Dong

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

SHENGHUI DONG,

Petitioner,

26-CV-85-LJV

v. DECISION & ORDER

MARCOS CHARLES et al.,1

Respondents.

More than 23 years ago—on April 15, 2003—an order of removal was entered

against the petitioner, Shenghui Dong. Docket Item 1 ¶ 13. That order of removal

became administratively final in July 2004 when the Board of Immigration Appeals

(“BIA”) dismissed Dong’s appeal. Id. ¶ 14. But Dong was never removed. In fact, for

the next 21 years, nothing happened.

Dong remained free and built a productive, law-abiding life in the United States.

He married a lawful permanent resident in 2009, and together they had four children—all

U.S. citizens. Id. ¶ 22. He owned and operated a restaurant. Id. ¶ 23. He paid taxes.

1 The petition named, in their official capacities, five respondents: then-Attorney

General Pamela Bondi; United States Immigration and Customs Enforcement (“ICE”)

Acting Executive Associate Director, Enforcement and Removal Operations, Marcos

Charles; Acting ICE Director Todd M. Lyons; then-Secretary of Homeland Security Kristi

Noem; and Buffalo Federal Detention Facility Warden Michael T. Phillips. See Docket

Item 1. Under Federal Rule of Civil Procedure 25(d), Secretary of Homeland Security

Markwayne Mullin and Acting Attorney General Todd Blanche are automatically

substituted as respondents for Noem and Bondi. The Clerk of the Court shall update

the case caption accordingly. For ease of reference, this Court will refer to the

respondents as “the government” throughout this decision and order.

Id. ¶ 24. He contributed to his community much like his friends and neighbors did. See

generally id. ¶¶ 21-25, 47-50.

All that changed on September 24, 2025, when Dong reported to the Department

of Homeland Security, United States Immigration and Customs Enforcement (“ICE”)—

just as he was supposed to—and was arrested “without warning.” Id. ¶ 26. He has

remained in custody ever since and is “currently detained at the Buffalo Federal

Detention Facility.” Id. ¶ 5.

Dong commenced this action earlier this year by filing a petition for a writ of

habeas corpus under 28 U.S.C. § 2241. Docket Item 1. In that petition, he argues that

his current detention “flagrantly violate[s]” the relevant statutory scheme and his

constitutional rights. See generally id. After the government moved to dismiss Dong’s

petition, Docket Item 10, Dong responded, Docket item 11. Then, at this Court’s

request, the government provided an update on the status of its efforts to remove Dong.

See Docket Item 13.

For the reasons that follow, Dong’s petition, Docket Item 1, is GRANTED; the

government’s motion to dismiss, Docket Item 10, is DENIED; and Dong shall be

released immediately.

BACKGROUND2

Dong is a native and citizen of China. Docket Item 1 ¶ 6. He “entered the United

States in 1995, fleeing political persecution in China.” Id. ¶ 12. Dong’s father “filed an

2 The following facts are largely taken from the petition, Docket Item 1. Where

noted, the Court also refers to records submitted by the government, Docket Item 10-3;

application for political asylum,” id., and Dong “derivatively” sought asylum through his

father’s application, Docket Item 10-3 at 1.3 But that application was denied by an

immigration judge on April 15, 2003, Docket Item 1 ¶ 13, and on July 21, 2004, the BIA

dismissed the appeal, id. ¶ 14; see also Docket Item 10-3 at 9.

Dong nevertheless remained in the United States without any issues. See

generally Docket Item 1 ¶¶ 21-25. In fact, since he arrived here more than 30 years

ago, he has “built a life, family, and community in the United States.” Id. ¶ 21. As noted

above, he married a lawful permanent resident in 2009, with whom he has four children

who all are U.S. citizens. Id. ¶ 22. He “has maintained continuous, lawful employment

throughout his time in the United States” and has “filed taxes for over 20 years.” Id. ¶¶

23-24. Immediately before his arrest, “he was working at a restaurant he owned in

Albany, New York.” Id. ¶ 23.

