Chuny Touch v. Kristi Noem, Secretary of the Department of Homeland Security, et al.

• Court: District Court, S.D. California
• Decided: November 24, 2025
• Docket: 3:25-cv-03118
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CHUNY TOUCH, Case No.: 3:25-cv-03118-RBM-AHG

11 Petitioner, ORDER: 12 v. (1) TENTATIVELY GRANTING 13 KRISTI NOEM, Secretary of the Department PETITION FOR WRIT OF of Homeland Security, et al., 14 HABEAS CORPUS Respondents. 15 (2) SETTING HEARING FOR 16 NOVEMBER 26, 2025 17 18 19 Pending before the Court are Petitioner Chuny Touch’s (“Petitioner”) Petition for 20 Writ of Habeas Corpus (“Petition”) (Doc. 1) pursuant to 28 U.S.C. § 2241 and Motion and 21 Memorandum of Law in Support of Temporary Restraining Order (“TRO Motion”) (Doc. 22 3.) The Petition and TRO Motion seek the same relief—Petitioner’s release from 23 detention. For the reasons below, the Petition is tentatively GRANTED. The Court SETS 24 a hearing for November 26, 2025 at 9:00 a.m. in Courtroom 5B of the Edward J. 25 Schwartz United States Courthouse. 26 I. BACKGROUND 27 A. Factual Background 28 Petitioner fled Cambodia with his mother and five siblings in 1984 “after his father 1 was killed in the conflict.” (Doc. 1 at 2.) He and his family became lawful permanent 2 residents shortly after arriving in the United States. (Id.; Doc. 1 at 24 [Declaration of 3 Chuny Touch (“Touch Decl.”)] ¶ 1.) Ten years later, in 1995, Petitioner was convicted of 4 second-degree murder and attempted murder and sentenced to 15 years in prison. (Touch 5 Decl. ¶ 2; Doc. 10 at 2.) Following his incarceration, Petitioner was transferred to 6 immigration custody and the Department of Homeland Security (“DHS”) initiated removal 7 proceedings. (Touch Decl. ¶ 2; Doc. 10 at 2.) On June 16, 2020, an immigration judge 8 ordered Petitioner removed to Cambodia. (Doc. 10-3 at 2.) United States Immigration and 9 Customs Enforcement (“ICE”) tried to remove Petitioner to Cambodia, but Cambodia 10 would not issue travel documents. (Touch Decl. ¶ 4.) Therefore, after about three months 11 in immigration custody, Petitioner was released on an Order of Supervision. (Id.) 12 Since Petitioner’s release from ICE custody in September 2020, he has attended 13 every required check-in appointment and has not been convicted of any other crime. (Id. 14 ¶ 5.) On August 21, 2025, ICE re-detained Petitioner at one of his required check-in 15 appointments. (Id. ¶ 6; Doc. 10 at 3.) But Petitioner was a member of a class of Cambodian 16 nationals to whom ICE was required to provide specific notice at least 14 days before re- 17 detaining.2 (See Touch Decl. ¶ 6; Doc. 10 at 3.) A lawyer from the Asian Law Caucus 18 helped Petitioner get released under an Order of Supervision on October 7, 2025 due to 19 ICE’s noncompliance with the Chhoeun order. (Touch Decl. ¶ 6; Doc. 10-2 at 3.) 20 That same day, ICE provided Petitioner a Notice to Removable Alien stating that it 21 “intend[ed] to re-detain [him] for the execution of [his] final removal order and removal to 22 Cambodia no earlier than 14 days from the date of this Notice.” (Doc. 10-3 at 1.) On 23 October 13, 2025, while Petitioner was still released under an Order of Supervision, ICE 24 25 1 The Court cites the CM/ECF electronic pagination unless otherwise noted. 26 2 See Chhoeun v. Marin, 442 F. Supp. 3d 1233, 1242 (C.D. Cal. 2020) (requiring continued 27 compliance with the court’s “temporary restraining order enjoining the government from re-detaining any class member unless the government first provided written notice at least 28 1 secured a travel document from Cambodia allowing Petitioner to be removed to Cambodia. 2 (Doc. 10 at 3; Doc. 10-6 at 1 [Declaration of Elvira K. La Pierre (“La Pierre Decl.”)] ¶ 14.) 3 On October 21, 2025, 14 days after Petitioner received the Notice to Removable Alien, 4 ICE re-detained him (Touch Decl. ¶ 6; La Pierre Decl. ¶ 15) and served him with a Notice 5 of Revocation of Release indicating that Petitioner would be detained “based on a review 6 of [his] official alien file and a determination that there are changed circumstances in [his] 7 case.” (Doc. 10-4 at 1.) The October 22, 2025 Form I-213 further provides: 8 At approximately 9:37AM, San Diego [ICE Enforcement and Removal (“ERO”)] Deportation Officer (DO) Ebba identified himself as an ICE officer 9 and informed [Petitioner] that he was being placed under arrest and would be 10 served Form I-200, Warrant for Arrest of Alien to be taken into custody. DO Ebba escorted [Petitioner] to SND staging for processing without incident. 11 [Petitioner] stated to San Diego ICE/ERO Deportation Officers, he is not 12 opposed to being detained as long as his travel document is available and removal flight is coordinated. 13

