1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NGUYEN DUNG THANH, No. 1:26-cv-00352 DC CSK 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 WARDEN OF GOLDEN STATE DETENTION FACLITY, 15 Respondent. 16
17 18 Petitioner, an immigration detainee, filed a petition for writ of habeas corpus pursuant to 19 28 U.S.C. § 2241.1 Petitioner is a native and citizen of Vietnam who adjusted to lawful 20 permanent residence status on June 4, 1993. On March 5, 2015, petitioner was detained by 21 immigration officials upon his return to the United States and placed in removal proceedings. On 22 May 11, 2015, petitioner was ordered removed from the United States to Vietnam by an 23 immigration judge. On June 10, 2015, petitioner was released on an Order of Supervision. On 24 August 15, 2025, petitioner was re-detained by U.S. Immigration and Customs Enforcement 25 (“ICE”). This habeas action concerns petitioner’s re-detention. For the following reasons, this 26 Court recommends that the petition be granted in part and that petitioner be released. 27 1 Petitioner paid the filing fee and is proceeding without counsel. This matter proceeds before 28 the undersigned pursuant to 28 U.S.C. § 636, Fed. R. Civ. P. 72, and Local Rule 302(c)(17). 1 I. FACTUAL BACKGROUND 2 Petitioner is a native and citizen of Vietnam. (ECF No. No. 10-1 at 1.) The record 3 contains no information regarding when petitioner first entered the United States. Petitioner 4 adjusted to lawful permanent resident status on June 4, 1993. (Id. at 2.) 5 The government represents the following as to petitioner’s criminal history: On October 6 26, 1999, petitioner was convicted of assault causing bodily injury. (ECF No. 10 at 2.) 7 On September 29, 2009, petitioner was convicted of conspiracy to manufacture and possession 8 with intent to distribute marijuana. (Id.) Petitioner did not file a reply or traverse responding to 9 or contesting the government’s assertions regarding his criminal history. 10 On March 5, 2015, petitioner arrived at the Dallas Fort Worth International Airport from 11 and applied for admission to the United States as a returning lawful permanent resident.2 (ECF 12 No. 10-1 at 2; ECF No. 12 at 2 ¶ 7.) Petitioner was detained at the airport and placed into 13 removal proceedings. (ECF No. 10-1 at 3; ECF No. 12 at 2, ¶ 7.) 14 On May 11, 2015, an immigration judge ordered petitioner removed from the United 15 States to Vietnam. (ECF No. 12 at 2, ¶ 8; ECF No. 12-1 at 1-2.) Both parties waived appeal. 16 (ECF No. 12 at 2, ¶ 8; ECF No. 12-1 at 1-2.) On June 8, 2015, ICE granted petitioner an 17 administrative stay of removal because ICE found there was no significant likelihood of removal 18 in the reasonably foreseeable future because Vietnam was not accepting deportees who entered 19 the United States before July 12, 1995. (ECF No. 12 at 2, ¶¶ 9, 11; ECF No. 12-2 at 1.) The June 20 8, 2015 notification to petitioner regarding the administrative stay stated that reporting 21 requirements would be outlined in an Order of Supervision, which petitioner must abide by 22 otherwise the administrative stay would be revoked. (ECF No. 12 at 2, ¶ 10; ECF No. 12-2 at 1.) 23 On June 10, 2015, petitioner was released under an Order of Supervision. (ECF No. 12 at 2, ¶ 11; 24 ECF No. 12-3.) The Order of Supervision informed petitioner that he was permitted to be at large 25 under several conditions, including that he not commit any crimes while under the Order of 26
27 2 The record is inconsistent as to whether petitioner was returning from Japan (ECF No. 10-1 at 2) or from Vietnam (ECF No. 12 at 2, ¶ 7). The Court need not resolve this factual dispute as it 28 does not impact the Court’s analysis. 1 Supervision. (ECF No. 12 at 2-3, ¶ 11; ECF No. 12-3 at 1-3.) The Release Notification 2 accompanying the Order of Supervision informed petitioner that ICE would continue to make 3 efforts to obtain travel documents that would allow the United States government to remove 4 petitioner. (ECF No. 12-3 at 4.) The Release Notification also advised petitioner that, by law, 5 petitioner was required to continue to make good faith efforts to secure a travel document on his 6 own and provide proof of efforts to ICE. (Id.) 7 On August 15, 2025, petitioner reported to the ICE Office at 8101 N. Stemmons Freeway, 8 Dallas, Texas, and was taken into custody. (ECF No. 10-2 at 2; ECF No. 12 at 3, ¶ 13.) A 9 Warrant of Removal/Deportation was issued on August 15, 2025. (ECF No. 12 at 3, ¶ 13; ECF 10 No. 12-4 at 1-2.) The Notice of Revocation Release issued by ICE on August 15, 2025 states that 11 petitioner’s Order of Supervision was revoked because ICE determined that there are changed 12 circumstances; petitioner’s case was currently under review by Vietnam for issuance of a travel 13 document; “pursuant to 8 C.F.R. § 241.4/ 8 C.F.R. § 241.13,” petitioner will remain in ICE 14 custody; and that petitioner must demonstrate that petitioner is making reasonable efforts to 15 comply with the order of removal and that petitioner is cooperating with ICE’s efforts to remove 16 petitioner by taking whatever actions ICE requests to affect his removal. (ECF No. 12-5 at 1.) 