1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHNNY AZZO, Case No.: 3:25-cv-03122-RBM-BJW

12 Petitioner, ORDER GRANTING PETITION 13 v. FOR WRIT OF HABEAS CORPUS

14 KRISTI NOEM, Secretary of the Department [Docs. 1, 3] of Homeland Security, et al., 15 Respondents. 16 17 18 19 Pending before the Court are Petitioner Johnny Azzo’s (“Petitioner”) Petition for 20 Writ of Habeas Corpus (“Petition”) (Doc. 1) pursuant to

and Motion and 21 Memorandum of Law in Support of Temporary Restraining Order (“TRO Motion”) (Doc. 22 3). The Petition and TRO Motion seek the same relief: Petitioner’s release from detention 23 and an order enjoining Respondents from removing Petitioner to a third country unless they 24 provide him with written notice and a meaningful opportunity to raise fear-based claims. 25 (Doc. 1 at 23–24; Doc. 3 at 2.) 1 For the reasons set forth below, the Petition is GRANTED. 26 27 28 1 I. BACKGROUND 2 A. Factual Background 3 Petitioner was born and raised in Lebanon. (Doc. 1 at 27 [Declaration of Johnny 4 Azzo (“Azzo Decl.”)] ¶ 1.) He entered the United States in 1985, “overstayed his visa, and 5 was later convicted of federal controlled substance offenses and sentenced to 60 months in 6 prison.” (Id.; Doc. 8-5 [Declaration of Hugo Lara Ramirez (“Ramirez Decl.”] ¶ 4.) On 7 August 3, 2004, an immigration judge ordered Petitioner removed to Lebanon but granted 8 him deferral of removal under the Convention Against Torture (“CAT”). (Ramirez Decl. 9 ¶ 5; Azzo Decl. ¶ 2.) Following Petitioner’s federal criminal incarceration, he was 10 transferred to immigration custody on May 1, 2007. (Ramirez Decl. ¶ 6.) About six and a 11 half months later, on November 20, 2007, Immigration and Customs Enforcement (“ICE”) 12 “released Petitioner on an Order of Supervision because it was unable to execute his 13 removal order.” (Id. ¶ 7; Doc. 1 at 5 (citing

Ex. C at 36–38).) Since being released, 14 Petitioner has checked in with ICE every year as required. (Azzo Decl. ¶ 4.) 15 On October 21, 2025,2 ICE arrested Petitioner at his required check-in appointment. 16 (Id. ¶ 5.) At the time, Petitioner was told that he “was being detained, that [ICE was] going 17 to try to deport [him] to a third country, and that [ICE was] going to review [his] case.” 18 (Id.) That day, Petitioner also received a Notice of Revocation of Release, which stated: 19 This decision has been made based on a review of your official alien file and a determination that there are changed circumstances in your case. ICE has 20 determined that there is a significant likelihood of removal in the reasonably 21 foreseeable future. ICE has determined that you can be removed from the United States pursuant to the outstanding order of removal against you. . . . 22 ICE has determined it is appropriate to enforce the removal order and remove 23 you to a third country.

