Thao

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHAI THAO, : No. 3:26cv608

Petitioner :

: (Judge Munley)

V. : FILED

: SCRANTON

ANGELA HOOVER, Warden, Clinton : MAY 18 2026

County Correctional Facility, :

Respondent : PER Che’

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MEMORANDUM

Before the court is Petitioner Chai Thao’s petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241. Thao seeks release from immigration detention as

the Department of Homeland Security (“DHS”), Immigration and Customs

Enforcement (“ICE”) attempts to remove him to countries not originally

designated on his final order of removal. The core question presented by this

petition is whether 8 U.S.C. § 1226(c) or § 1231(a)(6) applies to Thao’s present

detention. Furthermore, the key issue for the court to resolve is whether the

reopening of Thao’s administrative proceedings with respect to third country

removal vacated a final removal order with respect to the original country

designated. For the reasons set forth below, the court holds that the original

removal order was not vacated. Thao’s petition will thus be granted in part, and

he will be released on supervision.

Background

Thao is ethnically Hmong and his family is originally from Laos. (Doc. 1-5,

Pet. Decl. J 1). Thao’s grandfather fought for the Hmong resistance against the

communist government in Laos. Id. 46. In approximately 1980, before he was

born, Thao’s family fled to Ban Vinai Refugee Camp in Thailand. Id. {J 7.

Thao was born in a refugee camp approximately 41 years ago. Id. He

spent his first twenty years of life in a camp. (Doc. 5-3, 1-589 App. at ECF p. 6).

He only speaks Hmong. (Doc. 1-5, Pet. Decl. 2).

Thao, his wife, and their two children were admitted to the United States in

2005 as refugees. Id. 9. They settled in Wausau, Wisconsin. Id. The petitioner

has four other children, all born in Wausau. Id. § 11. Thao worked as a butcher

at a grocery store. Id. J 10. He became a lawful permanent resident in 2007.

(Doc. 1-6, Notice to Appear).

According to Thao, his coworkers at the grocery store introduced him to

methamphetamine. (Doc. 1-5, Pet. Decl. J] 12-13). He began using and selling

to support his addiction. ld. J 14. The petitioner is a convicted drug dealer. He

has multiple state and federal convictions for distributing methamphetamine.

(Doc. 1, Pet. | 29). He spent years in state and federal prisons. Id.

Removal proceedings began while Thao was still in the custody of the

Federal Bureau of Prisons. ld. J 30. On September 13, 2024, an immigration

judge (“lJ”) determined that petitioner was deportable pursuant to 8 U.S.C. §

1227(a)(2)(A)(ili) and (a)(2)(B)\i) due to his multiple criminal convictions,

including his convictions related to controlled substances. (Doc. 1-2). The lJ

ordered petitioner removed to Laos, but deferred removal under the Convention

Against Torture. Id. Both Thao and DHS waived appeal of this order. Id. At no

point during the proceedings did DHS designate a third-country or indicate that it

intended to remove Thao to any country besides Laos.

Thao completed his criminal sentence on May 23, 2025. (Doc. 1, Pet. J

34). ICE took him into custody thereafter. Id. Five days later, DHS served Thao

with three separate notices of removal, stating its intent to remove him to El

Salvador, Mexico, and Rwanda, countries that were not contemplated in the

removal order. (Doc. 1-3).

At the present time, Thao is contesting removal to these third countries in

administrative proceedings. Thao filed a motion to reopen in immigration court.

Although initially denied, an IJ granted reconsideration on November 18, 2025.

(Doc. 1-4). After removal proceedings were reopened, on April 1, 2026, an IJ

ordered Thao removed to Mexico or, in the alternative, to El Salvador or Rwanda.

(Doc. 5-5). The IJ denied deferral of removal under the Convention Against

Torture regarding these other countries. Id. Thao has appealed this

determination to the Board of Immigration Appeals (“BIA”)."

