Tran v. Bondi et al

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TUNG TRAN, )
)
Petitioner, )
)
v. ) Case No. CIV-25-1357-G
)
TODD BLANCHE, Acting Attorney )
General of the United States, et al., )
)
Respondents.1 )
ORDER
On November 15, 2025, Petitioner Tung Tran, appearing through counsel, filed a
Petition for Writ of Habeas Corpus (the “Petition,” Doc. No. 1) challenging his detention
by U.S. Immigration and Customs Enforcement (“ICE”) pursuant to 28 U.S.C. § 2241. In
accordance with 28 U.S.C. § 636(b)(1), the matter was referred to Magistrate Judge Shon
T. Erwin for preliminary review. Certain Respondents2 filed a Response (Doc. No. 11) to
the Petition, and Petitioner filed a Reply (Doc. No. 14).
1 Markwayne Mullin, the current Secretary of the U.S. Department of Homeland Security,
and Acting Attorney General of the United States Todd Blanche are hereby substituted as
respondents for Kristi Noem and Pamela Bondi pursuant to Rules 25(d) and 81(a)(4) of the
Federal Rules of Civil Procedure.
2 Respondent Scarlet Grant, Warden of Cimarron Correctional Facility, has not appeared in
this action or joined in the other respondents’ filings. The appearing respondents are: Todd
Blanche, Acting Attorney General of the United States; Markwayne Mullin, Secretary of
the U.S. Department of Homeland Security; Todd M. Lyons, Acting Director of ICE;
Marcos Charles, Acting Executive Associate Director, ICE Enforcement and Removal
Operations (“ERO”); Mark Siegel, Field Office Director for ERO; ICE; and U.S.
Department of Homeland Security.
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On December 22, 2025, Judge Erwin issued a Report and Recommendation (“R. &
R.,” Doc. No. 15), recommending that the Petition be granted and Petitioner be released
from custody. Respondents filed an Objection (Doc. No. 16) to the R. & R., to which
Petitioner responded (Doc. No. 18).
Pursuant to controlling authority, the Court reviews de novo the portions of the R.
& R. to which specific objection has been made. See United States v. 2121 E. 30th St., 73
F.3d 1057, 1060 (10th Cir. 1996); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
I. Background
The factual background is set forth in the R. & R. and is not contested by either
party. Petitioner is a citizen of Vietnam and entered the United States in approximately
1991. R. & R. at 1. Petitioner was ordered removed on December 9, 1997. Id.
Petitioner was detained by ICE on October 4, 2000, and released under an Order of
Supervision (“OOS”) on March 1, 2002. Id. From 2002 to 2025, Petitioner complied with
the OOS’s requirements to appear for routine check-ins with ICE and to update his address
whenever he relocated. Id. at 1-2.
Petitioner alleges that he has been wrongfully redetained by ICE since he was
“picked up” on August 27, 2025, “while doing nothing wrong and without being in
violation of any condition of his OOS.” Pet. ¶ 46. Petitioner is currently housed at the
Cimarron Correctional Facility, an ICE facility located in Cushing, Oklahoma. Id. ¶ 11.
II. Relevant Standards
“The Government’s ability to detain, release, and revoke the release of noncitizens
subject to removal orders is governed by specific regulations.” Phongsavanh v. Williams,
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809 F. Supp. 3d 864, 867 (S.D. Iowa 2025). Pursuant to 8 U.S.C. § 1231(a), the Attorney
General “shall detain” a noncitizen who is ordered to be removed; this period of detention
is referred to as the “removal period.” 8 U.S.C. § 1231(a)(1)(A), (2)(A); see also Zadvydas
v. Davis, 533 U.S. 678, 682 (2001) (“When an alien has been found to be unlawfully present
in the United States and a final order of removal has been entered, the Government
ordinarily secures the alien’s removal during a subsequent 90-day statutory ‘removal
period,’ during which time the alien normally is held in custody.”).