24 25 26 2 Although there initially was a dispute regarding the date of Petitioner’s arrest, Petitioner 27 now “agrees with the government he was re-detained on October 21. The incorrect date [in the Petition] appears to have been a typographical error from counsel that both 28 1 (Doc. 1 at 5; Doc. 8-2 at 1.) 2 “On November 6, 2025, [ICE Enforcement and Removal Operations (“ERO”)] 3 contacted a Detention and Deportation Officer (DDO) at ERO Headquarters assigned to 4 Middle East and Europe region concerning third country removal in this case.” (Ramirez 5 Decl. ¶ 10.) As of November 21, 2025, “ERO Headquarters is still in the process of 6 identifying third countries that may be willing to accept Petitioner for removal.” (Id.) On 7 November 20, 2025, ICE interviewed Petitioner, and Petitioner made the following 8 statement: “I am not going to any other country. I was granted withholding of removal to 9 my country Lebanon.” (Id. ¶ 11 (quoting Doc. 8-4 at 1).) “ICE continues to diligently seek 10 to identify a third country for Petitioner’s removal and believes there is a significant 11 likelihood of removal to a third country in the reasonably foreseeable future.” (Ramirez 12 Decl. ¶ 13.) “Once a third country is identified, ICE will provide Petitioner with written 13 notice, and if Petitioner claims a fear of removal to the identified country, he will be 14 referred to an asylum officer for processing of the fear-based claims.” (Id. ¶ 14.) 15 B. Procedural Background 16 On November 12, 2025, Petitioner filed the Petition against Kristi Noem, Pamela 17 Bondi, Todd Lyons, Jesus Rocha, and Christopher LaRose (collectively, “Respondents”). 18 (Doc. 1.) The same day, Petitioner filed a Motion for Appointment of Counsel (Doc. 2) 19 and the TRO Motion (Doc. 3). On November 14, 2025, the Court granted the Motion for 20 Appointment of Counsel and ordered Respondents to show cause why the Petition and 21 accompanying TRO Motion should not be granted by filing a written response. (Doc. 4 at 22 2–4.) On November 21, 2025, Respondents filed their Response in Opposition to 23 Petitioner’s Habeas Petition and Application for Temporary Restraining Order 24 (“Response”). (Doc. 8.) On November 24, 2025, Petitioner filed his Traverse in Support 25 of Petition for Writ of Habeas Corpus and Reply in Support of Motion for Temporary 26 Restraining Order (“Reply”). (Doc. 9.) 27 / / / 28 / / / 1 II. LEGAL STANDARD 2 A writ of habeas corpus is “available to every individual detained within the United 3 States.” Hamdi v. Rumsfeld,

(2004) (citing U.S. Const., Art. I, § 9, cl. 2). 4 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 5 custody, and . . . the traditional function of the writ is to secure release from illegal 6 custody.” Preiser v. Rodriguez,

(1973). “Writs of habeas corpus may 7 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 8 judge within their respective jurisdictions.”

(a). The petitioner bears the 9 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 10 treaties of the United States.”

§ 2241(c)(3). 11 III. DISCUSSION 12 Petitioner argues that his detention unlawfully violates the regulations in 8 C.F.R. 13 § 241.4(l) and § 241.13(i) and the Supreme Court’s decision in Zadvydas v. Davis, 533

(2001). (Doc. 1 at 3–4, 10–17.) Petitioner also argues that due process and CAT 15 prohibit ICE from removing him to a third country “without providing an opportunity to 16 assert fear of persecution or torture before an immigration judge.” (Id. at 4, 19–23.) 17 Respondents argue that: (1) ICE “may remove Petitioner to a third country that will 18 accept Petitioner’s removal” because removal to other countries is “impracticable, 19 inadvisable, or impossible;” (2) detention is proper under Zadvydas because there is now a 20 significant likelihood of removal to a third country in the reasonably foreseeable future; 21 (3) ICE complied with the requirements of § 241.4(l) and § 241.13(i), but even if it did not 22 Petitioner has not established prejudice; and (4) ICE will provide Petitioner written notice 23 and refer him “to an asylum officer for processing of . . . fear-based claims” rather than 24 immediately deport him to a third country. (Doc. 8 at 2–8.) 25 The Court finds Respondents: (1) have not met their burden under Zadvydas; 26 (2) violated the regulations in §§ 241.4(l) and 241.13(i); and (3) must provide Petitioner 27 with adequate notice and an opportunity to be heard before removing him to a third country. 28 / / / 1 A. Zadvydas 2 The Supreme Court has recognized a six-month presumptively reasonable period of 3 detention after a noncitizen’s removal order becomes final. Zadvydas, 533 U.S. at 701. 4 “After this 6-month period, once the alien provides good reason to believe that there is no 5 significant likelihood of removal in the reasonably foreseeable future, the Government 6 must respond with evidence sufficient to rebut that showing.” Id. 7 1. Presumption of Reasonableness 8 The six-month presumptively reasonable period has passed for Petitioner. Courts in 9 the Ninth Circuit, and most courts across the country, calculate detention “cumulatively 10 based on all post-removal order detentions to determine whether Zadvydas’s presumption 11 of reasonableness is exceeded.” Phan v. Warden of Otay Mesa Det. Facility, Case No.: 12 25-cv-02369-AJB-BLM,

