Qasemi

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

NAIM QASEMI,

Petitioner, Case # 25-CV-668-FPG

v.

DECISION & ORDER

STEPHEN KURZDORFER, et al.,

Respondents.

INTRODUCTION

Petitioner Naim Qasemi, a native and citizen of Afghanistan, has a final order of removal.

In advance of his removal, Petitioner was taken into immigration custody on May 1, 2024. In

October 2024, immigration authorities attempted Petitioner’s removal to Afghanistan, but that

effort failed when Petitioner caused a commotion at the Abu Dhabi airport prior to boarding. He

was returned to the Buffalo Federal Detention Facility. In January 2025, Petitioner filed a habeas

corpus petition under 28 U.S.C. § 2241, challenging his continued detention. That petition was

docketed as Qasemi v. Garland, No. 25-CV-6020. Applying the standard set forth in Zadvydas v.

Davis, 533 U.S. 678 (2001), this Court denied habeas relief in April 2025. No. 25-CV-6020, ECF

No. 14. The Court did so “without prejudice to renewal in the future.” Id. at 12. In May 2025,

the Court denied Petitioner’s motion for reconsideration. No. 25-CV-6020, ECF No. 18.

Petitioner did not appeal.

Less than three months later, Petitioner filed the present action. ECF No. 1. He alleges

that he is now entitled to habeas relief under Zadvydas. Additionally, he seeks relief on a new

theory—that he will not be afforded notice or an opportunity to be heard should immigration

authorities decide to remove him to a country other than Afghanistan. In response, Respondents

moved to dismiss the petition. ECF No. 11. The case is now fully briefed. For the reasons that

follow, the request for habeas relief is DENIED, and the petition is DISMISSED WITHOUT

PREJUDICE.

DISCUSSION

A description of the events underlying the first petition may be found in the Court’s April

9, 2025 Decision & Order. See Qasemi v. Garland, No. 25-CV-6020, 2025 WL 1064736, at *1-6

(W.D.N.Y. Apr. 9, 2025). Since the resolution of the first petition, Petitioner has remained in

immigration custody at the Buffalo Federal Detention Facility. He has been detained for over

seventeen months.

Respondents have submitted the declaration of Nicholas Truax, a deportation officer at the

facility. He explains that, since the resolution of the first petition, immigration authorities have

“continued to try to execute [Petitioner’s] order of removal.” ECF No. 11-2 at 2. They continue

to negotiate with Afghanistan to effectuate Petitioner’s removal, which had been hampered by

certain changes in entry requirements, see Qasemi, 2025 WL 1064736, at *5. And because federal

law permits immigration authorities to remove noncitizens to countries besides their countries of

origin, see generally 8 U.S.C. § 1231(b), immigration authorities have investigated removals to

other countries, including Mexico, Brazil, and the United Kingdom. See ECF No. 11-2 at 2. Truax

avers that “ICE is actively working with the Department of State and DHS” to effectuate Qasemi’s

removal, and intends to request an official “travel letter” from Afghanistan in the “very near

future.” Id. at 2-3. On the basis of this evidence, Respondents maintain that “[Petitioner’s]

removal is significantly likely to occur within the reasonably foreseeable future.” ECF No. 11-1

at 7.

Petitioner argues that relief pursuant to Zadvydas is now warranted. His primary

contention is that the tazkira in Respondents’ possession is not, in fact, his, such that “the

government did not have a proper travel document [when it attempted to remove Petitioner in

October 2024] and does not have one now” to obtain a travel letter from Afghanistan. ECF No. 1

at 11. In Petitioner’s view, this proves that his removal to Afghanistan is unlikely. See id. at 14-

15.

Separate from his challenge to continued detention, Petitioner seeks relief on the theory

that immigration authorities may remove him to a third country before giving him sufficient notice

and opportunity to present a claim under the Convention Against Torture (“CAT”). His concern

arises out of certain guidance recently promulgated by the Department of Homeland Security

(“DHS”), which permits, under certain circumstances, noncitizens to be removed to countries not

listed in their removal orders without notice. See D.V.D. v. D.H.S., 778 F. Supp. 3d 355, 367-68

(D. Mass. 2025). Petitioner alleges that he is a member of a certified class action brought against

DHS seeking to impose additional procedural protections for “noncitizens like [Petitioner] facing

summary removals to third countries where they have genuine CAT claims.” ECF No. 1 at 4.

