Nguyen v. Bondi et al

THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KIET NGUYEN, )
)
Petitioner )
)
v. ) Case No. CIV-25-1356-SLP
)
PAMELA BONDI, et al., )
)
Respondents. )
REPORT AND RECOMMENDATION
Petitioner Kiet Nguyen, proceeding
pro se, seeks habeas corpus relief under 28
U.S.C. § 2241. (ECF No. 2). United States District Judge Scott L. Palk has referred the
matter to the undersigned magistrate judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B), (C). Respondent has filed a Response and Plaintiff has replied.
(ECF Nos. 15 & 20). For the reasons set forth below, the undersigned recommends that
the Court GRANT habeas relief to Petitioner and release him from custody immediately.
I. BACKGROUND
Mr. Nguyen is a citizen of Vietnam, who was admitted to the United States on or
about September 3, 1993 and was ordered removed from the United States on August 3,
1999. (ECF Nos. 2:1; 15-1:2). According to a declaration from Immigration and Customs
Enforcement (ICE) officer, Micheal Thompson, who has been assigned to Mr. Ngyuen’s
case, on September 9, 1999, Mr. Nguyen was taken into ICE custody, underwent a 90-
day post order custody review on or about February 9, 2000, and his release was denied
on March 6, 2000. (ECF No. 15-1:2). Ultimately, however, Mr. Nguyen was released from
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ICE custody on September 14, 2000, under an order of supervision (OOS). (ECF Nos. 2:1-
2; 15-1:2).
On July 17, 2025, Petitioner was re-detained by ICE officials and has remained in
detention since that time. (ECF Nos. 2:2; 15-1:2). To date, no future hearings have been
scheduled for Mr. Nguyen1 and he is currently detained at the Cimmaron Correctional
Facility in Cushing, Oklahoma.2
II. PETITIONER’S CLAIMS
In the Petition, Mr. Nguyen asserts four claims. First, he seeks a declaratory
judgment that ICE officials failed to rebut Petitioner’s showing, which he had established
by means of being released under an OOS, that there was no significant likelihood of his
removal in the reasonably foreseeable future. (ECF No. 2:20). Second, Petitioner argues
that ICE officials failed to comply with the Immigration and Nationality Act (INA) prior to
re-detaining him. (ECF No. 2:21). Third, Petitioner argues that he has been subjected to
prolonged detention in excess of six months in violation of
Zadvydas v. Davis, 533 U.S.
678, 687 (2001). (ECF No. 2:21-22). Fourth, Petitioner alleges a violation of the
Administrative Procedures Act. (ECF No. 2:22-23). As relief, Petitioner requests immediate
release, along with declaratory and injunctive relief. (ECF No. 2:23-24).
1
See https://acis.eoir.justice.gov (last visited Feb. 9, 2026).
2
See https://locator.ice.gov (last visited Feb. 9, 2026).
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III. STANDARD OF REVIEW
To obtain habeas corpus relief, Petitioner must show that he is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
224l(c)(3). “[T]he primary federal habeas corpus statute, 28 U.S.C. § 2241, confers
jurisdiction upon the federal courts to hear ... challenges to the lawfulness of immigration-
related detention.”
Zadvydas v. Davis, 533 U.S. at 687;
see also Soberanes v. Comfort,
388 F.3d 1305, 1310 (10th Cir. 2004) (“Challenges to immigration detention are properly
brought directly through habeas.”);
Head v. Keisler, No. 07-CIV-402-F, 2007 WL 4208709,
at *2 (W.D. Okla. Nov. 26, 2007) (determining that “[t]his Court has subject matter
jurisdiction over” unconstitutional detention in an immigration-related § 2241 habeas
petition).
Petitioner asserts that his continued detention violates 8 U.S.C. § 1231(a). (ECF
No. 2). Under this statute, “when an alien is ordered removed, the Attorney General shall
remove the alien from the United States within a period of 90 days.” 8 U.S.C. §
1231(a)(1)(A). The 90-day period is known as the “removal period.”
Id. After the removal
period, ICE has discretion to detain inadmissible or criminal aliens.
