Munagi v. McDonald et al

Francis Munagi,
United 	States 	District Court
District of Massachusetts
Petitioner,
v.
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Civil Action No .
25-13175-NMG
Joseph D . 	McDonald , 	et 	al.,
Respondents.
MEMORANDUM 	& ORDER
GORTON, 	J .
In 	his 	petition 	for 	writ 	of 	h abeas 	corpus 	(Docket 	No . 	1)
petitioner 	Francis 	Munagi 	(" Munagi " 	or 	" petitioner " ) 	contends
that 	Joseph 	D. 	McDona l d , 	Jr . 	and 	other 	named 	respondents
(" respondents " ) 	have 	violated 	his 	statutory , 	regulatory 	and 	due
process 	rights 	by 	revoking 	h i s 	Order 	of 	Superv i sed 	Re l e a se
("OSUP " ) 	and 	detaining 	him 	pending 	deportation . 	Respondents
maintain 	that 	petitioner ' s 	detention 	is 	statutorily 	authorized
and 	constitutional 	because 	U. S. 	Immigration 	and 	Customs
Enforcement 	("ICE " ) 	l awfully 	revoked 	his 	supervised 	release
after 	determining 	that , 	on 	account 	of 	changed 	circumstances ,
there 	is 	a 	significant 	likelihood 	that 	petitioner 	may 	be
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deported 	to 	Kenya 	in 	the 	reasonably 	foreseeable 	future .
reasons 	that 	follow , 	Munagi ' s 	petition 	wi ll 	be ALLOWED.
For 	the
I. 	Background
Petitioner 	is 	a 	native 	of 	Kenya 	who 	has 	been 	residing 	in
the 	United 	States 	since 	2001 , 	the 	year 	he 	entered 	th e 	country
with 	a 	Form 	I - 94 	after 	formal 	inspection 	by 	Border 	Protection
agents. 	In 	2014 , 	an 	immigration 	judge 	issued 	a 	final 	order 	of
removal 	to 	Kenya 	for 	petitioner . 	More 	than 	six 	months 	later ,
ICE 	released 	petitioner 	on 	an 	OSUP , 	requiring 	him 	to 	check 	in
with 	ICE 	periodically . 	In 	October , 	2025 , 	during 	a 	scheduled
check - in , 	ICE 	revoked 	petitioner ' s 	OSUP 	and 	detained 	him . 	At
the 	time 	of 	his 	arrest , 	ICE 	gave 	petitioner 	written 	notice 	of
his 	OSUP 	revocation 	under 	8 	C. F . R . 	§241 . 13(i) (2) , 	advising 	him
that 	it 	had 	determined 	that 	he 	could 	be 	removed 	from 	the 	United
States . 	Munagi 	remains 	detained 	at 	the 	Plymouth 	County
Correctional 	Facility , 	although 	he 	was , 	at 	one 	point ,
temporarily 	transferred 	to 	John 	F . 	Kennedy 	Airport 	by mistake .
See 	Docket 	No. 	23 .
II. 	Jurisdiction
The 	government 	argues 	that 	this 	Court 	does 	not 	have
jurisdiction 	because , 	in 	his 	petition , 	petitioner 	does 	not 	name
his 	immediate 	custodian . 	He 	names 	Joseph 	D. 	McDonald , 	Jr ., 	the
Sheriff 	of 	Plymouth 	County 	and 	Facility 	Head 	of 	the 	Plymouth
County 	Correctional 	Center 	but 	not 	Antone 	Moniz , 	the
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Superinter.dent 	of 	the 	Plymouth 	County 	Correctional 	Center , 	where
he 	is 	currently 	incarcerated.
In 	habeas 	cases , 	the 	immediate 	custodian 	and 	proper
respondent 	is 	the 	individual 	with 	" day - to - day " 	control 	over 	the
imprisoned 	individual . 	Vasquez 	v . 	Reno, 	233 	F . 3d 	688 , 	691 , 	696
(1st 	Cir . 	2000) . 	The 	so-called 	immediate 	custodian 	rule
prevents 	petitioner 	from 	naming 	the 	Attorney 	General 	or 	some
other 	remote 	supervisory 	official 	and 	from 	filing 	his 	petition
outside 	the 	district 	of 	confinement. 	Rumsfeld 	v . 	Padilla , 	542
U.S . 	426 , 	430 	(2004) . 	This 	rule 	serves 	the 	important 	purpose 	of
preventing 	forum 	shopping 	by 	habeas 	petitioners . 	Id .
