A man held over a year with no removal country secured must be released.
Eh Ko Lo v. Sam Olson, et al.
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A man held over a year with no removal country secured must be released.
Why it matters
In Eh Ko Lo v. Sam Olson, et al., the U.S. District Court for the Eastern District of Kentucky granted a petition for a writ of habeas corpus filed by an immigration detainee who had been held for over one year without any country agreeing to accept him for removal. The court found that the government failed to show a significant likelihood of removal in the reasonably foreseeable future, as required by the Supreme Court's ruling in Zadvydas v. Davis. As a result, the court ordered the petitioner released within ten days, subject to continued ICE supervision.
Who it affects
- Not just stated intentions
- To justify continued detention
What happens next
Current
Decision issued Sep 4, 2026
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Parties can ask the same court to reconsider. Then: possible appeal to the circuit court.
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- Decision issued Sep 4, 2026
- Possible rehearingParties can ask the same court to reconsider.
- Possible appeal to the circuit court
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Decision issued
Sep 4, 2026
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DEEPER READ
The central legal question was whether the government could continue to detain Eh Ko Lo, an immigration detainee, when no country had agreed to accept him for removal and no removal appeared imminent. Under the Supreme Court's 2001 ruling in Zadvydas v. Davis, the government may detain a person after a removal order is issued, but only so long as there is a significant likelihood of removal in the reasonably foreseeable future. Once a detainee raises a serious challenge to that likelihood, typically after six months, the burden shifts to the government to rebut it. The government's status report acknowledged that the petitioner had not been accepted for removal by any country, that ICE planned to keep trying third countries, and that ICE would not release him voluntarily. The government also acknowledged the Zadvydas standard. Both sides agreed there were no factual disputes, and they jointly asked the court to cancel a scheduled hearing. The court concluded that the government's statement that it hoped to eventually find a country willing to accept the petitioner was not enough to meet its burden under Zadvydas. Citing a similar recent ruling from the Western District of Kentucky in Ma v. Woosley, the court said a bare hope of future removal to an unnamed country does not satisfy the legal standard. The court noted it shares skepticism about the Zadvydas framework that other courts have expressed, but stated it is bound by that precedent. The court ordered the petitioner released within ten days of the order, while allowing ICE to impose supervision conditions after release. The court did not determine what specific supervision conditions would be appropriate, leaving that for a separate process. No dissent is present, as this is a single-judge district court opinion.
CITATION AND RECORD
Record source: CourtListener
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION at Covington EH KO LO, ) ) Petitioner, ) Civil Action No. 2:26-cv-00157-SCM ) v. ) MEMORANDUM OPINION AND ) ORDER SAM OLSON, et al., ) ) Respondents. ) ) *** *** *** *** Petitioner Eh Ko Lo filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. [Dkt. 1]. The Court previously set a hearing in this matter, requested a status report from the Respondents, and allowed the Petitioner to file a response thereto. [Dkt. 10]. The Federal Respondents filed a status report advising the Court that the Petitioner “has not yet been accepted [for removal] by another country,” that they will “keep nominating him to third countries” for removal, and that “ICE is not going to release Petitioner unless ordered by this Court to do so.” [Dkt. 10 at 1–2]. Finally, the Federal Respondents acknowledged that they “are aware of the six-month detention period and of the ‘significant likelihood of removal in the reasonably foreseeable future’ standard from Zadvydas v. Davis, 533 U.S. 678, 689 (2001).” [Dkt. 10 at 2]. The status report concluded by stating that the Federal Respondents “have no other information about Petitioner’s removal to share at a hearing” and that “[t]here are no factual disputes in this case.” [Id.]. The Petitioner filed a response agreeing that there were no fact disputes, noting that he has been in custody for over one year, and arguing that the Government has failed to establish a significant likelihood of removal in the reasonably foreseeable future based on the record before the Court. [Dkt. 12 at 2]. This, the Petitioner argues, means that he is being held in contravention of his Due Process rights, as those rights were interpreted by the Supreme Court in Zadvydas. [Id.]. After these filings, the parties also filed a Joint Motion to Cancel Hearing due to their agreement that there is no factual dispute. [Dkt. 14]. In Zadvydas, the Supreme Court held that an alien may “be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. Although this Court shares the skepticism other courts have articulated about the Zadvydas framework, this Court is nonetheless bound to agree with the Petitioner on the record presented and grant the Petition. See Ma v. Woosley, No. 4:26-CV-69-BJB, 2026 WL 1907969, at *4–8 (W.D. Ky. July 2, 2026) (emphasis omitted) (expressing “doctrinal concerns” with Zadvydas but concluding that because the Government failed to establish a likelihood of removal, the habeas petition must be granted). Like in Ma, “the Government’s bare recital that it hopes to remove [Petitioner] to some nameless place is not ‘sufficient to rebut’ [the Petitioner’s] initial showing, after months of waiting, that removal was not coming soon.” Id. at *9. And so, for the reasons articulated in Ma, the Court concludes that the Petition must be granted on the record presented. The Court being sufficiently advised, IT IS ORDERED as follows: 1) The parties’ Joint Motion to Cancel Hearing, [Dkt. 14], is GRANTED. 2) The hearing in this matter scheduled for September 11, 2026 at 1:30 p.m. is hereby CANCELED. 3) The Petitioner’s Petition for a Writ of Habeas Corpus, [Dkt. 1], is hereby GRANTED. The Petitioner shall be RELEASED from custody WITHIN TEN DAYS of this Order subject to continuing supervision by ICE. 4) Nothing in this Order determines or limits what “release conditions” may be appropriate for the Petitioner’s supervision after his release. 5) A separate Judgment will be filed. Signed this 4th day of September, 2026.
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