Although a federal district court in Massachusetts initially granted a preliminary injunction

imposing additional procedural protections, see D.V.D., 778 F. Supp. 3d at 394, the Supreme Court

issued a stay pending appeal. See D.H.S. v. D.V.D., 145 S. Ct. 2153 (2025). While proceedings

in the D.V.D. litigation remain ongoing, Petitioner alleges that he is presently enjoying no

protection from summary removal to a third country. See ECF No. 1 at 15-16.

In his present petition, Petitioner raises four claims: (1) his continued detention is unlawful

under Zadvydas; (2) his continued detention is unconstitutional as a matter of due process; (3)

Respondents’ summary removal policy violates the Administrative Procedure Act; and (4)

Respondents’ summary removal policy is unconstitutional as a matter of due process. Id. at 19.

DISCUSSION

The Court addresses the detention and removal claims separately, as set forth below.

I. Detention Claims

Petitioner argues that his removal in the reasonably foreseeable future is unlikely and that,

as a result, he is entitled to release under Zadvydas and as a matter of due process. The Court is

not persuaded.

Under 8 U.S.C. § 1231(a)(1)(A), “aliens ordered removed shall be removed by the Attorney

General within [a] 90-day ‘removal period.’” Turkmen v. Ashcroft, 589 F.3d 542, 547 (2d Cir.

2009). “The government is required to detain an alien ordered removed until removal is effected,

at least for the removal period.” Id. (citing 8 U.S.C. § 1231(a)(2)). If removal is not effectuated

within the removal period, “the alien, pending removal, shall be subject to supervision under

regulations prescribed by the Attorney General.” 8 U.S.C. § 1231(a)(3).

In addition, there is a “special statute [that] authorizes further detention if the Government

fails to remove the alien” during the removal period. Zadvydas v. Davis, 533 U.S. 678, 682 (2001).

Specifically, 8 U.S.C. § 1231(a)(6) gives the government the discretion to detain certain categories

of aliens:

An alien ordered removed [1] who is inadmissible . . . [2] [or] removable [as a result

of violations of status requirements or entry conditions, violations of criminal law,

or reasons of security or foreign policy] or [3] who has been determined by the

Attorney General to be a risk to the community or unlikely to comply with the order

of removal, may be detained beyond the removal period and, if released, shall be

subject to [certain] terms of supervision . . . .

Id. (quoting 8 U.S.C. § 1231(a)(6)). By its plain language, the statute does not appear to impose

any limitation on the length of an alien’s detention. But in Zadvydas v. Davis, 533 U.S. 678 (2001),

the Supreme Court interpreted § 1231(a)(6) narrowly to avoid the possible constitutional problems

with indefinite detention. It read the statute to impose certain implicit limitations on the

government’s authority to detain aliens falling into those categories. The court held that an alien

could be detained “until it has been determined that there is no significant likelihood of removal

in the reasonably foreseeable future.” Id. at 701. This limitation is linked to the statute’s “basic

purpose,” which is to “assur[e] the alien’s presence at the moment of removal.” Id. at 699.

The Zadvydas court also provided a framework under which habeas courts are to review

claims challenging continued detention under § 1231(a)(6). The ultimate question for the habeas

court is “whether the detention in question exceeds a period reasonably necessary to secure

removal.” Id. The presumptively reasonable period of detention is six months. Id. at 701. Once

that period has passed, an alien bringing a claim bears the initial burden of providing “good reason

to believe that there is no significant likelihood of removal in the reasonably foreseeable future.”

Id. If the alien makes such a showing, “the [g]overnment must respond with evidence sufficient

to rebut that showing.” Id.