Nevertheless, in September of last year “ICE arrested . . . Dong without warning

at [an] ICE facility when he went to report.” Id. ¶ 26. The government says that this was

done “to effectuate his deportation order”—issued more than twenty years ago—and

that it intends to deport Dong to China. See Docket Item 10-2 ¶¶ 9, 12. And the

government says that on October 31, 2025—more than a month after Dong was

arrested—“a travel document request for [Dong]” was sent to ICE Enforcement and

Removal Operations (“ERO”) headquarters. Id. ¶ 10.

the declaration of ICE Deportation Officer Sean McDonald, Docket Item 10-2; and the

government’s status update, Docket Item 13.

3 Page numbers in docket citations refer to ECF pagination.

The government also says that on December 29, 2025, ERO headquarters

“advised” that Dong’s “case is pending identification verification” by the Chinese

government. Id. ¶ 11. Once “the [Chinese] government is able to verify [Dong]’s

identity,” the government says, “ERO [h]eadquarters will then be able to present the

travel document request to the [Chinese] embassy in Washington, D.C.[,] for the

issuance of a travel document for [Dong]’s removal to [China].” Id. But “no further

efforts to remove [Dong] can be completed until” his identity is verified, the government

says. Docket Item 13.

As of April 30, 2026—the date of its status update—“the government’s request to

verify [Dong]’s identity remains pending.” Docket Item 13. In the meantime, Dong sits

in a detention facility.

LEGAL PRINCIPLES

I. SECTION 2241 PETITION

28 U.S.C. § 2241 “authorizes a district court to grant a writ of habeas corpus

whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of

the United States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28

U.S.C. § 2241(c)(3)). “When a petitioner brings a habeas petition [under section] 2241,

the petitioner ‘bears the burden of proving that he is being held contrary to law; and

because the habeas proceeding is civil in nature, the petitioner must satisfy his burden

of proof by a preponderance of the evidence.’” Dzhabrailov v. Decker, 2020 WL

2731966, at *3 (S.D.N.Y. May 26, 2020) (quoting Skaftouros v. United States, 667 F.3d

144, 158 (2d Cir. 2011)). “The equitable principles governing [section] 2241 are

reflected in the plenary discretion vested in habeas courts to ‘hear and determine the

facts, and dispose of the matter as law and justice require.’” Id. (some alterations

omitted) (quoting Pinkney v. Keane, 920 F.2d 1090, 1093 (2d Cir. 1990)).

II. MOTION TO DISMISS

“To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6)],

a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

550 U.S. at 556). “‘The plausibility standard is not akin to a ‘probability requirement,’ but

it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

(quoting Twombly, 550 U.S. at 556).

DISCUSSION

Dong argues that because his detention violates both the Due Process Clause of

the Fifth Amendment to the United States Constitution and 8 U.S.C. § 1231(a)(6) as

interpreted by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001), he is

entitled either to immediate release or to a bond hearing. See Docket Item 1 ¶¶ 29-45;

id. at 17. The government has moved to dismiss Dong’s petition, arguing that Dong is

lawfully detained under section 1231. See Docket Item 10-1 at 4.

I. DETENTION UNDER SECTION 1231

Because Dong is a noncitizen with a final order of removal, his detention is

governed by 8 U.S.C. § 1231. See Johnson v. Guzman Chavez, 594 U.S. 523, 542-44

(2021). “Section 1231 provides that during a specified ninety-day removal period, ‘the

Attorney General shall detain the [noncitizen].’” Diallo v. Joyce, 817 F. Supp. 3d 202,

204 (S.D.N.Y. Dec. 23, 2025) (quoting 8 U.S.C. § 1231(a)(1)(A), (a)(2)(A)); see also

Guzman Chavez, 594 U.S. at 528 (“During the removal period, detention is

mandatory.”). Under section 1231’s explicit terms, that period begins “on the latest” of

three possible dates:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay of

the removal of the [noncitizen], the date of the court’s final order.

