)(1)(B)(ii) (“If the [asylum] officer determines at the time of the interview
that an alien has a credible fear of persecution . . . , the alien shall be detained for
further consideration of the application for asylum.”); 8 U.S.C. § 1182(d)(5)(A)
(explaining that the Attorney General may grant parole “for urgent humanitarian
reasons or significant public benefit”). Upon a positive credible fear determination,
an alien is placed in section 240 removal proceedings,4 rather than the expedited
removal proceedings described above, for a determination of the asylum claim. See
8 C.F.R. § 1235.6(a)(1)(ii); see also 8 C.F.R. § 1208.30(g)(2)(iv)(B) (explaining
that, when a negative credible fear finding by an asylum officer is reversed by an
4 “Section 240 removal proceedings” are removal proceedings conducted by an
immigration judge. See 8 U.S.C § 1229(a)(1) (“An immigration judge shall conduct proceedings for
deciding the inadmissibility or deportability of an alien.”). “Section 240” refers to § 240 of the
Immigration and Nationality Act, which is codified in 8 U.S.C. § 1229.
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immigration judge, the Government, “may commence removal proceedings under
section 240 of the Act, during which time the alien may file an application for
asylum and withholding of removal”); In Re X–K–, 23 I. & N. Dec. 731, 734 (BIA
2005) (“The requirement that aliens who had initially been screened for expedited
removal be placed in full section 240 removal proceedings after a final positive
credible fear determination is clearly stated in the regulations.”).
Pursuant to 8 U.S.C. § 1225(b)(2)(A), arriving aliens—including those with a
positive credible fear determination—are to be detained unless one of the limited
statutory exceptions applies, allowing the Government to release the alien on
parole. Rodriguez v. Robbins, 715 F.3d 1127, 1132 (9th Cir. 2013) (“Rodriguez I”)
(“Although Section 1225(b) generally mandates the detention of aliens seeking
admission pending their removal proceedings, individuals detained under the
statute may be eligible for discretionary parole from ICE custody.”); see also 8
U.S.C. § 1225(b)(2)(A) (“[I]n the case of an alien who is an applicant for admission,
if the examining immigration officer determines that an alien seeking admission is
not clearly and beyond a doubt entitled to be admitted, the alien shall be detained
for a proceeding under section 1229a of this title.”); 8 C.F.R. § 1235.3(c) (“Except
as otherwise provided in this chapter, any arriving alien who appears to the
inspecting officer to be inadmissible, and who is placed in removal proceedings
pursuant to section 240 of the Act shall be detained in accordance with section
235(b) of the Act.”); Clark, 543 U.S. at 373, 125 S.Ct. 716 (explaining that the
detention of an “alien arriving in the United States” is “subject to the Secretary’s
discretionary authority to parole him into the country”). The Attorney General can
temporarily parole an alien who is applying for admission to the United States “for
urgent humanitarian reasons or significant public benefit,” “to meet a medical
emergency[,] or . . . for a legitimate law enforcement objective.” 8 U.S.C. §
1182(d)(5)(A); 8 C.F.R. § 1235.3(b)(2)(iii). Whether the Government decides to
parole an arriving alien or keep him detained, the regulations state that an
immigration judge does not have authority to review the custody determination. 8
C.F.R. § 1003.19(h)(2)(i)(B) (“[A]n immigration judge may not redetermine
conditions of custody imposed by the Service with respect to the following classes
of aliens: . . . (B) Arriving aliens in removal proceedings, including aliens paroled
after arrival pursuant to section 212(d)(5) of the Act . . . .”); see also In Re X–K–,
23 I. & N. Dec. at 732 (“There is no question that Immigration Judges lack
[custody] jurisdiction over arriving aliens who have been placed in section 240
removal proceedings, because they are specifically listed at 8 C.F.R. §
1003.19(h)(2)(i)(B) as one of the excluded categories.”). Thus, unless an arriving
alien asylum applicant is granted parole, he will remain in detention pending the
grant or denial of his asylum application. See 8 U.S.C. § 1225(b)(2)(A).
