Davut v. Noem et al

1
3:25-cv-03740-CAB-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ABDULGANI DAVUT,
Petitioner,
v.
KRISTI NOEM, et al.,
Respondents.
Case No.: 3:25-cv-03740-CAB-DDL
ORDER:
(1) PARTIALLY GRANTING
PETITION FOR A WRIT OF
HABEAS CORPUS [Doc. No. 1]; and
(2) DENYING MOTION FOR
TEMPORARY RESTRAINING
ORDER [Doc. No. 2].
Pending before the Court is Petitioner Abdulgani Davut’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [Doc. No. 1 (“Petition”)]. Petitioner claims
that he was out of custody under an order of supervision until he was unlawfully detained
without adequate notice by Immigration and Customs Enforcement (“ICE”) on December
1, 2025. [Petition at 4–5.] He seeks immediate release and an order preventing ICE from
removing him to a third country without adequate notice and an opportunity to be heard.
[Id. at 12.] For the following reasons, the Court PARTIALLY GRANTS the request for
a writ of habeas corpus and ORDERS Respondents to immediately release Petitioner from
Case 3:25-cv-03740-CAB-DDL Document 9 Filed 01/26/26 PageID.<pageID> Page
1 of 7

2
3:25-cv-03740-CAB-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
custody under the same conditions of release that existed immediately prior to his
December 1, 2025 re-detention.
I. 	BACKGROUND
Petitioner is an Afghan national who crossed into the United States through a gap in
the fence near Tecate and was immediately stopped by a Border Patrol agent. [Petition at
4.] 	He was placed in custody, but after a positive credible fear finding received parole
valid for one year (until December 27, 2025) and was released on December 28, 2024 on
an order of supervision pending his removal proceedings. [Id.] 	Following three hearings
before an immigration judge, Petitioner was ordered removed on July 31, 2025 to
Afghanistan, or Turkey in the alternative, but received withholding of removal to
Afghanistan. 	[Id.; Doc. No. 5 at 3.] 	He remained out of custody on supervised release
until the events leading to this Petition.
On Sunday, November 30, 2025 at 11 P.M., Petitioner received a voicemail from
ICE. [Petition at 5.] Petitioner called ICE back the next day, Monday December 1, 2025,
and ICE told him to check in that day. [Id.] When Petitioner left his apartment to check
in, “three ICE officers pulled up in a vehicle and arrested him.” [Id.] According to ICE,
Enforcement 	and 	Removal 	Operations 	“was 	notified 	by 	the 	Intensive 	Supervision
Appearance Program (ISAP) . . . that Petitioner was not compliant with the program
requirements [of his supervised release].” 	[Doc. No. 5 at 3.] 	ICE therefore detained
Petitioner on December 1, 2025. [Id.] 	Petitioner argues that this reasoning is pretextual
and that Petitioner was detained following the shooting of two National Guard members in
Washington, D.C. on November 26, 2025 by an Afghan national. [Petition at 4–5.]
The 	Court 	ordered 	supplemental 	information 	from 	Respondents 	regarding
Petitioner’s alleged violation of his supervised release. 	[Doc. No. 7.] 	The supplement
states that “ERO records . . . state that, on December 1, 2025, ICE officers were notified
by [ISAP] that Petitioner was not being compliant with the program. 	There are no
additional details in ERO records concerning this event.” [Doc. No. 8-1 at ¶ 4.]
Case 3:25-cv-03740-CAB-DDL Document 9 Filed 01/26/26 PageID.<pageID> Page
2 of 7

3
3:25-cv-03740-CAB-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Respondents say that they re-detained Petitioner “to execute his final order of
removal” but that “ICE is not attempting to remove Petitioner to Turkey.” [Doc. No. 5 at
3.] Instead, ICE sent a travel document request to Enforcement and Removal International
(“RIO”) headquarters on December 4, 2025 and is “pending further response from RIO on
identifying a third country for removal.” [Id.] Respondents further state that once a third
country is identified for removal, ICE will notify Petitioner in writing of that country at
least 24 hours prior to removal and will refer him to an asylum officer to process a fear-
based claim if Petitioner claims a fear of removal to that country. [Id.]
II. 	LEGAL STANDARD
A writ of habeas corpus challenges the legality of a petitioner’s custody and seeks
to secure release from that illegal custody. Under 28 U.S.C. § 2241, a district court may
grant a writ of habeas corpus when the petitioner “is in custody in violation of the
Constitution or laws or treaties of the United States.” The petitioner bears the burden of
demonstrating that he is in illegal custody. See Martinez v. Noem, No. 25-CV-2740-BJC-
BJW, 2025 WL 3171738, at *2 (S.D. Cal. Nov. 13, 2025).
III. 	DISCUSSION
A. 	Jurisdiction
Respondents argue that “[t]o the extent Petitioner is challenging ICE’s decision to
detain him for the purpose of removal, such a challenge is precluded” by 8 U.S.C.
§ 1252(g). [Doc. No. 5 at 8.]
As the Supreme Court reasoned in Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471, 482 (1999), § 1252(g) “applies only to three discrete actions that the Attorney
General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or
execute removal orders.’” 	Id. (emphasis in original); see also Ibarra-Perez v. United
States, 154 F.4th 989, 991 (9th Cir. 2025) (“The Supreme Court has instructed that we
should read § 1252(g) narrowly.”). 	Accordingly, § 1252(g) does not bar the “many other
decisions or actions that may be part of the deportation process[,]” and “[i]t is implausible
Case 3:25-cv-03740-CAB-DDL Document 9 Filed 01/26/26 PageID.<pageID> Page
3 of 7