Thao asserts that he was detained under 8 U.S.C. § 1231(a) for 179 days,

one day shy of the six-month mark delineated for due process purposes in

Zadvydas v. Davis, 533 U.S. 678 (2001). Based on the reopening of removal

proceedings, he asserts that he is now detained under 8 U.S.C. § 1226(c) and

entitled to release on his own recognizance due to his detention becoming

unconstitutionally prolonged. In the alternative, Thao requests a constitutionally

adequate bond hearing.

The government counters that the court lacks jurisdiction over this case. In

the alternative, the government argues that Thao is a member of the certified

class in D.V.D. v. U.S. Dep't of Homeland Sec. No. CV 25-10676-BEM, --- F.

Supp. 3d ----, 2026 WL 521557 (D. Mass. Feb. 25, 2026), app. filed, No. 26-1212

(1st Cir. Mar. 23, 2025), and that this case should be dismissed or stayed. In the

second alternative, the government argues that Thao’s detention has not become

unreasonable. The government advances the view that 8 U.S.C. § 1231(a)(6) still

applies to Thao’s detention.

1 This information was derived on May 8, 2026 from the Department of Justice’s Executive

Office for Immigration Review website (https://acis.eoir.justice.gov/en/) by inputting Thao’s A-

number and nationality. Thao’s asylum application asserts that he fears torture in Mexico, EI

Salvador, and Rwanda.

Jurisdiction

The government's primary challenge to Thao’s petition is jurisdictional in

nature. Federal district courts are authorized to grant a writ of habeas corpus

under 28 U.S.C. § 2241 where the petitioner is detained “in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

Respondents assert, however, that 8 U.S.C. § 1252(b)(9) and (g) strip this court

of jurisdiction. The court disagrees.

Pursuant to Section 1252(b)(9):

Judicial review of all questions of law and fact, including

interpretation and application of constitutional and statutory

provisions, arising from any action taken or proceeding

brought to remove an alien from the United States under

this subchapter shall be available only in judicial review of

a final order under this section. Except as otherwise

provided in this section, no court shall have jurisdiction, by

habeas corpus under section 2241 of Title 28 or any other

habeas corpus provision ... to review such an order or such

questions of law or fact.

8 U.S.C. § 1252(b)(9).

Under this section of the Immigration and Nationality Act, “a petition for

review filed with an appropriate court of appeals...shall be the sole and exclusive

means for judicial review of an order of removall.]” 8 U.S.C. § 1252(a)(5)

Section 1252(b)(9) has been referred to as a “zipper clause,” Reno v. Am.-

Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999) (“AADC”), which

channels removal claims into a single petition for review, E.O.H.C. v. Sec'y

United States Dep't of Homeland Sec., 950 F.3d 177, 186 (3d Cir. 2020). That is,

“Congress intended the zipper clause to ‘consolidate judicial review of

immigration proceedings into one action in the court of appeals.’ ” Guerrero-

Lasprilla v. Barr, 589 U.S. 221, 230 (2020) (quoting INS v. St. Cyr, 533 U.S. 280,

313 (2001)).

Despite the wording of the statute, Section 1252(b)(9) does not bar all

habeas petitions. As the Supreme Court has explained, Section 1252(b)(9) “

‘does not present a jurisdictional bar’ where those bringing suit ‘are not asking for

review of an order of removal,’ ‘the decision ... to seek removal,’ or ‘the process

by which ... removability will be determined.” ’ Dep't of Homeland Sec. v. Regents

of the Univ. of California, 519 U.S. 1, 19 (2020) (quoting Jennings v. Rodriguez,

583 U.S. 281, 294—95 (2018) (Alito, J., plurality op.), 355 (Breyer, J., dissenting)

(“Jurisdiction also is unaffected by 8 U.S.C. § 1252(b)(9), which by its terms

applies only with respect to review of an order of removal under Section

1252(a)(1).”) (cleaned up).

Here, Thao is not challenging any aspect of a removal order or any

decision during the reopened removal proceedings before the IJ or the BIA. The

petitioner asserts that his right to due process is being violated from his

continued detention while the third-country removal process is adjudicated.

