Viengxai Sihaket v. Warden of the Golden State Annex Ice Detention Facility, et al.

• Court: District Court, E.D. California
• Decided: May 8, 2026
• Docket: 1:26-cv-00891
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VIENGXAI SIHAKET, Case No. 1:26-cv-00891-JLT-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT PETITION FOR WRIT OF HABEAS 13 v. CORPUS1 14 WARDEN OF THE GOLDEN STATE (Doc. 1) ANNEX ICE DETENTION FACILITY, et 15 al., FIVE (5) DAY OBJECTION PERIOD 16 Respondents. 17 18 Petitioner Viengxai Sihaket, an immigrant detainee in U.S. Immigration Customs and 19 Enforcement (“ICE”) custody at the Golden State Annex Detention Facility in McFarland, 20 California, initiated this action by filing a pro se petition for writ of habeas corpus under 28 21 U.S.C. § 2241, docketed on February 2, 2026. (Doc. 1, “Petition”). To the extent discernable, the 22 Petition raises the following claims for relief: (1) his continued detention violates the due process 23 clause of the Fifth Amendment because there is not a significant likelihood he will be removed in 24 the reasonably foreseeable future; (2) any attempt by Respondents to remove him to a third 25 country would be in violation of the Fifth Amendment due process clause, the Eighth 26 Amendment, 8 U.S.C. § 1231, the Convention Against Torture, and the Administrative Procedure 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2025). 1 Act; and (3) his continued detention violates the Fifth Amendment due process clause, 8 C.F.R. § 2 241.13, and the Administrative Procedures Act. (Id. at 13-18). As relief, the Petition seeks, inter 3 alia, immediate release from custody, and an Order that Respondents may not remove or seek to 4 remove Petitioner to a third country without notice and meaningful opportunity to respond in 5 compliance with the statute and due process. (Id. at 19). 6 In response, Respondents argue (1) Petitioner’s order of supervisions was revoked after 7 ICE determined he could be removed in the reasonably foreseeable future in accordance with 8 8 C.F.R. § 241.13, including a notice of revocation and informal interview “to respond to the 9 reasons for revocation stated in the notification,” (2) Petitioner has failed to prove he will not be 10 removed in the reasonably foreseeable future, and (3) Petitioner lacks standing to challenge a 11 third-country removal because ICE is not currently seeking to remove him to a third country. 12 (Doc. 11). On March 27, 2026, Petitioner filed a reply arguing (1) Respondents have not met 13 their burden to show a significant likelihood that he may be removed in the reasonably 14 foreseeable future, (2) his re-detention without a pre-deprivation hearing is a violation of his due 15 process rights under the Fifth Amendment, and (3) ICE did not properly follow its own 16 regulations under 8 C.F.R. § 241.13 in revoking his order of release. (Doc. 14 at 4-10). 17 The undersigned recommends the district court grant the Petition as to Claim One for the 18 reasons set forth below.2 19 I. BACKGROUND 20 Petitioner is a citizen of Laos who was admitted to the United States as a refugee in June

21 2 Considering the Court’s conclusion that Respondents failure to comply with § 241.13 resulted in a 22 violation of Petitioner’s due process rights (claim one), and recommendation that Petitioner be immediately released, the Court need not address in detail Petitioner’s additional due process and statutory 23 claims for relief, which are unavailing.

