1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 HIEN VU, No. 1:25-cv-01366-KES-SKO (HC) 7 Petitioner, 8 ORDER GRANTING MOTION FOR v. PRELIMINARY INJUNCTION 9 KRISTI NOEM, Secretary of the United Doc. 3 10 States Department of Homeland Security, PAMELA BONDI, Attorney General of the 11 United States, JESUS ROCHA, Acting Field Office, San Diego Field Office, and 12 TONYA ANDREWS, Facility Administrator of Golden State Annex, 13 Respondents. 14

15 16 Petitioner Hien Vu came to the United States as a refugee from Vietnam nearly thirty-five 17 years ago. In 1997, he was convicted of second degree robbery, an aggravated felony.1 Based on 18 that conviction, petitioner was ordered removed to Vietnam and was detained by immigration 19 authorities pending his removal. However, immigration authorities were unable to carry out 20 petitioner’s removal because Vietnam had a policy of not accepting the return of its citizens who 21 arrived in the United States before 1995. After being detained for over ten months, petitioner 22 filed a petition for writ of habeas corpus and, in 2001, the United States District Court for the 23 Southern District of California ordered his release. 24 Over 24 years later, on August 14, 2025, Immigration and Customs Enforcement (“ICE”) 25 agents revoked petitioner’s release and re-detained him. After being detained for nearly two 26 months with no explanation as to why his release had been revoked, petitioner filed a petition for 27

28 1 Petitioner’s aggravated felony conviction was vacated on October 13, 2025. Doc. 18-1. 1 writ of habeas corpus, Doc. 1, and a motion for temporary restraining order, Doc. 3.2 He argues 2 that there is no significant likelihood that he will be removed to Vietnam, that ICE failed to 3 follow its own regulations governing the revocation of a removable noncitizen’s release, and that, 4 if ICE attempts to send him to a third country, it must abide by basic principles of due process, 5 contrary to its current policies. See Doc. 3. In response, the government argues that petitioner’s 6 removal to Vietnam is imminent; it offers no response to petitioner’s other arguments. 7 For the reasons explained below, petitioner’s motion for temporary restraining order, 8 which the Court converts to a motion for preliminary injunction, is granted. 9 I. Background3 10 a. Petitioner’s Background 11 Petitioner was born in Vietnam in 1978. Doc. 17-1, Ex. 5. When he was six years old, 12 petitioner and his family fled Vietnam and came to the United States as refugees. Doc. 1, Ex. A, 13 Vu Decl. at ¶ 2. Petitioner became a lawful permanent resident. Id. In 1996, petitioner was 14 convicted of burglary of a vehicle and sentenced to probation for three years. Doc. 17-1, Meneses 15 Decl. at ¶ 16; Doc. 17-1, Ex. 3. A few months later, he was convicted of second degree robbery, 16 an aggravated felony, and sentenced to three years in prison. Doc. 17-1, Meneses Decl. at ¶ 17; 17 Doc. 17-1, Ex. 5. 18 Due to petitioner’s aggravated felony conviction, the government initiated removal 19

20 2 Petitioner named Christopher Larose, warden of Otay Mesa Detention Center, as a respondent. However, as explained below, petitioner was transferred from Otay Mesa Detention Center to 21 Golden State Annex, so Christopher Larose is no longer the proper respondent. The Court sua sponte substitutes Tonya Andrews, Facility Administrator of Golden State Annex, as respondent. 22 See Page v. Cate, No. C 09-4142 MHP (PR),

, at *2 (N.D. Cal. July 23, 2010) 23 (recognizing that a court may substitute the respondent sua sponte in a habeas case); Farooqi v. Ochoa, No. SA CV 09-1512 DMG,

, at *1 n.1 (C.D. Cal. Jan. 21, 2011), report 24 and recommendation adopted, No. SA CV 09-1512 DMG,

(C.D. Cal. Apr. 5, 2011) (same). 25

3 The facts set out in this section come from petitioner’s verified petition and other evidence in 26 the record. A court “may treat the allegations of a verified . . . petition [for writ of habeas corpus] 27 as an affidavit.” L. v. Lamarque,

(9th Cir. 2003) (citing McElyea v. Babbitt,

, 197–98 (9th Cir. 1987)). 28 1 proceedings, and the Immigration and Naturalization Service (“INS”), ICE’s predecessor, 2 detained petitioner on June 3, 1999. Doc. 17-1, Meneses Decl. at ¶¶ 5–6. An immigration judge 3 ordered petitioner removed to Vietnam, and the Board of Immigration Appeals dismissed 4 petitioner’s appeal on September 29, 2000. Id. ¶ 9; Doc. 17-1, Ex. 1. 5 Petitioner could not be removed to Vietnam because no repatriation agreement existed 6 between the United States and Vietnam. See Doc. 1, Ex. C at 38 (order granting writ of habeas 7 corpus); Doc. 1, Ex. A, Vu Decl. at ¶ 4. Although the United States and Vietnam finalized a 8 repatriation agreement in 2008, that agreement does not provide for the repatriation of 9 Vietnamese citizens who entered the United States before July 12, 1995, like petitioner. See 10 Repatriation Agreement Between the United States of America and Vietnam, U.S. Dep’t of State 11 (Jan. 22, 2008), https://www.state.gov/wp-content/uploads/2019/02/08-322-Vietnam- 12 Repatriations.pdf. Despite INS’s inability to remove petitioner, it continued to detain him. See 13 Doc. 17-1, Meneses Decl. at ¶¶ 9–10. 14 In Zadvydas v. Davis,