Section 1252(b)(9) simply does not apply.

The court reaches the same result with respect to 8 U.S.C. § 1252(g),

another jurisdiction-stripping provision. That subsection provides:

Except as provided in this section and notwithstanding any

other provisions of law ... no court shall have jurisdiction to

hear any cause or claim by or on behalf of any alien arising

from the decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute

removal orders against any alien under this chapter.

8 U.S.C. § 1252(g).

Here, the court's jurisdiction is not barred by Section 1252(g) since Thao's

claim does not challenge the commencement of removal proceedings, the

Attorney General's decision to adjudicate, or the execution of a removal order.

See AADC, 525 U.S. at 482 (finding that Section 1252(g)(2) divests the court of

jurisdiction “only to [these] three discrete actions’).

The court thus returns to Section 2241(c)(3). Thao filed the instant petition

while detained at a jail in Clinton County, Pennsylvania within the Middle District

of Pennsylvania. The petitioner asserts that his continued detention violates his

right to due process. Based on the government’s response and Thao’s traverse,

he also asserts that the wrong provision of the INA is being used to justify his

detention. Consequently, the court has habeas jurisdiction over the petition.

Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004); see also Zadvydas, 533 U.S. at

688 (“We conclude that § 2241 habeas corpus proceedings remain available as a

forum for statutory and constitutional challenges to post-removal-period

detention.”); German Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203,

208 (3d Cir. 2020) (finding that the district court had federal question jurisdiction

and habeas jurisdiction under Section 2241 to hear a challenge to prolonged

detention pursuant to 8 U.S.C. § 1226(c)).

Analysis

1. The D.V.D. Dismissal or Stay Argument

With the jurisdictional issue resolved, the respondents alternatively request

dismissal or a stay because, per their position, Thao is a class member certified

inD.V.D. This argument lacks any substantive application to this case.

In short, D.V.D. is a class action matter involving notice and an opportunity

to be heard before the government attempts to remove noncitizens to third-

countries not designated on their order of removal. See 2026 WL 521557. And

while Thao is critical of the process he received between May 2025 and

November 2025 regarding the government's efforts to remove a Hmong-

speaking refugee with drug convictions to Central America or Africa, that criticism

is not why he filed the habeas petition. Rather, all evidence indicates that Thao

ultimately received notice and a hearing before an IJ and an opportunity to

appeal and if necessary, the ability to file a petition for review with the

appropriate Circuit Court of Appeals. To the extent that Thao was, is, or will be a

member of the D.V.D. class, he has essentially been awarded the relief that is

being reviewed by the First Circuit Court of Appeals at the present time. Id. at *44

(declaring that class members have the right to meaningful notice before removal

to any third country and have the right to a meaningful opportunity to raise a

country-specific claim against removal before removal to any third country).

2. Thao’s Detention Has Become Unconstitutionally Prolonged

The court now reaches Thao’s primary argument that his continued

detention violates his right to due process of law. As an initial matter, there is a

dispute between Thao and the government regarding which provision of the

Immigration and Nationality Act applies to his detention. Thao contends that 8

U.S.C. § 1226(c) applies. Respondents assert that 8 U.S.C. § 1231(a)(6)

applies.

a. The Parties’ Positions

Thao argues that the final order of removal order was vacated when his

motion for reconsideration was granted. In conjunction with that argument,

Thao’s reply analyzes the German Santos factors as if removal proceedings

have started anew and Section 1226(c) applies to his detention. (Doc. 5 at 8-11).

On the other hand, the government takes the position that the reopening of

removal proceedings does not negate the underlying removal order but was

“instead for the purpose of examining whether [p]etitioner has a reasonable fear

of persecution if removed to a third country.” (Doc. 4, Resp. at 19). The

government thus analyzes Thao’s claim as one pursuant to Section 1231(a)(6)

and Zadvydas.

