Vo v. Albarran et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
TIEN VO,
Petitioner,
v.
SERGIO ALBARRAN, et al.,
Respondents.
Case No. 26-cv-01489-BLF
ORDER GRANTING EX PARTE
APPLICATION FOR TEMPORARY
RESTRAINING ORDER
[Re: ECF No. 2]
Before the Court is Tien Vo’s Ex Parte Application for a Temporary Restraining Order
(“TRO”). ECF No. 2. Mr. Vo filed his Petition for Writ of Habeas Corpus followed by an Ex
Parte Application for Temporary Restraining Order against Respondents Acting Field Office
Director of the San Francisco Immigration and Customs Enforcement (“ICE”) Office Sergio
Albarran, Acting Director of ICE Todd M. Lyons, Secretary of the Department of Homeland
Security (“DHS”) Kristi Noem, and United States Attorney General Pamela Bondi on
February 19, 2026, seeking an order temporarily enjoining Respondents from detaining him until
such time as he has had an opportunity to challenge his detention before a neutral decisionmaker.
Mr. Vo further seeks an order enjoining Respondents from removing him to a third country before
he is provided with notice and an opportunity to be heard.
For the reasons that follow, the application is GRANTED.
I. BACKGROUND
Petitioner Tien Vo is a refugee from Vietnam who came to the United States when he was
five- or six-years-old in 1980. ECF No. 1 (“Pet.”) ¶ 6. He then became a lawful permanent
resident (a “green card” holder). Pet. ¶ 6. In 2000, was ordered removed, but was released after
180 days pending an order of supervision (“OSUP”). Pet. ¶¶ 7–8. At that time, Vietnamese
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individuals like Mr. Vo who entered the United States before July 1995 would have been aware of
the repatriation agreement between the United States and Vietnam, which applied to them and
prevented repatriation to Vietnam. Pet. ¶ 35. Though he did indeed fear removal to Vietnam, as
he tried to file an application for asylum, convention against torture and withholding of removal,
he initially accepted the removal order because he understood removal was prohibited in light of
the repatriation agreement. Pet. ¶ 7.
For the past twenty-five years, Mr. Vo has worked pursuant to his work authorization
document and has begun to rebuild his life and reconnect with family during this time. Pet. ¶ 28.
He has two US citizen children and a wife, who is also a US citizen. Pet. ¶ 69. Mr. Vo has post-
traumatic stress disorder due to severe trauma. Pet. ¶ 41. He has done recurring volunteer work
with at-risk youth. Id. He is his family’s breadwinner and main source of support. Id. Petitioner
has also complied with all of the terms of his OSUP, including by regularly attending all of his
check-ins over the past twenty-five years. Pet. ¶ 8.
On September 5, 2025, he was detained for the second time at an Immigration and
Customs Enforcement (“ICE”) check in. Pet. ¶ 9. On January 22, 2026, a district court in the
Eastern District of California granted his petition for writ of habeas corpus and he was released
from detention. Pet. ¶ 9; see also Vo v. Albarran, No. 25-cv-01530-JLT-SKO, 2026 WL 177796
(E.D. Cal. Jan. 22, 2026). Mr. Vo attended his annual check in at the ICE San Francisco Field
Office on January 26, 2026, and was instructed to return for another check-in, which is scheduled
for February 26, 2026. Pet. ¶¶ 10, 40. On January 30, 2026, Mr. Vo filed a motion to reopen and
rescind his removal order before the Board of Immigration Appeals (“BIA”) because all of his
convictions have been vacated as legally invalid, so he is no longer removable. Pet. ¶ 41.
Counsel for Mr. Vo has been corresponding with Counsel for Respondents. See ECF
No. 2-2, Affidavit of Notice by Lorena C. Castillo (“Castillo Affidavit”) ¶ 2. Counsel for
Respondents represented that ICE has a travel permit for Mr. Vo but has not supported that
representation with any indication of the source of the country of origin for the alleged permit.
Castillo Affidavit ¶ 3. No documentation has been provided to Mr. Vo. See id. ICE has also
declined to provide any information. Id. On February 19, 2026, Counsel for Mr. Vo notified
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Respondents of Petitioner’s intention to file a motion for a TRO. See id.
II. LEGAL STANDARD
The standard for issuing a temporary restraining order is identical to the standard for
issuing a preliminary injunction. See Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir.
2017) (“[T]he legal standards applicable to TROs and preliminary injunctions are ‘substantially
identical.’” (quoting Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832,
839 n.7 (9th Cir. 2001))). An injunction is a matter of equitable discretion and is “an
extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled
to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). And “a
TRO ‘should be restricted to . . . preserving the status quo and preventing irreparable harm just so
long as is necessary to hold a [preliminary injunction] hearing and no longer.’” E. Bay Sanctuary
Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (quoting Granny Goose Foods, Inc. v. Bhd.
of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974)).
