Hanifi

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

MOHAMMAD NASRAT HANIFI, )

)

Petitioner, )

)

v. ) Case No. CIV-26-1229-D

)

FRED FIGUEROA, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Mohammad Nasrat Hanifi, an Afghan citizen proceeding pro se, filed a

petition for a writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”) challenging his

detention by the U.S. Immigration and Customs Enforcement (“ICE”).1 (Doc. 1).2 United

States District Judge Timothy D. DeGiusti referred the matter to the undersigned

Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C).

(Doc. 3). In accordance with the expedited briefing schedule, (Doc. 5), Respondents timely

filed a Response to the Petition. (Doc. 8). Petitioner timely filed a reply. (Doc. 10).

Petitioner also filed a supplement on July 27, 2026, containing documents he received on

July 22, 2026. (Doc. 11). For the reasons set forth below, the undersigned recommends

that Petitioner be GRANTED habeas relief and released from custody immediately.

1 Petitioner is housed at Diamondback Correctional Facility in Watonga, Oklahoma. (Doc.

1, at 2).

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

pagination.

I. Factual Background and Procedural History

Petitioner is a citizen of Afghanistan who entered the United States without

inspection on January 9, 2025. (Doc. 8, at Ex. 1). Petitioner was detained by ICE that day

and has remained in detention since then. (Id. at Ex. 3, at 2). Prior to the issuance of a

Notice to Appear, an asylum officer found that Petitioner had demonstrated a credible fear

of persecution. (Id. at Ex. 1, at 1). The Notice to Appear was issued on February 10, 2025,

initiating removal proceedings. (Id.) On May 5, 2025, Petitioner filed an Application for

Asylum and for Withholding of Removal. (Doc. 8, at 2).

Petitioner told ICE that he had refugee status in Greece, (id. at Ex. 3, at 3), but he

lost his documents, including his Greece Residency Card, in the Panama jungle. (Doc. 10,

at 1). Petitioner lived in Greece for three years, and his status in Greece was set to expire

in 2026. (Doc. 8, at Ex. 6, at 4). Petitioner does not know whether his status in Greece

will be renewed. (Id.)

On July 29, 2025, an immigration judge denied Petitioner’s asylum claim, denied

withholding and deferral of removal under the Convention Against Torture (“CAT”), but

granted withholding of removal to Afghanistan under INA § 241(b)(3) (i.e., 8 U.S.C. §

1231(b)(3)). (Doc. 8, at Ex. 5, at 1). Thus, the immigration judge ordered Petitioner

removed to Afghanistan, or, in the alternative, removed to Greece as a country in which he

was “firmly resettled.” (Id. at 3). ICE takes the position that, on August 28, 2025,

Petitioner’s “removal order became final due to not filing a timely appeal with the Board

of Immigration Appeals.” (Doc. 11, at Ex. 1, at 2). ICE states that on October 29, 2025,

it began attempting to remove Petitioner to a third country. (Doc. 8, at Ex. 3, at 3). ICE

states “[t]hat effort remains ongoing and is pending,” but has provided no further updates

of any progress. (Id.)

On December 5, 2025, Petitioner filed an appeal with the Board of Immigration

Appeals (“BIA”). (Doc. 11, at Ex. 1, at 2). On March 13, 2026, the BIA dismissed

Petitioner’s appeal on the merits. (Doc. 8, at Ex. 6, at 2). The BIA agreed with the

immigration judge that that Petitioner had been firmly resettled in Greece, and therefore,

was ineligible for asylum. (Id. at 6).

Petitioner asserts that he has not been asked to file a travel document form, that

Respondents have not found a third country to send him to, that Respondents have not

asked Greece to accept him, that Greece has not agreed to accept him, and that institutional

barriers prevent his removal. (Doc. 1, at 13-14). Petitioner states that he cooperated with

Respondents in effectuating his removal by handing over what documents he did have and

telling them how he lost his documents at his ICE interview on April 4, 2026. (Doc. 1, at

Ex. 8, at 2; Doc. 10, at 1).

