Tran v. Bondi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TUAN VAN TRAN, Case No.: 25-cv-2334-JES-MSB

12 Petitioner, ORDER: 13 v. (1) GRANTING TEMPORARY 14 KRISTI NOEM, SECRETARY OF THE RESTRAINING ORDER; and DEPARTMENT OF HOMELAND 15 SECURITY; PAMELA BONDI, (2) SETTING BRIEFING 16 ATTORNEY GENERAL; TODD SCHEDULE AND HEARING FOR LYONS, ACTING DIRECTOR OF 17 PETITION FOR WRIT OF HABEAS IMMIGRATION AND CUSTOMS CORPUS 18 ENFORECEMENT; JESUS ROCHA,

ACTING FIELD OFFICE DIRECTOR, 19 SAN DIEGO FIELD OFFICE, [ECF No. 8] 20 CHRISTOPHER LAROSE, WARDEN OF OTAY MESA DETENTION 21 CENTER, 22 Respondents. 23

24 Before the Court is Petitioner’s Motion for a Temporary Restraining Order (“TRO”). 25 ECF No. 8. Petitioner filed the original Petition for Writ of Habeas Corpus on September 26 8, 2025, and his subsequent application for a TRO on September 22, 2025. ECF Nos. 1, 8. 27 28 1 Petitioner filed an Amended Petition on September 23, 2025. ECF No. 10. Respondents 2 filed their response on September 24, 2025. ECF No. 13. 3 On September 26, 2025, the Court held a hearing on the Petitioner’s Application for 4 a TRO and his Amended Petition. ECF No. 14. For the reasons set forth below, the Court 5 GRANTS in part and DENIES in part Petitioner’s Application for a TRO. The Court 6 ORDERS that Petitioner be released from custody under the terms and conditions of his 7 prior Supervised Release. 8 Finding need for further briefing from both parties on emerging issues of law and 9 fact, the Court does not rule on Petitioner’s Petition for Writ of Habeas Corpus at this time. 10 The Court ORDERS a subsequent hearing on Petitioner’s Petition for Writ of Habeas 11 Corpus for October 14, 2025. Respondents shall submit supplemental briefing by October 12 3, 2025. Petitioner may file an optional traverse by October 10, 2025. The Court also 13 ORDERS that Petitioner not be removed to a country other than Vietnam prior to the 14 hearing on October 14, 2025, to preserve jurisdiction in this case. 15 I. BACKGROUND 16 Petitioner is a Vietnamese citizen who came to the United States with his family in 17 1980. ECF No. 10 at 2. He was admitted as a lawful permanent resident on July 23, 1980. 18 ECF No. 13 at 2. At the age of 18, he was convicted of murder during a robbery, and served 19 a substantial sentence. ECF No. 10 at 2. He was placed in removal proceedings after his 20 incarceration as a result of his conviction, and was ordered removed on June 20, 2017. ECF 21 No. 10 at 2, 3. 22 The government has not yet effectuated Petitioner’s removal due to Vietnam’s 23 policy of not accepting pre-1995 Vietnamese immigrants for deportation. ECF No. 10 at 3. 24 Petitioner was detained for about 9 months during initial efforts to remove him. Id. 25 Petitioner cooperated with ICE in its attempts to remove him, including applying for a 26 travel document and meeting with the Vietnamese consulate. Id. The Vietnamese consulate 27 interviewed Petitioner and his family, and found that he had no family remaining in 28 Vietnam. Id. Vietnam subsequently refused to accept Petitioner for deportation. Id. 1 Petitioner was released from ICE custody in 2018 after filing a petition for writ of 2 habeas corpus. Id. He remained on release for 7 years, attended all check in appointments, 3 and married a U.S. citizen who he supports through her health challenges. ECF No. 10 at 4 3, 4. 5 On September 2, 2025, ICE arrested Petitioner at his home. ECF No. 10 at 4. 6 Petitioner states that the arresting agents told him he had always checked in and they hadn’t 7 had any problems with him, but they had been ordered to arrest him anyway. Id. 8 The parties dispute the likelihood of Petitioner’s removal to Vietnam, and whether 9 the government is likely to remove him to a third country. Petitioner states that Respondent 10 is likely to remove him to a third country and not Vietnam because the Vietnamese 11 consulate made a previous case-specific finding that it would not accept his removal. ECF 12 No. 13 at 7-8. Respondents state that they have recently effectuated the removal of more 13 Vietnamese citizens, and that they expect to have proper documentation to remove 14 Petitioner to Vietnam in the near future. ECF No. 10 at 2. 