A plaintiff seeking preliminary injunctive relief must establish “[1] that he is likely to
succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary
relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public
interest.” Winter, 555 U.S. at 20. “[I]f a plaintiff can only show that there are serious questions
going to the merits—a lesser showing than likelihood of success on the merits—then a preliminary
injunction may still issue if the balance of hardships tips sharply in the plaintiff’s favor, and the
other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 942
(9th Cir. 2014) (alteration in original) (internal quotation marks and citations omitted). “[W]hen
the Government is the opposing party,” the final two factors “merge.” Nken v. Holder, 556 U.S.
418, 435 (2009).
III. DISCUSSION
As a preliminary matter, the Court finds that the requirements for issuing a TRO without
notice, as set out in Federal Rule of Civil Procedure 65(b)(1), are met in this case. Counsel for
Mr. Vo has set out specific facts showing that immediate and irreparable injury, loss, or damage
may result before the adverse party can be heard in opposition.
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Mr. Vo seeks to enjoin Respondents from (1) re-detaining him without notice and an
opportunity to be heard, or (2) removing him to a third country without constitutionally adequate
procedures, including notice and an opportunity to respond and apply for fear-based relief.
The Court begins with Mr. Vo’s claim in connection with re-detention. The Court finds
that Mr. Vo has shown at least that there are “serious questions going to the merits” and that “the
balance of hardships tips sharply” in his favor. Weber, 767 F.3d at 942 (citations omitted). Under
the Due Process Clause of the Fifth Amendment to the United States Constitution, no person shall
be “deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
“Freedom from imprisonment—from government custody, detention, or other forms of physical
restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678,
690 (2001) (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)).
Courts have previously found that individuals released pursuant to OSUP have a
protectable liberty interest in remaining out of custody. See Bedrosian v. Noem, No. 25-cv-02814-
KES, 2026 WL 127800, at *7 (C.D. Cal. Jan 15, 2026); Guillermo M. R. v. Kaiser,
791 F. Supp. 3d 1021, 1029 (N.D. Cal. 2025). For similar reasons as those discussed in the
aforementioned cases, this Court finds that the three factors relevant to the due process inquiry set
out in Mathews v. Eldridge, 424 U.S. 319 (1976)—“the private interest that will be affected by the
official action,” “the risk of an erroneous deprivation . . . and the probable value, if any, of
additional or substitute procedural safeguards,” and “the Government’s interest, including the
function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail,” id. at 335—require that Mr. Vo not be re-detained without
notice and a pre-detention hearing before a neutral decisionmaker prior to being taken back into
custody.
Mr. Vo has a substantial private interest in remaining out of custody, which would allow
him to live at home, work, and continue to provide for his family. See Morrissey v. Brewer,
408 U.S. 471, 482 (1972). There is also a risk of erroneous deprivation that the additional
procedural safeguard of a pre-detention hearing would help protect against. Like other courts in
this district, this Court concludes that the Government’s interest in re-detaining Mr. Vo without a
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hearing is “low,” particularly in light of the fact that he has appeared for prior immigration
hearings and does not have a criminal record. See Jorge M.F., 2021 WL 783561, at *3; Ortega,
415 F. Supp. 3d at 970.
Turning to Mr. Vo’s removal claim, “[t]he Fifth Amendment guarantees due process in
deportation proceedings.” Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1270 (9th Cir. 2001) (citing
Campos-Sanchez v. I.N.S., 164 F.3d 448, 450 (9th Cir. 1999), superseded by statute on other
grounds as stated in Arizmendi-Medina v. Garland, 69 F.4th 1043, 1053 (9th Cir. 2023)). “A
noncitizen must be given sufficient notice of a country of deportation that, given his capacities and
circumstances, he would have a reasonable opportunity to raise and pursue his claim for
withholding of deportation.” Aden v. Nielsen, 409 F. Supp. 3d 998, 1009 (W.D. Wash. 2019)
(citing Mathews, 424 U.S. at 349; Kossov v. I.N.S., 132 F.3d 405, 408 (7th Cir. 1998)). “In the
context of country of removal designations, last minute orders of removal to a country may violate
due process if an immigrant was not provided an opportunity to address his fear of persecution in
that country.” Najjar v. Lunch, 630 F. App’x 724 (9th Cir. 2016).
On the record before the Court, there currently exists no country to which the Government
could remove Mr. Vo without his first receiving notice of the identification of that country and the
opportunity to present a fear-based claim. The Government has failed to back up its suggestion
that a third country has been identified for removal with the actual documentation supporting that
claim. Absent proper written notification, Petitioner has shown that his removal without a hearing
would likely violate his due process rights. Aden v. Nielson, 409 F. Supp. 3d 998, 1009
(W.D. Wash. 2019). Further, Mr. Vo has offered sufficient facts at this preliminary stage to show
that his detention until the start of that process and during its pendency would be “indefinite”—
i.e., that “there is no significant likelihood of removal in the reasonably foreseeable future”—and
that, even if his removal were likely in the reasonably foreseeable future, his detention would not
be “reasonably necessary” to effectuate his removal. Accordingly, Mr. Vo. has shown at least that
serious questions exist as to the merit of his claims.
