Le v. Raycraft et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
KHUONG LE,
Petitioner,
v.
KEVIN RAYCRAFT et al.,
Respondents.
____________________________/
Case No. 1:26-cv-2612
Honorable Robert J. Jonker
OPINION
Petitioner, a United States Immigration and Customs Enforcement (ICE) detainee,
Michigan, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Pet., ECF No. 1.) For the following reasons, the Court will deny Petitioner’s petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241 without prejudice.
Discussion
I. Procedural History
In Petitioner’s § 2241 petition, he challenges the constitutionality of his current detention,
and asks the Court to, inter alia, issue a writ of habeas corpus pursuant to 28 U.S.C. § 2241
ordering Respondents to release Petitioner. (Pet., ECF No. 1, PageID.24.)
In an order entered on September 22, 2026, the Court directed Respondent to show cause
why the writ of habeas corpus should not be granted. (Order, ECF No. 3.) Respondent filed a
response on October 6, 2026, (ECF No. 5), and Petitioner filed his reply on October 9, 2026, (ECF
No. 6).
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II. Factual Background
Petitioner is a native and citizen of Vietnam. (Bakko Decl. ¶ 4, ECF No. 5-1, PageID.60.)
Petitioner was admitted to the United States as a lawful permanent resident in 1989. (Id. ¶ 5.)
Following a conviction for Criminal Sexual Conduct – Second Degree, the Department of
Homeland Security (DHS) served Petitioner was a Notice to Appear (NTA), charging Petitioner
with removability under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act. (Id. ¶ 6.)
On October 31, 2006, an immigration judge ordered Petitioner removed to Vietnam. (Id.
¶ 8, ECF No. 5-1, PageID.61.) The BIA dismissed Petitioner’s appeal of that order on June 12,
2008, and on July 22, 2008, Petitioner was placed in mandatory ICE custody. (Id. ¶¶ 9–10.)
However, Petitioner was not removed from the United States and, on October 29, 2008, ICE
released Petitioner from custody on an Order of Supervision. (Id. ¶ 11.)
On February 27, 2026, ICE agents arrested Petitioner. (Id. ¶ 13.) Petitioner was served with
a notice of revocation of release on February 28, 2026, and, on March 1, 2026, was provided with
an informal interview. (Notice of Revocation of Release, ECF No. 1-5, PageID.38; Bakko Decl.
¶ 14, ECF No. 5-1, PageID.61.)
ICE is in possession of travel documents for Petitioner. (Bakko Decl. ¶ 18, ECF NO. 5-1,
PageID.62.) Petitioner was originally scheduled for removal to Vietnam on September 8, 2026;
however, Petitioner was “not manifested” on that flight and, therefore, was unable to board the
flight for removal. (Id. ¶ 19.) Petitioner is presently scheduled for escorted removal on a
commercial flight on November 8, 2026. (Id. ¶ 21, ECF No. 5-1, PageID.63.)
III. Habeas Corpus Legal Standard
The Constitution guarantees that the writ of habeas corpus is “available to every individual
detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S.
Const., Art I, § 9, cl. 2). Section 2241 of Title 28 confers the federal courts with the power to issue
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writs of habeas corpus to persons “in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241. This includes challenges by non-citizens in immigration-
related matters. See Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see also A. A. R. P. v. Trump,
145 S. Ct. 1364, 1367 (2025).
IV. Merits Discussion
The parties agree that because Petitioner has a final order of removal, Petitioner’s present
detention is governed by 8 U.S.C. § 1231. Petitioner contends that his detention is unlawful under
the Due Process Clause because he was not provided with notice that his supervision was being
revoked in advance of or at the time of his arrest, and under Zadvydas v. Davis Clause because he
was not removed as planned on September 8, 2026, and was instead transferred back from
Louisiana to Michigan. (Pet., ECF No. 1, Page 20.) In response, Respondents argue that ICE
properly revoked Petitioner’s Order of Supervision, and Petitioner’s detention under 8 U.S.C.
§ 1231(a) remains lawful and does not implicate the constitutional concerns identified in Zadvydas
because removal to Vietnam is imminent. (Resp., ECF No. 5, PageID.53–56.)
Here, it is undisputed that Petitioner’s order of removal is administratively final.
Ordinarily, when an individual is issued a final order of removal, that person must be detained and
removed from the country within 90 days. 8 U.S.C. § 1231(a)(1)(A). However, under § 1231(a)(6),
the government is permitted release individuals who are deemed “inadmissible” under specified
terms of supervision. Id. § 1231(a)(6). Consistent with § 1231(a)(6), Petitioner was last released
from detention with an Order of Supervision on October 29, 2008.