The relief afforded by German Santos is a bond hearing “to gauge whether

[petitioner] still needs to be detained to keep him from fleeing or committing more

crimes.” 965 F.3d at 213. The relief afforded by Zadvydas is conditional release

if the government cannot rebut a showing that removal will not occur in the

reasonably foreseeable future. 533 U.S. at 701. The parties’ respective positions

appear to be contrary to their interests.

b. Whether Reopening of Removal Proceedings Vacates the

Prior Removal Order in this Case

Notwithstanding such puzzling positions, when a noncitizen is charged with

being removable from the United States, an [J conducts a hearing, receives and

considers evidence, and determines whether the noncitizen is removable. Nken

v. Holder, 556 U.S. 418, 439 (2009) (Alito, J. dissenting) (citing 8 U.S.C. §

1229a(a), 8 CFR §§ 1240.1(a)(1)(i), (c) (2008)). “After the removal order is final

and enforceable, the alien may file a motion to reopen before the IJ, see 8 U.S.C.

§ 1229a(c)(7), or a petition for review before the appropriate court of appeals,

see § 1252(a)(1).” Id. By statute, motions to reopen address “new facts” that a

petitioner asserts “will be proven at a hearing.” 8 U.S.C. § 1229a(c)(7)(B).

On September 13, 2024, an IJ determined that Thao was removable to

Laos, but deferred removal under the Convention Against Torture. (Doc. 1-2).

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Neither Thao nor DHS appealed. That order became final. On May 30, 2025,

upon Thao’s release from federal criminal custody, ICE served the petitioner with

notices of removal to El Salvador, Mexico, and Rwanda. (Doc. 1-3). On

November 18, 2025, an IJ reconsidered its order not to reopen proceedings.

(Doc. 1-4). The grant of reconsideration means that Thao’s proceedings were

reopened.

The key question here is whether reopening of proceedings vacated any

removal order issued in earlier proceedings. No precedential opinion of the

Supreme Court of the United States or the Third Circuit Court of Appeals governs

this determination.

Moreover, “[t]here is some disagreement among the circuits as to whether

the filing of a motion to reopen is itself part of the underlying immigration

proceedings or more appropriately characterized as the commencement of a new

proceeding altogether.” Bronisz v. Ashcroft, 378 F.3d 632, 636 (7th Cir. 2004). In

Bronisz, the Seventh Circuit adopted a rule that when a motion to reopen is

granted in the immigration context, it is akin to a district court granting a motion

under Federal Rule of Civil Procedure 60(b), which, in effect, vacates the

previous judgment of the case. Id. at 637. By its analysis, the Seventh Circuit

joined the Second, Fourth, and Tenth Circuits in so holding. Id. at 636 (citing

Aguilera v. Kirkpatrick, 241 F.3d 1286, 1290 n. 2 (10th Cir. 2001); Stewart v. INS,

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181 F.3d 587, 593 (4th Cir. 1999); Vargas v. INS, 938 F.2d 358, 362 (2d Cir.

1991)). Per Bronisz, a decision of the First Circuit was the outlier. Id. (citing

Wright v. Ouellette, 171 F.3d 8, 12 (1st Cir. 1999) (holding that motions to reopen

are more akin to starting a new proceeding)).

In his reply brief, Thao points to an “understanding” in this circuit that “the

- | grant of a motion to reopen vacates the previous order of deportation or removal

and reinstates the previously terminated immigration proceedings.” (Doc. 5 at 4)

(citing Mebuin v. Att'y Gen., 570 F. App'x 161, 162 (3d Cir. 2014)). In Mebuin the

Third Circuit dismissed a petition for review for lack of jurisdiction because the

BIA had granted a motion to reopen due to an ineffective assistance of counsel

claim. Id. In so holding, the Mebuin court referred to Bronisz. Id. Thao argues as

if Mebuin conclusively adopted a rule that motions to reopen vacate underlying

removal orders and reinstate previously terminated immigration proceedings.

