Berchie v. Bondi

Background

Martin Berchie is a citizen of Ghana who entered the United States on a student visa. He was first placed in immigration custody in November 2020 after being charged with criminal sexual conduct in Minnesota state court. On March 25, 2021, an immigration judge ordered him removed to Ghana, and that removal order became final on May 28, 2021, when Mr. Berchie withdrew his appeal to the Board of Immigration Appeals.

Mr. Berchie remained in ICE custody until January 2022, when — after filing a habeas corpus petition (a court challenge to the lawfulness of detention) — the government voluntarily released him on an Order of Supervision (OOS). The reason for release was Ghana's failure to issue travel documents needed to carry out the removal order. Mr. Berchie complied with all OOS conditions for more than three and a half years.

On August 7, 2025, ICE re-arrested Mr. Berchie and served him a Notice of Revocation of Release. The written notice cited "changed circumstances" and stated that ICE had determined he could be "expeditiously removed" under his outstanding removal order, and that Ghana would be contacted for a travel document. Mr. Berchie has been held at the Sherburne County Jail since that date.

After Mr. Berchie filed this petition on August 11, 2025, ICE sent a travel document request to ICE headquarters (August 12), then to the Ghanaian Embassy (August 20). Also on August 20, ICE's Enforcement and Removal Operations requested a "significant likelihood of removal" determination from ICE headquarters, which concluded removal was significantly likely — though it estimated three to four additional weeks after a nationality verification interview with Ghana, an interview that had only been "tentatively" scheduled and not confirmed as of the date of the opinion.

Legal Framework

Federal courts have jurisdiction under 28 U.S.C. § 2241 to order release of a person held in U.S. custody in violation of federal law. This jurisdiction extends to immigration detention.

When a noncitizen subject to a final removal order has been placed on supervised release (an OOS), ICE may revoke that release only in two situations under 8 C.F.R. § 241.13(i): (1) for violations of supervision conditions, or (2) when "changed circumstances" exist such that there is a significant likelihood the noncitizen may be removed in the reasonably foreseeable future. The burden to establish changed circumstances falls on ICE.

Before re-detaining someone under the "changed circumstances" prong, the regulation at 8 C.F.R. § 241.13(f) directs ICE to consider specific factors, including the noncitizen's compliance history, ICE's efforts to remove people to the country in question, the noncitizen's assistance with those efforts, the reasonably foreseeable results of removal efforts, and the State Department's views on removal prospects.

Upon revoking supervised release, ICE must notify the noncitizen of the reasons, promptly conduct an informal interview, allow the noncitizen to submit evidence, and make a determination on whether revocation was warranted. 8 C.F.R. § 241.13(i)(3).

Analysis

Notification

The court found the written Notice adequate. Although it did not use the precise regulatory phrase "significant likelihood of removal in the reasonably foreseeable future," the Notice informed Mr. Berchie that there were changed circumstances, that he could be expeditiously removed, and that Ghana would be contacted for a travel document. The court found this sufficient to satisfy the regulatory notification requirement, and declined to recommend relief on this ground.

Changed Circumstances

The court found ICE's revocation decision deficient on the changed circumstances requirement. The evidence showed ICE did not seek travel documents, and did not analyze whether removal was realistically foreseeable, until after Mr. Berchie had already been re-detained. The very reason he was released in 2022 was Ghana's failure to provide travel documents — and ICE provided no individualized evidence that this had changed.

On the travel document evidence specifically, the court found the government's statistic (that Ghana issued 70 travel documents in 2025) lacked meaningful context: as of November 2024, more than 3,228 Ghanaians subject to final removal orders remained in the United States. The court noted the government provided no comparison to previous years, no information about how many documents were requested versus issued, and no individualized information about Mr. Berchie's likelihood of receiving a document. The court cited the First Circuit's holding in Kong v. United States, 62 F.4th 608 (1st Cir. 2023), for the proposition that re-detention decisions must be individualized.

The court concluded: "ICE has not followed its own regulations," citing the well-established principle that an agency must follow its own regulations. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

Because the court resolved the petition on regulatory grounds (the C.F.R. provisions), it did not reach Mr. Berchie's additional arguments under the Administrative Procedure Act (APA) or the Due Process Clause of the Fifth Amendment.

Recommendation

Magistrate Judge Elkins issued a Report and Recommendation — a non-binding proposal to the assigned district court judge — recommending:

The court declined to recommend an injunction barring ICE from re-detaining Mr. Berchie without court approval, reasoning that ICE could lawfully re-detain him in the future if it actually complied with 8 C.F.R. § 241.13(i).

Procedural Next Steps

This is a Report and Recommendation, not a final order. Either party may file written objections within 14 days of being served a copy. The Report and Recommendation is not directly appealable to the Eighth Circuit Court of Appeals; it must first be reviewed by the assigned district court judge.