The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
YIFEI JIANG, )
)
Petitioner, )
)
v. ) Case No. CIV-26-878-HE
)
CHRIS GANTT1, et al., )
)
Respondents.2 )
REPORT AND RECOMMENDATION
Petitioner Yifei Jiang, a Chinese citizen proceeding with counsel, filed a petition for
a writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”) challenging his detention by
the U.S. Immigration and Customs Enforcement (“ICE”).3 (Doc. 1).4 United States
District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial
proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). (Doc. 4). In accordance with
1 Chris Gantt has succeeded Dr. Scarlet Grant as Warden of Cimarron Correctional Facility.
Pursuant to Federal Rule of Civil Procedure, 25(d), Mr. Gantt is automatically substituted
as a Respondent in this action. The Response was not filed on behalf of Mr. Gantt because
he is not a federal official. (Doc. 13, at 1). The undersigned concludes that a separate
response from Warden Gantt is not necessary to resolve this matter.
2 David Venturella was announced as Acting Director of U.S. Immigration and Customs
Enforcement on June 1, 2026. He replaces Todd Lyons and is substituted as the proper
respondent pursuant to Federal Rule of Civil Procedure 25(d).
3 Petitioner is housed at Cimarron Correctional Facility in Cushing, Oklahoma. (Doc. 1, at
3).
4 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
the expedited briefing schedule, (Doc. 11), Respondents timely filed a Response. (Doc.
13). Petitioner timely filed a Reply. (Doc. 14). For the reasons set forth below, the
undersigned recommends that Petitioner be GRANTED habeas relief and released from
custody immediately.
I. Factual Background and Procedural History
Petitioner is a citizen of China who arrived at a port of entry near Savannah, Georgia,
on August 12, 1999. (Doc. 13, at Ex. 2, at 1-2). The former Immigration and Naturalization
Service5 took Petitioner into custody. (Id.) On August 15, 1999, the government initiated
removal proceedings through issuance of a Notice to Appear (“NTA”) designating
Petitioner as an “arriving alien” and charging him as inadmissible under 8 U.S.C. §
1182(a)(7)(A)(i)(I) for lacking a valid visa/entry document and under 8 U.S.C. §
1182(a)(4)(A) for being a non-citizen likely to become a public charge. (Id.)
Petitioner was detained at a juvenile detention facility until February 25, 2000, when
DHS released him on an Order of Recognizance subject to monthly reporting requirements.
(Doc. 13, at Ex. 3). On January 9, 2001, Petitioner failed to appear for his immigration
court hearing and was ordered removed to China in absentia pursuant to 8 U.S.C. §
1229a(b)(5)(A). (Doc. 13, at Ex. 4, at 1).
5 The Immigration and Naturalization Service (“INS”) ceased to exist as a separate agency
in 2003, when its functions were transferred to the Department of Homeland
Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135
(codified as amended at 6 U.S.C. §§ 251, 271, 291). For ease of reference, the undersigned
hereinafter refers to the agency and its successor components as “DHS” and/or “ICE.”
Petitioner subsequently filed a motion to reopen his case, which was denied by an
Immigration Judge on July 24, 2001. (Doc. 13, at Ex. 5, at 1). Petitioner appealed the
denial of the motion to reopen to the Board of Immigration Appeals (“BIA”). (Id.) On
February 25, 2002, the BIA affirmed the decision of the Immigration Judge and dismissed
Petitioner’s appeal. (Id. at 2).
On March 18, 2011, Border Patrol agents encountered and arrested Petitioner near
San Angelo, Texas. (Doc. 13, at Ex. 6, at 2). Petitioner was taken into ICE custody for
execution of the 2001 order of removal. (Doc. 13, at Ex. 1, at 2; Id. at Ex. 6, at 3). On
November 14, 2011, Petitioner’s application for a travel document to China was denied.
(Doc. 13, at Ex. 1, at 2). On December 19, 2011, ICE released Petitioner from custody on
an Order of Supervision (“OOS”) after determining that Petitioner’s removal was not
significantly likely in the reasonably foreseeable future.6 (Doc. 13, at Ex. 1, at 2; Id. at Ex.
8, at 3). Petitioner alleges he has always complied with the conditions of his OOS, and
Respondents do not rebut this allegation. (Doc. 1, at 7).
On August 15, 2025, United States Citizenship and Immigration Service (“USCIS”)
issued Petitioner a second NTA after an asylum application filed by Petitioner’s spouse, on
which Petitioner was listed as a rider, was referred to the immigration court. (Doc. 13, at
Ex. 7, at 1; Id., at Ex. 8, at 3). The second NTA charges Petitioner as removable under 8
6 The record does not contain the December 2011 OOS. However, the Form I-213, Record
of Inadmissible/Deportable Alien, dated January 21, 2026, states that Petitioner was
released in 2011 on an order of supervision “due to being NSLRRFF.” (Doc. 13, at Ex. 8,
at 3). This acronym is shorthand for a determination that there is “No Significant
Likelihood of Removal in the Reasonably Foreseeable Future.”