, at *3 (S.D. Cal. Nov. 10, 2025) (collecting 13 cases). Considering Petitioner was detained for about six months in 2007 (see Ramirez 14 Decl. ¶¶ 6–7) and one month (and counting) in 2025 (see Azzo Decl. ¶ 5), the Court finds 15 Petitioner’s current detention is no longer presumptively reasonable. 16 2. Good Reason to Believe 17 After the six-month period expires, Petitioner has the initial burden of showing 18 “good reason to believe that there is no significant likelihood of removal in the reasonably 19 foreseeable future.” Zadvydas, 533 U.S. at 701. “Good reason to believe does not place a 20 burden upon the detainee to demonstrate no reasonably foreseeable, significant likelihood 21 of removal or show that his detention is indefinite; it is something less than that.” Senor v. 22 Barr,

, 430 (W.D.N.Y. 2019) (cleaned up). However, Petitioner must 23 offer more than “conclusory statements suggesting that he will not” be removed. Andrade 24 v. Gonzalez,

(5th Cir. 2006); Quassani v. Killian, Case No. 2:17-cv- 25 01678-APG-PAL,

, at *2 (D. Nev. Aug. 4, 2017) (“question[ing] 26 whether petitioner can meet his initial burden” given that he “has offered nothing more 27 than conclusory statements with respect to the likelihood of his removal in the foreseeable 28 future”). Here, Petitioner has met his burden to show “good reason to believe.” He notes 1 that ICE has been unable to deport him over the last twenty years and that ICE has “yet to 2 even identify a third country to deport him to.” (Doc. 1 at 18 (emphasis in original).) The 3 burden thus shifts to Respondents to “respond with evidence sufficient to rebut that 4 showing.” Zadvydas, 533 U.S. at 701. 5 3. Significant Likelihood of Removal in the Reasonably Foreseeable Future 6 Respondents argue that they have sufficiently rebutted Petitioner’s showing. (Doc. 8 7 at 4–5.) They note that: (1) “recent developments in international relations between the 8 United States and several other countries have made probable ICE’s removal of immigrants 9 . . . that it previously was unable to remove to third countries;” (2) “ICE has worked 10 diligently to coordinate [Petitioner’s] removal” and, despite still being “in the process of 11 identifying countries that may be willing to accept Petitioner for removal, . . . believes there 12 is a significant likelihood of removal to a third country in the reasonably foreseeable 13 future;” and (3) “[e]vidence of progress, even slow progress, in negotiating a petitioner’s 14 repatriation will satisfy Zadvydas unless the petitioner’s detention grows unreasonably 15 lengthy.” (Id.) The Court disagrees. 16 Kamyab v. Bondi is instructive. Case No. C25-389RSL,

(W.D. 17 Wash. Oct. 14, 2025). There, the petitioner was born in Iran and ordered removed after 18 sustaining a criminal conviction.

. Because the travel document request to Iran 19 had been pending for over six months “and could remain pending for quite some time,” the 20 Government also submitted “third-country removal requests to Costa Rica, Panama, and 21 El Salvador.”

. Several months later, those requests to the third countries were still 22 unanswered.

In granting the petition for writ of habeas corpus, the court reasoned: 23 At most, the Government’s arguments and declarations here show there is at least some possibility that [the target country] will accept [the petitioner] at 24 some point. . . . That is not the same as a significant likelihood that he will be 25 accepted in the reasonably foreseeable future. . . . Courts in this circuit have regularly refused to find [the Government’s] burden met where [the 26 Government has] offered little more than generalizations regarding the 27 likelihood that removal will occur. See, e.g., Singh v. Gonzalez,

(W.D. Wash. 2006); Chun Yat Ma v. Asher, [No. C11-1797 28 1 MJP],

, at *4–5 [(W.D. Wash. Apr. 25, 2012)].

