Semer v. Blanche et al

THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
YONATANE TEKLEWYENE SEMER, )
)
Petitioner )
)
v. ) Case No. CIV-26-238-SLP
)
PAMELA BONDI et al., )
)
Respondents )
REPORT AND RECOMMENDATION
Yonatane Teklewyene Semer seeks habeas corpus relief under 28 U.S.C. § 2241.
(ECF No. 1). Respondents have responded and Petitioner has replied. (ECF Nos. 10 &
12). United States District Judge Scott L. Palk referred the matter to the undersigned
magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). For
the reasons set forth below, the undersigned recommends that the Court GRANT habeas
relief to Petitioner and release him from custody immediately under the terms of his
previous Order of Supervision.
I. FACTUAL BACKGROUND
Petitioner is a citizen of Eritrea who was ordered removed from the United States
on May 4, 2016. (ECF No. 1:1, 10:2). Petitioner waived any appeal from the removal
order and it became administratively final that day. (ECF No. 1:1, 10:2). Although
Petitioner was ordered removed to Eritrea, or in the alterative, Italy, Immigrations and
Customs Enforcement (ICE) officials entered an order on August 9, 2016, informing
Petitioner he would not be released at that time because he posed a flight risk. (ECF No.
10-2). However, attempts to remove Petitioner were unsuccessful and on November 22,
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2016, he was released under an Order of Supervision (OOS). (ECF No. 10-1:3). Following
an arrest for moving violations, Mr. Semer was issued a new (amended) OOS on March
16, 2018. (ECF No. 10-1).
On July 16, 2025, Petitioner was encountered during his in-person check-in
appointment, at which time ICE re-detained Petitioner and determined he would be held
in custody pending removal. (ECF No. 10-1:3). A travel document request form was
submitted to ICE headquarters for review on December 4, 2025, and forwarded to officials
in Eretria on December 26, 2025. (ECF No. 10-1:3). Petitioner is currently detained in the
Cimarron Correctional Facility.1
II. PETITIONER’S CLAIMS
Petitioner asserts four Counts for relief. In Count One, Petitioner requests
“declaratory judgment pursuant to 28 U.S.C. § 2201 that [he] is detained pursuant to 8
U.S.C. § 1231(a)(1),” “that [he] has previously demonstrated to ICE’s satisfaction that
there is no significant likelihood of his removal in the reasonably foreseeable future
(“NSLRRFF”),” “that ICE did not rebut [his] prior NSLRRFF showing prior to redetaining
him,” and “that until ICE rebuts [his] prior NSLRRFF showing, [he] may not be
redetained.” (ECF No. 1:22).
In Count Two, Petitioner contends that his detention by Respondents violates the
Immigration and Nationality Act and applicable ICE regulations. (ECF No. 1:22).
1
See https://locator.ice.gov/odls/#/results (last visited Apr. 3, 2026).
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In Count Three, Petitioner raises two due process claims. He states that his
continued detention in excess of six months violates his “Fifth Amendment guarantee of
due process” established in
Zadvydas v. Davis, 533 U.S. 678, 701 (2001) as Respondents
have not rebutted his prior showing of no substantial likelihood of removal in the
foreseeable future. (ECF No. 1:23). And he states a separate due process claim based on
his allegations that he has been detained “to punish him and to otherwise send a message
to similarly situated individuals that they must leave the United States to avoid a similar
fate.” (ECF No. 1:23).
In Count Four, Petitioner alleges that Respondents have violated the
Administrative Procedures Act [APA] as “[their] decisions, which represent changes in the
agencies’ policies and positions, have considered factors that Congress did not intend to
be considered, have entirely failed to consider important aspects of the case, and have
offered explanations for their decisions that run counter to the evidence before the
agencies.” (ECF No. 1:24).
As relief, Petitioner requests: immediate release subject to the same conditions of
his prior OOS as well as declaratory and injunctive relief. (ECF No. 1:25-26).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. §
2 Petitioner also seeks “reasonable attorney fees and costs pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412(d)(1)(A).” (ECF No. 1:26). But to the extent Petitioner may be entitled to
EAJA fees and costs, he must seek those separately. 28 U.S.C. § 2412(d)(1)(B);
see also Daly v.
