Hao Qu v. Markwayne Mullin et al

• Court: District Court, C.D. California
• Decided: March 26, 2026
• Docket: 5:26-cv-01302
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘O’ Case No. 5:26-cv-01302-CAS-AGR Date March 26, 2026 Title Hao Qu v. Markwayne Mullin et al

Present: The Honorable CHRISTINA A. SNYDER Catherine Jeang Not Present N/A Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Not Present Not Present Proceedings: (IN CHAMBERS) — PETITIONER’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER (Dkt. 2, filed on March 18, 2026) I. INTRODUCTION On March 18, 2026, Hao Qu (“Petitioner”), pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 against Markwayne Mullin, Pamela Bondi, Thomas Giles, and James Pilkington. Dkt. 1 (“Pet.””). On the same day, Petitioner filed the instant ex parte application for a temporary restraining order. Dkt. 2 (“App.”). Petitioner requests that the Court order Petitioner’s immediate release from custody and enjoin Respondents from re-detaining Petitioner and removing him to a third country absent compliance with statutory, regulatory, and constitutional protections. See App. at 2-3. On March 20, 2026, the Court enjoined Respondents from relocating Petitioner outside the Central District of California until further order of Court. Dkt. 6. On March 24, 2026, Respondents filed a return to the petition with a declaration of a DHS Deportation Officer that describes petitioner’s case. Dkt. 8 (“Opp.”); dkt. 8-1 (“Hernandez Decl.”) Having carefully considered the parties’ arguments and submissions, the Court finds and concludes as follows.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘O’ Case No. 5:26-cv-01302-CAS-AGR Date March 26, 2026 Title Hao Qu v. Markwayne Mullin et al I. BACKGROUND Petitioner was born on May 15, 1988, and his parents are originally from China. Pet. at 9. Petitioner entered the United States in 2006 when he was eighteen years old and has lived in the United States for almost twenty years. Id. According to Respondents, Petitioner is a native and citizen of China who was admitted into the United States on December 19, 2006, as an F-1 student. Hernandez Decl. {ff 4-5. On February 24, 2010, Petitioner filed an asylum application, Form I-589, with United States Citizenship and Immigration Services (“USCIS”). Id. § 6. On June 18, 2010, USCIS closed the asylum application and Petitioner was determined to be ineligible. Id. 4 7. On or about December 13, 2017, Petitioner was convicted in San Bernardino County Superior Court for the offense of “Theft of Utility Services,” in violation of Section 498(D) of the California Penal Code. Id. | 8. Petitioner was sentenced to 120 days of jail and three years of probation. Id. On or about December 27, 2017, Petitioner was convicted in Los Angeles County Superior Court for the offense of “Cultivate Marijuana 6+ Plants,” in violation of Section 11258(C) of the California Health and Safety Code. Id. § 9. Petitioner was sentenced to three years of probation. Id. On May 20, 2019, Immigration and Customs Enforcement (“ICE”) Enforcement and Removal Operations (“ERO”) in Los Angeles, CA, encountered Petitioner and took him into custody. Id. { 10. ICE ERO served Petitioner a Notice to Appear, Form I-862, under Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (“INA”). Id. On September 13, 2019, an immigration judge (“IJ”) in Los Angeles, CA, ordered Petitioner removed to China. Id. § 11. On December 12, 2019, ICE ERO in Adelanto, CA, released Petitioner from custody on an Order of Supervision (“OSUP”). Id. § 12. On December 17, 2025, ERO Los Angeles took Petitioner into custody and served Petitioner with a Notice of Revocation of Release, Form I-205, Warrant of Removal/Deportation, Form I-294, and a Warning to Alien Ordered Removed or Deported. Id. 4 13. According to Respondents, Petitioner has a Final Order of Removal and will remain in ERO custody pending removal to China under Section 240 of the INA. Id.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘555 U.S. 7, 22 (2008). The Ninth Circuit summarized the Supreme Court’s clarification of the standard for granting preliminary injunctions in Winter as follows: “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009): see also Cal Pharms. Ass’n v. Maxwell- Jolly, 563 F.3d 847, 849 (9th Cir. 2009). Alternatively, “‘serious questions going to the merits’ and a hardship balance that tips sharply towards the plaintiff can support issuance of an injunction, so long as the plaintiff also shows a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1053 (9th Cir. 2010). Serious questions are those “which cannot be resolved one way or the other at the hearing on the injunction.” Bernhardt v. Los