17 On November 18, 2025, a deportation officer served petitioner with an instruction sheet 18 about the requirements to assist in removal. (ECF No. 12 at 3, ¶ 15; ECF No. 12-6 at 2.) This 19 instruction sheet contains a list of things that petitioner is required to complete within 30 days of 20 receiving the form to comply with petitioner’s obligation to assist in obtaining a travel document. 21 (ECF No. 12-6 at 2.) This list includes submitting a passport, applying for travel 22 documents/passports from your embassy, complying with all instructions from all embassies or 23 consulates requiring completion of documentation for issuance of travel documents, etc. (Id.) 24 Petitioner also received a Form I-229, Warning for Failure to Depart. (ECF No. 12 at 3, ¶ 15; 25 ECF No. 12-6 at 1.) 26 On November 18, 2025, ICE served petitioner with a Notice to Alien of File Custody 27 Review, informing petitioner that his custody status would be reviewed on December 1, 2025 for 28 consideration of release on an Order of Supervision. (ECF No. 12 at 3, ¶ 16; ECF No. 12-7 at 1- 1 2.) On December 5, 2025, ICE served petitioner with a Decision to Continue Detention, 2 informing petitioner that ICE determined that petitioner would not be released from ICE custody. 3 (ECF No. 12-8.) 4 On January 21, 2026, petitioner refused to fill out the Self-Declaration form and 5 Declaration for passport renewal. (ECF No. 12 at 3, ¶ 18.) Petitioner told the deportation officer 6 that he did not want to cooperate and follow the terms on Form 1-229, Warning for Failure to 7 Depart. (Id. at 3-4, ¶ 18.) Petitioner told the deportation officer that he did not know anything 8 about his address, parents, or anything about his time in Vietnam. (Id. at 4, ¶ 18.) On February 3, 9 2026, a deportation officer served petitioner with a new I-229 form. (Id. at 4, ¶ 19.) Petitioner 10 refused to sign and acknowledge the form. (Id. at 4, ¶ 19.) 11 II. PROCEDURAL BACKGROUND 12 On January 16, 2026, petitioner filed his petition for writ of habeas corpus raising four 13 claims for relief, using what appears to be a form petition. (ECF No. 1.) In claim one, petitioner 14 argues that his continued detention in immigration custody violates the Due Process Clause of the 15 Fifth Amendment because there is no significant likelihood that petitioner will be removed in the 16 foreseeable future. (Id. at 13-14.) In claim two, petitioner argues that ICE’s third country 17 removal procedures violate the Fifth Amendment, 8 U.S.C. § 1231, the Convention Against 18 Torture, implementing regulations and the Administrative Procedure Act. (Id. at 14-15.) In claim 19 three, petitioner argues that ICE’s third country removal procedures violate the Fifth and Eighth 20 Amendments as punitive third-country banishments. (Id. at 15-16.) In claim four, petitioner 21 argues that his continued detention violates 8 C.F.R. § 241.13. (Id. at 17-18.) 22 On January 27, 2026, this Court directed respondents to file a response to the petition 23 within seven days and ordered that petitioner may file a reply within ten days after being served 24 with the response. (ECF No. 3.) 25 On February 2, 2026, petitioner filed a motion for appointment of counsel. (ECF No. 5.) 26 On February 3, 2026, respondents filed an answer and a motion for a five-day extension of time 27 to file an answer. (ECF Nos. 9, 10.) In the motion for extension of time, respondents state that 28 they have requested documents relevant to the determination of the issues presented but 1 respondents’ counsel did not learn of this case until February 3, 2026. (ECF No. 9 at 1.) On 2 February 5, 2026, respondents filed a declaration from a deportation officer with supplemental 3 documents in support of the answer. (ECF No. 12.) Good cause appearing, respondents’ motion 4 for extension of time is granted and the supplemental documents filed February 5, 2026 are 5 deemed timely filed. Petitioner did not file a reply to the answer. 6 On February 17, 2026, petitioner filed a motion for a temporary restraining order. (ECF 7 No. 13.) On February 28, 2026, the Honorable Dena M. Coggins denied petitioner’s motion for a 8 temporary restraining order as untimely. (ECF No. 14.) On February 17, 2026, petitioner also 9 filed a motion for release. (ECF No. 15.) This motion is denied as unnecessary because this 10 Court recommends that the petition be granted and that petitioner be released. 