Unreported / Non-Citable
Background
Shaban Ali Rafat, a national of Afghanistan who belongs to the Hazara ethnic minority and comes from a Shia religious family, registered for a CBP One app appointment and waited in Chiapas, Mexico beginning August 23, 2024. After waiting more than six months without an appointment, he was mugged and severely beaten in Mexico on January 21, 2025, and at 10:00 p.m. that same day entered the United States through the Lukeville, Arizona border and surrendered to immigration officers, who registered him and confiscated his passport. On January 22, 2025, he was ordered removed via expedited removal, but after a two-hour credible fear interview with a USCIS officer he was granted withholding of removal to Afghanistan. On March 18, 2025, a Convention Against Torture interview at the Northwest ICE Processing Center determined it was more likely than not that he would be tortured if returned to Afghanistan.
Rafat was transferred through several detention facilities in Arizona, then to the Northwest ICE Processing Center in Tacoma, Washington on February 1, 2025, to the Adelanto, California Detention Center on June 7, 2025, and finally to the California City Detention Facility on January 20, 2026, where he remained as of the order. On July 31, 2026, he filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. Respondents filed a response on August 28, 2026, and Rafat replied on September 4, 2026, after which the matter came before the magistrate judge on the parties' briefing.
The Court’s Holding
The magistrate judge applied the framework of Zadvydas v. Davis, under which post-removal-period detention under 8 U.S.C. § 1231(a)(6) is limited to a period reasonably necessary to bring about removal, with six months treated as presumptively reasonable. Because Rafat was ordered removed on January 22, 2025, and remained detained well beyond six months, the court examined whether there was a significant likelihood of removal in the reasonably foreseeable future. Under Zadvydas, once a detainee provides good reason to believe removal is not significantly likely, the government must respond with evidence sufficient to rebut that showing, and what counts as the reasonably foreseeable future shrinks as confinement grows.
The court found Rafat had met his initial burden: he was granted withholding of removal to Afghanistan, had no apparent citizenship or significant ties to any other country, and Respondents offered no evidence that any country was willing to accept him for third-country removal under 8 U.S.C. § 1231(b)(2)(E). The court emphasized that third-country removal still requires the affirmative assent of the receiving country, and that even if such removal were possible it would require additional lengthy proceedings because of Rafat's right to seek fear-based relief, including further relief from the Immigration Court and potential appeals, further demonstrating that removal was not likely in the reasonably foreseeable future.
Concluding that continued detention was unreasonable and no longer authorized by statute, the magistrate judge recommended that the petition be granted on Count II, that Respondents be directed to immediately release Rafat under appropriate conditions of supervision set forth in 8 C.F.R. § 241.5, and that Respondents be enjoined and restrained from re-detaining him unless there are material changed circumstances and a neutral decisionmaker determines there is a significant likelihood of removal in the reasonably foreseeable future. The court declined to address Rafat's other claims for relief. The Findings and Recommendation is submitted to the assigned district judge under 28 U.S.C. § 636(b)(1)(B), with fourteen days for objections and review under § 636(b)(1)(C).
Key Takeaways
- Detention beyond the six-month presumptively reasonable period under Zadvydas requires the government to show a significant likelihood of removal in the reasonably foreseeable future.
- A grant of withholding of removal to the designated country, combined with no evidence that any third country will accept the detainee, satisfies the detainee's initial burden under Zadvydas.
- The prospect of additional fear-based proceedings and appeals further undercuts any claim that removal is imminent.
- The recommendation includes a forward-looking restraint on re-detention absent materially changed circumstances and a neutral decisionmaker's determination.
- Because this is a findings and recommendation, the assigned district judge must still review it under 28 U.S.C. § 636(b)(1)(C), and the parties have fourteen days to object.
Why It Matters
This recommendation illustrates how district courts within the Ninth Circuit are applying Zadvydas to long-term immigration detainees who cannot be removed to their home countries because of withholding or CAT protection. It underscores that the government cannot hold such detainees indefinitely on the mere possibility of third-country removal, particularly where no receiving country has assented and the detainee retains rights to pursue fear-based relief.
The decision also shows the practical consequence of the six-month presumption: once a detainee crosses that threshold and makes the requisite showing, the burden shifts to the government to produce evidence of foreseeable removal, and a failure to do so warrants release under supervision conditions.