Nguyen v. Department of Homeland Security

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HIEP VAN NGUYEN, 	)
)
Petitioner, 	)
)
v. 	) 	No. CIV-26-87-R
)
DEPARTMENT OF HOMELAND 	)
SECURITY, 	)
)
Respondent. 	)
REPORT AND RECOMMENDATION
Petitioner Hiep Van Nguyen, a noncitizen proceeding pro se1, seeks a
writ of habeas corpus under 28 U.S.C. § 2241. Doc. 1.2 United States District
Judge David L. Russell referred the case to the undersigned Magistrate Judge
for 	initial 	proceedings 	under 	28 	U.S.C. 	§ 636(b)(1)(B), 	(C). 	Doc. 	3. 	The
Government responded, Doc. 8, and the time for Petitioner to reply has lapsed,
see Doc. 6. So the matter is at issue.
1 	This 	Report 	and 	Recommendation 	“uses 	the 	term 	‘noncitizen’ 	as
equivalent to the statutory term ‘alien.’” Nasrallah v. Barr, 590 U.S. 573, 578
n.2 (2020) (citing 8 U.S.C. § 1101(a)(3)). This Court construes “[a] pro se
litigant’s pleadings . . . liberally,” holding them “to a less stringent standard
than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
2 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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For the reasons set forth below, the undersigned recommends the Court
grant Petitioner’s request for habeas corpus relief, in part.
I. 	Factual background and procedural history.
Petitioner is a citizen of Vietnam who entered the United States in July
1993, “at or near San Diego, California, as a Refugee, class of admission RE-
8.” Doc. 8, at 2 (citing Ex. 1, at 1-2). In 2003, the State of Indiana convicted
Petitioner for possession of child pornography, a Class D Felony. Id. at 2-3
(citing 	Ex. 	1, 	at 	2 	& 	Ex. 	2). 	Petitioner 	was 	detained 	and 	placed 	into
Immigration 	and 	Customs 	Enforcement 	(ICE) 	Enforcement 	Removal
Operations’s (ERO) custody on December 16, 2023, “and he was deemed
amenable to removal pursuant to [the Immigration and Nationality Act (INA)]
§ 237(a)(2)(A)(iii).” Id. at 3 (citing Ex. 1, at 2 & Ex. 3).
On January 7, 2004, an Immigration Judge (IJ) entered an order of
removal against Petitioner. Id. at 3 (citing Ex. 1, at 2 & Ex. 4). On January 20,
2004, ICE ERO submitted a travel document to the Embassy of Vietnam. Id.;
Doc. 8, Ex. 1, at 2. On March 2, 2004, ICE served Petitioner with his 90-day
post-order custody review. Doc. 8, at 3 (citing Ex. 1, at 2 & Ex. 5).
On May 24, 2004, a representative with the Vietnamese embassy advised
ICE ERO that a travel document would not be issued for Petitioner due to the
lack of a repatriation agreement between Vietnam and the United States at
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that time. Id. (citing Ex. 1, at 2). That same day, Petitioner’s post-order custody
review 	was 	“completed 	and 	submitted 	to 	a 	Supervisory 	Detention 	and
Deportation Officer for review with recommendation for release.” Id. On May
26, 2004, Petitioner was served with his Order of Supervision (OOS), see Doc.
8, Ex. 6, at 1, outlining his conditions of release and monthly check-in schedule,
and released from ICE custody. Id. at 1, 3; Doc. 8, at 3.
In June 2018, Petitioner was encountered by ICE “after being arrested
for 	outstanding 	traffic 	tickets, 	but 	ICE 	ERO 	determined 	there 	was 	no
significant likelihood of removal in the foreseeable future.” Doc. 8, at 3 (citing
Ex. 1, at 3). In December 2018, Petitioner pleaded guilty to criminal trespass
in Odessa, Texas. Id. On May 15, 2024, ICE ERO again “determined that there
was 	no 	significant 	likelihood 	of 	[Petitioner’s] 	removal 	in 	the 	reasonably
foreseeable future.” Id. at 3-4.
On November 25, 2025, at his monthly check-in, ICE arrested Petitioner
and placed him into custody “given his final order of removal and a change in
policy and bed space availability.” Id. at 4 (citing Ex. 1, at 3 & Ex. 7 (Warrant
of Removal/Deportation)); see also Doc. 1, at 8. Petitioner was transferred to
the Cimarron Correctional Facility on November 27, 2025, where he remains
detained. Doc. 8, at 4 (citing Ex. 1, at 3).