Petitioner filed the instant Petition on May 19, 2026, (Doc. 1, at 9), when he had

been in immigration detention for 495 days, or more than 16 months, since his January 9,

2025, encounter with ICE. As of the date of this Report and Recommendation, Petitioner

has been in immigration detention for 19 months and 26 days, and he remains detained at

the Diamondback Correctional Facility. See ICE Online Detainee Locator System

https://locator.ice.gov/odls/#/results (last accessed Sept. 4, 2026).

Respondents allege the following facts related to removal efforts:

in Fiscal Year (FY) 24, ICE accomplished 114 total removals of Afghanistan

citizens to third countries; in FY 25, ICE accomplished 554 total removals

of Afghanistan citizens to third countries; and as of June 15 of FY 26, ICE

has accomplished 273 total removals of Afghanistan citizens to third

countries.

(Doc. 8, at Ex. 3, at 3-4). Respondents also allege that Petitioner “failed to cooperate with

ICE ERO and provide information in order to effectuate his removal to Greece.” (Id.)

II. Petitioner’s Claims and Respondents’ Responses

Petitioner raises five grounds for relief:

(1) Violation of due process under Zadvydas v. Davis because there is no

significant likelihood of Petitioner’s removal to Afghanistan or any

other country in the reasonably foreseeable future. (Doc. 1, at 7, 14).

(2) Respondent’s removal policy “violates Constitutional and Statutory

requirements.” (Id. at 14).

(3) Violation of due process because Respondents have failed to remove

Petitioner in a reasonable time. (Id.)

(4) Continued detention beyond a reasonable time is arbitrary when

Petitioner has withholding of removal. (Id.)

(5) Violation of United States treaty obligations. (Id.)

Petitioner asks the Court to:

• order his immediate release; and

• enjoin Respondents from re-detaining him without notice and an

opportunity to be heard.

(Id. at 8).

In opposition, Respondents argue that (1) Petitioner’s detention is within the

presumptively reasonable period under Zadvydas, (Doc. 8, at 7); (2) Petitioner did not meet

his burden to show there is no significant likelihood of removal in the reasonably

foreseeable future, (id. at 8); (3) if Petitioner’s burden were met, Respondents have rebutted

it, (id. at 10); and (4) Petitioner’s failure to establish a Zadvydas claim precludes success

on his due process claim. (Id. at 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

When a non-citizen has been ordered removed from the country, 8 U.S.C. § 1231(a)

provides a 90-day period for the government to accomplish removal, during which

detention is mandatory. This is known as the “removal period,” and it 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.”).

A removal order typically becomes administratively final “upon the earlier of”: “a

determination by the [BIA] affirming such order” or “the expiration of the period in which

the alien is permitted to seek review of such order by the [BIA].” 8 U.S.C. §

1101(a)(47)(B). Thus, Petitioner’s removal period began on August 28, 2025, when his

“removal order became final due to not filing a timely appeal with the [BIA],” (Doc. 11, at

Ex. 1, at 2), and it ended ninety days later.3

“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

3 Contrary to ICE’s position in the Decision to Continue Detention on July 16, 2026, (Doc.

11, at Ex. 1, at 2), Respondents state in their Response that the order of removal became

administratively final on March 13, 2026, “the date on which the BIA dismissed

Petitioner’s appeal.” (Doc. 8, at 7). However, an order of removal becomes

administratively final upon the earlier of a determination by the BIA or the expiration of

the time to appeal to the BIA. 8 U.S.C. § 1101(a)(47)(B). Thus, as ICE’s own records

reflect, Petitioner’s order of removal became final on August 28, 2025, the day his time to

appeal to the BIA expired. 8 CFR § 1003.38(b)(2) (appeals from immigration judge’s

adjudication of asylum claim shall be filed within 30 days of the decision). Accordingly,

Respondent’s argument that Petitioner’s Zadvydas claim is premature has no merit.

