Babakhani

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ALI BABAKHANI, )

)

Petitioner, )

)

v. ) Case No. CIV-26-705-SLP

)

CHRIS GANTT, et al., )

)

Respondents.1 )

REPORT AND RECOMMENDATION

Petitioner Ali Babakhani, an Iranian citizen proceeding pro se,2 filed a petition for

a writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”) and accompanying

memorandum of law in support (“Memorandum”) challenging his detention by the U.S.

Immigration and Customs Enforcement (“ICE”).3 (Docs. 1-2).4 Chief United States

District Judge Scott L. Palk referred the matter to the undersigned Magistrate Judge for

1 Chris Gantt replaced Scarlet Grant as Warden of Cimarron Correctional Facility.

Therefore, the Court substitutes him as a Respondent in this matter pursuant to Federal

Rule of Civil Procedure 25(d).

2 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard

than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot

serve as Petitioner’s advocate, creating arguments on his behalf. See Yang v. Archuleta,

525 F.3d 925, 927 n.1 (10th Cir. 2008).

3 Petitioner is housed at Cimarron Correctional Facility in Cushing, Oklahoma. (Doc. 1, at

1).

4 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF

pagination.

initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). (Doc. 4). In accordance

with the expedited briefing schedule, (Doc. 6), Respondents timely filed a Response to the

Petition.5 (Doc. 8). Petitioner timely filed a reply. (Doc. 9). For the reasons set forth

below, the undersigned recommends that Petitioner be GRANTED habeas relief and

released from custody immediately.

I. Factual Background and Procedural History

Petitioner is a citizen of Iran who entered the United States on or around October

12, 2023. (Doc. 8, at Ex. 1, at 1). On or about November 7, 2023, Petitioner was convicted

in the United States District Court for the Western District of Texas of Entry Without

Inspection and sentenced to five months’ imprisonment. (Id. at 2). On or about May 13,

2024, Petitioner was detained by ICE and placed into immigration proceedings. (Id.; see

Doc. 1, at 6). An immigration judge ordered Petitioner removed from the country on July

23, 2024. (Doc. 8, at Ex. 1, at 2; Doc. 1, at 6). Petitioner waived appeal of his removal

order at the removal hearing. (Doc. 8, at Ex. 2, at 4; Doc. 1, at 2). Petitioner has remained

in ICE custody from the date of his removal order until today. (Doc. 1, at 6).

Respondents allege that, during Petitioner’s detention, he received a custody review

where Respondents determined Petitioner should remain in ICE custody. (Doc. 8, at Ex.

1, at 2). On or about October 11, 2024, ICE’s Dallas Field Office submitted a travel

document request to ICE’s “Headquarters Removal International Operations Division,”

5 The response was not filed on behalf of Respondent Scarlet Grant, now-former Warden

of the Cimarron Correctional Facility, because she is not a federal official. (Doc. 8, at 1

n.1). The undersigned concludes that a separate response from Scarlet Grant – or Chris

Gantt, the current warden – is not necessary to resolve this matter.

and soon after also submitted a request for funds required by Iran to issue Petitioner’s travel

documents. (Id. at 2). On March 27, 2025, ICE sent a money order for the funds to the

Iranian Consulate, and on April 10, 2025, also sent the Iranian Consulate the travel

document request. (Id. at 3). Despite ICE’s “[c]ontinued outreach” to Iran during these

months, Iran has not issued Petitioner’s travel documents. (Id.) The most recent update

that Respondents provide regarding efforts toward Petitioner’s removal is “an Iranian

government interview with” Petitioner that was “scheduled for October 22, 2025,” but it is

unclear whether this interview occurred. (Id.)

On September 4, 2025, Petitioner filed a Motion to Reopen Proceedings and Stay

Removal with the immigration court; the court denied the motion on September 15, 2025.

(Id.) Petitioner has a pending appeal of this denial filed with the Board of Immigration

Appeals. (Id.)