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“On December 11, 2025, a [travel document request] was submitted to
ICE 	ERO 	headquarters 	and 	. 	. 	. 	subsequently 	sent 	to 	the 	Consulate 	of
Vietnam.” Id.3 Respondents allege that “[o]n December 19, 2025, Petitioner
asked ICE ERO about being deported back to Vietnam as soon as possible” and
“ICE ERO advised [him] that a [travel document request] is pending and [they
were] waiting for a response from the consulate.” Id. ICE also informed
Petitioner that because “[he] does not have a passport, that may be delaying
the process.” Id. On February 2 and February 3, 2026, ICE ERO checked the
status of Petitioner’s travel document request and was advised it was still
pending. Id.
After nearly five months in ICE detention and the filing of his habeas
petition4, ICE served Petitioner with a “Notice of Revocation of Release on
March 17, 2026, and [he] was afforded an informal interview at which he was
given an opportunity to respond to the reasons for [the] revocation.” Id. (citing
Ex. 1, at 4 & Ex. 8 (Notice of Revocation)).
II. 	Petitioner’s claims.
3 	Respondents have not provided the Court with the January 20, 2004, see
Doc. 8, at 3, or December 11, 2025 travel document requests, id. at 4.
4 	Petitioner filed his petition on January 16, 2026. Doc. 1, at 1.
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Petitioner raises four grounds for relief:
Ground One: The Department of Homeland Security (DHS) has
not provided him with a proper reason for his re-detention, “since
[it] still [has] not been able to obtain the required travel documents
to deport [him], even though [it has] been trying since 2005[.]”
Ground 	Two: 	“DHS 	has 	violated 	the 	Za[d]vydas[5] 	laws 	by
detain[ing] [him] the second time in addition[] to the 6 months
period of [his] first detention in 2005[.]”
Ground 	Three: 	“DHS 	has 	violated 	[its] 	rules 	and 	regulations
because [it] did not provide any kind of notices that . . . lead[] to
[his] arrest, and the revocation of ordered release under [his
OOS].”
Ground Four: DHS violated the Administrative Procedure Act
(APA) by not providing him with a “informal interview, indications
of the causes for the revocation of [his] release and detention.”
Doc. 1, at 7-8. He asks the Court to restore his “status of being ordered . . .
release[d] under supervision, until a proper schedule[d] date is set for [his]
deportation, 	and 	a 	request 	[for 	his] 	appearance 	being 	sent 	out 	for 	[his]
5 	In Zadvydas, the Supreme Court interpreted 8 U.S.C. § 1231(a)(6)—
which is “[a] special statute authoriz[ing] further detention if the Government
fails to remove [an] alien during [the ninety-day removal period]”—to include
“an implicit ‘reasonable time’ limitation [on detention], the application of which
is subject to federal-court review.” 533 U.S. 678, 682 (2001); see also id. at 690
(“A statute permitting indefinite detention of an alien would raise a serious
constitutional problem.”). That reasonable time limitation is six months, and
“[a]fter this 6–month period, once the alien 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. at 701.
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departure.” 	Id. 	at 	8.
III. 	Standard of review.
An application for a writ of habeas corpus “is an attack by a person in
custody upon the legality of that custody, and . . . the traditional function of
the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S.
475, 484 (1973). Habeas corpus relief is warranted only if the petitioner “is in
custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). “Challenges to immigration detention are
properly brought directly through habeas.” Soberanes v. Comfort, 388 F.3d
1305, 1310 (10th Cir. 2004) (citing Zadvydas, 533 U.S. at 687); see also
Zadvydas, 533 U.S. at 687 (“[T]he primary federal habeas corpus statute, 28
U.S.C. § 2241, confers jurisdiction upon the federal courts to hear these
cases.”).
IV. 	Analysis.
A. 	The Court has jurisdiction to hear Petitioner’s claims in
Grounds One and Three.
The Government argues that this Court is “jurisdictionally barred” from
reviewing Petitioner’s claims regarding ICE’s revocation of his OOS as “8
U.S.C. § 1252(g) strips district courts of jurisdiction over claims ‘arising from
the decision or action . . . to execute removal orders’” including “ICE’s decision
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and 	actions 	to 	revoke supervision.” 	Doc. 8, 	at 11. Relying on 	Tazu, 	the
Government maintains that “[c]ourts have recognized that re-detention is
‘simply the enforcement mechanism’ chosen to execute a removal order and is
therefore insulated from district-court review.” Id. (quoting Tazu v. Att’y Gen.
of United States, 975 F.3d 292, 299-300 (3d Cir. 2020)).