Maldonado, 150 F. Supp. 3d at 797-98 (footnote in original).
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In Jennings v. Rodriguez, the Supreme Court held that, as a matter of statutory
interpretation, 8 U.S.C. §§ 1225(b) and 1226(c) “mandate detention of aliens throughout the
completion of applicable proceedings . . . .” 583 U.S. 281, 302, 305-06 (2018). In doing so, it
rejected the Ninth Circuit’s conclusion that Sections 1225(b) and 1226(c) impose an implicit six-
month limit on an alien’s detention, after which they are entitled to a bond hearing. See id. at 291-
92, 296-97. However, the Court explicitly declined to consider whether mandatory detention under
Sections 1225(b) and 1226(c) is subject to constitutional limitations. See id. at 312.
The Tenth Circuit has recognized that inadmissible aliens in physical custody in the United
States enjoy some procedural and substantive due process protections under the Fifth Amendment.
See Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 (10th Cir. 1981). In Rodriguez-
Fernandez, a Cuban national arrived in the United States and was detained pending an exclusion
hearing pursuant to 8 U.S.C. §§ 1182(a)(9), (20) and 1225(b). 654 F.2d at 1384. An immigration
official determined that, due to his criminal record in Cuba and lack of immigration documents,
Rodriguez-Fernandez was an excludable alien and ordered him deported to Cuba. Id. However,
Cuba would not accept him back, id., and the Attorney General ordered his continued detention at
a federal penitentiary, id. Thereafter, Rodriguez-Fernandez filed a petition for writ of habeas
corpus; the district court granted the petition and ordered his immediate release. Id. at 1384-85.
The respondents appealed and the Tenth Circuit affirmed. Id. at 1386. Although the court decided
the issue “by construing the applicable statutes to require Rodriguez-Fernandez’ release at this
time[,]” id. it addressed certain constitutional questions relevant to the instant case, see id. at 1386-
87. Specifically, the court opined that
an excluded alien in physical custody within the United States may not be
“punished” without being accorded the substantive and procedural due process
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guarantees of the Fifth Amendment.5 Surely Congress could not order the killing of
Rodriguez-Fernandez and others in his status on the ground that Cuba would not
take them back and this country does not want them. Even petitioner’s property
cannot be taken without just compensation, absent the existence of a state of war
between the United States and his country. Russian Volunteer Fleet v. United States,
282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473 (1931). Certainly imprisonment in a
federal prison of one who has been neither charged nor convicted of a criminal
offense is a deprivation of liberty in violation of the Fifth Amendment, except for
the fiction applied to these cases that detention is only a continuation of the
exclusion. This euphemistic fiction was created to accommodate the necessary
detention of excludable and deportable aliens while their cases are considered and
arrangements for expulsion are made. See Carlson v. Landon, 342 U.S. 524, 538,
72 S.Ct. 525, 533, 96 L.Ed. 547 (1952).6 Detention pending deportation seems
properly analogized to incarceration pending trial or other disposition of a criminal
charge, and is, thus, justifiable only as a necessary, temporary measure. Obviously
detention pending trial assumes a different status if there is to be no trial. If, in this
case, administrative officials ordered penitentiary confinement for life or a definite
term because Cuba would not accept petitioner, it seems certain the courts would
apply [Wong Wing v. United States, 163 U.S. 228 (1896)] and hold that such
imprisonment is impermissible punishment rather than detention pending
deportation. Logic compels the same result when imprisonment is for an indefinite
period, continued beyond reasonable efforts to expel the alien.
