Ngo v. US Dept of Homeland Security et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DIEN XUAN NGO, §
§
Petitioner, §
§
v. § No. 3:25-cv-1943-L (BT)
§
KRISTI NOEM, et al., §
§
Respondents. §
FINDINGS, CONCLUSION, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner, a native and citizen of Vietnam, challenges his immigration
detention in a petition for a writ of habeas corpus under 28 U.S.C. § 2241. As
explained below, the District Judge should deny Petitioner’s habeas claims and
dismiss this action.
Background
Petitioner entered the United States as a refugee in or around 1980, when
he was five or six years old, and later obtained lawful permanent resident status.
Pet. ¶ 14 (ECF No. 2); Resp’ts’ App. 003 ¶ 4 (ECF No. 13). Forty years later, he was
convicted in state district court on seven counts of Burglary of Habitation and was
sentenced to five years’ confinement on each count, to be served concurrently. See
Resp’ts’ App. 007–34; Resp. at 1. Thereafter, the United States Department of
Homeland Security issued Petitioner a Notice to Appear initiating removal
proceedings in immigration court, and an immigration judge ordered Petitioner
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removed. Resp’ts’ App. 036, 041; Pet’r’s App. at 76–77. Petitioner does not
challenge this decision and “is not attempting to stop his removal to Vietnam now.”
Reply at 3.
In 2023, United States Immigration and Customs Enforcement’s (ICE)
Enforcement Removal Operations (ERO) determined that it could not remove
Petitioner, Pet. ¶ 17; Resp. at 2, so—after 85 days in immigration custody—
Petitioner was released under an Order of Supervision (OSUP). TRO at 2; Resp. at
2. But on July 22, 2025, during Petitioner’s annual check-in under the OSUP, ICE
took Petitioner into custody and transported him to the ICE-ERO Dallas Field
Office, and then to the Prairieland Detention Center in Alvarado, Texas. Pet. ¶¶ 19,
21; Joint Status Report (JSR) at 2 n.1 (ECF No. 17).1
Petitioner, represented by counsel, filed an Emergency Petition for Writ of
Habeas Corpus (ECF No. 2) and an Emergency Motion for Temporary Restraining
Order and/or Preliminary Injunction (TRO) (ECF No. 4) raising two primary
arguments challenging the legality of his detention: that (i) ICE failed to follow the
removal procedures required by 8 C.F.R. § 241.13(i); and (ii) his removal is not
1 As of September 2, 2025, Petitioner was detained at the Florence Correctional
Center in Florence, Arizona. JSR at 2. The parties do not dispute that this Court
continues to have jurisdiction over these proceedings as Petitioner was detained in
this District when he filed his petition. JSR at 2 n.1. See Griffin v. Ebbert, 751 F.3d
288, 290–91 (5th Cir. 2014) (“Jurisdiction attached on that initial filing for habeas
corpus relief [under § 2241], and it was not destroyed by the transfer of petitioner.
. . .”).
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significantly likely in the reasonably foreseeable future, thus violating his rights
under the Due Process Clause of the Fifth Amendment to the United States
Constitution. See Pet. ¶¶ 69–73. Petitioner’s habeas application and TRO are ripe
for determination.2
Legal Standards
Aliens subject to a removal order may file a habeas corpus petition under 28
U.S.C. § 2241 when they wish to challenge their post-removal-period detention on
constitutional grounds. See Zadvydas v. Davis, 533 U.S. 678, 687–99 (2001). On
May 11, 2005, Congress enacted the Real ID Act, stripping district courts of
jurisdiction over § 2241 petitions attacking removal orders. See 8 U.S.C. §
1252(a)(B)(ii). But district courts may exercise habeas jurisdiction to review
challenges to post-removal-period detentions that do not attack removal orders.
See I.N.S. v. St. Cyr, 533 U.S. 289, 312–13 (2001); Baez v. Bureau of Immigr. &
Customs Enf’t, 150 F. App’x 311, 312 (5th Cir. 2005) (per curiam) (“Section 106(a)
of the [REAL ID] Act does not, however, preclude habeas review of challenges to
detention that are independent of challenges to removal orders.”).
Further, § 2241 grants district courts “the authority to grant writs of habeas
corpus ‘within their respective jurisdictions.’ ” See Lee v. Wetzel, 244 F.3d 370, 373
(5th Cir. 2001) (citing 28 U.S.C. § 2241). Thus, a district court has jurisdiction to
2 The parties do not oppose consolidating the issues before the Court. JSR at 1.
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entertain an alien’s habeas petition under § 2241 if that alien is detained within
that court’s district or otherwise filed his habeas application while detained within
the court’s district. Id. at 374–75; Griffin v. Ebbert, 751 F.3d 288, 290–91 (5th Cir.