2 For example, in Singh v. Gonzalez, the court found that ICE had not met its 3 burden where it ‘merely assert[ed] that it has followed up on its request for travel documents’ but could not provide any substantive indication regarding 4 how or when it expect[ed] to obtain the necessary travel document . . . .’ 448 5 F. Supp. 2d at 1220. And in Chun Yat Ma v. Asher, the court considered an affidavit from an ICE official that included a statement that an individual’s 6 travel document would ‘likely’ be issued soon.

, at *4. 7 Yet, the court noted, a deportation officer could not give any ‘indication of when the issuance may occur.’ 8 9 Kamyab,

, at *4. 10 In addition, courts have held that respondents failed to meet their burden on facts 11 even more favorable to them than those present here. For example, in Phan v. Warden of 12 Otay Mesa Detention Facility, the respondents argued that they had rebutted the 13 petitioner’s showing because they had prepared a travel document request, translated it 14 completely, and submitted it to ICE headquarters.

, at *5. But the court 15 found the respondents failed to “proffer a substantive rebuttal” because the respondents 16 “concede[d] that the travel document request ha[d] yet to be submitted to Vietnam, 17 provide[d] no estimate for when it [would] be submitted, and provide[d] no estimate for 18 how long it [would] take for Vietnam to respond.” Id.; see also Lopez-Cacerez v. 19 McAleenan, Case No. 19-cv-1952-AJB-AGS,

, at *6 (S.D. Cal. June 9, 20 2020) (holding that “[g]eneral indications that U.S. agencies have been in discussions with 21 [the target country] regarding repatriation efforts do not indicate that those discussions will 22 result in the timely removal of Petitioner, as it is unclear whether those efforts will be 23 successful”) (citation omitted); Gilali v. Warden of McHenry Cnty. Jail, Case No. 19-CV- 24 837,

, at *5 (E.D. Wis. Oct. 15, 2019) (holding that although the 25 “respondent asserts that [the petitioner’s] travel document requests . . . remain pending and 26 ERO continues to follow up on the documents’ status, [] this is insufficient. It is merely 27 an assertion of good-faith efforts to secure removal; it does not make removal likely in the 28 reasonably foreseeable future.”). 1 Here, Respondents “contacted a Detention and Deportation Officer (DDO) at ERO 2 Headquarters assigned to Middle East and Europe region concerning third country removal 3 in this case.” (Ramirez Decl. ¶ 10.) ICE and ERO Headquarters are “still in the process 4 of identifying third countries that may be willing to accept Petitioner for removal.” (Id.) 5 “ICE continues to diligently seek to identify a third country for Petitioner’s removal and 6 believes there is a significant likelihood of removal to a third country in the reasonably 7 foreseeable future.” (Id. ¶ 13.) This is an even weaker evidentiary showing than in Kamyab 8 or Phan.3 Respondents have not even identified a third country to which they plan to 9 remove Petitioner, much less submitted a travel document or provided an estimate for how 10 long it would take this unidentified third country to respond. Because Respondents have 11 “offered little more than generalizations regarding the likelihood that removal will occur,” 12 Kamyab,

, at *4, the Court finds that they have not met their burden to 13 “respond with evidence sufficient to rebut” Petitioner’s showing. Zadvydas, 533 U.S. at 14 701. 15 B. Agency Regulations 16 Petitioner also challenges his detention as unlawful based on ICE’s decision to 17

18 19 3 The evidentiary showing here is also weaker than in the cases cited by Respondents in their Response. (See Doc. 8 at 5 (citing Marquez v. Wolf, Case No.: 20-cv-1769-WQH- 20 BLM,

(S.D. Cal. Oct. 13, 2020); Sereke v. DHS, 3:19-cv-01250-WQH- 21 AGS (S.D. Cal. Aug. 15, 2019), ECF No. 5).) In Marquez, the respondents “set forth evidence that demonstrates progress and the reasons for the delay in [the petitioner’s] 22 removal.”