(2001), the Court read an implicit constitutional 15 limitation into

, the statute that allows immigration authorities to detain a 16 noncitizen who has been ordered removed: if a noncitizen has been detained for six months and 17 “provides good reason to believe that there is no significant likelihood of removal in the 18 reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that 19 showing.” Zadvydas,

. Once it has been determined that “there is no significant 20 likelihood of removal in the reasonably foreseeable future[,]” then the government must release 21 the noncitizen.

22 In 2001, the United States District Court for the Southern District of California granted a 23 petition for writ of habeas corpus filed on behalf of petitioner and twenty-seven other Vietnamese 24 detainees. Doc. 1, Ex. C, Tran Binh et al. v. United States Immigration and Naturalization 25 Service et al., No. 01-cv-0188 W (AJB) (S.D. Cal. Aug. 6, 2001). Petitioner was released 26 pursuant to that order, ten months after he had been ordered removed. Doc. 1, Ex. A, Vu Decl. at 27 ¶ 4. Upon his release, INS placed petitioner on an order of supervision, which required him to 28 report to INS every six months. Doc. 17-1, Meneses Decl. at ¶ 10. For the following twenty-four 1 years, petitioner remained under that order of supervision and reported to INS, and then ICE, as 2 required. Doc. 1, Ex. A, Vu Decl. at ¶¶ 5, 10.4 3 Petitioner is a father to five children, and the youngest two have special needs and require 4 intensive care. Doc. 1, Ex. A, Vu Decl. at ¶¶ 11; Doc. 3, Ex. A, Rue Decl. at ¶¶ 2, 5. One of 5 petitioner’s children must be handfed, and another is still in diapers. Doc. 3, Ex. A, Rue Decl. at 6 ¶ 5. Petitioner is a single father and supports his children on his own. Doc. 1, Ex. A, Vu Decl. at 7 ¶¶ 11–12. 8 b. The 2020 Memorandum of Understanding 9 On November 21, 2020, the United States and Vietnam entered into a memorandum of 10 understanding regarding the removal of Vietnamese citizens who arrived in the United States 11 before July 12, 1995. See Doc. 17-1, Ex. 2, November 21, 2020 Memorandum of Understanding 12 Between the Department of Homeland Security and the United States of America and the 13 Ministry of Public Security of the Socialist Republic of Vietnam on the Acceptance of the Return 14 of Vietnamese Citizens who Arrived in the United States Before July 12, 1995 and Who Have 15 Been Ordered Removed from the United States (the “2020 MOU”), publicly available at 16 https://cdn.craft.cloud/5cd1c590-65ba-4ad2-a52c-b55e67f8f04b/assets/media/ALC-FOIA-Re- 17 Release-MOU-bates-1-8-8-10-21.pdf (last visited Oct. 19, 2025). “The purpose of [the 2020 18 MOU] is to establish a process of review and issuance of travel documents for Vietnamese 19 citizens ordered removed from the United States and to facilitate the acceptance of all such 20 Vietnamese citizens.”

It provides that any “individual subject to a final order of removal 21 from the United States” is eligible for acceptance of return by Vietnam if they also meet the 22 following conditions, among others: 23 4 Petitioner was convicted of misdemeanor willful cruelty to a child in 2017 and was sentenced to 24 one day in jail. Doc. 17-1, Meneses Decl. at ¶ 21; Doc. 17-1, Ex. 5. The declaration of deportation officer Meneses, Jr., also states that petitioner was also convicted of an additional 25 misdemeanor offense in 2005 for disturbing the peace. Doc. 17-1, Meneses Decl. at ¶ 19. The officer’s declaration cites to petitioner’s rap sheet in support; however, the rap sheet does not list 26 the latter conviction. See id.; Doc. 17-1, Ex. 5. In their opposition, respondents do not assert the 27 2017 misdemeanor conviction, or the purported 2005 misdemeanor conviction, as the basis for petitioner’s re-detention. See Doc. 17. Rather, respondents assert that petitioner was re-detained 28 because there was a substantial likelihood of his removal to Vietnam. 1 1. Has Vietnamese citizenship and does not have citizenship of any 2 other country at the same time;

3 2. Has violated U.S. law and has been ordered removed by a U.S. competent authority (and, if sentenced to a prison term, the 4 individual must have completed any term of imprisonment before removal or a U.S. competent authority must have ordered a reduction 5 in the sentence or the individual’s release from prison);

6 3. Resided in Viet Nam prior to arriving to the United States and currently has no right to reside in any other country or territory. 7 4. [REDACTED] 8 Doc. 17-1, Ex. 2.5 The 2020 MOU generally provides that “[t]his MOU constitutes an 9 understanding only between the Participants [the Department of Homeland Security of the United 10 States of America and the Ministry of Public Security of the Socialist Republic of Vietnam] and 11 does not give rise to any rights or obligations under domestic or international law.”

