Reported / Citable
Background
Hassan Askari, an Afghan national, was taken into immigration custody after he entered the United States near Eagle Pass, Texas, in November 2024. Following a conviction for illegal entry, he returned to ICE custody in March 2025. An immigration judge later granted him withholding of removal to Afghanistan, while denying other relief; both sides waived appeal, making the removal order final.
Because Askari could not be removed to Afghanistan, ICE sought a third country. Askari identified prior ties to Brazil and Iran and a family member in Canada. Brazil denied a resettlement request, and, by the July 2026 evidentiary hearing, the government conceded that no other country had agreed to accept him and no third country had been identified.
The Court’s Holding
Magistrate Judge Elizabeth S. (“Betsy”) Chestney recommended granting Askari’s habeas petition and ordering his release under conditions consistent with 8 U.S.C. § 1231(a)(3). The recommendation remains subject to review by District Judge Fred Biery and to any timely objections.
Applying Zadvydas v. Davis, the magistrate judge concluded that Askari showed good reason to believe there was no significant likelihood of removal in the reasonably foreseeable future. His withholding of removal to Afghanistan, more than ten months of post-final-order detention, Brazil’s rejection, and the absence of assurances from any other country met his initial burden. The government’s evidence that headquarters was coordinating with other agencies did not rebut that showing because it identified no accepting country or concrete pending removal arrangement.
Key Takeaways
- A final removal order does not authorize indefinite detention when removal is not reasonably foreseeable.
- A grant of withholding of removal, coupled with no identified third-country destination, can satisfy a detainee’s initial Zadvydas burden.
- General agency efforts to locate a third country are insufficient without evidence of a realistic, foreseeable removal path.
Why It Matters
The recommendation reinforces that ICE must offer more than ongoing diplomatic coordination to justify detention beyond Zadvydas’s presumptively reasonable six-month period. For noncitizens who receive withholding of removal, the lack of a concrete third-country placement may support habeas relief even though the underlying removal order remains in force.