Unreported / Non-Citable
Background
Petitioner, a native of China, was found inadmissible under the Immigration and Nationality Act and was granted withholding of removal under INA § 241(b)(3). He first filed his habeas petition without counsel while detained. Through appointed counsel, he filed an amended petition under 28 U.S.C. § 2241 on April 27, 2026. It raised four claims: a Zadvydas v. Davis claim, a claim challenging revocation of his prior release, and two claims challenging ICE's procedures for removing noncitizens to third countries not identified in a removal order. He sought release, among other relief.
ICE released him on an Order of Supervision on April 30, 2026. Respondents moved to dismiss as moot. On July 15, 2026, the assigned district judge adopted a recommendation to deny that motion and referred the case back to the magistrate judge. In their answer, respondents argued that petitioner is not detained, that DHS has not identified a third country for removal, and that any challenge to a potential third-country removal is not ripe. They also acknowledged he may be re-detained to effectuate such a removal. The record shows he has been subject to a final removal order for several years and the government has been unable to remove him to China.
The Court’s Holding
The magistrate judge first concluded that petitioner's release made the first and fourth claims moot to the extent they seek release from custody. She nonetheless found a continuing risk of unlawful re-detention. Respondents did not dispute that DHS failed to follow its own procedures in revoking his earlier release, and they said he may be re-detained. The regulations at 8 C.F.R. §§ 241.4(l) and 241.13(i) require notice of the reasons for revoking release and a prompt informal interview. Relying on Uzzhina v. Chestnut and Phan v. Beccerra, she recommends enjoining respondents from re-detaining petitioner for any purpose without a hearing before an immigration judge. At that hearing, the government must show that his removal is reasonably foreseeable, or that circumstances have changed so that he is a danger or flight risk. The neutral adjudicator must also consider alternatives to detention.
On third-country removal, she recommends denying as speculative petitioner's request for an injunction against removal to a third country under any circumstances. He alleged no specific facts, such as a target country where he might face persecution or torture. She nevertheless found that he is entitled to notice and a meaningful opportunity to be heard under 8 U.S.C. § 1231(b)(3) and Fifth Amendment due process. She reasoned that the claim is not merely speculative here, because respondents say he may be re-detained for third-country removal and make no representation that he would receive notice or other protections.
She therefore recommends enjoining removal to a country not designated by an immigration judge unless respondents first give petitioner and counsel written notice in a language he understands at least 21 days beforehand. He must then have at least ten days to raise a fear-based claim for protection under the Convention Against Torture. If he shows reasonable fear, respondents must move to reopen his proceedings. If he does not, respondents must allow at least 15 days for him to seek reopening. The magistrate judge also recommends granting the petition and directing the Clerk to enter judgment for petitioner and close the case.
Key Takeaways
- This is a recommendation to the assigned district judge, so the injunctions it describes are not in force unless and until the district judge adopts them.
- Release from custody mooted the claims seeking release, but the risk of re-detention without the required regulatory procedures kept the case alive.
- The recommended re-detention safeguard is a prior immigration judge hearing, with the government bearing the burden and the adjudicator required to consider alternatives to detention.
- The recommended third-country removal protections are 21 days' written notice, at least ten days to raise a fear-based claim, and reopening procedures, but no categorical bar on such removal.
- Parties have seven days after service to file objections, and failure to object may waive the right to appeal the district court's order.
Why It Matters
The recommendation follows other Eastern District of California decisions in applying DHS's own supervised-release revocation regulations and due process to noncitizens who cannot be removed to their country of origin. Its practical effect, if adopted, would be conditional. DHS would remain free to re-detain or remove petitioner to a third country, but only after the specified hearing, notice, and reopening steps.
The recommendation does not decide the merits of the Zadvydas claim and does not identify any particular third country. It also does not decide whether any future removal would be lawful, and that question would be addressed through the procedures it describes. As an unadopted magistrate judge recommendation, it has persuasive value only.