Unreported / Non-Citable
Background
Petitioner is a 60-year-old Colombian national who was extradited to the United States in 2003 and convicted in 2004 in the Southern District of Florida of drug-trafficking conspiracy offenses involving a vessel. His sentence was later reduced to 90 months for cooperation. After his prison term, ICE detained him and an immigration judge ordered him removed in 2009. He was released on deferred action, later had his case reopened, and sought asylum, withholding of removal, and Convention Against Torture protection.
On January 25, 2017, an immigration judge again ordered removal to Colombia but granted deferral of removal under the Convention Against Torture, which bars removal to that country. Neither side appealed, so the order became administratively final. On February 9, 2017, ICE released him under an Order of Supervision. Respondents did not contest that he reported as required, and they did not allege any violation of his conditions.
ICE re-detained him on or about March 4, 2026, citing its ability to effectuate removal and noting that his case was under review for removal to an alternate country. A March 30, 2026 notice said ICE intended to remove him to Mexico. A Florida federal habeas petition was denied without prejudice as premature on May 21, 2026. He filed this petition in the Eastern District of California on September 1, 2026, asserting Fifth Amendment due process and Fourth Amendment claims. Respondents invoked 8 U.S.C. § 1231(a)(6) and said ICE was diligently working toward removal.
The Court’s Holding
Magistrate Judge Chi Soo Kim recommends granting the petition. This is a set of findings and recommendations, not a final judgment; it was referred to the district judge, and objections are due within seven days. The judge reasoned that the 90-day removal period long ago expired and that the Zadvydas v. Davis burden-shifting framework does not apply, because the case concerns ICE's authority to re-detain someone previously released on supervision rather than initial post-order detention.
Applying 8 C.F.R. § 241.13(i), which the parties had not addressed, the court put the burden on ICE to show changed circumstances making removal significantly likely in the reasonably foreseeable future. Respondents did not meet it. They did not identify specific steps taken since March 30, 2026, and the Mexico notice did not show whether a travel document had been requested or obtained. The court found ICE violated its own regulation and improperly revoked release.
On procedural due process, the court recognized that release on supervision creates a protected liberty interest requiring at least notice and a meaningful opportunity to be heard, and it cited decisions from this district requiring a pre-deprivation hearing after years on supervision. It weighed more than nine years at liberty, no alleged violations, no claim of danger or flight risk, and over 7.5 months of detention. Because that claim sufficed, it did not reach the others. It recommends immediate release on the 2017 supervision conditions, return of any documents respondents hold, an injunction against re-detention without required protections, and entry of judgment closing the case.
Key Takeaways
- Under this recommendation, the Zadvydas burden-shifting framework does not govern re-detention of a person previously released on an order of supervision; 8 C.F.R. § 241.13(i) does.
- ICE must show changed circumstances making removal significantly likely, and naming a third country without evidence of travel-document progress was not enough here.
- Long, compliant release on supervision was treated as creating a protected liberty interest calling for notice and a meaningful chance to respond before re-detention.
- The recommended remedy is release restoring the pre-detention status quo, plus an injunction against re-detention without required protections.
- Nothing is final yet: the district judge must decide after objections, and the other claims remain unaddressed.
Why It Matters
The recommendation adds to district court decisions, including others from this district, that scrutinize ICE re-detention of people with long-final removal orders who were released on supervision. It stresses that the agency must follow its own revocation regulations and cannot rest on conclusory assurances of diligence when removal depends on a third country's cooperation.
Its weight is limited. It is an unreported magistrate judge recommendation, not an adopted order or appellate precedent, and it binds no one unless the district judge adopts it. The analysis is fact-specific, resting on the thin record of removal efforts, the lengthy compliant release, and the lack of any alleged violation or claimed danger. The Fourth Amendment and other claims were left undecided.