Vo v. Warden of Diamondback Detention Facility et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
AN VO, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-727-D
)
WARDEN OF DIAMONDBACK 	)
DETENTION FACILITY et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner 	An 	Vo, 	a 	noncitizen 	appearing 	with 	counsel,1 	seeks 	an
“emergency motion to stay removal pending resolution of petition for writ of
habeas corpus.” Doc. 14.2 United States District Judge Timothy D. DeGiusti
referred the case to the undersigned Magistrate Judge for initial proceedings
under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. The Government responded to the
motion. Doc. 17. So the matter is at issue.
For the reasons below, the undersigned recommends the Court deny
Petitioner’s emergency motion to stay.
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)).
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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I. 	Factual background and procedural history.
Petitioner is a native and citizen of Vietnam. Doc. 1, at 1. He was a lawful
permanent resident of the United States from 1990 until 1999 when the
Department of Homeland Security (DHS) charged him as deportable after he
was convicted of the aggravated felony of arson in Texas in 1995. Doc. 12, at 8
& Ex. 1, at 1-2; Ex. 2 (Notice to Appear). On January 10, 2000, an Immigration
Judge ordered him removed to Vietnam. Id. Ex. 3. DHS released him on an
order of supervision (OOS) on February 14, 2000. Id. Ex. 1, at 2. No removal
efforts 	occurred 	during 	the 	ensuing 	years 	because 	of 	a 	Memorandum 	of
Agreement between the United States and Vietnam preventing the return of
Vietnamese nationals who had arrived in the United States before 1995. Id.
On October 30, 2025, Petitioner reported as usual with Immigration and
Customs Enforcement (ICE) under the terms of his OOS. After ICE made a
“custody 	redetermination” 	due 	to 	a 	“change 	in 	policy 	and 	bed 	space
availability,” they arrested Petitioner and placed him into custody for removal.
Id.
On December 8, 2025, and February 27, 2026, ICE issued its requests for
travel documents for Petitioner. Id. at 2. On April 3, 2026, Petitioner was
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issued 	a 	travel 	document 	for 	Vietnam. 	Id. 	at 	3. 	Petitioner 	is 	currently
scheduled for a flight to Vietnam on May 5, 2026. Id.3
Petitioner filed his habeas corpus petition on April 6, 2026. Doc. 1. He
claims 	in 	Ground 	One 	of 	his 	petition 	that 	Respondents 	violated 	the
Administrative Procedure Act (APA), the Immigration and Nationality Act
(INA), and federal regulations when they revoked his OOS and detained him
even though he had reported as required. Doc. 1, at 12-13.4 In Ground Two, he
claims he is subject to “unlawful indefinite detention” in violation of the APA,
INA, the Accardi doctrine, and 8 U.S.C. § 1231 because Respondents have
made no efforts toward his removal in several years and there is no significant
likelihood 	they 	will 	remove 	him 	in 	the 	reasonably 	foreseeable 	future 	as
required under Zadvydas v. Davis, 533 U.S. 678 (2001). Id. at 14-15. He asserts
in Ground Three that he is subject to indefinite detention in violation of his
3 	Respondents have notified the Court that they intend to move Petitioner
outside the Court’s jurisdiction to a staging location in preparation for removal.
Doc. 16.
4 	Petitioner submits in his petition that Respondents did not comply with
8 C.F.R. § 241.4(l)(1)-(2) when they revoked his OOS without notice or an
interview to afford him an opportunity to respond to the reasons for the
revocation. Doc. 1, at 12-13. Respondents admit they have not provided notice
or 	an 	interview 	but 	argue 	the 	decision 	was 	a 	discretionary 	“custody
redetermination” under § 241.4(l)(2) to enforce a removal order. Doc. 12, at 19-
20.
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Fifth Amendment substantive due process rights. Id. at 16-17. And in Ground
Four, he asserts he is subject to indefinite detention in violation of his Fifth
Amendment procedural due process rights. Id. at 17-18. He seeks, among other
things, 	a 	declaration 	that 	his 	re-detention 	is 	unlawful 	and 	an 	order 	to
Respondents to immediately release him from detention. Id. at 19.5
In his emergency motion, he asks the Court for an order preventing
Respondents from “execut[ing]” his final order of removal. Doc. 14, at 1, 5.
Respondents oppose the request, citing this Court’s lack of jurisdiction. Doc.
17, at 2. The Court should agree with Respondents and deny Petitioner’s
request.