The 2020 12 MOU further states that it “does not create or confer any rights, privileges, or benefits to any 13 individual.”

14 c. Petitioner’s Re-Detention and Procedural History 15 On August 14, 2025, ICE re-detained petitioner at a scheduled check-in. Doc. 17-1, 16 Meneses Decl. at ¶ 13. He was initially detained at Otay Mesa Detention Center in San Diego, 17 California. Id. ¶ 15. The declaration of deportation officer Meneses, Jr. states that ICE began the 18 process of requesting travel documents from Vietnam only on August 26, 2025. Id. ¶ 14. 19 On October 1, 2025, petitioner, proceeding pro se, filed a petition for writ of habeas 20 corpus, Doc. 1, and a motion for temporary restraining order in the United States District Court 21 for the Southern District of California, see Doc. 3. He also filed a motion to appoint as counsel 22 the Federal Defenders of San Diego, Inc., who helped him draft his petition and motions. Doc. 2; 23 see Doc. 1 at 1 n.1. The court granted the motion to appoint counsel. Doc. 4. On October 6, 24 2025, the parties stipulated to transfer the matter to this Court because petitioner had been 25 transferred to Golden State Annex in McFarland, California. Doc. 6. After the matter was 26 27 5 In the version of the 2020 MOU filed by respondents, one of the required conditions is redacted. 28 Respondents do not explain why the condition is redacted or what it requires. 1 transferred, this Court appointed Assistant Federal Defender Carolyn Wiggin of the Federal 2 Defenders for the Eastern District of California as petitioner’s attorney. Doc. 10. Respondents 3 filed an opposition on October 22, 2025. Doc. 17. Petitioner filed a reply on October 27, 2025. 4 Doc. 18. 5 On October 13, 2025, the Superior Court of San Diego County vacated petitioner’s 6 burglary and second-degree robbery convictions. Doc. 18-1. Petitioner represents that his 7 immigration counsel will pursue reopening his removal proceedings to restore his status as a 8 lawful permanent resident, given that the final order of removal that was entered in 2000 was due 9 entirely to the aggravated felony conviction, which has now been vacated. See Doc. 18 at 2. 10 II. Conversion to a Motion for Preliminary Injunction 11 When the Court set a briefing schedule on the motion, it ordered the parties to state their 12 position on whether the motion for temporary restraining order should be converted to a motion 13 for preliminary injunction and whether the parties requested a hearing on the motion. Doc. 11. 14 Neither party objected to converting the motion to one for a preliminary injunction, and neither 15 party requested a hearing. See Doc. 17 at 2 n.3; Doc. 18 at 1. Given that the standard for issuing 16 a temporary restraining order is the same as for a preliminary injunction, see Stuhlbarg Int’l Sales 17 Co. v. John D. Bush & Co.,

, 839 n.7 (9th Cir. 2001), and respondents had notice 18 and opportunity to respond through a written opposition, petitioner’s motion is converted to a 19 motion for preliminary injunction. 20 III. Legal Standard 21 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 22 v. Nat. Res. Def. Council, Inc.,

(2008) (citing Munaf v. Geren,

, 689– 23 90 (2008)). “A plaintiff seeking a preliminary injunction must establish that he is likely to 24 succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 25 relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” 26

at 20 (citing Munaf, 553 U.S. at 689–90; Amoco Prod. Co. v. Vill. of Gambell, AK,

531, 542 (1987); Weinberger v. Romero-Barcelo,

, 311–12 (1982)). “Likelihood of 28 success on the merits is a threshold inquiry and is the most important factor.” Simon v. City & 1 Cnty. of San Francisco,

(9th Cir. 2025) (quoting Env’t Prot. Info. Ctr. v. 2 Carlson,

(9th Cir. 2020)). “[I]f a plaintiff can only show that there are serious 3 questions going to the merits—a lesser showing than likelihood of success on the merits—then a 4 preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff’s 5 favor, and the other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767

(9th Cir. 2014) (internal quotation marks and citations omitted). 7 IV. Discussion 8 a. Likelihood of Success on the Merits 9 Petitioner brings three claims: he argues that there is no significant likelihood that ICE 10 will be able to remove him to Vietnam in the reasonably foreseeable future, that ICE violated its 11 own regulations and denied him due process when it revoked his release, and that ICE’s current 12 policy setting out its process for deporting noncitizens to third countries violates basic principles 13 of due process. See Doc. 3. The Court evaluates each claim in turn. 14 1. Respondents Fail to Show that Petitioner’s Removal is Reasonably 15 Foreseeable Under the Governing Framework. 16 A set of regulations,