2014) (“Jurisdiction attached on that initial filing for habeas corpus relief
[under § 2241], and it was not destroyed by the transfer of petitioner. . . .”).
A district court may grant a writ of habeas corpus to any person who shows
he is in custody in violation of the Constitution or laws of the United States. 28
U.S.C. § 2241(c)(3). The right to challenge confinement “through a petition for a
writ of habeas corpus . . . extends to those persons challenging the lawfulness of
immigration-related detention.” Deng Chol A. v. Barr, 455 F. Supp. 3d 896, 900–
01 (D. Minn. Apr. 22, 2020) (citing Preiser v. Rodriguez, 411 U.S. 475, 485 (1973);
Zadvydas, 533 U.S. at 687; and Demore v. Kim, 538 U.S. 510, 517 (2003)).
“Petitioner ‘bears the burden of proving that he is being held contrary to law;
and because the habeas proceeding is civil in nature, he must satisfy his burden of
proof by a preponderance of the evidence.’” Aditya W.H. v. Trump, 2025 WL
1420131, at *7 (D. Minn. May 14, 2025), vacated on other grounds (citing Freeman
v. Pullen, 658 F. Supp. 3d 53, 58 (D. Conn. 2023) (quoting in turn McDonald v.
Feeley, 535 F. Supp. 3d 128, 135 (W.D.N.Y. 2021)); Lallave v. Martinez, 609 F.
Supp. 3d 164, 171 (E.D.N.Y. 2022) (quoting in turn Skaftouros v. United States,
667 F.3d 144, 158 (2d Cir. 2011)); Bradin v. United States Prob. & Pretrial Servs.,
2022 WL 1154622, at *3 (D. Kan. Apr. 19, 2022) (citing cases discussing burden of
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proof in a habeas case under § 2241)) (cleaned up).
Analysis
I. Petitioner is not entitled to relief for alleged violations of 8 C.F.R.
§ 241.13(i).
Section 8 C.F.R. § 241.13 “establishes special review procedures for those
aliens who are subject to a final order of removal and are detained under the
custody review procedures provided at [8 C.F.R.] § 241.4.” 8 C.F.R. § 241.13(a).
Section (i) of this regulation allows ICE to revoke an alien’s release “if, on account
of changed circumstances,” it is determined 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). Upon such determination, ICE must follow specific procedures:
[T]he 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. The alien may submit any
evidence or information that he or she believes shows there is
no significant likelihood he or she be removed in the reasonably
foreseeable future, or that he or she has not violated the order
of supervision. The revocation custody review will include an
evaluation of any contested facts relevant to the revocation and
a determination whether the facts as determined warrant
revocation and further denial of release.
Id. § 241.13(i)(3).
Petitioner states that ICE “provided no notice, no evidence, and no finding
of any changed circumstance specific to [Petitioner].” TRO at 4. Instead, Petitioner
alleges, ICE “summarily detained him during a routine annual check-in.” Id. at 4.
Respondents disagree. See Resp. at 6–8.
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a. Respondents did not violate the procedural requirements of
8 C.F.R. 241.13(i)(3).
There is authority in this District confirming that alien re-detainees with
final orders of removal are entitled “to notice, an informal interview, and a limited
opportunity to respond and present information regarding the changed
circumstances” under 8 C.F.R. § 241.13(i)(3). See Nguyen v. Noem, 797 F. Supp.
3d 651, 663 (N.D. Tex. Aug. 10, 2025). As stated, Petitioner claims that ICE failed
to abide by these procedural requirements. Reply at 11. But Respondents assert
that they have complied with these requirements:
Petitioner was notified of the reason for the revocation of his
release (namely, a significant likelihood removal could be
effectuated due to changed circumstances between the United
States and the Socialist Republic of Vietnam) and was given an
informal interview. Petitioner was not entitled to additional
process under the regulations.
Resp. at 7 (internal citation omitted). In support, Respondents provide a
declaration from an ICE Deportation Officer (DO), who is assigned to Petitioner’s
case:
At the time of his arrest, [Petitioner] was informed that he
would be detained because he was subject to a final order of
removal and there is now a likelihood of removal back to
Vietnam. In accordance with 8 C.F.R. § 241.13(i)(3),
[Petitioner] was informed that the reason for his revocation was
that ICE believed that he could be removed to Vietnam.
[Petitioner] was given the opportunity to respond during this
informal interview.
App. 004 ¶ 10.
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Petitioner argues that these assertions from Respondents are conclusory
and devoid of factual detail. Reply at 18.
