Tien Vo v. Board of Immigration Appeals, et al.

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 TIEN VO, Case No. 26-cv-01801-BLF

8 Plaintiff, v. ORDER DENYING PLAINTIFF’S 9 MOTION FOR TEMPORARY BOARD OF IMMIGRATION APPEALS, et RESTRAINING ORDER 10 al. [Re: ECF 2] 11 Defendants.

12 13 Plaintiff Tien Vo (“Vo”), a native of Vietnam, entered the United States as a refugee in 14 1980 at the age of six. See Pet. ¶ 3, ECF 1. He is in the custody of U.S. Immigration and 15 Enforcement (“ICE”) pursuant to a final order of removal, and he has been advised that he will be 16 removed to Vietnam on March 15, 2026. See id. ¶ 1. Vo filed this mandamus action on March 3, 17 2026, asserting that the Board of Immigration Appeals (“BIA”) has unreasonably delayed in 18 adjudicating his motions to reopen removal proceedings and to stay removal, and seeking to 19 compel the BIA to adjudicate those motions by March 9, 2026. See id. ¶¶ 47-58. 20 This order addresses Vo’s motion for a temporary restraining order (“TRO”) filed 21 contemporaneously with his mandamus petition on March 3, 2026. See Mot. for TRO, ECF 2. Vo 22 requests temporary injunctive relief barring his removal from the United States and requiring the 23 BIA to adjudicate his pending motions to reopen and to stay by March 9, 2026. See id. 24 Defendants – the BIA and other federal agencies and officials (collectively, “the Government”) – 25 filed opposition to the motion on March 4, 2026. See Opp., ECF 16. The Court held a hearing on 26 March 5, 2026. See Minute Entry, ECF 18. 27 As stated on the record at the hearing and for the reasons discussed below, Vo’s motion for 1 I. BACKGROUND1 2 Vo entered the United States at the age of six as a refugee from Vietnam. See Pet. ¶ 27. 3 He later became a lawful permanent resident. See id. Vo suffered state court criminal convictions 4 pursuant to guilty pleas in 1994 (attempted robbery), 1995 (battery), and 1999 (accessory after the 5 fact). See id. ¶ 29 & Ex. B. He was placed in removal proceedings in 2000, which resulted in a 6 final order of removal to Vietnam. See id. ¶¶ 29-30. Because could not be removed to Vietnam at 7 that time, he was released on an order of supervision (“OSUP”).2 See id. ¶¶ 30-31. 8 Over the next twenty-five years, Vo reported annually for OSUP check-ins. See Pet. ¶ 34. 9 He is married to a United States citizen and together they have two children who are United States 10 citizens. See id. ¶¶ 3, 28. He has a job as driver for a recycling company. See id. ¶ 28. Vo filed a 11 second motion to reopen his immigration proceedings on an unspecified date, which was denied. 12 See id. ¶ 32. 13 In 2020, Vo obtained state court orders vacating his convictions nunc pro tunc based on 14 findings that his guilty pleas were invalid. See id. ¶ 33 & Ex. B. However, he did not file a third 15 motion to reopen his immigration proceedings at that time. Vo claims that he was suffering from 16 mental health conditions that prevented him from pursuing relief. See id. ¶ 35. 17 On September 5, 2025, Vo was detained by ICE when he appeared for his regular OSUP 18 check-in. See Pet. ¶ 34. He filed a petition for writ of habeas corpus, which was granted, resulting 19 in his release. See id. 20 On January 29, 2026, Vo filed a third motion to reopen his immigration proceedings with 21 the BIA, asserting a lack of removability based on the state court orders vacating his criminal 22 convictions, along with a motion to stay removal. See Pet. ¶¶ 36. In general, a noncitizen may file 23 only one motion to reopen removal proceedings, and that motion must be filed within 90 days 24 1 The facts in the Background section are drawn from Plaintiff’s mandamus petition and are not 25 disputed by the Government.

