Phung Thi Thanh Vo v. Pamela Bondi et al.

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 PHUNG THI THANH VO, CASE NO. 2:25-cv-02244-DGE-GJL 11 Petitioner, ORDER GRANTING PETITION 12 v. FOR HABEAS CORPUS (DKT. NOS. 1, 7) 13 PAMELA BONDI et al., 14 Respondents. 15

16 This matter comes before the Court on Petitioner Phung Thi Thanh Vo’s Petition for Writ 17 of Habeas Corpus Under 28 U.S.C. § 2241. (Dkt. No. 1, 7.) The Court has considered the 18 materials filed in support of and in opposition to the petition, and the applicable law. For the 19 reasons addressed below, the Court GRANTS the Petition. 21 A. Petitioner’s History 22 Petitioner was born to Vietnamese refugees in a refugee camp in Indonesia on 23 approximately July 1, 1980. (Dkt. No. 7 at 7.) On September 5, 1980, Petitioner emigrated with 24 1 her parents to the United States and was lawfully admitted as a permanent resident. (Id.; Dkt. 2 No. 15-1 at 3.) Between 2014 and 2016, Petitioner was arrested for and convicted of multiple 3 criminal offenses. (Dkt. No. 15-1 at 2-4.) On July 14, 2016, Petitioner was detained by 4 Immigration and Customs Enforcement (“ICE”) officers and served with a Notice to Appear,

5 which alleged Petitioner was removable because she had previously been convicted of two 6 crimes “involving moral turpitude.” (Id. at 3; Dkt. No. 15-2.) On January 18, 2017, an 7 immigration judge ordered Petitioner released from custody under bond. (Dkt. Nos. 15-3 at 2; 8 15-4 at 2.) 9 On January 27, 2017, ICE issued Petitioner an Order of Release on Recognizance. (Dkt. 10 No. 15-4 at 2-4.) On September 8, 2017, Petitioner reported to the Intensive Supervision 11 Appearance Program (“ISAP”) office for a compliance interview and was arrested “due to 12 multiple ISAP violations,” including two “tracker missed callback[s],” three “face to face 13 missed,” and one “home visit failed.” (Dkt. No. 15-5 at 3–4.) On December 14, 2017, an 14 immigration judge ordered Petitioner removed in absentia. (Dkt. No. 15-6 at 2.) On June 15,

15 2018, Petitioner was arrested for possession of a controlled substance and subsequently taken 16 into ICE custody. (Dkt. No. 15-7 at 3.) On September 13, 2018, because ICE had not 17 effectuated her removal within the prescribed time, ICE issued Petitioner an Order of 18 Supervision that required her, among other things, to “appear in person at the time and place 19 specified, upon each and every request of the agency, for identification and for deportation or 20 removal” and “that you do not commit any crimes while on this Order of Supervision,” (Dkt. No. 21 15-8 at 2–4.) The Order advised Petitioner that “[a]ny violation of the above conditions may 22 result in you being taken into Service custody.” (Id. at 4.) 23

24 1 A declaration submitted by Jiarong Du, an ICE deportation officer, stated “[f]rom the 2 time of Petitioner’s release on [Order of Supervision], she repeatedly failed to report and her last 3 contact with ICE prior to 2025 was October 15, 2018.” (Dkt. No. 16 at 3.) On April 23, 2025, 4 Petitioner was arrested by California law enforcement and subsequently taken into ICE custody.

5 (Dkt. Nos. 15-10 at 2–5; 16 at 3.) ICE determined there was a significant likelihood of removal 6 in the foreseeable future due to cooperation between the United States and Vietnam, and revoked 7 Petitioner’s Order of Supervision. (Dkt. No. 16 at 3.) However, Petitioner’s travel document 8 request was not completed until November 1, 2025; Officer Du explained that because the 9 “documents can only be created with the active cooperation of Petitioner” and “must be 10 translated into Vietnamese with a third-party translation service,” “it can take some time to 11 complete” a request. (Id. at 3–4.) On November 4, 2025, the travel document request was 12 “approved by local management to be sent to the ERO headquarters division who communicates 13 with [the] government of Vietnam.” (Id. at 4.) At the time Officer Du submitted his declaration, 14 the travel request documents remained pending. (Id.) Respondents have not attached any