Id. § 1231(a)(6).
However, detention of an alien subject to a final order of removal may not be indefinite
and is presumptively reasonable for only six months beyond the removal period.
See
Zadvydas, 533 U.S. at 701;
see also Morales-Fernandez v. INS, 418 F.3d 1116, 1123
(10th Cir. 2005) (reiterating that “the reasonable period of post-removal detention is
presumptively six months”). After that, a detainee may bring a habeas action to challenge
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his detention.
Zadvydas, 533 U.S. at 688. “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.
Therefore, to obtain habeas relief, a petitioner has the initial burden to show the
post-removal-order detention has surpassed six months and to “provide[] good reason
to believe that there is no significant likelihood of removal in the reasonably foreseeable
future.”
Id.;
see also Soberanes, 388 F.3d at 1311 (“If removal is not reasonably
foreseeable, the court should hold continued detention unreasonable.” (citation
modified)). “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.”
Zadvydas, 533
U.S. at 701. Further, “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.”
Id.
IV. PETITIONER’S CONTINUED DETENTION VIOLATES HIS FIFTH
AMENDMENT DUE PROCESS RIGHTS
Mr. Nguyen is entitled to immediate release based on a violation of his Due Process
rights as discussed below.
A. Mr. Nguyen has met his Initial Burden
Petitioner has met his initial burden under
Zadvydas to: (1) establish his post-
removal-order detention has surpassed six months and (2) show “there is no significant
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likelihood of removal in the reasonably foreseeable future.”
Zadvydas, 533 U.S. at 701.
Notably, Petitioner is not required under
Zadvydas to “show the absence of any prospect
of removal—no matter how unlikely or unforeseeable,”
id. at 702, only that that he has
“good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future.”
Id. at 701.
As to his current detention, to date, Mr. Nguyen has been detained over six
months—since July 17, 2025.
See supra.3 Further, Petitioner has “provide[d] good reason
to believe that there is no significant likelihood of removal in the reasonably foreseeable
future.”
Zadvydas, 533 U.S. at 701. As noted by Petitioner, he was previously granted a
withholding of removal and ICE officials ordered him released under an OOS.
See supra.
These facts provide pertinent evidence in determining that Petitioner has provided good
reason to believe that there is no significant likelihood of removal in the reasonably
3 The Court notes that Petitioner filed his habeas petition before the expiration of the
presumptively reasonable six-month period.
See ECF No. 2. While Petitioner’s
Zadvydas claim was
not ripe when filed, it is now ripe. The alternative would be to dismiss the Petition, only for Mr.
Nguyen to re-file and pay another court-filing fee. While pleading claims for relief prematurely is
disfavored, the Court will not force Petitioner to re-file at this juncture.
See Momennia v. Bondi,
et al., No. CIV-25-1067-J, 2025 WL 3011896 (W.D. Okla. Oct. 15, 2025) (recommending granting
habeas relief, in part, based on the petitioner’s
Zadvydas claim, which ripened during the
pendency of the case),
adopted, 2025 WL 3011896, at *1 (stating: “It is undisputed that Petitioner
has been detained over six months.”);
Smith v. Barr, 444 F.Supp.3d 1289, 1298 (N.D. Okla. Mar.
16, 2020) (denying motion to dismiss habeas petition which had argued that the petitioner’s
Zadvydas claim was filed before the expiration of the presumptively reasonable 6-month post-
removal-period, stating “On these facts, petitioner arguably had a ripe constitutional claim under
Zadvydas after he filed the instant petition[.]”) (emphasis added);
Quang Minh Lien v. Sessions,
No. 18-cv-2146-WJM-SKC, 2018 WL 4853339, at *4 (D. Colo. Oct. 5, 2018) (allowing a
Zadvydas
claim that was premature at the time of filing the habeas petition but became ripe during the
pendency of the case).
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foreseeable future.