Federal circuit and district courts have long held deportable aliens in custody more
than a few months must be released because such detention has become
imprisonment. See Petition of Brooks, 5 F.2d 238, 239 (D.Mass.1925), which
declared,
“The right to arrest and hold or imprison an alien is nothing but a
necessary incident of the right to exclude or deport. There is no
power in this court or in any other tribunal in this country to hold
indefinitely any sane citizen or alien in imprisonment, except as a
punishment for crime. Slavery was abolished by the Thirteenth
Amendment. It is elementary that deportation or exclusion
proceedings are not punishment for crime . . . . He is entitled to be
deported, or to have his freedom. He has already been imprisoned,
5 We agree with United States v. Henry, 604 F.2d 908 (5th Cir. 1979), that no
distinction can be drawn in application of these rules between an alien, like Rodriguez-Fernandez,
who is regarded as standing at the border and one who is a resident in the United States. See also
United States v. Casimiro-Benitez, 533 F.2d 1121 (9th Cir.), cert. denied, 429 U.S. 926, 97 S.Ct.
329, 50 L.Ed.2d 295 (1976).
6 The Court pointed out, however, that this case did not involve unusual delay in
deportation. 342 U.S. at 546, 72 S.Ct. at 537.
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for no crime, about nine weeks, for which he is apparently without
remedy.”
In United States ex rel. Ross v. Wallis, 279 F. 401, 403-404 (2d Cir. 1922), the court
said,
“We now take cognizance of the fact that peace has been declared,
and regular communication with the British Isles re-established, and
we therefore express our opinion that unless this relator, or any other
person similarly situated, be actually deported within four months
after such alien has exhausted his legal remedies, any further or
other detention under pretense of awaiting opportunity for
deportation would amount, and will amount, to an unlawful
imprisonment, from which relief may be afforded by a new habeas
corpus.”
See also Wolck v. Weedin, 58 F.2d 928, 930-931 (9th Cir. 1932); Caranica v. Nagle,
28 F.2d 955, 957 (9th Cir.), cert. denied, 277 U.S. 589, 48 S.Ct. 437, 72 L.Ed. 1002
(1928); United States ex rel. Janavaris v. Nicolls, 47 F.Supp. 201 (D.Mass.1942).
Id. at 1387-88 (footnotes in original). Ultimately, the Tenth Circuit held, as a matter of statutory
construction,
that detention is permissible during proceedings to determine eligibility to enter
and, thereafter, during a reasonable period of negotiations for their return to the
country of origin or to the transporter that brought them here. After such a time,
upon application of the incarcerated alien willing to risk the possible alternatives to
continued detention, the alien would be entitled to release. This construction is
consistent with accepted international law principles that individuals are entitled to
be free of arbitrary imprisonment. It is also consistent with the statutory treatment
of deportable resident aliens and with the constitutional principles outlined above.
Id. at 1389-90.
Thus, although the Tenth Circuit’s analysis of the relevant substantive due process issues
in Rodriguez-Fernandez is arguably dicta (because the case was decided as a matter of statutory
construction), the Court finds it persuasive and adopts it. See Singh, 2026 WL 146005, at *39
(D.N.M. Jan. 20, 2026) (concluding that under Rodriguez-Fernandez a habeas petitioner “has
substantive due process protections that extend beyond § 1225’s protections”). The Court finds
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that Petitioner, an “arriving alien” subject to detention under 8 U.S.C. § 1225(b)(2), may not be
“punished” without being accorded the substantive and procedural due process guarantees of the
Fifth Amendment. Rodriguez-Fernandez, 654 F.2d at 1387.
“A restriction on liberty is punitive rather than regulatory if (a) the government intends to
impose punishment, or (b) the restriction is not rationally related to a legitimate nonpunitive
governmental purpose or is excessive in relation to that purpose.” Singh, 2026 WL 146005, at *39
(citing United States v. Salerno, 481 U.S. 739, 747 (1987); Kingsley v. Henderson, 576 U.S. 389,
398 (2015)). Here, the Court finds that Petitioner’s indefinite detention—which exceeds fourteen
months to date, with no reasonably foreseeable end in sight—is constitutionally excessive in
relation to the Government’s legitimate, nonpunitive purpose of facilitating removal. Petitioner’s
appeal to the BIA and, if unsuccessful there, to the Tenth Circuit Court of Appeals, could take
years. Moreover, the Immigration Judge ordered withholding of removal under the Convention
Against Torture, meaning Petitioner cannot be removed to Iran. And Respondents have presented
no evidence or argument that they are pursuing removal to a third country. Under these
circumstances, Petitioner’s indefinite, ongoing detention exceeding fourteen months is punitive
and therefore a violation of Petitioner’s Fifth Amendment substantive due process rights.
