Case Name in Immigration Case - Unavailable

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Raciel Z.P.,
Petitioner,
v.
Kristi Noem, Secretary, U.S. Department
of Homeland Security, Department of
Homeland Security, in her official
capacity; Todd M. Lyons, Acting Director
of Immigration and Customs
Enforcement, Immigration and Customs
Enforcement, in his official capacity;
Peter Berg, Director, St. Paul Field Office,
Immigration and Customs Enforcement,
in his official capacity; Samuel J. Olson,
Field Office Director of Enforcement and
Removal Operations, Chicago Field
Office, Immigration and Customs
Enforcement, in his official capacity; and
Eric Klank, Sheriff of Crow Wing
County, Minnesota, custodian of detainees
of the Crow County Jail,
Respondents.
Case No. 26-CV-0249 (KMM/SGE)
REPORT AND RECOMMENDATION
This matter is before the Court on Petitioner Raciel Z.P’s (“Mr. Z.P.”)1 Petition for
Writ of Habeas Corpus (“Petition”) under 28 U.S.C. § 2241. (Dkt. 1.) Mr. Z.P. alleges his
re-detention violates regulatory requirements, and thus his right to due process under the
Fifth Amendment. (Dkt. 1 ¶¶ 27-29.) Mr. Z.P. seeks immediate release. Respondents
1 Pursuant to this District’s policy in immigration cases, the Court identifies Petitioner
only by her first name and last initial.
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oppose the Petition. For the reasons outlined below, the Court recommends that the Petition
be GRANTED.
BACKGROUND
Mr. Z.P. is a citizen of Cuba who entered the United States on July 12, 1995, as a
Cuban parolee. (Dkt. 5 ¶ 4.) On December 13, 1995, Mr. Z.P. was convicted of assault in
the fifth degree and on October 9, 1997 Mr. Z.P. was convicted of criminal sexual conduct
in the second degree. (Dkt. 1 ¶ 2; Dkt. 5 ¶¶ 5-6.) Mr. Z.P. was served a Form I-862, Notice
to Appear, on or around January 15, 1998. (Dkt. 5 ¶ 8.) Mr. Z.P. was ordered removed to
Cuba on September 14, 1998. (Dkt. 1 ¶ 3; Dkt. 5 ¶ 8.) Mr. Z.P. was arrested and placed in
removal proceedings upon his release from prison on July 3, 2000. (Dkt. 5 ¶ 10.) On August
28, 2000, Mr. Z.P. was released from immigration custody on an Order of Supervision
(“OOS”). (Dkt. 5 ¶ 11.) Three years later, Mr. Z.P. was convicted for issuing a bad check
and on November 3, 2003, his Order of Supervision was revoked, and he was taken into
immigration custody again. (Dkt. 5 ¶¶ 12-13.) Mr. Z.P. was again released on an Order of
Supervision2 on January 24, 2005, because his removal to Cuba was not likely in the
foreseeable future. (Dkt. 5 ¶ 14.)3 Since 2005, Mr. Z.P. has attended his regularly scheduled
2 Respondents have not provided the Court with either the first or second Order of
Supervision.
3 Since his release on an Order of Supervision in 2005 Mr. Z.P. has been convicted of
several criminal offenses. (Dkt. 5 ¶¶ 16-21.) The Court notes that Ms. Minner’s Declaration
states that Mr. Z.P. was also convicted of an offense on January 22, 2004 (Dkt. 5 ¶ 15),
however, this makes little sense because he would have still been in immigration custody
at that time according to her Declaration. (Dkt. 5 ¶¶ 13-14.) Regardless, the factual
information in these paragraphs of the Declaration, correct or not, ultimately have no
bearing on the Court’s analysis of the Petition, as discussed more below.
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check-ins with Immigration and Customs Enforcement (“ICE”). (Dkt. 1 ¶ 4.) On the date
of his last check-in, December 11, 2025, Mr. Z.P. was arrested. (Dkt. 1 ¶ 6; Dkt. 5 ¶ 22.)
That same day ICE served a Notice of Revocation of Release (“Notice”)4 at 11:00 p.m. and
conducted an informal interview presumably after the notice was served. (Dkt. 1 ¶ 6; Dkt.
5 ¶ 22; Dkt. 5-1.)
The Notice provided:
On July 17, 1998, you were ordered removed to Cuba by an immigration
judge and you are subject to a final order of removal. On November 4, 2004,
ICE released you from custody on an Order of Supervision. You have not
been compliant with the terms of your release. Additionally, due to changes
in circumstances, ICE will pursue new efforts to remove you to Cuba. Based
on the above, and pursuant to 8 C.F.R. § 241.13, you are to remain in ICE
custody at this time.
