1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 SOUKSAVATH PHAKEOKOTH, Case No.: 3:25-cv-02817-RBM-SBC

10 Petitioner, ORDER: 11 v. (1) GRANTING MOTION FOR 12 KRISTI NOEM, Secretary of the Department TEMPORARY RESTRAINING of Homeland Security, et al., 13 ORDER [Doc. 3]; AND Respondents. 14 (2) SETTING HEARING ON THE 15 HABEAS PETITION FOR NOVEMBER 10, 2025 AT 9:00A.M 16 17 18 Pending before the Court is Petitioner Souksavath Phakeokoth’s (“Petitioner”) 19 Memorandum of Law in Support of Temporary Restraining Order (“TRO Motion”). (Doc. 20 3.) On October 21, 2025, Petitioner filed a Petition for Writ of Habeas Corpus (“Petition”) 21 pursuant to

, claiming he is being detained by United States Immigration 22 and Customs Enforcement (“ICE”) in violation of “his statutory and regulatory rights, 23 Zadvydas v. Davis,

(2001), and the Fifth Amendment.” (Doc. 1 at 2, 8–17.)1 24 Respondents filed a Response in Opposition to Petitioner’s Habeas Petition and 25 Application for Temporary Restraining Order (“Response”) (Doc. 9), and Petitioner filed 26 27 28 1 1 a Traverse in Support of Petition for Writ of Habeas Corpus (“Reply”) (Doc. 10). On 2 November 7, 2025, Respondents filed a Notice Regarding Imminent Removal and Motion 3 to Lift Order Enjoining Respondents from Moving Petitioner Outside the District (“Motion 4 to Lift Order”). (Doc. 11.) For the reasons set forth below, the TRO Motion is 5 GRANTED. Additionally, the Court SETS a hearing on the Petition (Doc. 1) for 6 November 10, 2025, at 9:00 a.m. in Courtroom 5B of the Edward J. Schwartz United 7 States Courthouse. 8 I. BACKGROUND 9 Petitioner, a native and citizen of Laos, first entered the United States with his family 10 in 1987 as a refugee and became a permanent resident soon after. (Doc. 1 at 2.)2 In or 11 around 2003, Petitioner was convicted of a crime and was consequently placed in removal 12 proceedings. (Doc. 1, Ex. A, Declaration of Souksavath Phakeokoth [“Phakeokoth Decl.”] 13 at 27). On September 13, 2004, Petitioner was ordered removed from the United States to 14 Laos. (Doc. 9 at 2 (citing Doc. 9-1, Declaration of Alexis Boada [“Boada Decl.”] ¶¶ 3– 15 4).) On December 13, 2004, after three months of detention, Petitioner was released on an 16 order of supervision (the “Order of Supervision”) because ICE “was unable to obtain a 17 travel document to Laos.” (Doc. 9 at 2; Doc. 1 at 2.) 18 Between 2004 and 2011, Petitioner violated the conditions of his release and was 19 convicted of vandalism and several DUIs. (Phakeokoth Decl. [Doc. 1, Ex. A] at 27.) On 20 March 15, 2006, Petitioner was re-detained by ICE and his Order of Supervision was 21 revoked. (Boada Decl. [Doc. 9-1] ¶ 5.) Petitioner was released from ICE custody on an 22 Order of Supervision about two weeks later. (Id.) On May 4, 2009, Petitioner was arrested 23 by the San Diego Police Department and transferred into ICE custody on May 8, 2009. 24 (Id.) That same day, Petitioner was released from ICE custody on an Order of Supervision. 25 (Id.) He was placed on Alternatives to Detention (“ATD”) as a condition of his Order of 26 27 28 2 1 Supervision on December 3, 2009. (Id.) On April 26, 2011, after he removed his GPS 2 ankle monitor, Petitioner’s Order of Supervision was revoked, and he was detained by ICE 3 for another three months. (Id.) He was subsequently released July 22, 2011, on an Order 4 of Supervision with ATD. (Id.) On September 27, 2011, Petitioner was transferred from 5 criminal custody to ICE custody and released that same day again on an Order of 6 Supervision with ATD. (Id.) 7 Petitioner remained on supervision for the next 21 years. (Doc. 1 at 2.) On August 8 29, 2025, while attending his most recent annual check-in, Petitioner was re-detained by 9 ICE. (Doc. 1 at 2.) Petitioner was arrested pursuant to a Warrant for Arrest of Alien issued 10 on DHS Form I-200. (See Doc. 9-2, Ex. 1 at 2.) That same day, Petitioner received a Form 11 I-205, Warrant of Removal/Deportation (see Doc. 9-2, Ex. 2 at 4–5) as well as a Form I- 12 294, Warning to Alien Ordered Removed or Deported (see Doc. 9-2, Ex. 3 at 7). (Doc. 9 13 at 2.) Petitioner was also provided with a Notice of Revocation of Release stating the 14 following: 15 This letter is to inform you that your order of supervision has been revoked, and you will be detained in the custody of U.S. Immigration and Customs 16 Enforcement (ICE) at this time. This decision has been made based on a 17 review of your official alien file and a determination that there are changed circumstances in your case. 18