24 Specifically, to the extent Petitioner asserts a due process violation on the absence of an initial informal interview under 8 C.F.R. § 241.13(i)(3), this claim is unsupported, as the record reflects Petitioner was 25 afforded an initial interview. (Doc. 11-3 at 3). Further, although Petitioner includes a claim for relief concerning third-country removal, Petitioner does not allege that such removal is at issue in this case. 26 (Doc. 1 at 15-16). Respondents represent that no third-country removal is being pursued, and Petitioner fails to establish Article III standing for such a claim. (Doc. 11 at 6-7 (citing Lujan v. Defs. of Wildlife, 27 504 U.S. 555, 560-61 (1992) (to establish Article III standing, a party must allege an injury that is “concrete and particularized,” “actual or imminent,” and likely to be “redressed by a favorable” judicial 28 decision)). 1 1980. (Doc. 11-1 at 2; Doc. 14 at 3 (noting his mother fled Laos into Thailand when petitioner 2 was three years old)). In 1993, Petitioner was convicted of vehicle theft in violation of California 3 Vehicle Code § 10851, and in 1995 he was convicted of shooting at an inhabited dwelling in 4 violation of California Penal Code § 246 and sentenced to five years in prison. (Doc. 11-1 at 3). 5 On July 22, 1997, Petitioner was ordered removed from the United States to Laos pursuant to a 6 final order of removal. (Doc. 1 at 2; Doc. 11-1 at 3, 15) 7 On November 18, 1997, the Embassy of the Lao People’s Democratic Republic 8 determined it is “authorized to deliver a travel document only to a person who is holder of a 9 passport issued by the government of Lao P.D.R. Therefore, [Petitioner] cannot be granted a 10 travel document to return to Laos.” (Doc. 11-2 at 3). On October 15, 1998, Petitioner was 11 released on an Order of Supervision. (Id. at 2). 12 On January 5, 2026, Petitioner’s Order of Supervision was revoked, an administrative 13 warrant was issued, and Petitioner was arrested during his check-in at the Fresno ERO Sub-office. 14 (Doc. 11-1 at 2-3; Doc. 11-3). On the same date, Petitioner was provided with a Notice of 15 Revocation of Release indicating that his Order of Supervision has been revoked after a 16 determination of “changed circumstances” in his case and informing Petitioner he will be held in 17 ICE custody “as there is a significant likelihood of removal in the reasonable future”; and 18 Petitioner was given an informal interview to afford him the opportunity to respond to the reasons 19 for the revocation of his Order of Supervision. (Doc. 11-3). 20 On January 8, 2026, ICE requested a travel document from the government of Laos. 21 (Doc. No 11-4 at 2, ¶ 9). Petitioner is currently detained at the Golden State Annex Detention 22 Facility. (Doc. 1 at 2). On April 17, 2026, Petitioner filed an Order of the Immigration Judge 23 (“IJ”) dated March 25, 2026 granting a stay of removal effective until the determination of his 24 motion to reopen or motion to reconsider. (Doc. 16). The Court’s sua sponte search of the 25 Executive Office for Immigration Review (“EOIR”) website indicates Petitioner’s motion to 26 reopen IJ jurisdiction was denied on April 7, 2026.3 27 3 See EOIR Automated Case Information, https://acis.eoir.justice.gov/en/caseInformation/ (last visited 28 May 6, 2026). The Court may take judicial notice of information on official government websites. 1 II. APPLICABLE LAW AND ANALYSIS 2 A district court may grant a writ of habeas corpus when the petitioner “is in custody in 3 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). As 4 pertinent here, “district courts retain jurisdiction under 28 U.S.C. § 2241 to consider habeas 5 challenges to immigration detention that are sufficiently independent of the merits of [a] removal 6 order.” Lopez-Marroquin v. Barr, 955 F.3d 759, 759 (9th Cir. 2020) (citing Singh v. Holder, 638 7 F.3d 1196, 1211–12 (9th Cir. 2011)); see also Jennings v. Rodriguez, 538 U.S. 281, 294 (2018). 8 A. Statutory and Regulatory Framework 9 The detention, release, and removal of noncitizens who are subject to a final order of 10 removal is governed by 8 U.S.C. § 1231. Pursuant to § 1231(a), “when an alien is ordered 11 removed, the Attorney General shall remove the alien from the United States within a period of 12 90 days (in this section referred to as the ‘removal period’) …. If the alien does not leave or is not 13 removed within the removal period, the alien, pending removal, shall be subject to supervision 14 under regulations prescribed by the Attorney General.” § 1231(a)(1), (3); see also § 1231(a)(6) 15 (certain inadmissible or criminal aliens, or those who have been determined by the Attorney 16 General to be a risk to the community or unlikely to comply with the order of removal, may be 17 detained beyond the removal period under certain conditions, and “if released, shall be subject to 18 the terms of supervision in paragraph (3).”). Pursuant to this mandate, regulations set forth in 8 19 C.F.R. § 241.13 and § 241.4 govern the release on supervision, and the revocation of release, of 20 aliens subject to a final order of removal. 21 Title 8 C.F.R. § 241.13 reflects the Supreme Court’s decision in Zadvydas v. Davis, 533 22 U.S. 678 (2001). In Zadvydas, the Supreme Court addressed a challenge to prolonged detention 23 under 8 U.S.C. § 1231(a)(6) by noncitizens who “had been ordered removed by the government 24 and all administrative and judicial review was exhausted, but their removal could not be 25 effectuated because their designated countries either refused to accept them or the United States 26