In analyzing the likelihood of removal, courts consider a variety of factors, including the

existence of a repatriation agreement with the target country, the target country’s prior record of

accepting removed aliens, and specific assurances from the target country regarding its willingness

to accept an alien. Callender v. Shanahan, 281 F. Supp. 3d 428, 436-37 (S.D.N.Y. 2017); see also

Nma v. Ridge, 286 F. Supp. 2d 469, 475 (E.D. Pa. 2003). Due deference is owed to the

government’s views on these matters as well as its estimation of the likelihood of removal. See

Zadvydas, 533 U.S. at 700 (stating that review “must take appropriate account of the greater

immigration-related expertise of the Executive Branch, of the serious administrative needs and

concerns inherent in the necessarily extensive . . . efforts to enforce this complex statute, and the

Nation’s need to ‘speak with one voice’ in immigration matters”).

What constitutes the “reasonably foreseeable future” will depend on the length of

detention. That is, “as the period of prior postremoval confinement grows, what counts as the

‘reasonably foreseeable future’ conversely would have to shrink.” Zadvydas, 533 U.S. at 701. In

effect, the parties’ respective burdens shift as the length of detention increases. See, e.g.,

Alexander v. Attorney General U.S., 495 F. App’x 274, 276-77 (3d Cir. 2012) (“Zadvydas . . .

suggests that an inversely proportional relationship is at play: the longer an alien is detained, the

less he must put forward to obtain relief.”); D’Alessandro v. Mukasey, 628 F. Supp. 2d 368, 406

(W.D.N.Y. 2009); Lawrikow v. Kollus, No. CV-08-1403, 2009 WL 2905549, at *12 (D. Ariz. July

27, 2009); Shefqet v. Ashcroft, No. 02 C 7737, 2003 WL 1964290, at *4 (N.D. Ill. Apr. 28, 2003).

Thus, as time passes, the mere existence of possible avenues for removal becomes insufficient to

justify further detention; some evidence of progress is required. See Elashi v. Sabol, 714 F. Supp.

2d 502, 506 (M.D. Pa. 2010); Lawrikow, 2009 WL 2905549, at *13; Hajbeh v. Loiselle, 490 F.

Supp. 2d 689, 693 (E.D. Va. 2007); Shefqet, 2003 WL 1964290, at *5. But see Gathiru v. Banieke,

No. 15-CV-4247, 2016 WL 8671833, at *6 (D. Minn. Sept. 9, 2016) (noting that the mere “lack

of visible progress” or the government’s inability to provide a concrete timeframe for removal

does not necessarily establish that removal is unlikely in the reasonably foreseeable future).

Having reviewed the record, the Court cannot conclude that Petitioner’s removal in the

reasonably foreseeable future is unlikely.

As an initial matter, the Court again finds that the total length of Petitioner’s detention does

not significantly weigh in his favor; as a result, the Court will not demand a significant showing

of progress by Respondents. While Petitioner has been detained for over seventeen months, much

of that period is not fairly attributable to Respondents. As the Court found in the prior action,

Petitioner’s own noncooperation caused his initial period of detention to be wasted. See Qasemi,

2025 WL 1064736, at *3-5; cf. Abimbola v. Ridge, 181 F. App’x 97, 99 (2d Cir. 2006) (summary

order) (“[A] self-inflicted wound should not establish grounds for [a noncitizen’s] Zadvydas

claim.”).

The Court reaffirms that conclusion notwithstanding Petitioner’s attempt to relitigate the

issue of his noncooperation at the Abu Dhabi airport. He proffers a psychological evaluation

performed by a licensed physician. See ECF No. 5. The evaluator diagnosed Petitioner with

PTSD; concluded that he showed no signs of malingering; suggested that his difficulties with recall

and memory may be attributable to his condition and history of trauma; and opined that continued

detention and/or removal to Afghanistan would be psychological damaging, if not life threatening.

See ECF No. 5 at 8-10. From this, Petitioner explains that his disruptive behavior at the airport

was “a normal trauma response to removal to a country where he fears torture.” ECF No. 1 at 10.

Petitioner also argues that any disruption he caused was irrelevant because immigration authorities

never had a proper travel document for him. See id. at 11. He alleges that the tazkira in the

government’s possession does not accurately state his name, his father’s name, or his date of birth.

