Zakzouk v. Becerra

Background

Khalid Fawzi Zakzouk filed a petition for a writ of habeas corpus and a complaint seeking declaratory and injunctive relief. He also moved for a temporary restraining order and a preliminary injunction against the Government. Zakzouk sought protection from renewed detention unless he first received notice and an opportunity to challenge that detention before a neutral decisionmaker. He also sought procedures before removal to a third country, including notice and an opportunity to apply for protection based on fear of harm.

The opinion describes Zakzouk as a stateless Palestinian who has lived in the United States since June 1, 1988. An immigration judge ordered him removed to Saudi Arabia or, alternatively, Egypt. The opinion states that he is not a citizen of Saudi Arabia, has never received citizenship from any country, and has no right to return to the countries listed in the removal order. After earlier periods of detention, Immigration and Customs Enforcement released him in 2008 under an order of supervision. He remained released for seventeen years, complied with the supervision requirements, and regularly attended check-in appointments.

In July 2025, an Immigration and Customs Enforcement officer instructed Zakzouk to return to apply for travel documents to Saudi Arabia and Jordan. Zakzouk explained that he was stateless and had no right to return to either country. His counsel later sought clarification from Immigration and Customs Enforcement but received no response. The Government stated that it did not intend to detain him at two specified appointments, but it did not state that it would never detain him and said at the hearing that it could not affirmatively rule out eventual detention because of the final removal order. A duty judge granted Zakzouk’s temporary restraining order on July 26, 2025.

Jurisdiction

The Government argued that the court lacked jurisdiction because Zakzouk was not physically detained, because the claims concerned execution of a removal order, because federal immigration statutes directed review to a court of appeals, and because the statute implementing the Convention Against Torture limited judicial review. The court rejected those arguments. It concluded that habeas relief can address future confinement, that Zakzouk also asserted due-process claims supporting federal-question jurisdiction, and that his claims challenged potential renewed detention and removal to a third country rather than the validity or execution of the existing removal order.

Preliminary-injunction standard

A preliminary injunction is temporary relief issued before a final decision. The court required Zakzouk to show a likelihood of success or sufficiently serious questions on the merits, likely irreparable harm without an injunction, a favorable balance of hardships, and consistency with the public interest. The court applied a sliding-scale approach, under which a stronger showing on one factor can offset a weaker showing on another, while still requiring a threshold showing on each factor.

Merits

Zakzouk asserted three claims: renewed detention would violate due process if it were indefinite; renewed detention would violate due process without a hearing before a neutral adjudicator; and removal to any third country would require constitutionally adequate procedures, including notice and an opportunity to apply for fear-based relief.

The court found serious questions concerning all three claims. It reasoned that a person facing removal must receive enough notice of the destination country to have a reasonable opportunity to pursue a fear-based claim. Because the existing removal order listed Saudi Arabia or Egypt, and because the opinion states that Zakzouk has no right to return to those countries, the court found serious questions about whether the Government could remove him to a different country, such as Jordan, without notice and an opportunity to be heard.

Regarding detention, the court applied the three-factor test from Mathews v. Eldridge. First, Zakzouk had a substantial liberty interest in remaining out of custody, especially after seventeen years of release and because he cared for his daughter and supported his wife. Second, the court found a significant risk of an erroneous deprivation without a pre-detention hearing. The Government had not shown that renewed detention was needed to prevent flight or protect the community, and it had not identified changed circumstances since Zakzouk’s earlier release. The court also found that existing custody-review procedures did not provide neutral review of Immigration and Customs Enforcement’s detention decision. Third, the court found no sufficient Government interest in delaying a hearing until after detention, particularly because the Government had not shown that removal to the countries in the existing order was possible.

Irreparable harm, hardships, and public interest

The court found that Zakzouk was likely to suffer irreparable harm without an injunction because detention could violate his constitutional rights and could separate him from his family, including his daughter, whom the opinion says relies heavily on him for support. Because the Government was the opposing party, the court treated the balance of hardships and public interest together. It found that the public has a strong interest in procedural protections against unlawful detention and that the balance favored Zakzouk.

Security and disposition

The court exercised its discretion not to require a security bond. It granted Zakzouk’s motion for a preliminary injunction. During the case, the Respondents-Defendants are enjoined and restrained from detaining Zakzouk unless he receives notice and a hearing before an immigration judge. They are also prohibited from removing him to a third country without first providing constitutionally compliant notice and an opportunity to apply for fear-based relief. The order does not state that the case’s underlying claims were finally resolved.