Ceja, 158 F.4th 1152, 1166 (10th Cir. 2025) (interpreting “EAJA’s broad language to
unambiguously authorize fees in habeas actions challenging immigration detention”). Accordingly,
the undersigned does not address this request at this juncture.
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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 v. Davis, 533 U.S. 678, 687 (2001).
IV. LEGAL FRAMEWORK FOR THE DETENTION OR RELEASE OF ALIENS
SUBJECT TO A FINAL ORDER OF REMOVAL
Title 8, Section 1231(a)(2)(A) of the United States Code mandates that “the
Attorney General shall detain” an alien who is ordered to be removed from the country.
However, the length of detention cannot be indefinite: in general, “when an alien is
ordered removed, the Attorney General shall remove the alien from the United States
within a period of 90 days.” § 1231(a)(1)(A). This is known as the “removal period,” and
begins at the latest of: (1) “[t]he date 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 alien is released from detention or confinement” if the alien is
detained according to a non-immigration process (e.g., imprisonment for a crime).
Id.;
see Zadvydas, 533 U.S. at 682 (“When an alien has been found to be unlawfully present
in the United States and a final order of removal has been entered, the Government
ordinarily secures the alien’s removal during a subsequent 90–day statutory ‘removal
period,’ during which time the alien normally is held in custody.”).
However, an exception exists for certain aliens, including aliens who have violated
criminal law, who “may be detained beyond the removal period.” § 1231(a)(6);
see
Zadvydas, 553 U.S. at 682 (“A special statute authorizes further detention if the
Government fails to remove the alien during those 90 days.”) (citing § 1231(a)(6)).
However, even under these circumstances, a non-citizen may only be detained past the
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90-day removal period following a removal order if found to be “a risk to the community
or unlikely to comply with the order of removal” or if the order of removal was on specified
grounds.
Id. § 1231(a)(6). But even where initial detention past the 90-day removal
period is authorized, if “removal is not reasonably foreseeable, the court should hold
continued detention unreasonable and no longer authorized by [§ 1231(a)(6)]. In that
case, of course, the alien’s release may and should be conditioned on any of the various
forms of supervised release that are appropriate in the circumstances . . . .”
Zadvydas v.
Davis, 533 U.S. 678, 699-700. The Court further specified that detention is presumptively
reasonable for only six months beyond the original 90-day removal period.
Id. at 701.
“After this 6–month period, once the alien provides good reason to believe that there is
no significant likelihood of removal in the reasonably foreseeable future, the Government
must respond with evidence sufficient to rebut that showing.”
Id.
Pursuant to 8 U.S.C. § 1231(a)(3), a non-citizen with a final order of removal “who
is not removed within the [90-day] removal period . . . shall be subject to [an order of]
supervision under regulations prescribed by the Attorney General.” Once an OOS has
been issued, it may be revoked and a non-citizen may be re-detained if: “(1) the purposes
of release have been served; (2) the alien violates any condition of release; (3) it is
appropriate to enforce a removal order . . . ; or (4) the conduct of the alien, or any other
circumstance, indicates that release would no longer be appropriate.” 8 C.F.R. §
241.4(l)(2);
see also id. § 241.13(i) (permitting revocation of an order of supervision only
if a non-citizen “violates any of the conditions of release”). Upon revocation of an order
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of supervision, ICE must give a non-citizen notice of the reasons for revocation and a
prompt interview to respond. 8 C.F.R. § 241.4(l)(1).
Following the Supreme Court’s holding, the
Zadvydas challenge to continued
detention was codified into the immigration regulations governing the detention review
process with amendments to 8 C.F.R. § 241.4 and the addition of 8 C.F.R. § 241.13.3
These regulations were in effect at the time of Petitioner’s release on an OOS in 2016
and his re-detention in 2025.
V. PETITIONER IS ENTITLED TO HABEAS RELIEF BECAUSE ICE DID NOT
ADHERE TO ITS OWN REGULATIONS
Petitioner argues that ICE’s revocation of his OOS was “not in accordance with the
INA and implementing regulations governing who may lawfully revoke an order of
supervision and under what circumstances.” (ECF No. 1:20). The Court should agree.
In Count Two, Petitioner alleges Respondents violated his rights under the INA
and its associated regulations. (ECF No. 1:22). Petitioner contends he “was placed on an
[OOS] pursuant to 8 C.F.R. § 241.5 and 8 C.F.R. 241.13 due to evidence in [his] file that
demonstrated there was no significant likelihood of removal in the reasonably foreseeable
3
See Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. 56967-01,
56968, 2001 WL 1408247 (F.R.) (Nov. 14, 2001) (to be codified at 8 C.F.R. Parts 3 and 241) (“In
light of the Supreme Court’s decision in
Zadvydas, this rule revises the Department’s regulations
by adding a new 8 CFR 241.13, governing certain aspects of the custody determination of a
detained alien after the expiration of the removal period. Specifically, the rule provides a process
for the Service to make a determination as to whether there is a significant likelihood that the
alien will be removed in the reasonably foreseeable future. Except as provided in this new
§ 241.13, the existing detention standards in § 241.4 will continue to govern the detention or
release of aliens who are subject to a final orders of removal. Thus, aliens who are determined
not to be a danger to the community or a flight risk may be released under § 241.4 regardless of
whether there is a significant likelihood of removal.”).
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future.” (ECF No. 1:2). Petitioner asserts that ICE failed to follow statutorily and
regulatory mandated procedures prior to re-detaining him, including:
• His re-detention was not reviewed or authorized by any member of the
Headquarters Post-order Detention Unit or ERO HQ;
• His re-detention was not reviewed or authorized by the Executive Associate
Commissioner or District Director;
• He was re-detained in the absence of changed circumstances capable of
rebutting his prior showing of no significant likelihood of removal in the
reasonably foreseeable future;
• He has not received a written decision stating the reasons for his re-
detention; and
• He has not received an individualized post-detention interview to determine
whether his OOS should be reinstated or to allow him to provide information
challenging that there is no significant likelihood of his removal in the
reasonably foreseeable future.
(ECF No. 1:5-6). Mr. Semer contends this inaction amounts to a violation of the INA. (ECF
No. 1:22).
Respondents contend that the Court lacks jurisdiction and that habeas relief is not
appropriate on a claim regarding regulatory violations. (ECF No. 10:8-10). The
undersigned finds that it has jurisdiction to entertain Petitioner’s claim, that ICE did not
abide by its own regulations with regard to Petitioner’s re-detention, and habeas relief is
appropriate.
A. The Court Has Jurisdiction to Consider the Petition
Respondents argue that “this Court is jurisdictionally barred from reviewing ICE’s
decision and actions to revoke supervision. 8 U.S.C. § 1252(g) strips district courts of
jurisdiction over claims ‘arising from the decision or action … to execute removal orders.’
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Courts have recognized that re-detention is ‘simply the enforcement mechanism’ chosen
to execute a removal order and is therefore insulated from district-court review.” (ECF
No. 10:8-9) (citing
Tazu v. Att’y Gen. United States, 975 F.3d 292, 298 (3d Cir. 2020).
The Court should reject Respondents’ argument.
In
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999),
the Supreme Court explained that § 1252(g)’s jurisdictional bar applies only to “three
discrete actions” – the commencement of removal proceedings, adjudication of removal
proceedings, and execution of removal orders. The Supreme Court found it “implausible
that the mention of three discrete events along the road to deportation was a shorthand
way of referring to all claims arising from deportation proceedings.”
Id. More recently, in
Jennings v. Rodriguez, 583 U.S. 281, 294 (2018) the Court reaffirmed this narrow reading,
explaining that
Reno “did not interpret [§ 1252(g)] to sweep in any claim that can
technically be said to ‘arise from’ the three listed actions of the Attorney General.”
Instead, the statutory language refers “to just those three specific actions themselves.”
Id.
The undersigned is not persuaded that § 1252(g) forecloses review of Petitioner’s
claims. Here, Petitioner “does not ask the Court to review the underlying merits of the
removal decision. Nor does he ask the Court for a blanket stay of removal. Rather, he
asks that he not be
unlawfully removed without adequate notice and due process.”
Arostegui-Maldonado v. Baltazar, 794 F. Supp. 3d 926, 946-47 (D. Colo. 2025) (internal
quotation marks omitted). Additionally, the Court should find that
Tazu is factually
distinguishable from Petitioner’s case. In
Tazu, the Third Circuit held that it was foreclosed
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from reviewing “a brief door-to plane detention” by ICE because such detention “is
integral to the act of “execut[ing] [a] removal order[ ].” 975 F.3d at 298. Here, “the
evidence in the record does not suggest that [Petitioner’s] removal was or is impending
. . . such that his re-detention was a brief and integral part of executing his removal
order.”
Jimenez Chacon v. Lyons, 811 F. Supp. 3d. 1299, 1308 (D.N.M. Dec. 4, 2025).
Thus, the undersigned concludes that § 1252(g) does not bar this Court from exercising
jurisdiction to consider Petitioner’s challenge to his detention.
B. ICE Failed To Abide By Its Regulations When It Revoked
Petitioner’s OOS
“‘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). Two
separate provisions in the Code of Federal Regulations deal with the revocation of release
with regard to an OOS: 8 C.F.R. § 241.4(l) and 8 C.F.R. § 241.13(i).
See Xayakesone v.
Noem, No. 25-cv-2995-JES-BJW, 2025 WL 3229102, at *2 (S.D. Cal. Nov. 19, 2025)
(“Supervised release and any revocation of such release thereafter is governed by either
8 C.F.R. § 241.4 or 8 C.F.R. § 241.13”). “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.”
Grigorian v. Bondi, 2025 WL 2604573, at *4-5 (S.D. Fla. Sept. 9, 2025).
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Petitioner argues that his OOS was issued pursuant to 8 C.F.R. § 241.13 and “ICE
has no information that could reasonably lead it to believe changed circumstances exist
that justify re-detention under 8 C.F.R. § 241.13(i)(2)-(3).” (ECF No. 1:14). Respondents
state: “Petitioner’s Order of Supervision was issued under 8 C.F.R. § 241.4, and
revocation was governed by § 241.4(l)(2).” (ECF No. 10:9). Even so, Respondents do not
provide proof of the OOS, despite the Court’s specific instructions to do so.
See ECF No.
8:2 (“If Respondents file a Response, they must provide copies specifically discussed
within any response they submit, and must include copies specific to Petitioner’s current
detainment, current bond hearings, related past orders for supervision subject to
the current detainment and travel documents secured for this petitioner.”). Respondents
submits a declaration from Romeo Foncha, ICE Deportation Officer assigned to
Petitioner’s case, which references Petitioner’s original and amended OSSs, but no actual
documents are attached as proof, despite the Court’s specific instructions to do so.
No matter which provision applies, however, ICE has failed to abide by its regulations.
1. 8 C.F.R. § 241.13(i)
a. Respondents Do Not Meet Their Burden of Showing
Changed Circumstances Such That There Was a
Significant Likelihood That Petitioner May Be
Removed in the Reasonably Foreseeable Future
ICE may revoke an OOS and “return the alien to custody” if he violates the
conditions of supervised release 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.” 8 C.F.R. § 241.13(i)(1)-(2). Respondents do not allege
Petitioner violated any conditions of release, so Respondents must rely solely on the
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“changed circumstances” prong as the justification for revocation, assuming § 241.13(i)
applies. This Court has previously concluded “the 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) (citation modified). Respondents do not have
any explanation for why Petitioner was re-detained, stating only “On July 16, 2025,
Petitioner was encountered during his in-person check-in appointment, at which time ICE
determined Petitioner would be held in custody pending removal.” (ECF No. 10:2).
b. Violation of § 241.13(i)(3)
Petitioner alleges that he was not notified of the reasons for revocation of his
release and that Respondents did not conduct an initial informal interview promptly after
his return to custody to afford him an opportunity to respond to the reasons for revocation
stated in the notification, as required by § 241.13(i)(3). (ECF No. 1:13). Again,
Respondents fail to address Petitioner’s claims as they pertain to § 241.13(i), instead
arguing only that the revocation was proper under 8 C.F.R. § 241.4(l)(2).
See ECF No.
10. ICE’s regulations, however, provide that a Revocation of Release Notice should have
been provided to Petitioner and should have stated the reasons for his revocation of
release.
See 8 C.F.R. § 241.13(i)(3) (“Upon revocation, the alien will be notified of the
reasons for revocation of his or her release.”). Further, with no evidence to the contrary
from Respondents, the undersigned also concludes ICE did not comply with requirements
for an “initial informal interview” under § 241.13(i)(3) so Petitioner could respond to ICE’s
basis for his revocation and re-detention.
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2. 8 C.F.R. § 241.4(l)
ICE also failed to properly conform to the requirements of 8 C.F.R. § 241.4(l).
Respondents allege that 8 C.F.R. § 241.4(l)(2) “contains no requirement that ICE provide
an interview or advance notice upon re-detention.” (ECF No. 10:9). This is an incorrect
interpretation of that regulation.
Revocation under § 241.4 may occur under the following circumstances:
(1) Violation of conditions of release. Any alien described in paragraph
(a) or (b)(1) of this section who has been released under an order
of supervision or other conditions of release who violates the
conditions of release may be returned to custody. . . . Upon
revocation, the alien will be notified of the reasons for
revocation of his or her release or parole. The alien will be
afforded an initial informal interview promptly after his or
her return to Service custody to afford the alien an
opportunity to respond to the reasons for revocation stated
in the notification.
(2)	
Determination by the Service. The Executive Associate Commissioner
shall have authority, in the exercise of discretion, to revoke release
and return to Service custody an alien previously approved for
release under the procedures in this section. A district director may
also revoke release of an alien when, in the district director’s opinion,
revocation is in the public interest and circumstances do not
reasonably permit referral of the case to the Executive Associate
Commissioner. Release may be revoked in the exercise of discretion
when, in the opinion of the revoking official:
(i) The purposes of release have been served;
(ii) The alien violates any condition of release;
(iii) It is appropriate to enforce a removal order or to commence
removal proceedings against an alien; or
(iv) The conduct of the alien, or any other circumstance, indicates
that release would no longer be appropriate.
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(3) Timing of review when release is revoked. If the alien is not released
from custody following the informal interview provided for in
paragraph (l)(1) of this section, the HQPDU Director shall schedule
the review process in the case of an alien whose previous release or
parole from immigration custody pursuant to a decision of either the
district director, Director of the Detention and Removal Field Office,
or Executive Associate Commissioner under the procedures in this
section has been or is subject to being revoked. The normal review
process will commence with notification to the alien of a records
review and scheduling of an interview, which will ordinarily be
expected to occur within approximately three months after release
is revoked. That custody review will include a final evaluation of any
contested facts relevant to the revocation and a determination
whether the facts as determined warrant revocation and further
denial of release. Thereafter, custody reviews will be conducted
annually under the provisions of paragraphs (i), (j), and (k) of this
section.
8 C.F.R. § 241.4(l) (emphasis added). Respondents contend that Petitioner’s present
detention was initiated pursuant to § 241.4(l)(2), which they argue does not contain
language requiring notice of revocation and the informal interview mandated by §
241.4(l)(1). (ECF No. 10:9). However, “courts have held that the same requirements” of
notice and an interview “constrain revocation of release under [§ 241.4(l)(2)] as well.”
Xayakesone, 2025 WL 3229102, at *3. In reaching the same conclusion, one court
reasoned:
While not a model of clarity, the text of 8 U.S.C. § 241.4(l) is inconsistent
with the Government’s argument that Petitioner was not entitled to notice
or an interview. The Government concedes that ICE must follow certain
procedures if it revokes a noncitizen’s release pursuant to paragraph (l)(1)
for violation of a condition of release, but argues that those same
procedures do not apply to noncitizens whose release is revoked pursuant
to paragraph (l)(2) because paragraph (l)(2) provides distinct, discretionary
avenues for the revocation of release. But this argument is in significant
tension with the fact that paragraph (l)(2) also covers circumstances where
a violation of a condition of supervised release is the basis for revoking a
noncitizen’s release. See 8 C.F.R. § 241.4(l)(2)(ii). This overlap belies the
Government’s argument that these are two separate processes, and
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suggests that paragraph (l) sets forth a unified set of procedures for the
revocation of removal.
Zhu v. Genalo, 798 F. Supp. 3d 400, 410 (S.D.N.Y. 2025) (internal citations omitted);
see
also Duong v. Noem, No. 3:26CV1002-JES-BJW, 2026 WL 555597, at *2 (S.D. Cal. Feb.
27, 2026) (“[R]evocation under . . . either § 241.4(l)(1) or § 241.4(l)(2) . . . requires an
adequate notice of the reasons for the revocation of release and a prompt initial informal
interview to afford the alien an opportunity to respond to the reasons given in the
notice.”);
Ceesay v. Kurzdorfer, 781 F. Supp. 3d 137, 163 (W.D.N.Y. 2025) (“Courts . . .
have interpreted section 241.4(l) as requiring [the procedures of § 241.4(l)(1)] upon the
revocation of release regardless of the reason for the revocation.”);
Constantinovici v.
Bondi, 806 F. Supp. 3d 1155, 1163 (S.D. Cal. 2025) (“District courts have consistently . .
. held that § 241.4(l)(1)’s procedural requirements apply equally to revocation of a
noncitizen’s release pursuant to § 241.4(l)(2).”).
The undersigned agrees that § 241.4(l)(2) requires the government to provide the
notice of revocation described in § 241.4(l)(1). In addition to the above textual reasoning,
this conclusion is bolstered by the reality that “[b]oth 8 C.F.R. § 241.4 and 8 C.F.R. §
241.13 were intended to provide due process protections to [non-citizens] following the
removal period as they are considered for continued detention, release, and then possible
revocation of release.”
Constantinovici, 2025 WL 2898985, at *5 (internal quotation
marks omitted). Respondents’ interpretation would result in more due process protections
for non-citizens who violated their OOS than for those who did not, which is an absurd
result.
See id. Respondents therefore violated § 241.4 when they failed to provide
Petitioner a notice and reasons for his revocation of release.
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The Court also notes that 8 C.F.R. § 241.4(l)(3) provides for a review process
consisting of “notification to the alien of a records review and scheduling of an interview,
which will ordinarily be expected to occur within approximately three months after release
is revoked.” This provision applies to re-detentions governed by § 241.4(l)(2).
See Guerra
v. Bondi, No. CIV-25-1240-G, 2026 WL 114258, at *5 (W.D. Okla. Jan. 15, 2026) (“[T]he
notice and interview requirements of § 241.4(l)(3) apply to revocations conducted
pursuant to § 241.4(l)(2)”).
3. Conclusion
The undersigned finds that Respondents have failed to show that ICE abided by
its own regulations in revoking Petitioner’s OOS, making the revocation unlawful. “ICE,
like any agency, has the duty to follow its own federal regulations. As here, where an
immigration regulation is promulgated to protect a fundamental right derived from the
Constitution or a federal statute . . . and [ICE] fails to adhere to it, the challenged [action]
is invalid.”
Nguyen v. Hyde, 2025 WL 1725791, at *5 (D. Mass. June 20, 2025) (quoting
Rombot v. Souza, 296 F. Supp. 3d 383, 388 (D. Mass. 2017));
see Qui v. Carter, 2025
WL 2770502, at *1-2 (D. Kan. Sep. 26, 2025) (finding that failure to properly revoke the
petitioner’s OOS “pursuant to the applicable regulations” rendered revocation ineffective).
The undersigned recommends the Court follow its recent reasoning in
Owdetallah v.
Bondi, et al., No. CIV-25-1546-SLP, 2026 WL 483648, at *1 (W.D. Okla. Feb. 20, 2026)
which reached this conclusion under similar circumstances, and join the “majority of
district courts [that] have found such regulatory defects amount to due process violations
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that entitle a petitioner to habeas relief.”
Pham v. Bondi, No. CIV-25-1157-SLP, 2025 WL
3243870, at *1 (W.D. Okla. Nov. 20, 2025) (collecting cases).
C. ICE’s Failure to Abide by its Regulations Warrants Immediate
Release
Based on ICE’s violation of its own regulations, the undersigned concludes that
Petitioner’s detention is unlawful and that his release is appropriate under 28 U.S.C. §
2241(c)(3). This Court has found that “by mandating minimum procedures, the regulation
ensures the individual is afforded the basic due process protections guaranteed by the
Fifth Amendment. A wholesale failure to provide the required notice and the mandated
interview—thereby depriving the individual of any meaningful opportunity to contest the
revocation of release—implicates those constitutional protections directly.”
Li, 2026 WL
475133, at *3. Thus, “Respondents are mistaken in concluding that this Court may not
grant habeas relief solely because the text of § 2241(c)(3) fails to contain an explicit
proviso authorizing the writ for violations of a federal regulation.”
Id. “ICE’s failure to
abide by its own regulations in making the decision to revoke Petitioner’s OOS renders
the revocation unlawful, and . . . his release is therefore appropriate.”
Ye v. Bondi, No.
CIV 25-1230-D, 2025 WL 3485420, at *3 (W.D. Okla. Dec. 4, 2025). As one court stated:
Nothing in this Opinion constitutes a judgment on the Government’s policy
decision to devote public resources to removing as many aliens as it can.
That is a political choice that is not before the Court. And, indeed, the
Government’s own regulations, as discussed above with respect to Section
241.4(l)(2), grant it enormous discretion regarding when and how the
previously-authorized release of removable aliens may be revoked. But that
discretion is not unlimited. If the Government does choose to embark upon
a campaign of mass removal, the Constitution, its guarantees of due
process to all persons present in the United States, and the rule of law all
demand that detention and removal be conducted lawfully. The lawful
revocation of [Petitioner’s] supervised release presents a low bar to the
Case 5:26-cv-00238-SLP Document 14 Filed 04/03/26 Page 16 of 18

Government, and they may yet choose to clear it, but they have not done
so on the present record and accordingly [Petitioner] must be released from
custody immediately.
E.M.M. v. Almodovar, 2025 WL 3077995, at *4 (S.D.N.Y. Nov. 4, 2025) (finding that ICE
violated § 241.4 because an assistant field office director is not authorized under that
regulation to revoke an OOS).
VI. PETITIONER’S OTHER CAUSES OF ACTION AND REQUESTS FOR RELIEF
Because the undersigned recommends habeas relief, the Court should decline to
address Petitioner’s remaining arguments as to how the revocation of his release or his
detention is otherwise unlawful.
See Sanchez, 2025 WL 3484756, at *1 (declining to
reach petitioner’s
Zadvydas claim after agreeing with him on his regulatory violation
claim);
see also 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). Further, considering the recommended relief,
the Court need not address Petitioner’s request for declaratory judgment and permanent
injunctive relief.
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the reasons discussed above, the undersigned recommends that the Petition
for Writ of Habeas Corpus (ECF No. 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, under the terms of
his previous Order of Supervision.
See Zadvydas, 533 U.S. at 696 (“The choice, however,
is not between imprisonment and the alien ‘living at large.’ It is between imprisonment
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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 five business days of the Court’s order.
The parties may to object to this Report and Recommendation by April 10, 2026,
under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2).4 If a party wishes to respond
to the other party’s objections, such response must be filed not later than April 15,
2026. The parties are further advised that failure to make timely objection to this Report
and Recommendation waives the right to appellate review of both factual and legal issues
contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
This Report and Recommendation disposes of all issues and terminates the referral
to the undersigned Magistrate Judge in the captioned matter.
ENTERED on April 3, 2026.
4 Given the expedited nature of these proceedings, the undersigned has reduced the typical
objection time to this Report and Recommendation to seven days.
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”).
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