Phu Cao v. Pamela Bondi, Attorney General, et al.

Summary

The United States District Court for the Western District of Oklahoma reviewed a Report and Recommendation concerning Phu Cao’s 28 U.S.C. § 2241 challenge to his ICE detention. The court held that respondents failed to comply with the regulatory requirements for revoking Cao’s order of supervision under 8 C.F.R. § 241.13(i), including providing a valid basis for revocation and a prompt opportunity for an informal interview. The court granted habeas relief, ordered respondents either to provide proper notice and an interview or release Cao subject to his prior order of supervision, and dismissed the remaining claims without prejudice.

Holdings

1. Section 1252(g) does not bar jurisdiction over a habeas petition challenging whether ICE complied with the regulatory procedures governing revocation of an Order of Supervision and current detention, as distinct from a direct challenge to the execution of a removal order.
2. ICE may revoke an Order of Supervision under 8 C.F.R. § 241.13(i) only for a violation of release conditions or, based on changed circumstances, when ICE determines that there is a significant likelihood the noncitizen may be removed in the reasonably foreseeable future; the determination must precede revocation and redetention.
3. Upon revocation of an Order of Supervision, ICE must provide notice of a valid regulatory reason for revocation and a prompt informal interview allowing the noncitizen to respond and submit evidence; Cao did not receive the process required by 8 C.F.R. § 241.13(i)(3).
4. ICE's violation of the regulatory revocation procedures rendered Cao's detention unlawful and entitled him to habeas relief, including release subject to his previous Order of Supervision.
5. Cao was not entitled in this habeas action to prospective restrictions on potential future removal or redetention or to judicial alteration of the terms of his Order of Supervision.

Questions Presented

1. Whether 8 U.S.C. § 1252(g) deprived the district court of jurisdiction over a § 2241 challenge to the procedures used to revoke Cao's Order of Supervision and redetain him.
2. Whether ICE complied with 8 C.F.R. § 241.13(i) when it revoked Cao's Order of Supervision and redetained him.
3. Whether the regulatory violations entitled Cao to habeas relief and release subject to his prior Order of Supervision.
4. Whether Cao was entitled to prospective injunctive relief restricting future removal or redetention and to modification of his Order of Supervision.

Disposition

other