11 III. PROPER RESPONDENT 12 Respondents move to dismiss all improperly named respondents. (ECF No. 10 at 1 n.1.) 13 In addition to the Warden of the Golden State Detention Facility, where petitioner is currently 14 detained, petitioner names the United States Attorney General, the Security of Homeland Security 15 and the Acting Director of ICE. (ECF No. 1 at 1.) “[L]ongstanding practice confirms that in 16 habeas challenges to present physical confinement—‘core challenges’—the default rule is that the 17 proper respondent is the warden of the facility where the prisoner is being held ....” Rumsfeld v. 18 Padilla, 542 U.S. 426, 435 (2004). The Ninth Circuit has “affirm[ed] the application of the 19 immediate custodian and district of confinement rules to core habeas petitions filed pursuant to 28 20 U.S.C. § 2241, including those filed by immigrant detainees.” Doe v. Garland, 109 F.4th 1188, 21 1199 (9th Cir. 2024). 22 Because petitioner is currently detained at the Golden State Detention Facility, the 23 Warden of that facility is the proper respondent. Respondents’ request is granted and the other 24 named respondents are dismissed, leaving the Golden State Detention Facility Warden as the sole 25 respondent. 26 IV. LEGAL STANDARD 27 The Constitution guarantees the availability of the writ of habeas corpus “to every 28 individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) 1 (citing U.S. Const., Art I, § 9, cl. 2). “The essence of habeas corpus is an attack by a person in 2 custody upon the legality of that custody, and . . . the traditional function of the writ is to secure 3 release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas 4 corpus may be granted to a petitioner who demonstrates that he is in custody in violation of the 5 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has 6 served as a means of reviewing the legality of Executive detention, and it is in that context that its 7 protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). A district court’s 8 habeas jurisdiction includes challenges to immigration detention. See Zadvydas v. Davis, 533 9 U.S. 678, 687 (2001). 10 V. DISCUSSION 11 In the answer, respondent addresses petitioner’s claims on the merits and also as having 12 been brought pursuant to a motion for a temporary restraining order. (ECF No. 10 at 1.) This 13 appears to be because the caption of the petition is labeled “Petition for Writ of Habeas Corpus 14 Under 28 U.S.C. § 2241 and Request for Injunctive Relief.” (ECF No. 1 at 1.) Given that the 15 district judge has already addressed petitioner’s motion for a temporary restraining order that was 16 subsequently filed (ECF Nos. 13, 14), these findings and recommendations address the merits of 17 the petition. 18 A. Claims One and Four 19 In claim one, petitioner argues that his continued re-detention violates his right to due 20 process. (ECF No. 1 at 13-14.) In claim four, petitioner argues that his re-detention violates 21 8 C.F.R. § 241.13. (Id. at 17-18.) Because these claims require examination of whether the 22 government followed its own regulations that set out procedures for revoking release, procedures 23 that protect important due process rights, the Court discusses these claims together. See Vu v. 24 Noem, 2025 WL 3114341, at *7 (E.D. Cal. Nov. 6, 2025); Nguyen v. Hyde, 788 F. Supp. 3d 144, 25 152 (D. Mass. 2025) (noting that 8 C.F.R. § 241.13(i) was “promulgated to protect a fundamental 26 right derived from the Constitution”). 27 Respondent argues that petitioner is lawfully detained pursuant to 8 U.S.C. § 1231(a)(2). 28 (ECF No. 10 at 4.) Pursuant to 8 U.S.C. § 1231(a)(1), the Attorney General of the United States 1 shall remove a noncitizen within 90 days, which is referred to as the “removal period.” 8 U.S.C. 2 § 1231(a)(1)(A). The removal period begins on the latest of the following: (i) the date the 3 removal order becomes administratively final; (ii) if the removal order is judicially reviewed and 4 a stay of removal is ordered, the date of the court’s final order; or (iii) the date the noncitizen is 5 released from detention or confinement. 8 U.S.C. § 1231(a)(1)(B). During the removal period, 6 the noncitizen shall be detained. 8 U.S.C. § 1231(a)(2). If the noncitizen is not removed within 7 the removal period, the noncitizen shall be released and subject to supervision with certain 8 conditions. 8 U.S.C. § 1231(a)(3). Here, it is clear that the 90-day removal period has long 9 passed where both parties waived appeal from the May 11, 2015 order by the immigration judge 10 that petitioner be removed to Vietnam. (ECF No. 12-1 at 1-2.) For these reasons, this Court finds 11 that petitioner is not presently detained pursuant to 8 U.S.C. § 1231. 