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘O’ Case No. 5:26-cv-01302-CAS-AGR Date March 26, 2026 Title Hao Qu v. Markwayne Mullin et al Angeles Cty., 339 F.3d 920, 926 (9th Cir. 2003) (quoting Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)). If the Court issues a TRO, it must also issue an order to show cause why a preliminary injunction should not issue. C.D. Cal. L-R. 65-1. IV. DISCUSSION The Court finds that the ex parte nature of Petitioner’s request for relief is appropriate because Petitioner alleges irreparable injury by unlawful detention. See Mission Power, 883 F. Supp. at 492 (discussing showing required for ex parte relief); Arevalo v. Hennessy, 882 F.3d 763, 767 (9th Cir. 2018) (“Deprivation of physical liberty by detention constitutes irreparable harm.”). A. Jurisdiction As a threshold matter, the Court must consider whether it has jurisdiction to review Petitioner’s claims in her petition. 8 U.S.C. § 1252(g) explicitly deprives the Court of jurisdiction to review “any cause or claim by or on behalf of an alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g). See Jennings v. Rodriguez, 583 U.S. 281, 294 n.3; Ibarra-Perez v. U.S., 154 F 4th 989, 996 (9th Cir. 2025): Balogun v. Sessions, 330 F. Supp. 3d 1211, 1214 □□□□□ Cal. 2018); see also 8 U.S.C. §1252(b)(9) (‘Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.”). Respondents argue that pursuant to 8 U.S.C. § 1252(b)(9) and (g), this Court lacks jurisdiction over Petitioner’s claims “[i]nsofar as Petitioner seeks to effectively block Petitioner’s arrest and detention pursuant to removal proceedings.” Opp. at 6. The Court disagrees. Section 1252(g) prohibits claims based on the exercise of “prosecutorial discretion,” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 487 (1999), but it is not within the “discretion” of the government to exceed the scope of

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘583 U.S. 281 (2018) (“We did not interpret [section 1252(g)]| to sweep in any claim that can technically be said to ‘arise from’ the three listed actions of the Attorney General. Instead, we read the language to refer to just those three specific actions themselves.”) (citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999)). Thus, the Court concludes that it has jurisdiction, pursuant to 28 U.S.C. § 2241, to review Petitioner’s claims that his federal detention is unlawful. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“The essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.”). And the Court also has jurisdiction to review Petitioner’s claims to enjoin his removal to a third country. Ibarra-Perez v. United States, 154 F.4th 989, 997 (9th Cir. 2025) (holding that claim based on third-country removal without notice “raise[d] purely legal arguments in challenging [the] removal,” including whether the plaintiff “had a nght to meaningful notice and an opportunity to present a fear-based claim,” and thus that the action was not barred by section 1252(g)). B. Petitioner is Likely to Succeed on the Merits as to his Procedural Due Process Claim Petitioner argues that his re-detention violates his due process rights under the Fifth Amendment and is unlawful under 8 U.S.C. § 1231 and Zadvydas v. Davis, 533 U.S. 678 (2001). Pet. at 9-10. Petitioner also argues that his detention violates due process because Respondents violated their own regulations governing the revocation of Petitioner’s OSUP. Id. at 10-11. 1. Substantive Due Process Petitioner, who was detained for three months in 2019 and more than three months now, see Hernandez Decl., has been cumulatively detained for longer than the presumptively reasonable six-month period under Zadvydas after a final order of removal

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘533 U.S. 678 (2001).

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘241.13(1)(2). The regulations further provide that “[u]pon revocation, the [noncitizen] will be notified of the reasons for revocation of his or her release. The Service will conduct an initial informal interview promptly after his or her return to Service custody to afford the [noncitizen] an opportunity to respond to the reasons for revocation stated in the notification.” Id. § 241.13(4)(3). Petitioner alleges that Respondents failed to meet these requirements. Pet. at 11. Petitioner alleges that Respondents’ generic assertion of changed circumstances, without any particularized evidence that Petitioner was now significantly likely to removed to China in the reasonably foreseeable future, when he was not removable before, is inadequate. Id. Respondents do not present any opposition to this argument. Under the facts presented by Respondents, it appears to the Court that no travel documents for Petitioner had been obtained by Respondents or even requested at the time of Petitioner’s arrest and detention on December 17, 2025. See Hernandez Decl. § 14 (travel document request packet was submitted for review two weeks after Petitioner’s arrest). Respondents have provided no evidence that, “on account of changed circumstances,” at the time of arrest, “there [was] a significant likelihood that [Petitioner] may be removed in the reasonably foreseeable future.” 8 C.F.R § 241.13(1). Therefore, Respondents’ revocation of Petitioner’s OSUP and re-detention of Petitioner likely violated their own regulations. An agency’s failure to follow its own regulations that protect the interests of a party before the agency may be a due process violation. Sameena Inc. v. U.S. Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998).