The Government’s position has previously been rejected by the Court,
and the Court should do the same here. Cao v. Bondi, No. CIV-25-1403-G, 2026
WL 637617, at *3 (W.D. Okla. Mar. 6, 2026) (“Respondents’ citation to the
Third Circuit’s Tazu decision is not persuasive in light of ‘the Supreme Court’s
consistent 	use 	of 	an 	exceedingly 	narrow 	construction 	on 	the 	jurisdiction
channeling provisions’ of § 1252” and “independently conclud[ing] that [the
Court’s] ability to consider the petition is not barred by § 1252(g)” as the
petitioner was “not seeking review of the Executive’s decision to execute an
order of removal. Instead, [the] [p]etitioner argues that he is detained in
violation of the INA because Respondents . . . failed to comply with the
applicable regulations prior to redetaining [him] after he was previously
released on an OOS.” (quoting Montoya v. Holt, No. CIV-25-1231-JD, 2025
3733302, at *5 (W.D. Okla. Dec. 26, 2025))) (record citations omitted), motion
for relief from judgment granted, 2026 WL 686839 (W.D. Okla. Mar. 10, 2026);
see, e.g., Nguyen v. Bondi, No. CIV-25-1402-D, 2026 WL 396548, at *4 (W.D.
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Okla. Feb. 12, 2026) (“The Court agrees with the magistrate judge’s finding
that 	neither 	8 	U.S.C. 	§ 	1252(b)(9) 	nor 	§ 	1252(g) 	deprives 	the 	Court 	of
jurisdiction . . . .”).
B. 	The 	Government 	improperly 	revoked 	Petitioner’s 	OOS
when it failed to give him notice upon revocation.
In Ground One, Petitioner alleges Respondent failed to provide him with
the reasons for his re-detention following his release on supervision “since [it]
still [has] not been able to obtain the required travel documents.” Doc. 1, at 7.
In Ground Three, Petitioner alleges that Respondent “violated [its] rules and
regulations 	because 	[it] 	did 	not 	provide 	any 	kind 	of 	notice 	warning 	of
reasonable causes, that lead[] to [his] arrest and the revocation of [his] ordered
release under [OOS].” Id. Because Petitioner’s claims in Grounds One and
Three are intertwined, the undersigned addresses them together and finds the
Government violated its regulations pertaining to revocation of a noncitizen’s
OOS when it detained him.
The Government, asserts that ICE did not have to “provide an interview
or advance notice upon re-detention” because of “ICE[’s] broad discretionary
authority [under 8 C.F.R. § 241.4(l)(2)] to revoke release when revocation is
appropriate to enforce a removal order or when circumstances indicate release
is no longer appropriate.” Doc. 8, at 11. This Court has previously rejected the
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Government’s interpretation of § 241.4(l)(2) and should do the same here.
Guerra v. Bondi, No. CIV-25-1240-G, 2026 WL 114258, at *5 (W.D. Okla. Jan.
15, 2026) (“Respondent contends that the requirements of notice and an
informal interview in § 241.4(l)(1), and of a review process and interview in §
241.4(l)(3), are not applicable to noncitizens whose release is revoked pursuant
to § 241.4(l)(2). Respondent has not cited authority for this position, and ‘courts
have consistently held otherwise.’” (quoting Zhu v. Genalo, 798 F. Supp. 3d
400, 410 (S.D.N.Y. 2025) (collecting cases))); cf. Cao, 2026 WL 637617, at *2
(“Revocation 	for 	either 	reason 	[under 	8 	C.F.R. 	§ 	241.13(i)] 	triggers 	a
notification requirement and a review process”).
This requirement of written notice is bolstered by § 241.4(d), which
provides:
A copy of any decision by the district director, Director of the
Detention 	and 	Removal 	Field 	Office, 	or 	Executive 	Associate
Commissioner to release or to detain an alien shall be provided to
the detained alien.