12 It is undisputed that at the time of his re-detention, petitioner was on release under an 13 Order of Supervision dated June 10, 2015. (ECF No. 12-3.) Such a release is made if the 14 government “determines that the alien would not pose a danger to the public or a risk of flight.” 15 8 C.F.R. § 241.3(b). A set of regulations, 8 C.F.R. §§ 241.13(i) and 241.4(l), govern how and 16 when ICE may revoke the release of a noncitizen who has been ordered removed. Section 17 241.13(i) permits revocation of release “if, on account of changed circumstances, [ICE] 18 determines that there is a significant likelihood that the alien may be removed in the reasonably 19 foreseeable future.” 8 C.F.R. § 241.13(i)(2). As stated above, the Notice of Revocation Release 20 dated August 15, 2025 states that petitioner’s order of supervision was revoked based on 21 “changed circumstances” because ICE determined that petitioner could be expeditiously removed 22 from the United States to Vietnam. (ECF No. 12-5 at 1.) 23 In the answer, respondent claims that ICE revoked petitioner’s release after petitioner 24 committed new crimes in violation of the conditions of his release. (ECF No. 10 at 6.) But this is 25 flatly contradicted by the Notice of Revocation Release issued to petitioner, which expressly 26 states that petitioner’s order of supervision was revoked based on changed circumstances. (ECF 27 No. 12-5 at 1.) Petitioner’s Notice of Revocation Release does not identify any violations of 28 release conditions, and the section to be completed for revocation based on release violations was 1 left blank. (Id.) For this reason, this Court finds that based on the government’s own revocation 2 notice, ICE did not revoke petitioner’s Order of Supervision based on violations of the conditions 3 of his release. 4 Respondent also argues that petitioner is detained pursuant to 8 C.F.R. § 241.4(g)(2), (3). 5 (ECF No. 10 at 6-7.) Respondent argues that, under Section 241.4(g)(2), (3), when a noncitizen 6 is detained, the governing regulations provide that a noncitizen will not be released from custody 7 if in the judgment of the Service travel documents can be obtained or are forthcoming. (Id. at 7.) 8 The regulations cited by respondent concern custody review procedures for detainees. See 9 8 C.F.R. §§ 241.4(b)(4), (g)(2), (3). These regulations are not relevant to the determination of 10 whether changed circumstances existed at the time of petitioner’s re-detention on August 15, 11 2025. This Court also observes that on December 5, 2025, after reviewing petitioner’s custody, 12 ICE did not continue petitioner’s detention based on a finding that travel documents were 13 forthcoming pursuant to 8 C.F.R. § 241.4(g)(2), (3). (ECF No. 12-8 at 1.) 14 Citing Zadvydas, respondent also argues that petitioner has the initial burden to show that 15 there is no significant likelihood of removal in the reasonably foreseeable future. (ECF No. 10 at 16 5.) Zadvydas dealt with a noncitizen who had been detained and never released following a final 17 order of removal. Zadvydas, 533 U.S. at 701. In that context, the Supreme Court held that once a 18 noncitizen has been detained for six months and “provides good reason to believe that there is no 19 significant likelihood of removal in the reasonably foreseeable future, the Government must 20 respond with sufficient evidence to rebut that showing.” Id. 21 However, the burden-shifting framework from Zadvydas does not apply as to petitioner’s 22 challenge to his re-detention. As another district court noted in a similar context, “[t]his case is 23 not about ICE’s authority to detain in the first place upon an issuance of a final order of removal 24 as in Zadvydas.” Nguyen v. Hyde, 788 F. Supp. 3d 144, 149 (D. Mass. 2025); see also Yan-Ling 25 X. v. Lyons, 2025 WL 3123793, at *3 (E.D. Cal. Nov. 7, 2025). As in Nguyen, “[t]his case is 26 about ICE’s authority to re-detain [petitioner] after he was issued a final order of removal, 27 detained, and subsequently released on an [order of supervision].” Nguyen, 788 F. Supp. 3d at 28 149. “[T]his is not your typical first round detainment of an alien awaiting removal. Petitioner 1 was previously detained, then released on supervised release for several years, and his 90-day 2 removal period expired.” Escalante v. Noem, 2025 WL 2206113, at *3 (E.D. Tex. Aug. 2, 2025). 3 The regulations at 8 C.F.R. § 241.13(i) apply to non-citizens in petitioner’s situation. 