Reported / Citable
Background
Sayed Sherinaqa Fazel, an Afghan national, entered the United States in January 2025 through a port of entry using the CBP One app. After receiving a positive credible-fear determination, he was placed in removal proceedings. An Immigration Judge denied his applications for relief and ordered him removed to Afghanistan on July 3, 2025. That order became final on August 4, 2025, after Fazel filed no appeal. A subsequent motion to reopen was also denied.
Fazel remained in ICE custody pending execution of the removal order. The central obstacle to his removal was that Afghanistan requires a government-issued transit letter before accepting the return of its nationals. ICE requested that letter on September 17, 2025, and followed up six times between October 2025 and April 2026, but no letter was ever received. ICE officers told Fazel in February 2026 that there were “no removals to Afghanistan.” ICE also inquired about removing Fazel to Germany, where he had previously lived, but the German consulate told him it could not facilitate his return. No third country had agreed to accept him.
Fazel filed this habeas petition on April 17, 2026, arguing that his continued detention was unconstitutional under Zadvydas v. Davis, 533 U.S. 678 (2001), and violated the Immigration and Nationality Act. By the time the court ruled, Fazel had been detained for roughly ten months following the finalization of his removal order — well beyond the six-month presumptive ceiling established in Zadvydas. Respondents moved to dismiss or, alternatively, for summary judgment.
The Court’s Holding
Judge John A. Kazen granted the habeas petition and denied the government’s motion to dismiss and motion for summary judgment. Applying the Zadvydas framework, the court found that Fazel had demonstrated good reason to believe there was no significant likelihood of removal in the reasonably foreseeable future. He had been told directly by ICE that removals to Afghanistan were not occurring; Germany had declined to accept him; the transit letter request had sat unanswered for nearly nine months; and no third country had agreed to receive him. These were concrete, non-conclusory facts sufficient to meet his initial burden.
The burden then shifted to the government, which responded only that there were “no known impediments” once the transit letter was received and that ERO was “seeking guidance” on possible removal to Germany. The court held that a pending, unanswered document request alone cannot justify indefinite detention, and that ERO’s speculative inquiry about Germany was insufficient — particularly given Fazel’s uncontroverted evidence that Germany had already refused. The government therefore failed to rebut Fazel’s showing, and was not entitled to summary judgment as a matter of law.
The court ordered Fazel released by June 10, 2026, at 5:00 p.m., with counsel to receive at least two hours’ notice of the time and location of release. It further ordered that Fazel could not be re-detained without a hearing before the court to determine whether a material change in circumstances had occurred.
Key Takeaways
- Under Zadvydas, the six-month post-removal-order detention period is presumptively reasonable; detention beyond that point requires the government to show a significant likelihood of removal in the reasonably foreseeable future once a detainee makes a threshold showing of good reason to believe otherwise.
- A pending, unanswered transit-letter request — even when accompanied by periodic follow-up — is insufficient on its own to rebut a detainee’s Zadvydas showing; the inability to obtain travel documents is itself an impediment to removal.
- Speculative inquiries about third-country removal do not satisfy the government’s rebuttal burden, especially when the detainee presents uncontroverted evidence that a specific country has already declined to accept him.
- A court may condition release on a prohibition against re-detention absent a material change in circumstances and a prior court hearing.
Why It Matters
This decision is one of a growing line of rulings from the Southern District of Texas applying Zadvydas to Afghan nationals whose removal has stalled because Afghanistan has barred returns without government-issued transit letters — a condition that has persisted since at least August 2025. The opinion makes clear that systemic, country-wide barriers to removal are precisely the kind of concrete, non-conclusory facts that shift the burden to the government, and that bureaucratic persistence in chasing unavailable travel documents will not indefinitely justify detention.
For immigration practitioners, the case reinforces that courts will look past government assurances of ongoing efforts and focus on whether actual removal is realistically achievable within a foreseeable timeframe. The re-detention restriction — requiring a court hearing before ICE can re-detain the petitioner — also signals judicial willingness to impose structural limits on executive detention authority where the government has failed to meet its constitutional burden.