VAN NGUYEN v. BONDI (2026)

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

I. INTRODUCTION

Petitioner Danh Van Nguyen is currently detained by U.S. Immigration and Customs Enforcement (“ICE”) at the Northwest ICE Processing Center (“NWIPC”) in Tacoma, Washington. He has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 seeking release from custody. Dkt. 1. Petitioner, who is proceeding through counsel, asserts that he is entitled to release from custody because removal to his native country, Vietnam, is not reasonably foreseeable and his continued detention is therefore in violation of Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). See id. at 3, 22-23. Petitioner asserts additional claims challenging his re-detention and potential third country removal. See id. at 23-27. Respondents have filed a return to the petition (Dkt. 12), together with the supporting declaration of ICE Deportation Officer Yralees K. Melendez Diaz (Dkt. 13), and Petitioner has filed a reply to the return (Dkt. 14). This matter is now ripe for review.

The Court, having considered the parties’ submissions and the governing law, GRANTS Petitioner's petition for writ of habeas corpus, and ORDERS that Petitioner be immediately released from detention on reasonable conditions of supervision. As discussed below, the Court also GRANTS additional relief related to Petitioner's third-country removal claims.

II. BACKGROUND

Petitioner is a native and citizen of Vietnam. See Dkt. 1 at 5-6. Petitioner was admitted to the United States as a lawful permanent resident on March 3, 1995. Diaz Decl., ¶ 3. In the years since his admission, Petitioner has been arrested multiple times with some of those arrests resulting in convictions. See id., ¶ 4.

On February 14, 2008, Petitioner was issued a Notice to Appear (“NTA”) charging him with being removable pursuant to § 237(a)(2) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2), for having been convicted of two crimes of moral turpitude and a domestic violence/protection order violation. See Diaz Decl., ¶ 5; Dkt. 14 at 2. Petitioner was ordered removed to Vietnam on March 17, 2008, and on April 29, 2009, Petitioner was released on an Order of Supervision (“OSUP”) because ICE was unable to obtain travel documents to effectuate his removal. See Diaz Decl., ¶¶ 5, 6; Dkt. 14 at 2.

Officer Diaz avers that on June 30, 2025, ICE Enforcement and Removal Operations (“ERO”) revoked Petitioner's OSUP because it determined that Petitioner posed a threat to public safety and there was a significant likelihood of his removal in the foreseeable future due to purported “cooperation between the United States and Vietnam.” Diaz Decl., ¶ 7. At the time his OSUP was revoked, Petitioner advised that he “had no foreign identity documents.” Id. On September 8, 2025, Petitioner was served with a “corrected OSUP revocation letter,” an informal interview was conducted, and Petitioner chose not to provide a statement. Id., ¶ 8.

Petitioner was interviewed on September 15, 2025, apparently for the purpose of obtaining information for a travel document application, and Petitioner purportedly “refused to sign any document [or to] provide any information for [the] travel document application.” See Diaz Decl., ¶ 9. On October 28, 2025, Petitioner's travel document application materials were sent for translation as required by the Vietnamese government. See Diaz Decl., ¶ 11; Dkt. 12 at 8 n.3; Dkt. 14 at 4. As of December 31, 2025, the travel document request had yet to be sent to Vietnamese officials. See Diaz Decl., ¶ 1.

Petitioner filed his petition for writ of habeas corpus on December 23, 2025, challenging his immigration detention under the United States Constitution, the Immigration and Nationality Act (“INA”) and its implementing regulations, the Convention Against Torture (“CAT”), and the Administrative Procedure Act (“APA”). Petitioner argues in his federal habeas petition that: (1) his continued detention violates the Due Process Clause of the Fifth Amendment because there is no significant likelihood that he will be removed in the reasonably foreseeable future; (2) his re-detention violated his due process rights and applicable regulations; (3) any attempt to carry out his removal to a third country requires notice and a meaningful opportunity to be heard in reopened removal proceedings, as mandated by statute and the Constitution; and (4) Respondents’ third-country removal program is punitive in nature and execution and is therefore unconstitutional under the Fifth and Eighth Amendments. See Dkt. 1 at 22-27.

