Shae v. Mchenry

Background

Petitioner Yee S. was born in Burma, spent his early years in a refugee camp in Thailand, and immigrated to the United States as a refugee in 2007. 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 (DHS) then commenced removal proceedings, and on September 13, 2021, an Immigration Judge ordered him removed — but granted deferral of removal under the Convention Against Torture, specifying removal to any country other than Burma that would accept him. The removal order became administratively final on October 13, 2021.

After the removal period expired with no country accepting him, ICE released Yee S. on December 13, 2021, under an Order of Supervision, having determined there was no significant likelihood of removal in the reasonably foreseeable future. The parties did not dispute that he complied with all supervision conditions and had no further law enforcement encounters during those years of supervised release.

On June 6, 2025, federal marshals re-arrested Yee S. based on a determination that removal was now significantly likely. The next day — after his arrest — ICE served a Revocation Notice stating only that there were "changed circumstances" and that "ICE is in the process of obtaining a travel document." The notice did not identify any specific country, describe what steps had been taken, or explain what had changed since the 2021 release. ICE conducted an informal interview the same day, but its notes did not reflect any oral discussion. Yee S. remained detained at Freeborn County Adult Detention Center. By the time of this ruling, he had been detained for approximately four months.

Yee S. filed a petition for a writ of habeas corpus (a legal challenge to the lawfulness of his imprisonment) on July 7, 2025, under 28 U.S.C. § 2241. He later obtained counsel and filed an Emergency Motion to Expedite and an Emergency Motion for a Temporary Restraining Order (TRO) and Preliminary Injunction.

Jurisdiction

The court confirmed it had jurisdiction under 28 U.S.C. § 2241, which allows federal courts to order release of a person held in violation of federal law. Because Yee S. challenged not the underlying removal order itself but the revocation of his supervised release and his continued re-detention, the court found it had authority to decide the lawfulness of his re-detention, citing Zadvydas v. Davis, 533 U.S. 678 (2001). Respondents did not contest 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. Even beyond that period, indefinite detention is prohibited under Zadvydas. ICE's implementing regulation, 8 C.F.R. § 241.13, governs when someone who has been released on supervision because removal was not reasonably foreseeable can be re-detained. Under § 241.13(i)(2), ICE may revoke release 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." ICE must notify the noncitizen of the reasons for revocation and promptly conduct an informal interview. The regulation places the burden on ICE to establish that changed circumstances justified re-detention.

Analysis: ICE's Failure to Comply with Its Own Regulations

The court held that Respondents failed on multiple levels to satisfy § 241.13(i)(2).

Deficient Revocation Notice The Revocation Notice contained only boilerplate language — "changed circumstances" — and the sole factual statement was that "ICE is in the process of obtaining a travel document." It did not identify any specific country, describe what steps had been taken, or explain how circumstances had changed since the 2021 determination that removal was not reasonably foreseeable.

Deficient Court Filings Even in their formal court submissions, Respondents offered only conclusory statements that ICE had complied with regulatory requirements. They never identified a specific third country willing to accept Yee S. or described any concrete progress toward removal. The government's suggestion that the Removal Order's openness to any country other than Burma increased removal likelihood was rejected because Respondents did not explain how this constituted a change since the 2021 order. A government policy change argument was raised only in footnotes and declined consideration on that basis. A declaration cited in the government's brief was never filed.

No Reasoned Determination on the Relevant Factors The court found the record did not support a finding that ICE made any reasoned determination, as required, considering the factors listed in § 241.13(f): the noncitizen's compliance history, ICE's history of removing noncitizens to relevant third countries, the reasonably foreseeable results of ongoing efforts, and the Department of State's views on removal prospects. Respondents addressed none of these factors and identified no third country where removal was expected.

Comparison to Similar Cases The court observed that Respondents provided even less justification than the government offered in comparable cases where other courts still ordered release — including Nguyen v. Hyde (D. Mass.), Escalante v. Noem (E.D. Tex.), and Sarail A. v. Bondi (D. Minn.) — in all of which courts found the government's showing insufficient.

Notification Timing Concern The court also flagged concern that the Revocation Notice was not served until after Yee S. was already re-detained, potentially violating the requirement under § 241.13(i)(3) that the noncitizen be notified of revocation reasons "upon revocation," before or simultaneous with re-detention.

Zadvydas Issue Not Reached Yee S. also argued his detention violated constitutional due process under Zadvydas, which creates a presumption that detention beyond six months is unreasonable when there is no significant likelihood of removal. The court did not reach this separate argument given its ruling on the regulatory violation, but noted concern that Yee S.'s detention had exceeded six months by the time of the ruling.

Rulings