4
3:25-cv-03740-CAB-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that the mention of three discrete events along the road to deportation was a shorthand way
of referring to all claims arising from deportation proceedings.” Id.
While Petitioner challenges the lawfulness of his detention, he does not substantively
challenge ICE’s decision to execute his removal order to an appropriate country. 	[See
generally Petition.] Accordingly, the Court is satisfied of its jurisdiction and proceeds to
the merits.
B. 	Zadvydas Does Not Apply
Though the Petition makes no claim of prolonged detention under Zadvydas v.
Davis, 533 U.S. 678, 683 (2001), Respondents contend that Petitioner is lawfully detained
under Zadvydas’ holding that a six-month post-removal order detention is presumptively
reasonable. [Doc. No. 5 at 5.] At this point, Petitioner has been detained for less than two
months. While Respondents are correct that Petitioner is subject to a final order of removal,
the Court is not persuaded that Zadvydas is relevant because the Zadvydas petitioners were
detained both before and after their final orders of removal. They had not been released
pending their removal proceedings or after their final order of removal. There was no issue
in Zadvydas, therefore, of a violation of due process rights by re-detention after a period of
release from custody. 	Here, however, such concerns exist because Petitioner was out of
custody for the pendency of his removal proceedings and for months following his final
order of removal. 	See Nguyen v. Hyde, 788 F. Supp. 3d 144, 149 (D. Mass. 2025) (“This
case is not about ICE’s authority to detain in the first place upon an issuance of a final
order of removal as in Zadvydas. This case is about ICE’s authority to re-detain Mr.
Nguyen after he was issued a final order of removal, detained, and subsequently released
on an OSUP.” (emphasis in original)); J.L.R.P. v. Wofford, No. 1:25-CV-01464-KES-SKO
(HC), 2025 WL 3190589, at *4 (E.D. Cal. Nov. 14, 2025) (“Numerous courts have found
that when ICE revokes the release of a noncitizen who has been ordered removed to
effectuate that noncitizen’s removal, ‘it is [ICE’s] burden to show a significant likelihood
that the alien may be removed.’”)
Case 3:25-cv-03740-CAB-DDL Document 9 Filed 01/26/26 PageID.<pageID> Page
4 of 7

5
3:25-cv-03740-CAB-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Court therefore holds that Respondents cannot rely on Zadvydas to remedy the
violation of ICE’s regulations governing re-detention discussed below.
C. 	ICE Violated 8 C.F.R. § 241.13(i)
Once ICE releases a noncitizen on an order of supervision, ICE’s ability to re-detain
that noncitizen is governed by its own regulations. Relevant here, 8 C.F.R. § 241.13(i)(1)
provides for revoking an order of release if the noncitizen “violates any of the conditions
of release” and § 241.13(i)(2) provides for revoking an order of release when “on account
of changed circumstances, the Service determines that there is a significant likelihood that
the alien may be removed in the reasonably foreseeable future.” Moreover, § 241.13(i)(3)
provides that “[u]pon revocation, the alien will be notified of the reasons for revocation of
his or her release.” The Court finds that Respondents have not shown that ICE complied
with any of these requirements.
First, 	despite 	being 	given 	an 	additional 	opportunity 	to 	provide 	evidence 	of
Petitioner’s alleged violation, Respondents provided only a conclusory statement that a
violation occurred. 	Second, Respondents have not demonstrated that there was a
significant likelihood of Petitioner’s removal in the reasonably foreseeable future, either
on December 1, 2025 or today. Petitioner cannot be removed to Afghanistan, ICE is not
seeking to remove him to Turkey, and no third country has been identified. As this Court
and many of our sister courts have concluded, this is insufficient evidence of changed
circumstances under 8 C.F.R. § 241.13(i)(2). See, e.g., Sun v. Noem, No. 3:25-CV-02433-
CAB-MMP, 2025 WL 2800037, at *2 (S.D. Cal. Sept. 30, 2025) (finding insufficient
government’s evidence that they “are preparing to apply for the necessary documents to
remove petitioner” to his home country); Hoac v. Becerra, No. 2:25-CV-01740-DC-JDP,
2025 WL 1993771, at *4 (E.D. Cal. July 16, 2025) (“The fact that Respondents intend to
complete a travel document request for Petitioner does not make it significantly likely he
will be removed in the foreseeable future.”); Nguyen v. Hyde, No. 25-CV-11470-MJJ, 2025
WL 1725791, at *4 (D. Mass. June 20, 2025) (finding insufficient the government’s
assertions that they are processing a travel document because they “have not identified
Case 3:25-cv-03740-CAB-DDL Document 9 Filed 01/26/26 PageID.<pageID> Page
5 of 7

