Shae v. Mchenry

Background

Petitioner Yee S. is a native of Burma (Myanmar) who came to the United States in 2007 as a refugee, having spent early years in a refugee camp in Thailand. He later adjusted his status to lawful permanent resident. On January 19, 2021, he pleaded guilty to a sexual conduct crime under Minnesota law (Minn. Stat. § 609.342.1(a)). The Department of Homeland Security commenced removal proceedings, and on September 13, 2021, an Immigration Judge ordered him removed but granted deferral of removal under the Convention Against Torture, ordering him removed to any country other than Burma that would accept him. The removal order became administratively final on October 13, 2021.

In December 2021, ICE released Yee S. under an Order of Supervision, having determined there was no significant likelihood of removal in the reasonably foreseeable future. He alleges — and Respondents do not contest — that he never violated his conditions of supervised release and had no further encounters with law enforcement.

On June 6, 2025, federal marshals re-arrested him based on a determination that removal was now significantly likely. The following day, ICE served a Revocation Notice stating that circumstances had changed and that ICE was 'in the process of obtaining a travel document.' ICE then conducted an 'informal interview' the same day, the notes of which reflected no substantive oral discussion. Yee S. remained detained at Freeborn County Adult Detention Center. He filed his habeas petition on July 7, 2025, and later obtained counsel who filed emergency motions for expedited review and a temporary restraining order (TRO).

Jurisdiction

The court confirmed jurisdiction under 28 U.S.C. § 2241, which authorizes federal courts to order release of a person held in custody in violation of federal law. Citing Zadvydas v. Davis, 533 U.S. 678 (2001), the court noted that jurisdiction exists over § 2241 petitions filed by persons detained after a deportation order has become final. Because Yee S. challenged the revocation of his supervised release rather than the underlying removal order itself, the court found jurisdiction was proper. Respondents did not dispute jurisdiction.

Legal Framework: 8 C.F.R. § 241.13

After a noncitizen is ordered removed, 8 U.S.C. § 1231(a)(1) provides a default 90-day removal period; § 1231(a)(6) allows detention beyond that period in certain circumstances, but under Zadvydas, indefinite detention is not permitted. ICE's regulations at 8 C.F.R. § 241.13 govern the process for detaining, releasing, and revoking the release of noncitizens who cannot be removed in the reasonably foreseeable future. Under § 241.13(g), if ICE determines removal is not significantly likely in the reasonably foreseeable future, the noncitizen must be released on supervised release.

Release may be revoked on two grounds: (1) violation of supervised release conditions, or (2) changed circumstances. Under § 241.13(i)(2), ICE may return a noncitizen to custody only if, 'on account of changed circumstances,' ICE 'determines that there is a significant likelihood that the [noncitizen] may be removed in the reasonably foreseeable future.' The regulations also require ICE to notify the noncitizen of the reasons for revocation and conduct a prompt informal interview. The regulations place the burden on ICE — not the noncitizen — to establish that changed circumstances justify revocation.

Holding: Petition Granted in Part

The court held that ICE failed to comply with § 241.13(i)(2) and that Yee S.'s re-detention was therefore unlawful. The court identified three compounding failures:

1. The Revocation Notice Was Inadequate The Revocation Notice contained only boilerplate language asserting 'changed circumstances' and stating that 'ICE is in the process of obtaining a travel document.' It did not identify: what the travel document was; which country ICE was seeking a travel document from; what steps had been taken; or why circumstances had changed since the 2021 release determination.

2. Respondents' Court Submissions Were Also Inadequate Even in their formal legal response to the habeas petition — submitted pursuant to a court order requiring them to establish the lawfulness of detention — Respondents provided only conclusory assertions. They did not identify any specific country willing to accept Yee S., describe any concrete steps toward removal, or address the regulatory factors listed in § 241.13(f) (which include the noncitizen's compliance history, ICE's history of removing noncitizens to applicable third countries, and the Department of State's views on removal prospects). Respondents cited a declaration by Joshua L. Holien to support their claim that the agency believed removal was imminent, but that declaration was never actually filed. The court stated that even if it had been filed, a bare subjective belief would be immaterial.

3. The Record Does Not Support the Required Determination The court noted that Burma — where Yee S. appears to be a citizen — remains foreclosed under the removal order. Respondents identified no third country willing to accept him. The government offered no progress updates even in the nearly two months between his June 2025 arrest and the filing of their court response. The court compared this record unfavorably to other cases where courts had still found the government's showing insufficient — including Nguyen v. Hyde, where ICE at least pointed to a repatriation agreement with Vietnam and active travel document processing, yet the court still ordered release.

The court also expressed concern — without formally ruling on it — that ICE may not have complied with § 241.13(i)(3)'s requirement to notify Yee S. of revocation reasons before re-detention, since the Revocation Notice was served the day after his arrest.

The court noted a separate argument raised by Yee S. under Zadvydas — that his detention had exceeded six months and was constitutionally unreasonable — but declined to reach that question given the § 241.13 ruling. The court did observe that the length of his detention (over six months by the time of the order) made the 'reasonably foreseeable future' window correspondingly narrow under Zadvydas.

Disposition

- Habeas petition: Granted in part and denied in part. Respondents were ordered to release Yee S. immediately, no later than 10:00 a.m. CT on October 10, 2025, subject to the December 13, 2021 Order of Supervision conditions. Counsel for Respondents was ordered to file a declaration confirming compliance by the same deadline. The request for a permanent injunction barring future re-detention was denied as insufficiently specific under Federal Rule of Civil Procedure 65(d)(1)(B); the court also noted that ICE should not be categorically precluded from future lawful re-detention. - Motion to Expedite: Denied as moot. - TRO/Preliminary Injunction Motion: Denied as moot.