# Khan

> District Court, W.D. Louisiana · June 22, 2026

URL: https://www.frixlaw.com/law-library/cases/11411824

## Case

- **Full name:** Hasan Zay Delawar Khan v. Mellissa Harper, et al.
- **Court:** District Court, W.D. Louisiana
- **Decided:** June 22, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

HASAN ZAY DELAWAR KHAN CIVIL ACTION NO. 1:26-CV-1279

SECTION P
VS.
JUDGE S. MAURICE HICKS, JR.

MELLISSA HARPER, ET AL. MAGISTRATE JUDGE DAVID J. AYO

REPORT AND RECOMMENDATION

Petitioner Hasan Zay Delawar Khan,1 a detainee in the custody of the Department of
Homeland Security (“DHS”) and the Bureau of Immigration and Customs Enforcement
(“ICE”) proceeding pro se, petitions the Court for a writ of habeas corpus under 28 U.S.C. §
2241.2 Respondents oppose the petition. [Doc. 7]. For reasons below, the Court should deny
the petition.
Background

Petitioner is a citizen of Afghanistan. He entered the United States on August 2,
2022, “as [an] ‘OAR’ (Operation Allies Refuge).” [Doc. 7, p. 1]. Petitioner was taken into
immigration custody on December 1, 2023. [Doc. 1, p. 4].
On March 6, 2024, an immigration judge ordered Petitioner removed from the United
States to Afghanistan. [Docs. 1, p. 4; 1-2, p. 8]. Petitioner did not appeal the removal order.
[Doc. 1, p. 4].

1 Petitioner’s “A-Number” is 243-167-772.

2 This matter has been referred to the undersigned for review, report, and recommendation under 28
U.S.C. § 636, and the standing orders of the Court.
Petitioner filed this proceeding on March 18, 2026. [Doc. 1, p. 8]. He claims that it
has been over two years since his removal order became final, ICE has failed to remove him,
and his detention has become infinite. Id. at 6. He “has complied with all” the Government’s
requirements to facilitate his removal to Afghanistan. [Doc. 1-1, p. 3].
Respondents opposed the petition on June 1, 2026. [Doc. 7]. Petitioner did not file a
reply.
Law and Analysis

Under 8 U.S.C. § 1231(a)(1)(A), “when an alien is ordered removed, the Attorney
General shall remove the alien from the United States within a period of 90 days (in this
section referred to as the ‘removal period’).” Under Section 1231(a)(6), “An alien ordered
removed who is inadmissible[,] . . . removable[,] . . . or 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 the
terms of supervision in paragraph (3).” In Zadvydas v. Davis,, 533 U.S. 678, 682, 121 S. Ct.
2491, 150 L. Ed. 2d 653 (2001), the Supreme Court construed Section 1231(a)(6) “to contain
an implicit ‘reasonable time’ limitation, the application of which is subject to federal-court
review.”
“[T]he Court construed § 1231(a)(6) to mean that an alien who has been ordered
removed may not be detained beyond ‘a period reasonably necessary to secure removal,’ 533
U.S., at 699, 121 S.Ct. 2491 and it further held that six months is a presumptively reasonable
period, id., at 701, 121 S. Ct. 2491. After that, the Court concluded, if the alien ‘provides good
reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future,’ the Government must either rebut that showing [with evidence] or
release the alien.” Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018) (quoting Zadvydas, 533
U.S. at 699).3 “[A]s 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.
If removal is not reasonably foreseeable, “the alien’s release may and should be conditioned
on any of the various forms of supervised release that are appropriate in the circumstances,
and the alien may no doubt be returned to custody upon a violation of those conditions.” Id.
at 700.
“[R]eview 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 INS efforts to enforce this complex statute, and the Nation’s need to
‘speak with one voice’ in immigration matters.” Id. at 700.
Here, Respondents argue: “Petitioner has frustrated removal efforts on multiple
occasions thereby tolling his removal period.” [Doc. 7, p. 4].
In Balogun v. I.N.S., 9 F.3d 347, 351 (5th Cir. 1993), the Fifth Circuit held “that if it
is shown that petitioner by his conduct has intentionally prevented the INS from effecting
his deportation, the six-month period should be equitably tolled until petitioner begins to
cooperate with the INS in effecting his deportation or his obstruction no longer prevents the
INS from bringing that about.”
Here, Petitioner’s removal order became final on April 5, 2024. On June 24, 2024,
however, Petitioner intentionally prevented his removal when he “refused to board [a] flight
and was returned to the Alexandria Staging Facility.” [Doc. 7, p. 2]. From May 14, 2025, to
June 13, 2025, Petitioner failed to complete “specific requirements” to assist in obtaining a
travel document. [Doc. 7-4, p. 1].

