Ngo v. US Dept of Homeland Security et al

Order – Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DIEN XUAN NGO, 	§
§
Petitioner, 	§
§
v. 	§ 	Civil Action No. 3:25-CV-1943-L-BT
§
KRISTI NOEM, in her capacity as 	§
Secretary of Department of Homeland 	§
Security; TODD M. LYONS, in his 	§
capacity as Acting Director of ICE; 	§
and JOSH JOHNSON, in his capacity 	§
as U.S. Immigration and Customs 	§
Enforcement, Dallas Field Office, 	§
§
Respondents. 	§
ORDER
On February 25, 2026, the Findings, Conclusions and Recommendation of the United
States Magistrate Judge (“Report”) (Doc. 18) was entered, recommending that the court deny
Petitioner’s Emergency Petition for Writ of Habeas Corpus (Doc. 2) brought pursuant to 28 U.S.C.
§ 2241 and dismiss with prejudice this action. This recommendation by the magistrate judge takes
into account and rejects the arguments asserted by Petitioner in his Emergency Petition for Writ
of Habeas Corpus (Doc. 2) and his Emergency Motion for Temporary Restraining Order and/or
Preliminary Injunction (Doc. 4) in which he challenges the legality of his detention on the grounds
that: (1) U.S. Immigration and Customs Enforcement (“ICE”) failed to follow the removal
procedures required by 8 C.F.R. § 241.13(i); and (2) his removal is not 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. The Report notes that the parties, both of which are
represented by counsel, did not oppose the consolidation of the issues before the magistrate judge.
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Order – Page 2
The magistrate judge’s recommended disposition of the foregoing motions and Petitioner’s
request for habeas and injunctive relief in this case turns on her determination that Petitioner is not
entitled to relief under 8 C.F.R. § 241.13(i) despite his assertions to the contrary because: (1)
Respondents did not violate the procedural requirements of § 241.13(i)(3); (2) even if Respondents
violated relevant procedural requirements, such error is harmless; and (3) even if Respondents
failed to abide by the requirements of § 241.13(i)(3), and the error were harmful, a writ of habeas
corpus would not be the appropriate remedy.
In addition, the magistrate judge determined that, as 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 § 241.13(i)(2) or the Fifth Amendment of the
United States Constitution because: (1) ICE was not required to make an individualized
determination of the likelihood of removal; and (2) changed circumstances currently justify
Petitioner’s redetention since there is now a significant likelihood he can be removed.
The magistrate judge, however, notes that Respondents may not detain Petitioner
indefinitely. The magistrate judge, therefore, recommends that Respondents should be encouraged
to proceed with Petitioner’s removal in an expeditious manner. The magistrate judge further notes
that the prohibition against successive petitions does not apply to habeas petitions under § 2241,
so there is no bar to Petitioner bringing another habeas application challenging his nonremoval if
new evidence arises—such as the government’s inability to remove him.
No objections to the Report were filed by counsel for Petitioner or Respondents, and the
deadline for filing objections has expired without either side seeking an extension of the deadline
for filing objections.
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Order – Page 3
Having considered Petitioner’s Emergency Petition for Writ of Habeas Corpus (Doc. 2),
Petitioner’s Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction
(Doc. 4), the parties’ briefs, the record, and Report, the court determines that the findings and
conclusions of the magistrate judge are correct, and accepts them as those of the court.
Accordingly, the court denies Petitioner’s Emergency Petition for Writ of Habeas Corpus (Doc.
2); denies Petitioner’s Emergency Motion for Temporary Restraining Order and/or Preliminary
Injunction (Doc. 4); and dismisses with prejudice this action. In light of these rulings, the court
also denies as moot Petitioner’s Motion for Evidentiary Hearing (Doc. 15).
Further, considering the record in this case and pursuant to Federal Rule of Appellate
Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C.
§ 2253(c), the court denies a certificate of appealability.* The court determines that Petitioner has
failed to show: (1) that reasonable jurists would find this court’s “assessment of the constitutional
claims debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the
petition states a valid claim of the denial of a constitutional right” and “debatable whether [this
court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In
support of this determination, the court accepts and incorporates by reference the Report filed
* Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows:
(a) 	Certificate of Appealability. The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant. Before entering the final order,
the court may direct the parties to submit arguments on whether a certificate should issue. If the
court issues a certificate, the court must state the specific issue or issues that satisfy the showing
required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the
denial but may seek a certificate from the court of appeals under Federal Rule of Appellate
Procedure 22. A motion to reconsider a denial does not extend the time to appeal.
(b) 	Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to
appeal an order entered under these rules. A timely notice of appeal must be filed even if the district
court issues a certificate of appealability.
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Order – Page 4
in this case. In the event that a notice of appeal is filed, Petitioner must pay the applicable appellate
filing fee or submit a motion to proceed in forma pauperis on appeal.
It is so ordered this 12th day of March, 2026.
_________________________________
Sam A. Lindsay
United States District Judge
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