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. Id. at 701. See also Morales-Fernandez v.

INS, 418 F.3d 1116, 1123 (10th Cir. 2005) (reiterating “the reasonable period of post-

removal detention is presumptively six months”). “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.” Zadvydas, 533 U.S. at 701.

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

Violates Zadvydas.

A. Petitioner Has Met His Initial Burden.

To obtain habeas relief, a petitioner has the initial burden (1) to show his post-

removal-order detention has surpassed six months or to rebut the presumption of

reasonableness if such detention is less than six months, and (2) to “provide[] good reason

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

future,” Zadvydas, 533 U.S. at 701; see also Soberanes, 388 F.3d at 1311 (“If removal is

not reasonably foreseeable, the court should hold continued detention unreasonable.”)

(citation modified). If the petitioner meets his initial burden, “the Government must

respond with evidence sufficient to rebut that showing.” Zadvydas, 533 U.S. at 701.

Petitioner’s relevant detention has surpassed six months. Petitioner has been in

post-removal detention since August 28, 2025. Petitioner filed this Petition on May 19,

2026. Thus, Petitioner had been in post-removal detention for nearly nine months at the

time it was filed. Petitioner has now been in post-removal detention for over twelve

months.

Petitioner has likewise provided good reason to believe that his removal is not

significantly likely in the reasonably foreseeable future. Notably, Petitioner is not required

under Zadvydas to “show the absence of any prospect of removal—no matter how unlikely

or unforeseeable,” 533 U.S. at 702, only that that he has “good reason to believe that there

is no significant likelihood of removal in the reasonably foreseeable future,” id. at 701.

“To meet the burden of establishing this, Petitioner must demonstrate the existence of

either institutional barriers to repatriation or obstacles particular to his removal.” Dusabe

v. Jones, No. CIV-24-464-SLP, 2024 WL 5465749, at *3 (W.D. Okla. Aug. 27,

2024), report and recommendation adopted, 2025 WL 486679 (W.D. Okla. Feb. 13, 2025).

Petitioner cannot be removed to Afghanistan because an immigration judge granted

him withholding of removal to Afghanistan under 8 U.S.C. § 1231(b)(3). “Courts routinely

find that non-citizens under such circumstances have met their initial burden under

Zadvydas.” Elshourbagy v. Bondi, 817 F. Supp. 3d 1102, 1109 (W.D. Wash. 2025)

(collecting cases); see also Nadarajah v. Gonzales, 443 F.3d 1069, 1081 (9th Cir. 2006)

(noting that a grant of withholding of removal under CAT “is a powerful indication of the

improbability of his foreseeable removal, by any objective measure”).

Further, Petitioner identifies several obstacles to his removal to Greece. Petitioner

lost his Greece Residency Card, (Doc. 10, at 1), and he states that Respondents have not

asked him to file a travel document form. (Doc. 1, at 13). Petitioner states that Greece has

neither agreed to accept him nor been asked to accept him. (Id. at 14). Petitioner points

out that, twelve months into his post-removal detention, ICE still “does not show clear

evidence of progress to deport Petitioner to a third Country so far.” (Doc. 10, at 2).

These allegations are sufficient for Petitioner to meet his initial burden under

Zadvydas. See Khaliq v. Noem, 828 F. Supp. 3d 1260, 1269 (W.D. Okla. 2026) (Petitioner

met burden when “ICE claim[ed] it [was] going to pursue travel documents to Palestine,

[but] no communications with that country [had] yet been initiated”); Vishal v. Chestnut,

811 F. Supp. 3d 1179, 1184 (E.D. Cal. 2025) (Petitioner met burden when he alleged that

respondents “failed to provide notice of any progress that has been made over the past

seven months to effectuate [Petitioner’s] removal following his award of withholding of

removal”); Gomez v. Mattos, No. 25-CV-00975-GMN-BNW, 2025 WL 3101994, at *5 (D.