First, Petitioner notes that the DO’s declaration “fails to state who conducted
the interview, what specific information was provided to [Petitioner], or how he
was given a meaningful opportunity to respond.” Id. Petitioner also highlights that
the DO “does not claim to have personal knowledge of the arrest, and his duties
appear to be administrative, suggesting his statements are based on a second-hand
file review.” Id.
Second, Petitioner states that Respondents have failed to provide
contemporaneous documentation of the alleged informal interview. Id. “Based on
information, belief, and [counsel’s] extensive experience,” Petitioner contends that
ICE documents arrests “as a matter of course on documents such as an I-213
Record of Deportable Alien, or other relevant forms.” Id. at 17 n.29. “Instead of
such evidence, ICE has submitted a declaration that does not even purport to be
from the officer who re-detained [Petitioner] on July 22, 2025.” Id.
Petitioner cites several cases from outside this jurisdiction suggesting that
the failure to provide notice and an interview under § 241.13(i) is a failure
warranting immediate release from detention. Id. at 19 (citing cases). But this
authority is not binding on the Court.
Petitioner offers only conclusory statements to rebut Respondents’
contentions that they complied with all relevant procedural requirements. And
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similar arguments did not persuade the court in Nguyen v. Noem. 797 F. Supp. 3d
at 661–62.3 Rather, the court in Nguyen found that a DO’s sworn declaration as to
compliance with the procedural requirements of § 241.13(i) was enough to
undermine the petitioner’s similar assertions that he was not provided the process
to which he was entitled under § 241.13(i). Id. at 662.
Moreover, the court in Nguyen relied on the presumption of regularity to
resolve any factual dispute:
The presumption of regularity supports the official acts of
public officers and requires courts to presume that they have
properly discharged their official duties. See United States v.
Armstrong, 517 U.S. 456, 464 (1996). This presumption applies
to government agencies. U.S. Postal Serv. v. Gregory, 534 U.S.
1, 10 (2001). “[T]he presumption of regularity is subject to be
rebutted” and “stands until dislodged.” R.H. Stearns Co. of
Boston v. United States, 291 U.S. 54, 63 (1934). The petitioner
in a habeas proceeding bears the burden of displacing the
presumption: “[i]t cannot be argued, without factual support,
that the [respondents] failed to do [their] full duty with an
intelligent, competent[,] and understanding appreciation of all
of [their] . . . obligations.” Bute v. People of State of Ill., 333 U.S.
640, 671 (1948).
Id. Because the DO in Nguyen was a supervisory officer familiar with the
petitioner’s case and provided a declaration under penalty of perjury—and because
the petitioner only provided bare assertions that the procedural requirements were
not met—the court in Nguyen concluded that Respondents did not violate §
241.13(i). Id. Importantly, the DO in Nguyen, was not the officer who re-detained
3 Petitioner’s counsel here also represented the petitioner in Nguyen v. Noem, 797
F. Supp. 3d 651, 663 (N.D. Tex. Aug. 10, 2025).
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the petitioner. See Nguyen v. Noem, 6:25-cv-057-H, ECF No. 14, App. 002–03
(N.D. Tex. July 28, 2025).
The analysis in Nguyen is persuasive. See Yates v. Collier, 677 F. App’x 915,
918 n.8 (5th Cir. 2017) (quoting Salter v. Continental Cas. Co., 2004 WL 5573421,
at *5 (M.D. Ga. Oct. 29, 2004)) (noting that “district courts are ‘inclined to follow
the example of other district courts within [their] circuit”). Here, just as in Nguyen,
Petitioner only provides bare assertions that ICE failed to comply with § 241.13(i).
And those bare assertions are insufficient to rebut the presumption of regularity or
show that Respondents did not violate the procedural requirements of § 241.13(i).
b. Even if Respondents violated relevant procedural
requirements, such error is harmless.
“Harmless error applies in immigration cases generally.” Nguyen, 797 F.
Supp. 3d at 662 (citing Jalloh v. Garland, 2023 WL 1859918, at *2 (4th Cir.
2023) (citing in turn Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004))
(further citation omitted)). The same is true for an agency’s procedural
violations. See City of Arlington v. FCC, 668 F.3d 229, 243–44 (5th Cir. 2012).
Under a harmless-error analysis, the party asserting error bears the burden of
proving prejudice. Id. at 243.
In Nguyen, the court determined that violations of ICE’s procedural
requirements found in § 241.13 are harmless. See Nguyen, 797 F. Supp. 3d at 662–
63. The court reasoned that the petitioner challenging these violations “received
more procedure than he was due under 8 C.F.R. § 241.13(i)(3)” through litigation.