(Dkt. 5-1 at 1.)5 Mr. Z.P. has remained detained at the Crow Wing County Jail in Brainerd,
Minnesota, since his arrest. (Dkt. 1 ¶ 6.)
Mr. Z.P. filed his Petition on January 13, 2026. (Dkt. 1) A few days after the filing
of Mr. Z.P.’s petition, and several weeks after his arrest, Mr. Z.P. was served with a notice
of third country removal to Mexico on January 18, 2026. (Dkt. 5 ¶ 23.) Respondents have
not provided this notice of third country removal to the Court but contend that ICE has
“successfully removed many Cuban citizens to Mexico” in recent months. (Dkt. 5 ¶ 25.)
4 As discussed more below, at the time the Notice was served on Mr. Z.P., Respondents
had not yet sought a travel document from Cuba or any third country.
5 The Court has concerns about the veracity of the Notice, specifically on the Proof of
Service page which contains a different noncitizen’s name and A-number scribbled out
with pen, and Mr. Z.P.’s A-number handwritten in. (Dkt. 5-1 at 2.) The Court also notes
that the response Mr. Z.P. provided in his interview was handwritten in Spanish, and
Respondents have not submitted a translated version. (Dkt. 5-1 at 3-4.)
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To date, Mr. Z.P. has not been issued a travel document, nor have Respondents heard from
the Government of Cuba on the foreseeability of Mr. Z.P’s removal to Cuba. (Dkt. 5 ¶ 24.)
ANALYSIS
Federal courts have jurisdiction to order the release of a person held in the custody
of the United States in violation of the “Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). The court’s jurisdiction over habeas extends to a person
held in immigration detention, including where “ICE fail[ed] to follow its own
regulations.”6 Saengnakhone S. v. Noem, No. 25-CV-4775 (ECT/LIB), 2026 WL 34132, at
* 3 (D. Minn. Jan. 6, 2026) (citations omitted); see also INS v. St. Cyr, 533 U.S. 289, 305-
06 (2001).
Mr. Z.P. argues that he should be released subject to the conditions of his prior OOS
because Respondents did not follow their own regulations. (Dkt. 1 ¶¶ 6, 23-25, 29.)
Specifically, he argues that Respondents violated 8 C.F.R. § 241.13(i) by (1) not adequately
notifying him as to why his OOS was revoked, and (2) revoking his OOS without changed
circumstances rendering his removal significantly likely in the reasonably foreseeable
future. (Dkt. 1 ¶¶ 23-25; Dkt. 6.) Respondents admit that Mr. Z.P.’s “removal to Cuba is
unlikely to occur in the foreseeable future” and thus are “nominating” Mr. Z.P.’s case for
third country removal to Mexico. (Dkt. 4 at 1.) Respondents have not addressed Mr. Z.P.’s
regulatory argument, despite an additional opportunity to do so.7 For the reasons discussed
6 Respondents do not challenge this Court’s jurisdiction.
7 Respondents’ original response focused solely on Zadvydas v. Davis, 533 U.S. 678
(2001). (See Dkt. 4) The Court ordered Respondents to submit a supplemental brief
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below, the Court agrees with Mr. Z.P. that Respondents have violated their own
regulations.
I. Statutory and Regulatory Framework
“Agencies must follow their own regulations.” Saengnakhone S., 2026 WL 34132,
at * 3 (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265–68
(1954); Webster v. Doe, 486 U.S. 592, 602 n.7 (1988)); see also Mohammed H. v. Trump,
781 F. Supp. 3d 886, 895 (D. Minn. 2025). When a noncitizen has been detained pursuant
to a final order of removal, ICE is required to release the noncitizen on an OOS if there is
no significant likelihood of removal in the reasonably foreseeable future. See 8 C.F.R. §
241.13(g)-(h); see also Zadvydas v. Davis, 533 U.S. 678, 699-700 (2001) (“[I]f removal is
not reasonably foreseeable, the court should hold continued detention unreasonable and no
longer authorized by statute.”). Here, Mr. Z.P. was released on an OOS over twenty years
ago, on January 24, 2005, because ICE determined his removal to Cuba was not likely in
the reasonably foreseeable future. (Dkt. 5 ¶ 14.)
