Nguyen v. Rosa et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Vu Huy Trong Nguyen,
Petitioner,
v.
Luis Rosa, Jr., et al.,
Respondents.
No. CV-26-01568-PHX-DWL (JZB)
ORDER
This is a habeas corpus action under 28 U.S.C. § 2241 in which Petitioner challenges
the legality of his immigration detention and seeks release from custody. (Doc. 1.) The
petition is now fully briefed. (Docs. 7, 16.) For the reasons that follow, the petition is
denied.
BACKGROUND
Petitioner is a native and citizen of Vietnam who entered the United States in 1992
as a refugee. (Doc. 7-1 ¶¶ 4-5.) In 1998, Petitioner was convicted in California state court
of second-degree murder. (Id. ¶ 6.)
In September 2012, in anticipation of Petitioner’s release from state prison, the
United States initiated removal proceedings against Petitioner. (Id. ¶ 10.) In December
2012, Petitioner was released from state prison. (Id. ¶ 11.) On January 22, 2013, Petitioner
was ordered removed from the United States. (Id. ¶ 12.) However, only one week later,
on January 29, 2013, Petitioner was released from immigration custody pursuant to an
order of supervision (“OSUP”). (Id. ¶ 13. See also Doc. 1 at 6.)
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In March 2020, Petitioner pleaded guilty to a criminal driving offense and was
sentenced to probation. (Doc. 7-1 ¶ 14.)
On February 6, 2026, Petitioner was detained by Immigration and Customs
Enforcement (“ICE”). (Id. ¶ 16. See also Doc. 1 at 6.)
On February 11, 2026, ICE issued Petitioner “a Notice of Revocation of Release
which informed him that ICE revoked his OSUP pursuant to 8 C.F.R. § 241.13(i) because
of the following: Circumstances have changed such that there is a significant likelihood of
removal in the reasonably foreseeable future.” (Doc. 7-1 ¶ 17.)
On February 12, 2026, Petitioner participated in an interview “and was given an
opportunity to respond to the reasons for revocation of his [OSUP].” (Id. ¶ 18.)
On March 10, 2026, ICE “conduct a TD [travel documents] interview as part of the
TD request process.” (Id. ¶ 19.)
According to a declaration provided by an ICE officer, “ICE routinely obtains travel
documents for Vietnamese citizens, including those who immigrated to the United States
prior to 1995,” and “ICE routinely has flights to Vietnam.” (Id.¶¶ 23-24.) “Once ICE
receives a travel document for [Petitioner], his removal can be effectuated promptly.” (Id.
¶ 25.)
DISCUSSION
I. OSUP Revocation
A. The Parties’ Arguments
One of the grounds for relief asserted in the petition is that “ICE violated its own
rules & procedures in the revocation of parole ‘O.S.U.P’ without due process or authorizing
from ‘appropriate supervisor’ according to 8 C.F.R. 241.4 and 241.13. . . . He was not
served with a 8 U.S.C. § 1226(a) warrant, a revocation of parole notice or any type of
documentation signed by a supervisor. No such document has been produced.” (Doc. 1 at
6.)
In response, Respondents contend that “Petitioner incorrectly advised the court that
he had no notice of his revocation of OSUP when in fact, ICE did comply with applicable
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regulations . . . . Petitioner was given the proper notice and given an interview which
provided him an opportunity to respond to the reasons for revocation of his OSUP in
compliance with applicable regulations. Petitioner had also been convicted of Reckless
Driving since the time he was placed on OSUP.” (Doc. 7 at 2-3.) In support of these
contentions, Respondents cite the declaration from the ICE officer. (Doc. 7-1 ¶¶ 17-18.)
In reply, Petitioner makes no mention of the OSUP revocation issue and does not
attempt to controvert Respondents’ evidence regarding their asserted compliance with the
applicable regulations. (Doc. 16.)
B. Analysis
Under ICE’s regulations, it is permissible for ICE to detain an alien (such as
Petitioner) who was previously ordered removed from the United States and then released
on an OSUP “if, on account of changed circumstances, the Service determines that there is
a significant likelihood that the alien may be removed in the reasonably foreseeable future.”
8 C.F.R. § 241.13(i)(2).1 However, ICE’s regulations also set forth certain procedural
requirements that apply in this context:
Upon revocation, the alien will be notified of the reasons for revocation of
his or her release. The Service will conduct an initial informal interview
promptly after his or her return to Service custody to afford the alien an
opportunity to respond to the reasons for revocation stated in the notification.
