Beyond the Shadow of Zadvydas: The Unlawful Re-Detention of CAT-Protected Noncitizens and the Erosion of Due Process, II

/ Civil Justice & Rights, Deportation/ Removal, ICE Detention / By

Part Two

Government Practice and Third-Country Removal Attempts

A. The Shift in Enforcement Priorities and the Revival of Re-Detention

The statutory and constitutional safeguards articulated in Zadvydas and Clark have, for two decades, established clear limits on post-removal detention. Yet in recent years, the Department of Homeland Security has quietly revived the practice of re-detaining individuals who were previously released under Orders of Supervision following the grant of CAT or withholding protection. The stated justification for these re-detentions is the identification of “changed circumstances,” most commonly a prior or minor criminal conviction, coupled with renewed efforts to effectuate removal to a “third country.”¹

In many of these cases, the individuals at issue had been living in the United States for years under ICE supervision, fulfilling all reporting requirements, maintaining employment, and integrating into their communities.² Despite this history of compliance, ICE has re-arrested such individuals at routine check-ins, often without advance notice or documentation of any new conduct or factual basis for detention.³ As courts have observed, this practice is not grounded in statutory authority but rather in policy directives that appear to prioritize numerical removal enforcement over legal compliance.⁴

The recent cases from the Northern District of California, the District of Maryland, the Southern District of Texas, and the Western District of Washington demonstrate a national pattern: re-detention decisions are justified on vague assertions of “renewed removal efforts” but are unsupported by evidence that removal is actually foreseeable.⁵

B. The Mechanics of Re-Detention: Orders of Supervision and Revocation Procedures

The regulatory framework under 8 C.F.R. § 241.4(l) and § 241.5 defines the process by which ICE may revoke an Order of Supervision. The agency must first issue a written notice specifying the reasons for revocation, followed by an opportunity for the noncitizen to respond and an interview before an authorized officer.⁶ Only upon a finding that removal has become reasonably foreseeable, or that the individual poses a new danger or flight risk, may detention be re-imposed.⁷

In practice, recent cases reveal near-total disregard of these procedural safeguards. In Villanueva v. Tate, ICE provided no notice or documentation of any revocation decision; instead, the petitioner was arrested at his scheduled check-in and informed only after detention that his supervision had been “revoked.”⁸ The court found that “ICE’s purported revocation of [Villanueva’s] order of supervision was not done in compliance with binding regulations,” rendering the detention unlawful.⁹ Similarly, in Zavvar v. Scott, the District of Maryland concluded that “ICE’s failure to issue notice, conduct a hearing, or make findings as required by § 241.4(l) deprived the petitioner of his protected liberty interest without due process of law.”¹⁰

The procedural failures in these cases are not isolated. In Castellanos v. Kaiser and Salcedo Aceros v. Kaiser, the Northern District of California described the government’s approach as “administratively arbitrary and constitutionally unsound.”¹¹ Courts across jurisdictions have reaffirmed that the Due Process Clause protects the conditional liberty of those released under supervision, and that such liberty cannot be rescinded without compliance with the agency’s own rules.¹²

C. The Third-Country Removal Strategy: A Legal and Practical Mirage

The centerpiece of DHS’s justification for re-detention has been the claim that renewed “third-country removal” efforts render detention lawful because removal has become “reasonably foreseeable.”¹³ Under 8 U.S.C. § 1231(b)(2), the government may, in theory, remove a noncitizen to an alternate country if the primary country of removal refuses to accept them. However, this authority is heavily constrained by both statute and regulation. Section 1231(b)(2)(E) permits removal to a third country only if that country is willing to accept the individual and if removal would not violate the United States’ international obligations, including those under the CAT.¹⁴

In reality, DHS’s reliance on speculative third-country removals has proven untenable. The courts have uniformly rejected the government’s claims that unverified diplomatic inquiries suffice to establish reasonable foreseeability. In Villanueva, the government asserted that it was “exploring third-country options,” but could not identify any specific country willing to accept the petitioner.¹⁵ The court held that “[i]n eight years following the order of removal, the government had been unsuccessful in finding a country willing to accept the petitioner,” and thus “removal was not reasonably foreseeable.”¹⁶

Similarly, in Zavvar v. Scott, the government attempted to justify detention based on speculative negotiations with “a European partner nation.”¹⁷ The court noted that “there was no evidence that any such country had agreed, or even responded, to ICE’s inquiry,” concluding that “detention cannot rest on diplomatic conjecture.”¹⁸ The Northern District of California echoed this reasoning in Salcedo Aceros v. Kaiser, emphasizing that “the government’s reliance on a theoretical third-country option cannot substitute for a factual showing that removal is likely in the reasonably foreseeable future.”¹⁹

D. Case Study: The Vietnamese MOU and Tang v. Bondi

The case of Tang v. Bondi from the Western District of Washington provides perhaps the clearest illustration of the flaws inherent in DHS’s third-country removal strategy. The petitioner, Mr. Tang, was a stateless refugee born in a Philippine camp, who had lived in the United States since infancy.²⁰ ICE re-detained him in 2025, claiming authority to remove him to Vietnam pursuant to a 2020 Memorandum of Understanding (MOU) between the United States and Vietnam.²¹

The MOU, however, applied only to individuals who (1) possessed Vietnamese citizenship, (2) resided in Vietnam prior to entry into the United States, and (3) were not citizens of any other state.²² Mr. Tang met none of these conditions.²³ As the court noted, Vietnam had historically refused to accept deportees who entered the United States before July 1995, and the MOU did not alter that position.²⁴ The court therefore concluded that “removal was not reasonably foreseeable,” rendering continued detention unlawful under Zadvydas.²⁵