15 documents to the declaration that might show more precisely what has been submitted to or 16 requested from the government of Vietnam. 17 B. History of Vietnamese Refugee Removal 18 Vietnam has long refused to accept for deportation Vietnamese nationals who came to the 19 United States as refugees before 1995. (Dkt. No. 7 at 7–8) (discussing the history of Vietnamese 20 immigration to the United States as discussed in Trinh v. Homan, 466 F. Supp. 3d 1077, 1083 21 (C.D. Cal. 2020)). Consequently, many Vietnamese nationals who are ordered removed “have 22 continued to live and work in the United States and have regularly checked in with ICE in 23 accordance” with order of supervision conditions. (Dkt. No. 1-2 at 3.)

24 1 On November 21, 2020, the United States and Vietnam entered into a Memorandum of 2 Understanding (“MOU”) regarding pre-1995 immigrants. (Dkt. No. 1-1 at 2, 7.) The purpose of 3 the MOU is to “establish a process of review and issuance of travel documents for Vietnamese 4 citizens ordered removed from the United States and to facilitate the acceptance of all such

5 Vietnamese citizens[.] . . . The scope of this MOU is intended to apply to individuals who 6 arrived in the United States before July 12, 1995.” (Id. at 2.) Section 4 of the MOU is titled 7 “Eligibility for Acceptance of Return.” (Id. at 3.) Section 4 states that Vietnam intends to accept 8 the removal of individuals who meet four conditions: the individual must (1) have Vietnamese 9 citizenship and not the citizenship of any other country; (2) have been ordered removed by the 10 United States and finished serving any U.S. prison sentence; and (3) have resided in Vietnam 11 before arriving in the United States and not have the right to reside in any other country. (Id. at 12 3–4.) The fourth mandatory condition is redacted from the publicly disclosed version of the 13 MOU filed by Petitioner (see id. at 4.), and Respondents have not disclosed any information 14 about what that condition requires. Sections 5 and 6 of the MOU contain factors that the United

15 States intends to consider before requesting travel documents for a Vietnamese citizen and that 16 Vietnam intends to consider before accepting an individual ordered removed. (Id. at 4.) These 17 factors are also redacted and have not been disclosed in this litigation. 18 Section 8 of the MOU is titled “Procedures for Verification and Issuance of Travel 19 Documents.” Under Section 8 of the agreement, ICE must request appropriate travel documents 20 from Vietnamese officials before removal. (Id. at 5.) The documentation package is expected to 21 contain a cover letter; the self-declaration form; a copy of the individual’s final order of removal; 22 copies of records related to the individual’s criminal convictions and incarceration, if applicable; 23 photographs and fingerprints; and copies of citizenship documents such as expired passports,

24 1 national identity cards, birth certificates, or expired travel documents. (Id.) After the request for 2 a travel document is received, Vietnam “intends to issue the travel document” within 30 days 3 “when the individual meets the eligibility criteria listed in Section 4 of this MOU.” (Id.) For 4 individuals who do not meet the eligibility requirement, the MOU sets out a process through

5 which the United States and Vietnam will try to “resolve the case,” which may include gathering 6 additional information, convening a working group, considering “the humanitarian and family 7 unity factors of the individual ordered removed,” and conducting interviews. (Id. at 5–6.) 8 C. Procedural History 9 On November 10, 2025, Petitioner filed her writ of habeas corpus and a motion to 10 appoint counsel. (Dkt. Nos. 1, 2.) On November 17, 2025, the Court (Leupold, J.) appointed 11 Petitioner counsel, and ordered Respondents to show cause within 30 days why the writ of 12 habeas corpus should not be granted. (Dkt. Nos. 5, 6.) On November 20, 2025, the Parties 13 requested expedited briefing on the petition, and filed a stipulated motion that Respondents 14 would not effectuate Petitioner’s removal to a third country or remove Petitioner from this

