Sarkis Shaltapour v. John Cantu, et al.

• Court: District Court, D. Arizona
• Decided: December 18, 2025
• Docket: 2:25-cv-03995
• Status: Unknown

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA

8 Sarkis Shaltapour, No. CV 25-03995 PHX DWL (CDB)

9 Petitioner, REPORT AND

RECOMMENDATION v. 10

11 John Cantu, et al.,

12 Respondents.

13 14 TO THE HONORABLE DOMINIC W. LANZA: 15 Petitioner Sarkis Shaltapour seeks relief pursuant to 28 U.S.C. § 2241. At the time 16 the petition was filed Shaltapour was in custody at the Florence Immigration Detention 17 Facility in Florence, Arizona.1 The Court described the § 2241 petition, filed October 26, 18 2025, as follows:

19 Petitioner states he fled to the United States from Iraq and was a lawful permanent resident alien from 1983 to 2011. He claims he was ordered 20 removed in absentia in 2011, but the Board of Immigration Appeals granted 21 his Motion to Reopen Proceedings. Petitioner contends that in 2019, the Immigration Court denied his application for asylum, ordered him removed, 22 but granted a deferral of removal pursuant to the Convention Against 23 Torture. He alleges he was released from custody in 2021 on an order of supervision and has complied with the conditions of his release. At some 24 point, ICE re-detained Petitioner; he is currently in ICE custody. 25 In Ground One, Petitioner alleges he has been denied his Fifth Amendment right to procedural due process. He claims he has a “vested 26 liberty interest in his conditional release” and the government cannot “strip 27 1 A search of the U.S. Immigration and Customs Enforcement Online Detainee Locator 28 System on December 17, 2025, indicates that Shaltapour is currently in custody at the Imperial Regional Adult Detention Facility in California. 1 him of that liberty” without first providing a hearing before a neutral adjudicator. 2 In Ground Two, Petitioner contends he has been denied his Fifth 3 Amendment right to substantive due process. He asserts he has a “vested liberty interest in his conditional release” and the government cannot “strip 4 him of that liberty without it being tethered to one of the two constitutional 5 bases for civil detention: to mitigate against the risk of flight or to protect the community from danger.” Petitioner claims his detention, without a hearing, 6 is punitive because he has complied with the conditions of his release and is 7 neither a flight risk nor a danger to the community. In Ground Three, Petitioner claims Respondents’ decision to revoke 8 his release is unlawful, arbitrary, capricious, and an abuse of discretion. He 9 asserts he was previously released because he did not pose a danger and was not a flight risk and Respondents only have authority to revoke his release if 10 circumstances have changed. He contends he should be provided with a “full 11 and fair hearing before a neutral arbiter where the government bears the burden of showing that circumstances have changed[,] such that his removal 12 is reasonably foreseeable, and otherwise evidence of his dangerousness and 13 flight risk is established by clear and convincing evidence.” In Ground Four, Petitioner alleges that pursuant to the Immigration 14 and Naturalization Act and its applicable regulations, Respondents cannot detain him “on the basis of his prior order of removal” without establishing, 15 “by clear and convincing evidence, that his removal is reasonably foreseeable 16 and that he is a danger to the community or a flight risk.” In Ground Five, Petitioner alleges a Fifth Amendment procedural due 17 process violation claiming that removing him to a third country without 18 adequate notice and an opportunity to apply for relief under the Convention Against Torture would violate his due process rights. 19 20 (ECF No. 6 at 1-3). The Court ordered Respondents to answer the Petition. In their response 21 to the petition Respondents state, in total:

22 Respondents, by and through counsel, hereby respond to the Petition for a Writ of Habeas Corpus (Doc. 1). Undersigned counsel is unable to 23 ascertain sufficient facts at this time to establish that there is a “significant 24 likelihood of removal in the reasonably foreseeable future.” Zadvydas v. Davis, 533 U.S. 678, 701 (2001). Accordingly, Respondents do not oppose 25 Petitioner’s request for release at this time. 26 (ECF No. 13 at 1). 27 Respondents do not dispute any of the following facts alleged in the petition. 28 Shaltapour was born in Iraq. In 1983 Shaltapour obtained lawful permanent residence as a 1 refugee. In 1987 Shaltapour was convicted of attempted armed robbery. In 2001, 2 Shaltapour was convicted of possessing cocaine. Shaltapour has not been convicted of any 3 crime since 2001. Shaltapour was ordered removed, in abstentia, by the Immigration Court 4 on October 11, 2011. In 2013, the Board of Immigration Appeals (“BIA”) granted 5 Shaltapour’s motion to reopen his removal proceedings based on materially changed 6 conditions for Christians in Iraq. Shaltapour then applied for asylum. On October 16, 2019, 7 the Immigration Court denied his application for asylum and ordered him removed to Iran, 8 but granted him deferral of removal pursuant to the Convention Against Torture (“CAT”).2 9 At some point during his removal proceedings Shaltapour was detained by Immigrations 10 and Customs Enforcement (“ICE”) “and subsequently released on an OSUP [order of 11 supervision].” (ECF No. 1 at 11). Shaltapour has obtained work authorization pursuant to 12 8 C.F.R. § 241.5, and Shaltapour lived and worked in and around Phoenix, Arizona. 13 At some point prior to the date his § 2241 petition was filed, Shaltapour was detained 14 by ICE. Shaltapour was not given any form of hearing prior to or after his detention. 15 Citing 8 C.F.R. § 241.13(i),3 Shaltapour contends that because ICE does not have a 16 travel document for him, his removal is not reasonably foreseeable. He asserts that because 17 2 The petition states: “On October 16, 2019, the Immigration Court denied [Shaltapour’s] 18 application for asylum, and ordered him removed to Iran, but granted him deferral of removal 19 pursuant to the Convention Against Torture (‘CAT’).” (ECF No. 1 at 3). 3 8 C.F.R. § 241.13(i) provides, in pertinent part: 20 (2) Revocation for removal. The Service may revoke an alien’s release under this 21 section and return the alien to custody if, on account of changed circumstances, the Service determines that there is a significant likelihood that the alien may be 22 removed in the reasonably foreseeable future. Thereafter, if the alien is not released from custody following the informal interview provided for in paragraph (h)(3) of 23 this section, the provisions of § 241.4 shall govern the alien’s continued detention 24 pending removal. (3) Revocation procedures. Upon revocation, the alien will be notified of the 25 reasons for revocation of his or her release. The Service will conduct an initial informal interview promptly after his or her return to Service custody to afford the 26 alien an opportunity to respond to the reasons for revocation stated in the 27 notification. The alien may submit any evidence or information that he or she believes shows there is no significant likelihood he or she be removed in the 28 reasonably foreseeable future, or that he or she has not violated the order of supervision. The revocation custody review will include an evaluation of any 1 no travel document has been issued, there is no reasonably foreseeable end point to his 2 detention and therefore his detention will be unconstitutionally prolonged in violation of 3 federal law and his constitutional rights. 4 Shaltapour also argues there has been no change in circumstances since he was 5 granted deferral of removal warranting his detention. Shaltapour contends, and 6 Respondents do not dispute, that the deferral of removal has not been terminated. 7 Shaltapour argues that his detention is unconstitutional because it is in violation of United 8 States statutes and regulations, because it is absent any pre-deprivation hearing before a 9 neutral arbiter. He further asserts he is neither a flight risk nor a danger to the community. 10 Shaltapour also maintains he is entitled to a hearing before being removed to any third 11 country. Shaltapour asserts he must be released from detention unless and until ICE proves 12 to a neutral arbiter that his removal has become reasonably foreseeable, or that his detention 13 is necessary because there has been a material change in circumstances establishing that he 14 is a flight risk or a danger to the community. 15 The Constitution guarantees the writ of habeas corpus “to every individual detained 16 within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004), citing U.S. Const., 17 art. I, § 9, cl. 2. The purpose of the “great writ,” which is “shaped to guarantee the most 18 fundamental of all rights, is to provide an effective and speedy instrument by which judicial 19 inquiry may be had into the legality of the detention of a person.” Carafas v. LaVallee, 391 20 U.S. 234, 238 (1968) (citations omitted). Historically, “the writ of habeas corpus has served 21 as a means of reviewing the legality of Executive detention, and it is in that context that its 22 protections have been strongest.” Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 23 289, 301 (2001) (citations omitted), superseded by statute on other grounds, Nasrallah v. 24 Barr, 590 U.S. 573, 580 (2020). Accordingly, the Court has jurisdiction to grant writs of 25 habeas corpus to noncitizens who are being detained “in violation of the Constitution or 26 laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See also Trump v. J.G.G., 27