8 C.F.R. § 241.4(d).
The Court also cannot ignore that the Government served Petitioner
with his Notice of Revocation of Release and offered him an informal interview
after he filed his habeas petition and ICE had already detained him for four-
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plus months. See Doc. 8, at 4 & Ex. 8.6 This indicates that the Government was
aware that its regulations require a Notice of Revocation and a prompt
informal interview, but it simply elected not to follow its regulatory procedures
when it revoked Petitioner’s OOS. See K.E.O. v. Woosley, 2025 WL 2553394, at
*6 (W.D. Ky. Sept. 4, 2025) (“By eventually providing K.E.O. with this Notice,
Respondents evidently, knew about their requirements and presumably had
the opportunity to provide this Notice to K.E.O. upon her revocation. But they
failed to do so. And in turn, violated their own regulations.”); J.L.R.P. v.
Wofford, 2025 WL 3190589, at *6 (E.D. Cal. Nov. 14, 2025) (“[T]here is no
indication that the government ever had any intention of timely complying
with the regulation as required, as it provided the untimely notice only after
being prompted by petitioner’s filing of his habeas petition.”). At bottom, when
the Government re-detained Petitioner on November 25, 2025, it failed to give
6 	Petitioner was served with a warrant of removal/deportation, see Doc. 8,
Ex. 7, but “[t]he warrant does not explain the reason for the revocation of
Petitioner’s supervision order, and where an [OOS] is revoked for unspecified
reasons, the Court finds the risk of erroneous deprivation of liberty is high.”
E.G.M. v. Scott, 2026 WL 914803, at *4 (W.D. Wash. Apr. 3, 2026). The warrant
was also served on Petitioner a day after his arrest, see Doc. 8, Ex. 7, and is a
separate regulatory violation that is not raised by Petitioner. See Guarnizo v.
Quinones, 2026 WL 982816, at *3 (M.D. Fla. Apr. 13, 2026) (“Generally, the
warrant must be issued before the noncitizen’s arrest.”).
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Petitioner Notice of Revocation or a prompt informal interview as required by
8 C.F.R. §§ 241.4(l) and 241.13(i).
Having determined that Petitioner’s OOS was revoked without notice,
the issue before the Court is whether the Government’s improper revocation
that it attempted to cure by belatedly serving Petitioner with a Notice of
Revocation constitutes harmless error. See Bahadorani v. Bondi, No. CIV-25-
1091-PRW, 2025 WL 3048932, at *2 (W.D. Okla. Oct. 31, 2025) (“The harmless
error standard applies in deportation and administrative cases.”) (first citing
Nazaraghaie 	v. 	I.N.S., 	102 	F.3d 	460, 	465 	(10th 	Cir. 	1996); 	then 	citing
WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1238-39
(10th Cir. 2017)). And the undersigned determines that it does not.
This Court is not in agreement on when regulatory noncompliance is
harmless and when it is prejudicial. Id. (“While the government failed to
provide a Notice of Revocation of Release to Petitioner, the Court finds . . . such
error has been mitigated by the government’s substantial compliance with the
law and cured by the opportunities Petitioner has had to contest his detention,
both in front of ICE and this Court.”); see also Nguyen v. Bondi, No. CIV-25-
1204-JD, 2025 WL 4114231, at *5 n.8 (W.D. Okla. Dec. 31, 2026) (“To the
extent that the failure to provide written notice or an informal interview is a
regulatory violation that constitutes a procedural due process violation, the
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remedy for such violation would not be release from custody but would be for
Respondents to comply with the regulations.”); but see Cao, 2026 WL 637617,
at *6 (“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.’” (quoting Hamidi v. Bondi, 2025 3452454, at *3-4 (W.D. Okla.
Dec. 1, 2025))); Pham v. Bondi, No. CIV-25-1157-SLP, 2025 WL 3243870, at *1
(W.D. Okla. Nov. 20, 2025) (“District courts in the Tenth Circuit . . . have found
that a failure to establish changed circumstances [before revoking an OOS]
amounts 	to 	a 	due 	process 	violation 	that 	justifies 	release.”). 	And 	the
undersigned 	has 	recommended 	denying 	relief 	to 	a 	petitioner 	alleging
regulatory 	noncompliance 	in 	violation 	of 	8 	C.F.R. 	§ 	241.4 	where 	the
Government gave the petitioner “an opportunity for a personal interview to
respond to the revocation, which he declined.” T. Nguyen v. Bondi, No. CIV-25-
1415-JD, 2026 WL 865739, at *6 (W.D. Okla. Jan. 20, 2026) (Report &
Recommendation).
