Reported / Citable
Background
Eray Erkan, a Turkish national, entered the United States in November 2024 and has remained in immigration detention ever since. In September 2025, an immigration judge ordered him removed to Turkey but simultaneously granted withholding of removal to that country — leaving no alternative removal destination in the order. Despite this procedural impasse, the government made no confirmed third-country arrangements. Between October and November 2025, ICE asked six countries whether they would accept Erkan; three refused and the remainder never responded.
In April 2026 — roughly 17 months into Erkan’s detention — the government announced for the first time its intention to remove him to the Central African Republic, a country that had never been mentioned in any prior proceeding. Erkan filed an amended habeas petition arguing that he had never been given a reasonable fear interview for that country and that the government had offered no credible basis for believing removal there was imminent. The court issued a temporary restraining order halting the removal, and the case proceeded on two questions: (1) whether due process required a reasonable fear screening and immigration judge review before removal to a previously unmentioned third country, and (2) whether Erkan’s prolonged detention had become unconstitutional under Zadvydas v. Davis, 533 U.S. 678 (2001).
Throughout the litigation the government repeatedly declined to provide evidence or detailed explanation supporting its claim that removal to the Central African Republic was feasible in the near future. Even at the temporary restraining order hearing, government counsel could not articulate a concrete basis for that belief, and no supporting declaration from a deportation officer or other official was ever filed.
The Court’s Holding
On the due process question, the court held — consistent with its prior ruling in Ajcac Guachiac v. Bondi — that Erkan has a constitutional right not to be removed to any third country without first receiving a reasonable fear interview and immigration judge review of any adverse determination. The court rejected the government’s argument that Erkan’s membership in the Dep’t of Homeland Security v. D.V.D. Rule 23(b)(2) class barred him from obtaining that individualized procedural protection.
On the Zadvydas claim, the court found that Erkan’s detention — now exceeding 18 months — had long surpassed the six-month presumptively reasonable period. Once Erkan demonstrated good reason to believe removal in the reasonably foreseeable future was not significantly likely, the burden shifted to the government to rebut that showing with evidence. The government failed entirely: its response brief did not address the Zadvydas claim at all, its summary judgment motion offered only a cursory, unsupported assertion that ICE was “actively seeking” a third country, and its final filing merely stated — without a single supporting document — that it was “prepared” to remove Erkan to the Central African Republic if the TRO were lifted.
The court granted the amended habeas petition in part, denied the government’s motion for summary judgment, and ordered Erkan released within 24 hours. The order further prohibits re-detention absent a material change in circumstances — such as confirmed travel documents, a third country’s affirmative acceptance, and notice to Erkan — and bars any removal without immigration judge review of a negative reasonable fear determination.
Key Takeaways
- Under Zadvydas, once a detainee held beyond six months makes a credible showing that removal is not significantly likely in the reasonably foreseeable future, the government must respond with actual evidence — bare assertions by counsel are insufficient to carry that burden.
- A noncitizen subject to withholding of removal is entitled to a reasonable fear interview and immigration judge review before being removed to any third country, including one raised for the first time during litigation.
- Membership in a Rule 23(b)(2) class action (here, D.V.D.) does not automatically foreclose individualized habeas relief in a separate district court proceeding.
- Courts retain authority to condition release on specific procedural safeguards, including requiring government notice to counsel before re-detention and return of identity documents at the time of release.
Why It Matters
This decision illustrates the judicial limits on open-ended immigration detention when the government cannot demonstrate a concrete pathway to removal. Judge Rosenthal’s characterization of Erkan’s 18-month confinement as “among the most egregious this court has seen” signals that prolonged detention without documented, good-faith removal efforts will not survive habeas scrutiny — and that last-minute, evidence-free assertions of imminent deportation carry little weight.
The ruling also reinforces an emerging line of district court decisions holding that the procedural protections recognized in D.V.D. apply on an individual basis regardless of class membership, and that due process requires meaningful fear screening before any third-country removal — not merely for countries identified at the outset of proceedings. Practitioners representing detained noncitizens with withholding grants should take note of both the Zadvydas burden-shifting framework applied here and the specific release conditions the court imposed to prevent pretextual re-detention.