Malik v. Dosanj et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
DEEPAK MALIK,
Petitioner,
vs.
SHIKHA DOSANJ, in her official capacity
as Warden of the Federal Detention Center,
Honolulu, Hawai‘i, et al.,
Respondents.
Civil No. 26-00060 MWJS-WRP
ORDER GRANTING PETITION FOR
WRIT OF HABEAS CORPUS
INTRODUCTION
Petitioner Deepak Malik is a citizen of India, but for humanitarian reasons, he
cannot be returned there. Because Malik has been ordered removed from the United
States, the government is looking for a third country that will accept him. But while the
government searches, Malik sits in immigration detention. That detention has now
lasted nearly ten months.
Against this backdrop, Malik petitions for a writ of habeas corpus, contending
that his immigration detention has become unlawfully prolonged. He notes that under
the Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001), detention
beyond six months to effectuate removal is presumptively unreasonable. And he
argues that the government has not overcome that presumption.
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The court agrees that, on the record presented here, Malik’s detention has
become impermissibly prolonged. It therefore GRANTS the petition.
BACKGROUND
Malik first entered the United States in 2019 seeking asylum, but his request was
denied; a final order of removal was entered in September 2019, and he was removed to
India in December 2019. Dkt. No. 13-2, at PageID.100. Malik represents that he was
imprisoned and tortured upon his return to India, and in March 2023, he fled India and
reentered the United States. Dkt. No. 1, at PageID.2.
Shortly after his reentry, Malik was arrested by the U.S. Border Patrol, and he
was served with notice of the government’s intent to reinstate the September 2019
removal order. Dkt. No. 13-4, at PageID.106. But Malik was not removed; instead, after
four days in custody, he was released. Id. For the next two years, Malik “resided in
California with his sponsor, formed deep community relationships, [and] cooperated
with authorities.” Dkt. No. 1, at PageID.4.
All of that ended on May 13, 2025, when “Immigration and Customs
Enforcement arrested” Malik “at his scheduled check-in appointment in Fresno,
California.” Dkt. No. 13-4, at PageID.106. He has been in immigration detention since
then—a time period that now amounts to nearly ten months.
On the same day as his May 2025 arrest and detention, Malik was once again
served with notice of the government’s intent to reinstate the September 2019 removal
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order. Id.; see also Dkt. No. 13-2. At that time, an immigration official—identified as an
“authorized deciding official”—signed a “Decision, Order, and Officer’s Certification”
that Malik was “subject to removal through reinstatement of the prior order.” Dkt. No.
13-2, at PageID.100. Although the government does not concede that this order
effectuated the reinstatement of the September 2019 removal order, it has not offered
any evidence of reinstatement having been delayed to any later date. Nor has it offered
any other document or order reflecting reinstatement at a later date.
Based on his stated fears of returning to India, Malik was “referred to U.S.
Citizenship and Immigration Services (“USCIS”) for a reasonable fear interview.” Dkt.
No. 13-4, at PageID.106. On June 12, 2025, USCIS concluded that Malik’s fear of
returning to India was not reasonable. Id. But Malik asked for an immigration judge to
review that decision, Dkt. No. 13-3, at PageID.102-03, and on October 1, 2025, an
immigration judge granted Malik the relief of “Withholding of Removal under
Immigration and Nationality Act § 241(b)(3).” Dkt. No. 1-2, at PageID.54. The
immigration judge’s decision was not appealed and became final on October 31, 2025.
Dkt. No. 13-4, at PageID.107. As a result, although Malik remains subject to a final
order of removal, he cannot be removed to India.
Malik was eventually transferred to the Federal Detention Center in Honolulu
(the “FDC”), and on February 9, 2026, Malik petitioned for a writ of habeas corpus. He
principally contends in his petition that his detention has become unlawfully prolonged
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under the Supreme Court’s decision in Zadvydas. The petition names as respondents
the Warden of the FDC, Shikha Dosanj, as well as three other federal officials. Dkt. No.