15 II. LEGAL STANDARD 16 The legal standard for issuing a TRO is essentially identical to the standard for 17 issuing a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 18 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an “extraordinary remedy 19 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 20 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). 21 Generally, a plaintiff seeking a preliminary injunction must show: (1) the plaintiff is 22 likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in the 23 absence of preliminary relief; (3) the balance of equities tips in favor of the plaintiff; and 24 (4) an injunction is in the public interest. Id. at 20. “A ‘plaintiff [must] make a showing on 25 all four prongs’ to obtain a preliminary injunction.” A Woman’s Friend Pregnancy Res. 26 Clinic v. Becerra, 901 F.3d 1166, 1167 (9th Cir. 2018) (quoting Alliance for the Wild 27 Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). 28 1 The Ninth Circuit also has a “serious questions” test, “a ‘sliding scale’ variant of the 2 Winter test.” Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, 98 F.4th 1180, 1190 3 (9th Cir. 2024) (quoting Alliance for the Wild Rockies, 865 F.3d at 1217). The serious 4 questions test dictates that a plaintiff may still prevail in obtaining a TRO even if they can 5 only show that there are “‘serious questions going to the merits’ – a lesser showing than 6 likelihood of success on the merits – […] if the ‘balance of hardships tips sharply in the 7 plaintiff’s favor.’” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 8 2013) (quoting Alliance for the Wild Rockies, 632 F.3d at 1135). Thus, under the serious 9 questions test, a preliminary injunction can be granted if there are (1) serious questions 10 going to the merits, (2) a likelihood of irreparable injury to the plaintiff, (3) a balance of 11 hardships that tips sharply towards the plaintiff, and (4) the injunction is in the public 12 interest. Flathead-Lolo-Bitterroot Citizen Task Force, 98 F.4th at 1190 (quoting Alliance 13 for the Wild Rockies, 632 F.3d at 1135). The party moving for the TRO has the burden of 14 persuasion. Hill v. McDonough, 547 U.S. 573, 584 (2006). 15 III. DISCUSSION 16 A. Jurisdiction 17 As a threshold matter, the Court finds that it has jurisdiction to hear the underlying 18 Petition for Writ of Habeas Corpus and the present application for a TRO. Respondents 19 argue that Petitioner’s claims are barred by 8 U.S.C. § 1252(g). ECF No. 13 at 3. Section 20 1252(g) grants the Attorney General the power to “commence proceedings, adjudicate 21 cases, and execute removal orders” against aliens, and forbids judicial review of “any cause 22 or claim by or on behalf of any alien arising from” such decisions. 8 U.S.C. § 1252(g). In 23 interpreting “arising under” in § 1252(g), the Supreme Court has cautioned against 24 “expansive interpretations” that would cause “staggering results” like rendering prolonged 25 detention claims unreviewable. Jennings v. Rodriguez, 583 U.S. 281, 294 (2018); Reno v. 26 American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482-483 (1999). 27 Here, Petitioner’s claims challenge the constitutionality of his detention, not the core 28 proceedings involved in his removal. ECF No. 10 at 2. Respondents assert that the Court 1 does not have jurisdiction to hear these claims because they stem from the Attorney 2 General’s decision to execute a removal order against him. ECF No. 13 at 4. The Court 3 finds this interpretation of § 1252(g) inconsistent with Jennings v. Rodriguez and the 4 history of judicial review of the detention of noncitizens under 28 U.S.C. § 2241. 