LU v. JOYCE et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TONG QI LU,
Plaintiff,
v.
KEVIN JOYCE,
Sheriff,
Cumberland County, et al.,
Defendants.
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2:26-cv-00041-SDN
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
On January 22, 2026, Petitioner Tong Qi Lu filed a verified petition for a writ of
habeas corpus under 28 U.S.C. § 2241. ECF No. 1. He claimed his prolonged detention in
federal immigration enforcement custody violated, among other things, the Due Process
Clause of the Fifth Amendment, 8 U.S.C. § 1231(a), and 8 C.F.R. § 241.13. On January 23,
2026, the Court ordered his immediate release as a sanction after the Government directly
violated this Court’s orders by transferring Mr. Lu outside of the District of Maine.1 ECF
No. 12. The Court has evaluated Mr. Lu’s habeas petition and GRANTS it.
I. 	Procedural History
Mr. Lu is a noncitizen who has lived in the United States for thirty-six years. ECF
No. 1 at 1. He was born in China but forced to flee after participating in student-led
democracy movements that triggered political persecution after the Tiananmen Square
massacre. Id. at 13. In 1993, after arriving in the U.S., Mr. Lu applied for asylum, but the
Government ultimately denied his application. Id. In 1996, the Government initiated
1 Remarkably, ICE did not comply with the Court’s release order; rather than releasing Mr. Lu immediately,
ICE delayed his release until the following afternoon.
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removal proceedings against him. Id. at 14. The following year, Mr. Lu married an
American citizen and sought an I-130 immigrant visa petition as a “[noncitizen] spouse.”
Id. He did not, however, attend subsequent immigration hearings, and in 1999, the
Government issued a final order of removal against Mr. Lu in absentia. Id. at 15.
For the next few decades, Mr. Lu lived and worked in New York, Massachusetts,
and Maine; he currently owns a restaurant in northern Maine and has three children. Id.
at 15–16. In 2020, U.S. Immigration and Customs Enforcement (“ICE”) detained Mr. Lu
and informed him he had to leave the country due to his 1999 final order of removal. Id.
at 16. ICE officers also advised him that he could seek an I-130 petition for lawful
permanent resident status once his eldest daughter turned twenty-one. Id. Mr. Lu was
released on conditions of release, see ECF No. 14-8, and fully complied with all conditions,
ECF No. 1 at 16–17. In 2023, his daughter filed an I-130 petition on his behalf, which is
still pending. Id. at 17.
On April 5, 2025, ICE agents detained Mr. Lu in Bangor, Maine, and placed him
into ICE custody at the Cumberland County Jail in Portland, Maine. Id. at 17, 18. Two
days later, Mr. Lu received a Notice of Revocation of Release (“Notice of Revocation”)
from the Department of Homeland Security (“DHS”), which stated that the agency made
“a determination that there are changed circumstances in your case.” ECF No. 14-10 at 1.
The Notice did not specify what those circumstances were. See id. In June or July of 2025,
Mr. Lu completed a travel document application to facilitate verification of his Chinese
nationality. ECF No. 1 at 19. The Government did not submit the travel document request
to the Chinese government until October 2025, and it remains pending. ECF No. 20 at 3.
ICE cannot submit a physical travel document request to the Chinese Embassy until the
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Chinese government verifies Mr. Lu’s nationality, which would preclude his physical
transfer to China. Id.
Mr. Lu filed his habeas petition on January 22, 2026—292 days after ICE took him
into custody. See ECF No. 1. He argues that his continued detention is unlawful because
the law only permits re-detaining someone on supervised release if they violate release or
if changed circumstances establish that removal is reasonably foreseeable. ECF No. 1 at
23–24.
On January 22 and 23, 2026, the Court issued not one but two orders enjoining
the Government from removing Mr. Lu from the District of Maine while the merits of his
habeas petition were pending.2 ECF Nos. 3, 5. In direct violation of those orders, ICE
transported Mr. Lu to a detention facility in Massachusetts. Following a conference of
counsel on January 23, 2026, as a sanction for ICE’s willful defiance of this Court’s orders,
the Court ordered Mr. Lu’s immediate release in Massachusetts. ECF No. 12. ICE again
violated this Court’s order by delaying Mr. Lu’s release until the following day, January
24, 2026.3 ECF No. 20 at 1.
On January 23, 2026, the Court issued an order for the Government to show cause
as to why Mr. Lu’s detention was not unlawful. ECF No. 5. On February 3, 2026, the
2 The Court issued an emergency order in the evening of January 22, 2026, enjoining Mr. Lu’s transfer from
the District of Maine for at least 72 hours from the issuance of the order. ECF No. 3. The next day, the Court
indefinitely enjoined the Government from transferring Mr. Lu pending further order of the Court. ECF No.
5.
3 Mr. Lu’s release does not moot his habeas petition because the “in custody” requirement must be satisfied
only at the time of filing. Spencer v. Kemna, 523 U.S. 1, 7 (1998). “For a habeas petition to continue to
present a live controversy after the petitioner’s release or deportation, however, there must be some
remaining ‘collateral consequence’ that may be redressed by success on the petition.” Abdala v. I.N.S., 488
F.3d 1061, 1064 (9th Cir. 2007) (quoting Spencer, 523 U.S. at 7). ICE’s continued imposition of conditions
of release over Mr. Lu are sufficient to present a live controversy. See Palacio v. Hermosillo, No. C25-1983,
2025 WL 4033287, at *2 (W.D. Wash. Dec. 22, 2025), report and recommendation adopted sub nom.
Quiva Palacio v. Wamsley, 2026 WL 84930 (W.D. Wash. Jan. 12, 2026).
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Government responded, urging the Court to find that it can lawfully detain Petitioner
while his travel 	document request is pending with China. ECF No. 20 at 3. The
Government also acknowledged, however, that it had no evidence to rebut Petitioner’s
claim that there is no significant likelihood of his removal in the reasonably foreseeable
future. Id. at 3–4.
II. 	Analysis
Section 1231(a) of the Immigration and Nationality Act (“INA”) authorizes DHS to
detain noncitizens once their final order of removal becomes “administratively final.”
8 U.S.C. § 1231(a)(1)(B)(i). The statute requires that removal occur within a 90-day
period, after which detention may continue only in limited circumstances. Johnson v.
Arteaga-Martinez, 596 U.S. 573, 578 (2022) (citing 8 U.S.C. § 1231(a)(1)(A)). After the
period expires, the Government has discretion to 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.’” Id. at 579 (quoting 8 U.S.C. § 1231(a)).
Although the detention statute does not provide a specific time frame for how long
a person may remain in discretionary detention after the 90-day period, the Supreme
Court interpreted Section 1231(a) to mean the statute “does not permit indefinite
detention”; it instead “limits a[] [noncitizen’s] post-removal-period detention to a period
reasonably necessary to bring about that [noncitizen’s] removal from the United States.”
Zadvydas v. Davis, 533 U.S. 678, 689 (2001). To obtain release, the noncitizen must
“provide[] good reason to believe that there is no significant likelihood of removal in the
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reasonably foreseeable future.” Id. at 701. The burden then shifts to the Government to
“respond with evidence sufficient to rebut that showing.” Id.
However, the Zadvydas framework no longer applies to Mr. Lu’s circumstances.
Zadvydas specifically concerns ICE’s authority “to detain in the first place upon an
issuance of a final order of removal.” Nguyen v. Hyde, 788 F. Supp. 3d 144, 149 (D. Mass.
2025) (emphasis added). Because Mr. Lu previously obtained release on conditions
following a final order of removal, a different DHS regulation, 8 C.F.R. § 241.13(i), applies
to his case.
Section 241.13 prescribes that ICE may revoke a noncitizen’s release if he “violates
any of the conditions of release” or if “on account of changed circumstances, the Service
determines that there is a significant likelihood that the [noncitizen] may be removed in
the reasonably foreseeable future.” 8 C.F.R. § 241.13(i)(1), (2). The regulation requires
“(1) an individualized determination (2) by ICE that, (3) based on changed circumstances,
(4) removal has become significantly likely in the reasonably foreseeable future.” Kong v.
United States, 62 F.4th 608, 619–20 (1st Cir. 2023) (citing 8 C.F.R. § 241.13(i)(2)). The
Court, however, cannot make the individualized determination in the first instance;
rather, it must review the determination “in light of the regulations instructing ICE on
how it should make such a determination.” Id. at 620. The Government carries the burden
to show a significant likelihood that it will remove the noncitizen. Hall v. Nessinger, No.
25-CV-667, 2026 WL 18583, at *7 (D.R.I. Jan. 2, 2026) (collecting cases).
On April 7, 2025, ICE made an individualized determination that “there are
changed circumstances in [Mr. Lu’s] case.” ECF No. 14-10 at 1. The Government provided
no support for this conclusory assertion: the Government advanced nothing in the Notice
of Revocation or in the Government’s briefing to show how Mr. Lu’s circumstances had
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changed, nor did the Government allege he violated his conditions of release. Reviewing
the dates at issue in this case, ICE did not provide Mr. Lu with a travel document
application until two months after his initial detention, and the Government did not
submit the application to the Chinese government until four months after that. Moreover,
this application is a precursor to the issuance of actual travel documents: it exists to
confirm his Chinese nationality, not to facilitate his physical removal. At no point before
or during his detention did the Government have any reason to believe his removal would
be imminent. Put simply, the Government has produced no facts which support a finding
that ICE re-detained Mr. Lu based on changed circumstances that would make his
removal significantly likely in the reasonably foreseeable future.
Section 241.13(f) sets out factors ICE must consider regarding the likelihood of
removal, including “the history of the [noncitizen’s] efforts to comply with the order of
removal, the history of the Service’s efforts to remove [noncitizens] to the country in
question or to third countries, including the ongoing nature of the Service’s efforts to
remove 	this [noncitizen] and the 	[noncitizen’s] 	assistance 	with 	those 	efforts, 	the
reasonably foreseeable results of those efforts, and the views of the Department of State
regarding the prospects for removal of [noncitizens] to the country or countries in
question.” 8 C.F.R. § 241.13(f). Although it is not his burden, Mr. Lu has advanced ample
evidence in the record that even after the submission of an application, the Chinese
government remains “recalcitrant” and unwilling to accept its nationals for repatriation.
See 	ECF 	No. 	1 	at 	11–12; 	ECF 	No. 	14-1 	(Congressional 	report 	deeming 	China
“uncooperative” in accepting removals from the U.S.); ECF No. 14-2 at 1 (In fiscal year
2023, ICE “only removed 288 Chinese nationals from the U.S. while it encountered tens
of thousands of Chinese [noncitizens] at the southern border the same year.”). The
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Government, in turn, acknowledges it can advance no evidence to rebut Mr. Lu’s assertion
that China is unlikely to accept his removal. ECF No. 20 at 4. Courts have routinely
refused 	to 	find 	the 	Government 	met 	its 	burden 	by 	offering 	“little 	more 	than
generalizations regarding the likelihood that removal will occur.” Nguyen v. Scott, 796 F.
Supp. 3d 703, 725 (W.D. Wash. 2025) (collecting cases). Here, the Government has not
even provided a generalization: it said only that his document request is pending with the
Chinese government. ECF No. 20 at 3.
Taken altogether, it is clear to the Court that ICE’s individualized determination to
re-detain Mr. Lu failed to comply with 8 C.F.R. § 241.13(f). 	Where, as here, “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.” Rombot v. Souza, 296 F. Supp. 3d 383, 388 (D. Mass. 2017) (quotation
modified); see Zadvydas, 533 U.S. at 690 (“The Fifth Amendment’s Due Process Clause
forbids the Government to deprive any person of liberty without due process of law.”
(quotation modified)). Re-detaining Mr. Lu is unlawful unless and until the Government
has complied with all procedures set forth in Section 241.13 and carried its burden of
showing removal is significantly likely in the reasonably foreseeable future.4 See Nguyen
v. Andrews, No. 1:26-CV-00015, 2026 WL 263058, at *7 (E.D. Cal. Feb. 2, 2026).
4 Because the Court grants Mr. Lu’s requested relief under 8 C.F.R. § 241.13, the Court does not reach the
merits of his due process or Administrative Procedure Act claims. See Rombot, 296 F. Supp. 3d at 386–87
(declining to address petitioner’s Zadvydas claims under 8 U.S.C. § 1231(a)(1)(C) when Section 241.13
applies); cf. Dupont v. Meserve, No. 25-CV-00593, 2026 WL 74112, at *3 (D. Me. Jan. 9, 2026) (“Finding
[petitioner] has offered the Court good reason to believe there is no significant likelihood he will be removed
in the reasonably foreseeable future and that Respondents have failed to rebut those good reasons [under
Zadvydas], the Court need not address [petitioner’s] due process or third country removal claims at this
time.”).
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III. 	Conclusion
Therefore, the Court GRANTS Mr. Lu’s verified petition for a writ of habeas
corpus. ECF No. 1. As previously ordered on January 23, 2026, the Court ORDERS that
Mr. Lu shall remain out of custody, subject to his preexisting conditions of release. The
Court ORDERS that the Government may not add new conditions of release without
utilizing the administrative appeal process to amend the existing conditions. See Orellana
Juarez v. Moniz, 788 F. Supp. 3d 61, 69 (D. Mass. 2025) (ruling ICE’s release conditions,
including ankle monitoring, not present in the immigration judge’s order violated Due
Process). The Court further ORDERS the Respondents not to re-detain Mr. Lu absent a
showing of changed circumstances for his re-detention. This Order does not prevent the
Respondents from pursuing removal efforts in accordance with the law.
S O ORDERED.
Dated this 9th day of February, 2026.
/s/ Stacey D. Neumann
U NITED S TATES D ISTRICT J UDGE
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