28 contested facts relevant to the revocation and a determination whether the facts as determined warrant revocation and further denial of release. 1 604 U.S. 670, 672 (2025); Lopez-Marroquin v. Barr, 955 F.3d 759, 759 (9th Cir. 2020) 2 (“[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to consider habeas challenges 3 to immigration detention …”). 4 Following a final order of removal, ICE is directed by statute to detain an individual 5 for ninety days in order to effectuate their removal from the United States. 8 U.S.C. 6 § 1231(a)(2). This ninety (90) day period, known as “the removal period,” generally 7 commences as soon as a removal order becomes administratively final. Id. at 8 §§ 1231(a)(1)(A) & 1231(a)(1)(B). If the individual is not removed during the removal 9 period, federal law requires ICE to release the individual under conditions of supervision, 10 including periodic reporting. 8 U.S.C. § 1231(a)(3) (“If the alien … is not removed within 11 the removal period, the alien, pending removal, shall be subject to supervision.”). Limited 12 exceptions to this rule exist, i.e., ICE “may” detain an individual beyond ninety days if the 13 individual was ordered removed on criminal grounds or is determined to pose a danger to 14 the community or determined to be a flight risk. See 8 U.S.C. § 1231(a)(6). However, ICE’s 15 authority to detain an individual beyond the removal period under such circumstances is 16 constrained by the constitutional requirement that the individual’s detention must “bear a 17 reasonable relationship to the purpose for which the individual [was] committed.” 18 Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Because the principal purpose of the post- 19 final-order detention statute is to effectuate the removal of the detainee, if the individual’s 20 removal cannot be effectuated it follows that their detention bears no reasonable relation 21 to the purpose for which the individual is detained. Id. at 697. 22 The governing statute does not explicitly limit the length of post-removal-period 23 detention. See 8 U.S.C. § 1231(a)(6). Because a statute that authorizes “indefinite, perhaps 24 permanent” detention poses a “serious constitutional threat,” the Supreme Court has “read 25 an implicit limitation” into § 1231(a)(6) “in light of the Constitution’s demands.” 26 Zadvydas, 533 U.S. at 680, 689. See also Johnson v. Guzman Chavez, 594 U.S. 523, 529 27 (2021). Specifically, in Zadvydas the Supreme Court held that a noncitizen may be detained 28 only for “a period reasonably necessary to bring about” the noncitizen’s removal from the 1 United States. 533 U.S. at 689. Moreover, the Zadvydas Court held that the period 2 “reasonably necessary” to “secure” a noncitizen’s removal is presumptively six months. Id. 3 at 699-701. After this six-month period, if a detainee makes a sufficient showing their 4 removal is not significantly likely in the “reasonably foreseeable future,” the government 5 must respond with evidence sufficient to rebut that showing. Guzman Chavez, 594 U.S. at 6 529. If the government fails to provide such evidence, the detainee must be released. Id. 7 Accordingly, pursuant to the principles espoused in Zadvydas and Guzman Chavez, post- 8 removal-period detention violates the Immigration and Nationality Act and the United 9 States Constitution when a non-citizen’s removal is not significantly likely in the 10 reasonably foreseeable future. 11 The parties allow that Shaltapour’s order of removal is final, and that Shaltapour 12 was granted deferral of removal pursuant to CAT. Respondents do not dispute that 13 Shaltapour was at some point previously detained for a period of at least some months.4 14 Respondents do not dispute that, since Shaltapour’s order of removal became final and he 15 16 4 When determining whether the noncitizen has been detained for six months past the 17 removal period, the district courts within the jurisdiction of the Ninth Circuit Court of Appeals 18 consider the full amount of time that the noncitizen has spent in immigration detention since they were ordered removed, i.e., the courts total multiple periods of detention in the aggregate. 