III. DISCUSSION

A. Legal Standards

The INA expressly permits detention of noncitizens who were admitted to the United States but subsequently ordered removed during immigration proceedings. 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), 1231(a). Section 1231(a) governs the detention and release of noncitizens such as Petitioner who have been ordered removed, and it provides that the Department of Homeland Security (“DHS”) is required to detain a noncitizen during the 90-day “removal period.” 8 U.S.C. § 1231(a)(2). After the removal period expires, DHS has the discretionary authority to continue to detain certain noncitizens, including those who are removable under § 1227(a)(2), or to release them on supervision. 8 U.S.C. § 1231(a)(6). Although § 1231(a)(6) authorizes ICE to detain noncitizens beyond the initial 90-day window, it cannot do so indefinitely. See Zadvydas, 533 U.S. at 682, 121 S.Ct. 2491.

In Zadvydas, the Supreme Court held that § 1231(a)(6) implicitly limits a noncitizen's detention to a period reasonably necessary to bring about that individual's removal from the United States. Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491. The Supreme Court determined that it is “presumptively reasonable” for DHS to detain a noncitizen for six months following entry of a final removal order while it works to remove the individual from the United States. Id. “After this 6-month period, once the [noncitizen] 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.” Id. If the government is unable to meet its burden, then the noncitizen must be released from detention. Jennings v. Rodriguez, 583 U.S. 281, 299, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018).

A noncitizen who is subject to a final order of removal but has been released from custody may be re-detained for failure to comply with the conditions set forth in the order of supervision or if, pursuant to a change in circumstances, ICE “determines that there is a significant likelihood that the [noncitizen] may be removed in the reasonably foreseeable future.” 8 C.F.R. § 241.13(i)(1)-(2). Upon the noncitizen's return to custody, he must be given notice of the reasons his release was revoked and an opportunity to respond and submit evidence. 8 C.F.R. § 241.13(i)(3). When a noncitizen is re-detained because of a change in circumstances, 8 C.F.R § 241.13(f) sets forth the factors the government must consider when determining whether there is a significant likelihood that the noncitizen will be removed in the reasonably foreseeable future.

B. Indefinite Detention

Petitioner argues in his petition that his removal to Vietnam is not reasonably foreseeable and that his continued detention therefore violates Zadvydas. Dkt. 1 at 22-23. The parties agree that Petitioner is subject to a final order of removal issued on March 17, 2008, and that he was released on an OSUP over a year later, on April 29, 2009, due to ICE's inability to obtain travel documents to Vietnam. Petitioner was re-detained on June 30, 2025, just over seven months ago. In total, Petitioner has been detained for approximately 20 months pursuant to his final order of removal, well beyond the presumptively reasonable period recognized in Zadvydas.

Respondents suggest that the presumptively reasonable period has not passed because Petitioner has not cooperated with ICE in obtaining travel documents. See Dkt. 12 at 14. However, the only evidence supporting this suggestion is an averment by Officer Diaz that during an interview with Petitioner on September 15, 2025, Petitioner refused to sign any documents or provide any information for a travel document. Diaz Decl., ¶ 9. Notably, however, the presumptively reasonable six-month period expired during the 13 months Petitioner was detained immediately following issuance of his removal order. Thus, even assuming Petitioner failed to cooperate in obtaining his travel documents in September 2025, a fact which Respondents have by no means established, the presumptively reasonable six-month period has long passed. Thus, Petitioner's continued detention is not presumptively reasonable.

Petitioner argues as well that his removal is not reasonably foreseeable, noting that ICE has not obtained a travel document, nor has it agreed to accept him. Dkt. 1 at 6. It is also notable that ICE has failed to remove Petitioner in the almost 18 years since his removal order became final and that it has made little apparent headway in obtaining travel documents in the many months since Petitioner was re-detained. These facts “provide[ ] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491.

Respondents, relying on Petitioner's alleged lack of cooperation in obtaining travel documents, argue that he fails to demonstrate his removal is not reasonably foreseeable. See Dkt. 12 at 13-15. However, Respondents do not show how Petitioner's alleged lack of cooperation hindered their ability to timely obtain travel documents. Petitioner advised ICE when he was re-detained in June 2025 that he had no foreign identity documents, but this cannot reasonably be deemed a lack of cooperation absent evidence that Petitioner had such documents and refused to produce them, evidence which does not appear in this record. Moreover, while Respondents contend that Petitioner failed to sign documents or to provide information for a travel document application, they offer no details as to what information was required that Petitioner did not provide, nor do they explain how Petitioner's alleged refusal to sign unspecified documents hindered a process that they also fail to describe in any meaningful detail.