19 Based on the above, and pursuant to

/

, you are to remain in ICE custody at this time. 20

21 You are advised that you must demonstrate that you are making reasonable efforts to comply with the order of removal and that you are cooperating with 22 ICE’s efforts to remove you by taking whatever actions ICE requests to affect 23 your removal. You are also advised that any willful failure or refusal on your part to make timely application in good faith for travel or other documents 24 necessary for your departure, or any conspiracy or actions to prevent your 25 removal or obstruct the issuance of a travel document, may subject you to criminal prosecution under

(a). 26 27 (Doc. 9-2, Ex. 4 at 9–10.) Petitioner has been diagnosed with schizophrenia and has 28 not received his psychiatric mediations since his arrest. (Phakeokoth Decl. [Doc. 1, Ex. A] 1 at 27.) Petitioner currently remains in ICE custody. 2 II. LEGAL STANDARD 3 The legal standard for issuing a TRO is essentially identical to the standard for 4 issuing a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 5

, 839 n.7 (9th Cir. 2001). In the Ninth Circuit, “[a] party seeking a preliminary 6 injunction must meet one of two variants of the same standard.” All. for the Wild Rockies 7 v. Pena,

(9th Cir. 2017). Under the Winter standard, a party is entitled 8 to a preliminary injunction if he demonstrates that: (1) he is likely to succeed on the merits; 9 (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the 10 balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter 11 v. Nat. Res. Def. Council, Inc.,

(2008). A party must make a showing on all 12 four prongs. See A Woman’s Friend Pregnancy Res. Clinic v. Becerra,

, 13 1167 (9th Cir. 2018). 14 “[I]f a [petitioner] can only show that there are serious questions going to the 15 merits—a lesser showing than likelihood of success on the merits—then a preliminary 16 injunction may still issue if the balance of hardships tips sharply in the [petitioner’s] favor, 17 and the other two Winter factors are satisfied.” All. for the Wild Rockies,

18 (cleaned up). 19 III. DISCUSSION 20 Petitioner argues that his detention unlawfully violates: (1) the regulations set forth 21 in

(l) and § 241.13(i) and thus due process; (2) the Supreme Court’s 22 decision in Zadvydas v. Davis,

(2001); and (3) third-country removal statutes. 23 (Doc. 1 at 1–2, 8–19.) Petitioner also claims ICE may not remove him to a third country 24 “without providing an opportunity to assert fear of persecution or torture before an 25 immigration judge.” (Id. at 3, 20–21.) 26 In opposition, Respondents argue that Petitioner’s claims are jurisdictionally barred 27 under