Section 1231(a)(3) prescribes that when a noncitizen is not removed within this
removal period, he or she may be released subject to “supervision” as set forth by relevant
regulations. 8 U.S.C. § 1231(a)(3); see 8 C.F.R. §§ 241.4, 241.13. As relevant here, federal
authorities may revoke an order of supervised release and “return the alien to custody” “if,
on account of changed circumstances, [ICE] determines that there is a significant likelihood
that the alien may be removed in the reasonably foreseeable future.” 8 C.F.R. §
241.13(i)(2). Alternatively, an order of supervision may be revoked if the noncitizen
“violates any of the conditions of release.” Id. § 241.13(i)(1). Revocation for either reason
triggers a notification requirement and a review process:
Revocation procedures. Upon revocation, the alien will be notified of the
reasons for revocation of his or her release. [ICE] will conduct an initial
informal interview promptly after his or her return to [ICE] custody to afford
the alien an opportunity to respond to the reasons for revocation stated in the
notification. The alien may submit any evidence or information that he or
she believes shows there is no significant likelihood he or she be removed in
the reasonably foreseeable future, or that he or she has not violated the order
of supervision. The revocation custody review will include an evaluation of
any contested facts relevant to the revocation and a determination whether
the facts as determined warrant revocation and further denial of release.
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Id. § 241.13(i)(3).
III. Discussion
A. The Merits of Petitioner’s Claim
In the R. & R., Judge Erwin concluded that Petitioner’s detention is unlawful
because Respondents failed to follow required procedures in revoking Petitioner’s OOS.
See R. & R. at 6-11. Based on this, Judge Erwin concluded that Petitioner is entitled to
release under 28 U.S.C. § 2241(c)(3). See id.; 28 U.S.C. § 2241(c)(3) (prescribing that
habeas corpus relief is available to a prisoner “in custody in violation of the . . . laws . . .
of the United States”).3
Specifically, the R. & R. concludes that the revocation of Petitioner’s OOS is
governed by 8 C.F.R. § 241.13(i). Id. at 6-7. Respondents do not challenge this conclusion.
The R. & R. further notes that of the two reasons listed in § 241.13(i) for why an OOS may
be revoked—(1) “[v]iolation of conditions of release,” and (2) “[r]evocation for removal,”
8 C.F.R. § 241.13(i)(1), (2)—Respondents’ arguments invoke only the second reason. See
R. & R. at 8. Respondents do not challenge this conclusion.
As to this second basis, a revocation to facilitate removal, Judge Erwin found that
the record does not indicate that Petitioner’s removal is significantly likely in the
reasonably foreseeable future. See R. & R. at 8. Respondents object to this, arguing that
there is a significant likelihood of Petitioner’s imminent removal because of Vietnam’s
recent “greater willingness to repatriate its citizens” and that Vietnam is “accepting far
3 Based upon this determination, Judge Erwin did not reach Petitioner’s remaining claims
for relief or request for declaratory judgment. See R. & R. at 11 n.2; Pet. ¶¶ 83-87, 93-102.
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greater numbers of its citizens who have been ordered removed from the United States.”
See Resp’ts’ Obj. at 5.
Upon de novo review, the Court agrees with the thorough reasoning in the R. and
R. Respondents’ citation of evidence showing a general upswing in Vietnam’s willingness
to repatriate its citizens who are in the United States does not suffice to show that
Respondents made a specific determination, prior to revoking Petitioner’s OOS and
detaining Petitioner, that in light of changed circumstances there was a significant
likelihood that Petitioner may be removed to Vietnam in the reasonably foreseeable future.
See McGettrick Decl. (Doc. No. 11-1) ¶ 10 (stating that basis for revoking Petitioner’s
OOS on August 27, 2025, was Petitioner’s “criminal history and final order of removal”).