(iii) If the [noncitizen] is detained or confined (except under an immigration

process), the date the [noncitizen] is released from detention or

confinement.

8 U.S.C. § 1231(a)(1)(B); see also Hechavarria v. Sessions, 891 F.3d 49, 54-55 (2d Cir.

2018), as amended (May 22, 2018).

“If the [noncitizen] does not leave or is not removed within the removal period,

the [noncitizen], pending removal, shall be subject to supervision under regulations

prescribed by the Attorney General.” 8 U.S.C. § 1231(a)(3). In “normal circumstances,

after the ninety-day removal period ends, a person is required to be released from

detention under supervision.” Diallo, 817 F. Supp. 3d at 204. Under the relevant

federal regulations, “that person would be released with an order of supervision, with

regulations specifying conditions under which they can be re-detained.” Id. (citing 8

C.F.R. § 241.4).4

4 The record does not suggest that Dong was ever detained or subject to an

order of supervision before September 2025.

But the government is not required to release all noncitizens after the removal

period ends. More specifically, “[a]fter the 90-day removal period expires, section

1231(a)(6) authorizes the detention of three classes of persons ‘beyond the removal

period’: noncitizens who are (1) inadmissible, (2) removable as the result of violations of

certain status requirements or entry conditions, violations of criminal law, or reasons of

security or foreign policy, or (3) determined by the Attorney General to be a risk to the

community, or to be unlikely to comply with the order of removal.” Zhu v. Genalo, 798

F. Supp. 3d 400, 407 (S.D.N.Y. 2025) (quoting 8 U.S.C. § 1231(a)(6)).

As is immediately clear, that statute “fails to specify how long the Attorney

General can continue detention beyond the removal period.” Lin v. United States, 2007

WL 951618, at *2 (S.D. Tex. Mar. 28, 2007); see also Qasemi v. Kurzdorfer, 2025 WL

2938607, at *3 (W.D.N.Y. Oct. 16, 2025) (“By its plain language, [section 1231(a)(6)]

does not appear to impose any limitation on the length of a[ noncitizen]’s detention.”).

And because a “statute permitting indefinite detention of a[ noncitizen] would raise a

serious constitutional problem,” Zadvydas v. Davis, 533 U.S. 678, 690 (2001), the

Supreme Court has provided guidance for courts addressing cases that involve

detention under section 1231(a)(6). The Court turns now to that guidance.

II. ZADVYDAS

In Zadvydas, “the Supreme Court interpreted [section] 1231(a)(6) narrowly to

avoid the possible constitutional problems with indefinite detention.” Qasemi, 2025 WL

2938607, at *3. More specifically, the Court held that section 1231(a)(6), “read in light

of the Constitution’s demands, limits a[ noncitizen]’s post-removal-period detention to a

period reasonably necessary to bring about that [noncitizen]’s removal from the United

States.” Zadvydas, 533 U.S. at 689; see also Lema v. Rhoney, 2026 WL 380402, at *2

(W.D.N.Y. Feb. 11, 2026) (Wolford, C.J.) (“In Zadvydas, the Supreme Court read an

implicit limitation into [section] 1231(a)(6).” (citation and internal quotation marks

omitted)). “This limitation is linked to the statute’s ‘basic purpose,’ which is to ‘assure

the [noncitizen]’s presence at the moment of removal.’” Qasemi, 2025 WL 2938607, at

*3 (quoting Zadvydas, 533 U.S. at 699 (alteration omitted)).

“The Zadvydas court also provided a framework under which habeas courts are

to review claims challenging continued detention under [section] 1231(a)(6).” Id. In

doing so, “[t]he Zadvydas Court . . . adopted a 6-month ‘presumptively reasonable

period of detention,’ and instructed that ‘after this 6-month period, once the [noncitizen]

provides good reason to believe that there is no significant likelihood of removal in the

reasonably foreseeable future, the [g]overnment must respond with evidence sufficient

to rebut that showing.’” Lema, 2026 WL 380402, at *2 (quoting Zadvydas, 533 U.S. at

701) (alteration omitted).