Tang v. Bondi exemplifies how speculative and politically driven removal initiatives often collapse under judicial scrutiny. The case underscores a broader principle: the government cannot transform legal impossibility into factual foreseeability through policy pronouncements.²⁶

E. The Consequences of Ignoring Procedural and Substantive Limits

The government’s re-detention practices carry profound constitutional and humanitarian consequences. First, they undermine the Due Process Clause by authorizing detention without notice or hearing, and in many cases without lawful purpose.²⁷ Second, they contravene the statutory requirement that detention be tethered to actual prospects of removal.²⁸ Third, they expose individuals to renewed risk of torture in violation of the CAT’s non-refoulement mandate.²⁹

Federal courts have consistently rejected such practices. The Southern District of Texas in Villanueva granted habeas relief, ordering immediate release and emphasizing that “executive branch priorities cannot override constitutional rights.”³⁰ The District of Maryland in Zavvar characterized ICE’s actions as “a paradigmatic example of arbitrary detention.”³¹ In California, Judge Chen’s opinion in Castellanos underscored that “the Court will not countenance indefinite detention disguised as administrative discretion.”³²

Collectively, these rulings reveal judicial consensus: the government’s third-country removal rationale is legally deficient, factually unsupported, and constitutionally suspect.³³

F. The Emerging Pattern: Administrative Overreach and Constitutional Erosion

What unites these cases is not only their legal reasoning but also their broader implications for the separation of powers and the rule of law. The government’s invocation of vague “foreign policy discretion” to justify detention without statutory grounding represents a profound expansion of executive authority.³⁴ Courts have historically been deferential to the political branches in immigration matters, but deference does not extend to violations of clear statutory limits or constitutional rights.³⁵ As Justice Kennedy cautioned in Demore v. Kim, “[l]iberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”³⁶

In the context of CAT-protected individuals, this principle carries special force. Their removal is not merely impracticable; it is illegal.³⁷ Continued detention under the pretext of “diplomatic engagement” transforms what was meant to be temporary custody into punishment untethered from any legitimate purpose.³⁸ The risk is not only individual but systemic: the normalization of indefinite administrative detention erodes the constitutional boundaries that separate law enforcement discretion from arbitrary confinement.³⁹

G. Conclusion to Part II

The government’s re-detention and third-country removal practices stand in direct conflict with the statutory and constitutional framework established by Zadvydas, Clark, and the INA. By disregarding both procedural safeguards and the substantive requirement of foreseeability, ICE has effectively resurrected the very form of indefinite detention the Supreme Court declared unlawful nearly a quarter-century ago.

The next Part examines the constitutional dimensions of this conflict in greater depth, arguing that the government’s conduct violates the Fifth Amendment’s guarantees of due process and equal protection and undermines the foundational values of fairness and restraint that undergird the American constitutional order.

Footnotes (selected)

  1. See Villanueva v. Tate, No. H-25-3364, 2025 WL 2774610, at *7–9 (S.D. Tex. Sept. 26, 2025).

  2. See Zavvar v. Scott, No. TDC-25-2104, 2025 WL 2592543, at *2–4 (D. Md. Sept. 8, 2025).

  3. See Tang v. Bondi, No. 2:25-cv-01473, 2025 WL 2637750, at *2–3 (W.D. Wash. Sept. 11, 2025).

  4. See Salcedo Aceros v. Kaiser, No. 25-cv-2015, slip op. at 14–15 (N.D. Cal. Aug. 2025).

  5. See Castellanos v. Kaiser, No. 25-cv-1827, slip op. at 10–12 (N.D. Cal. July 2025).

  6. 8 C.F.R. § 241.4(l)(1) (2024).

  7. Id. § 241.4(l)(2).

  8. Villanueva, 2025 WL 2774610, at *14–15.

  9. Id. at *15.

  10. Zavvar, 2025 WL 2592543, at *6–7.

  11. Castellanos, slip op. at 12–13; Salcedo Aceros, slip op. at 15.

  12. See Clark v. Martinez, 543 U.S. 371, 378 (2005).

  13. See 8 U.S.C. § 1231(b)(2)(E) (2024).

  14. Id.

  15. Villanueva, 2025 WL 2774610, at *16–17.

  16. Id. at *20.

  17. Zavvar, 2025 WL 2592543, at *5.

  18. Id.

  19. Salcedo Aceros, slip op. at 17–18.

  20. Tang, 2025 WL 2637750, at *1.

  21. Id. at *2–3.

  22. Id.

  23. Id. at *4.

  24. Id. at *5.

  25. Id. at *6.

  26. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001).

  27. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

  28. 8 U.S.C. § 1231(a)(6).

  29. Convention Against Torture art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85.

  30. Villanueva, 2025 WL 2774610, at *21.

  31. Zavvar, 2025 WL 2592543, at *8.

  32. Castellanos, slip op. at 13.

  33. See Tang, 2025 WL 2637750, at *7–8.

  34. See INS v. Chadha, 462 U.S. 919, 953–54 (1983).

  35. See Zadvydas, 533 U.S. at 695.

  36. Demore v. Kim, 538 U.S. 510, 529 (2003).

  37. 8 U.S.C. § 1231(b)(3)(A).

  38. Zadvydas, 533 U.S. at 690.

  39. See Villanueva, 2025 WL 2774610, at *25.

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