The court disagrees. Mebuin is a non-precedential decision that is

procedurally and factually dissimilar. That is, in Mebuin, the Third Circuit

analyzed whether it had jurisdiction to hear an administrative appeal, not which

provision of the INA applied to a habeas petitioner’s detention following the

reopening of removal proceedings. Mebuin itself is not persuasive. And Thao

points to no other case where the Third Circuit has conclusively adopted the

Bronisz rule in a precedential opinion with similar facts.

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Returning to the statute, motions to reopen address “new facts.” 8 U.S.C. §

1229a(c)(7)(B). This dispute can be resolved by determining whether “new facts’

are about the prior determination or about a new determination. Here, the “new

facts” presented by Thao in the underlying removal proceedings have nothing to

do with the removal order to Laos or deferral of removal to that country under the

Convention Against Torture. Rather, Thao’s “new facts” deal with third countries:

Mexico, El Salvador, and Rwanda. Thus, Thao’s case involves a reopening of

administrative proceedings, but it does not involve the reopening of the record

with respect to the Laos removal order.

That distinction is manifest in the factual record. Thao’s motion to reopen

addressed his lack of opportunity to present a fear-based claim to authorities

regarding Mexico, El Salvador, and Rwanda. (Doc. 5-2). In his motion to reopen,

he explicitly argued: “because the basis for reopening is new and previously

unavailable evidence of DHS's intention to deport...to a nondesignated

country... this motion is excused from the statutory and regulatory reopening

standards and filing requirements.” Id. at 5-6. In requesting reopening, Thao did

not seek to vacate his Laos removal order, but to stay removal and allow for him

to seek protection from Mexico, El Salvador, and Rwanda. Id.

The lJ’s recent order upon reopening also reflects the distinction. The

order provides:

13

RESPONDENT WAS PREVIOUSLY GRANTED DCAT

FROM LAOS. RESPONDENT TODAY WAS SEEKING

DCAT FROM MEXICO, EL SALVADOR AND RWANDA

WHICH WAS DENIED.

(Doc. 5-5 at 2). 2

Thao has an administratively final order with respect to Laos. That order

was not vacated when administrative proceedings were reopened to address

removal to different countries. His motion to reopen sought a new adjudication.

It is, for all intents and purposes, a new case.

Consequently, based on the original final removal order with respect to

Laos, 8 U.S.C. § 1231(a) applies to Thao. The Laos removal order covers the

entire period of his immigration detention to date.

c. The Zadvydas Framework Compels Release

When a noncitizen is ordered removed, the government shall remove that

person from the United States within a period of 90 days, the removal period. 8

U.S.C. § 1231(a)(1)(A). Section 1231 contains statutory provisions defining

when the removal period begins. Id., § 1231(a)(1)(B). The removal period begins

on the latest of the following 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 alien, the date of

the court's final order[;] or (iii) If the alien is detained or

2“DCAT’ refers to deferral of removal under the Convention Against Torture.

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confined (except under an immigration process), the date

the alien is released from detention or confinement.

Id. During the removal period, the individual subject to the removal order shall be

detained. Id., § 1231(a)(2)(A).

Only Section 1231(a)(1)(B)(ill) is applicable to the petitioner. That is,

Thao’s removal period began on the date he was released from federal prison on

May 23, 2025. The Section 1231(a)(1)(A) removal period in this case ended on

August 21, 2025.

“After that 90-day period, aliens ordered removed as inadmissible under 8

U.S.C. § 1182, like petitioner may be detained beyond the removal period or

released under supervision.” Munoz-Saucedo v. Pittman, 789 F. Supp. 3d 387,

395 (D.N.J. 2025) (quoting 8 U.S.C. § 1231(a)(6); Zadvydas, 533 U.S. at 683)

(cleaned up). Section 1231(a)(6) does not expressly specify how long detention

past the 90-day removal period may continue. Johnson v. Arteaga-Martinez, 596

U.S. 573, 579 (2022).

In Zadvydas, the Supreme Court construed 8 U.S.C. § 1231(a)(6) to permit

detention “only for a period reasonably necessary to secure removal,” and

recognized a “presumptively reasonable” six-month detention period. * 533 U.S.