For 	the 	purpose 	of 	determining 	jurisdiction 	in 	this 	case ,
the 	naming 	of 	Sheriff 	McDonald 	does 	satisfy 	the 	immediate
custodian 	rule 	because 	(1) 	other 	courts 	have 	found 	Sheriff
McDonald 	to 	be 	the 	actual 	custodian 	of 	the 	Plymouth 	County
Correctional 	Facility , 	see 	Anim v . 	McDonald , 	No . 	11 - 10017 - JLT ,
2011 	U. S . 	Dist. 	LEXIS 	2158 , 	at 	*1 - 2 	(D . 	Mass. 	Jan . 	10 , 	201 1 ) 	and
the 	government 	has 	not 	challenged 	jurisdiction 	in 	those 	cases 	in
which 	he 	has 	been 	the 	named 	respondent; 	(2) 	Sheriff 	McDonald
does 	have 	day-to - day 	control 	over 	the 	facility 	based 	on 	the
description 	on 	its 	website , 	and 	(3) 	petitioner 	does 	not 	appear
to 	this 	Court 	to 	be 	forum 	shopping .
Thus , 	the 	Court 	concludes 	it 	has 	j u r i sdict i on 	in 	this 	case
and 	will 	proceed 	to 	the 	merits 	of 	the 	petition .
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III. 	Legal 	Standard
When 	a 	non - citizen 	is 	ordered 	r emoved 	from 	the 	United
States , 	the 	federa l 	government 	must 	effectuate 	that 	removal
within 	90 	days . 	8 	U.S . C . 	§1231 (a) (1) (A) . 	I f 	the 	det a inee 	has
not 	been 	removed 	after 	90 	days , 	the 	government 	may 	continue 	its
detention 	" for 	a 	period 	reasonably 	necessary 	to 	secure 	the
alien ' s 	removal . " 	Zadvydas 	v . 	Davis , 	533 	U. S . 	678 , 	682 	(2001) .
That 	continued 	detention 	is 	presumptively 	reasonable 	for 	six
months . 	Id . 	at 	701 . 	After 	six months , 	if 	the 	detainee
provides 	good 	reason 	to 	believe 	that 	there 	is 	no
significant 	likelihood 	of 	removal 	in 	the 	reasonably
foreseeable 	future , 	the 	[ g]overnmen t 	must 	respond 	with
evidence 	sufficient 	to 	rebut 	t h at 	showing
or 	release 	the 	noncitizen 	on 	an 	OSUP . 	Id .; 	see 	also 	8 	C . F . R. 	§
241.13.
Before 	revoking 	an 	OSUP 	and 	re - detaining 	a 	non - c~tizen , 	ICE
must 	determine 	that , 	based 	on 	changed 	circumstances , 	removal 	has
become 	significantly 	likely 	in 	the 	reasonably 	foreseeable
future . 	8 	C . F . R. 	§241.13(i)(2)) . 	ICE 	must 	make 	that
determination 	in 	the 	first 	instance , 	rather 	than 	the 	Court . 	Kong
v . 	United 	States , 	62 	F . 4th 	608 , 	619 - 20 	(1st 	Cir . 	2023) . 	The
government 	bears 	the 	burden 	of 	demonstrating 	that 	ICE 	properly
made 	such 	a 	determination . 	Nguyen 	v . 	Hyde , 	788 	F . 	Supp . 	3d 	144 ,
15 0 	( D. 	Mass . 	2 0 2 5) .
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Regulatory 	violations 	have 	been 	found 	where 	ICE 	summarily
states 	that 	circumstances 	have 	changed 	wi thout 	providing 	any
specific 	support 	for 	that 	assertion . 	See , 	e . g ., 	Arostegui - Campo
v . 	Noem , 	2025 	WL 	3280886 , 	at 	*4 	(E . D. 	Cal. 	Nov. 	25 , 	2025)
(holding 	that 	the 	unsupported 	st at ement 	by 	the 	declaring 	officer
that 	"there 	is 	a 	significant 	likelihood 	of 	his 	removal 	in 	the
reasonab l y 	foreseeable 	future " 	does 	not 	satisfy 	respondents'
burden) . 	Further , 	the 	changed 	circumstances 	that 	make 	an
alien ' s 	removal 	likely 	in 	the 	foreseeable 	future 	must 	have
existed 	at 	or 	before 	the 	OSUP 	revocation ; 	post-hoc
justif i cations 	are 	inadequate . 	See , 	~ 	' 	Sarail 	A . 	v . 	Bondi ,
2025 	WL 	25333 , 	at 	*10 	(D . 	Minn . 	Sept . 	3 , 	2025) 	(find i ng
revocation 	was 	unlawful 	where 	ICE 	was 	not 	informed 	that 	Jamaica
would 	issue 	petitioner 	travel 	documents 	until 	afte r 	his 	OSUP 	had
been 	revoked) .