27 McClure v. Ives, 2010 WL 716193, at *3 (E.D. Cal. Feb. 26, 2010); see also United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice that Bureau of Prisons’ inmate locator available to 28 the public). 1 lacked a repatriation treaty with the receiving country.” Prieto-Romero, 534 F.3d at 1062 (citing 2 Zadvydas, 533 U.S. at 684-86). The Court held that detention under § 1231(a)(6) is limited to a 3 presumptively reasonable period of six months, after which a noncitizen was entitled to release if 4 “it has been determined that there is no significant likelihood of removal in the reasonably 5 foreseeable future.” Id. at 701. Accordingly, under § 241.13(i), release may be revoked if an 6 alien violates the conditions of their release, or “if, on account of changed circumstances, the 7 Service determines that there is a significant likelihood that the alien may be removed in the 8 reasonably foreseeable future.” § 241.13(i) (1)-(2). “Where, as here, petitioner was issued a final 9 order of removal, detained, and subsequently released and then re-detained, ‘it is [ICE’s] burden 10 to show a significant likelihood that the alien may be removed” pursuant to 8 C.F.R. § 241.13. 11 Martinez v. Bondi, 2025 WL 3650477, at *3 (E.D. Cal. Dec. 16, 2025) (collecting cases); Huang 12 v. Albarran, 2026 WL 279888, at *4 (E.D. Cal. Feb. 3, 2026); see also Vu v. Noem, 2025 WL 13 3114341, at *7 (E.D. Cal. Nov. 6, 2025) (“The phrase ‘significant likelihood,’ as used in the 14 regulation, requires something more than a mere possibility.”). Moreover, the regulations require 15 ICE to notify the alien “of the reasons for revocation of his or her release” and to 16 conduct an initial informal interview promptly after his or her return to Service custody to afford the alien an opportunity to respond to 17 the reasons for revocation stated in the notification. The alien may submit any evidence or information that he or she believes shows 18 there is no significant likelihood he or she be removed in the reasonably foreseeable future, or that he or she has not violated the 19 order of supervision. The revocation custody review will include an evaluation of any contested facts relevant to the revocation and a 20 determination whether the facts as determined warrant revocation and further denial of release. 21 22 8 C.F.R. § 241.13(i)(3). 23 B. Analysis 24 In his first ground for relief, Petitioner argues his re-detention and continued detention 25 violates his due process rights because Respondents have not met their burden to show there is a 26 significant likelihood he will be removed in the reasonably foreseeable future. (Doc. 1 at 13-14; 27 Doc. 14 at 4-7). In response, Respondents argue “Petitioner has not met his burden of providing 28 good reason to believe that there is no significant likelihood of his removal in the reasonably 1 foreseeable future” either at his informal interview or in the Petition. (Doc. 11 at 5). 2 Respondents additionally contend that Petitioner will be removed in the reasonably foreseeable 3 future because in June 2025 Laos began issuing travel documents to Laotian citizens ordered 4 removed from the United States. (Id. at 5-6 (citing news articles documenting removal flights to 5 Laos in 2025, including those with criminal histories); Doc. 11-4 at 2, ¶ 12). 6 It is undisputed that at the time of his re-detention Petitioner was on release under an 7 Order of Supervision dated October 15, 1998. (Doc. 11-2 at 2). This type of release is made only 8 after determination that “the alien would not pose a danger to the public or a risk of flight.” 8 9 C.F.R. § 241.13(b)(1). Thus, under § 241.13(i), Petitioner’s release may be revoked if an alien 10 violates the conditions of their release, or “if, on account of changed circumstances, the Service 11 determines that there is a significant likelihood that the alien may be removed in the reasonably 12 foreseeable future.” § 241.13(i)(2). Respondents offer no argument or evidence that Petitioner 13 violated the conditions of his release. As to “changed circumstances,” the “Notice of Revocation 14 of Release” (“Notice”) includes the conclusory statement that the decision to revoke Petitioner’s 15 Order of Supervision was revoked “based on a review of your official alien file and a 16 determination that there are changed circumstances in your case. ICE has determined that you 17 can be expeditiously removed from the United States pursuant to the outstanding order of 18 removal against you.” (Doc. 11-3). While not included in the Notice, Respondents argue in their 19 response that the relevant “changed circumstance” evincing a significant likelihood Petitioner will 20 be removed in the reasonably foreseeable future is the “evolving relationship between Laos and 21 the United States,” namely, that the Laotian government started issuing travel documents to its 22 citizens ordered removed from the United States starting in June 2025. (Doc. 11 at 5-6). In 23 support of this argument, Respondents submit the declaration of a deportation officer who works 24 on “the docket for Laotian detainees” that removals to Laos are “currently common,” she has 25 requested “many” travel documents for Laotian citizens from the government of Laos and none of 26 the requests have been denied, and she has not received any requests for more information about a 27 Laotian subject due to a travel document not being issued. (Doc. 11-4 at 2, ¶ 12). 