U.S.C. § 1182(a)(6)(A)(i) for being a non-citizen present without admission or parole.
(Doc. 13, at Ex. 7, at 1). In their briefing, Respondents characterize this NTA as having
been “improvidently issued.” (Doc. 13, at 3; Id. at Ex. 1, at 2-3).
On January 20, 2026, Petitioner reported to the ICE Dallas Field Office for a routine
check-in appointment in accordance with his OOS. (Doc. 1, at 2; Doc. 13, at Ex. 8, at 1-
2). Officers conducting record checks determined that Petitioner was subject to a final
order of removal and re-detained him. (Doc. 13, at Ex. 1, at 2). However, ICE’s
contemporaneous records state that “[p]er OPLA the subject’s order of removal cannot be
executed at this time due to his pending EOIR date.” (Doc. 13, at Ex. 8, at 4).
Petitioner filed the instant Petition on April 22, 2026. (Doc. 1).
On May 26, 2026, DHS filed a motion to dismiss Petitioner’s removal proceedings,
which was granted by an Immigration Judge on May 27, 2026. (Doc. 13, at Ex. 1, at 3).
However, Petitioner appealed the dismissal order, and the appeal remains pending.7
In his declaration, ICE Deportation Officer George McGettrick attests that “[o]n
May 28, 2026, Notification was sent to Cimarron contact officers to have [Petitioner] fill
out the travel document application and China identity verification form.” (Doc. 13, at
Ex. 1, at 3). Officer McGettrick contends that he believes Petitioner’s removal to China is
“significantly likely in the reasonably foreseeable future” because of “China’s willingness
to accept its citizens and the number of successful removals ERO has made to China the
past two Fiscal Years.” (Id.)
7 See EOIR Automated Case Information System, acis.eoir.justice.gov/en/caseInformation
(last visited Aug. 12, 2026).
Petitioner has been in ICE custody since January 20, 2026, and is currently detained
at the Cimarron Correctional Facility in Cushing, Oklahoma.8 (Doc. 13, at Ex. 1, at 3).
II. Petitioner’s Claims and Respondents’ Responses
Petitioner raises four grounds for relief: (1) he asserts his continued detention
violates his Fifth Amendment substantive and procedural due process rights, (Doc. 1, at
12-14); (2) he asserts Respondents violated the Administrative Procedure Act, 5 U.S.C. §
706(2), by revoking his OOS without following agency regulations, (id. at 14-15); (3) he
contends Respondents violated the Immigration and Nationality Act (“INA”) and its
implementing regulations9 by revoking his OOS and re-detaining him (a) without an
individualized determination that circumstances have changed such that Petitioner’s
removal is significantly likely in the reasonably foreseeable future and (b) without
providing Petitioner notice and an opportunity to be heard, (id. at 15-16); and (4) he seeks
a declaratory judgment under 28 U.S.C. § 2201 that the INA, its regulations, and the Due
Process Clause require such determinations and procedures before revocation and re-
detention, (id. at 16-17).
8 See ICE Detainee Locator, locator.ice.goc/odls/#/results (last visited August 12, 2026).
9 The Petition’s legal framework section identifies 8 C.F.R. § 241.13 as the operative
revocation regulation, (see Doc. 1, at 8-9), however in other sections of the Petition, he
cites to 8 C.F.R. § 241.4(l), (see id. at 15, 16). The two provisions govern different release
mechanisms and prescribe different procedures for revocation. The substance of
Petitioner’s allegations tracks the revocation provisions of 8 C.F.R. § 241.13(i)(1)-(3), and
the undersigned construes the Petition accordingly. As discussed below, the record
establishes Petitioner’s OOS was issued pursuant to § 241.13, making § 241.13(i) the
applicable revocation provision.
Petitioner requests his immediate release, or in the alternative an individualized
bond hearing before an Immigration Judge at which Respondents bear the burden of
justifying continued detention, as well as additional injunctive and declaratory relief,
including a restraint on Respondents’ transfer of him to another detention facility. (Id. at
1, 17). Petitioner also seeks an award of attorney’s fees and costs under the Equal Access
to Justice Act, 28 U.S.C. § 2412. (Id. at 17).10
Respondents contend the Petition should be dismissed and principally argue: (1) the
Petition fails to establish a prima facie claim under Zadvydas v. Davis, 533 U.S. 678 (2001),
because Petitioner has not demonstrated that there was no significant likelihood of his
removal in the reasonably foreseeable future, (Doc. 13, at 8); (2) even if Petitioner had met
his burden, Respondents have rebutted any such showing by providing statistics regarding
the increase in removals of Chinese citizens between Fiscal Years 2024 and 2025, (id. at
9); (3) Petitioner’s failure to establish a Zadvydas claim negates his substantive due process
claim, (id. at 9-10); and (4) Respondents have complied with the INA and its regulations,
(id. at 10).11 Respondents also suggest, in a footnote, that the Court lacks jurisdiction under
10 To the extent Petitioner may be entitled to EAJA fees and costs as a prevailing party, he
must seek those separately after a final judgment. 28 U.S.C. § 2412(d)(1)(B). Thus, the
Court need not address this request at this juncture.