(i) and 241.4(l), govern how and when ICE may 17 revoke the release of a noncitizen who has been ordered removed. Section 241.13(i) permits 18 revocation of release “if, on account of changed circumstances, [ICE] determines that there is a 19 significant likelihood that the alien may be removed in the reasonably foreseeable future.”6 20

(i)(2). 21 Citing Zadvydas v. Davis,

(2001) and Prieto-Romero v. Clark,

(9th Cir. 2008), respondents appear to assume that petitioner has the initial burden to show 23 that there is no significant likelihood of removal in the reasonably foreseeable future. Doc. 17 at 24 3–4. Zadvydas dealt with a noncitizen who had been detained and never released following a 25 final order of removal. Zadvydas,

. In that context, the Supreme Court held that 26

27 6 It also provides for revocation if a noncitizen “violates any of the conditions of release” in the “order of supervision.”

(i)(1). Respondents do not argue that ICE revoked 28 petitioner’s release on that ground. See Doc. 17. 1 “once [an] alien” has been detained for six months and “provides good reason to believe that 2 there is no significant likelihood of removal in the reasonably foreseeable future, the Government 3 must respond with evidence sufficient to rebut that showing.”

4 However, the burden-shifting framework from Zadvydas does not apply here. As another 5 court has noted in a similar context, “[t]his case is not about ICE’s authority to detain in the first 6 place upon an issuance of a final order of removal as in Zadvydas.” Nguyen v. Hyde,

Supp. 3d 144, 152 (D. Mass. 2025). “[T]his is not your typical first round detainment of an alien 8 awaiting removal. Petitioner was previously detained, then released on supervised release for 9 several years, and his 90-day removal period expired.” Escalante v. Noem, No. 9:25-CV-00182- 10 MJT,

, at *3 (E.D. Tex. Aug. 2, 2025). As in the Nguyen case, “[t]his case is 11 about ICE’s authority to re-detain [petitioner] after he was issued a final order of removal, 12 detained, and subsequently released on an [order of supervision].” Nguyen, 788 F. Supp. 3d at 13 152. 14 ICE’s regulations,

(i) and 241.4(l), apply to non-citizens in petitioner’s 15 situation, and those regulations outline the process to be followed. Id.; Escalante,

2206113, at *3 (“After Zadvydas, the immigration regulations were revised to implement 17 administrative review procedures for . . . those who are re-detained upon revocation of their 18 supervised release.” (citing

)). 19 In Escalante, the court noted that:

20 Section 241.13(i)(2)[,] [which is] entitled “Revocation for removal[,]” provides that “the Service may revoke an alien’s 21 [supervised] release under this section and return the alien to custody if, on account of changed circumstances, the Service determines that 22 there is a significant likelihood that the alien may be removed in the reasonably foreseeable future.”

(i)(2) (emphasis 23 added). Section 241.4(b)(4)[,] which is entitled “Service determination under 8 C.F.R. 241.13[,]” states that, after supervised 24 release under section 241.13, “if the Service subsequently determines, because of a change of circumstances, that there is a 25 significant likelihood that the alien may be removed in the reasonably foreseeable future [to the country to which the alien was 26 ordered removed or] a third county, the alien shall again be subject to the custody review procedures under this section.” 8 C.F.R. 27 § 241.4(b)(4) (emphasis added). 28 Escalante,

, at *3. 1 Those “regulations clearly indicate” that when ICE revokes release to effectuate removal, 2 “it is [ICE’s] burden to show a significant likelihood that the alien may be removed.” Escalante, 3

, at *3; see also Roble v. Bondi, No. 25-CV-3196 (LMP/LIB),

2443453, at *4 (D. Minn. Aug. 25, 2025) (“[T]he regulations at issue in this case place the burden 5 on ICE to first establish changed circumstances that make removal significantly likely in the 6 reasonably foreseeable future.”); Abuelhawa v. Noem, No. 4:25-CV-04128,

, at 7 *8 (S.D. Tex. Oct. 16, 2025) (“[U]pon revocation of release, the Government bears the burden to 8 show a significant likelihood that the alien may be removed in the reasonably foreseeable 9 future.”); Nguyen, 788 F. Supp. 3d at 150. “Imposing the burden of proof on the alien each time 10 he is re-detained would lead to an unjust result and serious due process implications.” Escalante, 11