1, at PageID.1. After the petition was served, the parties agreed to allow the
government until February 24, 2026, to respond, Dkt. No. 11, and the government
timely filed its response, Dkt. No. 13. Malik timely filed a reply on March 3, 2026. Dkt.
No. 15. The court then heard arguments from counsel at a hearing held on March 4,
2026. Dkt. No. 16.
DISCUSSION
This court may exercise habeas jurisdiction to assess the legality of their
detention under “the Constitution or laws or treaties of the United States,” 28 U.S.C.
§ 2241(c)(3), and that jurisdiction is available to citizen and noncitizen alike. Malik is in
custody at the FDC and he argues that his prolonged detention violates federal law.
Given these circumstances, the court unquestionably has jurisdiction over his petition.
See Zadvydas, 533 U.S. at 688; see also Johnson v. Guzman Chavez, 594 U.S. 523, 533 n.4
(2021).
And so we turn to the merits of Malik’s petition. Because he has been arrested to
effectuate an order of removal, a 90-day “removal period” applies, under which Malik
may lawfully be detained. 8 U.S.C. §§ 1231(a)(1) and (a)(2). That period may be
extended beyond the 90 days under 8 U.S.C. § 1231(a)(6), and the language of the
provision places no express limit on the length of further extensions. But in Zadvydas,
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the Supreme Court rejected the notion that § 1231(a)(6) allows “indefinite detention.”
533 U.S. at 689. Instead, adopting a limiting construction, the Court held that
§ 1231(a)(6) allows detention of a noncitizen currently in the United States only for “a
period reasonably necessary to bring about that [noncitizen’s] removal from the United
States.” Id. It follows that “once removal is no longer reasonably foreseeable, continued
detention is no longer authorized by statute.” Id. at 699.
The Zadvydas Court also provided guidance on how to apply this limiting
construction of the statute. A detention period of six months after a removal order is to
be treated as “presumptively reasonable.” Id. at 701. On the other side of six months,
however, if the noncitizen “provides good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future,” then the government “must
respond with evidence sufficient to rebut that showing.” Id. The court must evaluate
each party’s burden flexibly and with sensitivity to the individualized circumstances of
a case. This means that, on the one hand, the noncitizen need not show “that
deportation will prove ‘impossible’”; that is, he does not have to establish “the absence
of any prospect of removal—no matter how unlikely or unforeseeable.” Id. at 702
(citation omitted). It also means that, on the other hand, the government might still
meet its burden of rebuttal even if there is no “‘extant or pending’ repatriation
agreement,” as the court must also consider “the likelihood of successful future
negotiations.” Id. (citation omitted).
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In this case, Malik contends that he has been in immigration detention for nearly
ten months, and so under Zadvydas, his continued detention is presumptively
unreasonable. The government counters that only about four of those months truly
count. In support of its reframing of the duration of Malik’s detention, the government
offers three separate arguments.
First, the government suggests—with support from the declaration of an
immigration officer—that Malik was not “ordered removed to the Republic of India”
until October 1, 2025, and that the order of removal became final on October 31, 2025.
Dkt. No. 13-4, at PageID.106-07. Based on that assertion, the government argues that
only four months have passed since the removal order was entered against Malik.
Although the court has no occasion to question the credibility of the officer who
submitted the declaration—it accepts that the officer provided his truthful
understanding of the record—the court nonetheless concludes that the record as a
whole does not support the governments’ argument. As a document attached to the
government’s response demonstrates, Malik was not given a chance to reopen the
September 2019 removal order; instead, he was “placed in ‘withholding-only’
proceedings.” Dkt. No. 13-3, at PageID.102. That is to say, Malik was only allowed to
argue that the order of removal should be withheld vis-à-vis India. Accord Guzman
Chavez, 594 U.S. at 531 (explaining that “withholding-only proceedings” are “limited to
a determination of whether the alien is eligible for withholding or deferral of removal,
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and as such, all parties are prohibited from raising or considering any other issues,
including but not limited to issues of admissibility, deportability, eligibility for waivers,
and eligibility for any other form of relief” (cleaned up)). And so when the immigration
judge issued his order on October 1, 2025, he only entered the relief of “Withholding of
Removal.” Dkt. No. 1-2, at PageID.54. There is no indication that the immigration
judge also entered an order of removal at that time.