538 U.S. 5 at 294; see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001) (finding the duration of 6 immigration detention reviewable under § 2241); Rodriguez Diaz v. Garland, 53 F.4th 7 1189, 1209 (9th Cir. 2022) (finding that the court would have jurisdiction under § 2241 to 8 consider errors of law in immigration detention, including due process violations); 9 Hernandez v. Session, 872 F.3d 976, 986 (9th Cir. 2017) (finding that the court had 10 jurisdiction to hear constitutional claims about immigration detention under § 2241 despite 11 the government characterizing the challenge as unreviewable). As other courts in this 12 district have found in similar matters, the Court has jurisdiction to hear Petitioner’s claims 13 that his detention is unlawful under 28 U.S.C. § 2241 and to rule on this application for a 14 TRO. See Alegria Palma v. LaRose, 25-cv-1942-BJC-MMP, ECF No. 14 (S.D. Cal. Aug. 15 11, 2025); Mendez Los Santos v. LaRose, 25-cv-2216-TWR-MSB, ECF No. 14 (S.D. Cal. 16 Sept. 4, 2025) (granting petition by minute order); Rokhifirooz v. LaRose, No. 25-cv-2053- 17 RSH-VET, 2025 WL 2646165 (S.D. Cal Sept. 15, 2025). 18 B. Temporary Restraining Order 19 Petitioner makes three arguments in his application for a TRO: (1) that he must be 20 returned to supervised release because Respondents failed to provide procedural due 21 process in revoking that release; (2) that the Court should prevent Respondents from 22 removing Petitioner to a country other than Vietnam pending this case to preserve 23 jurisdiction over a contested issue; and (3) that the Court should find Petitioner’s continued 24 detention is unconstitutional due to the duration of his prior detention and the unlikeliness 25 of his actual removal. ECF No. 8 at 2. The Court GRANTS the TRO on the first two bases, 26 but DENIES it on the third. The Court will hear further briefing on Petitioner’s third claim 27 as it relates to his underlying habeas petition prior to the hearing on his petition on October 28 14, 2025. 1 The Winter factors weigh in favor of granting a TRO ordering Petitioner’s return to 2 his prior supervised release status on due process grounds. See Winter, 555 U.S. at 20. 3 First, Petitioner has a significant likelihood of success on the merits in his claim that he 4 was deprived of a liberty interest without due process. “The essence of due process is the 5 requirement that ‘a person in jeopardy of a serious loss [be given] notice of the case against 6 him and the opportunity to meet it.” Mathews v. Eldridge, 424 U.S. 319, 348 (1976) 7 (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171-72 (Frankfurter, J., 8 concurring). When the government grants an alien supervised release into the country, it 9 creates a liberty interest intimately tied to freedom from imprisonment. Alegria Palma v. 10 LaRose, 25-cv-1942-BJC-MMP, ECF No. 14 (S.D. Cal. Aug. 11, 2025) (finding that 11 “continued freedom after release on own recognizance” was a core liberty interest). The 12 government may not subsequently deprive an alien of that liberty interest without due 13 process, meaning notice and an opportunity to be heard and, in DHS’s own practices, a 14 showing of some individualized circumstances relating to the alien that justify the 15 deprivation. Ying Fong v. Ashcroft, 317 F.Supp.2d 398, 403 (S.D.N.Y. 2004) (internal 16 quotations and citations omitted); Matter of Sugay, 17 I. & N. Dec. 637, 640 (BIA 1981). 17 Here, Petitioner was previously granted supervised release and met all the conditions 18 of his release. ECF No. 8 at 2. Respondents do not state any individualized change in 19 circumstances regarding Petitioner’s supervised released sufficient to meet basic principles 20 of due process. Nor did they provide him with notice and an opportunity to be heard 21 regarding the deprivation of his supervised release. Thus, Petitioner has a significant 22 likelihood of success in his claim that he was deprived of a liberty interest without adequate 23 due process protections in violation of the Due Process Clause. Regarding the second 24 Winter factor, Petitioner is likely to be irrevocably harmed by his continued detention 25 without due process because of the hardships on his household during his detention. ECF 26 No. 8 at 4. The balance of equities weigh in favor of granting a TRO because Respondents 27 are not unduly prejudiced by the Court requiring them to comport with due process before 28 detaining Petitioner. Finally, a TRO is in the public interest because the public benefits 1 from the government being held to its burden of constitutionally adequate notice and 2 opportunity to be heard before depriving individuals of their liberty. 