IV. 	Discussion
ICE 	offers 	two 	reasons 	for 	i ts 	determination 	that 	Munagi
can 	be 	removed 	in 	the 	reasonab l y 	foreseeable 	future : 	(1) 	that
there 	is 	an 	active 	repatriation 	agreement 	between 	the 	Un i ted
States 	and 	Kenya , 	and 	(2) 	that 	ICE 	has 	obtained 	t r avel 	documents
for 	petitioner 	to 	return 	to 	Kenya .
The 	government 	does 	not 	specify 	when 	the 	repatriation
agreement 	was 	entered 	into 	and 	ICE ' s 	own 	statistics 	show 	that
dozens 	of 	deportations 	to 	Kenya 	occurred 	in 	2014 , 	t he 	year 	ICE
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initially 	determined 	that 	there 	was 	no 	significant 	likelihood 	of
Munagi's 	deportation 	in 	the 	reasonably 	foreseeable 	future . 	ICE
has 	provided 	the 	Court 	with 	no 	indication 	that 	the 	repatriation
agreement 	between 	the 	United 	States 	and 	Kenya 	is 	more 	favorable
now 	than 	it 	was 	in 	2014, 	and 	even 	if 	it 	did , 	courts 	have 	found
that 	such 	evidence 	does 	not 	show 	a 	sufficiently 	individualized
determination . 	Nguyen , 	788 	F . 	Supp . 	3d 	at 	150 	(rejecting
government ' s 	reliance 	on 	a 	new 	repatriation 	agreement 	with
Vietnam 	and 	statistics 	showing 	exponential 	growth 	in 	removals 	to
that 	country 	because 	it 	did 	not 	specifically 	address 	similarly
situated 	individuals) .
As 	for 	the 	newly 	obtained 	travel 	documents , 	ICE 	did 	not
apply 	for 	such 	documents 	until 	after 	it 	had 	revoked 	Munagi ' s
supervised 	release . 	The 	question 	before 	the 	Court 	is 	not
,vhether 	petitioner ' s 	deportation 	is 	now 	likely 	in 	the 	reasonably
foreseeable 	future 	but 	whether 	such 	likelihood 	existed 	at 	the
time 	his 	OSUP 	was 	revoked . 	The 	government 	has 	proffered 	no
evidence 	demonstrating 	the 	latter .
In 	sum , 	without 	any 	support 	from 	the 	government 	showing
that 	ICE 	made 	an 	individualized , 	pre - revocation 	determination
that 	Munagi 	was 	removable 	in 	the 	reasonably 	foreseeable 	future ,
the 	Court 	cannot 	conclude 	that 	the 	government 	has 	met 	its 	burden
under 	8 	C . F . R . 	§241 . 13(£) , 	(i) (2) . 	Furthermore , 	ICE , 	similar 	to
all 	other 	agencies , 	has 	the 	duty 	t~ 	comply 	with 	its 	own 	federal
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~egulations . 	Rombot 	v . 	Souza, 	296 	F . 	Supp . 	3d 	383 , 	388 	(D . 	Mass.
2017) 	(clear.ed 	up). 	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. "
Id. 	(cleaned 	up)
The 	subject 	regulation 	undoubtedly 	implicates 	petitioner's
co nstitutional 	rights . 	" Freedom 	from 	imprisonment-from
government 	custody , 	detention , 	or 	other 	forms 	of 	physical
restraint-lies 	at 	the 	heart 	of 	the 	liberty" 	that 	the 	Fifth
Amendment 	protects . 	Zadvydas , 	533 	U. S . 	at 	690 . 	Because 	ICE
violated 	its 	own 	regulations, 	the 	revocation 	of 	Munagi ' s 	OSUP 	is
invalid 	and 	his 	detention 	is 	unlawful .
In 	light 	of 	its 	impending 	order , 	the 	Court 	declines 	to
addr e ss 	petitioner ' s 	c o nstitutional 	and 	sta t utory 	arguments.
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ORDER
For 	the 	forgoing 	reasons, 	the 	petition 	for 	writ 	of 	habeas
corpus 	(Docket 	No. 	1) 	is 	ALLOWED . 	The 	Court 	directs 	that
petitioner , 	Francis 	Munagi , 	shall 	be 	released .
So 	ordered.
Nathaniel 	M. 	Gorn
Senior 	United 	States 	District 	Judge
Dated: 	December /j , 	2025
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