26 2 The United States was unable to remove Vietnamese nationals to Vietnam for many years due to the lack of a repatriation agreement between the United States and Vietnam. See United States v. 27 Nguyen, 465 F.3d 1128, 1129 (9th Cir. 2006); Huynh v. Bondi, No. C25-2371-KKE, 2025 WL 1 after the final order of removal is rendered. See 8 C.F.R. § 1003.2(c)(2). Vo asks the BIA to grant 2 an exception to those number and time limits based on documentation of his mental health 3 conditions. See Pet. ¶ 28. The Government filed opposition to the motion to reopen on February 4 18, 2026, and Vo filed a reply on February 26, 2026. See id. ¶ 36. 5 On February 26, 2026, the same date his motion to reopen became fully briefed, Vo was 6 taken into ICE custody when he appeared for another check-in. See Pet. ¶ 37. ICE has procured 7 valid travel documents for Vo issued by Vietnam, and ICE intends to remove Vo to Vietnam on 8 March 15, 2026. See id. ¶¶ 37-39. Vo immediately filed with the BIA a request to expedite 9 adjudication of his pending motions based on his imminent removal. See id. ¶ 38. 10 The Government has advised this Court that the BIA has adjudicated Vo’s motion to stay 11 removal, denying that motion on March 3, 2026. See Opp. at 1. Vo’s motion to reopen his 12 immigration proceedings remains pending before the BIA. See id. On March 6, 2026, Vo filed a 13 notice advising the Court that the BIA has granted his motion to expedite his motion to reopen. 14 See Notice, ECF 19. However, the BIA has not given any indication whether Vo’s motion to 15 reopen will be adjudicated before March 9, 2026. See id. Vo has not withdrawn his motion for a 16 TRO. See id. 17 Vo filed the present mandamus action and motion for a TRO on March 3, 2026, five days 18 after his motion to reopen filed with the BIA was fully briefed. The Court heard the motion for a 19 TRO on March 5, 2026, exactly one week after the motion to reopen was fully briefed. 20 II. LEGAL STANDARD 21 A federal district court may grant temporary injunctive relief pursuant to Federal Rule of 22 Civil Procedure 65. See Fed. R. Civ. P. 65(b). “[T]he legal standards applicable to TROs and 23 preliminary injunctions are substantially identical.” Washington v. Trump, 847 F.3d 1151, 1159 24 n.3 (9th Cir. 2017) (internal quotation marks and citation omitted). A plaintiff seeking preliminary 25 injunctive relief must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to 26 suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in 27 his favor, and [4] that an injunction is in the public interest.” Winter v. Natural Resources Defense 1 questions going to the merits – a lesser showing than likelihood of success on the merits – then a 2 preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff’s 3 favor, and the other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767 4 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks and citations omitted). 5 The plaintiff must satisfy a more demanding standard when seeking a mandatory 6 injunction, because ordering a party to take action (rather than refrain from it) “goes well beyond 7 simply maintaining the status quo[.]” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) 8 (internal quotation marks and citation omitted). To obtain a mandatory injunction, the moving 9 party must show that the law and facts “clearly favor” the moving party’s position, not simply that 10 the moving party “is likely to succeed.” Id. 11 III. DISCUSSION 12 Vo asks the Court to issue a TRO (1) enjoining execution of his removal order and 13 (2) requiring the BIA to adjudicate his motion to reopen his immigration proceedings by March 9, 14 2026. See Mot. for TRO at 1. 15 The Government opposes Vo’s motion for a TRO on two grounds. First, the Government 16 contends that this Court lacks subject matter jurisdiction to enjoin Vo’s removal to Vietnam. 17 Second, the Government argues that Vo is not entitled to an injunction requiring the BIA to 18 adjudicate his motion to reopen by March 9, 2026, because Vo has not shown a likelihood of 19 success on the merits of his claims that the BIA has unreasonably delayed in adjudicating his 20 motion to reopen. Both arguments are well taken. 