Id. § 241.13(i)(3).
A habeas petitioner may challenge ICE’s compliance with these regulations under
the Accardi doctrine, which is “a commonplace [rule] of administrative law that an agency
must obey its own rules even if it had no obligation to create those rules in the first place.”
1 To the extent Petitioner asserts that he had a constitutional right to a pre-deprivation
hearing before his OSUP could be revoked, the Court respectfully disagrees for reasons
stated in prior orders. See, e.g., Nguyen v. Archambeault, No. CV-25-04052-PHX-DWL,
(D. Ariz. 2025), Doc. 15 at 7 (“[T]here is an ongoing debate in the lower courts about
whether an alien in Petitioner’s situation is entitled, as a matter of procedural due process,
to a pre-revocation hearing conducted by an independent decisionmaker before his OSUP
may be revoked based on alleged changed circumstances. Although some courts have held
or suggested that such a hearing is constitutionally required, this Court recently rejected
that argument on the ground that the procedures set forth in § 241.13(i)(3)—which provide
a mechanism for promptly challenging the basis for the revocation decision—supply all of
the process that is due in this context.”).
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32 C. Wright & A. Miller, Federal Practice and Procedure § 8172 (2d ed. Sept. 2025
update). See also Alcaraz v. I.N.S., 384 F.3d 1150, 1162 (9th Cir. 2004) (“The legal
proposition that agencies may be required to abide by certain internal policies is well-
established.”). To be clear, relief is not automatically warranted under the Accardi doctrine
whenever an agency violates its own regulations—such a violation can be harmless.
United States v. Calderon-Medina, 591 F.2d 529, 530-31 (9th Cir. 1979). See also
Grigorian v. Bondi, 2025 WL 2604573, *9 (S.D. Fla. 2025) (“It is a rather unremarkable
proposition that an agency must abide by its own regulations. Of course, not every agency
misstep will compel reversal of agency action, much less release of someone in custody.”)
(cleaned up). Even so, in recent months, many district courts have granted habeas relief
based on ICE’s violation of the procedural requirements set forth in § 241.13 when
purporting to revoke an OSUP. See, e.g., Phan v. Noem, 2025 WL 2898977, *5 (S.D. Cal.
2025) (“The Court’s research indicates that every district court, except one, to consider the
issue has determined that where ICE fails to follow its own regulations in revoking release,
the detention is unlawful and the petitioner’s release must be ordered. This Court reaches
the same conclusion. ICE’s failure to comply with both 8 C.F.R. § 241.4 and 8 C.F.R. §
241.13 violated Petitioner’s due process rights.”) (citations omitted); Grigorian, 2025 WL
2604573 at *10 (“The failure to provide Petitioner with an informal interview promptly
after his detention or to otherwise provide a meaningful opportunity to contest the reasons
for revocation violates both ICE’s own regulations and the Fifth Amendment Due Process
Clause. This compels Petitioner’s release. Courts around the country have concluded
likewise.”); Nguyen v. Archambeault, 2025 WL 3250922, *1-2 (D. Ariz. 2025). After all,
“[t]he opportunity to contest detention through an informal interview is not some ticky-
tacky procedural requirement; it strikes at the heart of what due process demands.”
Grigorian, 2025 WL 2604573 at *9.
Nevertheless, Petitioner is not entitled to habeas relief based on his OSUP
revocation claim for the simple reason that he has not established a violation of the
applicable regulations. Although Petitioner asserts, in his petition, that he never received
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a revocation notice, Respondents have challenged that assertion by providing sworn
evidence that Petitioner did, in fact, receive both the revocation notice and the prompt
informal interview required by the regulations. (Doc. 17-1 ¶ 17-18.) In his reply, Petitioner
does not challenge Respondents’ evidence on these points and seems to abandon his OSUP
revocation claim. On this record, relief is not warranted.2
II. Indefinite Detention/Zadvydas
A. The Parties’ Arguments
The remaining potentially cognizable3 ground for relief asserted in the petition is
that “[p]er [Zadvydas v. Davis, 533 U.S. 678 (2001)], Petitioner’s remova[l] is not
reasonably foreseeable [on] account ICE/DHS has had 13 plus years to facilitate removal,
his detention is not presumptively reasonable in violation of Fifth Amendment and 8 U.S.C.