14 (Doc. 10-5 at 2.) 15 On October 31, 2025, ICE began the process of coordinating a flight for Petitioner 16 to Cambodia. (La Pierre Decl. ¶ 16.) On November 12, 2025, ICE booked Petitioner on a 17 flight to Cambodia scheduled to depart on November 19, 2025. (Id. ¶ 17.) ICE canceled 18 that flight to comply with this Court’s Order to Show Cause. (Id. ¶¶ 18–19; see Doc. 4.) 19 ICE re-booked Petitioner for a flight to Cambodia scheduled for December 3, 2025, and 20 “intends to execute removal on that date should the Court’s stay of removal as to Cambodia 21 be lifted by that time.” (Doc. 10 at 3–4; La Pierre Decl. ¶ 20.) 22 B. Procedural Background 23 On November 12, 2025, Petitioner filed the Petition against Kristi Noem, Pamela 24 Bondi, Todd Lyons, Jesus Rocha, and Christopher LaRose (collectively, “Respondents”). 25 (Doc. 1.) The same day, Petitioner filed a Motion for Appointment of Counsel (Doc. 2) 26 and the TRO Motion. (Doc. 3). On November 14, 2025, the Court granted the Motion for 27 Appointment of Counsel and ordered Respondents to show cause why the Petition and 28 accompanying TRO Motion should not be granted by filing a written response. (Doc. 4 at 1 2–4.) On November 19, 2025, Respondents filed their Response in Opposition to 2 Petitioner’s Habeas Petition and Application for Temporary Restraining Order 3 (“Response”). (Doc. 10.) On November 20, 2025, Petitioner filed his Traverse in Support 4 of Petition for Writ of Habeas Corpus (“Reply”). (Doc. 11.) 5 II. LEGAL STANDARD 6 A writ of habeas corpus is “available to every individual detained within the United 7 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 8 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 9 custody, and . . . the traditional function of the writ is to secure release from illegal 10 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 11 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 12 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 13 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 14 treaties of the United States.” Id. § 2241(c)(3). 15 III. DISCUSSION 16 Petitioner argues that his detention unlawfully violates: (1) the regulations set forth 17 in 8 C.F.R. § 241.4(l) and § 241.13(i); (2) the Supreme Court’s decision in Zadvydas v. 18 Davis, 533 U.S. 678 (2001); and (3) the Fifth Amendment. (Doc. 1 at 2, 7–14.) Petitioner 19 also claims ICE may not remove him to a third country “without providing an opportunity 20 to assert fear of persecution or torture before an immigration judge.” (Id. at 3, 14–18.) 21 Respondents argue that the Petition must be denied because: (1) ICE complied with 22 the notice and prompt interview requirements of § 241.4 and § 241.13; (2) Petitioner’s 23 removal is significantly likely in the reasonably foreseeable future as required under 24 Zadvydas; and (3) Petitioner’s claim regarding third-country removal is moot because ICE 25 is seeking to remove him only to Cambodia. (Doc. 10 at 4–6.) 26 A. Due Process 27 Petitioner challenges his detention as unlawful based on ICE’s decision to revoke 28 his release without providing sufficient notice or a prompt interview. (Doc. 1 at 8–9; Doc. 1 11 at 3–5.) Petitioner’s claims therefore implicate the Due Process Clause. The Due 2 Process Clause prohibits deprivations of life, liberty, and property without due process of 3 law. U.S. Const. amend. V. Due process rights extend to noncitizens present in the United 4 States, including those subject to final removal orders. Zadvydas, 533 U.S. at 693–94. The 5 fundamental requirements of due process are that a person be afforded notice and 6 opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews v. 7 Eldridge, 424 U.S. 319, 333 (1976). 