4 Those regulations indicate that when ICE revokes release to effectuate removal, “it is [ICE’s] 5 burden to show a significant likelihood that the alien may be removed.” Escalante, 2025 WL 6 2206113, at *3; see also Roble v. Bondi, 2025 WL 2443453, at *4 (D. Minn. Aug. 25, 2025) 7 (“[T]he regulations at issue in this case place the burden on ICE to first establish changed 8 circumstances that make removal significantly likely in the reasonably foreseeable future.”); 9 Abuelhawa v. Noem, 2025 WL 2937692, at *8 (S.D. Tex. Oct. 16, 2025) (“[U]pon revocation of 10 release, the Government bears the burden to show a significant likelihood that the alien may be 11 removed in the reasonably foreseeable future.”). As the district court in Escalante found, 12 “[i]mposing the burden of proof on the alien each time he is re-detained would lead to an unjust 13 result and serious due process implications.” Escalante, 2025 WL 2206113, at *3. Therefore, the 14 Court must determine whether respondent has met its burden to show a changed circumstance 15 indicating a significant likelihood of removal. 16 In the answer, respondent argues that there is a significant likelihood of petitioner’s 17 removal in the reasonably foreseeable future because in November 2020, the United States and 18 Vietnam signed a Memorandum of Understanding (“MOU”) regarding the process for the 19 deportation of certain citizens to Vietnam who entered the United States prior to 1995. (ECF No. 20 10 at 5.) In support of the answer, respondent submitted a declaration by a deportation officer 21 who states “[c]onsidering the [November 2020] agreement [between the United States and 22 Vietnam], on August 15, 2025, petitioner was detained by ICE…” (ECF No. 12 at 3.) The 23 deportation officer also states, “I am familiar with similarly situated detainees who have obtained 24 travel documents from the government of Vietnam and been removed. ICE is currently trying to 25 obtain travel documents for Petitioner without Petitioner’s cooperation.” (Id. at 4.) 26 For the following reasons, this Court finds that respondent has not met its burden of 27 demonstrating that there is a significant likelihood that petitioner will be removed to Vietnam in 28 the reasonably foreseeable future. Respondent fails to address what changed circumstance 1 occurred during the almost five years between the November 2020 MOU and petitioner’s August 2 15, 2025 re-detention making petitioner’s removal more likely now, or why Vietnam is likely to 3 issue a travel document for petitioner in the reasonably foreseeable future. See Yan-Ling, 2025 4 WL 3123793, at *4 (citing Hoac v. Becerra, 2025 WL 1993771, at *4 (E.D. Cal. July 16, 2025) 5 (“Respondents have not provided any details about why a travel document could not be obtained 6 in the past, nor have they attempted to show why obtaining a travel document is more likely this 7 time around.”). “An undue delay in removal for an individual alien beyond the typical removal 8 period would naturally suggest that removal is unlikely.” Chun Yat Ma v. Asher, 2012 WL 9 1432229, at *5 (W.D. Wash. Apr. 25, 2012). 10 Respondent also does not explain whether removals to Vietnam are common, do not 11 identify what considerations the Government of Vietnam might take into account when deciding 12 whether to issue a travel document, and do not explain whether the Government of Vietnam will 13 look favorably on petitioner’s case. See Yan-Ling, 2025 WL 3123793, at *3 (citing Liu v. Carter, 14 2025 WL 1696526, at *2 (D. Kan. June 17, 2025) (finding that the respondents had not shown 15 that removal was reasonably foreseeable where they did not provide evidence why seeking travel 16 documentation was more likely to be successful this time around or describe other actions taken 17 to make the petitioner’s removal more likely). The phrase “significant likelihood” requires 18 something more than a mere possibility that removal will occur. Evidence that “there is at least 19 some possibility” that the designated country of removal “will accept Petitioner at some point…is 20 not the same as a significant likelihood that he will be accepted in the reasonably foreseeable 21 future.” Nguyen v. Scott, 796 F. Supp. 3d 703, 725 (W.D. Wash. 2025). The deportation 22 officer’s conclusory statement that he is familiar with similarly situated detainees who have 23 obtained travel documents from the government of Vietnam and been removed does not 24 demonstrate that petitioner’s removal is significantly likely in the reasonably foreseeable future. 25 Re-detention is permissible only if ICE can show there is a significant likelihood of 26 removal in the reasonably foreseeable future. See 8 C.F.R. § 241.13(i). ICE re-detained 27 petitioner on August 15, 2025 without making that showing and without complying with its own 28 regulations. “ICE, like any agency, ‘has the duty to follow its own regulations.’” Rombot v. 1 Souza, 296 F. Supp. 3d 383, 388 (D. Mass. 2017) (quoting Haoud v. Ashcroft, 350 F.3d 201, 205 2 (1st Cir. 2003); see Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, 954 F.3d 118, 130 3 (2d Cir. 2020) (“[U]nder deeply rooted principles of administrative law, not to mention common 4 sense, government agencies are generally required to follow their own regulations.”); United 5 States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265–68 (1954). 