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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Iqbal Mohammad Muktadir,

Petitioner, 

v. 

Michael J. Donahue, 

Respondent.

No. CV-15-02009-PHX-ROS (BSB)

REPORT AND 

RECOMMENDATION

 Petitioner Iqbal Mohammad Muktadir (Petitioner) has filed a Petition for Writ of 

Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Petitioner argues that his 

continued detention pending his removal to Bangladesh is unlawful under Zadvydas v. 

Davis, 533 U.S. 678 (2001), and he seeks release from custody pending his removal. 

Petitioner has also filed a supplement in support of his Petition. (Doc. 9.) Respondent 

has filed responses to the Petition and supplement arguing that Petitioner is not entitled to 

relief. (Docs. 10, 12.) Petitioner has not filed a reply and the time to do so has passed. 

As set forth below, the Court recommends that the Petition be denied. 

I. Factual and Procedural Background 

A. Immigration Proceedings 

 Petitioner is a native and citizen of Bangladesh. (Doc. 10, Ex. A.) On October 23, 

2013, Petitioner applied for admission to the United States at the Port of Entry at 

Nogales, Arizona, requesting asylum. (Id.) That same day, the Department of Homeland 

Security (DHS) issued Petitioner a Notice to Appear, charging him with violating Section 

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212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA). (Doc. 10, Ex. B.) 

Petitioner subsequently conceded the charge. (Doc. 10 at 2.) 

 On July 29, 2014, following a bond hearing, an Immigration Judge (IJ) found that 

Petitioner was a flight risk, denied his request for a change in custody status, and ordered 

that he be held without bond. (Doc. 10, Exs. C and D.) Petitioner appealed the IJ’s 

custody decision to the Board of Immigration Appeals (BIA). (Id., Ex. D). The BIA 

found that the IJ correctly determined that Petitioner was a flight risk and that no amount 

of bond would assure his appearance at future hearings. (Id.) Therefore, on December 2, 

2014, the BIA dismissed the appeal. (Id.) 

 On March 25, 2015, Petitioner filed a Request for Prosecutorial Discretion with 

the Immigrations and Customs Enforcement (ICE), Enforcement and Removal 

Operations (ERO). (Doc. 10, Ex. E.) The ERO reviewed Petitioner’s case for 

consideration to be released from detention, and issued a Notice of Denial of Request for 

Prosecutorial Discretion, which Petitioner received on April 21, 2015. (Id.) 

 On March 30, 2015, the IJ denied Petitioner’s applications for asylum, 

withholding of removal, and for protection under Article III of the United Nations 

Convention against Torture, and ordered Petitioner removed from the United States to 

Bangladesh. (Doc. 10, Ex. F.) Petitioner waived appeal of the IJ’s decision. (Id.) 

 On April 1, 2015, the ERO in Eloy, Arizona contacted the Consulate of 

Bangladesh to obtain travel documents for Petitioner and was informed that Petitioner 

would be required to complete a passport application and to provide copies of any 

identification documents. (Doc. 10, Ex. G at ¶ 4.) That same day, the ERO interviewed 

Petitioner to obtain information to complete forms for travel documents and helped him 

complete the required passport application. (Id. at ¶ 5.) On April 3, 2015, the ERO 

mailed the completed travel document application to the Consulate of Bangladesh. (Id. at 

¶ 6.) From April 10, 2015 to October 2, 2015, the ERO requested updates from the 

Consulate of Bangladesh, and the ERO Headquarters Travel Documents Unit (HQTDU), 

while the travel document application was being processed. (Id. at ¶¶ 7-28.) 

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 During the same period that the ERO was seeking travel documents, on June 25, 

2015, it conducted a Post-Order Custody Review, and issued a Decision to Continue 

Detention. (Doc. 10, Ex. H.) However, a few months later, on October 27, 2015, ICE 

issued Petitioner a release notification, stating that he could be released under an order of 

supervisions pending his removal. (Doc. 12, Ex. A, attachment A.) On November 4, 

2015, the ERO in Eloy served Petitioner with a copy of the release notification and order 

of supervision paperwork. (Doc. 12, Ex. A at ¶ 5.) On November 4, 2015, ERO 

Headquarters Removal and International Operations (HRIO) notified ERO in Eloy that 

they would conduct a further review of Petitioner’s case. (Id. at ¶ 6.) On November 4, 

2015, ERO HRIO revoked petitioner’s order of supervision paperwork pursuant to 8 

C.F.R. 241.13(i)(2). . (Id. at ¶ 7.) On November 5, 2015, the Embassy of Bangladesh 

notified the government that it would issue Petitioner’s travel documents. (Id. at ¶ 8.) 