Once a noncitizen is released under an OOS, as Mr. Z.P. has been, his release may
be revoked in two circumstances: (1) for violations of conditions of an OOS or (2) if “on
addressing Mr. Z.P.’s regulatory argument under 8 C.F.R. § 241.13. (Dkt. 7.) Respondents
submitted a one-and-a-half-page brief that now contends that Mr. Z.P.’s detention is not
subject to 8 C.F.R. § 241.13, despite the Notice and Informal Interview form Respondents
provided Mr. Z.P. specifically stating that his current custody is pursuant to 8 C.F.R. §
241.13. (Dkt. 8 at 1-2; Dkt. 5-1 at 1, 3.) Respondents have not provided legal support for
their new conclusory statements that the regulations do not apply. The Court disagrees with
Respondents’ supplemental response and again determines that Respondents’ argument
applies the wrong legal framework and finds that Mr. Z.P.’s re-detention must be analyzed
under 8 C.F.R. § 241.13(i). See Saengnakhone S., 2026 WL 34132, * 5.
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account of changed circumstances, [ICE] 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 decision to revoke an OOS on account of changed circumstances must be based
on an individualized determination that those changed circumstances render removal
significantly likely in the reasonably foreseeable future. See Kong v. United States, 62 F.4th
608, 619-20 (1st Cir. 2023) (citing 8 C.F.R. § 241.13(i)(2)); Roble v. Bondi, 803 F. Supp.
3d 766, 71-72 (D. Minn. 2025); Yee S. v. Bondi, No. 25-CV-02782 (JMB/DLM), 2025 WL
2879479, at * 5 (D. Minn. Oct. 9, 2025). ICE should make this determination based on the
following factors:
[T]he history of the [noncitizen’s] efforts to comply with the order of
removal, the history of [ICE’s] efforts to remove [noncitizens] to the country
in question or to third countries, including the ongoing nature of [ICE’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); see Sarail A. v. Bondi, 803 F. Supp. 3d 775, 785 (D. Minn. 2025)
(citing cases applying 8 C.F.R. § 241.13(f) factors); Yee S., 2025 WL 2879479, at * 5 (“To
make such a reasoned determination, the agency must consider[ ] factors probative of the
[noncitizen's] future removal, such as the factors set out in section 241.13(f).”) (cleaned
up). The regulations place the burden to establish changed circumstances on ICE. Roble,
803 F. Supp. 3d at 772. A court reviewing ICE’s decision to re-detain a noncitizen should
do so “in light of the regulations instructing ICE on how it should make such a
determination.” Kong, 62 F.4th at 620.
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If ICE elects to revoke an OOS, the noncitizen must “be notified of the reasons for
revocation of his or her release,” and ICE must “conduct an initial informal interview
promptly after [the noncitizen’s] return to [ICE] custody to afford the [noncitizen] an
opportunity to respond to the reasons for revocation stated in the notification.” 8 C.F.R. §
241.13(i)(3). The “reasons for revocation” ICE must provide in a Notice cannot be mere
conclusory assertions about changed circumstances but must contain specific facts
supporting ICE’s decision to revoke the OOS. Sarail A., 803 F. Supp. 3d at 783-84; Roble,
803 F. Supp. 3d at 771-72. And at the interview, the noncitizen “may submit any evidence
or information that he or she believes shows there is no significant likelihood he or she be
removed in the reasonably foreseeable future.” 8 C.F.R. § 241.13(i)(3). ICE must then
consider the contested facts and determine whether revocation of release was warranted.
Id.
II. Respondents’ Compliance with the Regulations
The Notice provided to Mr. Z.P. informed him that “due to changes in circumstances
ICE will pursue new efforts to remove [him] to Cuba” (Dkt. 5-1 at 1.)8 In sum, the Notice
8 The Notice mentions non-compliance but does not allege a violation of the OOS. (Dkt.
5-1 at 1.) Nor have Respondents alleged in briefing that any violation of Mr. Z.P.’s OOS
was the basis for the revocation of his OOS. (See Dkt. 4; Dkt. 8.) Even if Respondents had
argued that Mr. Z.P’s last conviction could have supported revocation here, which they do
not, the most recent conviction occurred six years ago, and it unclear whether Respondents
can leverage a conviction from several years ago to justify Mr. Z.P.’s current revocation.
See Bagat,v. Andrews, et al., No. 1:26-CV-00346 (DJC/AC), 2026 WL 252240, at * 2 (E.D.
Cal. Jan. 30, 2026) (“While it is entirely possible that these events may have been a change
in circumstances supporting the revocation of Petitioner's release when they occurred, they
cannot be leveraged years later to justify Petitioner's present detention.”) Regardless,
because Respondents do not argue that violations of the OOS are the basis for the
revocation of Mr. Z.P’s OOS the Court need not address it under 8 C.F.R. § 241.13(i)(1).