3 “The alien bears the initial burden of proof in showing that no such likelihood of removal exists.”
Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006).
“Another failure to comply notice dated November 24, 2025 notes that a Deportation Officer
attempted to serve documents upon Petitioner on both October 27, 2025 and November 24, 2025,
including a travel document application, but that Petitioner refused to receive the documents on both
occasions and ‘continues to refuse to cooperate with ICE.’” [Docs. 7, p. 2; 7-5, p. 1].
“Yet another failure to comply notice was served upon Petitioner on January 26, 2026,
again advising Petitioner that although he was advised on December 2, 2025 that he had 30
days to comply with his obligation to assist in obtaining a travel document, he had failed to
do so and was ‘acting to prevent [his] removal from the United States.’” [Docs. 7, p. 3; 7-6, p.
1].
“[O]n March 3, 2026, Petitioner was again served with a failure to comply notice, again
advising him he had failed to provide information to obtain a travel document and was
preventing his removal from the United States.” [Docs. 7, p. 3; 7-7, p. 1].
Petitioner was detained for 80 days (or 2 months, 19 days), before he first impeded his
removal (i.e., from April 5, 2024, when his removal order became final, to June 24, 2024,

when he refused to board a flight) and thereby tolled the six-month period. Petitioner then
continued to toll the six-month period by impeding his removal. Respondents demonstrate
that Petitioner failed to assist in his removal, at the latest, on February 26, 2026. [Doc. 7-7,
p. 1]. However, there is no indication in the record that Petitioner has begun to cooperate
with removal efforts. Consequently, the six-month period remains tolled, and Petitioner’s
petition is, effectively, premature. He has not been detained beyond the six-month
presumptively reasonable period in Zadvydas.
The remainder of the six-month period—two months and nineteen days already
elapsed untolled—is equitably tolled until Petitioner begins to cooperate with the
Government in effecting his deportation or until Petitioner’s non-cooperation no longer
prevents the Government from removing him. See Balogun, 9 F.3d at 351. If Petitioner (i)
begins to cooperate with efforts to remove him (or shows the date he began cooperating, if he
has already started cooperating), (ii) is the detained for approximately three months and
eleven days more after he begins cooperating, and (iii) can provide good reason to believe that
there is no significant likelihood of his removal in the reasonably foreseeable future, then
Petitioner may re-file his Zadvydas claim.
Conclusion

For the reasons above, IT IS RECOMMENDED that Petitioner Hasan Zay Delawar
Khan’s Zadvydas claim be DISMISSED WITHOUT PREJUDICE to Petitioner’s right to
re-file the claim if he has good reason to believe, in light of any changes in circumstance or
new evidence of his cooperation, that his removal is not significantly likely in the reasonably
foreseeable future.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties aggrieved by
this recommendation have fourteen (14) days from service of this Report and
Recommendation to file specific, written objections with the Clerk of Court. A party may
respond to another party’s objections within fourteen (14) days after being served with a
copy of any objections or response to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the
proposed legal conclusions reflected in this Report and Recommendation within
fourteen (14) days following the date of its service, or within the time frame
authorized by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking
either the factual findings or the legal conclusions accepted by the District Court,
except upon grounds of plain error.
In Chambers, Lafayette, Louisiana, this 22nd day of June, 2026.

J. Ayo
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11411824. Public record. Not legal advice.