, at *3. Specifically, they had obtained travel documents for 23 the petitioner and were ensuring the petitioner was medically cleared to board his flight to Peru.

In Sereke, the “ERO San Diego field office submitted a travel document (TD) 24 packet to the Embassy of Eritrea,” “confirmed that [the petitioner’s] travel document (TD) 25 is in process for renewal,” and “prepare[d] an itinerary for [the petitioner’s] removal from the United States via commercial airline.” 3:19-cv-01250-WQH-AGS, ECF No. 5 at *4. 26 These cases may support the proposition that the government need not “prearrange a 27 noncitizen’s removal or have a travel document in hand before detaining them” (Doc. 8 at 5), but they do not support Respondents’ position that mere generalizations, divorced from 28 1 revoke his release without providing the required prompt interview. (Doc. 1 at 2, 10–14; 2 Doc. 9 at 4–9.) Respondents argue that Petitioner’s interview, which occurred a month 3 after Petitioner was detained, was prompt because the delay was “necessary to afford 4 [Petitioner] a meaningful opportunity to prepare [his] challenge to the revocation.” (Doc. 5 8 at 6–7.)4 6 The detention and release of noncitizens who are subject to a final order of removal 7 are governed by

. Under that statute, “when [a noncitizen] is ordered 8 removed, the Attorney General shall remove the [noncitizen] from the United States within 9 a period of 90 days,” also known as the “removal period.” 8 U.S.C § 1231(a)(1)(A). “If 10 the [noncitizen] does not leave or is not removed within the removal period, the 11 [noncitizen], pending removal, shall be subject to supervision under regulations prescribed 12 by the Attorney General.” § 1231(a)(3). Those regulations, which govern release and 13 revocation of release of noncitizens subject to a final order of removal, are

14 and § 241.13. Under both regulations, “[u]pon revocation,” the noncitizen “will be notified 15 of the reasons for revocation of his or her release or parole” and will be given “an initial 16 informal interview promptly after his or her return to Service custody” to “respond to the 17 reasons for revocation stated in the notification.” § 241.4(l)(1); § 241.13(i)(3). 18 Petitioner was taken into ICE custody on October 21, 2025. (Touch Decl. ¶ 5; 19 Doc. 8-3 at 2.) Despite the requirement that Petitioner be afforded “an initial informal 20 interview promptly after his or her return to Service custody,” he was not interviewed until 21 November 20, 2025. (Doc. 8 at 7.) That month-long delay violated the promptness 22 requirement. See M.S.L. v. Bostock, Civ. No. 6:25-cv-01204-AA,

, 23 at *11 (D. Or. Aug. 21, 2025) (granting petition because an informal interview given 27 24 days after petitioner was taken into ICE custody “cannot reasonably be construed as . . . 25

26 27 4 In light of the Court’s finding that Respondents violated agency regulations by not providing a prompt interview, the Court declines to reach the Parties’ arguments regarding 28 1 prompt”); Sayvongsa v. Noem, Case No.: 3:25-cv-02867-AGS-DEB (S.D. Cal. Oct. 31, 2 2025), ECF No. 10 (granting petition where petitioner did not receive informal interview 3 for three weeks after being re-detained).5 Thus, ICE violated its own regulations by failing 4 to provide a prompt interview. 5 Respondents argue that even assuming ICE violated agency regulations, Petitioner 6 “has not established prejudice nor a constitutional violation.” (Doc. 8 at 7 (citing Brown 7 v. Holder,

, 1148–50 (9th Cir. 2014) (“[T]he mere failure of an agency to 8 follow its regulations is not a violation of due process.”); United States v. Tatoyan, 474

, 1178 (9th Cir. 2007) (“Compliance with . . . internal [customs] agency 10 regulations is not mandated by the Constitution.”).) 11 “[T]here are, for present purposes, two types of regulations: (1) those that protect 12 fundamental due process rights, and (2) [] those that do not.” United States v. Raya-Vaca, 13

(9th Cir. 2014), abrogated on other grounds by Dep’t of Homeland 14 Sec. v. Thuraissigiam,

(2020). “A violation of the first type of regulation . . . 15 implicates due process concerns even without a prejudice inquiry.”