11 The Response also characterizes Petitioner as claiming that ICE intends to remove him
“to Equatorial Guinea, despite the Immigration Judge’s withholding of removal under INA
§ 241(b)(3) and the Convention Against Torture (‘CAT’).” (Doc. 13, at 2). Petitioner
raises no such claim, has never been granted withholding of removal, and has no apparent
connection to Equatorial Guinea. This passage appears to have been carried over from
8 U.S.C. § 1252(g) to review the decision to execute Petitioner’s removal order. (Id. at 2
n.2).
III. Standard of Review
To obtain habeas corpus relief, Petitioner must show that he is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3). “[T]he primary federal habeas corpus statute, 28 U.S.C. § 2241, confers
jurisdiction upon the federal courts to hear . . . challenges to the lawfulness of immigration-
related detention.” Zadvydas, 533 U.S. at 687; see also Soberanes v. Comfort, 388 F.3d
1305, 1310 (10th Cir. 2004) (“Challenges to immigration detention are properly brought
directly through habeas.”).
IV. Legal Framework for the Detention or Release of Aliens Subject to a Final
Order of Removal
As will be explained below, Petitioner has a final order of removal, meaning that
his detention is governed by 8 U.S.C. § 1231(a). Under that statute, “when an alien is
ordered removed, the Attorney General shall remove the alien from the United States
within a period of 90 days.” Id. § 1231(a)(1)(A). This 90-day period is known as the
“removal period.” Id. The removal period begins on the latest of: (1) date that the order
of removal becomes administratively final, (2) the date of the court’s final order when a
removal order is judicially reviewed, or (3) the date the non-citizen is released from
briefing in an unrelated matter. Counsel is reminded of the obligation to ensure that factual
and legal contentions are tailored to the case at hand. See Fed. R. Civ. P. 11(b).
detention or confinement if detained, unless the non-citizen is confined under immigration
processes. Id. § 1231(a)(1)(B). During the removal period, non-citizens are subject to
mandatory detention. Id. § 1231(a)(2)(A).
When a non-citizen’s removal period lapses, he generally must be released subject
to supervision. See § 1231(a)(3). However, DHS retains the discretion to continue the
detention of certain non-citizens after the removal period, including criminal aliens. See §
1231(a)(6); see also Johnson v. Arteaga-Martinez, 596 U.S. 573, 578-579 (2022) (“After
the removal period expires, the Government may detain only four categories of people (1)
those who are inadmissible on certain specified grounds; (2) those who are removable on
certain specified grounds; (3) those it determines to be a risk to the community; and (4)
those it determines to be unlikely to comply with the order of removal.”). Continued
detention under § 1231(a)(6) triggers the ‘post-removal period.’
Johnson v. Guzman Chavez, 594 U.S. 523, 529 (2021).
The detention of a non-citizen subject to a final order of removal may not be
indefinite and is presumptively reasonable for only six months. Zadvydas, 533 U.S. at 701.
Federal regulations require ICE to release a non-citizen ordered removed from the United
States under an OOS if there is no significant likelihood that the non-citizen will be
removed in the reasonably foreseeable future. See 8 C.F.R. § 241.13(g)–(h); see also
Zadvydas, 533 U.S. at 699-700 (“[I]f removal is not reasonably foreseeable, the court
should hold continued detention unreasonable and no longer authorized by law.”).
“Once ICE releases a non-citizen on an Order of Supervision, ICE’s ability to re-
detain that non-citizen is constrained by its own regulations.” Roble v. Bondi, 803 F. Supp.
3d 766, 771 (D. Minn. 2025). As relevant here, after ICE releases a non-citizen on an
OOS, federal immigration officials may later revoke his OOS and return the non-citizen to
custody if he violates conditions of release, 8 C.F.R. § 241.13(i)(1), or “if, on account of
changed circumstances, [ICE] determines that there is a significant likelihood that the alien
may be removed in the reasonably foreseeable future.” Id. § 241.13(i)(2). Such revocation
triggers a notification and review process:
Revocation procedures. Upon revocation, the alien will be notified of the
reasons for revocation of his or her release. [ICE] will conduct an initial
informal interview promptly after his or her return to [ICE] custody to afford
the alien an opportunity to respond to the reasons for revocation stated in the
notification.
Id. § 241.13(i)(3).
V. Analysis
A. The Court Has Jurisdiction To Hear Petitioner’s Claims Regarding
ICE’s Revocation of his OOS.
Respondents suggest in a footnote that the Court “does not have jurisdiction to
review the Attorney General’s decision to execute Petitioner’s removal order” under 8
U.S.C. § 1252(g). (Doc. 13, at 2 n.2). To the extent Respondents intend this argument to
reach Petitioner’s challenge to his re-detention, the undersigned disagrees.