The 	undersigned 	finds 	Respondents’ 	failure 	to 	comply 	with 	its
regulations for over four months is not harmless error, and Petitioner has met
his burden to show he was prejudiced.
In T. Nguyen, the petitioner was re-detained for three months before ICE
eventually provided him with the reasons for the revocation of his OOS and an
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opportunity for an informal interview. Id. at *1; see also 8 C.F.R. § 241.4(l)(4)
(noting that “[f]f the alien is not released from custody following the informal
interview provided for in paragraph (l)(1) of this section . . . [t]he normal review
process will commence with notification to the alien of a records review and
scheduling of an interview, which will ordinarily will be expected to occur
within approximately three months after release is revoked.”). Most notably,
and unlike the case at hand, ICE provided the petitioner with an interview and
opportunity to respond to the grounds for revoking his OOS before he filed his
habeas petition. T. Nguyen, 2026 WL 865739, at *4, 6.
Likewise, 	the 	Government’s 	“reliance 	on 	Bahadorani 	is 	misplaced
because it overlooks the fundamentally different circumstances presented” in
Petitioner’s immigration proceedings. Li v. Bondi, No. CIV-25-1408-J, 2026
WL 475133, at *3 (W.D. Okla. Feb. 19, 2026). “In Bahadorani, Judge Wyrick
noted that while the individual may not have received the initial notice, he was
interviewed on the same day as his detention, informed of ‘the reasons for his
detention,’ and was subsequently afforded a second post-detention interview
where he was permitted to ‘submit information concerning his custody.’” Id.
Here, Petitioner was detained for four-plus months before the Government
attempted 	to 	comply 	with 	its 	regulatory 	requirements 	under 	8 	C.F.R. 	§
241.4(l), and “[t]hat complete breakdown in process is not comparable to the
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technical 	deficiency 	addressed 	in 	Bahadorani 	and 	squarely 	raises 	the
constitutional concerns that justify habeas relief in this case.” Id.7
The Government maintains that “Petitioner can show no prejudice in
any event as he has since been provided an interview.” Doc. 8, at 11. “But
prejudice may be presumed when ‘compliance with the regulation is mandated
by the Constitution’ and ‘where an entire procedural framework, designed to
insure the fair processing of an action affecting an individual is created but
then not followed by an agency.’” K.E.O., 2025 WL 2553394, at *5.8
C. 	The 	Government 	fails 	to 	meet 	its 	burden 	of 	showing
changed 	circumstances 	necessitated 	revocation 	of
Petitioner’s OOS.
7 	“Judge Wyrick in Bahadorani acknowledge[d] there are circumstances
where a violation of 241.13(i)(2) and (i)(3) can warrant habeas relief where the
violation rises to the level of ‘a serious substantive defect . . . beyond a mere
failure to follow the regulation to a T.’” Li, 2026 WL 475133, at *3 n.2 (quoting
Bahadorani, 2025 WL 3048932, at *3).
8 	“[T]he Court notes several recent opinions by the Tenth Circuit have
applied the [United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)]
doctrine, albeit in different circumstances than habeas relief, and one such
opinion specifically ‘reserve[s] the ability to consider’ whether prejudice is
required in light of ‘divergent views’ from various circuits.” Owdetallah v.
Bondi, No. CIV-25-1546-SLP, 2026 WL 483648, at *5 n.6 (W.D. Okla. Feb. 20,
2026) (quoting Wright-Smith v. Fed. Aviation Admin., 2024 WL 5183255, at *3
(10th Cir. Dec. 20, 2024)). “Ultimately, even if prejudice were required, the
Court is satisfied that Petitioner has been prejudiced upon review of the
record.” Id.
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Even if the Court were to find the Government’s belated Notice cured its
failure 	to 	comply 	with 	8 	C.F.R. 	§ 	241.4(l), 	the 	undersigned 	finds 	the
Government 	failed 	to 	make 	the 	proper 	determination 	that 	changed
circumstances necessitated revocation of Petitioner’s OOS as required by 8
C.F.R. § 241.13(i)(1).
ICE may revoke an OOS and “return the alien to custody” when, “on
account of changed circumstances . . . there [becomes] a significant likelihood
[of] the alien[’s] remov[a]l in the reasonably foreseeable future.” 8 C.F.R. §
241.13(i)(1). 	“These 	regulations 	clearly 	indicate 	that, 	upon 	revocation 	of
supervised 	release, 	it 	is 	the 	Government’s 	burden 	to 	show 	a 	significant
likelihood that the noncitizen may be removed.” Hall v. Nessinger, 2026 WL
18583, at *6 (D.R.I. Jan. 2, 2026).
Relying on the declaration of Deportation Officer Juan Soto, Respondent
asserts that:
Based on the Government of Vietnam’s willingness to accept its
citizens, and the number of successful removals ERO has made to
Vietnam [in Fiscal Year 2025], . . . removal of [Petitioner] to
Vietnam 	is 	significantly 	likely 	in 	the 	reasonably 	foreseeable
future.
Doc. 8, Ex. 1, at 4. First, “Courts have found that such increase in frequency of
removals alone does not demonstrate significant likelihood of removal in the
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reasonably foreseeable future.” Pham, 2025 WL 3243870, at *2 (collecting
cases).
Officer Soto’s declaration does not include any details evidencing a
change in circumstances making Petitioner’s removal more likely before his
OOS 	was 	revoked. 	Instead, 	Officer 	Soto 	suggests 	that 	the 	only 	reason
Petitioner was re-detained was his outstanding “final order of removal and a
change in policy and bed space availability.” Doc. 8, Ex. 1, at 3 (emphasis
added).
The Government points to data that “ERO has removed 569 Vietnam
citizens to Vietnam” and that “[t]he majority of these cases were citizens of
Vietnam who entered the United States prior to 1995.” Id. at 4. Even if the
Government 	has 	successfully 	removed 	pre-1995 	Vietnamese 	detainees 	in
FY25, Respondent still has provided nothing to the Court suggesting that this
time will be different for Petitioner, especially when they have not presented a
Vietnamese birth certificate. Nguyen v. Scott, 796 F. Supp. 3d 703, 726 (W.D.
Wash. 2025) (Government’s 	reliance 	on declaration 	that 	368 Vietnamese
citizens were removed in FY25 “fail[ed] to rebut the evidence presented by
Petitioner that his individual circumstances make removal unlikely.”); cf. T.
Nguyen, 2026 WL 865739, at *5 (“Respondents have a copy of his Vietnamese
birth certificate. So those potential administrative impediments to Vietnam’s
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acceptance 	of 	him 	do 	not 	apply.”). 	Respondent 	also 	allegedly 	informed
Petitioner that his lack of passport “may be delaying the [removal] process,”
see Doc. 8, at 4. However, Respondent has not attempted to explain how
Petitioner’s removal can be significantly likely in the reasonably foreseeable
future when that administrative impediment exists.
The sole justification for Respondent’s revocation of Petitioner’s OOS
appears to be that it has submitted a travel document request to Vietnam,
which is still pending. See Doc. 8, at 4 (citing Ex. 1, at 3). “The mere request of
a travel document by ICE is not a changed circumstance supporting re-
detention under § 241.13.” Choy v. Woosley, 2026 WL 324601, at *5 (W.D. Ky.
Feb. 6, 2026).
While 	“Courts 	have 	recognized 	that 	Vietnam 	is 	now 	considering
repatriation requests from the United States,” it is still done “on a case-by-case
basis.” Duong v. Tate, 2025 WL 933947, at *4 (S.D. Tex. Mar. 27, 2025). And
Respondent has not provided the Court with any information about how ICE
has “consider[ed] all the facts of the case including . . . the history of the alien’s
efforts to comply with the order of removal . . . and the alien’s assistance with
[ICE's removal] efforts” under 8 C.F.R. § 241.13(f).
Finally, the Government maintains that “in the immigration context,
habeas is limited to ‘statutory and constitutional challenges’ to detention.” Doc.
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8, at 12. “To be sure, not every procedural misstep raises a constitutional
issue.” Rombot v. Souza, 296 F. Supp. 3d 383, 388 (D. Mass. 2017). “However,
where an immigration ‘regulation is promulgated to protect a fundamental
right derived from the Constitution or a federal statute,’ like the opportunity
to be heard, ‘and [ICE] fails to adhere to it, the challenged [action] is invalid
. . . .’” Id. (quoting Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir. 1993)).
The record before the Court establishes that ICE failed to follow multiple
regulations when it revoked Petitioner’s release and re-detained him. See Qui
v. Carter, 2025 WL 2770502, at *3-4 (D. Kan. Sept. 26, 2025) (holding that ICE
violated its regulations when revoking existing OOS as it did not “provide[]
any details or statistics or evidence to support” a determination of changed
circumstances). As a result of ICE’s failure to provide Petitioner with the
required 	notice 	before 	his 	renewed 	detention, 	and 	lack 	of 	apparent
determination 	of 	changed 	circumstances 	necessitating 	revocation, 	the
undersigned finds that ICE’s revocation of Petitioner’s OOS was unlawful. Id.
at *4 (finding that failure to properly revoke the petitioner’s OOS “pursuant to
the applicable regulations” rendered revocation ineffective). So, the Court
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recommends Petitioner’s immediate release subject to the same OOS that
governed his prior release.9
D. 	Petitioner’s APA claim does not lie within habeas.
Petitioner asserts Respondent also violated the APA when they re-
detained 	him. 	Doc. 	1, 	at 	8. 	But 	because 	Petitioner’s 	claims 	for 	relief
“‘necessarily imply the invalidity’ of [his] confinement,” his claims “fall within
the ‘core’ of the writ of habeas corpus and thus must be brought in habeas.”
Trump v. J.G.G., 604 U.S. 670, 672 (2025); see also id. at 674 (“[G]iven 5 U.S.C.
§ 704, which states that claims under the APA are not available when there is
another ‘adequate remedy in a court,’ I agree with the Court that habeas
corpus, not the APA, is the proper vehicle here.”) (Kavanaugh, J. concurring);
Soberanes, 	388 	F.3d 	at 	1310 	(“Challenges 	to 	immigration 	detention 	are
9 	Respondent challenges Petitioner’s Zadvydas claim as premature, see
Doc. 8, at 8, 15-16, as Petitioner was only in detention for sixty days at the time
he filed his petition. Petitioner asserts that his previous time in ICE detention
should count to his time in detention. See Doc. 1, at 7. Given the undersigned’s
recommendation as to the disposition of Petitioner’s claim for relief for the
unlawful revocation of his OOS, the undersigned recommends the Court
refrain 	from 	addressing 	the 	merits 	of 	Petitioner’s 	Zadvydas 	claim. 	See
Owdetallah v. Bondi, 2026 WL 691201, at *5 n.6 (W.D. Okla. Jan. 22, 2026)
(Report and Recommendation) (“The Court need not address application of
Zadvydas here if it adopts the undersigned’s recommendation to grant habeas
relief based on Respondents’ violations of ICE regulations.”).
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properly brought directly through habeas.” (citing Zadvydas, 533 U.S. at 687)).
The Court should deny Petitioner’s requests for relief under the APA.
V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant Petitioner’s petition for writ of habeas corpus, Doc. 1, and order his
immediate release from custody subject to the terms of his unlawfully revoked
OOS. 	The 	undersigned 	further 	recommends 	that 	the 	Court 	order
Respondent certify compliance by filing a status report within five
business days of the Court’s order.
The undersigned further recommends the Court order that:
• 	Respondents 	shall 	not 	re-detain 	Petitioner 	without 	a 	pre-
deprivation hearing before a neutral IJ under 8 U.S.C. § 1226(a);
and
• 	Counsel for Respondents provide a copy of the Court’s order to
Counsel for the Warden of the Cimarron Correctional Facility
without delay.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by May 4, 2026,
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in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72.10
The undersigned further advises the parties that failure to make timely
objections to this Report and Recommendation waives the right to appellate
review of both factual and legal questions contained herein. Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation
disposes of the issues referred to the undersigned Magistrate Judge in the
captioned matter.
ENTERED this 30th day of April, 2026.
10 	Given the expedited nature of these proceedings, the undersigned has
reduced the typical objection time to this Report and Recommendation to three
days. See Fed. R. Civ. P. 72(b)(2) advisory committee’s note to 1983 addition
(noting that rule establishing 14-day response time “does not extend to habeas
corpus petitions, which are covered by the specific rules relating to proceedings
under Sections 2254 and 2255 of Title 28.”); see also Whitmore v. Parker, 484
F. App’x 227, 231, 231 n.2 (10th Cir. 2012) (“The Rules Governing § 2254 Cases
may be applied discretionarily to habeas petitions under § 2241” and that
“while 	the 	Federal 	Rules 	of 	Civil 	Procedure 	may 	be 	applied 	in 	habeas
proceedings, they need not be in every instance – particularly where strict
application would undermine the habeas review process.”).
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