On November 10, 2015, the government obtained Petitioner’s travel documents. (Id. at ¶ 

9; Doc. 10, Ex. I.) On November 18, 2015, ERO served Petitioner with the government’s 

Decision to Continue Detention Letter. (Doc. 12, Ex. A at ¶ 10.) Respondent asserts that 

Petitioner’s removal from the United States to Bangladesh is scheduled to occur in early 

January 2016. (Id. at ¶ 11.) 

B. Federal Petition for Writ of Habeas Corpus

 On October 7, 2015, Petitioner filed a Petition in this Court asserting that he has 

been detained for more than six months beyond the date his order of removal became 

final, in violation of his due process rights, as explained in Zadvydas v. Davis, 533 U.S. 

678 (2001). (Doc. 1.) Petitioner seeks his immediate release from detention under an 

order of supervision. (Id. at 9.) Petitioner alleges that, because his removal is not 

significantly likely to occur in the reasonably foreseeable future, his continued detention 

is unlawful under Zadvydas. (Id. at 4.) 

 On December 10, 2015, Respondent filed a response asserting that Petitioner is not 

entitled to relief because he has not shown that his removal is not substantially likely to 

occur in the reasonably foreseeable future. (Doc. 10.) Respondent further argues 

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because the government has obtained travel documents for Petitioner, his removal is 

imminent. (Id.) 

II. Detention Following an Order of Removal 

 In his Petition, Petitioner asserts that his continued detention following the 

issuance of a final removal order violates due process, as discussed in Zadvydas v. Davis, 

533 U.S. 678 (2001). (Doc. 1.) Respondent contends that Petitioner has not established 

that he will not be removed in the reasonably foreseeable future and, therefore, Petitioner 

is not entitled to relief. As set forth below, the Court concludes that Petitioner is not 

entitled to relief. 

 Several statutes provide for the detention of aliens under different circumstances. 

Section 236(c) of the INA, 8 U.S.C. § 1226, governs the initial apprehension and 

detention of aliens for purposes of determining whether an alien should be removed from 

the United States. 8 U.S.C. § 1226. Section 1226(c) provides that, except in limited 

circumstances, aliens convicted of qualifying crimes must be detained pending removal 

proceedings. Id.

 After the completion of removal proceedings, 8 U.S.C. § 1231(a) governs the 

detention, release, and removal of an alien who has been ordered removed. See 

Zadvydas, 533 U.S. at 683 (referring to § 1231 as the “post-removal-period detention 

statute”). An alien must be detained during the removal period established in 

§ 1231(a)(1).1

 Section 1231(a)(6) grants the Attorney General the discretionary authority 

to detain certain classes of aliens “beyond” the removal period, or to release them subject 

to terms of supervision in § 1231(a)(3). Prieto-Romero v. Clark, 534 F.3d 1053, 1059 

(9th Cir. 2008). 

 

 

1

 Section 1231(a)(1)(B) provides that “the removal period begins on the latest of the following: (i) The date the order of removal becomes administratively final; (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order; (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from custody or confinement.”). 

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A. Burden Shifting under Zadvydas

 When an alien is found removable and a final order of removal had been entered, 

the Attorney General ordinarily secures removal of that alien during a ninety-day 

statutory “removal period” during which the alien is detained. See 8 U.S.C. 

§ 1231(a)(1)(A)-(B). However, many aliens cannot be removed within the ninety-day 

period for a variety of reasons. In Zadvydas, the Supreme Court held that the postremoval-period detention provision, 8 U.S.C. § 1231(a)(6), implicitly limits an alien’s 

detention to a “period reasonably necessary to bring about that alien’s removal” and does 

not permit indefinite detention. Zadvydas, 533 U.S. at 689. The Court recognized that 

the purpose of the statue was to guarantee the alien’s presence at the time of his removal. 

Id. at 699. However, the Due Process Clause applies to aliens who have entered the 

United States, and the Court found that a “statute permitting indefinite detention of an 

alien would raise a serious constitutional problem.” Id. at 690. The Court held that six 

months is a presumptively reasonable period of post-removal-order detention. Id. at 701. 