Judges in this District have previously rejected Respondents’ jurisdictional
arguments and should do the same here. See, e.g., Cao v. Bondi, No. CIV-25-1403-G, 2026
WL 637617, at *3 (W.D. Okla. Mar. 6, 2026) (concluding the Court’s “ability to consider
the petition is not barred by § 1252(g)” as the petitioner was “not seeking review of the
Executive’s decision to execute an order of removal” but rather arguing “he is detained in
violation of the INA because Respondents failed to comply with the applicable regulations
prior to re-detaining him after he was previously released on an OOS”) (citation modified);
Nguyen v. Bondi, No. CIV-25-1402-D, 2026 WL 396548, at *4 (W.D. Okla. Feb. 12, 2026)
(“The Court agrees with the magistrate judge’s finding that neither 8 U.S.C. § 1252(b)(9)
nor § 1252(g) deprives the Court of jurisdiction here.”); Bui v. Bondi, No. CIV-26-91-J,
2026 WL 788947, at *1 (W.D. Okla. Mar. 20, 2026); Bassam v. Grant, No. CIV-26-657-
D, 2026 WL 1832382 at * 2 (W.D. Okla. June 25, 2026) (collecting cases).
Here, Petitioner does not challenge the underlying merits of the removal. Rather,
he contends ICE unlawfully revoked his OOS, rendering his detention unlawful.
Accordingly, the Court should find it has jurisdiction to consider the Petition.
B. Petitioner’s Is Subject to an Administratively Final Order of Removal
and His Re-Detention Is Governed by 8 U.S.C. § 1231(a)(6).
The undersigned must discern the statutory authority governing Petitioner’s present
detention. The answer depends on whether Petitioner is subject to a final order of removal,
and if so, the date of the order’s finality. See Jennings v. Rodriguez, 583 U.S. 281, 298
(2018) (clarifying § 1231(a) supplies DHS’s detention authority once a non-citizen is
subject to a final removal order).
Without specifying which statute they believe governs Petitioner’s re-detention,
Respondents take the position that Petitioner’s removal order is not final. Specifically,
Respondents argue Petitioner’s “post-order detention will begin when his removal order
becomes final” and that the order “became final on May 27, 2026.”12 (Doc. 13, at 8). Per
Respondents, “the detention clock for purposes of these proceedings has not begun.” (Id.)
The undersigned finds Respondents’ arguments to be undeveloped and unpersuasive. The
undersigned concludes that Petitioner is subject to a final order of removal and that the
removal period has lapsed, meaning that Petitioner’s re-detention is governed by the post-
order detention provision of § 1231(a)(6).
On January 9, 2001, an Immigration Judge ordered Petitioner removed in absentia
under 8 U.S.C. § 1229a(b)(5)(A). Under this provision, if a non-citizen fails to appear for
his removal hearing, an Immigration Judge will issue an order of removal if the government
“establishes by clear, unequivocal, and convincing evidence” that the non-citizen is
removable and that the non-citizen was provided written notice of the hearing. See 8 U.S.C.
§ 1229a(b)(5)(A). An in absentia removal order cannot be directly appealed to the BIA
and may be rescinded only upon the granting of a motion to reopen, which never occurred
here. See id. § 1229a(b)(5)(C). Petitioner’s removal order was thus final upon issuance.13
12 Respondents’ briefing on this point states that “[t]he final order of detention became final
on May 27, 2026.” (Doc. 13, at 8). The undersigned construes this as a reference to the
final order of removal. As previously noted, on May 28, 2026, Petitioner appealed the
Immigration’s Judge’s order dismissing his removal proceedings, which remains pending.
Respondents filed their Response on the same date and appear to have been unaware of the
appeal at the time of filing. The undersigned presumes that Respondents’ position remains
that Petitioner’s removal order will become final when/if his removal proceedings are
dismissed.
13 An order of removal is final “at the earlier of two points: (1) a determination by the [BIA]
affirming such order, or (2) the expiration of the period in which the alien is permitted to
petition the BIA for review of the order.” Riley v. Bondi, 606 U.S. 259, 267 (2025) (citing
§ 1101(a)(47)(B)).
The 90-day removal period and mandatory detention under § 1231(a)(2) started on January
10, 2001, and lapsed 90 days later, on April 10, 2001. See § 1231(a)(1)(B)(i). Thus,
Petitioner entered the post-removal period on April 11, 2001, meaning that any detention
after that date is governed by § 1231(a)(6). This conclusion is reinforced by the fact that
Petitioner was released from ICE detention in 2011 on an OOS.
The only remaining question is whether the finality of Petitioner’s 2001 removal
order was disturbed when USCIS placed Petitioner in removal proceedings on August 15,
2025. It was not. Issuance of a charging document under 8 U.S.C. § 1229a and the
initiation of removal proceedings, does not, by itself, rescind or vacate a final order of
removal. See Riley, 606 U.S. at 269 (explaining that a final order of removal remains final
when withholding-only proceedings are initiated).