II. Petitioner’s Claims and Respondents’ Responses

Petitioner raises three grounds for relief: (1) prolonged detention pursuant to

Zadvydas v. Davis and Demore v. Kim; (2) prolonged detention in violation of the Fifth

Amendment Due Process Clause; and (3) violation of the Immigration and Nationality Act

(“INA”) and related ICE regulations. (Doc. 1, at 6). For relief, Petitioner seeks immediate

release on an Order of Supervision (“OOS”). (Id. at 7).

Respondents argue that (1) Petitioner did not meet his burden under Zadvydas to

show that there is no significant likelihood of removal in the reasonably foreseeable future,

and even if he had, Respondents have rebutted that showing, (Doc. 8, at 7-10); (2)

Petitioner’s continued detention does not violate the Fifth Amendment, (id. at 10); and (3)

Petitioner’s INA and regulatory argument is baseless, (id. at 10-11).

III. Standard of Review

To obtain habeas corpus relief, Petitioner must show that he is “in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2241(c)(3). “[T]he primary federal habeas corpus statute, 28 U.S.C. § 2241, confers

jurisdiction upon the federal courts to hear . . . challenges to the lawfulness of immigration-

related detention.” Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see also Soberanes v.

Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (“Challenges to immigration detention are

properly brought directly through habeas.”).

IV. Legal Framework for the Detention or Release of Aliens Subject to a Final

Order of Removal

Title 8, Section 1231(a)(2)(A) of the United States Code mandates that “the

Attorney General shall detain” an alien who is ordered to be removed from the country.

However, the length of detention cannot be indefinite: in general, “when an alien is ordered

removed, the Attorney General shall remove the alien from the United States within a

period of 90 days.” § 1231(a)(1)(A). This is known as the “removal period,” and begins

at the latest of (1) “[t]he date the order of removal becomes administratively final,” (2) “the

date of the court’s final order” when a removal order is judicially reviewed, or (3) “the date

the alien is released from detention or confinement” if the alien is detained according to a

non-immigration process (e.g., imprisonment for a crime). Id.; see Zadvydas, 533 U.S. at

682 (“When an alien has been found to be unlawfully present in the United States and a

final order of removal has been entered, the Government ordinarily secures the alien’s

removal during a subsequent 90–day statutory ‘removal period,’ during which time the

alien normally is held in custody.”). Thus, Petitioner’s removal period began on July 23,

2024, when Petitioner waived appeal of his order of removal, and it ended ninety days later.

“If the alien does not leave or is not removed within the removal period, the alien,

pending removal, shall [ordinarily] be subject to supervision.” 8 U.S.C. § 1231(a)(3).

However, the Government retains discretionary authority to detain some aliens “beyond

the removal period.” § 1231(a)(6); see Zadvydas, 533 U.S. at 682 (“A special statute

authorizes further detention if the Government fails to remove the alien during those 90

days.”) (citing § 1231(a)(6)).

Section 1231(a)(6) does not specify how long relevant aliens may be detained

beyond the removal period. However, the Supreme Court in Zadvydas v. Davis held that

“[a] statute permitting indefinite detention of an alien would raise a serious constitutional

problem” because it would directly implicate the Fifth Amendment’s Due Process Clause.

Id. at 690. The Court consequently held that § 1231(a)(6), “read in light of the

Constitution’s demands, limits an alien’s post-removal-period detention to a period

reasonably necessary to bring about that alien’s removal from the United States. It does

not permit indefinite detention.” Id. at 689. The Court further specified that detention is

presumptively reasonable for only six months beyond the original 90-day removal period.

Id. at 701. “After this 6–month 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.” Id.

V. Petitioner Is Entitled to Habeas Relief Because His Continued Detention

Violates Zadvydas.

Petitioner is presently detained under 8 U.S.C. § 1231(a)(6) because his removal

period expired in 2024. Moreover, Petitioner’s uninterrupted detention dating to 2024 far

exceeds the six-month presumptively reasonable length of detention outlined in Zadvydas.

Thus, Petitioner may initiate his Zadvydas claim by “provid[ing] good reason to believe

that there is no significant likelihood of [his] removal in the reasonably foreseeable future.”

Zadvydas, 533 U.S. at 701.

