Fahmy K.A. v. United States of America

Background

Fahmy K.A. filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 — a federal statute allowing a detained person to ask a court to order their release if their detention is unlawful. The petition challenged his continued detention by the government pending removal (deportation) to Sudan. Magistrate Judge Douglas L. Micko issued a Report and Recommendation (R&R) on April 14, 2026, recommending that the petition be denied. Fahmy filed timely objections, triggering de novo (fresh, independent) review by the district court under 28 U.S.C. § 636(b)(1).

The Legal Standard at Issue

The controlling Supreme Court precedent is Zadvydas v. Davis, 533 U.S. 678 (2001), which holds that the government may not detain a person subject to a removal order for an indefinite period. After a presumptively reasonable six-month period, continued detention is permissible only if removal is "significantly likely in the reasonably foreseeable future." A petitioner who shows good reason to believe removal is not reasonably foreseeable shifts the burden to the government to rebut that showing.

Fahmy's Three Objections and the Court's Responses

Objection 1: Cooperation with Travel Documents

Fahmy argued he had not resisted efforts to obtain his travel documents during the summer of 2025. The court found this assertion unpersuasive in light of government evidence — including a declaration and supporting exhibit — indicating he had been uncooperative in that process.

Objection 2: Attempted Removal to Ethiopia

Fahmy argued the government unlawfully attempted to deport him to Ethiopia on January 15, 2026, rather than Sudan, and that he refused to board the aircraft for that reason. The court acknowledged genuine ambiguity in the record: an Immigration and Customs Enforcement officer's declaration stated Fahmy was told he was going to Sudan, but the same declaration noted he was ticketed to Chicago and then Addis Ababa, Ethiopia, without mentioning a connecting flight to Sudan.

Despite this factual ambiguity, the court declined to rule on the merits of the Ethiopia argument. Fahmy's original habeas petition had not alleged that any attempt to remove him to a third country was unlawful, had not alleged lack of proper notice of such an intent, and had raised no related statutory claim. The court noted that under 8 U.S.C. § 1231(b)(2), there is a plausibly lawful basis for removal to a third country. Because the theory was not raised in the petition itself, the court held it was not properly before the court — citing the principle that claims not raised in a habeas petition are ordinarily waived.

Objection 3: Lack of Timeline or Proof of Removal

Fahmy argued the government had provided no specifics about the repatriation process and no timeline or proof he would be removed in the reasonably foreseeable future. The court rejected this objection as well. The government had submitted evidence that Sudan is issuing travel documents to its citizens, that Fahmy himself holds a valid travel document from Sudan, and that discussions between the United States and the Sudanese government are ongoing. While no specific date for a charter flight had been provided, evidence indicated the government was working to schedule one. The court also noted that Fahmy's own refusal to board the January 15 removal flight reinforced the conclusion that removal is significantly likely in the reasonably foreseeable future, rather than undercutting it.

Disposition

Judge Tostrud accepted the Magistrate Judge's R&R, overruled all of Fahmy's objections, denied the habeas petition, and dismissed the action without prejudice. Judgment was ordered to be entered accordingly.