Congress specified that an in absentia removal order can only be rescinded when a
motion to reopen is granted. Petitioner’s motion to reopen was denied, and the BIA
dismissed his appeal from that denial. (Doc. 13, at Ex. 5, at 1-2). Respondents’ argument
that the order will become final only upon the dismissal of the removal proceedings
initiated in August of 2025 inverts the statutory scheme. The removal order has been final
since January 9, 2001, and nothing in 8 U.S.C. § 1229a permits a charging document,
issued in error or not, to unwind that finality. Respondents themselves describe the NTA
as “improvidently issued” and moved to dismiss the new proceedings precisely so that ICE
could “process [Petitioner] for removal” under the existing order. (Doc. 13, at Ex. 1, at 2-
3). Thus, Respondents’ strategy presupposes that Petitioner has an extant order of removal,
and that his removal can be effected in accordance with that original order. Accordingly,
the undersigned concludes that Petitioner is subject to a final order of removal and is in the
post-removal period, meaning that he is necessarily detained under § 1231(a)(6).
C. Petitioner’s OOS was Issued Under 8 C.F.R. 241.13.
Next, it must be determined whether Petitioner’s OOS was issued pursuant to 8
C.F.R. § 241.4 or 8 C.F.R. § 241.13, as each regulation contains distinct provisions
governing revocation. See, e.g., Bui, 2026 WL 788947, at *2 (“First, the Court is tasked
with determining whether § 241.4 or § 241.13 applies. Although both regulations include
provisions permitting Respondents to revoke an individual’s Order of Supervision, there
may be materially distinct requirements depending on which regulation applies.”);
Grigorian v. Bondi, No. 25-CV-22914, --- F. Supp. 3d ----, 2025 WL 2604573, at *5 (S.D.
Fla. Sept. 9, 2025) (“Revocation under § 241.13(i) applies only to aliens released under
§ 241.13(g)—where ICE has formally determined that there is no significant likelihood
that the alien will be removed in the reasonably foreseeable future.”).
Unlike in other recent cases in this District, no inference is required here.
Respondents’ own records state Petitioner “was previously released from ICE Custody on
OSUP due to being NSLRRFF.” (Doc. 13, at Ex. 8, at 3). That is, ICE released Petitioner
in December 2011 after determining there was no significant likelihood of his removal in
the reasonably foreseeable future, a determination consistent with the denial of his travel
document application the preceding month. (Id. at Ex. 1, at 2). Petitioner asserts that his
OOS was issued under § 241.13. See supra n.9. Respondents do not dispute that
characterization or identify an alternative regulatory basis for his release. Thus, the
undersigned concludes that Petitioner’s OOS was issued under § 241.13(g), and § 241.13(i)
governs its revocation.
D. Respondents Failed to Comply With the Notice and Interview
Requirements in § 241.13(i)(3).
Petitioner alleges Respondents failed to comply with the INA and ICE’s applicable
regulations before re-detaining him after his prior release on an OOS. (Doc. 1, at 15-16).
“‘It is well established that the Fifth Amendment entitles aliens to due process of law’ in
the context of removal proceedings.” Trump v. J.G.G., 604 U.S. 670, 673 (2025) (per
curiam) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)). The Due Process Clause is
also implicated where “an individual has reasonably relied on agency regulations
promulgated for his guidance or benefit and has suffered substantially because of their
violation by the agency.” United States v. Caceres, 440 U.S. 741, 752-53 (1979).
Under § 241.13(i), an order of supervision may be revoked in two circumstances:
(1) where the non-citizen “violates any of the conditions of release,” § 241.13(i)(1); or (2)
where, based on “changed circumstances,” ICE determines that there is a significant
likelihood of removal in the reasonably foreseeable future, § 241.13(i)(2). See Tran v.
Blanche, No. CIV-25-1357-G, 2026 WL 1181700, at *2 (W.D. Okla. Apr. 30, 2026).
Respondents do not allege Petitioner violated any conditions of release, so they must rely
solely on the “changed circumstances” prong as the justification for revocation.
When a non-citizen’s OOS has been revoked pursuant to § 241.13(i)(1) or §
241.13(i)(2), subsection (i)(3) provides that, “[u]pon revocation,” the non-citizen “will be
notified of the reasons for revocation” and afforded an informal interview. § 241.13(i)(3).
See Tran, 2026 WL 1181700, at *2 (“Revocation for either reason triggers a notification
requirement and a review process.”). “By mandating minimum procedures, the regulation
ensures the individual is afforded the basic due process protections guaranteed by the Fifth
Amendment.” Li v. Bondi, No. CIV-25-1480-J, 2026 WL 475133, at *3 (W.D. Okla. Feb.
19, 2026).