8 B. Agency Regulations 9 The detention and release of noncitizens who are subject to a final order of removal 10 are governed by 8 U.S.C. § 1231. Under that statute, “when [a noncitizen] is ordered 11 removed, the Attorney General shall remove the [noncitizen] from the United States within 12 a period of 90 days,” also known as the “removal period.” § 1231(a)(1)(A). “If the 13 [noncitizen] does not leave or is not removed within the removal period, the [noncitizen], 14 pending removal, shall be subject to supervision under regulations prescribed by the 15 Attorney General.” Id. § 1231(a)(3). Those regulations, which govern release and 16 revocation of release of noncitizens subject to a final order of removal, are 8 C.F.R. § 241.4 17 and § 241.13. Under both regulations, ICE failed to comply with the required procedures, 18 thereby violating Petitioner’s due process rights. 19 In relevant part, release may be revoked under 8 C.F.R. § 241.4 when the Executive 20 Associate Commissioner or a district director believes revocation “is appropriate to enforce 21 a removal order or to commence removal proceedings against [a noncitizen].” 8 C.F.R. 22 § 241.4(l)(2)(iii). Section 241.13 provides “special review procedures” that apply where a 23 noncitizen “has provided good reason to believe there is no significant likelihood of 24 removal to the country to which he or she was ordered removed . . . in the reasonably 25 foreseeable future.” § 241.13(a). Release may be revoked under this section if, “on 26 account of changed circumstances, the Service determines that there is a significant 27 likelihood that the [noncitizen] may be removed in the reasonably foreseeable future.” 28 § 241.13(i)(2). Under both regulations, “[u]pon revocation,” the noncitizen “will be 1 notified of the reasons for revocation of his or her release or parole” and will be given “an 2 initial informal interview promptly after his or her return to Service custody” to “respond 3 to the reasons for revocation stated in the notification.” § 241.4(l)(1); § 241.13(i)(3). 4 Petitioner argues that his detention is procedurally deficient because he was not 5 provided sufficient notice of the reasons for revocation of his release or a prompt interview 6 to respond to those reasons. (Doc. 1 at 7–10; Doc. 11 at 3–5.) 7 As to notice, Petitioner argues that the Notice of Revocation of Release, which stated 8 only that revocation was “based on a review of [Petitioner’s] official alien file and a 9 determination that there are changed circumstances in [his] case,” is insufficient to meet 10 the requirements of §241.4(l) and § 241.13(i). (Doc. 11 at 3–4 (citing Doc. 10-4 at 1).) 11 Respondents argue that the Notice of Revocation of Release provided sufficient notice, and 12 that “ICE further explained to Petitioner that he was being re-detained because it obtained 13 his travel document and would be executing his removal to Cambodia.” (Doc. 10 at 4–5 14 (citing La Pierre Decl. ¶ 15; Touch Decl. ¶ 6).) 15 Under the circumstances, the Court tentatively finds Petitioner was provided 16 adequate notice of the reasons for revocation of his release. As Petitioner notes, district 17 courts have found that “[s]imply to say that circumstances had changed or there was a 18 significant likelihood of removal in the foreseeable future is not enough.” (Doc. 1 at 8 19 (quoting Sarail A. v. Bondi, --- F. Supp. 3d ---, 2025 WL 2533673, at *10 (D. Minn. 20 2025)).) “Petitioner must be told what circumstances had changed or why there was now 21 a significant likelihood of removal in order to meaningfully respond to the reasons and 22 submit evidence in opposition.” Id. (emphasis in original); see also McSweeney v. Warden 23 of Otay Mesa Det. Facility, Case No.: 3:25-cv-02488-RBM-DEB, 2025 WL 2998376, at 24 *6 (S.D. Cal. Oct. 24, 2025) (granting habeas petition because “Petitioner could not have 25 meaningfully responded to the proffered reasons for revocation when he had not yet even 26 been informed of those reasons”). Here, Petitioner was told that he was being detained so 27 ICE could execute his removal order and because ICE had obtained a travel document for 28 Cambodia. (La Pierre Decl. ¶ 15; Touch Decl. ¶ 6.) ICE did not “simply recite[] the 1 language of the regulation;” rather, “the change in circumstances was factual and supported 2 a likely removal.” Sarail A., 2025 WL 2533673, at *6. The Court thus tentatively finds 3 ICE did not violate the notice requirement. 4 The same cannot be said, though, of the prompt interview requirement. Although 5 Petitioner must be afforded “an initial informal interview promptly after his or her return 6 to Service custody,” he still has not received one. (See Doc. 11 at 5.) Respondents argue 7 that Petitioner’s claim that he did not receive an informal interview is “belied by the 8 record.” (Doc. 10 at 5.) To the contrary, the record weighs in Petitioner’s favor. 