6 This Court also observes that Section 241.13(i)(2) requires that the determination that 7 changed circumstances will result in the noncitizen’s removal in the reasonably foreseeable future 8 is made before the removable noncitizen has had their release revoked. See Duong v. Charles, 9 2025 WL 3187313, at *3 (E.D. Cal. Nov. 14, 2025); Tran v. Noem, 2025 WL 3005347, at *2 10 (S.D. Cal. Oct. 27, 2025); Sphabmixay v. Noem; 2025 WL 3034071, at *2 (S.D. Cal. Oct. 3, 11 2025). Here, the record does not show that a changed-circumstance determination was made at or 12 before petitioner’s re-detention on August 15, 2025. To the extent the changed circumstance 13 could be based on travel documents requested after petitioner’s re-detention, petitioner’s re- 14 detention violates § 241.13(i)(2) because a changed-circumstance determination was not made at 15 or before petitioner’ re-detention on August 15, 2025. This Court also finds that petitioner’s 16 alleged failure to cooperate with ICE officials in obtaining documents for his removal after his re- 17 detention does not demonstrate that changed circumstances existed before or at the time of 18 petitioner’s re-detention on August 15, 2025. 19 When revoking a petitioner’s release pursuant to § 241.13(i)(2) based on changed 20 circumstances, the petitioner “must be told what circumstances had changed or why there was 21 now a significant likelihood of removal in order to meaningfully respond to the reasons and 22 submit evidence in opposition, as allowed under § 241.13(i)(3).” Sarail v. Bondi, --- F. Supp. 3d 23 ----, 2025 WL 2533673, at *10 (D. Minn. Sept. 3, 2025). By stating that “ICE has determined 24 that you can be expeditiously removed from the United States…to Vietnam,” the Notice of 25 Revocation Release did not give petitioner adequate notice of the changed circumstances. The 26 Notice of Revocation Release also states, “Your case is under current review by Vietnam for the 27 issuance of a travel document.” (ECF No. 12-5 at 1.) This statement does not appear accurate 28 because over three months later on November 18, 2025, the petitioner was provided with an 1 instruction sheet on how to assist with obtaining a travel document and because the detention 2 officer’s declaration stated that “ICE is currently trying to obtain travel documents…” (ECF No. 3 12-6 at 2; ECF No. 12 at 4, ¶ 20.) 4 Petitioner also claims that he did not receive a prompt informal interview following his re- 5 detention. (ECF No. 1 at 17.) 8 C.F.R. § 241.13(i)(3) requires a prompt interview following re- 6 detention: “Upon revocation, the alien will be notified of the reasons for revocation of his or her 7 release. The Service will conduct an initial informal interview promptly after his or her return to 8 Service custody to afford the alien an opportunity to respond to the reasons for revocation stated 9 in the notification. The alien may submit any evidence or information that he or she believes 10 shows there is no significant likelihood he or she be removed in the reasonably foreseeable future, 11 or that he or she has not violated the order of supervision.” The Notice of Revocation Release 12 also repeated these requirements regarding the prompt provision of an informal interview where 13 petitioner would “be given an opportunity to respond to the reasons for the revocation.” (ECF 14 No. 12-5 at 1.) Respondent does not address petitioner’s claim that he did not receive a prompt 15 informal interview following his re-detention where he was provided the opportunity to respond 16 to the reasons for revocation. (See ECF No. 10.) 17 The Court finds that respondent violated the government’s own regulation, 8 C.F.R. 18 § 241.13. Section 241.13 provides “special review procedures” governing ICE’s authority to 19 revoke a removable alien’s release in cases where, as here, ICE has (1) previously determined 20 “that there is no significant likelihood of removal in the reasonably foreseeable future,” and then 21 (2) subsequently seeks to revoke release based on changed circumstances resulting in a 22 “determin[ation] that there is a significant likelihood that the alien may be removed in the 23 reasonably foreseeable future.” Id. Respondent’s failure to notify petitioner of the specific 24 reasons for revocation beyond ICE’s determination that petitioner could be “expeditiously 25 removed,” inaccurate statement in the Notice of Revocation Release that petitioner’s case was 26 under review by Vietnam for travel documents, and failure to provide petitioner with a prompt 27 / / / 28 / / / 1 interview following his re-detention violated 8 C.F.R. § 241.13(i)(3).3 The notice requirement is 2 important because it provides the noncitizen with notice of the reasons for his revocation, and an 3 opportunity to meaningfully respond to the reasons for revocation and submit evidence in 4 opposition, as permitted under § 241.13(i). Hashemi v. Noem, 2025 WL 3468694, at *5 (C.D. 5 Cal. Nov. 19, 2025) (collecting cases). Further, respondents do not assert or present any evidence 6 that petitioner was granted an informal interview or provided with an “opportunity to respond to 7 the reasons for revocation,” as required by 8 C.F.R. § 241.13(i)(3) and described in the Notice of 8 Revocation. (See ECF Nos. 10, 12.) 