II. 	Discussion.
The Court’s first consideration must be whether it has jurisdiction to
grant Petitioner’s requested relief. See Sinochem Int’l Co. v. Malaysia Int’l
Shipping Corp., 549 U.S. 422, 430-31 (2007) (“[A] federal court generally may
not 	rule 	on 	the 	merits 	of 	a 	case 	without 	first 	determining 	that 	it 	has
jurisdiction.” (internal quotation marks omitted)). Petitioner seeks an order
enjoining Respondents from executing Petitioner’s removal order. Doc. 14, at
5 	Respondents filed a response to the habeas corpus petition on April 23,
2026, (Doc. 12), and Petitioner replied on April 27, 2026, (Doc. 13). So the
petition is now at issue.
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5. This request falls squarely within 8 U.S.C. § 1252(g)’s jurisdictional bar
because 	it 	arises 	from 	Respondents’ 	discretionary 	decision 	to 	execute
Petitioner’s removal order.
Under 8 U.S.C. § 1252(g), “no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising from the decision or action
by the Attorney General to commence proceedings, adjudicate cases, or execute
removal orders against any alien.” The Supreme Court limits § 1252(g)’s
application to those three specified actions and stresses that the statutory aim
is to prevent “attempts to impose judicial constraints upon prosecutorial
discretion.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482,
485 n.9 (1999); see McClosky v. Keisler, 248 F. App’x 915, 918 (10th Cir. 2007)
(“Section 1252(g)’s jurisdictional limitation reaches claims that “the Attorney
General is unfairly executing a removal order.” (internal quotation marks
omitted). “Congress decided that, as a matter of public policy, [federal courts]
do not have jurisdiction to decide claims that arise from the decision of the
Executive Branch to execute a removal order.” Rranxburgaj v. Wolf, 825 F.
App’x 278, 283 (6th Cir. 2020). This remains true “whether or not [federal
courts] agree with ICE’s decision to execute [a petitioner’s] removal order.” Id.
In Rauda v. Jennings, 55 F. 4th 773, 778 (9th Cir. 2022), the Ninth
Circuit 	held 	that 	§ 	1252(g) 	deprived 	the 	court 	of 	jurisdiction 	over 	the
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petitioner’s request to enjoin the government from executing his removal order
until the Board of Immigration Appeals had ruled on his motion to reopen. Id.
at 776, 778. It held that § 1252(g)’s “plain text” precluded judicial review
because the “[t]he execution of [the] removal order [was] precisely what” the
petitioner was challenging. Id. at 777. Petitioner does the same in seeking to
prevent his imminent removal.
Petitioner 	asserts 	he 	has 	raised 	significant 	challenges 	to 	the
Respondents’ decision to detain him, and the Court should address them before
he is removed to Vietnam in a few days. Doc. 14, at 2-3. While Petitioner’s
challenge to the legality of his initial detention may fall squarely within this
Court’s habeas jurisdiction, the relief Petitioner seeks—prevention of his
imminent removal—does not. See, e.g., Rauda, 55 F.4th at 778 (holding that
§ 1252(g) bars any challenge to the discretionary decision to execute a removal
order “[n]o matter how [a petitioner] frames it”); cf. Dep’t of Homeland Sec. v.
Thuraissigiam, 591 U.S. 103, 119 (2020) (“Claims so far outside the ‘core’ of
habeas may not be pursued through habeas.”). Petitioner also complains it is
unfair that Respondents have decided to remove him now after he has been
under an order of removal for over two decades. Doc. 14, at 4. But § 1252(g)’s
jurisdictional bar “does not include any temporal caveats.” Rauda, 55 F.4th at
777. And “the discretion to decide whether to execute a removal order includes
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the discretion to decide when to do it. Both are covered by the statute.” Tazu v.
Att’y Gen. U.S., 975 F.3d 292, 297 (3d Cir. 2020)).
Petitioner seeks an order preventing Respondents from executing his
final removal order. Section 1252(g) bars this Court’s consideration of this
request. So the Court should deny Petitioner’s emergency motion to stay his
removal to Vietnam.
III. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
DENY Petitioner’s emergency motion to stay his removal to Vietnam. Doc. 14.
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 1, 2026,
in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72.6
The undersigned further advises that failure to make timely objections to this
6 	Given the expedited nature of these proceedings, the undersigned has
reduced the typical objection time to this Report and Recommendation. 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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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 	does 	not
terminate the referral to the undersigned Magistrate Judge in the captioned
matter.
ENTERED this 30th day of April, 2026.
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