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informs Mr. Z.P. that ICE “will pursue new efforts to remove you to Cuba” but provided
him no information of what the “changes in circumstances” are or what “new efforts” ICE
was pursuing. For example, the Notice did not state that ICE had recently sought or
received travel documents from Cuba, or that ICE was seeking to remove Mr. Z.P. to a
third country. The Notice merely contains conclusory assertions absent any specific facts
regarding changed circumstances. Sarail A., 803 F. Supp. 3d at 783-84; Roble, 803 F. Supp.
3d at 771-72.
Thus, ICE’s alleged “changes in circumstances” being that it was pursuing new
efforts to remove Mr. Z.P. to Cuba, without more, fails to provide specific facts explaining
the “reasons for revocation” that must be stated in the Notice. 8 C.F.R. § 241.13(i)(3).
Moreover, ICE’s Notice here fails to identify any action that ICE has taken to seek a travel
document, which makes it distinguishable from other cases in this District finding that the
notices satisfied the adequate notification requirement. See, e.g., Berchie v. Bondi et al.,
25-CV-3197, Dkt. 12 at 6 (D. Minn. Sept. 3, 2025) (finding ICE’s Notice detailing that
noncitizen’s “case will be reviewed by the Government of Ghana for issuance of a travel
document” satisfied the regulatory requirement); Vang v. Bondi et al., 25-cv-2836,
(LMP/JFD), Dkt. 17 at 7 (D. Minn. August 11, 2025) (finding ICE’s Notice that it was “in
the process of procuring a travel document for [noncitizen] from Laos” satisfied the
regulation’s requirement).
Because the Notice did not contain specific facts constituting “reasons for
revocations” it deprived Mr. Z.P. of an opportunity to meaningfully respond in his
interview. “The essence of due process is notice and an opportunity to respond.” Roble,
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803 F. Supp. 3d at 772. The “purpose of the interview…is to allow the petitioner to respond
to reasons already given —without those reasons, the petitioner has no way to know what
evidence or information is responsive.” Sarail A., 803 F. Supp. 3d at 782-83. ICE’s Notice
gave a conclusory allegation of changes in circumstances, but it did not contain reasons
supported by specific facts as required by the regulation. Moreover, Respondents point out
that Mr. Z.P. “fails to address third country removal.” (Dkt. 4 at 11.) However, the Notice
informed Mr. Z.P. that ICE “will pursue new efforts to remove you to Cuba,” it did not
inform Mr. Z.P. that ICE was pursuing third country removal. (Dkt. 5-1 at 1.) Mr. Z.P.
could not respond to third country removal because that was not a reason given in the
Notice. Sarail A., 803 F. Supp. 3d at 782-83; Roble 803 F. Supp. 3d at 772 (“But Roble
cannot be expected to “respond to the reasons for revocation stated in the notification” if
the notification does not actually state any reasons for revocation. Not only does this
scenario border on the Kafkaesque; it is also contrary to law.”). In fact, Respondents did
not inform Mr. Z.P. of the possibility of third country removal until January 18, 2026,
nearly a week after he filed his Petition and 38 days after his arrest. (Dkt. 5 ¶ 23.) Similarly,
Respondents did not provide this Court with that notice of third country removal.
The record is devoid of any indication that, on account of changes in circumstances,
Mr. Z.P.’s removal is likely to occur in the reasonably foreseeable future. The Notice
served on Mr. Z.P. stated that there were “changes in circumstances” and that “ICE will
pursue new efforts to remove you to Cuba.” (Dkt. 5-1 at 1.) These bare statements do not
inform the Court as to whether there is a “significant likelihood” that Mr. Z.P. “may be
removed in the reasonably foreseeable future.” 8 C.F.R. § 241.13(i)(2). In fact, there is no
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evidence that ICE considered the 8 C.F.R. § 241.13(f) factors before issuing the Notice and
re-detaining Mr. Z.P. Rather the evidence submitted by ICE shows that it did not consider
the § 241.13(f) factors in revoking Mr. Z.P.’s release until after he was re-detained. For
example, the Notice itself references only that ICE “will pursue new efforts” to remove
Mr. Z.P., which “reflects a future possibility but not a present changed circumstance.”
Lecky v. Bondi, et al., No. 2:25-CV-02637 (TLF), 2026 WL 266066, at * 7 (W.D. Wash.
Feb. 2, 2026) (discussing Notice with language that ICE “intends to pursue” removal).