See ECF No. 20:12,
Sukhyani v. Bondi,
et al., Case No. CIV-25-1243-
J (W.D. Okla. Nov. 18, 2025) (noting the prior inability to remove the petitioner, coupled
with his prior release “are directly relevant to the likelihood now that Petitioner will be
removed to a third country in the reasonably foreseeable future.”),
adopted, ECF No. 24,
Sukhyani v. Bondi, et al., Case No. CIV-25-1243-J (W.D. Okla. Nov. 25, 2025).
Based on the forgoing, the Court should find that Petitioner has met his initial
burden to demonstrate that there is no significant likelihood of his removal in the
reasonably foreseeable future.
B. Respondents Have Not Met Their Burden
Once Petitioner has established six months of post-removal-order detention and
“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.”
Zadvydas, 533 U.S. at 701. The Court should find that Respondents have not
met their burden in this regard.
In their Response, dated December 4, 2025, the Respondents attached a
declaration from ICE deportation officer, Mr. Thompson, which stated that on October
25, 20205, officials with Enforcement and Removal Operations (ERO) “submitted a travel
document request to the government of Vietnam, which was subsequently approved” and
Petitioner was “tentatively scheduled for removal . . . on December 14, 2025.” (ECF No.
15-1:3). However, Petitioner was “removed from that flight” and “expected to be included
on the next flight manifest, scheduled to depart in January 2026.” (ECF No. 15-1:3). In a
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Notice dated December 23, 2025, Respondents simply notified the Court that Petitioner
“w[ould] be rescheduled for a future flight.” (ECF No. 22:1).
January passed, yet Mr. Nguyen still remained in custody, with no update from
Respondents. As a result, on February 2, 2026, the Court ordered Respondents to provide
an update regarding Petitioner’s status. (ECF No. 23). On February 4, 2026, Respondents
informed the Court that on December 23, 2025, ICE officials “requested Travel Document
(“TD”) from the Attache Office in Hanoi, Vietnam, and on December 31, 2025, the Attache
Office confirmed receipt of this request.” (ECF No. 24). Respondents also state that ICE
Deportation officer Jessie Gonzalez “advises that a TD has been issued and expects to
receive an update regarding Petitioner’s travel accordingly.” (ECF No. 24).
Interestingly, although Respondents note that this request was made December
23, 2025, Respondents’ notice to the Court dated December 23, 2025 was noticeably
silent on this issue and Respondents never state that the travel document was requested
for this specific Petitioner—Kiet Nguyen. The undersigned realizes this may be nothing
more than an oversight, but the February 4th statement, which references the December
23, 2025 request for a travel document (for an unnamed individual) potentially conflicts
with Respondents’ prior statement that ERO officials “submitted a travel document
request to the government of Vietnam” on October 25, 2025, which was subsequently
approved.
See ECF No. 15-1:3. Granted, the first travel document issued post-October
25, 2025, may have expired, requiring a second request, but Respondents have not said
as much.
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As it stands now, Respondents have informed the Court that a travel document
“has been issued” (presumably for Mr. Nguyen) and Officer Gonzalez “expects to receive
an update regarding Petitioner’s travel accordingly.” (ECF No. 24). But as noted by this
Court, “There is no reference to any data underlying this statement and it so conclusory,
that it is difficult to discern whether the declarant even has personal knowledge”4 of this
fact. Respondents have not submitted an affidavit from Mr. Gonzalez attesting to this
fact, and at this point, what the Court is left with is an unverified statement that a travel
document has been issued, and a prior declaration from Deportation Officer Thompson
who states:
• In Fiscal Year 2025, as of September 11, 2025, ERO has removed 569
Vietnam citizens to Vietnam. In Fiscal Year 2024, ERO removed only 58
Vietnam citizens to Vietnam. ICE is currently not recognizing MOUs, and the
Government of Vietnam has issued travel documents for every travel
request ERO has submitted since February 2025. The majority of these
cases were citizens of Vietnam who entered the United States prior to 1995;
and
• Based on the Government of Vietnam’s willingness to accept its citizens,
and the number of successful removal ERO has made to Vietnam this fiscal
year, I believe removal of Ngyuen to Vietnam is significantly likely in the
reasonably foreseeable future.