The government has promulgated regulations in the Code of Federal Regulations
concerning the release of noncitizens who are subject to a final removal order. See 8 C.F.R.
§ 241.4; 8 C.F.R. § 241.13. These regulations—specifically, §§ 241.4 and 241.13—also govern
the revocation of such noncitizens’ release. The agency must comply with the applicable
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regulatory and statutory requirements. See, e.g., United States ex rel. Accardi v. Shaughnessy, 347
U.S. 260, 268 (1954), superseded in part by statute on other grounds as recognized in Dept. of
Homeland Security v. Thuraissigiam, 591 U.S. 103, 135 (2020
8 C.F.R. § 241.4 generally governs the continued detention of noncitizens under a final
order of removal. Section 241.4(l)(2) provides:
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.
8 C.F.R. § 241.4.
Section 241.13 governs the detention of noncitizens under a final order of removal where
“there is no significant likelihood of removal in the reasonably foreseeable future.” § 241.13(b). If
the noncitizen was released pursuant to § 241.13, release may be revoked 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.” § 241.13(i)(2).
Further, the regulations governing release provide that, “[u]pon revocation of release,” the
noncitizen “will be notified of the reasons for revocation of his or her release,” and will be given
“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.” 8 C.F.R.
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§ 241.4(l)(1); 8 C.F.R. § 241.13(i). Courts examining the requirements for revocation of release
following a final order of removal have consistently held that the procedural requirements of notice
and an interview are required for revocation of a noncitizen’s release. Constantinovici v. Bondi,
806 F. Supp. 3d 1155, 1163 (S.D. Cal. 2025) (collecting cases; citations omitted).
Here, Petitioner was provided with notice of the reasons for the revocation of his release
on February 28, 2026, and was provided with an informal interview promptly after his arrest on
March 1, 2026. (Notice of Revocation of Release, ECF No. 1-5, PageID.38; Bakko Decl. ¶ 14,
ECF No. 5-1, PageID.61.); see 8 C.F.R. § 241.4(l)(1); 8 C.F.R. § 241.13(i). Therefore, Petitioner
is not entitled to habeas relief based upon the revocation of his Order of Supervision.
Petitioner also argues that he is entitled to release under Zadvydas v. Davis, 533 U.S. 678,
683 (2001). Section 1231 provides that “when an alien is ordered removed, the Attorney General
shall remove the alien from the United States within a period of 90 days (in this section referred
to as the ‘removal period’).” 8 U.S.C. § 1231(a)(1)(A). “During the removal period, the Attorney
General shall detain the alien.” 8 U.S.C. § 1231(a)(2)(A) (emphasis added).
Here, Petitioner’s order of removal became final in 2008. Therefore, it is undisputed that
the 90-day period expired long before Petitioner’s present detention.
In Zadvydas, the Supreme Court considered whether 8 U.S.C. § 1231(a)(6) authorizes
indefinite detention when no other country is willing to take a person who has been ordered
removed. 533 U.S. at 682. In answering that question, the Court noted that the purpose of the
statute was to assure the “alien’s presence at the moment of removal.” Id. at 699. Therefore, the
Court concluded that the removal itself must be reasonably foreseeable to fall within post-removal-
order detention authorized by the statute. Id. The Court indicated that there was no specific point
in time at which the detention became constitutionally impermissible, and that the allowable period
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would vary from case to case. Id. Still, to assist the lower courts in making the difficult judgment
calls about the lawfulness of detention, the Court designated six months as a “presumptively
reasonable period of detention.” Id. at 701. But, even after six months, the Court made clear that
the detention may continue unless the alien “provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future.” Id.
Under this framework, it is the petitioner’s burden to come forward with evidence showing
that removal is not significantly likely to occur sometime soon. Id. Only after the petitioner has
come forward with such evidence does the burden flip to the respondents, who must then show
evidence that the removal is, in fact, reasonably foreseeable. See Abdalla v. Johnson, No.
16-14422, 2017 WL 345731, at *4 (E.D. Mich. Jan. 24, 2017) (rejecting Petitioner’s claim that
detention of more than a year violated Zadvydas when the petitioner “provide[d] no evidence” that
removal was unlikely to occur in the near future). Here, the Government has produced evidence to
demonstrate that Petitioner’s removal to Vietnam is reasonably foreseeable, set to occur on
November 8, 2026. Therefore, based on the information presently before the Court, the Court will
deny Petitioner’s § 2241 petition without prejudice.
Conclusion
For the reasons discussed above, the Court will enter an order and judgment denying
Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 without prejudice
and addressing the pending motions in this case.
Dated:
Robert J. Jonker
United States District Judge
October 13, 2026 /s/ Robert J. Jonker
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