Xuan Ho v. Kristi Noem, et al.

Summary

The court granted Xuan Ho’s motion for a preliminary injunction in his habeas case challenging his immigration detention and the potential removal process. The court ordered the government to release Ho under his prior conditions and prohibited removal to a third country without notice and an opportunity to be heard. The court also ordered supplemental briefing regarding whether Vietnam had issued travel documents and whether Ho was scheduled for removal.

Holdings

1. Section 1252(g) did not bar review of Ho's constitutional challenges to his immigration detention. The court had jurisdiction under 28 U.S.C. § 2241 to consider the legality of the detention and the preliminary-injunction application.
2. Ho was likely to succeed on his claim that ICE unlawfully revoked his release and re-detained him without complying with 8 C.F.R. § 241.13(i)(2)-(3), which requires notice of the reasons for revocation and a prompt informal interview providing an opportunity to respond.
3. The court found that the evidence raised a substantial issue concerning whether Ho could be removed to Vietnam in the reasonably foreseeable future, but it deferred final resolution of the habeas petition pending supplemental briefing concerning whether Vietnam had issued travel documents and whether Ho was actually scheduled for removal.
4. Ho raised serious questions that removing him to a third country without notice and an opportunity to present fears of persecution or harm, or to seek withholding of removal and related protection, would violate due process.
5. The Winter factors and the Ninth Circuit's serious-questions sliding-scale test supported granting a preliminary injunction because Ho showed a strong likelihood of success on his procedural-due-process claim, irreparable constitutional and economic harm, and that the public interest and balance of equities favored relief.

Questions Presented

1. Whether the court had jurisdiction under 28 U.S.C. § 2241 notwithstanding 8 U.S.C. § 1252(g).
2. Whether Ho was likely to succeed on his claim that ICE violated due process and its own regulations by revoking his release and re-detaining him without notice of the reasons for revocation and an informal interview.
3. Whether Ho had shown that continued detention was unlawful because there was no significant likelihood of removal to Vietnam in the reasonably foreseeable future.
4. Whether removal to a third country without notice and an opportunity to present claims for withholding of removal or related protection would violate due process.
5. Whether the Winter preliminary-injunction factors supported interim release and an order barring removal to a third country without notice and an opportunity to be heard.

Disposition

other