1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 XIAO AO, Case No. 25-cv-03256-BAS-VET

12 Petitioner, ORDER GRANTING IN PART AND 13 v. DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS 14 KRISTI NOEM, et al., (ECF No. 1) 15 Respondents. 16 17

18 On July 21, 2025, an Immigration Judge ordered Petitioner removed from the United 19 States but granted withholding of removal to China. (Petition (“Pet.”), ECF No. 1.) 20 Petitioner now argues there is no significant likelihood he will be removed in the 21 reasonably foreseeable future and thus must be released pursuant to Zadvydas v. Davis, 22

(2001). (Id.) The Government files a Return in Opposition (ECF No. 5), and 23 Petitioner files a Traverse (ECF No. 7). The Court GRANTS IN PART and DENIES IN 24 PART the Petition. 25 Zadvydas establishes a presumption that six months is a reasonable time for the 26 Government to remove an individual after the removal order is granted.

. 27 Although this Court agrees this rule is a rebuttable presumption, Petitioner fails to rebut 28 | ||the presumption. Hence, the Court finds his request for release is premature and DENIES 2 || WITHOUT PREJUDICE the Petition to the extent it seeks release from custody. 3 However, Petitioner also seeks an order that the Government not remove him to a 4 country without notice and an opportunity to be heard. (Pet.) The Government may 5 ||not remove an individual to a third country without such notice and an opportunity to 6 ||respond. Andriasian v. I.N.S.,

(9th Cir. 1999). Despite this 7 ||requirement, a June 6, 2025, Immigration and Customs Enforcement (“ICE”) memo 8 indicates ICE need not give immigrants notice or a hearing before removal—provided the 9 || State Department finds the third country has given credible assurances against persecution 10 || and torture. (Peti, Ex. B.) Because the Court finds this memo is contrary to law, the Court 11 || GRANTS the Petition to the extent it seeks notice and an opportunity to be heard before 12 ||}removal to a third country. 13 For the reasons stated above, the Court DENIES the Petition WITHOUT 14 || PREJUDICE to the extent it seeks immediate release. If six months pass without any 15 || likelihood of removal in the reasonably foreseeable future, Petitioner is free to refile the 16 || Petition at that time. The Court GRANTS the Petition to the extent it seeks an order that 17 be given notice and an opportunity to be heard before removal to a third country. The 18 || Court ORDERS: 19 Respondents are PROHIBITED from removing Petitioner Xiao Ao without 0 providing Petitioner with notice of the country they plan to remove him to and an opportunity to be heard. 21 22 || The Clerk of Court shall close the case. 23 IT IS SO ORDERED. 24 25 || DATED: December 9, 2025 Yi ly A (Dipharb 26 Hon. Cynthia Bashant, Chief Judge 57 United States District Court

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