Rodriguez-Fernandez, 654 F.2d at 1387 (finding that indefinite detention, “continued beyond
reasonable efforts to expel the alien[,]” constitutes punishment in violation of the Fifth
Amendment).
The Court’s conclusion is supported by the Supreme Court’s decision in Zadvydas v. Davis,
533 U.S. 678 (2001), and the Sixth Circuit’s decision in Rosales-Garcia v. Holland, 322 F.3d 386
(6th Cir. 2003). In Zadvydas, the Court suggested that the indefinite detention of “aliens who were
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admitted to the United States but subsequently ordered removed” would be unconstitutional.7 533
U.S. at 682. It observed that civil detention is constitutionally permissible only “in certain special
and narrow non-punitive circumstances where a special justification . . . outweighs the individual’s
constitutionally protected interest in avoiding physical restraint.” Id. at 690 (citation modified). It
rejected the Government’s argument that detention was proper to (1) ensure the appearance of
aliens at future immigration proceedings and (2) prevent danger to the community. Id. at 690-92
(finding that the flight prevention justification was “weak or nonexistent where removal seems a
remote possibility at best,” and the dangerousness justification could not be supported by alien
status alone). Ultimately, “to avoid a serious constitutional threat[,]” id. at 699, the Court read an
“implicit limitation” on the length of an alien’s detention into 8 U.S.C. § 1231(a)(6), id. at 682,
689. Specifically, the Court determined that a six-month detention period is presumptively
reasonable. Id. at 701. “After this 6–month period, once the [noncitizen] 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. However, the
Court did not answer whether the same rule applies to “arriving aliens” subject to mandatory
detention under Section 1225(b)(2)(A). See id.
In Rosales-Garcia, the Sixth Circuit extended Zadvydas to excludable aliens8—
specifically, Cubans (Rosales and Carballo) who had been paroled into the United States and
7 Zadvydas involved two resident aliens who had been ordered removed from the U.S. for committing
deportable crimes. Petitioner Zadvydas was born “in a displaced persons camp in Germany in 1948” to Lithuanian
parents. 533 U.S. at 684. He was ordered deported to Germany in 1994, but Germany would not accept him because
he was not a German citizen, and Lithuania refused to accept him because he was not a Lithuanian citizen or permanent
resident. Id. Petitioner Ma was born in Cambodia in 1977. Id. at 685. He was ordered removed in the 1990s, but the
U.S. has no repatriation treaty with Cambodia. Id. at 685-86.
8 “Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), 110 Stat. 3009–546, aliens ineligible to enter the country were denominated ‘excludable’ and ordered
‘deported.’ 8 U.S.C. §§ 1182(a), 1251(a)(1)(A) (1994 ed.); see Landon v. Plasencia, 459 U.S. 21, 25–26, 103 S.Ct.
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subsequently ordered removed after committing crimes, but faced indefinite detention because
Cuba refused to allow them to return. 322 F.3d at 410-11. It found that the petitioners’ status as
excludable aliens did not alter Zadvydas’s analysis:
An excludable alien who cannot be removed to his country of origin presents no
greater risk of flight than the aliens who could not be removed to their countries of
origin in Zadvydas; nor does an excludable alien’s status relate any more to his
dangerousness than the removable status of the aliens in Zadvydas related to their
dangerousness.