Petitioner has met his burden. To begin, Petitioner explains that he has been in ICE

custody under a final order of removal since 2024. (Doc. 1, at 6). “[A]s the period of prior

postremoval confinement grows, what counts as the ‘reasonably foreseeable future’

conversely . . . shrink[s].” Zadvydas, 533 U.S. at 701. Petitioner’s seventeen-month-long

period of post-removal detention at the time he filed his Petition accordingly shrinks the

reasonably foreseeable future Respondents have to remove him.

Petitioner also highlights that “all attempts by . . . ICE to retrieve [his] travel

document from [Iran] remain futile.” (Doc. 1, at 7). In his Memorandum, he adds to this

claim, alleging “ICE [has] fail[ed] to take action to secure travel documents [from Iran] for

a prolonged period.” (Doc. 2, at 6). This Court has previously concluded that a petitioner

provided “good cause to believe that there is no significant likelihood of removal in the

reasonably foreseeable future” in part because the record showed “ICE [was] unable to

secure [the petitioner’s] travel documents” over the course of multiple years, and “[a]t best,

[] efforts” by ICE to remove the petitioner “ha[d] been sporadic” Khaliq v. Noem, No.

CIV-25-1154-SLP, --- F. Supp. 3d ----, 2026 WL 196631, at *8 (W.D. Okla. Jan. 26, 2026).

The Court should conclude the same here.

While Respondents correctly note that “a simple delay in receiving travel documents

is insufficient” to initiate a Zadvydas claim, this is a mischaracterization of Petitioner’s

position. (Doc. 8, at 8) (citing Head v. Keisler, No. CIV-07-402-F, 2007 WL 4208709, at

*4 (W.D. Okla. Nov. 26, 2007)). In Head, “all that Petitioner ha[d] shown as evidence that

there [wa]s no significant likelihood of his removal in the reasonably foreseeable future,

[wa]s a delay in the issuance of the necessary travel documents.” 2007 WL 4208709, at

*4. The petitioner in that case had also only been detained six months when he filed his

habeas petition. Id. Here, Petitioner has been detained for significantly longer, but more

importantly his allegations relating to “futile” document requests to Iran and sporadic

removal efforts by ICE are sufficient to advance his claim because they allege a lack of

“meaningful, ongoing efforts by [ICE] to remove Petitioner” in recent months. Khaliq,

2026 WL 1966312, at *8; see also Ahrach v. Baltazar, No. 25-cv-03195-PAB, 2025 WL

3227529, at *4 (D. Colo. Nov. 19, 2025) (petitioner met burden where “ICE made no

efforts to remove” petitioner for seven months). Indeed, Respondents do not seriously

dispute Petitioner’s claim that no recent efforts have been made to secure Petitioner’s travel

documents: Respondents’ attached declaration only vaguely states that “[c]ontinued

outreach was made to the Iranian government” while referencing a scheduled interview

that was meant to take place over seven months ago. (Doc. 8, at Ex. 1, at 3).

Respondents do not provide any evidence sufficient to rebut Petitioner’s showing.

As stated above, Respondents provide no evidence of efforts to secure Petitioner’s removal

in the seven months following Petitioner’s scheduled interview on October 22, 2025, or

that this interview actually occurred. (Id.) They also note that the travel document request

they sent to Iran on April 10, 2025, “remains pending.” (Id.) Respondents’ additional

argument that removal is significantly likely due to the number of removals to Iran in 2025

and 2026, (id.), is similarly unpersuasive because such figures do not “provide[] . . .

evidence of progress . . . made towards removal of Petitioner himself.” Pham v. Bondi, No.

CIV-25-1157-SLP, 2025 WL 3243870, at *2 (W.D. Okla. Nov. 20, 2025) (emphasis

added).

Finally, Respondents state that Petitioner’s removal to Iran remains significantly

likely in the reasonably foreseeable future despite “current events in Iran.” (Doc. 8, at Ex.