(holding that where 16 “the regulation violation . . . constituted a denial of [the defendant’s] right to notice and an 17 opportunity to respond, no showing of prejudice [was] necessary to establish a due process 18 violation”). “There can be little argument that ICE’s requirement that noncitizens be 19 afforded an informal interview . . . derives from the fundamental constitutional guarantee 20 of due process.” Ceesay v. Kurzdofer,

, 165 n.26 (W.D.N.Y. 2025). 21 Accordingly, Respondents’ violation “implicates due process concerns even without a 22 prejudice inquiry.” Raya-Vaca,

. 23 But even if that were not the case, Petitioner suffered sufficient prejudice. In the 24 immigration context, “violation of a regulation does not invalidate a deportation 25

26 27 5 See Sayvongsa, Case No.: 3:25-cv-02867-AGS-DEB, ECF No. 8-1 [Declaration of Deportation Officer Jason Cole] ¶¶ 8, 11 (noting the petitioner was detained on 28 1 proceeding unless the regulation serves a purpose of benefit to the [noncitizen],” i.e., the 2 violation “prejudiced interests of the [noncitizen] which were protected by the regulation.” 3 United States v. Calderon-Medina,

(9th Cir. 1979). ICE’s failure to 4 comply with the requirements of § 241.4 and § 241.13 “prejudiced interests of [Petitioner] 5 which were protected by the regulation[s].” Id. Both § 241.4 and § 241.13 were intended 6 “to provide due process protections to [noncitizens] following the removal period as they 7 are considered for continued detention, release, and then possible revocation of release.” 8 Orellana v. Baker, Civil Action No. 25-1788-TDC,

, at *6 (D. Md. Aug. 9 25, 2025). ICE deprived Petitioner of these due process protections when it failed to 10 provide him with a prompt interview to respond to the reasons for revocation of his release. 11 “It is well established that the deprivation of constitutional rights unquestionably 12 constitutes irreparable injury.” Melendres v. Arpaio,

(9th Cir. 2012) 13 (quoting Elrod v. Burns,

(1976); see also Hernandez v. Sessions, 872

(9th Cir. 2017) (holding that “[u]nlawful detention” by immigration 15 officials constituted “irreparable harm”). Therefore, Petitioner was prejudiced by ICE’s 16 failure to comply with its own regulations. 17 Government agencies are required to follow their own regulations. United States ex 18 rel. Accardi v. Shaughnessy,

(1954); Confederated Tribes & Bands of 19 Yakima Indian Nation v. F.E.R.C.,

, 474 (9th Cir. 1984) (“It is a well-known 20 maxim that agencies must comply with their own regulations.”) The great weight of district 21 courts have “determined that where ICE fails to follow its own regulations in revoking 22 release, the detention is unlawful and the petitioner’s release must be ordered.” Rokhfirooz 23 v. LaRose, — F. Supp. 3d —,

, at *4 (S.D. Cal. Sept. 15, 2025); see, 24 e.g., K.E.O. v. Woosley, Civil Action No. 4:25-cv-74-RGJ,

, at *7 (W.D. 25 Ky. Sept. 4, 2025) (noting “courts across the country have ordered the release of 26 individuals” in ICE custody where ICE “violated their own regulations”); Grigorian v. 27 Bondi, CASE NO. 25-cv-22914-RAR,