Instead, the record supports the conclusion that a removal order was not entered
at the late date of October 2025, but rather was reinstated at an earlier date no later than
May 2025, around the time of Malik’s second arrest. In May 2025, an agent signed a
“Decision, Order, and Officer’s Certification” that Malik was “subject to removal
through reinstatement of the prior order.” Dkt. No. 13-2, at PageID.100. Although the
government does not concede that this decision and order effectuated the reinstatement
of the September 2019 removal order, it certainly appears to have done so. As the
Supreme Court explained in Guzman Chavez, “when an alien reenters the country after
having already been removed, the prior order of removal is reinstated from its original
date and is not subject to being reopened or reviewed.” 594 U.S. at 533 (cleaned up).
Accordingly, reinstatement of a removal order is a streamlined process, requiring only
that the government “(1) obtain the prior order related to the alien, (2) confirm that the
alien under consideration is the same alien who was previously removed or voluntarily
departed, and (3) confirm that the alien unlawfully reentered the United States.”
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Veltmann-Barragan v. Holder, 717 F.3d 1086, 1088 (9th Cir. 2013) (cleaned up). The officer
then must “provide the alien with written notice of his or her determination, and advise
the alien that he or she may make a written or oral statement contesting the
determination.” Id. (cleaned up). Those steps all appear to have been satisfied by May
2025—as reflected in the officer’s May 2025 decision and order—and the government
offers no reason to conclude otherwise. The best interpretation of the record, therefore,
is that Malik has been in custody for nearly ten months under a final order of removal
(since May 2025), rather than merely four (since late October 2025).
The government’s second argument for its preferred measurement of detention
time—which government counsel advanced at the hearing on the petition—is that if
May 2025 were treated as the starting point for the removal period for Zadvydas
purposes, it would unfairly prejudice the government because withholding of removal
was not resolved until October 2025, and the government would not have removed
Malik before the withholding-only proceedings were completed. The government
therefore urges the court to treat the September 2019 order as having been reinstated
only when the withholding of removal relief was granted in October 2025. That is a fair
argument, and the dissenting justices in Guzman Chavez made a variation of it, see 594
U.S. at 548-58 (Breyer, J., dissenting), but the Court’s majority reached a different
conclusion. In the view of the majority, “removal orders and withholding-only
proceedings address two distinct questions,” and because “they end in two separate
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orders,” the “finality of the order of removal does not depend in any way on the
outcome of the withholding-only proceedings.” Id. at 539. Indeed, the Court’s majority
observed that the order of removal logically precedes any withholding of removal: “it
is axiomatic that in order to withhold removal there must first be an order of removal
that can be withheld.” Id. at 540 (cleaned up; emphasis in original). Given the clear
holding and reasoning of the Court’s majority in Guzman Chavez, the court cannot
accept the government’s argument here.
Nor can the court accept the government’s third argument for its preferred
measure of time. In the government’s view, immigration officials could conceivably
have believed that Malik would simply be removed to India—and so they would not
truly have begun looking in earnest for a third country until the immigration judge
granted withholding of removal in October 2025. But the only reason Malik was
granted a reasonable fear hearing here is because, at the outset, he had expressed a fear
of returning to India. Accord Guzman Chavez, 594 U.S. at 531 (explaining that “because
an alien subject to a reinstated order of removal will not have any removal proceedings,
the process begins for him only if he expresses a fear to DHS of returning to the country
of removal”). That expressed fear proved strong enough to persuade an immigration
judge. And while it is possible that immigration authorities arrested and detained
Malik, were aware of the real possibility that he could not be returned to India, and
nonetheless chose to sit on their hands until they were definitively told as much, the
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government has offered no evidence to support the conclusion that that is in fact what
happened here. The court is not inclined to simply assume—without an evidentiary
basis—that immigration authorities actually held such a lackadaisical attitude toward
the duration of a noncitizen’s immigration detention.