28 As an initial matter, Respondents erroneously maintains it is Petitioner’s burden to 1 provide “good reason to believe” there is no significant likelihood of his removal in the 2 reasonably foreseeable future. (Doc. 11 at 5 (citing Zadvydas, 533 U.S. at 701)). As discussed 3 supra, it is well-settled that where, as here, a Petitioner is issued a final order of removal, 4 detained, released on an Order of Supervision, and then re-detained, it is ICE’s burden to show 5 that on account of changed circumstances there is a significant likelihood that the alien may be 6 removed pursuant to 8 C.F.R. § 241.13. See Martinez, 2025 WL 3650477, at *3 (collecting 7 cases); Ghiassi v. Murray, 2026 WL 622184, at *4 (E.D. Cal. Mar. 5, 2026) (citing Escalante v. 8 Noem, 2025 WL 2206113, at *3 (E.D. Tex. Aug. 2, 2025) (“[i]mposing the burden of proof on the 9 alien each time he is re-detained would lead to an unjust result and serious due process 10 implications.”). Thus, the Court must determine if Respondents met their burden to show a 11 significant likelihood that Petitioner may be removed to Laos. 12 Here, the only “changed circumstance” identified by Respondent is that Laos started 13 issuing travel documents to its citizens ordered removed from the United States starting in June 14 2025. (Doc. 11 at 5-6). In support of this argument, Respondent cites four news articles 15 documenting “removal flights” to Laos since June 2025, including aliens with criminal history. 16 (Id. at 6). However, courts have consistently held that “citing a general change in a country’s 17 policy of accepting removable aliens is insufficient to prove a material change of circumstances.” 18 Vo v. Albarran, 2026 WL 177796, (E.D. Cal. Jan. 22, 2026); Huang, 2026 WL 279888, at *7 19 (noting courts have rejected similar evidence as insufficient); Bandith v. Noem, 2026 WL 657728, 20 at *3 (E.D. Cal. Mar. 9, 2026) (noting the government’s argument that this type of determination 21 can be supported by “evidence showing a general change in a country’s policy” has been 22 “repeatedly rejected”). This is particularly relevant here, as citing a general policy does not 23 account for Petitioner’s individual circumstances including a criminal history, the fact that he fled 24 Laos into Thailand as a young child, and evidence travel documents could not be issued back in 25 1997 at least in part because Petitioner did not have a passport issued by the government of Laos. 26 (Doc. 14 at 3; Doc. 11-2 at 3). Liu v. Carter, 2025 WL 1696526, at *1-2 (D. Kan. June 17, 2025) 27 (“a bare assertion of an increase [in removals to China] did not make petitioner’s removal any 28 more likely without addressing the particular obstacles to the many past failed attempts to remove 1 him.”). 2 Respondents also submit the declaration of deportation officer Mayra Gallenkamp 3 attesting that travel documents were requested on January 8, 2026 and the government has not 4 denied any requests since October 2025 (Doc. 11-4 at 2); however, Respondents offer no 5 evidence regarding the total number of requests for travel documentation, and the percentage of 6 requests granted under circumstances akin to Petitioner such that a change in policy might 7 demonstrate changed circumstances. See Phouvieng K. v. Andrews, 2025 WL 3265504, at *6 8 (E.D. Cal. Nov. 24, 2025) (finding the same deportation officer’s declaration does not establish a 9 significant likelihood of petitioners removal to Laos in the reasonably foreseeable future as “the 10 statement that ‘ICE has successfully removed aliens with final orders of removal to Laos’ does 11 not establish the frequency or likelihood of any such removals to Laos or identify any 12 considerations the Government of Laos might take into account when deciding whether to issue a 13 travel document for petitioner.”); see also Hoac v. Becerra, 2025 WL 1993771, at *4 (E.D. Cal. 14 July 16, 2025) (citing Liu, 2025 1696526, at *2); Huang, 2026 WL 279888, at *7. “Accordingly, 15 respondents do not show that the initiation of the travel document process alone constitutes a 16 changed circumstance such that there is not a significant likelihood that [P]etitioner will be 17 removed in the reasonably foreseeable future.” Vue v. Warden of the Golden State Annex 18 Detention Facility, 2026 WL 482673, at *3 (E.D. Cal. Feb. 20, 2026). 