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Id. Indeed, the petitioner “had the opportunity to obtain counsel,” “make a full
argument to a federal court regarding his detention, submit evidence, and respond
to the respondents’ arguments.” Id. The court added that the petitioner was also
“provided information of a scope greater than what he was entitled to
under Section 241.13(i)(3)” and “given the opportunity for review from a federal
court, which . . . reviewed questions of law de novo.” Id.
Since, in the court’s opinion, the petitioner “had more than a full notice and
opportunity to be heard,” the court concluded that “even if the respondents failed
to abide by Section 241.13(i)(3), the error [was] now harmless in light of the
procedures in this case.” Id. And, because “habeas is not backward-looking, . . . the
process [provided to the petitioner] render[ed] forward-looking relief separately
inappropriate.” Id.; see also id. at 670 (“In habeas, the Court does not review all
possible previous errors, it asks only whether the confinement is justified.”).
Again, this reasoning is persuasive. Through these proceedings, Petitioner
has received notice of the revocation of his release, the reason for such revocation,
and ample opportunity to respond to Respondents’ arguments.
So even if Respondents failed to comply with the procedural requirements
of § 241.13, the Court should decline to grant habeas relief on such grounds at this
time.
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c. Even if Respondents failed to abide by the requirements of
8 C.F.R. § 241.13(i)(3), and the error were harmful, a writ of
habeas corpus would not be the appropriate remedy.
Petitioner contends that “when ICE fails to provide the interview and notice
required by § 241.13(i), its decision to re-detain is invalid and release is the proper
remedy.” Reply at 19. In support of this contention, Petitioner cites various cases,
none of which are binding on this Court. See id. (citing cases). But courts in this
Circuit have found that “a violation of § 241.13(i)(3) alone cannot justify habeas
relief.” Nouansisouhak v. Noem, 2025 WL 3165161, at *6 (N.D. Tex. Oct. 9, 2025),
rec. adopted, 2025 WL 3161730 (N.D. Tex. Nov. 12, 2025); see also Nguyen, 797
F. Supp. 3d at 661–62. Rather, § 241.13(i)(3) “is a mere administrative regulation,
not required as the result of the Constitution.” Nouansisouhak, 2025 WL 3165161,
at *6 (citing United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272–73
(2010)).
Petitioner has also failed to explain why the alleged failure to follow the
procedures of Section 241.13(i)(3) render his detention itself unlawful. Under the
plain language of the regulation, notice and an informal interview are not
prerequisites for detention. The regulation contemplates that these procedures will
occur after detention begins because notice is to happen “upon revocation” and the
initial informal interview occurs “after [the alien’s] return to [ICE] Custody.” 8
C.F.R. § 241.13(i)(3). The alien may then “submit any evidence or information that
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he or she believes shows there is no significant likelihood he or she be removed in
the reasonably foreseeable future.” Id.
Habeas is limited to grant relief from unlawful imprisonment or custody.
Nguyen, 797 F. Supp. 3d at 665 (citing Pierre v. United States, 525 F.2d 933, 935–
36 (5th Cir. 1976)). Zadvydas held that courts can review statutory and
constitutional challenges to post-removal-period detention, 533 U.S. at 688, but
the Court lacks jurisdiction over other challenges arising from decisions or actions
to initiate proceedings, adjudicate cases, or execute removal orders, 8 U.S.C. §
1252(g). Thus, even if Respondents did not abide by the requirements of §
241.13(i)(3), it need not follow that the Court must order Respondents to fulfill
these administrative requirements through a habeas petition. See Nguyen, 797 F.
Supp. 3d at 665.
For all the reasons stated above, the District Judge should deny Petitioner’s
habeas application and dismiss this action.
II. Because circumstances have changed and there is now a
significant likelihood that Petitioner may be removed to Vietnam
in the reasonably foreseeable future, Respondents did not
violate 8 C.F.R. § 241.13(i)(2) or the Fifth Amendment.
Petitioner also claims that his continued detention violates his due process
rights because he does not believe Respondents can remove him to Vietnam in the
reasonably foreseeable future. See Pet. ¶¶ 72–73. Petitioner insists that, while
Zadvydas does not apply to this action, the Court should follow the constitutional
principles set forth in that case and order his release. Reply at 7–8.
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The Court agrees that Zadvydas does not apply here. See Escalante, 2025
WL 2206113, at *3 (“Zadvydas . . . dealt with the initial detainment of an alien
awaiting removal. After Zadvydas, the immigration regulations were revised to
implement administrative review procedures for those aliens detained beyond the
removal period, including those who are re-detained upon revocation of their
supervised release.”); Nguyen, 797 F. Supp. 3d at 670 (noting that Zadvydas “is
about detention under 8 U.S.C. § 1231(a)(6), not re-detention in anticipation of
removal under 8 C.F.R. 241.13(i)”). But other courts in this Circuit have indeed
cited Zadvydas in re-detention cases. See Nouansisouhak, 2025 WL 3165161, at
*3; Trejo v. Warden of ERO El Paso E. Montana, 2025 WL 2992187, at *4 (W.D.