3 The statute's use of “may” suggests discretion, not necessarily unlimited discretion; it is thus

ambiguous. Clark v. Martinez, 543 U.S. 371, 377 (2005) (quoting Zadvydas, 533 U.S. at 697,

689, 699). Based on that perceived ambiguity and the serious constitutional threat posed by

indefinite detention of noncitizens, the United States Supreme Court interpreted Section

15

at 699, 701. After six months, “once the alien provides good reason to believe

that there is no significant likelihood of removal in the reasonably foreseeable

future, the [gjovernment must respond with evidence sufficient to rebut that

showing.” Id. at 701.

In this case, the six-month mark passed on November 19, 2025. Under the

relevant framework, petitioner has established “good reason to believe that there

is no significant likelinood of removal in the reasonably foreseeable future.”

Zadvydas, 533 U.S. at 701. He has a final order withholding his removal to Laos.

He has an order of removal to Mexico (or El Salvador or Rwanda) freshly

appealed to the BIA earlier this month. It may take months or even years for the

Mexico removal order to be finalized. As of today, Thao has been detained

under a final removal order for 355 days.

“Zadvydas does not delineate the boundaries of evidentiary sufficiency, but

it suggests that an inversely proportional relationship is at play: the longer an

is detained, the less he must put forward to obtain relief.” Alexander v. Att'y

Gen. U.S., 495 F. App'x 274, 276-77 (3d Cir. 2012). The government, despite

arguing that Section 1231(a)(6) governs Thao’s detention, did not supply

1231(a)(6) to permit only detention that is related to the statute's basic purpose of effectuating

removal See id. (quoting Zadvydas, 533 U.S. at 699); see also Johnson, 596 U.S. at 579

(discussing Zadvydas).

16

anything other than a conclusory argument that there is a significant likelihood of

his removal in the reasonably foreseeable future. (Doc. 4, Resp. at 20-21). That

is insufficient to rebut Thao’s evidence. Removal is not reasonably foreseeable

given Thao’s appeal of the Mexico removal order to the BIA and the potential to

then appeal to the appropriate Circuit Court.

Therefore, because the evidence does not demonstrate a significant

likelihood that Thao will be removed to Laos, Mexico, E] Salvador, or Rwanda in

the reasonably foreseeable future, he will be ordered released from confinement

at the Clinton County Correctional Facility. The Zadvydas framework dictates

this outcome. 533 U.S. at 699-700 (“if removal is not reasonably foreseeable, the

court should hold continued detention unreasonable and no longer authorized by

statute.”)

Nonetheless, Thao’s release from custody will be subject to conditions. □□□

at 700 (“the alien's release may and should be conditioned on any of the various

forms of supervised release that are appropriate in the circumstances[.])

The statute, 8 U.S.C. 1231(a)(3), authorizes supervision under promulgated

regulations, 8 C.F.R. § 241.5. Thao “may no doubt be returned to custody upon

a violation of those conditions.” Zadvydas, 533 U.S. at 700 (citations omitted).

Furthermore, as indicated above, Thao has been convicted at the state and

federal level for dealing methamphetamine. Thao’s criminal record also includes

17

convictions for jumping bail. According to the court's review, however, the

incarceration components of his criminal sentences are now over. He is now

subject to periods of supervised release in his criminal cases — 4 years on the

federal charges and 6 years on the state charges. To the extent that there is

any concern that “illegal, inadmissible aliens will be released notwithstanding

their criminal history and obvious flight risk” as the result of the Zadvydas

framework, 533 U.S. at 717 (Scalia, J., dissenting), federal and state authorities

will be supervising the petitioner’s release in this case. Ostensibly, Thao will

have to report to ICE, United States Probation, and to a state probation office in

Wisconsin at frequent and regular intervals.

Conclusion

For the reasons set forth above, 8 U.S.C. § 1231(a)(6) applies to Thao’s

detention and his detention has become unreasonable. His petition for writ of

habeas corpus will be granted, and he will be released on conditions. An

appropriate order follows.

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Unie JULIA K. MUNL#

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