Indeed, Respondents did not submit a request for travel documents for Petitioner until
November 22, 2025. Id. ¶ 12; see also Pham v. Bondi, No. CIV-25-1157-SLP, 2025 WL
3243870, at *2 (W.D. Okla. Nov. 20, 2025) (“Respondents provided no evidence of
progress they made towards removal of Petitioner himself before re-detention.”). Even if
a general trend were a sufficient substitute for an individualized determination to revoke,
Respondents did not provide Petitioner the required written notice of the reasons for
revocation or the prompt “informal interview” that would have allowed Petitioner the
opportunity to respond. See 8 C.F.R. § 241.13(i)(3) (“Upon revocation, the alien will be
notified of the reasons for revocation of his or her release. [ICE] will conduct an initial
informal interview promptly after his or her return to [ICE] custody to afford the alien an
opportunity to respond to the reasons for revocation stated in the notification.”).
Accordingly, this objection is overruled.
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Respondents next object that the R. & R. did not address the length of Petitioner’s
detention as would be required to assess a detention challenge made pursuant to Zadvydas
v. Davis, 533 U.S. 678 (2001). See Resp’ts’ Obj. at 2-3. Petitioner responds that analyzing
the length of his current detention was “unnecessary” because the R. & R. recommends
relief pursuant to Count Two, on the ground that Respondents violated the applicable
revocation requirements, rather than Count Three, which contains Petitioner’s Zadvydas
claim. See Pet’r’s Resp. at 2-3; see also Pet. ¶¶ 88-92, 93-96. The R. & R. expressly states
that it “does not address Petitioner’s remaining arguments as to how the revocation of his
release is otherwise unlawful . . . under Zadvydas.” R. & R. at 11 n.2. Having found that
Petitioner is entitled to relief on Count Two, the Court also declines to analyze Petitioner’s
alternative argument based on Zadvydas. Therefore, this objection is overruled.
Respondents also argue, more broadly, that the R. & R. does not appropriately
account for the Executive’s expertise in immigration matters or properly allow for the
Executive’s discretion in immigration matters. See Resp’ts’ Obj. at 8-9 (citing Zadvydas,
533 U.S. at 700). Petitioner responds that Respondents’ deference argument is misplaced
because Petitioner’s contention is that Respondents have failed to abide by their own
regulations, which does not implicate “the conduct of foreign affairs or the discretion of
the Executive in matters of state.” See Pet’r’s Resp. at 12-13.
Respondents are correct that courts undertaking habeas review of immigration
detention decisions “must take appropriate account of the greater immigration-related
expertise of the Executive Branch, of the serious needs and concerns inherent in the
necessarily extensive [Executive] efforts to enforce this complex statute, and the Nation’s
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need to speak with one voice in immigration matters.” Zadvydas, 533 U.S. at 700 (internal
quotation marks omitted). But “courts can take appropriate account of such matters
without abdicating their legal responsibility to review the lawfulness of an alien’s
continued detention.” Id. Here, the Court is presented with a cognizable claim for habeas
relief under § 2241. Consistent with the Court’s “legal responsibility” to determine
“whether [Petitioner’s] detention is, or is not, pursuant to statutory authority,” the R. & R.
“review[ed] the lawfulness” of the revocation of Petitioner’s OOS and his redetention and
found Respondents’ actions to be “unlawful.” See Zadvydas, 533 U.S. at 699-700; R. &
R. at 6-11. This analysis is consistent with Zadvydas and does not improperly infringe on
Executive expertise or discretion. See Zadvydas, 533 U.S. at 699 (“The basic federal
habeas corpus statute grants the federal courts authority to answer” “whether detention is
in violation of the laws of the United States[.]” (alterations and internal quotation marks
omitted)). Respondents’ deference objection is overruled.
B. The Relief Afforded to Petitioner
Respondents object to the R. & R.’s conclusion that Petitioner is entitled to release
based on their violation of the required revocation procedures, arguing that the “harmless
error standard applies in deportation and administrative cases.” See Resp’ts’ Obj. at 4
(citing Bahadorani v. Bondi, No. CIV-25-1091-PRW, 2025 WL 3048932 (W.D. Okla. Oct.
31, 2025)). Petitioner counters that Bahadorani is incorrect in its conclusion and
distinguishable. See Pet’r’s Resp. at 7-8. Petitioner also argues that release is the proper
remedy for his unlawful detention. See id. at 9-12.