9 Courts have held that “where an immigration ‘regulation is promulgated to protect a 10 fundamental right derived from the Constitution or a federal statute ... and [ICE] fails to adhere to 11 it, the challenged [action] is invalid.’” Rombot, 296 F. Supp. 3d at 388 (quoting Waldron v. 12 I.N.S., 17 F.3d 511, 518 (2d Cir. 1993)); see also Truong v. Noem, 2025 WL 2988357, at *6 13 (S.D. Cal. Oct. 6, 2025) (“Courts have found that when ICE fails to follow its own regulations in 14 revoking release, the detention is unlawful, and the petitioner’s release must be ordered.”) 15 (collecting cases). 16 This Court analyzes petitioner’s due process claim “in two steps: the first asks whether 17 there exists a protected liberty interest under the Due Process Clause, and the second examines 18 the procedures necessary to ensure any deprivation of that protected liberty interest accords with 19 the Constitution.” Garcia v. Andrews, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing 20 Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). When the government 21 grants a noncitizen parole or supervised release, it creates a protected liberty interest subject to 22 due process clause protection. See Sanchez v. LaRose, 2025 WL 2770629 (S.D. Cal. Sept. 26, 23 2025). These protections include at least notice and an opportunity to be heard regarding the 24 revocation. Id.; Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (“The essence of due process is 25 the requirement that ‘a person in jeopardy of a serious loss [be given] notice of the case against 26 3 Petitioner is subject to a final order of removal, which he has not appealed. (See ECF No. 12- 27 1.) The government may revoke petitioner’s supervision and remove petitioner, but must do so lawfully, following the requirements of the Constitution and its own regulations. It has failed to 28 do so here. 1 him and the opportunity to meet it.”). In Saengphet v. Noem, the district court ruled that notices 2 revoking protected liberty interests are constitutionally inadequate when they lack individualized 3 explanations of the changed circumstances giving rise to revocation. See 2025 WL 3240808, at 4 *5 (S.D. Cal. Nov. 20, 2025). Constitutionally inadequate notice also often leads to 5 constitutionally inadequate opportunity to be heard, because opportunity to be heard must be 6 meaningful to be constitutionally sufficient. See Sanchez, 2025 WL 2770629, at *3; Ying Fong 7 v. Ashcroft, 317 F. Supp. 2d 398, 403 (S.D.N.Y. 2004) (“The opportunity to be heard must be 8 meaningful, that is, an opportunity granted at a meaningful time and in a meaningful 9 manner.”). A detainee’s opportunity to be heard is not meaningful if the detainee has not been 10 informed of the circumstances of his revoked release in a manner sufficient to allow his response. 11 See Sarail A. v. Bondi, 2025 WL 2533673, at *10 (D. Minn. Sept. 3, 2025). 12 While this Court recognizes that the government has an interest in enforcing immigration 13 laws, the government’s interest in re-detaining petitioner without adequate notice and an 14 opportunity to challenge the revocation of his release is low. See Ortega v. Bonnar, 415 F. Supp. 15 3d 963, 970 (N.D. 2019); Doe v. Becerra, 787 F. Supp. 3d 1083, 1094 (E.D. Cal. March 3, 2025). 16 “That the Government may believe it has a valid reason to detain petitioner does not eliminate its 17 obligation to effectuate the detention in a manner that comports with due process.” E.A. T.-B. v. 18 Wamsley, 795 F. Supp. 3d 1316, 1322 (W.D. Wash. 2025). Respondent identifies no reason why 19 adequate notice and an informal interview “to afford the alien an opportunity to respond to the 20 reasons for revocation stated in the notification” were not provided to petitioner as required by 21 their own regulations. See 8 C.F.R. § 241.13(i)(3). 22 For the reasons above, this Court recommends that the petition be granted as to claims one 23 and four alleging that petitioner’s re-detention is unlawful because the government failed to 24 demonstrate a significant likelihood of petitioner’s removal to Vietnam in the reasonably 25 foreseeable future, and because the government failed to comply with its own regulations 26 regarding the revocation of petitioner’s release set forth at 8 C.F.R. § 241.13(i). 