See id.; ECF No. 1-3 (copy of certified translation).

None of this evidence undermines the Court’s prior finding regarding noncooperation. The

psychological evaluation provides a more nuanced picture of Petitioner’s disruptive behavior,

suggesting that it may have been caused, at least in part, by his mental-health conditions, rather

than an act of pure guile to avoid removal. Even so, it does not change the fact that such disruption

occurred and cannot be fairly attributed to immigration authorities.

More importantly, the additional evidence fails to resuscitate Petitioner’s credibility, which

the Court had previously found lacking. See Qasemi, 2025 WL 1064736, at *4-5.

In the prior action, Petitioner disavowed any connection to the tazkira at issue. Shortly

after the incident at the Abu Dhabi airport, Petitioner wrote in a grievance that the tazkira was

“forged” and “false.” No. 25-CV-6020, ECF No. 6 at 49. A few months later, in a sworn

declaration to this Court, Petitioner claimed that immigration authorities were “creating unlawful

travel documents,” referencing the tazkira at issue. Id. at 1-2. He further stated that he “do[es]

not have documentation to state that [he is] an Afghanistan citizen.” Id. at 2; see also No. 25-CV-

6020, ECF No. 9 at 1 (stating that he has no identification documents). Other evidence submitted

by Petitioner in connection with his first petition suggested that he came to the United States

“without any documents.” No. 25-CV-6020, ECF No. 9 at 11 (emphasis added). And in his

counseled declaration, Petitioner claimed that he became “emotionally upset” at the Abu Dhabi

airport in part because it was only then that he saw the tazkira and learned that the government did

not possess a valid document for him. See ECF No. 13-1 at 3-4.

What has now come to light is that Petitioner himself provided the tazkira at issue to

immigration authorities when he applied for asylum in 1989. In connection with that application,

Petitioner stated in a sworn affidavit that the tazkira at issue belongs to him, ECF No. 17 at 7, 63,

and he affirmatively identified the tazkira, by number, as his own, see id. at 11. And, contrary to

his later claim, he expressly stated that he came to the United States with the tazkira, writing that

it had been “issued by the Afghan government to me in 1981.” Id. at 7 (emphasis added). Given

this evidence, Respondents argue—quite reasonably—that “[f]or [Petitioner] to now challenge the

translation and authenticity of a document that he previously submitted in support of a request for

the privilege of asylum—despite attesting under oath previously not only that it was his but how

he came into possession of it—is extremely bold.” ECF No. 15 at 2.

In a responsive letter signed by Petitioner’s counsel—but not Petitioner himself—counsel

argues that none of the statements contained in the asylum application should be attributed to

Petitioner, because he was a minor and would have needed assistance to prepare the documents.

ECF No. 19 at 1-2. Counsel also notes that the tazkira was originally translated by a Farsi

interpreter, even though the original language was Pashto. See id. at 2. In counsel’s view, this

discrepancy “may have contributed to a misunderstanding about the nature of the document during

the initial asylum proceedings.” Id. Lacking from Petitioner’s counseled response is any sort of

explanation from Petitioner himself that would reconcile the wildly varying claims he has made

about the tazkira throughout these two actions.

Thus, far from bolstering Petitioner’s credibility, the present record reaffirms that

“Petitioner’s [position] involves several shifting, unlikely, and/or inconsistent elements, which,

taken together, wholly undermine his credibility.”1 Qasemi, 2025 WL 1064736, at *4. As a result,

the Court reaffirms that “Petitioner was uncooperative in his removal based on his refusal to board

his flight to Afghanistan in October 2024,” and that Petitioner “would have been able to fly to

Afghanistan [at that time] absent his own conduct.” Id. at *5. Given that Petitioner’s

noncooperation increased the length of his civil detention, immigration authorities are not properly

charged with the more “onerous” burden that they would otherwise bear under the circumstances.

