Phan v. Noem

Summary

The Southern District of California granted Minh Nhat Phan’s petition for a writ of habeas corpus challenging his renewed detention by ICE. The court held that ICE violated applicable regulations and due process by revoking his release without providing required notice, a prompt informal interview, and an opportunity to respond, and by failing to demonstrate changed circumstances supporting a significant likelihood of removal. The court ordered Phan’s immediate release subject to his preexisting Order of Supervision and denied his motion for a temporary restraining order as moot.

Holdings

1. Section 1252(g) did not bar jurisdiction because Phan challenged the manner in which ICE executed his removal order and the legality of his detention, rather than the validity of the removal order or one of the three discrete actions covered by § 1252(g).
2. When ICE revokes release under 8 C.F.R. § 241.4(l), it must notify the noncitizen of the reasons for revocation and promptly provide an informal interview and an opportunity to respond; failure to do so renders the resulting detention unlawful.
3. Under 8 C.F.R. § 241.13(i), ICE may revoke release and return a noncitizen to custody only upon a determination, based on changed circumstances, that there is a significant likelihood of removal in the reasonably foreseeable future, and it must also provide notice, a prompt informal interview, and an opportunity to respond.
4. ICE's failure to comply with the procedural requirements governing revocation of release violated Phan's Fifth Amendment due process rights and made his detention unlawful.

Questions Presented

1. Whether 8 U.S.C. § 1252(g) deprived the district court of jurisdiction over a habeas petition challenging the manner of ICE's execution of a removal order and the legality of detention.
2. Whether ICE's failure to provide notice, a prompt informal interview, and an opportunity to respond after revoking Phan's release violated 8 C.F.R. §§ 241.4(l) and 241.13(i) and the Fifth Amendment Due Process Clause.
3. Whether ICE established under 8 C.F.R. § 241.13(i)(2) that changed circumstances created a significant likelihood of removal in the reasonably foreseeable future.

Disposition

writ_granted