Tex. Oct. 24, 2025) (applying Zadvydas framework to habeas application
challenging re-detention). Regardless, Petitioner has failed to provide sufficient
evidence challenging the likelihood of his removability.
ICE derives its authority to detain noncitizens under federal law from 8
U.S.C. § 1231, which directs the Attorney General of the United States to effect the
removal of any noncitizen from this country within 90 days of any order of
removal. 8 U.S.C. § 1231(a)(1). The statute provides that, during the 90-day
removal window, aliens ordered removed are to be detained. Id. § 1231(a)(2).
Aliens “may be detained beyond the removal period” if they are removable
under 8 U.S.C. § 1227(a)(1)(C) or 8 U.S.C. § 1227(a)(2). Id. § 1231(a)(6). 8 U.S.C. §
1227(a)(1)(C)(i) provides that “[a]ny alien who was admitted as a nonimmigrant
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and who has failed to maintain the nonimmigrant status in which the alien was
admitted or to which it was changed . . ., or to comply with the conditions of any
such status, is deportable.” Similarly, § 1227(a)(2)(E)(i) allows the deportation of
“[a]ny alien who at any time after admission is convicted of a crime of domestic
violence.” Petitioner does not contest that he is removable under 8 U.S.C. §
1227(a)(1)(C) or 8 U.S.C. § 1227(a)(2)(E)(i).
The Supreme Court of the United States clarified these statutory provisions
in Zadvydas. 533 U.S. 678. In that case, the Supreme Court determined that the
government may not use § 1231 to detain aliens indefinitely. Id. at 699.
Rather, “once removal is no longer reasonably foreseeable, continued detention is
no longer authorized by statute.” Id. Courts facing these questions “must ask
whether the detention in question exceeds a period reasonably necessary to secure
removal.” Id.
Reasonableness is measured “primarily in terms of the statute’s basic
purpose, namely, assuring the alien’s presence at the moment of removal.” Id.
“[T]o limit the occasions when courts will need to make” difficult judgments, the
Supreme Court recognized a “presumptively reasonable period of detention” of six
months. Id. at 700–01. After that six-month period, the alien has the burden of
providing “good reason to believe that there is no significant likelihood of removal
in the reasonably foreseeable future.” Id. at 701. After providing such a reason, the
burden shifts to the government to provide evidence to rebut the alien’s
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showing. Id. “[A]n 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.
And under § 241.13(i)(2), ICE may revoke a noncitizen’s release for purposes
of removal “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).
“These regulations clearly indicate, upon revocation of supervised release, it
is [ICE’s] burden to show a significant likelihood that the alien may be removed.”
Escalante, 2025 WL 2206113, at *3. Otherwise, “[i]mposing the burden of proof
on the alien each time he is re-detained would lead to an unjust result and serious
due process implications.” Id.
But the plain language of § 241.13(i)(2) does not allow a court, in the first
instance, to make an individualized finding that a changed circumstances has
occurred. Van Nguyen v. Hyde, 2025 WL 1725791, at *3 (D. Mass. Jun. 20,
2025) (quoting Kong v. United States, 62 F.4th 608, 620 (1st Cir. 2023)). Instead,
when ICE claims that it made such a determination, the court should review that
claim considering the factors set out in 8 C.F.R. § 241.13(f) “instructing ICE on how
it should make such a determination.” Id. These factors include but are not limited
to:
[T]he history of the alien’s efforts to comply with the order of
removal, the history of the Service’s efforts to remove aliens to
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the country in question or to third countries, including the
ongoing nature of the Service’s efforts to remove this alien and
the alien’s assistance with those efforts, the reasonably
foreseeable results of those efforts, and the views of the
Department of State regarding the prospects for removal of
aliens to the country or countries in question.
8 C.F.R. § 241.13(f).
a. ICE was not required to make an individualized
determination of the likelihood of removal.