The Court observes as well that Officer Diaz's declaration contains many averments regarding cooperation between the United States and Vietnam and how the travel document request process works generally, but no details on how the process is likely to function in Petitioner's case. See Diaz Decl. ¶¶ 13-18. Officer Diaz avers that travel documents are “typically” issued by the government of Vietnam within 30 days of when the request for travel documents is made but indicates there are additional steps involved when an individual lacks documentation of Vietnamese citizenship. Id., ¶ 17. In particular, according to Officer Diaz, in such instances the Vietnamese government will “conduct an interview” before travel documents are issued. Id. However, no details are provided as to what the interview process entails, what information the Vietnamese government might be seeking, or how long the process might take.

“Courts in this circuit have regularly refused to find Respondents’ burden met where Respondents have offered little more than generalizations regarding the likelihood that removal will occur.” Nguyen, 796 F. Supp. 3d at 725 (citations omitted). Officer Diaz's generalized averments regarding the removal process as it pertains to individuals whom Respondents are seeking to remove to Vietnam are insufficient to satisfy Respondent's burden under Zadvydas.

C. Re-Detention

Petitioner also argues in his petition that his re-detention violated his due process rights, and that he is entitled to release because Respondents failed to comply with their obligations under 8 C.F.R. § 241.13. Dkt. 1 at 23-24. The relief Petitioner seeks by way these claims is to some extent duplicative of that to which he is entitled under Zadvydas, i.e., release from custody. However, Petitioner also seeks an order prohibiting Respondents from re-detaining him without holding hearing before a neutral decisionmaker at which the government bears the burden of establishing flight risk or danger to the community by clear and convincing evidence based on changed circumstances since Petitioner was previously released. See Dkt. 1 at 27. The Court will therefore consider whether the additional requested relief is appropriate.

According to Respondents, Petitioner's release was revoked because ICE determined that he was a threat to public safety based on his criminal offenses, and that he could be expeditiously removed due to cooperation between the United States and Vietnam. See Dkt. 12 at 12; Diaz Decl., ¶ 7. The facts in the record call into question both of these justifications.

Officer Diaz avers that Petitioner “violated terms of OSUP due to his criminal activities after getting OSUP.” Diaz Decl., ¶ 6. Respondents’ evidence shows that Petitioner was convicted of gross misdemeanor theft in Issaquah Municipal Court in 2019 and was arrested for malicious mischief by the Bellevue Police Department in 2021. Id., ¶¶ 4(k), 4(l). While this criminal activity may well have amounted to a violation of the conditions of Petitioner's release, something the Court cannot conclusively determine because Respondents did not include a copy of the OSUP in their materials, it is incomprehensible that ICE would decide, six years after Petitioner's most recent conviction, that his re-detention was warranted because he posed a threat to public safety. And to the extent Respondents argue that Petitioner's re-detention was warranted because ICE determined Petitioner could be removed expeditiously, the fact that seven months have passed since Petitioner was re-detained and ICE has yet to submit a travel document request to Vietnam renders this purported justification implausible as well.

As to the process used to revoke Petitioner's OSUP and re-detain him, Officer Diaz avers that Petitioner was provided a notice on June 30, 2025 upon his return to custody, but this representation is not supported by any documentation and Officer Diaz makes no mention of Petitioner being afforded the requisite informal interview at that time. Diaz Decl., ¶ 7. Officer Diaz also avers that Petitioner was served with a “corrected” OSUP revocation letter on September 8, 2025, over two months after Petitioner was re-detained, and an informal interview was conducted at that time. Diaz Decl., ¶ 8. Once again, however, a copy of the corrected notice was not provided to the Court and Officer Diaz offers no explanation has to how the corrected revocation letter differed from the original. Moreover, any notice and interview provided to Petitioner two months after he was re-detained can in no way be deemed timely. In sum, the record does not support the conclusion that that Petitioner was provided the requisite notice and informal interview in a timely fashion.

