Reported / Citable
Background
Phuc H., a Vietnamese national who entered the United States as a child and later became a lawful permanent resident, was subject to an administratively final removal order dated June 17, 2009. The Department of Homeland Security placed him under an order of supervision, and he continued reporting as required until Immigration and Customs Enforcement detained him on September 9, 2025.
While detained, Phuc H. filed another motion to reopen his removal proceedings. The immigration judge denied that motion as untimely, and his appeal remained pending before the Board of Immigration Appeals. In his habeas petition, he argued that his detention had exceeded the six-month period considered presumptively reasonable under Zadvydas v. Davis and that there was no significant likelihood of removal in the reasonably foreseeable future. The government moved to dismiss and argued that the detention period should be tolled because the pending reopening proceedings prevented removal.
The Court’s Holding
In a report and recommendation, the magistrate judge concluded that Phuc H. met his initial burden under Zadvydas. Nearly eleven months after his detention began, Vietnam had not recognized him as a national or citizen or issued the travel documents necessary for his return.
The magistrate judge further concluded that the government failed to rebut that showing. Its efforts had advanced only to internal review and translation of a travel-document request, which apparently had not yet been formally submitted to Vietnam, and the government presented no evidence concerning when documents might issue or whether removal to a third country had been attempted. The judge rejected tolling because Phuc H. remained detained under 8 U.S.C. § 1231(a)(6) and the government continued attempting to arrange his removal despite the pending BIA appeal. The report therefore recommended granting habeas relief, releasing him under statutory and regulatory conditions of supervision, and denying the government’s motion to dismiss.
Key Takeaways
- Detention beyond Zadvydas’s six-month presumptively reasonable period does not automatically require release, but it permits a detainee to show that removal is not significantly likely in the reasonably foreseeable future.
- Preliminary administrative steps toward obtaining travel documents did not establish a reasonably foreseeable removal where no formal request to Vietnam was shown and no likely timetable was provided.
- The recommended remedy was conditional release under supervision, not cancellation of the removal order or a bar against the government later enforcing it.
Why It Matters
The recommendation illustrates that generalized assertions of continuing removal efforts may be insufficient under Zadvydas once prolonged detention and the absence of travel documents establish that removal is not reasonably foreseeable. The government must respond with evidence that meaningfully supports a significant likelihood of removal.
The disposition is a magistrate judge’s report and recommendation, not a final judgment. The parties were given fourteen days to file specific objections before the assigned district judge decides whether to adopt it.