Respondents argue that, due to a ‘change in circumstances” and because the
United States has requested travel documents for Petitioner, there is now a high
probability Petitioner will be removed in the reasonably foreseeable future
pursuant to 8 C.F.R. § 241.13(i)(2).” Resp. at 4—5. The “change in circumstance”
is that, previously, Vietnam refused to repatriate so-called “pre-1995
immigrants”—Vietnamese nationals who arrived in the United States as refugees
before July 12, 1995—like Petitioner, Pet. ¶¶ 35, 37; see also Pet’r’s App., Ex. 4;
Trinh v. Homan, 466 F. Supp. 3d 1077, 1083 (C.D. Cal. 2020), and because ICE
determined that removal of pre-1995 immigrants was “unlikely” given Vietnam’s
refusal to repatriate them, ICE generally released detained pre-1995 immigrants
with final orders of removal under OSUPs. Trinh, 466 F. Supp. 3d at 1083; Pet. ¶
40. But in 2020, the United States and Vietnam signed a Memorandum of
Understanding (2020 MOU) expressly providing for the removal of pre-1995
immigrants to Vietnam; and in June 2025, ICE rescinded the practice of releasing
pre-1995 immigrants with final orders of removal. See Pet’r’s, Exs. 2 & 4.
Respondents claim that ERO chartered a flight to remove several pre-1995
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immigrants on July 15, 2025, and expected another chartered removal flight on
August 11, 2025. Resp’ts’ App. 004 ¶ 14. Respondents also note that “some
individuals are being removed to Vietnam on commercial flights.” Id. 005 ¶ 16. As
for Petitioner, the United States government is gathering travel documents to
facilitate his removal. Id. at 5–6.
But Petitioner insists that this “generalized information does not provide the
Court with an idea of how likely any given pre-1995 Vietnam immigrant is to be
issued travel documents.” Reply at 13–14. He cites authority from outside this
Circuit for the proposition that ICE’s decision to re-detain him “is governed by
ICE’s own regulation requiring (1) an individualized determination (2) by ICE that,
(3) based on changed circumstances, (4) removal has become significantly likely
in the reasonably foreseeable future.” Pet. ¶ 66 (citations omitted).
The requirement for an individualized determination purportedly derives
from the text of § 241.13(i) and (f).4 But courts in this District have concluded that
4 The text of § 241.13(f) reads as follows:
Factors for consideration. The HQPDU shall consider all the
facts of the case including, but not limited to, the history of the
alien’s efforts to comply with the order of removal, the history
of the Service’s efforts to remove aliens to the country in
question or to third countries, including the ongoing nature of
the Service’s efforts to remove this alien and the alien’s
assistance with those efforts, the reasonably foreseeable results
of those efforts, and the views of the Department of State
regarding the prospects for removal of aliens to the country or
countries in question. Where the Service is continuing its efforts
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neither provision requires ICE to make an “individualized determination” about
the likelihood of removal. See Nguyen, 797 F. Supp. 3d at 665–68;
Nouansisouhak, 2025 WL 3165161, at *4.
In Nguyen, the court disagreed that § 241.13(i) required ICE to make an
“individualized determination” about the likelihood of removal. Id. at 665–66. The
court reasoned that, contrary to the petitioner’s arguments, “general changes” to
the United States’s ability to remove a category of people can satisfy this regulatory
authority:
There is no reason that a broad change in circumstances that
applies to a broad group of aliens cannot have the effect of
changing the circumstances of each of those particular aliens
and thus let ICE determine that there is a significant likelihood
that the alien may be removed in the reasonably foreseeable
future. The changed circumstances need to be applicable to [the
petitioner], but that does not mean that they must be unique to
[the petitioner].
Nguyen, 797 F. Supp. 3d at 665–68.
The court also explained that the plain text of § 241.13(i) rebuffed an
interpretation that would require a particularized determination of removability:
The changed circumstances need not be that [the petitioner’s]
removal be certain or immediate. Rather, there need only be a
significant likelihood that removal in the reasonably
foreseeable future may occur. Any reading of this requirement
based on these two phrases alone would not support [the
petitioner’s] contention that meaningful changes in the
to remove the alien, there is no presumptive period of time
within which the alien’s removal must be accomplished, but the
prospects for the timeliness of removal must be reasonable
under the circumstances.
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diplomatic relationship between the United States and Vietnam
would be insufficient as a matter of law.
Id. at 666 (quoting 8 C.F.R. § 241.13(i)(2)). And the court noted that § 241.13(i)(2)
specifically delegated the question of whether removal is likely to ICE, not to the
court: “[ICE] may revoke an alien’s release . . . if . . . [ICE] determines that there
is a significant likelihood that the alien may be removed in the reasonably
foreseeable future.” Id. (emphasis added). The court was, therefore, hesitant to
encroach on the authority of the Executive Branch and “the Nation's need to ‘speak
with one voice’ in immigration matters.” Id. (quoting Zadvydas, 533 U.S. at 700).