3 The Winter factors also weigh in favor of ordering that Petitioner not be removed to 4 a third country until the Court adjudicates the related due process claims in Petitioner’s 5 underlying habeas petition. See Winter, 555 U.S. at 20. Petitioner has raised “serious 6 questions going to the merits” regarding the likelihood of his removal to a third country 7 based on Respondents’ own policies. See Shell Offshore, Inc., 709 F.3d at 1291; ECF No. 8 10 at 6. Respondents argue that Petitioner’s claim regarding third country removal is 9 unjusticiable because Petitioner has not provided evidence that Respondents intend to 10 remove him to a third country. ECF No. 13 at 3. However, Petitioner provides persuasive 11 evidence that Respondents may not be able to remove him to Vietnam, and that 12 Respondents have a practice of removing individuals who cannot be returned to their 13 country of origin to third countries without notice. ECF No. 10 at 6. Petitioner would be 14 irreparably harmed by removal to a third country while this action is pending because the 15 court would lose jurisdiction to hear his due process claims. The balance of the equities 16 weigh in favor of granting a TRO here because the TRO only prevents Petitioner’s removal 17 to a third country during the short period while this action is adjudicated. Further, 18 Respondents state that they intend to remove Petitioner to Vietnam (ECF No. 13 at 3), 19 which they still may effectuate during the pendency of this action if they obtain the proper 20 travel documents. Finally, a TRO blocking Petitioner’s removal to a third country while 21 this action is adjudicated is in the public interest because the public benefits from 22 adjudication of constitutional claims in emerging areas such as this on the merits. 23 At this stage, Petitioner is not entitled to a TRO enjoining his detention based on its 24 duration because he has not shown a sufficient likelihood of success on the merits as to that 25 claim. See ECF No. 8 at 8. Under Zadvydas v. Davis, the government must show some 26 likelihood that they will be able to effectuate removal if a person has been detained for 27 more than six months following a final order of removal. 533 U.S. at 701. In total, 28 Petitioner has been detained for longer than the presumptively reasonable period of six 1 months following a final removal order. Id.; ECF No. 8 at 9. Petitioner also asserts that 2 removal to Vietnam is unlikely due to a prior case-specific refusal to accept his removal 3 by the Vietnamese consulate. ECF No. 8 at 2. However, Respondents state that, due to 4 political developments, they are now likely to obtain travel documents to Vietnam for 5 Petitioner in the near future. ECF No. 13 at 2. Due to these developments, the Court does 6 not find sufficient basis to grant a TRO enjoining Petitioner’s detention based on Zadvydas 7 at this time. However, the Court will hear further briefing from each of the parties on the 8 Zadyvdas issue and the likelihood of Petitioner’s removal to Vietnam prior to the merit 9 hearing on the underlying Petition for Writ of Habeas Corpus. 10 IV. CONCLUSION 11 For the reasons explained above, the Court GRANTS in part and DENIES in part 12 Petitioner’s application for a TRO. Court hereby ORDERS as follows: 13 1. Respondents are hereby ORDERED to release Petitioner from detention and restore 14 his conditions of supervised release prior to detention, with no additional conditions 15 imposed; 16 2. Respondents are ENJOINED from removing Petitioner to a country other than 17 Vietnam prior to the Court’s ruling on the merits of his underlying Petition for Writ 18 of Habeas Corpus; 19 3. The Court’s September 22, 2025, stay of Petitioner’s removal is LIFTED as to 20 Vietnam, such that Petitioner may be removed to Vietnam during the pendency of 21 this action; 22 4. The Court ORDERS a hearing on the remaining issues in this matter on October 23 14, 2025, at 10:00 a.m. in Courtroom 4B; 24 // 25 // 26 // 27 // 28 // 1 5. Respondents SHALL submit supplemental briefing by October 3, 2025; and 2 6. Petitioner MAY file an optional traverse by October 10, 2025. 3 IT IS SO ORDERED. 4 5 || Dated: September 29, 2025 * yoo Ae 4. 6 Honorable James E. Simmons Jr. 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28