15 district while the action is pending, other than removal to Vietnam. (Dkt. Nos. 10, 11.) The 16 Court granted both motions. (Dkt. No. 13.) Respondents filed a return memorandum on 17 November 28, 2025. (Dkt. No. 14.) Petitioner filed a response on December 4, 2025. (Dkt. No. 18 17.) 20 A writ of habeas corpus is “available to every individual detained within the United 21 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. CONST., Art. I, § 9, cl. 2). To 22 succeed on his habeas petition, Petitioner “must show [he] is in custody in violation of the 23 Constitution or laws or treaties of the United States.” Doe v. Bostock, No. C24-0326-JLR-SKV,

24 1 2024 WL 3291033, at *5 (W.D. Wash. Mar. 29, 2024), report and recommendation adopted, No. 2 C24-0326JLR-SKV, 2024 WL 2861675 (W.D. Wash. June 6, 2024) (citing 28 U.S.C. § 2241). 3 Because habeas proceedings are civil in nature, the “[p]etitioner ‘bears the burden of proving that 4 he is being held contrary to law, . . . [and] he must satisfy his burden of proof by a preponderance

5 of the evidence.’” Aditya W. H. v. Trump, No. 25-cv-1976, 2025 WL 1420131, at *7 (D. Minn. 6 May 14, 2025) (quoting Freeman v. Pullen, 658 F. Supp. 3d 53, 58 (D. Conn. 2023) (citations 7 omitted)). 8 The government’s discretion to revoke the release of a noncitizen whose removal was 9 previously found to be unlikely in the reasonably foreseeable future is limited. Specifically, a 10 noncitizen “who violates any of the conditions of release may be returned to custody.” 8 C.F.R. 11 § 214.13(i)(1). Similarly, the government “may revoke an alien’s release . . . if, on account of 12 changed circumstances, the Service determines that there is a significant likelihood that the alien 13 may be removed in the reasonably foreseeable future. 8 C.F.R. § 214.13(i)(2). 14 Parallel to these limitations on the government’s ability to revoke the release of a

15 noncitizen whose removal is unlikely in the reasonably foreseeable future, the Supreme Court 16 has held that the INA does not authorize “indefinite, perhaps permanent, detention” of 17 noncitizens subject to final orders of removal. Zadvydas v. Davis, 533 U.S. 678, 699 (2001). As 18 the Zadvydas court recognized, “[a] statute permitting indefinite detention of [a noncitizen] 19 would raise a serious constitutional problem [under] . . . [t]he Fifth Amendment’s Due Process 20 Clause.” Id. at 690. “Freedom from imprisonment—from government custody, detention, or 21 other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause 22 protects.” Id. The Zadvydas court concluded, “once removal is no longer reasonably 23 foreseeable, continued detention is no longer authorized by statute.” Id. at 699. The

24 1 “presumptively reasonable” period for detention following a removal order is six months. Id. at 2 701. 3 The presumptively reasonable period of detention does not reset each time a noncitizen is 4 detained; rather, the aggregate time in detention post removal order is considered. Nguyen v.

5 Scott, 796 F. Supp. 3d 703, 721–722 (W.D. Wash. 2025) (rejecting argument that detention 6 period resets every time a noncitizen is detained); Giorges v. Kaiser, No. 25-cv-7683, 2025 WL 7 2898967, at *8 n.5 (N.D. Cal Oct. 10, 2025) (“When calculating time spent in detention, courts 8 aggregate nonconsecutive detention periods. The clock does not restart each time that a 9 nonconsecutive detention begins for a noncitizen.”); Sied v. Nelson, No. 17-cv-06785-LB, 2018 10 WL 1876907, at *6 (N.D. Cal. Apr. 19, 2018) (collecting cases). 12 Petitioner’s claims fall within three categories: (1) her continued detention violates the 13 Due Process Clause of the Fifth Amendment of the U.S. Constitution; the Immigration and 14 Nationality Act (“INA”), 8 U.S.C. § 1231(a); and its implementing regulations, 8 C.F.R.

