Unreported / Non-Citable
Background
Hung Phi Le, a Vietnamese citizen proceeding without counsel, was admitted as a lawful permanent resident in 1990. An immigration judge ordered him removed to Vietnam on August 9, 2012. He was not removed, and ICE released him on an Order of Supervision on November 15, 2012. The record shows a criminal history, which the court noted but did not rely on.
On July 28, 2026, Le reported to ICE as required and was arrested. He was served that day with a Notice of Revocation of Release stating that ICE was seeking a travel document to remove him to Vietnam. An ICE form reflects an informal interview that day at which Le made no statement. A Form I-213 said headquarters had advised that Vietnam was issuing travel documents.
Le filed a verified 28 U.S.C. § 2241 petition on September 21, 2026, raising four claims, including challenges to third-country removal and a claim that continued detention violates due process and 8 C.F.R. § 241.13. Respondents invoked 8 U.S.C. § 1231(a)(6) and argued under Zadvydas v. Davis that detention under six months is presumptively reasonable. Le filed no reply.
The Court’s Holding
This is an order paired with findings and recommendations from a magistrate judge, not a final judgment. The court denied the motion to appoint counsel without prejudice and recommends that the district judge grant the petition on claim four. The recommended relief is immediate release on the conditions of the 2012 Order of Supervision, return of Le's possessions and documents, an injunction against re-detention absent compliance with constitutional protections including § 241.13(i), a status report within seven days of release, and entry of judgment closing the case. Objections are due within seven days.
The court held that Zadvydas does not govern because this case concerns re-detention after a removal order, an earlier release, and the expiration of the ninety-day removal period. Under § 241.13(i), ICE must show changed circumstances making removal significantly likely in the reasonably foreseeable future, and that determination must be made at or before re-detention. Respondents did not answer Le's regulatory arguments, which the court treated as a concession. It also found the record lacking: the notice said only that ICE was seeking a travel document, and respondents did not explain why one was not obtained earlier or why Vietnam would likely issue one now. A mere possibility of acceptance is not enough.
Because the notice did not identify the changed circumstances, Le could not meaningfully respond at the interview, violating § 241.13(i)(3) and, in the court's view, due process. The court recommends denying the third-country removal claims for lack of standing at this time, since nothing shows such removal is at issue. It did not reach the general due process claim or decide whether Le violated any supervision conditions.
Key Takeaways
- The magistrate judge held that the Zadvydas presumption and burden-shifting framework do not control a challenge to re-detention after release on an Order of Supervision.
- Under the court's reading of § 241.13(i)(2), ICE must show changed circumstances and a significant likelihood of removal, and must make that determination at or before re-detention.
- A statement that ICE is seeking a travel document, without explanation of why one is now likely to issue, did not satisfy the standard.
- Respondents' failure to answer the petitioner's arguments was treated as a concession, and a notice lacking the changed circumstances made the informal interview inadequate.
- The third-country removal claims were recommended for denial for lack of standing at this time, leaving open a later challenge if such removal becomes concrete.
Why It Matters
The decision applies a growing body of district court authority that treats re-detention of a person on an Order of Supervision as governed by the specific protections of § 241.13(i) rather than by the presumptive-reasonableness analysis of Zadvydas. It is a recommendation by a magistrate judge and has no binding effect unless the district judge adopts it.
Its reasoning rests heavily on respondents' silence and a thin record, so a better-documented showing of changed circumstances might be assessed differently.