“In analyzing the likelihood of removal, courts consider a variety of factors,

including the existence of a repatriation agreement with the target country, the target

country’s prior record of accepting removed [noncitizens], and specific assurances from

the target country regarding its willingness to accept a[ noncitizen].” Hassoun v.

Sessions, 2019 WL 78984, at *4 (W.D.N.Y. Jan. 2, 2019). And when conducting that

analysis, courts “must take appropriate account of the greater immigration-related

expertise of the Executive Branch, of the serious administrative needs and concerns

inherent in the necessarily extensive . . . efforts to enforce this complex statute, and the

Nation’s need to speak with one voice in immigration matters.” Zadvydas, 533 U.S. at

700 (citation and internal quotation marks omitted).

“The mere passage of time beyond the six-month presumptively reasonable

period does not satisfy [the petitioner’s] burden under Zadvydas.” Lorenzo v. Barr, 2021

WL 84283, at *6 (W.D.N.Y. Jan. 11, 2021). But at the same time, as the length of

detention grows, “what counts as the ‘reasonably foreseeable future’ conversely”

shrinks. Zadvydas, 533 U.S. at 701. “In effect, the parties’ respective burdens shift as

the length of detention increases.” Hassoun, 2019 WL 78984, at *4. “Thus, as time

passes, the mere existence of possible avenues for removal becomes insufficient to

justify further detention; some evidence of progress is required.” Id. (collecting cases).

III. APPLYING ZADVYDAS

With those principles in mind, the Court now turns to the facts of Dong’s

detention and the government’s efforts to remove him. Because Dong now has been

detained for more than six months,5 see Docket Item 1 ¶¶ 5, 26, he “has surmounted

5 The Court notes that Dong commenced this action less than six months after

his detention began, see Docket Item 1 ¶¶ 5, 26, and that other courts—including some

in this district—have concluded that for a petitioner to bring a viable Zadvydas claim, six

months of detention must have elapsed at the time of filing. See Akinwale v. Ashcroft,

287 F.3d 1050, 1052 (11th Cir. 2002) (“Th[e] six-month period . . . must have expired at

the time [petitioner]’s [section] 2241 petition was filed in order to state a claim under

Zadvydas.”); Dao v. Bondi, 2025 WL 1005579, at *2 (W.D.N.Y. Mar. 26, 2025)

(“[F]ederal courts generally hold that the six-month post-removal period must have

expired at the time the detainee’s 2241 petition was filed in order to state a claim under

Zadvydas.” (alteration, citation, and internal quotation marks omitted)); Loachamin v.

Kurzdorfer, 792 F. Supp. 3d 353, 363 (W.D.N.Y. 2025) (same). Other courts, however,

have rejected the argument that a court is precluded from reviewing a petition raising a

Zadvydas claim when the petition is filed prior to six months of detention. See Zhu v.

Noem, 2025 WL 4710076, at *8 n.4 (S.D. Tex. Dec. 23, 2025) (“[T]he [c]ourt also rejects

any argument that [p]etitioner’s claim should be dismissed on the ground that it was

brought prior to the conclusion of the six-month presumptively reasonable period.”); Lee

v. Crawford, 2026 WL 745263, at *3-4 (E.D. Va. Feb. 27, 2026) (noting that “[a]lthough

the first of Zadvydas’s hurdles,” Hassoun, 2019 WL 78984, at *4. The question thus

becomes whether he has provided “good reason to believe that there is no significant

likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701.

And he has.

the [p]etition may have been filed before the six-month mark, the [c]ourt’s review is not

frozen in time as of the date of filing”), report and recommendation adopted, 2026 WL

738951 (E.D. Va. Mar. 16, 2026).