 The Court established a burden-shifting analysis to determine whether a period of 

post-removal-order detention in excess of six months is permissible. Id. Under this 

analysis, the alien must first provide “good reason to believe that there is no significant 

likelihood of removal in the reasonably foreseeable future.” Id. If the alien meets this 

burden, “the Government must respond with evidence sufficient to rebut that showing.” 

Id. “[F]or detention to remain reasonable, as the period of prior post-removal 

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

have to shrink.” Id. The Court clarified that, under its holding, “an alien may be held in 

confinement until it has been determined that there is no significant likelihood of removal 

in the reasonably foreseeable future.” Id. Therefore, to state a claim under Zadvydas, the 

alien not only must show post-removal-order detention in excess of six months, but must 

also provide evidence of a good reason to believe that there is no significant likelihood of 

removal in the reasonably foreseeable future. Id.; See also Clark v. Martinez, 543 U.S. 

371 (2005). The Court considers Petitioner’s claim under this framework.

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B. Petitioner’s Detention Pending Removal 

 Here, Petitioner was placed in removal proceedings when a Notice to Appear was 

issued on October 23, 2013. (Doc. 10, Ex. A.) On March 30, 2015, an IJ ordered 

Petitioner removed to Bangladesh. (Doc. 10, Ex. F.) Petitioner waived appeal of that 

decision. (Id.) Thus, the ninety-day statutory removal period set forth in 8 U.S.C. 

§ 1231(a)(6) expired on June 30, 2015, and the presumptive six–month removal period 

expired on December 30, 2015. See 8 U.S.C. § 1231(a)(1)(B). When Petitioner filed his 

Petition, he had not yet been detained beyond the six-month removal period. To date, 

Petitioner’s detention exceeds the presumptive six-month period by approximately thirty 

days. 

 Petitioner asserts that it is unlikely he will be removed in the reasonably 

foreseeable future. (Doc. 1 at 1, 4.) He argues that the government has not submitted 

any evidence that it has obtained a travel document from Bangladesh. (Doc. 9 at 2.) 

Petitioner does not make any other allegations, other than his continued detention, to 

support his assertion that there is no significant likelihood of his removal in the 

reasonably foreseeable future. Respondent, however, has provided evidence that the 

government obtained travel documents for Petitioner on November 10, 2015. (Doc. 12, 

Ex. A, attachment C.) Respondent further asserts that Petitioner’s removal is imminent 

and should occur in January, 2015. (Id., Ex. A at ¶ 11.) 

 Any uncertainty as to Petitioner’s exact removal date does not entitle him to relief. 

In Prieto-Romero v. Clark, 534 F.3d 1053, 1064 (9th Cir. 2008), the Ninth Circuit 

declined to read Zadvydas to mean that an alien’s removal was no longer “reasonably 

foreseeable” whenever some degree of uncertainty exists as to when his detention will 

conclude. Here, Petitioner’s post-removal detention is just over the six-month 

presumptively reasonable period. The government has obtained a travel document for 

Petitioner, and Petitioner has not presented any evidence suggesting that there is no 

significant likelihood he will be removed in the foreseeable future. Accordingly, 

Petitioner is not entitled to relief. 

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III. Conclusion 

 Petitioner has been detained just over six months after his removal order became 

final. He has not shown that his removal is not substantially likely to occur in the 

reasonably foreseeable future, and Respondent has established that Petitioner’s removal 

is imminent. See Zadvydas, 533 U.S. at 696. Therefore, the Court concludes that 

Petitioner is not entitled to relief. 

 Accordingly, 

IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus (Doc. 1) be 

DENIED. 

 This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate 

Procedure 4(a)(1), should not be filed until entry of the District Court’s judgment. The 

parties have fourteen days from the date of service of a copy of this recommendation 

within which to file specific written objections with the Court. See 28 U.S.C. 

§ 636(b)(1); Fed. R. Civ. P. 6 and 72. The parties have fourteen days within which to file 

a response to the objections. Failure to file timely objections to the Magistrate Judge’s 

Report and Recommendation may result in the District Court’s acceptance of the Report 

and Recommendation without further review. See United States v. Reyna-Tapia, 328 

F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual 

determinations of the Magistrate Judge will be considered a waiver of a party’s right to 

appellate review of the findings of fact in an order of judgment entered pursuant to the 

Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. 

 Dated this 29th day of January, 2016. 

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