The undersigned concludes that when ICE re-detained Petitioner, ICE failed to give
him proper notice or a prompt informal interview, as required by § 241.13(i)(3). The
McGettrick Declaration does not indicate that Petitioner was provided with any written
Notice of the Revocation of his OOS or afforded an informal interview when he was taken
into ICE custody or at any time during his detention. (Doc. 13, at Ex. 1). The Declaration
states only that ICE determined Petitioner “was unlawfully present in the United States
with a prior order of removal” and took him into custody. (Id. at 2). In fact, Respondents’
briefing does not address § 241.13(i)(3) at all.14 Accordingly, the undersigned finds that
Respondents failed to comply with their own notice and interview requirements for
revocation of the OOS.
14 Respondents’ briefing addresses Petitioner’s regulatory claim in two sentences, neither
of which cites to 8 C.F.R. § 241.13, acknowledges the revocation of Petitioner’s OOS, or
engages with the substantial body of authority from this District addressing re-detention
following release under that regulation. (Doc. 13, at 10). Respondents claim to have
complied with the INA and its regulations, but they fail to provide any evidence in support
of this conclusory statement. (Id.)
E. Respondents Failed to Establish Changed Circumstances as Required
by § 241.13(i)(2).
The undersigned further finds Respondents have not met their burden to show they
determined there were “changed circumstances” such that there is a significant likelihood
that Petitioner may be removed in the reasonably foreseeable future. 8 C.F.R. §
241.13(i)(2). “[T]he burden [is] on Respondents to establish a significant likelihood of
removal in the reasonably foreseeable future in the context of re-detention under §
241.13(i)(2).” Pham v. Bondi, No. CIV-25-1157-SLP, 2025 WL 3243870, at *2 (W.D.
Okla. Nov. 20, 2025); see also Kong v. United States, 62 F.4th 608, 619-20 (1st Cir. 2023)
(finding it was burden of ICE to demonstrate substantial likelihood of removal in the
reasonably foreseeable future existed at the time of re-detention); Roble, 803 F. Supp. 3d
at 772-73; Escalante v. Noem, No. 25-cv-182 (MJT), 2025 WL 2206113, at *3 (E.D. Tex.
Aug. 2, 2025); Nguyen v. Hyde, 788 F. Supp. 3d 144, 150-51 (D. Mass. 2025).
In determining whether removal is significantly likely in the reasonably foreseeable
future, the regulations specify that ICE should consider several factors including the non-
citizen’s efforts to comply with the removal order; the history of ICE’s efforts to remove
individuals to the destination country or to third countries; the ongoing nature of ICE’s
efforts to remove the particular non-citizen and his assistance with those efforts; the
reasonably foreseeable results of those efforts; and the views of the Department of State
regarding the prospects for removal to the countries in question. 8 C.F.R. § 241.13(f).
Here, the record shows that ICE failed to make any individualized determination of
changed circumstances prior to re-detaining Petitioner. ICE’s own records affirmatively
refute any contemporaneous determination that removal was significantly likely: at the
time of Petitioner’s arrest, ICE recognized it “could not begin to process [Petitioner] for
removal until proceedings were dismissed,” and its records state that “[p]er OPLA the
subject’s order of removal cannot be executed at this time.” (Doc. 13, at Ex. 1, at 2-3; Id.
at Ex. 8, at 4). Whatever the merit of that position, Respondents cannot simultaneously
maintain that Petitioner’s removal was significantly likely in the reasonably foreseeable
future while their records state his removal order could not be executed at all. Removal
that ICE itself deemed unavailable at the moment of re-detention is the antithesis of
removal that is significantly likely in the reasonably foreseeable future.
The only removal efforts reflected in the record occurred months after Petitioner’s
re-detention. In May of 2026, more than four months after taking Petitioner into custody,
ICE sent a notification to Cimarron contact officers “to have [Petitioner] fill out the travel
document application and China identity verification form.” (Doc. 13, at Ex. 1, at 3).
Respondents do not assert the application has been completed, submitted to the Chinese
government, or acted upon in any way.
Respondents also do not claim that ICE made any effort to secure travel documents
prior to Petitioner’s re-detention. Travel documents requested and/or received after the
revocation of release do not constitute changed circumstances that can justify revocation
under § 241.13(i)(2) because they did not exist or occur at or before the time of revocation.
See e.g. Duong v. Charles, No. 1:25-cv-1375 SKO, 2025 WL 3187313, at *3 (E.D. Cal.
Nov. 14, 2025); Sarail A. v. Bondi, 803 F. Supp. 3d 775, 788 (D. Minn. 2025); Sphabmixay
v. Noem, No. 25CV2648 LL VET, 2025 WL 3034071, at *2 (S.D. Cal. Oct. 30, 2025).
Indeed, when travel documents are requested after revocation of release, courts have
granted the petition for writ of habeas corpus and ordered petitioner’s immediate release,
even if travel documents were subsequently secured. “The question . . . is not whether
petitioner’s deportation is now likely in the reasonably foreseeable future but whether such
likelihood existed at the time his [OOS] was revoked.” Munagi v. McDonald, 813 F. Supp.