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘695 F.3d 990, 997 (9th Cir. 2012)). Thus, to the extent that Respondents argue that Petitioner lacks standing to pursue this claim, the argument is without merit. The Court finds that Petitioner’s potential removal “to a third country|,| without meaningful notice and an opportunity to assert a fear-based claim,” would likely violate due process. Castillo v. Chestnut, No. 1:25-CV-01296-SAB-HC, 2026 WL 121652, at *8 (E.D. Cal. Jan. 16, 2026); see also D.V.D. v. U.S. Dep’t of Homeland Sec., No. CV 25- 10676-BEM, 2026 WL 521557, at *44 (D. Mass. Feb. 25, 2026) (declaring that the government’s policy of approving third country removals without effective notice 1s unlawful). “Failing to notify individuals who are subject to deportation that they have the right to apply . . . for withholding of deportation to the country to which they will be deported violates . . . the constitutional right to due process.” Andriasian v. L.N.S., 180 F.3d 1033, 1041 (9th Cir. 1999). “In the context of country of removal designations, last minute orders of removal to a country may violate due process if an immigrant was not provided an opportunity to address his fear of persecution in that country.” Nayar v. Lynch, 630 Fed. App’x 724 (9th Cir. 2016). Accordingly, the Court finds that Petitioner is likely to succeed on the merits of his claim that he has a due process right to recetve meaningful notice and an opportunity to present a fear-based claim to an immigration judge before DHS deports him to a third country. See Juarez v. Noem, No. 5:26-CV-00014-MWC-KS, 2026 WL 127607, at *5 (C_D. Cal. Jan. 9, 2026) (“enjoin[ing| Respondents from removing Petitioner from this District for the pendency of these proceedings or thereafter removing him to a third country without notice and an opportunity to be heard on any fear of persecution or torture he has in that third country.”).

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘241.13(i). Petitioner’s alleged failure to follow their own regulatory procedures constitutes a due process violation, which means that his arrest and detention were unlawful and would continue to be unlawful if his removal is not reasonably foreseeable. The Court finds that Petitioner “establishe[s] a likelihood of irreparable harm by virtue of the fact that [he is] likely to be unconstitutionally detained for an indeterminate period of time.” Hernandez v. Sessions, 872 F.3d 976, 994 (9th Cir. 2017). The Court further finds that Petitioner is likely to suffer irreparable harm if DHS deports him to a third country before he is afforded his due process rights to receive meaningful notice and opportunity to present a fear-based claim to an immigration judge. See Vaskanyan v. Janecka, No. 5:25-CV-01475-MRA-AS, 2025 WL 2014208, at *6 (C.D. Cal. June 25, 2025) (“Petitioner's removal to a third country without due process, however, is likely to result in irreparable harm at this time.”) (emphasis in original). E. Balance of Equities and the Public Interest The last two Winter factors “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). The government has a significant interest in the enforcement of its immigration laws. Nevertheless, the Court finds that the balance of equities and public interest factors tip in favor of Petitioner because Petitioner challenges his detention that is likely in violation of federal law and the Constitution; similarly, removing him to a third country prior to affording him meaningful notice and opportunity to raise a country-specific claim against removal would likely be a violation of due process. See Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘1231. Nonetheless, Petitioner is entitled to the procedure provided by the regulations for the revocation of his supervised release. Specifically, Petitioner is entitled to effective notice of the changed circumstances demonstrating that there is a significant likelihood that he may be removed in the reasonably foreseeable future: to an informal interview affording him the opportunity to respond to the reason for his detention; and, if not released from custody following the informal interview, to the procedures provided by 8 C.F.R. § 241.4. See 8 C_F.R. § 241.13(7)(2). As to Petitioner’s potential removal to a third country, Petitioner is entitled to meaningful notice followed by a meaningful opportunity to raise a fear-based claim. See 8 U.S.C. § 1231(b)(3)(A) (‘the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”). The Court recognizes the potential “ambiguity in the phrase ‘meaningful opportunity,”” and thus orders that “[f]ollowing notice, | Petitioner] must be given a meaningful opportunity, and a minimum of ten days, to raise a fear-based claim for CAT protection prior to removal.” D.V.D. v. U.S. Dep’t of Homeland Sec., No. CV 25-10676-BEM, 2025 WL 1453640, at *1 (D. Mass. May 21, 2025), reconsideration denied sub nom. D.V.D v. U.S. Dep’t of Homeland Sec., 786 F. Supp. 3d 223 (D. Mass. 2025). G. __ Bond is Waived The Court exercises its discretion and waives the bond requirement under Rule 65(c) because Respondents have not demonstrated any likelihood of harm if the Court grants the requested TRO. See Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003)

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