, at *3. Therefore, the Court must determine whether respondents have met 12 their burden to show a changed circumstance indicating a significant likelihood of removal. 13 Respondents argue that, despite their failure to remove petitioner for the past twenty-five 14 years, there is a significant likelihood that petitioner will be removed in the reasonably 15 foreseeable future. Respondents assert that the circumstances have changed since their previous, 16 unsuccessful attempt to remove him because: (1) the 2020 MOU states that Vietnam will accept 17 the return of certain Vietnamese citizens who entered the United States before 1995; (2) 18 according to a news article, Vietnam agreed to expedite requests for travel documents; and (3) 19 ICE is “mak[ing] efforts” to obtain a travel document for petitioner. See Doc. 17 at 2–4 (citing 20 Francesco Guarascio, Vietnam to Support Deportations From US After Tariff Threats, Lawyer 21 Says (Feb. 27, 2025), Reuters, https://www.reuters.com/world/vietnamsupport-deportations-us- 22 after-tariff-threats-lawyer-says-2025-02-28/). 23 These arguments are not persuasive. As an initial matter, it is not clear that petitioner is 24 eligible for return to Vietnam under the terms of the 2020 MOU. There are reasons to doubt that 25 Vietnam will exercise its discretion to issue a travel document to petitioner. To be eligible for 26 return under the terms of the 2020 MOU, one must have “violated U.S. law and [have] been 27 ordered removed”; and when the United States requests travel documents from Vietnam, it must 28 provide “copies or summar[ies] of the criminal judgment[s] and conviction[s] if the crimes were 1 the basis for removal.” Doc. 17-1, Ex. 2. As the criminal conviction that formed the basis for 2 petitioner’s removal order has since been vacated, it is not clear that the required conditions under 3 the 2020 MOU have been met. Petitioner’s circumstances appear more akin to the general group 4 of pre-1995 Vietnamese refugees, who are typically not removable to Vietnam under the terms of 5 the 2008 repatriation agreement. See Repatriation Agreement Between the United States of 6 America and Vietnam, U.S. Dep’t of State (Jan. 22, 2008), https://www.state.gov/wp- 7 content/uploads/2019/02/08-322-Vietnam-Repatriations.pdf (“Vietnamese citizens are not subject 8 to return to Vietnam under this Agreement if they arrived in the United States before July 12, 9 1995 . . . .”). Moreover, if petitioner’s immigration counsel is successful in reopening his 10 removal proceedings, petitioner may become a lawful permanent resident again, in which case he 11 could not be removed.7 12 Additionally, “the 2020 MOU does not mandate that Vietnam accept all eligible pre-1995 13 Vietnamese refugees with orders of removal; it ‘constitutes an understanding only between the 14 Participants and does not give rise to any rights or obligations under domestic or international 15 law;’ it ‘does not create or confer any rights, privileges, or benefits on any individual.’” Nguyen, 16 788 F. Supp. 3d at 151 (quoting 2020 MOU). Therefore, even if petitioner met all criteria for 17 eligibility under the 2020 MOU, the government “may only request his removal; Vietnam has 18 total discretion whether to issue a travel document to any individual.” Id. 19 Respondents’ assertion that Vietnam recently agreed to expedite travel document requests 20 is not supported by any evidence in the record, and their general assertion that ICE is “mak[ing] 21 efforts” to obtain travel documents for petitioner is not compelling. Doc. 17 at 3–4. Respondents 22 do not identify any specific efforts they have made to obtain a travel document from Vietnam for 23 petitioner, much less whether they have any indication from Vietnam that it is likely to issue such 24 a travel document. Even if there were evidence of a “possibility that Vietnam will accept

25 7 It is also unclear if petitioner would meet the required criteria for eligibility because the 2020 MOU lists four such criteria, but the version of the MOU provided by respondents redacts one of 26 the required criteria. See Doc. 17-1, Ex. 2. Publicly available versions of the MOU are similarly 27 redacted. See 2020 MOU, https://cdn.craft.cloud/5cd1c590-65ba-4ad2-a52c- b55e67f8f04b/assets/media/ALC-FOIA-Re-Release-MOU-bates-1-8-8-10-21.pdf (last visited 28 Oct. 19, 2025). 1 Petitioner at some point . . . [that] is not the same as a significant likelihood that he will be 2 accepted in the reasonably foreseeable future.” Nguyen v. Scott, No. 2:25-CV-01398,

2419288, at *16 (W.D. Wash. Aug. 21, 2025). 4 The phrase “significant likelihood,” as used in the regulation, requires something more 5 than a mere possibility. Respondents have not attempted to meet their burden by providing 6 statistics about removals of pre-1995 Vietnamese refugees since the 2020 MOU went into effect. 7 See Nguyen, 788 F. Supp. 3d at 151. As the Nguyen court pointed out: If the government 8 “submitted 350 requests and Vietnam issued travel documents for 328 individuals, Respondents 9 may very well have shown that removal is significantly likely in the reasonably foreseeable 10 future. On the other hand, if [the government] submitted 3,500 requests and only 328 individuals 11 received travel documents, Respondents would not be able to meet their burden.” Id. 12 Respondents do not provide such evidence, and they have not met their burden to show a 13 significant likelihood that petitioner will be removed in the reasonably foreseeable future. 14 Petitioner is likely to succeed on this claim. 15 2. ICE Did Not Afford Petitioner the Process He Was Due Under ICE’s 16 Own Regulations. 17 The regulations examined above,