1, at 3). The undersigned is unconvinced. Courts around the country have expressed doubt

that removal to Iran remains significantly likely in the reasonably foreseeable future for

petitioners given the current armed conflict between the United States and Iran. See, e.g.,

Khodabakhsh v. English, No. 3:26cv161 DRL-SJF, 2026 WL 1560574, at *3 (N.D. Ind.

May 22, 2026) (granting relief under Zadvyadas and noting “[t]he court is also aware of

the recent military conflict between the United States and Iran and the present uncertainty

of a resolution, which reasonably impedes any removal to Iran for the foreseeable

future.”); Anjomshoa v. Oldham Cnty. Jail, No. 3:26-CV-020-CHB, 2026 WL 1034403, at

*4 (W.D. Ky. Apr. 16, 2026) (granting relief under Zadvydas and noting “the Court takes

judicial notice of the current miliary conflict between the United States and Iran that began

on February 28, 2026”); see also Bahadorani v. Bondi, No. 25-6177, Doc. 36, at 2-3 (10th

Cir. Mar. 25, 2026) (remanding Zadvyadas case to Western District of Oklahoma because

“armed conflict” between U.S. and Iran “potentially overtook the district court’s finding of

fact on significant likelihood of removal”). Respondents provide no reason to doubt these

courts’ analyses, and to the contrary concede that “[t]he status of removals [to Iran] is on

hold, due to current events in Iran.” (Doc. 8, at Ex. 1, at 3). Thus, the undersigned

concludes that Respondents have failed to rebut Petitioner’s Zadvydas claim and relief is

warranted.

VI. The Court Should Decline to Address Petitioner’s Remaining Claims.

Because the undersigned recommends habeas relief based on Petitioner’s Ground

One, the Court should decline to address Petitioner’s remaining arguments as to how his

detention is otherwise unlawful. See Sanchez v. Bondi, No. 1:25-cv-02287-CNS, 2025 WL

3484756, at *1 (D. Colo. Dec. 4, 2025) (declining to reach petitioner’s remaining claim

after granting relief on other claim); see also Ye v. Bondi, No. CIV-25-1230-D, 2025 WL

3485420, at *2 n.2 (W.D. Okla. Dec. 4, 2025) (acknowledging the Magistrate Judge did

not consider petitioner’s remaining arguments for habeas relief after recommending habeas

relief on one claim).

VII. Recommended Ruling and Notice of Right to Object

For the reasons discussed above, the undersigned recommends that the Petition for

a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1) be GRANTED to the extent it

requests habeas relief under 28 U.S.C. § 2241. The undersigned recommends that the

Court order Respondents to release Petitioner from custody immediately, subject to an

appropriate order of supervision. See Zadvydas, 533 U.S. at 696 (“The choice, however,

is not between imprisonment and the alien ‘living at large.’ It is between imprisonment and

supervision under release conditions that may not be violated.”). The undersigned further

recommends that the Court order Respondents to certify compliance by filing a status

report within three business days of the Court’s order.

The court advises the parties of their right to object to this Report and

Recommendation by June 12, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.

72(b)(2).° The Court further advises the parties that failure to make timely objection to

this report and recommendation waives their right to appellate review of both factual and

legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.

1991).

This Report and Recommendation disposes of all issues and terminates the referral

to the undersigned Magistrate Judge in the captioned matter.

ENTERED this 5th day of June, 2026.

AMANDA L. MAXFIELD i

UNITED STATES MAGISTRATE JUDGE

° Given the expedited nature of these proceedings, the undersigned has reduced the typical

objection time to this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2) advisory

committee’s note to 1983 addition (noting that rule establishing 14-day response time “does

not extend to habeas corpus petitions, which are covered by the specific rules relating to

proceedings under Sections 2254 and 2255 of Title 28.”); see also Whitmore v. Parker, 484

F. App’x 227, 231, 231 n.2 (10th Cir. 2012) (noting that “[t]he Rules Governing § 2254

Cases may be applied discretionarily to habeas petitions under § 2241” and that “while the

Federal Rules of Civil Procedure may be applied in habeas proceedings, they need not be

in every instance — particularly where strict application would undermine the habeas review

process”).

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