, at *10 (S.D. Fla. Sept. 9, 2025) 28 (“The failure to provide [the petitioner] with an informal interview promptly after his 1 detention or to otherwise provide a meaningful opportunity to contest the reasons for 2 revocation violates both ICE’s own regulations and the Fifth Amendment Due Process 3 Clause. This compels [the petitioner’s] release.”). This Court reaches the same conclusion; 4 Respondents’ violation of agency regulations constitutes separate grounds for granting the 5 Petition. 6 C. Third Country Removal 7 Lastly, Petitioner claims that “ICE’s policies threaten [his] unexpected, but 8 potentially immediate and abrupt, removal to another unidentified third country without 9 adequate notice and an opportunity to be heard,” in violation of the Fifth Amendment and 10 CAT. (Doc. 1 at 19.) Respondents claim that Petitioner’s concern “is not borne out by the 11 evidence in this case” because ICE attests that it “will provide Petitioner with written 12 notice, and if Petitioner claims a fear of removal to the identified country, he will be 13 referred to an asylum officer for processing of the fear-based claims.” (Doc. 8 at 7–8.) 14 Because Respondents actively seek to remove Petitioner to a third country (see generally 15 Ramirez Decl.; Doc. 8), the Court disagrees with Respondents. See G.A.A. v. Chestnut, 16 Case No. 1:25-cv-01102-EPG-HC,

, at *7 (E.D. Cal. Nov. 21, 2025) 17 (“Despite [the respondents’] assurances that . . . ICE fully understands that prior to removal 18 to [a third country, the petitioner] must be provided notice, an opportunity to claim fear, 19 and, if a fear is claimed, an opportunity to have that claim adjudicated,” there is still “a 20 sufficiently imminent risk that Petitioner will be subjected to improper process in relation 21 to any third country removal”). 22 Petitioner attaches as an exhibit the July 9, 2025 memo from ICE Director Todd 23 Lyons (“ICE Memo”) titled “Third Country Removals Following the Supreme Court’s 24 Order in Department of Homeland Security v. D.V.D., No. 24A1153 (U.S. June 23, 2025).” 25 (Doc. 1 at 40.) The ICE Memo reads: 26 If the United States has received diplomatic assurances from the country of removal that [noncitizens] removed from the United States will not be 27 persecuted or tortured, and if the Department of State believes those 28 assurances to be credible, the [noncitizen] may be removed without the need 1 for further procedures. ICE will seek written confirmation from the Department of State that such diplomatic assurances were received and 2 determined to be credible. . . . In all other cases, ICE must comply with the 3 following procedures:

4 - An ERO officer will serve on the alien the attached Notice of 5 Removal. The notice includes the intended country of removal and will be read to the alien in a language he or she understands. 6

7 - ERO will not affirmatively ask whether the alien is afraid of being removed to the country of removal. 8

9 - ERO will generally wait at least 24 hours following service of the Notice of Removal before effectuating removal. In exigent 10 circumstances, ERO may execute a removal order six (6) or more 11 hours after service of the Notice of Removal as long as the alien is provided reasonable means and opportunity to speak with an 12 attorney prior to removal.

13 - Any determination to execute a removal order under exigent 14 circumstances less than 24 hours following service of the Notice of Removal must be approved by the DHS General Counsel, or the 15 Principal Legal Advisor where the DHS General Counsel is not 16 available.

17 - If the alien does not affirmatively state a fear of persecution or torture if removed to the country of removal listed on the Notice of 18 Removal within 24 hours, ERO may proceed with removal to the 19 country identified on the notice. ERO should check all systems for motions as close in time as possible to removal. 20

21 - If the alien does affirmatively state a fear if removed to the country of removal listed on the Notice of Removal, ERO will refer the case 22 to U.S. Citizenship and Immigration Services (USCIS) for a 23 screening for eligibility for protection under section 241(b)(3) of the INA and the Convention Against Torture (CAT). USCIS will 24 generally screen the [noncitizen] within 24 hours of referral. 25 (Doc. 1 at 40–41 (emphasis in original).) 26

27 As several courts have held, the policies in the ICE memo are “contrary to Ninth 28 Circuit precedent.” Vu v. Noem, No. 1:25-cv-01366-KES-SKO (HC),