27 B. Claims Two and Three 28 In claim two, petitioner argues that ICE’s current procedures for removal of detainees to 1 third countries violate the Fifth Amendment, the INA, the Convention Against Torture, 2 implementing regulations and the Administrative Procedure Act. (ECF No. 1 at 14-15.) In claim 3 three, petitioner argues that punitive third country banishment violates the Eighth and Fifth 4 Amendments. (Id. at 15-16.) In the answer, respondent argues that there is no evidence that ICE 5 has any intent to remove petitioner to a third country. (ECF No. 10 at 9.) For the following 6 reasons, this Court finds that petitioner lacks standing to raise his claims challenging ICE’s third 7 country removal procedures. 8 To establish Article III standing, a party must allege an injury that is “concrete and 9 particularized,” “actual or imminent,” and likely to be “redressed by a favorable” judicial 10 decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). The petition appears to be a 11 form petition and the record before the Court does not indicate that third country removal is at 12 issue. (See ECF Nos. 1, 10, 10-1, 10-2, 12, 12-1 to 12-8.) Because nothing before the Court 13 shows any basis for petitioner’s third country removal claims, this Court finds that petitioner 14 lacks standing to raise his third country removal claims at this time and those claims should be 15 denied. 16 C. Remedy 17 Based on the recommendation that the petition be granted as to claims one and four, this 18 Court recommends that petitioner be immediately released to return him to the status quo before 19 the pending controversy. See Yang v. Kaiser, 2025 WL 2791778, at *11 (E.D. Cal. Aug. 20, 20 2025) (status quo ante is “the last uncontested status which preceded the pending controversy.”). 21 Because petitioner challenges his current re-detention, the last uncontested status of petitioner 22 was his release under the June 10, 2015 Order of Supervision before his re-detention on August 23 15, 2025. 24 VI. MOTION FOR APPOINTMENT OF COUNSEL 25 On February 2, 2026, petitioner filed a motion for appointment of counsel. (ECF No. 5.) 26 Because this Court recommends that the petition be granted, petitioner’s motion for appointment 27 of counsel is denied as unnecessary. 28 /// 1 VII. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Respondents United States Attorney General, Security of Homeland Security and the 4 Acting Director of ICE are dismissed. 5 2. Petitioner’s motion for appointment of counsel (ECF No. 5) is denied as unnecessary. 6 3. Respondent’s motion for an extension of time (ECF No. 9) is granted. 7 4. Petitioner’s motion for release (ECF No. 15) is denied as unnecessary. 8 IT IS HEREBY RECOMMENDED that: 9 1. The petition for writ of habeas corpus be GRANTED as to claims one and four, and 10 DENIED as to claims two and three. 11 2. Petitioner Nguyen Dung Thanh be immediately released from ICE custody under the 12 same conditions he was previously released in his June 10, 2015 Order of Supervision. 13 Respondent be ordered to provide petitioner with a copy of the release order at or near the time of 14 release. If respondent has custody of petitioner’s documents (e.g., identification, passport, work 15 permit, Social Security card, etc.), respondent be ordered to return those to petitioner at the time 16 of release. Respondent be enjoined and restrained from re-detaining petitioner absent compliance 17 with constitutional protections, which include, at a minimum, compliance with the requirements 18 of 8 C.F.R. § 241.13(i) for revocation of release, and any other applicable statutory and regulatory 19 procedures. 20 3. Within seven days of the adoption of these findings and recommendations, respondent 21 be ordered to file a status report addressing petitioner’s status. 22 4. The Clerk of the Court be directed to enter judgment in favor of petitioner and close 23 this case. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within seven days of 26 the date of these findings and recommendations, any party may file written objections with the 27 court and serve a copy on all parties. Such a document should be captioned “Objections to 28 Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 1 || filed and served within seven days after service of the objections. The parties are advised that 2 || failure to file objections within the specified time may waive the right to appeal the District 3 || Court’s order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 4 5 || Dated: February 23, 2026 □□□ Spo | CHI SOO KIM 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 Than352.157.imm/2 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17