21 A. The Court Lacks Jurisdiction to Enjoin Vo’s Removal to Vietnam 22 This Court lacks jurisdiction to enjoin Vo’s removal under 8 U.S.C. § 1252(g), which 23 provides in relevant part that “no court shall have jurisdiction to hear any cause or claim by or on 24 behalf of any alien arising from the decision or action by the Attorney General to commence 25 proceedings, adjudicate cases, or execute removal orders against any alien[.]” 8 U.S.C. § 1252(g) 26 (emphasis added). The Ninth Circuit has held unequivocally that § 1252(g) strips federal courts of 27 jurisdiction to enjoin a noncitizen’s removal pending the BIA’s adjudication of the noncitizen’s 1 the Attorney General’s “discretion to decide whether to execute a removal order includes the 2 discretion to decide when to do it.” Id. at 777. 3 Accordingly, Vo’s motion is DENIED to the extent he seeks to enjoin his removal to 4 Vietnam. 5 B. Vo has Not Shown a Likelihood of Success on the Merits of his Claims 6 To the extent Vo seeks to compel the BIA to adjudicate his motion to reopen by March 9, 7 2026, Vo must satisfy the Winter factors by showing that (1) he is likely to prevail on his claims 8 that the BIA has unreasonably delayed in adjudicating his motion to reopen; (2) he is likely to 9 suffer irreparable harm in the absence of a TRO; (3) the balance of equities tips in his favor; and 10 (4) a TRO is in the public interest. See Winter, 555 U.S. at 20. 11 “The first factor under Winter is the most important – likely success on the merits.” 12 Garcia, 786 F.3d at 740. Vo’s burden here is “doubly demanding” because he seeks a mandatory 13 injunction requiring the BIA to act by a specified date. Id. In order to obtain the requested 14 mandatory injunctive relief, Vo must show not only that he is “likely to succeed” on the merits of 15 his claims, but that the law and facts “clearly favor” his position. Id. When a plaintiff fails to 16 make this showing, a court need not consider the remaining three Winter factors. See id. 17 Vo’s petition contains two claims, the first brought under the Administrative Procedure 18 Act (“APA”), 5 U.S.C. § 701 et seq., and the second brought under the Mandamus Act, 28 U.S.C. 19 § 1361. See Pet. ¶¶ 47-58. Under the APA, a district court has jurisdiction to “compel agency 20 action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), and under the Mandamus 21 Act a district court may “compel an officer or employee of the United States or any agency thereof 22 to perform a duty owed to the plaintiff,” 28 U.S.C. § 1361. When, as here, claims under the APA 23 and the Mandamus Act are based on the same assertion of unreasonable agency delay, the two 24 claims may be treated together because they seek essentially the same relief. See Agua Caliente 25 Tribe of Cupeno Indians of Pala Rsrv. v. Sweeney, 932 F.3d 1207, 1216 (9th Cir. 2019). Such 26 claims are evaluated under the six-factor test set forth in Telecommunications Research & Action 27 Center v. F.C.C. (“TRAC”), 750 F.2d 70, 79-80 (D.C. Cir. 1984) (the “TRAC factors”). See id. at 1 Vo’s motion for a TRO does not mention the TRAC factors. The Court nonetheless 2 considers whether Vo’s arguments entitle him to relief under these factors. 3 The TRAC factors are:

4 (1) the time agencies take to make decisions must be governed by a “rule of reason”[;] (2) where Congress has provided a timetable or other indication of the 5 speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason [;] (3) delays that might 6 be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake [;] (4) the court should consider the effect of 7 expediting delayed action on agency activities of a higher or competing priority[;] (5) the court should also take into account the nature and extent of the interests 8 prejudiced by the delay[;] and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably 9 delayed.” 10 Brower, 257 F.3d at 1068 (citation omitted); see also TRAC, 750 F.2d at 80. 