9 First, Petitioner represents that he did not receive an interview. (Doc. 1 at 8.) 10 Second, the documents upon which Respondents rely do not state Petitioner received an 11 interview. Rather, both La Pierre’s sworn declaration and the Form I-213 state only that 12 Petitioner would be placed under arrest and removed, to which Petitioner replied “he is not 13 opposed to being detained so long as his travel document is available and removal flight is 14 coordinated.” (La Pierre Decl. ¶ 15; Doc. 10-5 at 2.) Although 8 C.F.R. § 241.4(l)(1) and 15 § 241.13(i)(3) do not specify exactly what must occur during the informal interview, they 16 indicate the interview is meant “to afford the alien an opportunity to respond to the reasons 17 for revocation stated in the notification.” § 241.4(l)(1). Furthermore, the noncitizen “may 18 submit any evidence or information that he or she believes shows there is no significant 19 likelihood he or she be removed in the reasonably foreseeable future, or that he or she has 20 not violated the order of supervision.” § 241.13(i)(3). The deportation officer’s statement, 21 and Petitioner’s short response, cannot be construed as adequately providing Petitioner an 22 opportunity to respond to the reasons for revocation or submit any relevant evidence. 23 Third, ICE’s own exhibits provided in response to other habeas petitions indicate 24 that ICE does not, and has not, considered the circumstances here to constitute the required 25 interview. For example, in McSweeney v. Warden of Otay Mesa Detention Facility, ICE 26 argued that it had properly provided the petitioner with an informal interview by including 27 as an exhibit a “Record of Personal Interview” conducted “[p]ursuant to 8 C.F.R 28 241.4(i)(3).” 25-cv-02488-RBM-DEB, ECF No. 9-2 at 31. The Record of Personal 1 Interview spans three pages and lists several questions that deportation officers asked the 2 petitioner, including “[d]o you have any information to submit to the Review Panel that 3 you believe provides a basis for your release?” Id. at 31–33. In J.L.R.P v. Wofford, ICE 4 argued that it had properly provided the petitioner with an informal interview by including 5 as an exhibit a document titled “Alien Informal Interview Upon Revocation of Order of 6 Supervision Under 8 C.F.R. § 241.4(l); 8 C.F.R. §241.13(i).” No. 1:25-cv-01464-KES- 7 SKO (HC), 2025 WL 3190589, at *3 (E.D. Cal. Nov. 14, 2025). That document stated that 8 “an initial informal interview was conducted . . . and that [the petitioner] gave an oral 9 response. . . . [The petitioner’s] oral response is handwritten in Spanish, apparently by the 10 interviewing ICE agent.” Id. The handwritten response states: “Cumpli con todas ruls 11 citas programadas con el ICE en tiempo fecha desde mi ingreso al pais.” (“I complied with 12 all scheduled appointments with ICE on time since my entry into the country.”) Id. n.2. 13 Most tellingly, the Court considers ICE’s argument in another habeas petition 14 recently argued before it: Rasakhamdee v. Noem, 25-cv-2816-RBM-DEB. In 15 Rasakhamdee, ICE included as an exhibit a Form I-213 stating: 16 At approximately 9:30 a.m., SDDO C. McAllister and DO R. Ortiz arrived at the NDU office and contacted [the petitioner]. Upon contact, SDDO 17 McAllister and DO Ortiz identified themselves as “Police/ICE” and escorted 18 him to a private room. Once in the room, SDDO McAllister and DO Ortiz advised [the petitioner] that he was going to be placed under arrest and 19 remanded back into ICE custody. 20 21 Id., ECF No. 8-2 at 22. In addition to the Form I-213, ICE included as an exhibit a 22 document titled “Alien Informal Interview Upon Revocation of Order of Supervision 23 Under 8 C.F.R. § 241.4(l); 8 C.F.R. § 241.13(i).” Id. at 29. This document indicates that 24 a different deportation officer, on a different day, “conducted an initial informal interview 25 of [the petitioner] to afford [him] an opportunity to respond to the reasons for revocation 26 of his or her order of supervision stated in the notification letter.” Id. “At the interview, 27 the alien made the following oral response regarding the reasons for revocation. . . .” Id. 28 / / / 1 Here, Respondents included as an exhibit a Form I-213 very similar to the one in 2 Rasakhamdee stating: 3 At approximately 9:37AM, San Diego [ICE Enforcement and Removal (“ERO”)] Deportation Officer (DO) Ebba identified himself as an ICE officer 4 and informed [Petitioner] that he was being placed under arrest and would be 5 served Form I-200, Warrant for Arrest of Alien to be taken into custody. DO Ebba escorted [Petitioner] to SND staging for processing without incident. 6 [Petitioner] stated to San Diego ICE/ERO Deportation Officers, he is not 7 opposed to being detained as long as his travel document is available and removal flight is coordinated. 8