19 Otherwise, the government could circumvent the relevant statute by detaining and releasing and re-detaining noncitizens such that they are never continuously detained for six months, which 20 would constitute de facto indefinite detention. See, e.g., Nguyen v. Scott, 796 F. Supp. 3d 703, 722 21 (W.D. Wash. 2025) (“under the reasoning of Zadvydas, a series of releases and re-detentions by the government ... in essence results in an indefinite period of detention, albeit executed in 22 successive six month intervals.” (internal quotations omitted, ellipses in original)); Phan v. Warden of Otay Mesa Det. Facility, No. 25-cv-02369, 2025 WL 3141205, at *3 (S.D. Cal. 23 Nov. 10, 2025) (collecting cases). Moreover, as the Court recently held, a detainee is eligible for 24 release even before six months of detention if they meet a heightened burden of establishing their removal is not reasonably foreseeable. See Sweid v. Cantu, No. 25-03590, 2025 WL 3033655, at 25 *3-4 (D. Ariz. Oct. 30, 2025) (collecting cases, including Munoz-Saucedo v. Pittman, 789 F. Supp. 3d 387, 396 (D.N.J. 2025) (“Although some courts have read Zadvydas as creating a bright-line 26 rule—one that effectively allows the government to detain a person for at least six months without 27 judicial review, even if there was no possibility of removal—a close reading of Zadvydas does not support that interpretation.”), and Trinh v. Homan, 466 F. Supp. 3d 1077, 1093 (C.D Cal. 2020) 28 (“Zadvydas established a ‘guide’ for approaching detention challenges, not a categorical prohibition on claims challenging detention less than six months.”)). 1 was granted deferral of removal, he has not committed any crime nor has there been any 2 other changed circumstance which would warrant Shaltapour’s current detention. 3 Shaltapour plausibly alleges there is no good reason to believe that his removal is 4 significantly likely in the reasonably foreseeable future. Shaltapour asserts, and 5 Respondents do not dispute, that ICE has been unable to deport him over the last six years. 6 The burden thus shifts to Respondents to “respond with evidence sufficient to rebut that 7 showing,” Zadvydas, 533 U.S. at 701, a burden Respondents have declined to bear. To the 8 contrary, Respondents allow that Shaltapour should be released at this time. Respondents 9 have not provided a legal basis for Shaltapour’s continued detention given the facts stated 10 in the Petition, which facts Respondents do not dispute. 11 Because Shaltapour is being held in custody in violation of the laws of the United 12 States and in violation of his Constitutional rights, relief pursuant to § 2241 is warranted. 13 Accordingly, on the facts and relevant law, and on the basis of Respondents’ consent, 14 IT IS RECOMMENDED that the petition for § 2241 at ECF No. 1 be granted, 15 and that Respondents be ordered to release Shaltapour immediately, and that Respondents 16 be required to docket a notice of compliance with any order issued by the Court. 17 This recommendation is not an order that is immediately appealable to the Ninth 18 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 19 Appellate Procedure, should not be filed until entry of the District Court’s judgment. 20 Rule 72(b), Federal Rules of Civil Procedure, provides that the parties shall have 21 fourteen (14) days from the date of service of a copy of this recommendation within which 22 to file specific written objections with the Court. However, because Respondents do not 23 object to Shaltapour’s release, 24 IT IS FURTHER RECOMMENDED that the Court order any objections to the 25 Report and Recommendation be filed no later than December 23, 2025. 26 Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United 27 States District Court for the District of Arizona, objections to the Report and 28 Recommendation may not exceed ten (10) pages in length. Failure to timely file objections 1 | to any factual or legal determinations of the Magistrate Judge will be considered a waiver 2| of a party’s right to de novo appellate consideration of the issues. See United States v. Reyna—Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 4 Dated this 17th day of December, 2025. 5

9 Camille D. Bibles 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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