However, even assuming full compliance by ICE with the applicable regulations, those limited procedures do not provide the process due under the Fifth Amendment, which provides that no person shall “be deprived of life, liberty, or property, without due process of law[.]” The right to due process extends to “all ‘persons’ within the United States, including [noncitizens], weather their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491. For the reasons set forth by United States District Judge Kymberly K. Evanson in E.A.T.-B. v. Wamsley, 795 F. Supp. 3d 1316 (W.D. Wash. 2025), this Court finds that the government action at issue here is at the core of the liberty protected by the Fifth Amendment's Due Process Clause, that the risks of an erroneous deprivation of liberty are high, and that the government's interest in arresting and detaining a noncitizen without a hearing is low where the noncitizen was already released because the government had been persuaded he would not pose a flight risk or a danger to the community. Petitioner is therefore entitled to an Order directing that any attempt to re-detain him comport with due process.

D. Third Country Removal

Finally, Petitioner asserts in his Petition two claims challenging the constitutionality of ICE's current third-country removal policy. See Dkt. 1 at 24-27. Petitioner requests in relation to these claims that this Court: (1) order that Respondents may not seek to remove him to a third country “without notice and [a] meaningful opportunity to respond in compliance with the statute and due process in reopened removal proceedings”; and (2) order that Respondents may not remove him to any third country “because Respondents’ third-country removal program seeks to impose unconstitutional punishment on its subjects, including imprisonment and other forms of harm.” Dkt. 1 at 28.

1. Due Process/INA

Petitioner first argues that prior to any third-country removal, he must be afforded notice and a meaningful opportunity to respond, and he asserts that ICE's current third-country removal policy violates due process and relevant statutes and regulations because

[I]t directs ICE agents to remove individuals to third countries without any notice or process at all where diplomatic assurances are received and, where no diplomatic assurances are received, to provide flagrantly insufficient notice (6-24 hours) and opportunity to respond․

Dkt. 1 at 24-25 (emphasis in original). In response, Respondents assert that ICE is attempting to remove Petitioner to Vietnam, that they expect ICE will be able to do so shortly after travel documents are requested, and that there is no evidence ICE has any intention to remove Petitioner to a third country. Dkt. 12 at 16. Thus, Respondents argue, any claim pertaining to Petitioner's third country removal is not ripe. Id.

Though Respondents are currently taking steps to remove Petitioner to obtain the travel documents necessary to effectuate Petitioner's removal to Vietnam, this does not mean they will forego the options set forth in the challenged policy should their efforts to remove Petitioner to Vietnam prove unsuccessful. There is little of substance in Respondents’ materials to suggest that the government of Vietnam is likely to issue travel documents in Petitioner's case and this, when viewed in combination with the policy itself ¹ and the recent third-country removals of hundreds of immigrants (see Dkt. 1 at 19-21), gives rise to an imminent threat that Petitioner will face third-country removal under the current policy absent the relief requested in his habeas petition.

A number of courts in this district have recently addressed challenges to ICE's current third-country removal policy and have concluded that the policy violates due process. See Baltodano v. Bondi, No. C25-1958RSL, ––– F.Supp.3d ––––, ––––, 2025 WL 3484769, at *6 (W.D. Wash. Dec. 4, 2025); Abubaka v. Bondi, No. C25-1889RSL, 2025 WL 3204369, at *6 (W.D. Wash. Nov. 17, 2025); see also Nguyen, 796 F. Supp. 3d at 727-29. In reaching these conclusions, the courts have relied on an earlier decision from this district, Aden v. Nielsen, 409 F. Supp. 3d 998 (W.D. Wash. 2019).

In Aden, the court held that 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, 409 F. Supp. 3d at 1009. Citing to both the due process requirement that a petitioner be afforded “a full and fair hearing, an impartial decisionmaker, and evaluation of the merits of his or her particular claim,” and to the statutory requirements of 8 U.S.C. § 1231, the Aden court held that in the context of a third-country removal, “[g]iving petitioner an opportunity to file a motion to reopen [his removal proceedings] ․ is not an adequate substitute for the process that is due in these circumstances.” Id. at 1010 (citations omitted). Rather, the court concluded, the removal proceedings must be reopened so that a hearing may be held. Id. at 1011. In Nguyen, the court noted that “[t]he requirements set forth in Aden flow directly from binding Ninth Circuit precedent about due process protections before removal to a third country[,]” and held that the ICE's current policy governing third-country removals “contravenes Ninth Circuit law.”

The Court finds no basis to deviate from the courts’ reasoning in Baltodano, Abukaka, and Nguyen, and applies the same reasoning here. The Court therefore concludes that Petitioner is entitled to the requested order that Respondents not remove him to a third country without notice and a meaningful opportunity to be heard in reopened removal proceedings.