(g) and the Court lacks jurisdiction over Petitioner’s third-country 28 removal claim because “there is no controversy concerning third-country resettlement for 1 this Court to resolve.” (Doc. 9 at 3–5.) Respondents also argue that Petitioner’s ongoing 2 re-detention falls within the six-month detention period presumptively reasonable under 3 Zadvydas and that Petitioner was afforded the process set forth in the applicable 4 regulations. (Id. at 6–11.) As this Court has an obligation to “determine that [it has] 5 jurisdiction before proceeding to the merits” of any case, it will first address Respondents’ 6 jurisdictional arguments. Lance v. Coffman,

(2007). 7 A. Jurisdiction 8 Respondents argue the Court lacks jurisdiction to hear this Petition under 8 U.S.C. 9 § 1252(g). (Doc. 9 at 4–5.) This statutory bar against judicial review precludes the Court 10 from exercising jurisdiction over the Attorney General’s decision to “commence 11 proceedings, adjudicate cases, or execute removal orders against any [noncitizen].” 12 8 U.S.C § 1252(g). The Supreme Court has narrowly interpreted § 1252(g) as applying 13 “only to [those] three discrete actions that the Attorney General may take.” Reno v. Am.- 14 Arab Anti-Discrimination Comm.,

(1999) (emphasis omitted) (quoting 15

(g)). 16 Here, Petitioner does not challenge the legitimacy of his September 2004 order of 17 removal. Rather, Petitioner challenges the legality of his present detention which does not 18 require judicial review of ICE’s discretionary authority to decide “when” or “whether” to 19 execute a removal order. See Rauda v. Jennings,

, 777 (9th Cir. 2022) (quoting 20 Tazu v. Att’y Gen. United States,

(3d Cir. 2020)). Accordingly, as other 21 courts in this District have found in similar cases, this Court has jurisdiction to consider 22 Petitioner’s claims. See Zadvydas,

(confirming

confers 23 jurisdiction on the federal courts to hear unlawful detention claims brought by immigration 24 detainees who have been ordered removed); Sanchez v. LaRose, Case No.: 25-cv-2396- 25 JES-MMP,

, at *2 (S.D. Cal. Sept. 26, 2025); Rokhfirooz v. LaRose et 26 al., Case No.: 25-cv-2053-RSH-VET,

(S.D. Cal. Sept. 15, 2025); Palma 27 v. LaRose, Case No. 3:25-cv-1942-BJC-MMP (S.D. Cal. Aug. 11, 2025), ECF No. 14. 28 1 B. Winter Factors 2 1. Likelihood of Success on Claims for Regulatory Violations 3 Petitioner claims that ICE failed to comply with its own governing regulations 4 because ICE did not: (1) provide him with sufficient notice of the reasons for revocation 5 of his release; (2) conduct a prompt interview to respond to those reasons or afford 6 Petitioner an opportunity to be heard; and (3) demonstrate the changed circumstances that 7 render his removal significantly likely in the reasonably foreseeable future. (Doc. 1 at 10; 8 Doc. 10 at 2–3, 6–8.) Respondents argue the Notice of Revocation of Release provided 9 Petitioner with sufficient notice and that he was provided with an informal interview. (Doc. 10 9 at 10 (citing Doc. 9-2, Ex. 4 at 9; Doc. 9-2, Ex. 5 at 12–13).) 11 The detention, and release of noncitizens who have been ordered removed is 12 governed by

. This statute directs the Attorney General of the United States 13 to effect the removal of a noncitizen from this country “within a period of 90 days,” also 14 known as the “removal period.”