§ 1231(a)(6) indefinite detention.. . . . In 13 years ICE/DHS has not produced travel
documents. Government has not produced evidence of removal in foreseeable future.”
(Doc. 1 at 6, cleaned up.)
Respondents disagree, arguing that “Petitioner was taken into custody on February
11, 2026, and ICE has taken active steps to remove any impediments towards removing
Petitioner to a Vietnam. . . . ICE intends to remove Petitioner to Vietnam and is actively
working to get travel documents and put Petitioner on a routine flight to Vietnam. ICE
regularly removes people with removal orders to Vietnam and anticipates no issues
removing this Petitioner. Additionally, Petitioner is within the six-month detention period
since he was brought into custody on February 11, 2026. Petitioner’s removal to Vietnam
is likely in the reasonably foreseeable future, [and] Petitioner’s continued detention is not
indefinite as contemplated in Zadvydas.” (Doc. 7 at 7.)
2 The Court notes that Respondents did not produce a copy of the actual revocation
notice—instead, they simply rely on the ICE officer’s avowal that a revocation notice was
issued and the ICE officer’s summary of the contents of the unproduced revocation notice.
Even though this showing is sufficient, on this record, to defeat Petitioner’s OSUP
revocation claim, Respondents would be better served in future cases to produce a copy of
the actual notice.
3 To the extent the petition contains challenges related to Petitioner’s conditions of
confinement (Doc. 1 at 7), those challenges are not cognizable in a habeas proceeding.
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In reply, Petitioner contends that “ICE has known for over thirteen years that it
cannot obtain travel documents that will facilitate [his] return to Vietnam. That is why he
was released from immigration detention on an order of supervision on January 29, 2013,
only seven days after an immigration judge ordered him removed from the United States.
ICE is no closer to obtaining travel documents now than it was in 2013. Nothing in the
declaration of [the ICE officer] says anything different. Indeed, respondents have produced
no evidence of ever having tried to obtain travel documents that would facilitate
[Petitioner’s] return to Vietnam.” (Doc. 16 at 1.) Petitioner adds that “[i]t does not matter
that [he] has only been in custody since February 11,” as “[a]ny argument that [his] claim
is premature is inconsistent with the text and structure § 1231(a) and the weight of the
caselaw interpreting it, including Zadvydas.” (Id. at 2-3.) Petitioner concludes: “Even if
respondents have requested travel documents from the Vietnamese Embassy, that is all
they can do. Vietnam has total discretion whether to issue a travel document to any
individual. Simply ‘processing an application’ for travel documents has no bearing on
whether removal is likely in the foreseeable future.” (Id. at 3, citation omitted.)
B. Analysis
Petitioner’s claim for relief arises under Zadvydas v. Davis, 533 U.S. 678 (2001).
The petitioners in that case were aliens who had been ordered removed from the United
States, had not been removed during the 90-day period following the issuance of the
removal order (which is sometimes known as the “removal period”), and were being held
in immigration custody pursuant to 8 U.S.C. § 1231(a)(6) pending the completion of the
removal process. The question presented in Zadvydas was “whether this post-removal-
period statute authorizes the Attorney General to detain a removable alien indefinitely
beyond the removal period or only for a period reasonably necessary to secure the alien’s
removal.” Id. at 682. The Court resolved that issue as follows:
[W]e think it practically necessary to recognize some presumptively
reasonable period of detention. . . . While an argument can be made for
confining any presumption to 90 days, we doubt that . . . Congress . . .
believed that all reasonably foreseeable removals could be accomplished in
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that time. We do have reason to believe, however, that Congress previously
doubted the constitutionality of detention for more than six months.
Consequently, for the sake of uniform administration in the federal courts,
we recognize that period. After this 6-month period, once the alien provides
good reason to believe that there is no significant likelihood of removal in
the reasonably foreseeable future, the Government must respond with
evidence sufficient to rebut that showing. And for detention to remain
reasonable, as the period of prior postremoval confinement grows, what
counts as the “reasonably foreseeable future” conversely would have to
shrink. This 6-month presumption, of course, does not mean that every alien
not removed must be released after six months. To the contrary, an alien
may be held in confinement until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable future.
Id. at 701.