Nev. Nov. 6, 2025) (finding petitioner met his initial burden because he “has identified a

barrier preventing him from being repatriated to [his home country], has demonstrated that

he is not a citizen of any other country, and that ICE has not identified a third country that

will accept him”); Trejo v. Warden of ERO El Paso E. Mont., No. EP-25-CV-401-KC,

2025 WL 2992187, at *5 (W.D. Tex. Oct. 24, 2025) (finding petitioner met his burden by

demonstrating “that he is not a citizen of any other country, and that ICE has not identified

a third country that will accept him”).

Respondents state that “Petitioner offers very little beyond conclusory statements in

support of his argument.” (Doc. 8, at 8). But it is not the Petitioner’s fault if there are no

ICE activities or documents to reference or file because ICE has not made any meaningful

progress. Petitioner states that ICE has not made significant progress, and Respondents do

not rebut this with any assertions or evidence of what ICE has done. When the Supervisory

Detention and Deportation Officer on the case cannot identify any specific actions ICE has

taken on the case, (Doc. 8, at Ex. 3), then Petitioner’s allegations of no progress stand on

their own.

This District has often granted habeas relief under Zadvydas even when the

government had done more to effectuate removal. Nfumu v. Grant, Case No. CIV-25-

1574-J, 2026 WL 637618, at *2 (W.D. Okla. March 6, 2026) (granting relief when ICE

had contacted Ghana); Ahmadi v. Diamondback Corr. Facility, Case No. CIV-26-1276-R,

2026 WL 2204432, at *5 (W.D. Okla. July 16, 2026), report and recommendation adopted

by 2026 WL 2209207 (July 30, 2026) (granting relief when ICE had requested a

transportation letter from Afghanistan); Khaliq, 828 F. Supp. 3d at 1269 (granting relief

when ICE had received a response from the Jordanian Embassy). The Court should not

decide to withhold relief because the government has done less.

Petitioner has been detained in the post-removal period for twelve months without

any apparent progress. On these facts, Petitioner has met his initial burden (1) to show his

post-removal-order detention has surpassed six months, and (2) to “provide[] good reason

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

future.”

B. Respondents Have Not Met Their Burden.

Having concluded Petitioner established “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.” Zadvydas, 533 U.S. at 701.

Respondents have not met their burden.

As an initial matter, Respondents do not even allege any particular facts that would

cause Petitioner’s removal to be significantly likely in the reasonably foreseeable future.

(See Doc. 8, at Ex. 3, at 3-4). Rather, they provide statistics about how many Afghanistani

citizens have been removed in 2024, 2025, and through June 15, 2026. (Id.) This

information is insufficient to rebut Petitioner’s showing 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). See also Cao, 2026 WL 637617, at *5 (“[A] general indication that removals to

Vietnam were likely because removals were occurring more frequently in 2025 than in

recent years . . . does not satisfy the . . . determination of a significant likelihood that the

alien may be removed.”) (internal quotation marks omitted).

Respondents also declare that Petitioner “failed to cooperate with ICE ERO and

provide information in order to effectuate his removal to Greece.” (Doc. 8, at Ex. 3, at 3).

But Respondents do not say what Petitioner failed to do. (Id.) Respondents have not

provided a date on which any request for information was made, nor have Respondents

identified what information was requested. (Id.) In contrast, Petitioner describes how he

told Respondents that he lost his Greece Residency Card and his phone in the Panama

jungle. (Doc. 10, at 1). Petitioner also provides his interview with ICE where he told ICE

he handed over everything he had and had lost everything else. (Doc. 1, at Ex. 8, at 2).

Respondents’ statement that “[s]ince October 29, 2025, ICE ERO has been actively

working with the ICE ERO Removal and International Operations Division to effectuate

Hanifi’s removal to a third country” is vague and likewise has not progressed. (Doc. 8, at

Ex. 3, at 3). These facts are wholly insufficient to rebut Petitioner’s showing that there is

good reason to believe that there is no significant likelihood of his removal in the

reasonably foreseeable future. See Thabata v. Blanche, No. CIV-26-531-J, 2026 WL

1495209, at *2 (W.D. Okla. May 28, 2026) (“Such prolonged silence [of almost six months

since a travel document request was made] reinforces that removal is not significantly

likely in the reasonably foreseeable future.”).