(a)(1)(A). It also authorizes the detention 15 of a noncitizen during the removal period. § 1231(a)(2). “If the [noncitizen] does not leave 16 or is not removed within the removal period, the [noncitizen], pending removal, shall be 17 subject to supervision under regulations prescribed by the Attorney General.” 18 § 1231(a)(3); see Zadvydas, 533 U.S. at 699–700 (explaining a noncitizen must be released 19 after the removal period expires and “removal is no longer reasonably foreseeable” because 20 “continued detention is no longer authorized by statute”). Those regulations, primarily 8

and § 241.13, govern the release and revocation of release of noncitizens 22 who are subject to a final order of removal. Both regulations were intended “to provide 23 due process protections to [noncitizens] following the removal period as they are 24 considered for continued detention, release, and then possible revocation of release.” 25 Santamaria Orellana v. Baker, Civil Action No. 25-1788-TDC,

, at *6 26 (D. Md. Aug. 25, 2025). 27 Under

, release may be revoked when “appropriate to enforce a 28 removal order or to commence removal proceedings against [a noncitizen].” 8 C.F.R. 1 § 241.4(l)(2)(iii). If the noncitizen was released pursuant to § 241.13, release may be 2 revoked under this section if, “on account of changed circumstances, the Service 3 determines that there is a significant likelihood that the [noncitizen] may be removed in the 4 reasonably foreseeable future.” § 241.13(i)(2). Both regulations provide that upon 5 revocation of release, the noncitizen “will be notified of the reasons for revocation of his 6 or her release,” and will be given “an initial informal interview promptly after his or her 7 return to Service custody to afford the alien an opportunity to respond to the reasons for 8 revocation stated in the notification.”

(l)(1); § 241.13(i)(3). 9 It is well-established that government agencies are required to follow their own 10 regulations. United States ex rel. Accardi v. Shaughnessy,

(1954); 11 United States v. Ramos,

(9th Cir. 2010) (“It is a well-known maxim that 12 agencies must comply with their own regulations.”) (quoting Ramon–Sepulveda v. INS, 13

(9th Cir. 1984)). “A court’s duty to enforce an agency regulation is 14 most evident when compliance with the regulation is mandated by the Constitution or 15 federal law.” Sanchez v. Barr,

(9th Cir. 2019) (Paez, J., concurring) 16 (quoting United States v. Caceres,

(1979)). Numerous district courts, 17 including courts in the Ninth Circuit, “have determined that where ICE fails to follow its 18 own regulations in revoking release, the detention is unlawful and the petitioner’s release 19 must be ordered.” Rokhfirooz v. Larose, Case No.: 25-cv-2053-RSH-VET,

2646165, at *4 (S.D. Cal. Sept. 15, 2025) (granting a habeas petition and ordering the 21 petitioner’s release where the Government failed to comply with § 241.13); see Hoac v. 22 Becerra, No. 2:25-cv-01740-DC-JDP,

, at *4 (E.D. Cal. July 16, 2025) 23 (finding petitioner was likely to succeed on his unlawful re-detention claim because “there 24 is no indication that an informal interview was provided”); Rombot, 296 F. Supp. 3d at 25 387–88 (holding that ICE’s failures to follow the revocation procedures in § 241.4 rendered 26 the petitioner’s detention unlawful); Ceesay, 781 F. Supp. 3d at 164 (“[B]ecause ICE did 27 not follow its own regulations in deciding to redetain [the petitioner], his due process rights 28 were violated, and he is entitled to release.”). 1 While it is unclear from the record which regulation controls, the Court nonetheless 2 finds that Respondents have not shown ICE complied with any of the required procedures 3 under both regulations and thus violated Petitioner’s due process rights. 4 First, based on the record before the Court, ICE provided a Notice of Revocation of 5 Release to Petitioner on the day of his arrest. The Notice of Revocation of Release 6 indicates there was “a determination that there are changed circumstances in [Petitioner’s] 7 case” and that he is to remain in ICE custody “pursuant to

/ 8 C.F.R. 8 § 241.13.” (Doc. 9-2, Ex. 4 at 9.) But “[s]imply to say that circumstances had changed or 9 there was a significant likelihood of removal in the foreseeable future is not enough.” 10 Sarail A. v. Bondi, --- F. Supp. 3d ---,

, at *10 (D. Minn. 2025). 11 “Petitioner must be told what circumstances had changed or why there was now a 12 significant likelihood of removal in order to meaningfully respond to the reasons and 13 submit evidence in opposition.”