The court similarly disagreed that § 241.13(f) supported the need for an
individualized determination. Id. The court explained that this provision pertains
to “a completely separate procedure—the initial determination of whether to place
a detained alien on probation.” Id. So § 241.13(f) was “irrelevant” to re-detention
under § 241.13(i). Id. at 667. And if this were not the case, the court reasoned that
§ 241.13(f) would still not require a particularized assessment of removability
because the provision “simply provides a nonexhaustive list of factors” without
making any factor necessary or sufficient. Id.
For the same reasons, the District Judge should similarly conclude that ICE
need not make an individualized determination about the removability of
Petitioner.
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b. Changed circumstances currently justify Petitioner’s re-
detention.
Respondents submit that “there is now a significant likelihood that
petitioner can be removed.” Resp. at 7 (internal quotations omitted). In support,
they point to the DO’s declaration, which states that, at the time of Respondents’
Response, ICE was preparing a Travel Document Request to remove Petitioner to
Vietnam. App. 004 ¶ 13. The DO also states that ICE removed several pre-1995
immigrants on chartered flights in July 2025 and expected to remove more in later
months. Id. 004–05 ¶¶ 14–16. Based on the recent success in removing pre-1995
immigrants and the lack of impediments to removal, the DO declared that ICE
could effect Petitioner’s removal in the “near future.” Id. 005 ¶ 17.
Petitioner disagrees that his removal is significantly likely. He argues that:
• The 2020 MOU is “aspirational and discretionary.” Pet. ¶ 52;
• ICE has had difficulties removing pre-1995 immigrants under the 2020
MOU. See id. ¶¶ 54–57;
• The numbers cited by the DO “are meaningless without more information.”
Id. at 14. Indeed, other courts outside the Fifth Circuit have found that total
removal numbers of Vietnamese nationals—without context related to pre-
1995 immigrants and the total success rate of removal—cannot justify re-
detention. Reply at 13;
• The process for requiring travel documents for pre-1995 immigrants “is
apparently so daunting and time consuming that ICE still has not even
submitted the request to its headquarters for [Petitioner].” Id.; and
• ICE took Petitioner into custody based on a generalized information
applicable to all pre-1995 immigrants, not an individualized determination
that Petitioner himself could be removed. Id.
Again, courts in this District have rejected substantially identical arguments.
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The petitioner in Nguyen, like Petitioner here, argued that his removal was
not foreseeable because the 2020 MOU was aspirational and did not result in many
removals of pre-1995 immigrants. Nguyen, 797 F. Supp. 3d at 658, 668. But the
court reminded the parties that “the Executive Branch has ‘primary . . .
responsibility’ in foreign affairs, and the Court is to give the respondents leeway in
such matters.” Id. (quoting Zadvydas, 533 U.S. at 700) (alteration in original). And
the petitioner did not provide evidence to refute this deference:
[The petitioner’s] refutation of the respondents’ expert
judgments on this matter relies almost entirely on interpreting
a single memorandum that is almost five years old. For
evidence that the 2020 changes were ineffective, he presents
data from 2021. Further, [the petitioner] attached to his habeas
petition a report from the Asian Law Caucus that supports the
respondents’ position because it says that ICE began in January
2025 “to detain and deport pre-1995 immigrants at higher
numbers than it has in the past.” [The petitioner] has thus
provided no evidence or reasoned analysis to refute the
respondents’ judgment in this case that today, in the summer of
2025, the relationship between the United States and Vietnam
has not changed so much as to make a significant likelihood that
those like [the petitioner] may be removed in the reasonably
foreseeable future. To the contrary, the undisputed evidence is
that relationship[] between the two countries has changed since
January 2025, travel documents are being approved, and
removals are happening at an increasing rate.
Id. at 668 (internal citations omitted). In fact, the court found that the
respondents’ declarations made clear that circumstances had sufficiently changed
to warrant removal. Id. at 668–69.
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Additionally, “there is no requirement that the government ‘definitively’
have the travel documents in hand and confirmation of a removal flight to properly
detain him.” Nouansisouhak, 2025 WL 3165161, at *4.
Also undercutting Petitioner’s argument that he cannot be removed is the
removal of a similarly situated individual who filed a habeas application in this
District one day before this action.5 See Nguyen v. Noem, No. 3:25-cv-1913-L-BT
(N.D. Tex. July 24, 2025). There, the petitioner was also a pre-1995 immigrant that
challenged the ability of Respondents to remove him to Vietnam. Id., ECF No. 1 ¶¶
23, 30, 54–57, 66–68. Despite making many of the same arguments raised here,
the respondents removed him to Vietnam. Id., ECF No. 25. So the Court dismissed
the action as moot. Id., ECF Nos. 26–27.
Finally, to the extent that Petitioner argues that his detention is unnecessary
to assure his appearance for removal, Respondents need not make such a showing.
See Nguyen, 797 F. Supp. 3d at 670.