11 1. First TRAC Factor: Rule of Reason 12 Under the first factor, applying a “rule of reason” to the asserted governmental delay, the 13 Court considers “whether there is any rhyme or reason for the Government’s delay – in other 14 words, whether the agency’s response time . . . is governed by an identifiable rationale.” Poursohi 15 v. Blinken, No. 21-CV-01960-TSH, 2021 WL 5331446, at *4 (N.D. Cal. Nov. 16, 2021) 16 (quotation marks and citation omitted). This is the most important factor in the analysis. See 17 NRDC v. United States EPA, 956 F.3d 1134, 1139 (9th Cir. 2020). Here, less than a week elapsed 18 between the completion of briefing on Vo’s motion to reopen and his filing of the present motion 19 for TRO. Although Vo has established an emergency situation – removal to Vietnam scheduled 20 for March 15, 2026 – he has not cited any case suggesting that the BIA’s failure to act within a 21 matter of days was unreasonable. At the hearing, Vo’s counsel handed up to the Court excerpts of 22 the BIA’s internal practice manual, showing that the BIA has authority to expedite a motion to 23 reopen when removal is imminent. Counsel conceded, however, that the decision to expedite falls 24 within the BIA’s complete discretion. Nothing in the manual requires the BIA to act on a motion 25 to reopen within days or weeks. 26 The first TRAC factor favors the Government. 27 2. Second TRAC Factor: Congressional Timetable 1 regulations offer guidance indicating that the BIA generally should dispose of matters within 90 2 days of completion of the record when the case is assigned to a single Board member and within 3 180 if the case is assigned to a three-member panel. See 8 C.F.R. § 1003.1(e)(8). The BIA has 4 discretion to act faster in certain circumstances. See id. However, nothing in the applicable 5 regulations suggests that the BIA has an obligation to act on the shortened time frame urged by Vo 6 here. Vo directs the Court’s attention to a new regulation intended to provide for faster review of 7 BIA proceedings, which will take effect on March 9, 2026. See Appellate Procedures for the 8 Board of Immigration Appeals, 91 Fed. Reg. 5267 (Feb. 6, 2026). The new regulation will apply 9 only prospectively. See id. Accordingly, Vo’s reliance on the new regulation is misplaced. 10 The second TRAC factor favors the Government. 11 3. Third and Fifth TRAC Factors: Nature of Interests 12 “The third and fifth factors overlap, requiring the court to consider whether human health 13 and welfare are at stake, and the nature and extent of the interests prejudiced by the delay.” 14 Poursohi, 2021 WL 5331446, at *9. “Merely stating that a delay will negatively impact the life of 15 the applicant and put the lives of his family members on hold” is insufficient.” Khushnood v. 16 United States Citizenship & Immigr. Servs., No. CV 21-2166 (FYP), 2022 WL 407152, at *4 17 (D.D.C. Feb. 10, 2022) (internal quotation marks and citation omitted). Even so, because it is 18 clear that the BIA’s asserted delay in adjudicating Vo’s motion to reopen profoundly affects his 19 health and welfare, the Court finds that these factors favor him. 20 The third and fifth TRAC factors favor Vo. 21 4. Fourth TRAC Factor: Effect of Expediting Delayed Action 22 “The fourth TRAC factor requires the Court to consider the effect of expediting 23 adjudication of plaintiffs’ applications on agency action of a higher or competing priority.” Jain v. 24 Renaud, No. 21-CV-03115-VKD, 2021 WL 2458356, at *6 (N.D. Cal. June 16, 2021) (internal 25 quotation marks and citation omitted). “Most courts have found that the fourth TRAC factor 26 weighs heavily in the agency’s favor when a judicial order putting plaintiffs at the head of the line 27 would simply move all others back one space and produce no net gain.” Id. (collecting cases). ] Court agrees that this is the case. 2 The fourth TRAC factor favors the Government. 3 5. Sixth TRAC Factor: Impropriety 4 The sixth TRAC factor requires the Court to consider any impropriety on the part of the 5 Government. No impropriety appears on this record. 6 The sixth TRAC factor favors the Government. 7 6. Conclusion 8 The first TRAC factor, considered to be the most important, favors the Government rather 9 || than Vo. A majority of the other TRAC factors favor the Government as well. Vo therefore has 10 || failed to show that he is likely to succeed on the merits of his claims. Because Vo has failed to 11 satisfy the first Winter factor, the Court need not and does not consider the remaining Winter 12 factors. See Garcia, 786 F.3d at 740. 13 Accordingly, Vo’s motion is DENIED to the extent he seeks to compel the BIA to 14 || adjudicate his motion to reopen by March 9, 2026. 15 || IV. ORDER a 16 (1) The motion for a TRO is DENIED; and 17 (2) This order terminates ECF 2. 18 19 Dated: March 6, 2026

TH LABSON FREEMAN 21 United States District Judge 22 23 24 25 26 27 28