3d 225, 229 (D. Mass. 2025) (granting petitioner’s release, despite the fact that the
government had obtained travel documents for petitioner’s return to Kenya, because the
travel documents were not requested until after petitioner’s release had been revoked).
“Section § 241.13(i)(2) requires a pre-arrest, individualized determination ‘on account of
changed circumstances’ that removal is reasonably foreseeable. A decision to revoke that
lacks a supporting factual basis, perhaps in hopes that such a basis will be identified post-
hoc, violates the regulatory scheme.” Pham v. Warden, No. 1:25-CV-1873 DC AC, 2026
WL 673404, at *10 (E.D. Cal. Mar. 10, 2026), report and recommendation adopted, 2026
WL 849861 (E.D. Cal. Mar. 27, 2026). See also Duong, 2025 WL 3187313, at *3, *5-
6 (granting petitioner’s writ and ordering his immediate release, despite the fact that the
government had obtained travel documents for petitioner’s return to Vietnam, because the
travel documents were not requested until almost one month after petitioner’s release had
been revoked); Sarail A., 803 F. Supp. 3d at 788-89 (granting writ of habeas corpus and
releasing petitioner after concluding that respondents violated § 241.13(i)(2) because,
among other things, a request for travel documents several weeks after petitioner’s release
was revoked “could not have constituted the supposedly changed circumstances underlying
the Notice”).
Moreover, merely requesting travel documents is also insufficient to establish that
there is a significant likelihood that Petitioner may be removed in the reasonably
foreseeable future. See Sun v. Noem, 2025 WL 2800037, at *2-3 (S.D. Cal. Sep. 30, 2025)
(“Respondents say they are ‘putting together a travel document [TD] request to send to
[the] Cambodian embassy,’ and that ‘[o]nce ICE receives the TD, it will begin efforts to
secure a flight itinerary for Petitioner.’ The Court finds these kind of vague assertions—
akin to promising the check is in the mail—insufficient to meet ICE’s own requirement to
show ‘changed circumstances’ or ‘a significant likelihood that the alien may be removed
in the reasonably foreseeable future.’”) (record citations omitted); Hoac v. Becerra, 2025
WL 1993771, at *4 (E.D. Cal. July 16, 2025) (“The fact that Respondents intend to
complete a travel document request for Petitioner does not make it significantly likely he
will be removed in the foreseeable future.”).
Finally, Respondents’ reliance on an increase in removals to China from 2024 to
2025 is insufficient to meet their burden. “Courts have found that . . . increase in frequency
of removals alone does not demonstrate significant likelihood of removal in the reasonably
foreseeable future,” in part because it does not “provide[] . . . evidence of progress . . .
made towards removal of Petitioner himself before re-detention.” Pham, 2025 WL
3243870, at *2 (emphasis added); see also Cao, 2026 WL 637617, at *5 (“[A] general
indication that removals to Vietnam were likely because removals were occurring more
frequently in 2025 than in recent years . . . does not satisfy the § 241.13(i)(2) determination
of a significant likelihood that the alien may be removed . . . .”) (internal quotation marks
omitted).
In sum, the record before the Court establishes that ICE failed to make an
individualized determination regarding the significant likelihood of Petitioner’s removal
based on changed circumstances prior to Petitioner’s re-detention as required by
§ 241.13(i)(2).
F. ICE’s Failure To Abide by its Regulations Warrants Habeas Relief in
the Form of Immediate Release.
A majority of district courts have granted habeas relief in similar circumstances
finding that “fail[ure] to comply with § 241.13(i)(2) in establishing a change of
circumstances that demonstrated a significant likelihood of removal in the reasonably
foreseeable future at the time of Petitioner’s re-detention” or “not providing the Petitioner
with written notice of the reasons for his revocation” under § 241.13(i)(3) “amounts to a
due process violation, entitling the petitioner to habeas relief.” See, e.g., Pham, 2025 WL
3243870, at *1 (collecting cases); Ye v. Bondi, No. CIV-25-1230-D, 2025 WL 3485420, at
*2 (W.D. Okla. Dec. 4, 2025) (same); Nguyen v. Bondi, No. CIV-26-0056-HE, 2026 WL
1034405, at *1 (W.D. Okla. Apr. 16, 2026) (“[T]he court joins the majority view, that the
‘regulatory defects amount to due process violations that entitled a petitioner to habeas
relief.’”) (quoting Pham).
Based on the facts and circumstances of this case, the undersigned concludes that
Respondents’ violation of §§ 241.13(i)(2) and (i)(3) denied Petitioner the process to which
he was entitled by law and that such a denial entitles Petitioner to habeas relief.
See Thabata v. Blanche, No. CIV-26-531-J, 2026 WL 1495209 (W.D. Okla., May 28,
2026) (distinguishing Bahadorani, rejecting the argument that Respondents’ failure to
comply with § 241.13(i)(3) constitutes a harmless error, and granting habeas relief in
factually similar circumstances); Hamidi, 2025 WL 3452454, at *4 (granting habeas relief
where respondents failed to satisfy § 241.13(i)(2)).