On the one hand, the Court agrees with Petitioner that his Zadvydas challenge is not
“premature” even though he filed his petition “before the end of the presumptively
reasonable six-month period.” (Doc. 16 at 2, cleaned up.) True, some courts appear to
have interpreted Zadvydas as foreclosing relief in this circumstance.4 But that
interpretation is difficult to reconcile with Zadvydas’s clarification that it was simply
establishing a presumption that detention not exceeding six months is constitutional.
Zadyvdas did not hold that this presumption is conclusive in all cases and under all sets of
facts—a point the Supreme Court emphasized in a subsequent case. Clark v. Martinez,
4 See, e.g., Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002) (“[I]n order to
state a claim under Zadvydas the alien not only must show post-removal order detention in
excess of six months but also must provide evidence of a good reason to believe that there
is no significant likelihood of removal in the reasonably foreseeable future.”); Chance v.
Napolitano, 453 F. App’x 535, 536 (5th Cir. 2011) (“Chance had not been in post-removal-
order detention longer than the presumptively reasonable six-month period set forth in
[Zadvydas]. Consequently, the district court did not err in finding that his challenge to his
continued post removal detention was premature.”); Singh v. Immigration and Customs
Enforcement Field Office Director, 2025 WL 307635, *2 (W.D. Wash. 2025) (“[T]he six-
month presumptively reasonable period for Petitioner’s detention will not expire until
February 2025. Given that his detention is presumed reasonable until at least that time,
Petitioner has failed to raise a constitutional concern regarding his continued detention.”);
Luong v. Gonzales, 2007 WL 3342727, *6 (D. Ariz. 2007) (“Petitioner’s post-removal
order detention has not yet approached the six-month period deemed presumptively
reasonable by the Supreme Court. Petitioner seeks release before the expiration of the
presumptive six-month removal period and, therefore, his challenge to his detention under
Zadvydas is not ripe for review.”) (citations omitted).
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543 U.S. 371, 384 (2005) (“We also reject the Government’s argument that, under
Zadvydas, § 1231(a)(6) authorizes detention until it approaches constitutional limits. The
Government provides no citation to support that description of the case—and none exists.
Zadvydas did not hold that the statute authorizes detention until it approaches constitutional
limits; it held that, since interpreting the statute to authorize indefinite detention (one
plausible reading) would approach constitutional limits, the statute should be read (in line
with the other plausible reading) to authorize detention only for a period consistent with
the purpose of effectuating removal. If we were, as the Government seems to believe, free
to ‘interpret’ statutes as becoming inoperative when they ‘approach constitutional limits,’
we would be able to spare ourselves the necessity of ever finding a statute unconstitutional
as applied.”) (cleaned up). As a result, some courts have concluded that an alien being
detained pursuant to § 1231(a)(6) may bring a constitutional challenge to his confinement
even if the period of confinement has not yet reached the six-month mark. See, e.g., Zavvar
v. Scott, 2025 WL 2592543, *6 (D. Md. 2025) (“[T]he fact that Zavvar has not yet been
detained for six months does not preclude his argument that his detention is unlawful, both
because the six-month presumption does not necessarily control in cases in which the
petitioner was not subject to continuous detention from the issuance of the removal order,
and because the six-month presumption is rebuttable.”); Munoz-Saucedo v. Pittman, 789
F. Supp. 3d 387, 396 (D.N.J. 2025) (“Although some courts have read Zadvydas as creating
a bright-line rule—one that effectively allows the government to detain a person for at least
six months without judicial review, even if there was no possibility of removal—a close
reading of Zadvydas does not support that interpretation.”); Trinh v. Homan, 466 F. Supp.
3d 1077, 1093 (C.D Cal. 2020) (“Zadvydas established a ‘guide’ for approaching detention
challenges, not a categorical prohibition on claims challenging detention less than six
months.”); Cesar v. Achim, 542 F. Supp. 2d 897, 903 (E.D. Wisc. 2008) (“Nothing about
this scheme supports the conclusion drawn by many courts that the presumptive legality of
detention within the first six months is irrebuttable. The Zadvydas Court did not say that
the presumption is irrebuttable, and there is nothing inherent in the operation of the
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presumption itself that requires it to be irrebuttable.”). The Court agrees with those
decisions.5
On the other hand, although Petitioner is not foreclosed from pursuing a Zadvydas
claim under these circumstances, the timing of his request means he faces a difficult
burden. Petitioner’s order of removal was issued on January 22, 2013 (and presumably
became final that day) and Petitioner was released from immigration custody pursuant to
an OSUP on January 29, 2013. At that time, Petitioner had only been detained pursuant to
8 U.S.C. § 1231(a) for seven days. Petitioner was then re-detained by ICE on February 6,
2026 and filed this action on March 6, 2026 (28 days later). As of today, May 18, 2026,
Petitioner has spent 101 days in immigration custody pursuant to § 1231(a) since being
redetained and 108 aggregate days in immigration custody pursuant to § 1231(a) when both
detention terms are considered. “Within the six-month window, the detainee must prove
the unreasonableness of detention, and courts must accord great deference to Executive
Branch determinations based on foreign policy expertise and administrative necessity.
