788 F.Supp.3d 144
D. Mass.2025Background
- Dong Van Nguyen, a Vietnamese refugee and legal permanent resident, was ordered removed from the U.S. in 1992 due to a criminal conviction, but removal was infeasible at the time due to lack of diplomatic relations and repatriation agreements between the U.S. and Vietnam.
- Nguyen spent years under various Orders of Supervision (OSUP), was periodically detained, and ultimately maintained compliance with his supervised release since 2014 with no new criminal convictions.
- In 2020, the U.S. and Vietnam signed a Memorandum of Understanding (MOU) to facilitate removals of certain Vietnamese nationals, but it did not create binding obligations or confer individual rights.
- In 2025, following ICE's directive, Nguyen applied for a Vietnamese passport and was then detained by ICE to effectuate removal under alleged “changed circumstances.”
- Nguyen filed a habeas petition challenging his re-detention, arguing there was no significant likelihood of removal in the foreseeable future as required by regulation.
Issues
| Issue | Nguyen's Argument | Government's Argument | Held |
|---|---|---|---|
| Lawfulness of re-detention under 8 C.F.R. § 241.13 | No significant likelihood of removal; ICE failed proper findings | Detention lawful due to "changed circumstances" and pending removal | ICE did not show changed circumstances; detention unlawful |
| Applicability of 2020 MOU as change in circumstance | MOU discretionary, not binding; doesn't ensure Vietnam's acceptance | MOU enables removals of pre-1995 arrivals; new removals occurring | MOU alone insufficient—does not guarantee removal |
| Statistical likelihood of removal | No evidence removals happen for pre-1995 arrivals like Nguyen | Recent removals to Vietnam support likelihood | No specific evidence Nguyen's removal is significantly likely |
| Due process and ICE's regulatory compliance | ICE violated its own regs and due process rights | Proper process followed per regs and due process | ICE's failure to adhere to its regs invalidates detention |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (limits on post-removal detention; due process concerns for indefinite ICE detention)
- Kong v. United States, 62 F.4th 608 (need for individualized, fact-based ICE determination under § 241.13 for re-detention)