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 entered a final order of removal against him. In May 2002, the government released him on an Order of Supervision (OSUP) because Laos was not issuing travel documents necessary to carry out his removal.

On May 5, 2026, Ger V. was arrested during a routine appointment at an ICE office in Sioux Falls, South Dakota. ICE served him with a revocation form and warrants. The revocation form cited 8 C.F.R. § 241.4(l) as the basis for revocation and stated that the release was revoked because "it is appropriate to enforce the removal order entered against you as ICE has the ability and means to effectuate your removal" and that "ICE is seeking a travel document to effect your expeditious removal to Laos." Ger V. was then afforded an opportunity to respond and has been held at the Freeborn County Jail in Albert Lea, Minnesota.

On May 7, 2026, Ger V. filed a five-count petition for a writ of habeas corpus — a federal court request to be released from allegedly unlawful detention. The counts alleged: (1) violation of 8 U.S.C. § 1231 governing detention after a removal order; (2) violation of Fifth Amendment substantive due process; (3) violation of Fifth Amendment procedural due process; (4) violation of Fourth Amendment rights through warrantless arrest without probable cause; and (5) violation of the government's own regulations by failing to provide adequate notice of revocation and failing to specify the "changed circumstances" rendering removal significantly likely in the reasonably foreseeable future.

Legal Framework

Under 8 U.S.C. § 1231, the government must remove a noncitizen within 90 days of a final removal order. If removal does not occur within that period and no statutory exception applies, the noncitizen must be released under supervision. Once released, re-detention is governed by federal regulations.

Two separate regulations govern revocation of supervised release depending on the circumstances. 8 C.F.R. § 241.4 applies to noncitizens detained beyond the 90-day removal period generally. 8 C.F.R. § 241.13 applies specifically when the government has previously determined there is no significant likelihood of removal in the reasonably foreseeable future. Under § 241.13(i), supervised release may be revoked only for: (1) failure to comply with conditions of release, or (2) changed circumstances creating a significant likelihood of removal in the reasonably foreseeable future. Critically, § 241.13(i)(3) requires the government to notify the noncitizen of the specific reasons for revocation and to conduct an initial informal interview giving the noncitizen an opportunity to respond.

Analysis

Which Regulation Applies

The court found that § 241.13, not § 241.4, governs Ger V.'s case. The deportation officer's declaration stated that Ger V. was released in 2002 because Laos was not issuing travel documents — indicating a prior determination that removal was unlikely in the foreseeable future. The government itself implicitly confirmed this by arguing it had complied with § 241.13 rather than claiming § 241.4 applied. The court therefore concluded § 241.13 controlled, citing consistent prior decisions from the District of Minnesota.

Defective Notice

The court found the revocation notice defective for two independent reasons. First, the notice cited § 241.4(l) as its authority — the wrong regulation. Second, and more importantly, the stated reason for revocation — that "ICE has the ability and means to effectuate your removal" — is not one of the two valid grounds for revocation under § 241.13(i)(1)–(2). Courts in the District of Minnesota have repeatedly held that notices which merely parrot regulatory text, without providing a meaningful explanation, are constitutionally and regulatorily inadequate.

The government argued that changed circumstances (Laos is now issuing travel documents) provided a valid basis for re-detention. The court accepted that this might be a valid basis in principle but held that the government was required to communicate that reason in the notice itself — not offer it for the first time in litigation. The court characterized the government's litigation-stage explanation as an impermissible "post-hoc" justification.

The government also argued that procedural violations of regulations do not constitute a substantive deprivation of rights without a showing of prejudice. The court assumed without deciding that a prejudice showing was required, but found prejudice was clearly established: the inadequate notice prevented Ger V. from preparing a meaningful response at his informal interview. Without knowing the specific reason for revocation, the opportunity to respond is rendered a meaningless formality.

Constitutional Dimension

The court noted that noncitizens released under § 241.13 have a protected liberty interest in their continued release. Failure to comply with § 241.13's revocation procedures therefore also violates the Fifth Amendment's guarantee of due process. The court did not separately analyze the Fourth Amendment claim or the § 1231 statutory claim, having found habeas relief warranted on the regulatory and due process grounds.

Remedy

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. The court noted that most other courts facing similar situations have ordered immediate release.

Regarding Ger V.'s request for attorneys' fees and costs under the Equal Access to Justice Act (EAJA) — a federal statute allowing prevailing parties to recover fees from the government in certain circumstances — the court found the request not yet ripe because no motion for fees had been filed. The court recommended the EAJA fee request be resolved in the ordinary course under Local Rule 54.3(a), which requires such applications to be filed within 30 days of final judgment.

Procedural Posture

This is a Report and Recommendation issued by a magistrate judge, not a final order. It is not directly appealable to the Eighth Circuit. Under Local Rule 72.2(b)(1), any party may file specific written objections within 5 days of being served a copy, with responses to objections due within 5 days thereafter. The assigned district judge will review any objections before issuing a final ruling.