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This Court, in agreement with the majority view, has “found that such regulatory
defects amount to due process violations that entitle a petitioner to habeas relief.” Hamidi
v. Bondi, No. CIV-25-1205-G, 2025 WL 3452454, at *3-4 (W.D. Okla. Dec. 1, 2025)
(internal quotation marks omitted); see also Pham, 2025 WL 3243870, at *1. This matter
is distinguishable from Bahadorani. Unlike in Bahadorani, where the petitioner was
“provided the reasons for his detention” and “an interview related to a review of his
detention,” Bahadorani, 2025 WL 3048932, at *3, Respondents here failed to provide
proper § 241.13(i)(3) notice to Petitioner or any meaningful opportunity to challenge his
revocation, see Hamidi, 2025 WL 3452454, at *3; Cao, 2026 WL 637617, at *5. Based
on the facts and circumstances of this case, the undersigned concurs that Respondents’
violation of § 241.13(i) denied Petitioner the process to which he was entitled by law and
that such a denial entitles Petitioner to habeas relief. See Hamidi, 2025 WL 3452454, at
*3. Accordingly, Respondents’ relief objection is overruled.
Beyond release from detention, Petitioner seeks injunctive relief in the form of
prospective restrictions on Respondents’ ability to remove him to third countries or
redetain him pursuant to 8 C.F.R. § 241.13(i). See Pet. at p. 23-26. These requests are
denied. See Cao, 2026 WL 637617, at *6.
Petitioner also requests “reasonable attorney fees and costs pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A).” Pet. at p. 24. “The Tenth Circuit
recently held that the [Equal Access to Justice Act] ‘unambiguously authorizes fees in
habeas actions challenging immigration detention.’” Marin Ramos v. Dedos, No. 26-cv-
00264, 2026 WL 555338, at *8-9 (D.N.M. Feb. 27, 2026) (alteration omitted) (quoting
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Daley v. Ceja, 158 F.4th 1152, 1166 (10th Cir. 2025)). However, these fees must be sought
in accordance with the requirements of the Equal Access to Justice Act and by separate
motion. See id.; Fed. R. Civ. P. 54(d)(2), 81(a)(4); LCvR 54.2.
CONCLUSION
In accordance with the above, the Report and Recommendation (Doc. No. 15) is
ADOPTED.
It is further ordered that:
1. The Petition for Writ of Habeas Corpus (Doc. No. 1) is GRANTED to the extent
it requests habeas release pursuant to 28 U.S.C. § 2241.4
2. Petitioner’s remaining claims are DISMISSED without prejudice.
3. Respondents are directed to either:
a. Within three (3) days of the date of this Order, provide Petitioner Tung
Tran with notification of the reason for his revocation pursuant to 8
C.F.R. § 241.13(i) and, promptly thereafter, an informal interview
allowing Petitioner to respond to the reasons for his revocation pursuant
to § 241.13(i)(3); or
b. Immediately release Petitioner Tung Tran into the United States, subject
to the terms of his previous Order of Supervision.
4. Respondents shall submit a declaration pursuant to 28 U.S.C. § 1746 within five
(5) days of the date of this Order affirming either Petitioner’s release from
custody into the United States or that the prescribed notification has been served
on Petitioner.
5. The Court will separately enter Judgment in favor of Petitioner but retain
jurisdiction over this matter to ensure compliance with this Order and to
4 The undersigned’s conclusion herein does not foreclose the possibility that the occurrence
of events affecting the likelihood of Petitioner’s removal in the reasonably foreseeable
future could constitute “changed circumstances” as contemplated by 8 C.F.R. §
241.13(i)(2).
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entertain any motion for attorneys’ fees. Petitioner shall have 45 days from the
date of this Order to file any motion seeking fees.
Petitioner’s Motion for Expedited Handling (Doc. No. 19) is DENIED as moot.
IT IS SO ORDERED this 30th day of April, 2026.
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