15 § 241.13; (2) third country removal without meaningful notice and opportunity to respond 16 violates the Fifth Amendment’s Due Process Clause, the INA, implementing regulations, the 17 Convention Against Torture, and the APA; and (3) the third country removal program imposes 18 punishment without a criminal trial, in violation of the Fifth and Eighth Amendments. (Dkt. No. 19 7 at 23–27.) 20 A. Petitioner’s Detention Violates the Fifth Amendment Due Process Clause 21 Under the Due Process Clause of the Fifth Amendment to the United States Constitution, 22 no person shall be “deprived of life, liberty, or property, without due process of law.” U.S. 23 CONST. amend. V. “The Fifth Amendment guarantees due process in deportation proceedings.”

24 1 Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1270 (9th Cir. 2001). Thus, the Supreme Court has held 2 “the Due Process Clause protects a[ ] [noncitizen] subject to a final order of deportation[.]” 3 Zadvydas, 533 U.S. at 693–694 (2001) (citing Wong Wing v. United States, 163 U.S. 228, 238, 4 (1896)).

5 Zadvydas “places the burden on the [noncitizen] to show, after a detention period of six 6 months, that there is ‘good reason to believe that there is no significant likelihood of removal in 7 the reasonably foreseeable future.’” Pelich v. I.N.S., 329 F.3d 1057, 1059 (quoting Zadvydas, 8 533 U.S. at 701). If the noncitizen meets this burden, then the respondents must “introduce 9 evidence to refute that assertion.” Id. (first citing Zadvydas, 533 U.S. at 701; and then citing Xi 10 v. I.N.S., 298 F.3d 832, 839–840 (9th Cir. 2002)); see also Nadarajah v. Gonzales, 443 F.3d 11 1069, 1082 (9th Cir. 2006) (“Given the unreasonable length of [petitioner’s] detention, the 12 unforeseeability of his removal, and the failure of the government to rebut his showing that there 13 is no significant likelihood of removal in the reasonably foreseeable future, the government’s 14 continued detention violates federal law, as construed by the Supreme Court.”).

15 1. Petitioner has met her burden under Zadvydas 16 Petitioner provides “good reason to believe that there is no significant likelihood of 17 removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. First, Petitioner has 18 already been detained for more than six months. She was first detained after her 2016 conviction 19 from July 2016 to January 2017—approximately six months. (Dkt. Nos. 15-1 at 3; 15-3 at 2.) 20 Petitioner has been currently detained since April 2025—an additional eight months. (Dkt. No. 21 15-11 at 2.) In total, Petitioner has been detained for approximately 14 months, making her 22 detention presumptively unreasonable under Zadvydas, 533 U.S. at 701. Respondents concede 23

24 1 this in their briefing, acknowledging the “‘presumptively reasonable’ six-month custody period 2 has expired” in this case. (Dkt. No. 14 at 3.) 3 Second, Petitioner has shown her removal is not reasonably foreseeable. Respondents 4 have failed to deport Petitioner for seven years, since ICE determined there was no reasonable

5 likelihood of removal in 2018. (Dkt. No. 15-8.) Furthermore, Respondents detained Petitioner 6 in April 2025 without securing a travel document from Vietnam and failed to make any progress 7 toward obtaining one between April and November. (Dkt. Nos. 15-11 at 2; 16 at 4.) More 8 broadly, Petitioner has also offered evidence that the process for procuring travel documents 9 from Vietnam for pre-1995 immigrants continues to be uncertain and protracted. Petitioner 10 provided a declaration from Mr. Tin Thanh Nguyen, an attorney experienced with Vietnam’s 11 repatriation process and requirements, that was submitted in Nguyen, 796 F. Supp. 3d at 717. 12 (Dkt. No. 1-2.) Mr. Nguyen’s practice largely consists of representing Vietnamese nationals, 13 including “liaising with the Government of Vietnam to facilitate the issuance of travel 14 documents.” (Dkt. No. 1-2 at 2–4.) Though aware that “Vietnam has issued many more travel