(i) and 241.4(l), also set out the 18 procedures to be followed in revoking release, procedures that protect important due process 19 rights. See Nguyen v. Hyde,

, 152 (D. Mass. 2025) (noting that 8 C.F.R. 20 § 241.13(i) was “promulgated to protect a fundamental right derived from the Constitution”). 21 Those procedures include:

22 Upon revocation, the alien will be notified of the reasons for revocation of his or her release. The Service will conduct an initial 23 informal interview promptly after his or her return to Service custody to afford the alien an opportunity to respond to the reasons for 24 revocation stated in the notification. The alien may submit any evidence or information that he or she believes shows there is no 25 significant likelihood he [will] be removed in the reasonably foreseeable future, or that he [] has not violated the order of 26 supervision. The revocation custody review will include an evaluation of any contested facts relevant to the revocation and a 27 determination whether the facts as determined warrant revocation and further denial of release. 28 1

(i)(3); see also Yang v. Kaiser, No. 2:25-CV-02205-DAD-AC (HC),

2791778, at *5 (E.D. Cal. Aug. 20, 2025). 3 Petitioner’s declaration states:

4 ICE has never given me any formal paperwork explaining why I was re-detained or identifying any changed circumstances that would 5 make my removal easier. . . . I have had no formal meetings with a deportation officer[,] [and have] only had an informal conversation 6 with a [deportation officer who] . . . didn’t really know anything about my case. . . . I have never [had] a chance to tell ICE why I 7 should not be re-detained. 8 Doc. 1, Ex. A, Vu Decl. at ¶¶ 8–9. Respondents do not contest these assertions and do not 9 provide any evidence that they “notified petitioner of the reasons for revocation,” that they 10 “conducted an initial informal interview promptly after his . . . return to [ICE] custody,” or that 11 they offered petitioner the “opportunity to respond to the reasons for revocation,” as required by 12

(i)(3).8 See Doc. 17. 13 “ICE, like any agency, ‘has the duty to follow its own federal regulations.’” Rombot v. 14 Souza,

(D. Mass. 2017) (quoting Haoud v. Ashcroft,

, 205 15 (1st Cir. 2003)); see Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons,

, 130 16 (2d Cir. 2020) (“[U]nder deeply rooted principles of administrative law, not to mention common 17 sense, government agencies are generally required to follow their own regulations.”). In United

18 8 Respondents state, in a footnote, that “[b]ased on information provided to the government by 19 immigration authorities, it appears that Vu was interviewed by those authorities following revocation of his release in August.” Doc. 17 at 2 n.2. Respondents provide no evidence of this 20 in the record. Their sole declarant, deportation officer Meneses, does not state that an informal interview was conducted in compliance with the regulations. See Doc. 17-1, Meneses Decl. 21 Respondents also point out that

(i)(1) states that ICE can re-detain a noncitizen “for an additional six months in order to effect the alien’s removal,” and therefore, “his current 22 detention falls within the amount of time authorized for such detention.” See Doc. 17 at 3 23 (quoting

(i)(1)). This argument fails because respondents quote this provision out of context.

(i)(1), which is titled “Violation of conditions of release,” 24 provides that if a noncitizen “violates any of the conditions of release,” then the noncitizen “may be continued in detention for an additional six months in order to effect the alien’s removal, if 25 possible, and to effect the conditions under which the alien had been released.”

(i)(1). However, respondents do not argue that ICE re-detained petitioner for violating 26 the terms of his release. The sole ground raised by respondents for petitioner’s re-detention is 27 that they could now repatriate him to Vietnam. However, as addressed above, respondents have failed to show a significant likelihood that they will be able to do so in the reasonably foreseeable 28 future. 1 States ex rel. Accardi v. Shaughnessy, the Supreme Court reversed the dismissal of a habeas 2 petition that alleged the Board of Immigration Appeals had failed to follow its own regulations. 3 United States ex rel. Accardi v. Shaughnessy,

(1954). The Court held that, if the 4 petitioner could prove the allegations in the petition, “he should receive a new hearing” and be 5 “afforded the due process required by the regulations.”

at 265–68. Recognizing this principle, 6 other courts have held that “where an immigration ‘regulation is promulgated to protect a 7 fundamental right derived from the Constitution or a federal statute,’ like the opportunity to be 8 heard, ‘and [ICE] fails to adhere to it, the challenged [action] is invalid.’” Rombot,

