Berchie v. Bondi
- Katherine Menendez
- 0:25-cv-03197
- U.S. District Court · District of Minnesota
- 10
In Berchie v. Bondi, Magistrate Judge Shannon G. Elkins recommended that the federal court grant Martin Berchie's petition for release from immigration detention, finding that Immigration and Customs Enforcement (ICE) failed to follow its own regulations before re-arresting him after more than three years of compliance with supervision conditions.
Non-citizens (particularly Ghanaian nationals) who have been released from immigration detention on Orders of Supervision and are at risk of being re-detained by ICE, as well as immigration attorneys and advocates following ICE's compliance with 8 C.F.R. § 241.13 in re-detention decisions.
What happened
In Berchie v. Bondi (Case No. 25-cv-3197), Martin Berchie, a citizen of Ghana who had been living under an immigration supervision order for over three and a half years, was suddenly re-arrested by ICE on August 7, 2025. ICE's written notice said his release was revoked due to 'changed circumstances' and that Ghana would be asked to issue a travel document so he could be deported. Berchie had originally been released in January 2022 after a federal court challenge, because Ghana had not provided the travel document needed to carry out his removal order.
Berchie filed a new petition asking the court to order his release, arguing that ICE violated its own federal regulations when it re-arrested him without first determining — and proving — that there was a real likelihood he could actually be removed in the near future. The regulations require ICE to weigh specific factors before re-detaining someone in Berchie's situation, including the history of efforts to remove people to that country and the realistic prospects of getting travel documents. The evidence showed that ICE did not seek a travel document or analyze the likelihood of removal until after Berchie was already back in jail, and that Ghana had issued only 70 travel documents in 2025 out of more than 3,200 Ghanaians subject to removal orders.
Magistrate Judge Shannon G. Elkins issued a Report and Recommendation concluding that ICE failed to follow its own regulations and that there was no adequate evidence of a 'significant likelihood' that Berchie would actually be removed in the reasonably foreseeable future. Judge Elkins recommended that Berchie's petition be granted and that he be released under the same supervision conditions as before. The recommendation also denied his request to bar ICE from ever re-detaining him without court approval, because ICE could lawfully re-detain him in the future if it properly follows the regulations. The emergency motion for a temporary restraining order was recommended to be denied as no longer necessary. Because this is a Report and Recommendation from a magistrate judge, either party may file written objections within 14 days, and the case will ultimately be decided by a district judge.
The detailed version
- Berchie v. Bondi, No. 25-cv-3197 (KMM/SGE)
- Magistrate Judge Shannon G. Elkins (issuing a Report and Recommendation)
- September 3, 2025
Procedural Posture
Martin Berchie filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 — a legal mechanism that allows a person in custody to ask a federal court to order their release if the detention is unlawful — along with an Emergency Motion for a Temporary Restraining Order (TRO). Respondents are various federal officials including Attorney General Pamela Bondi, Secretary of Homeland Security Kristi Noem, ICE Acting Director Todd M. Lyons, and others. Because this is a Report and Recommendation (R&R) from a magistrate judge rather than a final order from a district judge, it is subject to objection and review before becoming binding.
Background Facts
Berchie is a Ghanaian citizen who entered the U.S. on a student visa. He was first taken into immigration custody in November 2020 after being charged with criminal sexual conduct in Minnesota state court. He was ordered removed to Ghana on March 25, 2021, and that removal order became final on May 28, 2021, when he withdrew his appeal. However, Ghana did not issue the travel document needed to carry out the removal, so Berchie remained in detention. He filed a habeas petition in January 2022 (Berchie v. Garland, No. 22-cv-00202), and the government did not contest it, releasing him on an Order of Supervision (OOS) — a conditional release arrangement — on January 31, 2022. By all accounts, Berchie complied with his OOS conditions for more than three and a half years.
On August 7, 2025, ICE re-arrested Berchie and issued a Notice of Revocation of Release citing 'changed circumstances' and stating that 'ICE has determined that you can be expeditiously removed.' The notice also stated that Ghana would be asked to issue a travel document. Berchie has been detained at Sherburne County Jail since then.
Critically, the record showed that ICE did not send a travel document request to ICE headquarters until August 12, 2025 — five days after re-arresting Berchie and one day after his habeas petition was filed. The request was not forwarded to the Ghanaian Embassy until August 20, 2025. ICE's analysis of whether removal was 'significantly likely in the reasonably foreseeable future' was also not requested or received until after the re-detention.
Legal Framework
Under 8 C.F.R. § 241.13, once a noncitizen is released from post-removal-order detention on an OOS, ICE may revoke that release only in two circumstances: (1) violation of supervision conditions, or (2) a determination — based on 'changed circumstances' — that there is a 'significant likelihood' of removal in the reasonably foreseeable future. The burden to establish changed circumstances falls on ICE. Before revoking release, ICE must consider specific regulatory factors under 8 C.F.R. § 241.13(f), including the history of the noncitizen's compliance with the removal order, ICE's history of removing people to the country in question, the prospects for removal, and the views of the Department of State. Upon revocation, ICE must also promptly notify the noncitizen of the reasons and conduct an informal interview giving the noncitizen an opportunity to respond.
Analysis and Recommendations
Notification (8 C.F.R. § 241.13(i)(3)): The court found that the written notice, while sparse, was minimally adequate because it stated that Berchie's case 'will be reviewed by the Government of Ghana for issuance of a travel document,' which goes beyond merely repeating regulatory language. Relief on this ground was not recommended.
Changed Circumstances (8 C.F.R. § 241.13(i)(2) and (f)): The court found this to be the dispositive issue. The evidence showed that ICE made no individualized assessment of the likelihood of removal before re-detaining Berchie. Travel documents were not requested until after the arrest. No analysis of the § 241.13(f) factors was performed beforehand. The declaration submitted by ICE officer Thomas Murphy stated that Ghana had issued 70 travel documents in 2025, but the court found this figure meaningless without context — particularly given that as of November 2024, more than 3,228 Ghanaians subject to final removal orders remained in the United States. The court also noted that mere submission of a travel document request does not constitute 'changed circumstances' absent evidence the documents are likely to be issued. The court found the same absence of adequate evidence that other courts have criticized in similar cases. The court concluded that ICE failed to follow its own regulations and that there was no demonstrated significant likelihood of removal in the reasonably foreseeable future.
Recommendations:
- Berchie's habeas petition — RECOMMENDED GRANTED; Berchie to be released under the conditions of his prior Order of Supervision.
- Request for declaratory relief — RECOMMENDED DENIED.
- Emergency TRO — RECOMMENDED DENIED as moot.
- Request to bar ICE from re-detaining Berchie without court approval — NOT RECOMMENDED, because ICE could lawfully re-detain him in the future if it properly complies with the regulations.
Constitutional and APA claims
Because the court resolved the case on regulatory grounds, it did not address Berchie's Due Process (Fifth Amendment) or Administrative Procedure Act arguments.
Next Steps
This is a Report and Recommendation, not a final order. Either party may file written objections within 14 days under Local Rule 72.2(b)(1). A district judge (the Honorable K.M. Menendez, based on the case number designation) will then review and decide whether to adopt, modify, or reject the recommendation.
Reviewer note from the AI+
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.