Mr. Vo is also likely to suffer immediate and irreparable harm in the absence of
preliminary relief. The Ninth Circuit has recognized “irreparable harms imposed on anyone
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subject to immigration detention,” including “the economic burdens imposed on detainees and
their families as a result of detention.” Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017).
He is the breadwinner for his family. He is a father of two US citizen children and the husband of
a US citizen wife. As a consequence, those risks are present here.
Finally, the balance of the equities and the public interest, which merge because the
government is the opposing party, tip sharply in Mr. Vo’s favor. “[T]he public has a strong
interest in upholding procedural protections against unlawful detention, and the Ninth Circuit has
recognized that the costs to the public of immigration detention are staggering.” Jorge M. F.,
2021 WL 783561, at *3 (cleaned up) (quoting Ortiz Vargas, 2020 WL 5074312, at *4, and then
quoting Hernandez, 872 F.3d at 996); see also Preminger v. Principi, 422 F.3d 815, 826 (9th Cir.
2005) (“Generally, public interest concerns are implicated when a constitutional right has been
violated, because all citizens have a stake in upholding the Constitution.”). There is no indication
that Mr. Vo will not appear at future ICE check-ins, as he has consistently complied with his
supervised release requirements for the last twenty-five.
Without the requested injunctive relief, Mr. Vo faces deprivation of his liberty. The
comparative harm potentially imposed on Respondents is minimal—a mere short delay in
detaining and removing Mr. Vo, should the government ultimately show that detention or removal
is intended and warranted. Moreover, a party “cannot reasonably assert that it is harmed in any
legally cognizable sense by being enjoined from constitutional violations.” Zepeda v. U.S.
Immigr. & Nat. Serv., 753 F.2d 719, 727 (9th Cir. 1983). This Court therefore joins a series of
other district courts that have recently granted TROs barring the government from detaining and
removing noncitizens who have been on longstanding release in their immigration proceedings,
without first holding a pre-deprivation hearing before a neutral decisionmaker. See, e.g., Ortega
v. Kaiser, No. 25-cv-05259-JST, 2025 WL 1771438, at *5 (N.D. Cal. June 26, 2025); Oliveros
v. Kaiser, No. 25-cv-07117-BLF, 2025 WL 3290223 at *2 (N.D. Cal. Aug. 22, 2025); Diaz
v. Kaiser, No. 25-cv-05071, 2025 WL 1676854, at *2 (N.D. Cal. June 14, 2025); Garcia v. Bondi,
No. 25-cv-05070, 2025 WL 1676855, at *3 (N.D. Cal. June 14, 2025).
Accordingly, the Court hereby GRANTS Mr. Vo’s Ex Parte Motion for a Temporary
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Restraining Order. Under Federal Rule of Civil Procedure 65, a court “may issue a preliminary
injunction or a temporary restraining order only if the movant gives security in an amount that the
court considers proper to pay the costs and damages sustained by any party found to have been
wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The rule “invests the district court ‘with
discretion as to the amount of security required, if any,’” and the court “may dispense with the
filing of a bond when it concludes there is no realistic likelihood of harm to the defendant from
enjoining his or her conduct.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (quoting
Barahona–Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999)). In this case, in light of the
minimal risk of harm to the government, the Court determines that security is not required.
Mr. Vo submitted thirty-five pages of briefing in support of his TRO Application that is
not in compliance with Civil Local Rule 7-2(b). Counsel for Mr. Vo is admonished that the
Court’s local rules are mandatory and that briefs exceeding twenty-five pages will not be accepted
in the future.
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IV. ORDER
IT IS HEREBY ORDERED that:
(1) Tien Vo’s Application for a Temporary Restraining Order is GRANTED. Respondents
are ENJOINED AND RESTRAINED from arresting, detaining, or removing Mr. Vo
without notice and a hearing before a neutral decisionmaker. This Order shall remain
in effect until March 6, 2026 at 11:45 a.m.
(2) The Petition for Writ of Habeas Corpus, Motion for Temporary Restraining Order, and
this Order SHALL be served on Respondents such that they receive actual notice as
soon as practicable, and no later than February 23, 2026, at 12:00 p.m., and Mr. Vo
shall file proof of such service by no later than February 23, 2026, at 5:00 p.m.
Email service is permitted.
(3) Respondents are ORDERED TO SHOW CAUSE in-person at a hearing before the
undersigned on March 5, 2026, at 9:00 a.m., in person in Courtroom 1 at the Robert F.
Peckham Federal Building & United States Courthouse, 280 South 1st Street, San Jose,
California, 95113, why a preliminary injunction should not issue. Respondents may
file a response to Mr. Vo’s motion by no later than February 26, 2026, at 12:00 p.m.
Mr. Vo may file a reply by March 3, 2026, at 12:00 p.m limited to ten pages.
Dated: February 20, 2026 at 11:45 a.m.
______________________________________
BETH LABSON FREEMAN
United States District Judge
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