, 1 at *9 (E.D. Cal. Nov. 6, 2025) (collecting cases). A “noncitizen must be given sufficient 2 notice of a country of deportation that, given his capacities and circumstances, he would 3 have a reasonable opportunity to raise and pursue his claim for withholding of deportation.” 4 Nguyen v. Scott, — F. Supp. 3d —,

, at *18 (W.D. Wash. Aug. 21, 2025) 5 (quoting Aden v. Nielsen,

, 1009 (W.D. Wash. 2019)). “Both the due 6 process clause and the governing statute place the burden on the government . . . to provide 7 a meaningful opportunity to be heard on asylum and withholding claims.” Nguyen, 2025

, at *18 (quoting Aden, 409 F. Supp. 3d at 1009). “Failing to notify 9 individuals who are subject to deportation that they have the right to apply . . . for 10 withholding of deportation to the country to which they will be deported violates both INS 11 regulations and the constitutional right to due process.” Andriasian v. INS,

, 12 1041 (9th Cir. 1999). 13 The court in Esmail v. Noem analyzed how the policies in the ICE Memo “present 14 due process issues.” Case No. 2:25-cv-08325-WLH-RAO,

, at *6–7 15 (C.D. Cal. Sept. 26, 2025). First, when the third country “has provided diplomatic 16 assurances that aliens removed from the United States will not be persecuted or tortured 17 . . . the alien may be removed without the need for further procedures.”

(emphasis 18 in original). Because “the due process clause and the governing statute place the burden 19 on the government . . . to provide a meaningful opportunity to be heard on asylum and 20 withholding claims, this approach is insufficient.”

(cleaned up). Second, when the third 21 country has not provided such assurances, ICE “will not affirmatively ask whether the alien 22 is afraid of being removed to that country.”

This “forces the noncitizen to assert a right 23 he may not know that he has,” which “‘violates both INS regulations and the constitutional 24 rights to due process.’”

(cleaned up) (quoting Andriasian,

). This 25 Court finds the reasoning and conclusion in Esmail persuasive and adopts them here. 26 Accord Nguyen,

, at *18 (granting preliminary injunction because the 27 petitioner was “likely to succeed on his claim that removal to a third country under ICE’s 28 current policy, without meaningful notice and reopening of his removal proceedings for a 1 ||hearing, would violate due process”); Nadari v. Bondi, 2:25-cv-07893-JLS-BFM (C.D. 2 || Cal. Sept. 3, 2025), ECF No. 9, at *5—6 (same). 3 Accordingly, because Respondents failed to provide evidence sufficient to rebut 4 ||Petitioner’s showing under Zadvydas, violated the prompt interview requirement in 5 ||

and § 241.13, and must provide Petitioner with adequate notice and an 6 || opportunity to be heard before removing him to a third country, the Petition is GRANTED. 7 IV. CONCLUSION 8 For the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly: 9 1. Respondents are ORDERED to immediately release Petitioner from custody, 10 subject to his preexisting Order of Supervision. 11 2. Respondents and their officers, agents, employees, attorneys, and persons acting on 12 their behalf or in concert with them are PROHIBITED from removing Petitioner to 13 a third country without notice and a meaningful opportunity to be heard, following 14 the process laid out in D.V.D. v. United States Dep’t of Homeland Sec., Civil Action 15 No. 25-10676-BEM,

(D. Mass. May 21, 2025).° 16 3. The TRO Motion (Doc. 3) is DENIED AS MOOT. 17 IT IS SO ORDERED. 18 |} DATE: December 10, 2025 19 Za Borredes, 0 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 21 22 23 24 25 6 This relief has been granted in similar matters. See Louangmilith v. Noem, Case No.: 25- 6 cv-2502-JES-MSB,

, at *4 (S.D. Cal. Oct. 9, 2025); Y.T.D. v. Andrews, 27 || Case No. 1:25-CV-01100 JLT SKO,

, at *13 (E.D. Cal. Sept. 18, 2025); 28 Kumar v. Wamsley, CASE NO. C25-2055-KKE,

, at *9 (W.D. Wash. Nov. 17, 2025). 15