2. Punitive Nature of Removal Policy

Petitioner also argues that Respondents’ current third-county removal policy is punitive in nature and execution and is therefore unconstitutional under Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896). See Dkt. 1 at 25-26. Petitioner asserts that “the government has arranged for third countries to receive deportees and imprison them on arrival,” that it has “selected countries notorious for human rights abuses and instability for third-country removal arrangements,” and that it has “targeted individuals with criminal convictions for third-country removal where they will be imprisoned and harmed.” Id. at 26. Respondents have not provided any substantive response to this claim.

However, as with the above discussed due process challenge to the current third-party removal policy, courts in this district have recently addressed claims that the government's third-country removal policy is punitive and therefore unconstitutional under Wong Wing. See Baltodano, ––– F.Supp.3d at –––– – ––––, 2025 WL 3484769, at *7-10; Abubaka, 2025 WL 3204369, at *7-8; Nguyen, 796 F. Supp. 3d at 733-35.

In Nguyen, the court took judicial notice of “statements made by government officials, both on social media and to the press, acknowledging that deportees to third countries are being imprisoned and expressing intent to continue that practice[,]” and found that:

[T]hese statements ․ do offer evidence that third country deportation is occurring as a punishment. See, e.g., Dkt. 25 at 13 (official video of President Donald J. Trump stating “[I]f illegal aliens choose to remain in America, they're remaining illegally and they will face severe consequences. Illegal aliens who stay in America face punishments, including significant jail time, enormous financial penalties, confiscation of all property, garnishment of all wages, imprisonment and incarceration, and sudden deportation in a place and manner solely of our discretion.”); see also id. (statement by President Donald J. Trump that immigrants would be detained at Guantanamo Bay prison because “it's a tough place to get out” and “we don't want them coming back.”).

See Baltodano, ––– F.Supp.3d at ––––, 2025 WL 3484769, at *8 (quoting Nguyen, 796 F. Supp. 3d at 733-34). The Nguyen court also noted that “[o]ther courts across the country have recognized that the government is intentionally removing individuals to countries where they will be imprisoned.” Nguyen, 796 F. Supp. 3d at 734 (citations omitted).

The court in Baltodano and Abukaka, relying heavily on the Nguyen court's analysis, concluded that Respondents’ “practice of third-country removal paired with imprisonment is intended to be punitive and thus violates due process under Wong Wing, 163 U.S. 228 at 236-38, 16 S.Ct. 977, 41 L.Ed. 140 (1896), and Zadvydas, 533 U.S. 678 at 693-94, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).” Baltodano, ––– F.Supp.3d at ––––, 2025 WL 3484769, at *10; Abubaka, 2025 WL 3204369, at *8; see also Nguyen, 796 F. Supp. 3d at 733-35; Hambarsonpour v. Bondi, C25-1802-RSM, 2025 WL 3251155 (W.D. Wash. Nov. 21, 2025).

Respondents offer no reason why this Court should deviate from the decisions referenced above, and this Court perceives none. Accordingly, this Court similarly concludes that Respondents’ current practice of third country removals paired with imprisonment violates due process. Petitioner is therefore entitled to the requested order that Respondents not remove him to a third country where he is likely to face imprisonment or harm.

IV. CONCLUSION

Based on the foregoing, this Court ORDERS as follows:

(1) Petitioner's petition for writ of habeas corpus (Dkt. 1) is GRANTED.

(2) Respondents shall immediately RELEASE Petitioner on conditions of supervision consistent with those governing Petitioner's release prior to his recent re-detention, and shall file a notice with the Court within two (2) business days confirming Petitioner has been released from immigration detention; and,

(3) Respondents are prohibited from re-detaining Petitioner without first providing him notice and an opportunity to be heard before an immigration judge to determine whether re-detention is appropriate.

(4) Respondents are prohibited from removing or seeking to remove Petitioner to a country other than Vietnam without providing him notice and a meaningful opportunity to respond in a reopened removal proceeding before an immigration judge, or to any country where he is likely to face imprisonment or harm.

FOOTNOTES

1.   The current policy has not been provided to the Court in this action, but it is set forth in the Nguyen court's opinion. See Nguyen v. Scott, 796 F. Supp. 3d 703, 728 (W.D. Wash. 2025).

S. KATE VAUGHAN, United States Magistrate Judge