6
3:25-cv-03740-CAB-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
what concrete steps ICE has taken to process” the document nor whether the request was
submitted to the removal country); 	Roble, No. 25-CV-3196 (LMP/LIB), 2025 WL
2443453, at *4 (finding insufficient the government’s assertion that ICE “requested third
country removal assistance from [Enforcement and Removal Operations] HQ.” (alteration
in original)).
Because the Government plainly fails to meet its own regulation by determining that,
“on account of changed circumstances . . . there is a significant likelihood that [Petitioner]
may be removed in the reasonably foreseeable future,” the Court finds that ICE was not
entitled to revoke Petitioner’s Order of Supervision under 8 C.F.R. § 241.13(i)(2).
As to Respondents’ argument that Petitioner has not established prejudice from
ICE’s violation of its regulations, the Court holds that such a showing is not needed here
because the violated regulation safeguards a fundamental liberty interest. See Martinez v.
Noem, No. 25-CV-2740-BJC-BJW, 2025 WL 3171738, at *4 (S.D. Cal. Nov. 13, 2025)
(“Because these provisions safeguard core constitutional rights, their violation inherently
implicates due process concerns and is actionable even without a showing of prejudice.”);
Zhang Haixiang v. Dep’t of Homeland Sec., No. ED 25-CV-1890-JLS(E), 2025 WL
3683126, at *3 (C.D. Cal. Dec. 2, 2025), report and recommendation adopted sub nom.
Zhang v. Dep’t of Homeland Sec., No. ED 25-CV-1890-JLS(E), 2025 WL 3679184 (C.D.
Cal. Dec. 18, 2025). 	And the deprivation of this liberty interest simply cannot be fully
remedied after the fact. 	See Zinermon v. Burch, 494 U.S. 113, 127 (1990) (“[T]he
[Supreme] Court usually has held that the Constitution requires some kind of a hearing
before the State deprives a person of liberty or property.” (emphasis in original)).
D. 	Third Country Removal
Petitioner also requests that the Court enjoin Respondents from removing him to a
third country without certain notice requirements and other protections. [Petition at
10–12.] 	But there is no evidence before the Court that if a third country is identified,
Respondents will contravene Ninth Circuit precedent requiring Petitioner to be notified
that he may apply for appropriate relief, including withholding of removal to that third
Case 3:25-cv-03740-CAB-DDL Document 9 Filed 01/26/26 PageID.<pageID> Page
6 of 7

7
3:25-cv-03740-CAB-DDL
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
country. See, e.g., Andriasian v. I.N.S., 180 F.3d 1033, 1041 (9th Cir. 1999) (“Failing to
notify individuals who are subject to deportation that they have the right to apply for
asylum in the United States and for withholding of deportation to the country to which they
will be deported violates both INS regulations and the constitutional right to due process.”).
Indeed, Respondents have represented that “Petitioner will be notified in writing of the
third country at least 24 hours prior to removal.” [Doc. No. 5 at 3.] It is thus premature
on the current record for this Court to order injunctive relief related to Petitioner’s potential
future removal to an unidentified third country. The Court DENIES Petitioner’s request
for relief on this issue.
IV. 	CONCLUSION
Based on the foregoing, Petitioner’s request for a writ of habeas corpus is
PARTIALLY GRANTED and the Court ORDERS Respondents to immediately release
Petitioner from custody under the same conditions of release that existed immediately prior
to his December 1, 2025 re-detention. The Court DENIES the motion for a TRO as moot.
The Clerk of Court shall close the case.
It is SO ORDERED.
Dated: January 26, 2026
Case 3:25-cv-03740-CAB-DDL Document 9 Filed 01/26/26 PageID.<pageID> Page
7 of 7