Id. at 411. It further reasoned:
The Supreme Court in Zadvydas concluded that “for the reasons we have set forth,
we believe that an alien’s liberty interest is, at the least, strong enough to raise a
serious question as to whether, irrespective of the procedures used, the Constitution
permits detention that is indefinite and potentially permanent.” Zadvydas, 533 U.S.
at 696, 121 S.Ct. 2491. We draw the same conclusion with regard to excludable
aliens. If the Due Process Clause of the Fifth Amendment applies to Rosales and
Carballo, as we believe that it must, we do not see how we could conclude that the
indefinite and potentially permanent detention of Rosales and Carballo raises any
less serious constitutional concerns than the indefinite and potentially permanent
detention of the aliens in Zadvydas. We emphasize that we understand that this
situation, involving criminal aliens whose removal cannot be effected, is a difficult
one: we, too, find it unpalatable that inadmissible aliens who have previously
abused the privilege of immigration parole should be permitted additional
opportunities to live in this country simply because their country of origin will not
have them back. As the Zadvydas Court explained, though, “[t]he choice . . . is not
between imprisonment and the alien ‘living at large.’ It is between imprisonment
and supervision under release conditions that may not be violated.” Id. Moreover,
we find it not only unpalatable but also untenable to conclude that under the Due
Process Clause of the Fifth Amendment persons living in the United States—
whether by our choice or not—could be subjected to a life sentence in prison simply
because their country of origin will not have them back. A life sentence in prison,
in fact, seems to us no less impermissible than the government’s torture or summary
execution of these aliens.
Id. at 412-13 (footnote omitted).
321, 74 L.Ed.2d 21 (1982). Post–IIRIRA, such aliens are said to be ‘inadmissible’ and held to be ‘removable.’ 8 U.S.C.
§§ 1182(a), 1229a(e)(2) (2000 ed.).” Clark v. Martinez, 543 U.S. 371, 375 n.2 (2005).
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The Court finds that the same reasoning applies to “arriving aliens” subject to mandatory
detention under 8 U.S.C. § 1225(b)(2)(A). If the Fifth Amendment prohibits “indefinite and
potentially permanent detention” of “criminal aliens,” as in Rosales-Garcia, and resident aliens
with lengthy criminal histories, as in Zadvydas, it must prohibit indefinite and potentially
permanent detention of a noncriminal arriving alien—here, a university professor and architect.
See Maldonado, 150 F. Supp. 3d at 804-05 (concluding that detention under Section 1225(b) is
subject to a reasonable time limitation) (collecting cases).
Based on the foregoing, the Court finds that under the facts of this case, Petitioner’s
indefinite, ongoing detention (now exceeding fourteen months), with no reasonably foreseeable
end in sight, violates Petitioner’s substantive due process rights under the Fifth Amendment to the
U.S. Constitution. See Rodriguez-Fernandez, 654 F.2d at 1387-90; Rosales-Garcia, 322 F.3d at
411-13.
Upon finding a person is “in custody in violation of the Constitution or laws or treaties of
the United States[,]” 28 U.S.C. § 2241(c), a district court may grant a writ of habeas corpus and
“dispose of the matter as law and justice so require[,]” 28 U.S.C. §§ 2241(a), 2243. The “typical
remedy” for “unlawful executive detention” is release from custody. Munaf v. Geren, 553 U.S.
674, 693 (2008); see also Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The Court finds that
immediate conditional release is the appropriate remedy. See Boumediene v. Bush, 553 U.S. 723,
779 (2008) (“[T]he habeas court must have the power to order the conditional release of an
individual unlawfully detained—though release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted.”).
IV. Conclusion
Therefore, it is HEREBY ORDERED that:
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1. Petitioner Amir Mardanpour’s Petition Under 28 U.S.C. § 2241 for a Writ of
Habeas Corpus, ECF No. 1, is GRANTED;
2. Respondents are ORDERED to immediately release Petitioner from detention,
subject to reasonable conditions of release, such as electronic monitoring and/or
regular check-ins;
3. Respondents are ENJOINED from re-detaining Petitioner absent (1) evidence that
Petitioner has committed a crime or absconded in his administrative immigration
proceedings, or (2) a valid final order of removal to a third country that has agreed
to accept Petitioner, and concrete travel plans to deliver Petitioner to that third
country; and
4. The Court will separately enter Final Judgment in favor of Petitioner but retain
jurisdiction over this matter to ensure compliance with this Order.
………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE
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