Indeed, ICE’s conclusory explanations for revoking 14 Petitioner’s release “did not offer him adequate notice of the basis for the revocation 15 decision such that he could meaningfully respond at the post-detention informal interview.” 16 Diaz v. Wofford, Case No. 1:25-CV-01079 JLT EPG,

, at *8 (E.D. Cal. 17 Sept. 5, 2025) (citing Memphis Light, Gas & Water Div. v. Craft,

(1978) 18 (“The purpose of notice under the Due Process Clause is to apprise the affected individual 19 of, and permit adequate preparation for, an impending hearing.”)); see McSweeney v. 20 Warden of Otay Mesa Det. Facility, Case No.: 3:25-cv-02488-RBM-DEB,

2998376, at *6 (S.D. Cal. Oct. 24, 2025) (granting habeas petition because “Petitioner 22 could not have meaningfully responded to the proffered reasons for revocation when he 23 had not yet even been informed of those reasons”). 24 Nor was Petitioner informed of the reasons for the revocation of his release during 25 the “informal interview” ICE allegedly conducted the day of Petitioner’s arrest. During 26 this informal interview, the interviewing ICE officer informed Petitioner that they “have 27 an administrative warrant for [his] arrest, and [they] are revoking [his] Order of 28 Supervision (OSUP) due to the changing priorities of the agency.” (Doc. 9-2, Ex. 5 at 12.) 1 Petitioner was also told he could “continue to fight [his] case while in custody” and that he 2 would be able to make a phone call “[a]t a later time.” (Id.) However, Petitioner was not 3 allowed the opportunity to be heard at any point during this interview. See 8 C.F.R. 4 § 241.4(l)(1) (“Upon revocation, [the noncitizen] will be afforded an initial informal 5 interview promptly after his or her return to Service custody to afford the alien an 6 opportunity to respond to the reasons for revocation stated in the notification.”) (emphasis 7 added); § 241.13(i)(3) (“The [noncitizen] may submit any evidence or information that he 8 or she believes shows there is no significant likelihood he or she be removed in the 9 reasonably foreseeable future, or that he or she has not violated the order of supervision.”). 10 Finally, to the extent Petitioner was subject to § 241.13, the revocation of his release 11 violated those regulations as well. Respondents claim the ERO received a travel document 12 for Petitioner’s removal to Laos on October 10, 2025. (Boada Decl. ¶ 9.) Petitioner argues 13 the “‘changed circumstances’ did not exist . . . at the time ICE revoked [Petitioner’s] 14 supervision” because the Government obtained travel documents six weeks after Petitioner 15 was re-detained. (Doc. 10 at 7.) Tellingly, Respondents provide no evidence of an actual 16 determination of changed circumstances since ICE’s numerous failed attempts to remove 17 Petitioner in the last two decades that would justify the revocation of Petitioner’s release. 18 Respondents also fail to specify whether ICE requested travel documents for Petitioner 19 before or after his arrest. Thus, ICE’s revocation of Petitioner’s release does not appear to 20 have been “on account of” changed circumstances. See Truong v. Noem, Case No.: 25-cv- 21 2597-JES-MMP,

, at *4 (S.D. Cal. Oct. 22, 2025) (declining to make a 22 finding that the Government’s acquisition of travel documents “substantiates a change in 23 circumstances for purposes of

(i)(2)” where the “Government’s 24 Response, Warrant, and Notice is void of any claim that it relied on

to 25 re-detain Petitioner.”). 26 Accordingly, under either of the potential bases for revocation, the Court finds 27 Petitioner is likely to success on his claim that ICE failed to comply with its own 28 regulations thereby violating his due process rights. 1 2. Irreparable Harm 2 Under the second Winter factor, the Court considers whether Petitioner is “likely to 3 suffer irreparable harm in the absence of [injunctive] relief.” Winter,