Cf. Hassoun v. Sessions, No. 18-CV-586 2019 WL 78984, at *6 (W.D.N.Y. Jan. 2, 2019) (“At

1 No hearing is necessary to make these credibility determinations. See Qasemi, 2025 WL 1064736, at *3 n.1. Nor is

discovery, as Petitioner requests. See ECF No. 14 at 25-26. “Parties in a habeas proceeding are not entitled to

discovery as a matter of course.” Atikurraheman v. Garland, No. 24-CV-262, 2024 WL 2819242, at *5 (W.D. Wash.

May 10, 2024). Insofar as Petitioner’s request rests on its mere suspicions that Truax may not be truthful, the Court

does not find good cause for discovery.

fourteen months of detention, Petitioner’s removal need not necessarily be imminent, but it cannot

be speculative.”).

On the merits, the Court concludes that relief under Zadvydas is not yet warranted. Based

on the facts available, this is not a case where “removal seems a remote possibility at best.”

Zadvydas, 533 U.S. at 690. Put differently, the record does not establish that immigration

authorities are “either unwilling or, due to seemingly insurmountable barriers, incapable of

executing an alien’s removal.” Ahmed v. Brott, No. 14-CV-5000, 2015 WL 1542131, at *4 (D.

Minn. Mar. 17, 2015). Truax’s declaration shows that immigration authorities have been

investigating various locations for removal and have continued to negotiate with Afghanistan. See

generally ECF No. 11-2. Though Petitioner emphasizes the lack of visible progress towards his

removal, “the reasonableness of detentions pending deportation cannot be divorced from the reality

of the bureaucratic delays that almost always attend such removals,” Joseph K. v. Berg, No. 18-

CV-3125, 2019 WL 13254377, at *3 (D. Minn. Mar. 15, 2019). This is especially true here, as

immigration authorities are attempting to negotiate removal to a country with which the United

States has no formal diplomatic relations and which has altered its own travel requirements during

the course of those negotiations. Due deference is owed to immigration authorities as they navigate

these diplomatic barriers. See Zadvydas, 533 U.S. at 700. There is no evidence that political

conditions with Afghanistan “render removal virtually impossible,” nor are the delays in this case

so “extraordinarily long” that the proper inference is that a travel document “will likely never

issue.” Ahmed, 2015 WL 1542131, at *4.

Accordingly, as before, the Court remains “satisfied that Respondents have made the

necessary showing that there is a significant likelihood of removal in the reasonably foreseeable

future. [] Petitioner’s petition must be denied, without prejudice to renewal in the future.” Qasemi,

2025 WL 1064736, at *6.

II. Summary-Removal Claims

Petitioner alleges that he is a member of the certified class in the D.V.D. litigation. ECF

No. 1 § 13. Because the Supreme Court has stayed the preliminary injunction imposed by the

district court in that matter, Petitioner comes to this Court requesting similar relief. Compare

D.V.D., 778 F. Supp. 3d at 369-70, with ECF No. 1 at 7, 18-20. Although Petitioner is no longer

subject to preliminary injunctive relief in the D.V.D. case, he remains a class member whose

equitable claims are presently being litigated in that forum. It would be inappropriate for the Court

to inject itself into that ongoing litigation. See Sanchez v. Bondi, No. 25-CV-2287, 2025 WL

2550646, at *2 (D. Colo. Aug. 20, 2025) (collecting cases); VI. v. Baker, No. 25-1572, 2025 WL

1519449, at *2 (D. Md. May 27, 2025) (“It would be contrary to [] principles [of comity and

judicial economy] for [the court] to assert jurisdiction over virtually identical claims between

essentially the same parties.”). Therefore, Petitioner’s summary-removal claims are denied

without prejudice to seeking any desired relief through the D. VD. litigation.

CONCLUSION

For the reasons stated herein, the request for habeas relief is DENIED, and the petition

(ECF No. 1) is DISMISSED WITHOUT PREJUDICE, as stated herein. Respondents’ motion to

dismiss (ECF No. 11) is DENIED AS MOOT; and Petitioner’s request for discovery is DENIED.

The Clerk of Court shall enter judgment and close the case.

IT IS SO ORDERED. if

Dated: October 16, 2025

Rochester, New York H NK P. GE , JR.

United States District Judge

Western District of New York

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