After the expiration of six months, the detainee need only offer a valid reason why removal
is unforeseeable, which the government must then disprove. And as time passes, the burden
on the government increases accordingly.” Cesar, 542 F. Supp. 2d at 903.
On this record, Petitioner has not met his burden. First, Respondents have come
forward with evidence establishing that they are making efforts to obtain travel documents
for Petitioner. (Doc. 7-1 ¶ 19 [“On March 10, 2026, ICE conducted a TD interview as part
5 The Court acknowledges that several Ninth Circuit cases contain passages that can
be construed as suggesting that a Zadvydas claim may only be brought after the six-month
mark. Prieto-Romero v. Clark, 534 F.3d 1053, 1062 (9th Cir. 2008) (“Zadvydas . . . held
that after a presumptively reasonable six-month period of post-removal period detention,
the alien was entitled to release if he successfully demonstrated that there was good reason
to believe there is no significant likelihood of removal in the reasonably foreseeable
future.”) (citation omitted); Arango Marquez v. I.N.S., 346 F.3d 892, 898-99 (9th Cir. 2003)
(“Section 1231(a)(6) does not authorize indefinite post-removal period detention, but
instead imposes an implied six-month limit on such detention, provided that removal is not
reasonably foreseeable.”); Xi v. U.S. I.N.S., 298 F.3d 832, 840 (9th Cir. 2002) (“Having
spent considerably more than six months in detention, Lin is entitled to make a showing in
federal court that his removal to China is not reasonably foreseeable”). However, the Court
does not view those passages as constituting binding circuit law on this issue because they
did not “resolve[] it after reasoned consideration.” United States v. McAdory, 935 F.3d
838, 843 (9th Cir. 2019).
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of the TD request process.”].) Second, although there’s no guarantee Vietnam will respond
favorably to that request, Respondents’ evidence suggests they have succeeded in obtaining
travel documents for other Vietnamese citizens who entered the United States before 1995.
(Id. ¶ 23.) Although Respondents’ submission on this point is regrettably conclusory,
recent developments in other cases give the Court comfort in accepting the truth of this
assertion. See, e.g., Nguyen v. Warden, 2026 WL 1123448, *2-3 (C.D. Cal. 2026) (denying
Zadvydas-based request for injunctive relief sought by a Vietnamese habeas petitioner who
entered the United States before 1995 and citing other recent decisions in which Zadvydas
claims asserted by Vietnamese habeas petitioners were mooted due to their mid-lawsuit
removal to Vietnam, including at least one case that “involved a pre-1995 immigrant”);
Tran v. Rivas, 2026 WL 594811, *3 (D. Ariz. 2026) (denying Zadvydas-based habeas
petition filed by a Vietnamese petitioner who entered the United States before 1995 and
noting that “Vietnamese nationals . . . have been successfully removed in the past months
under the current administration”); Do v. Rivas, No. CV-25-04052-PHX-DWL, (D. Ariz.
2025), Doc. 1 ¶¶ 10-11, 20 (Zadvydas-based habeas petition filed by Vietnamese petitioner
who was granted lawful permanent resident status in the United States in 1989 but was
later ordered removed); id., Doc. 24 (denying case as moot based on the petitioner’s
removal to Vietnam). Given this backdrop, where Petitioner has been in immigration
custody for less than four months and where Respondents are engaged in ongoing efforts
(which have been successful in recent similar cases) to obtain travel documents that will
facilitate Petitioner’s removal to Vietnam, Petitioner is not entitled at this time to release
from custody under Zadvydas.
…
…
…
…
…
…
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Accordingly,
IT IS ORDERED that the habeas petition (Doc. 1) is denied. The Clerk shall enter
judgment accordingly and terminate this action.
Dated this 18th day of May, 2026.
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