Respondents have shown that they re-detained Petitioner because the
previous barriers to removing him to Vietnam have been eliminated—or at least
lowered—and it is therefore significantly likely that he can be removed in the
reasonably foreseeable future. Petitioner offers only conclusory assertions to
dispute these changed circumstances. Unlike similarly situated petitioners that
5 Petitioner’s counsel here also represented the petitioner in Nguyen v. Noem, No.
3:25-cv-1913-L-BT (N.D. Tex. July 24, 2025).
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have successfully obtained habeas relief in other jurisdictions, Petitioner has not
provided evidence showing how rare it is that Vietnam repatriates pre-1995
immigrants or that it typically takes far longer than 30 days for Vietnam to issue
travel documents for pre-1995 immigrants. See, e.g., Dinh Le, v. Bondi, 2026 WL
309239, at *3 (W.D. Wash. Feb. 5, 2026).
Accordingly, the District Judge should reject Petitioner’s claim that
Respondents have violated § 241.13(i)(2) or the Fifth Amendment.
c. Respondents may not detain Petitioner indefinitely.
Petitioner has remained in ICE custody since he was re-detained on July 22,
2025. Pet. ¶ 19. Thus far, this re-detention has spanned 7 months. But the Court
must also consider Petitioner’s prior ICE detention. See Abuelhawa v. Noem, 2025
WL 2937692, at *4 (S.D. Tex. Oct. 16, 2025) (“Most courts to consider the issue
have concluded that the Zadvydas period is cumulative, motivated by a concern
that the federal government could otherwise detain aliens indefinitely by
continuously releasing and re-detaining them.”) (citations omitted). Following his
final order of removal, Petitioner remained in ICE detention between March 20,
2023, and June 13, 2023. See Pet’r’s App. at 76–77; Pet. ¶ 17; Resp. at 2. As such,
Petitioner has now been detained by ICE for a total of 10 months as of the date of
this recommendation.
Petitioner’s detention has thus exceeded the six-month presumption of
reasonableness set forth in Zadvydas. But this presumption “is not a bright line.”
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Romero v. Ladwig, 2026 WL 321437, at *14 (M.D. La. Feb. 6, 2026) (citing Clark
v. Martinez, 543 U.S. 371, 384 (2005); Ian Bratlie & Adriana Lafaille, A 180-Day
Free Pass? Zadvydas and Post-Order Detention Challenges Brought Before the
Six-Month Mark, 30 Geo. Immigr. L.J. 213, 239 (2016)). “[W]hether a noncitizen’s
detention is constitutional hinges on whether his removal from the United States
is reasonably likely in the foreseeable future, not on how long the noncitizen has
been detained.” Id. (citation and internal quotations omitted).
The Court finds that Respondents have provided enough information to
suggest that Petitioner’s removal is significantly likely in the reasonably
foreseeable future. But the government may not detain Petitioner indefinitely. See
Tran v. Mukasey, 515 F.3d 478, 484 (5th Cir. 2008).
The lack of progress in removing Petitioner is concerning—especially since
Petitioner “is not attempting to stop his removal to Vietnam now,” Reply at 3, and
because the government was able to quickly remove a similarly-situated individual
re-detained around the same time as Petitioner. See Nguyen, No. 3:25-cv-1913-L-
BT. Some courts have determined that such a lack of progress suggests that
removal is unlikely in the foreseeable future. See Misirbekov v. Venegas, 2025 WL
3033732, at *2 (S.D. Tex. Oct. 29, 2025) (holding that prolonged detention of an
alien violated Zadvydas and the Fifth Amendment where the lack of progress
toward removing the petitioner made removal unlikely in the foreseeable future).
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Accordingly, the Court encourages Respondents that they should proceed
with Petitioner’s removal in an expeditious manner. “[F]ederal courts have
recognized that the prohibition against second or successive petitions does not
apply to habeas petitions brought under . . . Section 2241.” Sam v. Louisiana, 2007
WL 120818, at *6 (E.D. La. Jan. 11, 2007) (citing Felker v. Turpin, 518 U.S. 651,
662–63 (1996); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000)). So there
is no bar to Petitioner bringing another habeas application challenging his non-
removal if new evidence arises—such as the government’s inability to remove him.
Recommendation
For all these reasons, the District Judge should deny Petitioner’s habeas
application and dismiss this action.
SO RECOMMENDED.
February 25, 2026.
____________________________
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). To be specific,
an objection must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and specify the place in the
magistrate judge’s report and recommendation where the disputed determination
is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written
objections will bar the aggrieved party from appealing the factual findings and legal
conclusions of the magistrate judge that are accepted or adopted by the district
court, except upon grounds of plain error. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
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