Because the former approach accomplishes nothing more than forcing

petitioners to take another step in the process, this Court declines to read such a

requirement into Zadvydas. As one district court aptly observed, “[t]he alternative would

be to dismiss the petition, only for [the p]etitioner to re-file and pay another court-filing

fee.” Quang Minh Lien v. Sessions, 2018 WL 4853339, at *4 n.2 (D. Colo. Oct. 5, 2018)

(reviewing habeas petition filed “before the expiration of the presumptively reasonable”

six months of detention). Adding red tape to an already complicated system is

needlessly inefficient—especially when a petitioner’s freedom is at stake.

Moreover, if a detained non-citizen can bring a Zadvydas petition only after he or

she has been detained for six months, then the government could do an end run to

avoid review by releasing noncitizens just before six months of detention and then

immediately re-detaining them. And that certainly would be at odds with the Supreme

Court’s concerns about “[a] statute permitting indefinite detention.” Zadvydas, 533 U.S.

at 690; see also Chen v. Holder, 2015 WL 13236635, at *2 (W.D. La. Nov. 20, 2015)

(“Surely, under the reasoning of Zadvydas, a series of releases and re-detentions by the

government, . . . while technically not in violation of the presumptively reasonable

jurisprudential six month removal period, in essence results in an indefinite period of

detention, albeit executed in successive six month intervals.”).

Finally, even if there were such a six-month rule, several district courts have

concluded that Zadvydas does not preclude review of a petition before six months of

detention. See, e.g., Ali v. Dep’t of Homeland Sec., 451 F. Supp. 3d 703, 706-07 (S.D.

Tex. 2020) (the “six-month presumption is not a bright line, . . . and Zadvydas did not

automatically authorize all detention until it reaches constitutional limits”); Villanueva v.

Tate, 801 F. Supp. 3d 689, 702 (S.D. Tex. 2025) (“[N]othing in Zadvydas precludes a

challenge to detention before the presumptively constitutional time period has

elapsed.”); Cruz Medina v. Noem, 794 F. Supp. 3d 365, 375 (D. Md. 2025) (Zadvydas is

not “a conclusive bar to adjudication of whether continued detention is authorized that

lifts only after six months have elapsed”).

For all those reasons, this Court will address Dong’s Zadvydas argument based

on the time that he has been in custody, not the date when his petition was filed.

In the petition, Dong argues that he has met his initial burden for three reasons.

First, he says that “[t]he sheer passage of time” since his order of removal became

administratively final more than twenty years ago “creates an overwhelming

presumption that removal is not reasonably foreseeable.” Docket Item 1 ¶ 42. Next, he

cites China’s practice of consistently “refus[ing] to accept its nationals subject to

removal from the United States, particularly those who sought political asylum.” Id. And

finally, he says, the government “has not obtained and cannot obtain travel documents

from China for” his removal. Id.

Merely demonstrating “that the government has been unable to obtain a travel

document to date” does not satisfy a petitioner’s burden under Zadvydas, see Callender

v. Shanahan, 281 F. Supp. 3d 428, 434-35 (S.D.N.Y. 2017), but Dong has established

more than that. In fact, not only has the government “been unable to obtain a travel

document to date,” id., but it admits that it cannot even request a travel document until

after the identity verification process is complete, see Docket Item 10-2 ¶ 11 (noting that

ERO Headquarters needs the Chinese government to first “verify [Dong]’s identity”

before it is “able to present the travel document request to the [Chinese] embassy”).

And that identity verification request has been pending for at least five months or so6

with no apparent progress.