Therefore, because ICE violated its own regulations, the undersigned concludes that
Petitioner’s detention is unlawful and his immediate release is appropriate under 28 U.S.C.
§ 2241(c)(3).
VI. This Court Lacks Jurisdiction To Prohibit Petitioner’s Transfer.
Petitioner requests that the Court enjoin Respondents “from transferring Petitioner
to another detention facility.” (Doc. 1, at 17). This Court cannot grant such relief.
Under 8 U.S.C. § 1252(a)(2)(B)(ii), “no court shall have jurisdiction to review any
other decision or action of the Attorney General or the Secretary of Homeland Security the
authority for which is specified under this subchapter to be in the discretion of the Attorney
General or the Secretary of Homeland Security.” Id. (citation modified). The decision
regarding where to detain non-citizens awaiting removal proceedings is a discretionary
power of the Secretary of DHS. Under 8 U.S.C. § 1231(g)(1), ICE “shall arrange for
appropriate places of detention for aliens detained pending removal or a decision on
removal.” The Tenth Circuit has confirmed “the Attorney General is mandated to arrange
for appropriate places of detention for [persons] detained pending removal.” Van Dinh v.
Reno, 197 F.3d 427, 433 (10th Cir. 1999) (holding in a civil rights lawsuit “a district court
has no jurisdiction to restrain the Attorney General’s power to transfer [ICE detainees] to
appropriate facilities by granting injunctive relief”). Accordingly, § 1252(a)(2)(B)(ii) also
bars judicial review of any decision by Respondents to transfer Petitioner to another ICE
facility. See, e.g., Lway Mu v. Whitaker, 18-cv-06924, 2019 WL 2373883, at *5 (W.D.N.Y.
June 4, 2019) (citing § 1231(g)(1) and concluding “it does not have the authority to dictate
to DHS where Petitioner should be housed”); Olola v. U.S. Att’y Gen., No. 18-CV-00058-
GPG, 2018 WL 11446892, at *4 (D. Colo. Feb. 22, 2018) (finding § 1252(a)(2)(B)(ii) and
§ 1231(g) preclude judicial review of respondents’ decision to transfer a noncitizen and
“decisions to transfer an alien from one location to another are within the discretion of the
Attorney General and therefore may not be reviewed or enjoined by the federal district
courts”).
Therefore, the undersigned concludes the Court does not have jurisdiction to
prohibit Petitioner’s transfer to another ICE facility.
VII. The Court Should Decline to Address Petitioner’s Remaining Claims.
Because the undersigned recommends that the Court grant the Petition after finding
ICE violated its own regulations in revoking Petitioner’s OOS and re-detaining him, the
Court should decline to address his remaining claims. See Ye, 2025 WL 3485420, at *2
n.2 (acknowledging the Magistrate Judge did not consider petitioner’s remaining
arguments for habeas relief after recommending habeas relief on the regulatory violation);
see also Hamidi, 2025 WL 3452454, at *2 n.2 (same). Further, considering the
recommended relief, the Court need not address Petitioner’s other requests for injunctive
and declaratory relief.
VIII. Recommended Ruling and Notice of Right to Object
For the reasons discussed above, the undersigned recommends that the Petition for
a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1) be GRANTED to the extent it
requests habeas relief under 28 U.S.C. § 2241. The undersigned recommends that the
Court order Respondents to release Petitioner from custody immediately, subject to an
appropriate OOS. See Zadvydas, 533 U.S. at 696 (“The choice, however, is not between
imprisonment and the alien ‘living at large.’ It is between imprisonment and supervision
under release conditions that may not be violated.”). The undersigned further recommends
that the Court order Respondents to certify compliance by filing a status report within three
business days of the Court’s order.
The court advises the parties of their right to object to this Report and
Recommendation by August 19, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2).15 The Court further advises the parties that failure to make timely objection to
this report and recommendation waives their right to appellate review of both factual and
15 Given the expedited nature of these proceedings, the undersigned has reduced the typical
objection time to this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2) advisory
committee’s note to 1983 addition (noting that rule establishing 14-day response time “does
not extend to habeas corpus petitions, which are covered by the specific rules relating to
proceedings under Sections 2254 and 2255 of Title 28.”); see also Whitmore v. Parker, 484
F. App’x 227, 231, 231 n.2 (10th Cir. 2012) (noting that “[t]he Rules Governing § 2254
Cases may be applied discretionarily to habeas petitions under § 2241” and that “while the
Federal Rules of Civil Procedure may be applied in habeas proceedings, they need not be
in every instance – particularly where strict application would undermine the habeas review
process”).
legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.
1991).
This Report and Recommendation disposes of all issues and terminates the referral
to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 12th day of August, 2026.
AMANDA L. MAXFIELD ,
UNITED STATES MAGISTRATE JUDGE
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