19 Finally, as argued by Petitioner, “Respondents do not explain why ICE has been unable to 20 remove Petitioner for the past 28 years, but it appears to be because ICE was unable to obtain 21 travel document for him or his removal [was] otherwise not practicable.” (Doc. 14 at 5). The 22 history of previous efforts to remove an alien is a factor ICE is directed to consider in determining 23 whether there is a significant likelihood of removing them in the reasonably foreseeable future. 8 24 C.F.R. § 241.13(f); see Phouvieng K., 2025 WL 3265504, at *6 (noting respondents do not 25 explain why they have been unable to remove petitioner to Laos for the past thirteen years); 26 Ghiassi, 2026 WL 622184, at *6 (finding past difficulties in obtaining travel documents suggest 27 that removal is not reasonably foreseeable); Hoac, 2025 WL 1993771, at *4 (E.D. Cal. July16, 28 2025) (“Respondents have not provided any details about why a travel document could not be 1 obtained in the past, nor have they attempted to show why obtaining a travel document is more 2 likely this time around.”). Again, Respondents only offer the general argument that Laos agreed 3 to accept citizens ordered removed from the United States in June 2025; however, as noted above, 4 they do not offer evidence specifically as to why Petitioner’s Order of Supervision was revoked in 5 January 2026, nor do they address evidence that their previous request for travel documents was 6 denied, at least in part, based on Petitioner’s lack of a valid passport. Moreover, as of the date of 7 this order, and despite their attestation that travel documents were requested from Laos on 8 January 8, 2026, ICE has not obtained a travel document for Petitioner despite having detained 9 him over four months ago on January 5, 2026. “An undue delay in removal for an individual 10 alien beyond the typical removal period would naturally suggest that removal is unlikely.” Yan- 11 Ling X. v. Lyons, 813 F. Supp. 3d 1157, 1165 (E.D. Cal. Nov. 7, 2025). 12 For the foregoing reasons, Respondents fail to demonstrate changed circumstances such 13 that there is a significant likelihood that Petitioner will be removed to Laos in the reasonably 14 foreseeable future. See § 241.13(i). “While the government has significant discretion to enforce 15 immigration laws, it must do so consistent with the requirements of its own regulations and the 16 Due Process Clause.” Huang, 2026 WL 279888, at *7. “ICE, like any agency, ‘has a duty to 17 follow its own federal regulations. As here, where an immigration regulation is promulgated to 18 protect a fundamental right derived from the Constitution or a federal statute … and [ICE] fails to 19 adhere to it, the challenged [action] is invalid.” Nguyen v. Hyde, 2025 WL 1725791, at *5 (D. 20 Mass. June 20, 2025) (quoting Rombot v. Souza, 296 F. Supp. 3d 383, 388 (D. Mass. 2017); see 21 also Yan-Ling X., 813 F. Supp. 3d 1157 at 1166. Because Respondents failed to comply with 22 their own regulations in making the determination to revoke his release, Petitioner was re- 23 detained in violation of his due process rights. See, e.g., Vang v. Warden of Golden State Annex 24 Detention Facility, 2026 WL 694111, at *6 (E.D. Cal. Mar. 12, 2026); Ghiassi, 2026 WL 622184, 25 at *5-6. 26 Accordingly, it is hereby RECOMMENDED: 27 The Petition for Writ of Habeas Corpus (Doc. 1) be GRANTED as follows: 28 1. Respondents be directed to IMMEDIATELY release Petitioner from DHS custody on ] the same conditions as his most recent Order of Supervision. 2 2. Respondents be ENJOINED from re-detaining Petitioner unless there are material 3 changed circumstances and a neutral decisionmaker determines there is a significant 4 likelihood of petitioner’s removal in the reasonably foreseeable future, or Respondents 5 demonstrate by clear and convincing evidence at a pre-deprivation bond hearing 6 before a neutral decisionmaker that Petitioner is a flight risk or danger to the 7 community such that his physical custody is legally justified. 8 NOTICE OF EXPEDITED OBJECTIONS 9 These Findings and Recommendations will be submitted to the United States District 10 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Given the 11 | urgency of a preliminary injunction, a party may file written objections with the Court 12 | within five (5) days of service of these Findings and Recommendations. /d.; Local Rule 13 | 304(b) (permitting court to set a different time). The document should be captioned, “Objections 14 | to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages. 15 | The Court will not consider exhibits attached to the Objections. To the extent a party wishes to 16 | refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF 17 | document and page number, when possible, or otherwise reference the exhibit with specificity. 18 | Any pages filed in excess of the fifteen (15) page limitation may be disregarded by the District 19 | Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 636(b)(I)(C). A 20 | party’s failure to file any objections within the specified time may result in the waiver of certain 21 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 22 | Dated: _ May 7, 2026 Wiha. Th. fareh Zackie 24 HELENA M. BARCH-KUCHTA 05 UNITED STATES MAGISTRATE JUDGE

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