9 (Doc. 10-5 at 2.) 10 But here, unlike in Rasakhamdee, McSweeney, or J.L.R.P, there is no additional 11 documentation indicating Respondents conducted an informal interview for the purpose of 12 affording Petitioner an opportunity to respond to the reasons for revocation of his release. 13 Thus, considering the deviation from Respondents’ usual practice, the La Pierre 14 Declaration and Form I-213 not expressly indicating Petitioner received an interview, and 15 Petitioner’s representation that he did not receive an interview, the Court tentatively finds 16 that Petitioner did not receive an interview in accordance with § 241.4 and § 241.13. 17 If the Court confirms its tentative, it will also find that ICE’s failure to provide 18 Petitioner with an informal interview in the month since he was taken into custody (see 19 Touch Decl. ¶ 6) violates the promptness requirement. See M.S.L. v. Bostock, Civ. No. 20 6:25-cv-01204-AA, 2025 WL 2430267, at *11 (D. Or. Aug. 21, 2025) (finding an 21 interview given 27 days after petitioner was taken into ICE custody “cannot reasonably be 22 construed as . . . prompt” and granting petition). 23 Government agencies are required to follow their own regulations. United States ex 24 rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Confederated Tribes & Bands of 25 Yakima Indian Nation v. F.E.R.C., 746 F.2d 466, 474 (9th Cir. 1984) (“It is a well-known 26 maxim that agencies must comply with their own regulations.”) ICE failed to do so here. 27 The great weight of district courts to consider the issue have “determined that where ICE 28 fails to follow its own regulations in revoking release, the detention is unlawful and the | || petitioner’s release must be ordered.” Rokhfirooz v. Larose, --- F. Supp. 3d ---, 2025 WL 2 2646165, at *4 (S.D. Cal. 2025); K.E.O. v. Woosley, Civil Action No. 4:25-cv-74-RGJ, 3 WL 2553394, at *7 (W.D. Ky. Sept. 4, 2025) (noting “courts across the country have 4 ||ordered the release of individuals” in ICE custody where ICE “violated their own 5 ||regulations”); Grigorian v. Bondi, CASE NO. 25-cv-22914-RAR, 2025 WL 2604573, at 6 (S.D. Fla. Sept. 9, 2025) (“The failure to provide [the petitioner] with an informal 7 ||interview promptly after his detention or to otherwise provide a meaningful opportunity to 8 ||contest the reasons for revocation violates both ICE’s own regulations and the Fifth 9 || Amendment Due Process Clause. This compels [the petitioner’s] release.”). 10 This Court tentatively reaches the same conclusion. ICE’s failure to comply with 11 |}8 C.F.R. § 241.4 and § 241.13 violated Petitioner’s due process rights. See Diaz v. 12 || Wofford, Case No. 1:25-cv-01079 JLT EPG, 2025 WL 2581575, at *7 (E.D. Cal. Sept. 5, 13 |}2025) (‘DHS’s failure to follow its own procedural regulations may constitute a due 14 || process violation.”); M.S.L., 2025 WL 2430267, at *11 (“ICE’s failure to provide [the 15 || petitioner] with a timely Notice of Revocation or conduct an informal interview until nearly 16 |}a month after taking her into custody is a grave violation of [the petitioner’s] due process 17 || rights in that they deprived her both of meaningful notice and an opportunity to be heard.”). 18 Accordingly, the Petition is tentatively GRANTED. 19 IV. CONCLUSION 20 For the foregoing reasons, the Petition is tentatively GRANTED. The Court SETS 21 hearing for November 26, 2025 at 9:00 a.m. in Courtroom 5B of the Edward J. Schwartz 22 || United States Courthouse. Alternatively, the Parties may submit to this tentative Order by 23 || filing a Joint Status Report on or before November 25, 2025 at 4:30 p.m. 24 IT IS SO ORDERED. 25 || DATE: November 25, 2025 Biter Maton: 07 ON. RUTH BERMUDEZ! MONTENEGRO UNITED STATES DISTRICT JUDGE 28 10