15 documents for pre-1995 individuals than it ever has in the past,” Mr. Nguyen contends “that does 16 not mean it is significantly likely that a travel document will be issued for any pre-1995 case.” 17 (Id. at 3–4.) This year alone, Mr. Nguyen worked on or assisted with nearly a hundred cases of 18 pre-1995 immigrants “for whom ICE has requested travel documents from Vietnam.” (Id. at 4.) 19 Across these cases, Mr. Nguyen has “yet to see Vietnam issue a travel document within 30 days 20 or less” for a pre-1995 arrival. (Id.) Rather, in his experience, “it can take many months to get 21 any answer from Vietnam about whether it will issue a travel document” for these arrivals. (Id. 22 at 5.) He explains that “[t]he process [for requesting travel documents] is highly dependent on 23 the individualized facts of each case, including whether the individual has any family remaining

24 1 in Vietnam, whether their Vietnamese identity can be verified, their criminal records, and the 2 manner in which they left Vietnam and came to the United States, among many other factors.” 3 (Id. at 4.) 4 Thus, the Court finds Petitioner has met her burden, offering sufficient evidence to show

5 there is “good reason to believe that there is no significant likelihood of removal in the 6 reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. 7 2. Respondents have failed to rebut Petitioner’s showing 8 The burden thus shifts to Respondents to “respond with evidence sufficient to rebut that 9 showing.” Id. Respondents rely on Officer Du’s declaration to demonstrate Vietnam is 10 approving travel documents for pre-1995 Vietnamese immigrants. (See Dkt. No. 16.) 11 Officer Du states, seemingly without a sufficient basis, that “[p]revious memoranda of 12 understanding regarding removal of Vietnamese citizens based on their entry date is no longer in 13 effect. The date of entry is no longer relevant regarding whether travel documents can be 14 obtained from the government of Vietnam.” (Dkt. No. 16 at 4.) The declaration further stated

15 Vietnam had “agreed to increase cooperation with the United States and generally seek[s] to 16 issue travel documents within 30 days of a request being made.” (Id.) Officer Du states there 17 have been 569 removals of Vietnamese citizens in 2025 (id.) but provides no information 18 regarding the total number of the requests they have recently submitted to Vietnam, whether 19 these involved pre-1996 Vietnamese immigrants like Petitioner, or how many individuals are 20 still awaiting removal despite Respondents’ request to Vietnam. Based on Officer Du’s recent 21 experience, if a noncitizen does not have documentation of Vietnamese citizenship, “the 22 Vietnamese government will conduct an interview,” and “[f]rom the time that a request is made 23 from the local office through to the Attaché the issuance of travel documents is typically within

24 1 1–3 months currently due to the high volume of requests.” (Id.) Respondents have not provided 2 any underlying documents that might support the assertions in Officer Du’s declaration. Nor 3 have Respondents provided any evidence as to whether Petitioner meets Vietnam’s eligibility 4 requirements discussed in the MOU, such as whether Petitioner has Vietnamese citizenship or

5 whether she resided in Vietnam prior to arriving to the United States. (See Dkt. No. 1-1 at 3–4.) 6 Because there is not a significant likelihood Vietnam will accept Petitioner in the 7 reasonably foreseeable future, her detention is no longer permitted by the INA as construed in 8 Zadvydas. See 533 U.S. at 699-700 (“[I]f removal is not reasonably foreseeable, the court should 9 hold continued detention unreasonable and no longer authorized by statute.”) Petitioner’s 10 detention is unlawful, and her release is appropriate. See Hoac v. Becerra, No. 2:25-CV-01740- 11 DC-JDP, 2025 WL 1993771, at *7 (E.D. Cal. July 16, 2025) (allowing release upon a finding 12 that removal was not reasonably foreseeable). 13 B. Petitioner’s Third Country Removal Claims Are Not Ripe 14 Petitioner’s other claims for relief challenge the legality of her possible removal to a third