Having rejected the government’s arguments for interpreting Malik’s removal-
related detention as amounting to no more than four months, the court must treat it as
instead being more than six months—indeed, as approaching ten months. With that
starting point, the duration of his detention is presumptively unreasonable, and Malik
need only offer a “good reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. He has met
this burden. There is no dispute that Malik has no connection to any third country
other than India. Nor is there any dispute that the government has yet to identify any
third country that would accept him. And Malik notes that even if the government
were able to identify a third country, it would take time to work through his procedural
rights—including his right to challenge the propriety of any such third country. The
government, to its credit, acknowledges as much. Dkt. No. 13-4, at PageID.107 (“DHS
fully understands that prior to any removal to an alternate country other than the
Republic of India, Petitioner must be provided notice, an opportunity to claim fear, and
if a fear is claimed, an opportunity to have that claim adjudicated.”). All of this is
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enough to show at least a good reason to believe that the government is not
significantly likely to remove him in the reasonably foreseeable future.
The government therefore bears the burden of rebutting the presumption that
Malik’s detention has become unreasonably prolonged. To do so, its evidence must
show a “significant likelihood of removal” to a third country “in the reasonably
foreseeable future.” Zadvydas, 533 U.S. at 701. The government has not made that
showing. It offers only an immigration officer’s assurance that immigration officials are
“actively working with the Department of State to identify a third country of removal
for Petitioner.” Dkt. No. 13-4, at PageID.107. But while it is possible that these efforts
were eventually bear fruit—indeed, it is even possible these efforts will bear fruit
soon—they do not show a “significant likelihood” of bearing fruit in the “reasonably
foreseeable future.” Zadvydas, 533 U.S. at 701. To be sure, the court must consider the
likelihood that these “future negotiations” will prove “successful.” Id. at 702. But here,
the government has not offered any evidence supporting the conclusion they will be, let
alone that they have a good chance of wrapping up reasonably soon.
In short, Malik has met his burden and the government has not offered sufficient
rebuttal evidence. It follows that Malik’s continued detention is unlawful under
§ 1231(a)(6) and the court must grant Malik’s habeas petition and order his immediate
release. But the court does so with two qualifications. First, in addition to arguing that
his continued detention is unlawful under § 1231(a)(6), Malik makes other arguments in
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support of his petition. See Dkt. No. 1, at PageID.35-37 (raising additional claims under
the Administrative Procedure Act and the Constitution). Because they are not
sufficiently fleshed out in his briefing, the court declines to resolve those other
arguments. Second, because the court agrees that there is no reason to apply this order
to any respondent other than the warden of the FDC—at the least, Malik has not offered
any argument to the contrary—it GRANTS Respondents’ motion “to strike and to
dismiss all respondents other than Shikha Dosanj from this case.” Dkt. No. 13, at
PageID.85 n.1.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is GRANTED.
The court ORDERS Respondent Shikha Dosanj, the Warden of the FDC, to immediately
release Malik from detention under the conditions in his preexisting order of
supervision. The parties are ORDERED to file a joint status report by March 10, 2026,
confirming that Malik has been released. And any fee petition must be filed within the
deadlines set by the Equal Access to Justice Act, 28 U.S.C. § 2412. See Daley v. Ceja, 158
F.4th 1152, 1162 (10th Cir. 2025) (explaining that the Equal Access to Justice Act
authorizes the award of attorney’s fees to petitioners who prevail against the
government in immigration habeas actions).
//
//
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IT IS SO ORDERED.
DATED: March 6, 2026, at Honolulu, Hawai‘i.
Civil No. 26-00060 MWJS-WRP; Deepak Malik v. Shikha Dosanj, et al.; ORDER
GRANTING PETITION FOR WRIT OF HABEAS CORPUS
/s/ Micah W.J. Smith
Micah W.J. Smith
United States District Judge
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