3d at 388 (quoting Waldron v. I.N.S.,

(2d Cir. 1993)); Hoac v. Becerra, No. 10 2:25-CV-01740-DC-JDP,

, at *4 (E.D. Cal. July 16, 2025) (“Because there is 11 no indication that an informal interview was provided . . ., [petitioner’s] re-detainment was 12 unlawful.”). Petitioner is also likely to succeed on the merits of his claim that the revocation of 13 his release was unlawful for this reason. 14 3. Due Process Requirements Prior to Any Third-Country Removal 15 Petitioner argues that ICE currently has a policy that directs its agents to disregard basic 16 tenets of due process, as recognized by the Ninth Circuit, when seeking to deport noncitizens to a 17 third country. ICE’s current policy provides: “when seeking to remove an alien with a final order 18 of removal . . . to a country other than that specifically referenced in the order of removal,” ICE 19 may remove the noncitizen so long as “the United States has received diplomatic assurances from 20 [that] country that aliens removed [there] will not be persecuted or tortured . . . and [] the 21 Department of State believes those assurances to be credible . . . without the need for further 22 procedures.” Doc. 1, Ex. B (emphasis added). The notice further provides that, if the State 23 Department has not received such credible assurances from that third country: 24 • [ICE] will serve on the alien . . . a notice [which] includes the intended country of removal and will be read to the alien in a 25 language he or she understands.

26 • [ICE] will not affirmatively ask whether the alien is afraid of being removed to the country of removal. 27 • [ICE] will generally wait at least 24 hours following service of 28 the [notice] before effectuating removal. In exigent 1 circumstances, [ICE] may execute a removal order six (6) or more hours after service of the [notice] as long as the alien is 2 provided reasonable means and opportunity to speak with an attorney prior to removal. . . . 3 • If the alien does not affirmatively state a fear of persecution or 4 torture if removed to the country of removal . . . within 24 hours, [ICE] may proceed with removal to the country identified on the 5 notice. . . .

6 • If the alien does affirmatively state a fear if removed to the country of removal listed on the [notice], [ICE] will refer the case 7 to U.S. Citizenship and Immigration Services (USCIS) for a screening for eligibility for protection under section 241(b)(3) of 8 the INA and the Convention Against Torture (CAT). USCIS will generally screen the alien within 24 hours of referral. 9 10

Petitioner argues that this policy violates the Due Process Clause. See Doc. 3 at 12–14. 11 Respondents offer no argument in response and do not state whether they are attempting 12 or will attempt to remove petitioner to a country other than Vietnam. See Doc. 17. That silence 13 is telling. If ICE follows this policy, petitioner would have no meaningful opportunity to present 14 this claim in any court before he is removed to a third country. 15 ICE’s policy is contrary to Ninth Circuit precedent. “The Fifth Amendment guarantees 16 due process in deportation proceedings.” Torres-Aguilar v. I.N.S.,

(9th Cir. 17 2001). Therefore, “[f]ailing to notify individuals who are subject to deportation that they have the 18 right to apply for asylum in the United States and for withholding of deportation to the country to 19 which they will be deported violates the constitutional right to due process.” Andriasian v. I.N.S., 20

(9th Cir. 1999). “In the context of country of removal designations, last 21 minute orders of removal to a country may violate due process if an immigrant was not provided 22 an opportunity to address his fear of persecution in that country.” Nguyen v. Scott, No. 2:25-CV- 23 01398,

, at *18 (W.D. Wash. Aug. 21, 2025) (quoting Najjar v. Lynch, 630 24 Fed. App’x 724 (9th Cir. 2016)). Other courts in this circuit have recognized that this policy is 25 unconstitutional, and this Court agrees with those well-reasoned decisions. See, e.g., Nguyen v. 26 Scott,

, at *18–23; Zakzouk v. Becerra, No. 25-CV-06254-KAW,

2899220, at *4 (N.D. Cal. Oct. 10, 2025); Baltodano v. Bondi, No. C25-1958RSL,

2987766, at *2–3 (W.D. Wash. Oct. 23, 2025). Petitioner is likely to succeed on the merits of his 1 third-country removal claim. 2 b. Irreparable Harm 3 Given that petitioner has shown that the revocation of his release was likely unlawful, and 4 the risk that ICE may attempt to send him to a third country to which he has no ties, petitioner 5 faces irreparable harm absent a preliminary injunction. Additionally, the Ninth Circuit has 6 recognized that there may be numerous “irreparable harms imposed on anyone subject to 7 immigration detention,” such as “subpar medical and psychiatric care in ICE detention facilities 8 [and] the economic burdens imposed on detainees and their families as a result of detention.” 9 Hernandez v. Sessions,

(9th Cir. 2017). Petitioner is a single father with five 10 kids, two of whom have special needs and require significant care. Doc. 3, Ex. A, Rue Decl. at 11 ¶ 5. One must be handfed, and the other needs assistance cutting up food.

One is still in 12 diapers.

Petitioner stated that he had only $3,500 left in the bank when he filed his petition. 13 Doc. 1, Ex. A, Vu Decl. at ¶¶ 12–13. In petitioner’s absence, his girlfriend has had to take care of 14 his children because their mother is not around and petitioner’s parents have passed away.