(ECF No. 15-1:3). But this language has been rejected by this Court as “a generalized,
statistical increase in removal effort to Vietnam in 2025,” which, when coupled with no
evidence that travel documents have been requested or issued for Petitioner, is
4	
See ECF No. 29:17,
Khaliq v. Noem, et al., Case No. CIV-25-1154-SLP) (W.D. Okla. Jan. 26,
2026).
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insufficient to rebut Petitioner’s initial showing under
Zadvydas.
See ECF No. 13:3,
Tang
v. Grant, Case No. 25-1468-J (W.D. Okla. Feb. 6, 2025).
Based on the forgoing, the Court should conclude that Respondent has failed to
rebut Petitioner’s showing that there is no significant likelihood of his removal in the
reasonably foreseeable future and that he is being detained indefinitely in violation of the
Fifth Amendment. Respondents have failed to present	
evidence that Mr. Nguyen’s
removal is significantly likely in the reasonably foreseeable future. Instead, what exists
at this point is:
• A December 1, 2025 statement from Respondents that Petitioner was
scheduled to be removed on December 14, 2025;5
• A December 3, 2025 declaration from Officer Thompson that Petitioner was
removed from the December 14, 2025 flight and was “expected” to be on
the next flight, scheduled to depart in January 2026;6
• A December 23, 2025 notice from Respondent stating that “Petitioner will
be rescheduled for a future flight;”7 and
• An unverified statement that a travel document “has been issued” and
Respondents “expect to received an update regarding Petitioner’s travel
accordingly.”
At this point, the Court should find that the Respondents’ ongoing, speculative
belief regarding Petitioner’s removal is simply insufficient to rebut Petitioner’s burden
5 (ECF No. 11).
6 (ECF No. 15-1).
7 (ECF No. 22).
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under
Zadvydas. Accordingly, the undersigned concludes that Petitioner is entitled to
habeas relief and immediate release from custody.
See 28 U.S.C. § 2241(c)(3).
V. PETITIONER’S REMAINING CLAIMS
As stated, Petitioner also alleges that his re-detention was in violation of ICE’s own
regulations, and in violation of the APA.	
See supra. But Because the undersigned
recommends that the Court grant the Petition after finding Petitioner’s indefinite detention
violates his Fifth Amendment Due Process rights, the Court should decline to address
Petitioner’s other claims.
See Momennia v. Bondi, No. CIV-25-1067-J, 2025 WL 3006045,
at *1 n.1 (W.D. Okla. Oct. 27, 2025) (declining to decide whether ICE violated its own
regulations by continuing to detain the petitioner because the Court adopted the
conclusion that his indefinite detention violates his Fifth Amendment Due Process rights).
Further, considering the recommended relief, the undersigned declines to address
Petitioner’s other requests for relief.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the reasons set forth above, the undersigned recommends the Court grant
Petitioner’s request for habeas relief, and order his immediate release from custody. The
undersigned further recommends that the Court order Respondent to submit a declaration
pursuant to 28 U.S.C. § 1746 affirming that Petitioner has been released from custody.
The parties are advised of their right to file an objection to this Report and
Recommendation with the Clerk of this Court by February 17, 2026, in accordance with
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28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2).8 The parties are further advised that
failure to make timely objection to this Report and Recommendation waives the right to
appellate review of both factual and legal issues contained herein.
Casanova v. Ulibarri,
595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this
matter.
ENTERED on February 9, 2026.
8 Given the expedited nature of these proceedings, the undersigned has reduced the typical
objection time to this Report and Recommendation to seven days.
See Fed. R. Civ. P. 72(b)(2)
advisory committee’s note to 1983 addition (noting that rule establishing 14-day response time
“does not extend to habeas corpus petitions, which are covered by the specific rules relating to
proceedings under Sections 2254 and 2255 of Title 28.”);
see also Whitmore v. Parker, 484 F.
App’x 227, 231, 231 n.2 (10th Cir. 2012) (noting that “[t]he Rules Governing § 2254 Cases may
be applied discretionarily to habeas petitions under § 2241” and that “while the Federal Rules of
Civil Procedure may be applied in habeas proceedings, they need not be in every instance –
particularly where strict application would undermine the habeas review process”).
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