. 4 Respondents suggest that being subjected to unjustified detention does not constitute 5 irreparable injury. (Doc. 9 at 11.) The Court disagrees. The Due Process Clause prohibits 6 deprivations of life, liberty, and property without due process of law. U.S. Const. amend. 7 V. Due process rights extend to noncitizens present in the United States, including those 8 subject to final removal orders. Zadvydas, 533 U.S. at 693–94. “Freedom from 9 imprisonment—from government custody, detention, or other forms of physical restraint— 10 lies at the heart of the liberty” that the Fifth Amendment Due Process Clause protects. Id.; 11 Hernandez v. Sessions,

(9th Cir. 2017) (recognizing “irreparable harms 12 imposed on anyone subject to immigration detention.”). 13 Given the Court’s finding that Petitioner is likely to succeed on at least one of his 14 claims, Petitioner has established an immediate threatened injury. Therefore, the second 15 Winter factor favors Petitioner. 16 3. Balance of Equities and Public Interest 17 When the Government is a party to an action, the third and fourth Winter factors— 18 the balance of the equities and the public interest—merge. Nken v. Holder,

, 19 435 (2009). Respondents argue that “the public interest in the prompt execution of removal 20 orders is significant” and, along with the balance of equities, therefore weighs against 21 granting equitable relief. (Doc. 9 at 12.) However, as previously discussed, the Court 22 found Petitioner has a likelihood of success on at least one claim which implicates 23 violations of Petitioner’s due process rights. As such, “it would not be equitable or in the 24 public’s interest to allow . . . [violation of] the requirements of federal law, especially when 25 there are no adequate remedies available.” Ariz. Dream Act Coal. v. Brewer,

(9th Cir. 2014) (quoting Valle Del Sol Inc. v. Whiting,

, 1029 27 (9th Cir. 2013)). “On the contrary, the public interest and the balance of the equities favor 28 ‘prevent[ing] the violation of a party’s constitutional rights.’”

(alteration in original) 1 || (quoting Melendres v. Arpaio,

(9th Cir. 2012)). Accordingly, the third 2 fourth Winter factors support injunctive relief. See Tiznado-Reyna v. Kane, Case No. 3 12-1159-PHX-SRB (SPL),

, at *4 (D. Ariz. Dec. 13, 2012) 4 ||(‘Ultimately the balance of the relative equities ‘may depend to a large extent upon the 5 || determination of the [movant’s] prospects of success””’). 6 The TRO is therefore GRANTED.’ In light of the disposition herein, the Court 7 || declines to address the remaining grounds in the TRO for seeking release. 8 IV. CONCLUSION 9 For the foregoing reasons, the TRO (Doc. 3) is GRANTED. The Court FURTHER 10 ||} ORDERS as follows: 11 1. Respondents shall not re-detain Petitioner for a period of 14 days from entry of this 12 Order. 13 2. The Court will hear argument on whether the Petition should be granted on 14 November 10, 2025 at 9:00 a.m. in Courtroom 5B of the Edward J. Schwartz United 15 States Courthouse. 16 IT IS SO ORDERED. 17 |} DATE: November 7, 2025 I Leet Berrnuels, Moats D 19 ON. RUTH BERMGDEZ! MONTENEGRO UNITED STATES DISTRICT JUDGE 20 21 22 || 24 As Respondents have not argued that complying with the TRO will be costly (see Docs. 25 ||9, 11), the Court DECLINES to set bond. See Johnson v. Couturier,

(9th Cir. 2009) (“Despite the seemingly mandatory language, ‘Rule 65(c) invests the district court with discretion as to the amount of security required, if any [and] may 27 || dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the defendant from enjoining his or her conduct.’”’) (quoting Jorgensen v. Cassiday,

(9th Cir. 2003). 11