If 15 petitioner remains detained, he and his family will suffer irreparable harm; petitioner’s removal to 16 a third country would amplify those harms. 17 Moreover, “[i]t is well established that the deprivation of constitutional rights 18 ‘unquestionably constitutes irreparable injury.’” Hernandez,

(quoting Melendres 19 v. Arpaio,

(9th Cir. 2012)). “When an alleged deprivation of a constitutional 20 right is involved, most courts hold that no further showing of irreparable injury is necessary.” 21 Warsoldier v. Woodford,

, 1001–02 (9th Cir. 2005) (quoting Wright, Miller, & 22 Kane, Federal Practice and Procedure, § 2948.1 (2d ed. 2004)). Given the Court’s conclusions 23 that ICE failed to follow the procedures of

(i), which protect his due process 24 rights, and that ICE’s current policy of deporting noncitizens to third countries with little or no 25 notice violates the Due Process Clause, petitioner faces irreparable harm absent a preliminary 26 injunction. 27 c. Balance of Equities and Public Interest 28 When the government is the nonmoving party, “the last two Winter factors merge.” Baird 1 v. Bonta,

(9th Cir. 2023) (internal citations omitted). Although the 2 government has a strong interest in enforcing the immigration laws, it “cannot reasonably assert 3 that it is harmed in any legally cognizable sense” by being compelled to follow the law. Zepeda 4 v. I.NS.,

(9th Cir. 1983). Faced with a choice “between [minimally costly 5 procedures] and preventable human suffering,” as discussed above, the Court concludes “that the 6 balance of hardships tips decidedly in [petitioner’s] favor.” Hernandez,

(quoting 7 Lopez v. Heckler,

(9th Cir. 1983)). 8 The public interest also weighs in petitioner’s favor. “The public has a strong interest in 9 upholding procedural protections against unlawful detention [and deportation], and the Ninth 10 Circuit has recognized that the costs to the public of immigration detention are staggering.” Diaz, 11

, at *3 (citing Jorge M.F. v. Wilkinson, No. 21-CV-01434-JST,

783561, at *3) (N.D. Cal. Mar. 1, 2021); see also Index Newspapers LLC v. U.S. Marshals Serv., 13

(9th Cir. 2020) (“It is always in the public interest to prevent the violation of a 14 party’s constitutional rights.”) (citing Padilla, 953 F.3d at 1147–48). 15 d. Remedy 16 The requirements for issuing a preliminary injunction are therefore met. Petitioner’s 17 immediate release is required to return him to the status quo ante—“the last uncontested status 18 which preceded the pending controversy.” Yang v. Kaiser, No. 2:25-CV-02205-DAD-AC (HC), 19

, at *11 (E.D. Cal. Aug. 20, 2025); Hoac v. Becerra, No. 2:25-CV-01740-DC- 20 JDP,

, at *7 (E.D. Cal. July 16, 2025); see also Nguyen v. Scott, No. 2:25-CV- 21 01398,

, at *28 (W.D. Wash. Aug. 21, 2025) (ordering immediate release of 22 noncitizen detained in violation of regulations). 23 V. Conclusion and Order 24 Accordingly, 25 1. Petitioner’s motion for a preliminary injunction, Doc. 3, is GRANTED. 26 2. Respondents are ORDERED to release petitioner immediately. 27 3. Respondents are ENJOINED AND RESTRAINED from re-detaining petitioner unless 28 and until they obtain a travel document for his removal, and unless and until they follow 1 all procedures set forth in

(), 241.13), and any other applicable 2 statutory and regulatory procedures. 3 4. Respondents are ENJOINED AND RESTRAINED from removing petitioner to any 4 country other than Vietnam, unless they provide the following process: 5 a. written notice to both petitioner and petitioner’s counsel in a language 6 petitioner can understand; 7 b. a meaningful opportunity, and a minimum of ten days, to raise a fear-based 8 claim for protection under the Convention Against Torture prior to removal; 9 c. if petitioner is found to have demonstrated “reasonable fear” of removal to the 10 designated country, respondents must move to reopen petitioner’s immigration 11 proceedings; 12 d. if petitioner is not found to have demonstrated a “reasonable fear” of removal 13 to the country, respondents must afford petitioner a meaningful opportunity, 14 and a minimum of fifteen days, to seek to reopen his immigration proceedings. 15 5. The bond requirement of Federal Rule of Civil Procedure 65(c) is waived. Courts 16 regularly waive security in cases like this one. See, e.g. Zakzouk v. Becerra, No. 25-CV- 17 06254-KAW,

, at *8 (N.D. Cal. Oct. 10, 2025). 18 6. Respondents may file an additional brief related to the merits of the petition within 30 19 days, and petitioner may file a reply brief within 15 days of respondents’ brief. 20 Alternatively, the parties may stipulate to a different briefing schedule or to submitting the 21 petition on the merits based on the current record. 22 3 IT IS SO ORDERED. _ 24 4h Dated: _ November 6, 2025 25 UNITED STATES DISTRICT □ 26 27 28 17