Because the government has not obtained any of the materials necessary for

Dong’s removal—such as a scheduled removal, a travel document, or even verification

6 The government does not state precisely when the identity verification request

was made, but it likely was sent at some time between October 31, 2025, when a travel

document request was sent to ERO headquarters, Docket Item 10-2 ¶ 10, and

December 29, 2025, when ERO headquarters advised that Dong’s “case is pending

identification verification,” id. ¶ 11.

of his identity—this Court is “left to guess whether [Dong’s] deportation might occur in

ten days, ten months, or ten years.” See Singh v. Whitaker, 362 F. Supp. 3d 93, 102

(W.D.N.Y. 2019). Under these circumstances, Dong easily clears the low bar needed to

shift the burden back to the government. See Yuan v. Anda-Ybarra, 2026 WL 837021,

at *1-2 (D.N.M. Mar. 26, 2026) (petitioner had “met his burden of showing that there is

no significant likelihood of removal in the reasonably foreseeable future” when the

government had not submitted “proof of a travel document, . . . proof of acceptance by

China, [or] proof of a scheduled removal”); see also Sahin v. Casey, 2026 WL 800558,

at *2 (S.D. Cal. Mar. 23, 2026) (“The ‘good reason to believe’ standard is not a very high

bar.” (quoting Freeman v. Watkins, 2009 WL 10714999, at *3 (S.D. Tex. Dec. 22,

2009))).

In attempting to rebut Dong’s prima facie showing, the government points to the

pending identification verification request, Docket Item 10-1 at 3, and the fact that “a

chartered removal flight to” China occurred earlier this year, Docket Item 13. But as the

government itself admits, the verification request is just a first step: once completed, the

government still will need to “present [a] travel document request to the” Chinese

embassy. Docket Item 10-2 ¶ 11. What is more, the government provides no evidence

of either a “repatriation agreement” with China or “specific assurances” from the

Chinese government about “its willingness to accept [Dong],” Hassoun, 2019 WL

78984, at *4, nor does it say whether it may try to remove Dong to a country other than

China. And the fact that others may have been removed to China sometime in the past

few months says little about when—or even whether—Dong might be removed.

In light of the lack of progress that has been made since Dong was arrested last

fall, the government’s proffered evidence and explanation is insufficient to rebut Dong’s

showing. See Chen v. English, 2026 WL 1113371, at *3 (N.D. Ind. Apr. 24, 2026)

(taking into account “China’s historical reluctance to accept individuals for removal,”

government did not rebut petitioner’s showing “when travel documents have not been

obtained six months after their request” and there was no indication of “negotiations that

would merit particular deference”); Yu v. Noem, 2026 WL 352840, at *3 (W.D. Mich.

Feb. 9, 2026) (government did not rebut petitioner’s showing where travel document

request had been sent to Chinese embassy but no response had been received). Dong

therefore has demonstrated that he is entitled to relief under Zadvydas, the

government’s motion to dismiss—premised on its argument that Dong had not raised a

viable claim under Zadvydas—is denied, and Dong is entitled to his immediate release.7

See Trejo v. Warden of ERO El Paso East Montana, 807 F. Supp. 3d 697, 712 (W.D.

Tex. 2025) (“The remedy for a Zadvydas claim is generally release of the habeas

petitioner under conditions of supervision.”); see also Diallo, 817 F. Supp. 3d at 210

(“[T]he ‘typical remedy’ for ‘unlawful executive detention is, of course, release.’” (quoting

Munaf v. Geren, 553 U.S. 674, 693 (2008) (alteration omitted)); Lema, 2026 WL

380402, at *2 (ordering immediate release of petitioner who brought successful

Zadvydas claim).

7 Because Dong is entitled to his release under Zadvydas, the Court need not

address the other arguments raised in his petition.

CONCLUSION

For the reasons stated above, Dong’s petition, Docket Item 1, is GRANTED, and

the government’s motion to dismiss, Docket Item 10, is DENIED. Within 24 hours of

the issuance of this order, Dong shall be released from custody. The respondents may,

in their discretion, impose conditions of release. On or before May 28, 2026, the

government shall file an affidavit attesting to Dong’s release.

SO ORDERED.

Dated: May 26, 2026

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE