Tran v. Hyde et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BINH VAN TRAN,
Petitioner,
v.
PATRICIA HYDE, Acting Director of the
Boston Field Office, U.S. Immigration and
Customs Enforcement; TODD LYONS,
Acting Director of U.S. Immigration and
Customs Enforcement; MICHAEL KROL,
HSI New England Special Agent in Charge;
and KRISTI NOEM, Secretary of the U.S.
Department of Homeland Security; in their
official capacities,
Respondents.
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Civil Action No. 25-cv-12546-ADB
MEMORANDUM AND ORDER
BURROUGHS, D.J.
Before the Court is Petitioner Binh Van Tran’s Emergency Motion for Reconsideration,
[ECF No. 26 (“Mot.”)]. For the reasons set forth herein, the motion is GRANTED.
I. 	BACKGROUND
A. 	Factual History
The facts underlying this habeas petition were fully set forth in the Court’s memorandum
and order denying Respondents’ motion to transfer this action to the Western District of New
York, [ECF No. 21]. As relevant here, Petitioner is a sixty-nine-year-old noncitizen who entered
the United States as a refugee from Vietnam around 1982, when he was about twenty-six years
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old. [ECF No. 1 (“Pet.”) ¶¶ 3, 20–21]. In 2000, Tran received a final order declaring him
removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I). [ECF No. 32-1 (“First Oliveri Decl.”)
¶¶ 9–11]. At that time, because the United States did not have a repatriation agreement with
Vietnam for people who had arrived in the United States before 1995 (“pre-1995 arrivals”), it
was not possible to obtain travel documents for Tran. [Pet. ¶¶ 31, 33–34]. He was detained for
six months following the entry of his final order of removal, then released from custody on an
order of supervision in April 2001. [Id. ¶ 32]. For nearly twenty-five years, Tran complied with
his order of supervision without incident, [id. ¶ 35], and worked full-time at a hardwood flooring
supply company until recently, when he stopped working to care for his wife, who is seriously
ill, [id. ¶¶ 23–24].
In 2020, the United States and Vietnam signed a Memorandum of Understanding (“2020
MOU”), pursuant to which Vietnam has begun to accept removals of pre-1995 arrivals. [Id.
¶ 38]; [ECF No. 32-2 (“Second Oliveri Decl.”) ¶¶ 1–2]. In September 2025, following a routine
email check-in, Tran was instructed to report to ICE’s Boston Field Office. [ECF No. 15-1
(“Tran Decl.”) ¶¶ 4–5]. He reported as instructed, and an “officer informed [him] that ICE [was]
now able to deport individuals to . . . Vietnam.” [Id. ¶ 8]. The officers asked whether Tran had a
passport or other travel document. [Id.]. Tran did not have a travel document, but he was
willing to begin paperwork to request one. [Id.]. Tran completed a self-declaration form right
then and ICE detained him shortly thereafter. [Id. ¶¶ 8, 10–12]. Tran remains in ICE detention
and ICE intends to detain him until he can be removed to Vietnam.
B. 	Removal to Vietnam
When Tran was taken into custody on September 11, 2025, he was informed that “his
case [was] or [would] be under review by the Government of Vietnam for the issuance of a travel
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document.” [First Oliveri Decl. ¶ 13]. Apart from completing the self-declaration form on the
day he was detained, [Pet. ¶ 42], neither Tran nor the government had prepared any materials for
submission to the government of Vietnam prior to his detention. Sometime later, Tran’s full
application for travel documents was completed, see [First Oliveri Decl. ¶ 17], and three months
after he was taken into custody, the application was given to a United States attaché, [Second
Oliveri Decl. ¶ 4], who presented it to the government of Vietnam on December 12, 2025, [ECF
No. 35-1 ¶ 1].
Despite Tran’s request for travel documents having been submitted to the Vietnamese
government, the parties continue to disagree about the likelihood and imminence of Tran being
issued the documents. Respondents claim that travel documents typically issue within thirty
days. [Second Oliveri Decl. ¶ 5]. Tin Thanh Nguyen, an attorney who “specialize[s] in
immigration and deportation cases involving Vietnamese citizens,” has filed a declaration on
Tran’s behalf describing a longer timeline. [ECF No. 34 (“Nguyen Decl.”) ¶ 5]. Nguyen notes
that “the most challenging client matters involve [pre-1995 arrivals],” [id. ¶ 8], because “the
Vietnamese government subjects . . . travel document applications made by [p]re-1995 arrivals to
substantial vetting,” [id. ¶ 9], including official site visits to a person’s last known address and
interviews of surviving relatives, [id. ¶ 10]; cf. [Tran Decl. ¶ 9 (“[Before checking in with ICE,] I
had alerted my youngest brother in Vietnam that . . . Vietnamese officials may contact him if
they ask me to submit travel paperwork.”)]. According to Nguyen, it is not possible to know
“the likelihood that the Vietnamese government will approve a particular [p]re-1995 arrival’s
request,” [Nguyen Decl. ¶ 14], and if “an application fails to pass this substantial vetting process,
the Vietnamese government will . . . take no action,” [id. ¶ 15], resulting in an “informal denial”
of which the United States may not receive formal notice, [id.]. Nguyen has worked on nearly
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one hundred cases involving travel document requests for pre-1995 arrivals in 2025 and has
never seen a travel document issued within thirty days. [Id. ¶ 16]. In her experience, “it can take
many months to get any answer,” [id.], and the answer is not always an approval, [id. ¶ 18].
Respondents acknowledge that two hundred and ninety-six travel document requests for pre-
1995 arrivals have been submitted in fiscal year 2025, and that eighty-nine of those people—
more than one in four—have not been removed. [Second Oliveri Decl. ¶ 3].
C. 	Procedural History
Tran filed his Petition on September 11, 2025. [Pet.]. On September 19, 2025,
Respondents filed a motion to transfer the Petition to the Western District of New York, where
Tran is currently detained. [ECF No. 8]. On November 13, 2025, the Court denied the motion
and ordered Respondents to file a response to the Petition. [ECF Nos. 21, 22]. On November
26, 2025, Respondents filed a response in which they stated that the “legal issues presented in
[Tran’s] Petition” were similar to those presented in Morales v. Plymouth County Correctional
Facility, No. 25-cv-12602, ECF No. 15 (D. Mass. Sept. 30, 2025), and that “should the Court
follow [that] reasoning . . . , it would reach the same result here.” [ECF No. 24 at 1]. Relying on
this, the Court followed its reasoning in Morales and ordered that Tran receive a bond hearing.1
[ECF No. 25].
Eight days later, on December 4, 2025, Tran filed the instant emergency motion for
reconsideration, [Mot.], asserting that Morales was inapplicable and that he was still seeking a
decision on the arguments presented in his Petition. [Id. at 7–8]. Respondents do not contest
1 Tran received a bond hearing on December 5, 2025, [First Oliveri Decl. ¶ 19], at which he was
denied bond. The Court does not discuss the issue of bond further because, as the parties now
agree, Tran is not detained pursuant to any statutory provision that would entitle him to release
on bond.
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that Morales was inapplicable or that Tran is entitled to a decision on the merits of his Petition.
They filed an opposition responding to the Motion and the original Petition on December 10,
2025, [ECF No. 32], and the Court held a hearing on the Motion the following day, [ECF
No. 33]. The parties subsequently filed certain materials discussed at the hearing, see [ECF Nos.
34, 35, 37], and the Motion is now ripe for decision.
II. 	DISCUSSION
Tran makes two arguments: (1) that he was redetained in violation of the requirements of
8 C.F.R. § 241.13(i)(2), [Mot. at 7], and (2) that even if his redetention was permitted by 8
C.F.R. § 241.13(i)(2), it is independently unlawful because it violates his Fifth Amendment due
process rights, [id. at 8]. Because the Court concludes that ICE exceeded its regulatory authority
when it redetained Tran, the Court does not reach the question of whether his redetention was
unlawful on constitutional grounds.
A. 	Regulatory Authority for Redetention
“[O]nce a noncitizen has been granted supervised release, that release can only be
revoked upon a showing that because of changed circumstances there is now a ‘significant
likelihood that the [noncitizen] will be removed in the reasonably foreseeable future.’” Kong v.
United States, 62 F.4th 608, 620 n.12 (1st Cir. 2023) (quoting 8 C.F.R. § 241.13(i)(2)). ICE
must make an “individualized determination” as to each person whose release it seeks to revoke.
Id. at 619. In deciding whether the requisite changed circumstances exist, ICE relies on the
factors enumerated in 8 C.F.R. § 241.13(f), and a court considering a challenge to redetention
must likewise “review [ICE’s] claim” that removal is significantly likely in the reasonably
foreseeable future “in light of” those same factors. Id. at 620. Courts, both those interpreting
Kong and those analyzing § 241.13 independent of Kong, generally place a burden on ICE to
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prove that removal is significantly likely in the reasonably foreseeable future as to that particular
person.2 Neither Tran nor Respondents have argued that the Court should take a different
approach to reviewing ICE’s redetention decision, and the Court does not find reason to do so.
Accordingly, the Court will consider the evidence presented by ICE in light of the factors
enumerated in § 241.13(f) to determine whether ICE’s redetention decision was supported by
changed circumstances. 8 C.F.R. § 241.13(f) instructs ICE to consider “all the facts of the case”
while giving particular weight to certain elements, namely:
. . . the history of the alien’s efforts to comply with the order of removal, the history
of the Service’s efforts to remove aliens to the country in question or to third
countries, including the ongoing nature of the Service’s efforts to remove this alien
and the alien’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 aliens to the country or countries in question.
8 C.F.R. § 241.13(f). Based on the specific facts of this case, three of these elements have little
impact on the likelihood of removability in the reasonably foreseeable future. Concerning “the
2 The majority of recent cases follow this approach. See, e.g., Nguyen v. Hyde, 788 F. Supp. 3d
144, 150–51 (D. Mass. 2025) (discussing Kong); Hoac v. Becerra, No. 25-cv-01740, 2025 WL
1993771, at *3–4 (E.D. Cal. July 16, 2025) (same); Roble v. Bondi, No. 25-cv-03196, 2025 WL
2443453, at *4 (D. Minn. Aug. 25, 2025) (same); Escalante v. Noem, No. 25-cv-00182, 2025
WL 2206113, at *3 (E.D. Tex. Aug. 2, 2025) (independent analysis); Yee S. v. Bondi, No. 25-
cv-02782, 2025 WL 2879479, at *4 (D. Minn. Oct. 9, 2025) (same); Phongsavanh v. Williams,
No. 25-cv-00426, 2025 WL 3124032, at *3–4 (S.D. Iowa Nov. 7, 2025) (independent analysis;
noting that petitioner could have made a threshold showing that removal was unforeseeable if
required); Abuelhawa v. Noem, No. 25-cv-04128, 2025 WL 2937692, at *8–9 (S.D. Tex. Oct.
16, 2025) (independent analysis; first requiring threshold showing that removal was
unforeseeable; finding that petitioner had made such showing).
Two sessions of the Northern District of Texas have taken a different approach. These
orders at least partially reject Kong’s analysis, and rather than placing a burden on respondents to
show changed circumstances, they first require the petitioner to provide sufficient evidence as to
why the court should “deny the presumption of regularity” in favor of the respondents.
Nouansisouhak v. Noem, 25-cv-02222, 2025 WL 3165161, at *4 (N.D. Tex. Oct. 9, 2025);
accord Nguyen v. Noem, 797 F. Supp. 3d 651, 669 (N.D. Tex. 2025). The Court declines to
adopt that approach.
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history of [Tran’s] efforts to comply with the order of removal,” the record does not contain any
relevant information that would have been available at the time that Tran was redetained. As to
“the views of the Department of State regarding the prospects for removal of aliens to the
country or countries in question,” Respondents have not produced any evidence. Finally,
concerning “[Tran’s] assistance with [the government’s efforts to remove him],” Tran was
willing to assist the government—he notified his brother in Vietnam to expect an interview by
the Vietnamese government, [Tran Decl. ¶ 9], voluntarily reported to ICE when instructed, [id.
¶¶ 5–7], and completed a self-declaration form for travel documents at ICE’s request, [id. ¶ 8]—
but because the government had not actually commenced any effort to remove him at the time he
was redetained, it is not clear how this factor could bear on the changed circumstances inquiry.
As to the elements that do bear on the finding, on the record before it, the Court
concludes as follows. “[T]he history of [ICE’s] efforts to remove aliens to [Vietnam]” weighs in
favor of finding a significant likelihood of removability in the reasonably foreseeable future
because ICE has, relatively recently, removed a significant number of pre-1995 arrivals.
[Second Oliveri Decl. ¶ 3]. On the other hand, “the ongoing nature of [ICE’s] efforts to remove
[Tran]” weighs against a finding of significant likelihood of removability in the reasonably
foreseeable future. When Tran was redetained, there had not been any ongoing effort to remove
him. Tran was detained solely on the basis that other pre-1995 arrivals had successfully been
removed, and because the government expected that, after completing the process of requesting
and receiving travel documents, it would similarly be able to remove Tran. In other words, there
was no individualized determination of his circumstances.
Further, even treating the self-declaration completed by Tran minutes prior to his
detention as the start of an effort to remove him, the Court is not persuaded that it was
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reasonable, solely on the basis of that completed document, to conclude that Tran’s removal was
significantly likely within a reasonably foreseeable timeframe. Using the facts of this case as a
reference, the Court notes that it took roughly three months from the day that Tran completed his
self-declaration before a completed application was even presented to the Vietnamese
government. Additionally, presenting such an application to the Vietnamese government
represents only the first half of the removal process. The Vietnamese government must approve
the request, and the record suggests that for pre-1995 arrivals, a completed travel document
request does not guarantee approval, and certainly not within a predictable timeframe. [Nguyen
Decl. ¶¶ 9–10, 14–16]; [Second Oliveri Decl. ¶ 3].
ICE’s analysis under § 241.13(i) must be “individualized.” Kong, 62 F.4th at 619. The
only reasons that ICE had for redetaining Tran on September 11 were that (1) other pre-1995
arrivals had successfully been removed and (2) Tran had completed a self-declaration form. As
noted, these two facts alone are not sufficient, in light of the factors enumerated in § 241.13(f), to
establish that Tran was reasonably likely to be removed in the reasonably foreseeable future. See
Hoac, 2025 WL 1993771, at *4 (“The fact that Respondents intend to complete a travel
document request for Petitioner does not make it significantly likely he will be removed in the
foreseeable future.”); Phan v. Noem, No. 25-cv-02422, 2025 WL 2898977, at *4 (S.D. Cal. Oct.
10, 2025) (holding that ICE’s ongoing efforts to assemble a travel document request were
insufficient to show changed circumstances); Liu v. Carter, No. 25-cv-03036, 2025 WL
1696526, at *3 (D. Kan. June 17, 2025) (“[T]he fact that officials did not even request [travel
documents] for petitioner from the Chinese authorities until May . . . undercuts any suggestion
that petitioner’s release was in fact revoked in January because the likelihood of obtaining [those
documents] had increased to any material degree.”).
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B. 	Mootness in Light of Subsequent Developments
The Court next considers whether this action is moot or requires a different outcome in
light of the further steps taken by Respondents during the three months that Tran has been
detained—namely, completing his application for travel documents and presenting it to the
Vietnamese government. The Court concludes that it is not. Though the government has taken
further steps, the record does not yet suggest that Tran’s removal is significantly likely in the
reasonably foreseeable future, particularly given the number of pre-1995 arrivals who are not
promptly removed following the submission of a request for travel documents. The Court thus
concludes that Tran’s present detention exceeds Respondents’ regulatory authority.3 See
Nguyen, 788 F. Supp. 3d at 153 (“If and when ICE secures a travel document . . . ICE
may . . . re-detain [petitioner] for removal.”).
III. 	CONCLUSION
For the reasons stated above, Tran’s Petition is GRANTED. Respondents are hereby
ORDERED to release Tran pursuant to the Order of Supervision that was in effect prior to his
redetention.
SO ORDERED.
December 24, 2025 	/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE
3 The Court also notes that there is no evidence that Tran’s detention is necessary to ensure his
compliance with an eventual removal order, given that he has complied with all instructions for
over two decades and, in October, sought to participate in a voluntary removal program.
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