Ger v. Mullin

Background

Ger V. is a Hmong native and citizen of Laos who entered the United States in 1982 and obtained lawful permanent resident status. In 1994 he pleaded guilty to a felony, and in September 2001 an immigration judge ordered him removed. In May 2002, the government released him on an Order of Supervision (OSUP) because Laos was not issuing travel documents — meaning removal was not significantly likely in the foreseeable future. He remained on supervised release for over two decades.

On May 5, 2026, ICE arrested Ger V. at a routine check-in appointment in Sioux Falls, South Dakota. ICE served him with a revocation form citing 8 C.F.R. § 241.4(l) and stating that revocation was appropriate because "ICE has the ability and means to effectuate your removal" and that ICE was seeking a travel document for removal to Laos. Following the arrest, Ger V. was given an opportunity to respond to the stated reasons. He has been detained at Freeborn County Jail in Albert Lea, Minnesota since his arrest.

On May 7, 2026, Ger V. filed a five-count Petition for a Writ of Habeas Corpus (a court order requiring the government to justify a person's detention). Count One alleged his continued detention violates 8 U.S.C. § 1231. Count Two alleged a violation of his Fifth Amendment substantive due process rights. Count Three alleged a violation of his Fifth Amendment procedural due process rights. Count Four alleged a Fourth Amendment violation (arrest without a warrant or probable cause). Count Five alleged the government violated its own regulations by providing inadequate notice of revocation and failing to specify the changed circumstances now rendering removal significantly likely.

Legal Framework

Under 8 U.S.C. § 1231, the government generally must remove a noncitizen within 90 days of a final removal order. If removal does not occur within that window, the noncitizen is ordinarily released under supervision. Two regulations govern re-detention of noncitizens previously released on supervision: 8 C.F.R. § 241.4 and 8 C.F.R. § 241.13. Section 241.13 applies when the government previously determined there was no significant likelihood of removal in the reasonably foreseeable future — which triggers special procedural protections before any revocation of supervised release. Section 241.4 applies otherwise.

Under § 241.13(i), an order of supervision may be revoked only for: (1) violation of conditions of release, or (2) changed circumstances creating a significant likelihood of removal in the reasonably foreseeable future. The government must notify the noncitizen of the specific reasons for revocation and promptly conduct an informal interview to allow a response. Courts in the District of Minnesota have held that § 241.13 places the burden on ICE to establish that changed circumstances justified revocation, and that a notice merely parroting regulatory text does not satisfy the notification requirement.

Which Regulation Applies

The court first determines that § 241.13, not § 241.4, governs Ger V.'s re-detention. Although the 2002 Order of Supervision was not submitted into evidence, the court finds ample basis to conclude that the government released Ger V. after determining there was no significant likelihood of his removal in the foreseeable future — supported by the deportation officer's declaration that release was due to Laos not issuing travel documents, corroborated by Ger V.'s petition, and implicitly conceded by the government, which argued it complied with § 241.13 rather than arguing § 241.4 applied.

Defective Notice

The court finds the revocation notice was legally deficient in two ways. First, it cited § 241.4(l) — an inapplicable regulation — as the basis for revocation. Second, it offered only that "ICE has the ability and means to effectuate your removal," which is not one of the two permissible grounds for revocation under § 241.13(i)(1)–(2). The court notes that courts in this district have repeatedly granted habeas relief when revocation notices merely parrot regulatory text rather than providing a meaningful, specific explanation.

The government argued that changed circumstances exist — namely, that the government of Laos is now issuing travel documents — but the court rejects this as an impermissible after-the-fact justification. The government was required to provide adequate notice at the time of revocation, not in litigation.

The government also argued that procedural violations of administrative regulations require a showing of prejudice. The court assumes without deciding that prejudice is required, and finds prejudice is present: the defective notice prevented Ger V. from presenting rebuttal evidence and argument at his informal interview, depriving him of a meaningful opportunity to challenge his re-detention. The court concludes the government violated its own regulations and Ger V.'s due process rights.

Remedy

The court declines to reach Ger V.'s other four claims, finding habeas relief warranted on the regulatory notice violation alone. Following the approach of other courts in similar cases, the court recommends granting the petition and ordering Ger V.'s immediate release from custody, subject to the conditions of his preexisting Order of Supervision dated May 1, 2002.

Ger V.'s request for attorney's fees and costs under the Equal Access to Justice Act (EAJA) — a federal law allowing prevailing parties to recover fees from the government in certain circumstances — is found not yet ripe because no motion for fees has been filed. The court recommends that issue be resolved in the ordinary course following final judgment.

Procedural Posture

This is a Report and Recommendation by a magistrate judge (a judicial officer who assists the district judge), not a final order. Either party may file written objections within five days of being served. The Report is not directly appealable to the Eighth Circuit Court of Appeals. The presiding district judge (identified in the case number as KMM) will review any objections before the recommendation becomes final.