Thus, the undersigned concludes that Respondents have failed to rebut Petitioner’s

Zadvydas claim, and habeas relief is warranted in the form of immediate release from

custody. See e.g., Babakhani v. Gantt, No. CIV-26-705-SLP, 2026 WL 1822995, at *5

(W.D. Okla. June 24, 2026); Bui v. Bondi, No. CIV-26-91-J, 2026 WL 788947, at *6 (W.D.

Okla. Mar. 20, 2026); Gholestani v. United States Dist. Ct., No. CIV-25-1392-R, 2026 WL

596649, at *2 (W.D. Okla. Mar. 3, 2026).

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

Because the undersigned recommends that the Court grant the Petition under

Zadvydas, the Court should decline to address his remaining claims as to how his detention

is unlawful. See 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);

Hamidi v. Bondi, No. CIV-25-1205-G, 2025 WL 3452454, at *2 n.2 (W.D. Okla. Dec. 1,

2025) (same).

Furthermore, the undersigned recommends that the Court find Petitioner’s claim for

injunctive relief not ripe for adjudication – his request for an order restraining Respondents

from re-detaining him unless certain procedural conditions are met. (Doc. 1, at 8). The

Tenth Circuit has explained that

[t]he ripeness doctrine involves both constitutional requirements and

prudential concerns. The purpose of the ripeness doctrine is to prevent the

premature adjudication of abstract claims. Constitutional ripeness is based

on Article III’s requirement that federal courts hear only “cases” and

“controversies.” Because federal courts cannot give advisory opinions, the

matter must come to the court in “clean-cut concrete form.”

Even when [a matter] satisfies Article III’s “case or controversy”

requirement, [a court] may still decline to review it under the prudential

ripeness doctrine. Application of this doctrine turns on two factors: (1) the

fitness of the issue for judicial review, and (2) the hardship to the parties from

withholding review. As for whether the issue is fit for judicial review, we

focus on whether the determination of the merits turns upon strictly legal

issues or requires facts that may not yet be sufficiently developed. Thus, “[a]

claim is not ripe for adjudication if it rests upon contingent future events that

may not occur as anticipated, or indeed may not occur at all.” Texas v. United

States, 523 U.S. 296, 300 (1998).

United States v. Cabral, 926 F.3d 687, 693 (10th Cir. 2019) (citation modified). See also

Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003) (“Ripeness is a

justiciability doctrine designed “to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements over administrative

policies, and also to protect the agencies from judicial interference until an administrative

decision has been formalized and its effects felt in a concrete way by the challenging

parties.”). Petitioner’s concerns about how his future re-detention or removal may occur

“rest[] upon contingent future events that may not occur as anticipated, or indeed may not

occur at all,” Texas, 523 U.S.at 300, and granting any relief to him would require the Court

to give an advisory opinion. The Court should decline to do so.

VII. Recommended Ruling and Notice of Right to Object

For the reasons discussed above, the undersigned recommends that the Court find

Petitioner is currently detained in violation of Zadvydas and GRANT the Petition for a

Writ of Habeas Corpus Under 28 U.S.C. § 2241, (Doc. 1), 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

OOS. 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. Finally, the Court should DENY Petitioner’s Motion to Expedite,

(Doc. 12), as moot.

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

Recommendation by September 11, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ.

P. 72(b)(2).4 Failure to make timely objection to this Report and Recommendation waives

4 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

the 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 4th day of September, 2026.

AMANDA L. MAXFIELD i

UNITED STATES MAGISTRATE JUDGE

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”). Additionally, Petitioner’s Motion to Expedite, (Doc. 12), is now moot.

15