Now, several weeks after Mr. Z.P.’s detention and after he filed this Petition,
Respondents contend that they are “nominating” his case for third country removal to
Mexico. (Dkt. 4 at 1, 4; Dkt. 5 ¶ 24.) Notably, it appears that Respondents had not
nominated Mr. Z.P. for removal to Mexico before his re-detention because they did not
serve a Notice of Third Country Removal on Mr. Z.P. until January 18, 2026. (Dkt. 5 ¶ 23.)
And Respondents have submitted no evidence that they have yet nominated Mr. Z.P. for
removal, despite opportunity to do so. Nominating Mr. Z.P for removal to Mexico is the
only changed circumstances that Respondents point to in support of their assertion there is
a significant likelihood of removal in the reasonably foreseeable future. (See Dkt. 4; Dkt.
5 ¶ 25.) This argument falls “woefully short.” Roble 803 F. Supp. 3d at 773. The fact that
Respondents are nominating Mr. Z.P. for third country removal tells the Court nothing
about the history of efforts to remove noncitizens to Mexico that are similarly situated to
Mr. Z.P. and the reasonably foreseeable results of these removal efforts.
Lastly, the Declaration provided that “ICE has successfully removed many Cuban
citizens to Mexico” in recent months is insufficient and different from others in this district
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which at least provided the Court with information that actual travel documents had been
requested and how many travel documents a particular country issued in the last twelve
months. See Vang v. Bondi et al., 25-CV-2836 (LMP/JFD), Dkt. 17 at 9 (D. Minn. Aug.
11, 2025) (discussing evidence submitted about number of removals); Berchie v. Bondi et
al., 25-CV-3197, Dkt. 12 at 3 (D. Minn. Sept. 3, 2025) (discussing evidence that travel
documents had been requested). Additionally, Respondents do not contend that that they
have taken any tangible steps towards removing Mr. Z.P. to Mexico, such as working with
the Government of Mexico to determine whether Mexico would accept him, despite having
several weeks to do so during the pendency of this case.9 See Yee S., 2025 WL 2879479,
at * 5 (“Finally, the Court finds Respondents’ lack of evidence of any progress even during
the pendency of this case to be telling.”); Roble, 803 F. Supp. 3d at 774 (“Not only was
ICE's release-revocation notice deficient, but even after detaining [petitioner] for over a
month, the Government still fails to show that his removal is any more likely today than
the day he was released on his Order of Supervision.”)
In conclusion, Respondents failed to give Mr. Z.P. proper notice in violation of 8
C.F.R. § 241.13(i)(3), and their actions after-the-fact fall far short of demonstrating
9 The Court also notes that Respondents make various incorrect factual arguments that are
clearly not related Mr. Z.P.’s proceedings. For example, Respondents argue that Mr. Z.P.
has a “pending administrative appeal, which is proceeding apace,” that ICE has performed
“required custody reviews,” and that the duration of Mr. Z.P’s “detention is the result of
his own litigation choices, such as several continuances” and a “pending BIA appeal.”
(Dkt. 4 at 13.) As far as the Court can discern, none of these factual allegations are true for
Mr. Z.P. He does not have a pending appeal, he has not asked for continuances, and there
is no evidence that ICE has conducted any review of Mr. Z.P.’ detention. Consequently,
the Court has serious concerns about the veracity of Respondents’ evidence and arguments
in this case.
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changed circumstances rendering Mr. Z.P.’s removal likely in the reasonably foreseeable
future under 8 C.F.R. § 241.13(i)(2). Simply put, Respondents have not followed their own
regulations. See Saengnakhone S., 2026 WL 34132, at * 3 (citations omitted); Mohammed
H., 781 F. Supp. 3d at 895.
III. RECOMMENDATION
Accordingly, it is HEREBY RECOMMENDED that:
1. Mr. Z.P.’s petition for a writ of habeas corpus (Dkt. 1) be GRANTED and that he
be released from custody subject to the conditions in his prior order of supervision.
2. That any motion for costs and fees pursuant to the EAJA be brought within 30 days
of the entry of judgment in this case.
Dated: February 13, 2026 s/Shannon G. Elkins
SHANNON G. ELKINS
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.
Under the circumstances of this case and Local Rule 72.2(b)(1), the parties may file and
serve specific written objections to this magistrate judge’s proposed findings and
recommendations within 4 days of the filing of the Report and Recommendation. A party
may respond to those objections within 4 days after being served a copy of the objections
without regard to weekends or holidays. See Local Rule 72.2(b)(2). All objections and
responses must comply with the word or line limits set forth in Local Rule 72.2(c).
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