15 country under the Fifth Amendment, the Eighth Amendment, the Convention Against Torture, 16 the Administrative Procedure Act, and the relevant implementing regulations. (Dkt. No. 7 at 25– 17 27.) Because Petitioner’s claims are not ripe, the Court declines to address her arguments about 18 possible removal to a third country at this time. 19 Though a habeas petition brought pursuant to 28 U.S.C. § 2241 is the proper mechanism 20 to challenge the legality of detention pending removal, see Zadvydas, 533 U.S. at 688, it cannot 21 be used to seek relief for claims that are speculative or otherwise not ripe for review. Thomas v. 22 Union Carbide Agr. Prods. Co., 473 U.S. 568, 580 (1985). For a case to be ripe, the issues 23 presented must be “definite and concrete, not hypothetical or abstract.” Thomas v. Anchorage

24 1 Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (citing Railway Mail Ass’n v. Corsi, 2 326 U.S. 88, 93 (1945)). The ripeness doctrine “prevent[s] courts, through avoidance of 3 premature adjudication, from entangling themselves in abstract disagreements.” Anchorage 4 Equal Rights Comm’n, 220 F.3d 1134 at 1138 (quoting Abbott Lab’ys v. Gardner, 387 U.S. 136,

5 148 (1967)). This is because the court’s “role is neither to issue advisory opinions nor declare 6 rights in hypothetical cases, but to adjudicate live cases or controversies[.]” Anchorage Equal 7 Rights Comm’n, 220 F.3d 1134 at 1138. “[D]istrict courts properly decline to issue advisory 8 opinions or to declare rights in hypothetical cases rather than live cases or controversies.” Tran 9 v. Bondi, C25-01897-JLR, 2025 WL 3140462, at *4 (W.D. Wash. Nov. 10, 2025) (citing 10 Anchorage Equal Rights Comm’n, 220 F.3d at 1138). 11 Petitioner makes general assertions that Respondents have designed and implemented a 12 punitive practice of removing individuals to third countries without following procedures 13 required by law. (Dkt. No. 7 at 25–27.) But Petitioner has not provided the Court with any 14 evidence that Respondents seek to remove her to any country other than Vietnam. (See generally

15 Dkt. Nos. 1, 7.) To the contrary, Respondents have attested they have no intent to remove 16 Petitioner to any country other than Vietnam and have begun the process of securing travel 17 documents for her removal to Vietnam. (Dkt. No. 14 at 9–10.) At this juncture, Petitioner’s 18 claims are too speculative to form a live controversy as to the third country removal issue. See 19 Union Carbide, 473 U.S. at 580; Tran, 2025 WL 3140462, at *4 (finding claims of third country 20 removal not ripe where petitioner provided “no evidence that Respondents seek to remove him to 21 a third country”).1 22

23 1 Because the Court finds Petitioner’s detention violates the Due Process Clause under Zadvydas, and thus affords relief on that basis, it does not reach Petitioner’s remaining claims of violation 24 of procedural due process claim or failure to comply with § 241.13. However, the Court notes 2 For these reasons, the Court GRANTS the petition for writ of habeas corpus. (Dkt. No. 3 1, 7.) The Court ORDERS Respondents to release Petitioner from custody immediately, and 4 further, ORDERS that Petitioner may not be re-detained until after an immigration court hearing

5 is held to determine whether detention is appropriate. Within TWENTY-FOUR (24) hours of 6 this order, Respondents must provide the Court with a declaration confirming Petitioner has been 7 released from custody. 8 Dated this 17th day of December, 2025. 9 A 10 David G. Estudillo 11 United States District Judge

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Petitioner was arrested by local state police on April 22, 2025 for use of a controlled substance 22 and possession of unlawful paraphernalia, and re-detained by ICE the following day. (Dkt. Nos. 15-10 at 3–4; 16 at 1.) Because Petitioner was notified upon release in 2018 that violation of any 23 “local, state or federal law may result in you being taken back into custody,” (Dkt. No. 15-9 at 2), it appears that Respondents did not violate 8 C.F.R. § 241.13(i)(1) in re-detaining Petitioner. 24