Cao v. Bondi et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
PHU CAO, 	)
)
Petitioner, 	)
)
v. 	) 	No. CIV-25-1403-G
)
PAMELA BONDI, 	)
Attorney General et al. 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Phu Cao, seeks a writ of habeas corpus under 28 U.S.C.
§ 2241. Doc. 1.1 United States District Judge Charles B. Goodwin referred the
case to the undersigned Magistrate Judge for initial proceedings under 28
U.S.C. § 636(b)(1)(B), (C). Doc. 3. The United States filed a response, Doc. 11,
and Petitioner replied, Doc. 14. So the matter is at issue.
For the reasons set forth below, the undersigned recommends the Court
grant, in part, Petitioner’s request for habeas corpus relief.
I. 	Factual background and procedural history.
Petitioner is a citizen of Vietnam who entered the United States in 1985
as a child. Doc. 1, at 1, 10. Petitioner has an extensive criminal history:
1 	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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• 	On August 13, 1993, he was arrested for robbery;
• 	On August 27, 1993, he was arrested for conspiracy to commit extortion;
• 	On December 12, 1994, he pleaded no contest to receiving, possessing, or
concealing stolen property, for which he received a sentence of two years’
imprisonment;
• 	On December 28, 1994, he was arrested and charged with extortion, for
which he received a sentence of two years and 180 days’ imprisonment;
• 	On May 14, 1996, he pleaded guilty to two counts of robbery or attempted
robbery with a dangerous weapon, for which he received a sentence of
twenty 	years’ 	imprisonment; 	kidnapping, 	for 	which 	he 	received 	a
sentence of ten years’ imprisonment; and conspiracy to commit a felony,
for which he received a sentence of ten years’ imprisonment;
• 	On May 14, 1996, he pleaded guilty to two counts of extortion, for which
he received a sentence of two years and 180 days’ imprisonment for each
count, for a cumulative total of four years and 360 days’ imprisonment;
• 	On May 14, 1996, he also plead guilty to assault and battery, for which
he received a sentence of one year’s imprisonment;
• 	On September 23, 1996, he pleaded guilty to pointing a firearm, for
which received a sentence of ten years’ imprisonment; and
• 	On October 16, 1996, he pleaded guilty to robbery or attempted robbery
with dangerous weapon, for which he received a sentence of twenty-five
years’ imprisonment.
Doc. 11, Ex. 1, at 2-3. An Immigration Judge (IJ) ordered Petitioner’s removal
on February 22, 2007. Id. at 2. Petitioner and the United States both “waived
appeal, rendering the removal order administratively final on February 22,
2007.” Doc. 1, at 1-2. Petitioner was released on an Order of Supervision (OOS)
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on August 31, 2007. Id. at 2. Petitioner complied with the OOS’s requirements
to appear for routine check-ins with Immigration and Customs Enforcement
(ICE) and updated his address, as required, whenever he relocated. Id.
Petitioner alleges that he was wrongfully detained while reporting to his
regular check-in on September 9, 2025. Id. at 3. He asserts that he was
detained despite doing “nothing wrong and remaining in compliance with his
OOS.” Id. He has “applied for travel documents from Vietnam on multiple
occasions,” and “wants to return to Vietnam.” Id. However, every request for
travel documents he has made has been denied. Id. Petitioner applied for travel
documents three weeks before being detained. Id. He does not have a valid
Vietnamese passport but provided ICE with his Vietnamese birth certificate
and his most recent application for a travel document to Vietnam. Id.
Three weeks after being detained, Petitioner submitted another travel
document request to Vietnam. Id. “On November 3, 2025, [Petitioner’s] Travel
Document 	Request 	was 	submitted 	to 	ICE 	headquarters, 	who 	is 	actively
working with the State Department to remove [him] to Vietnam.” Doc. 11, Ex.
1, at 3.
Petitioner alleges that he was never served with a proper Notice of
Revocation of Release explaining why his OOS was being revoked, nor was he
afforded any opportunity to challenge any Notice. Doc. 1 at 4. He also states
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that Respondents have not served him with a Notice of Custody Determination
“or 	any 	other 	written 	decision 	explaining 	what 	changed 	circumstances
allegedly justified or currently justify his redetention.” Id.
Petitioner contends that his detention is “designed to send a message to
other individuals with final orders of removal that they need to leave the
United States or they will be jailed indefinitely and without any process.” Id.
at 4-5. He contends that “[t]he government is not in possession of any credible
or persuasive documents or evidence that [his] removal is likely to occur in the
reasonably foreseeable future.” Id. at 4. He maintains that his “aggregate
period of civil immigration confinement exceeds six months and continues to
grow.” Id. at 10.
II. 	Petitioner’s claims.
Petitioner alleges that “ICE has denied [him] release because: (A) it
incorrectly believes [he] is responsible for reestablishing that removal is not
substantially likely to occur in the reasonably foreseeable future, (B) [] seeks
to punish [him] for remaining in the United States after previously having
been ordered removed, and (C) [] seeks to punish [him] to send a message to
similarly situated persons who have not yet been detained as a way to
encourage those similarly situated people to immediately leave the United
States to avoid [his] fate.” Id. at 14.
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In Count One, Petitioner requests “declaratory judgment pursuant to 28
U.S.C. § 2201 that [he] is detained pursuant to 8 U.S.C. § 1231(a)(1),” “that
[he] 	has 	previously 	demonstrated 	to 	ICE’s 	satisfaction 	that 	there 	is 	no
significant likelihood of his removal in the reasonably foreseeable future
(“NSLRRFF”),” “that ICE did not rebut [his] prior NSLRRFF showing prior to
redetaining him,” and “that until ICE rebuts [his] prior NSLRRFF showing,
[he] may not be redetained.” Id. at 25.
In 	Count 	Two, 	Petitioner 	alleges 	that 	Respondents 	violated 	the
Immigration and Nationality Act (INA) before redetaining him. Id. at 25-26.
And he cites the following procedural irregularities as the basis for his claim:
• 	His redetention was not reviewed or authorized by any member of the
Headquarters Post-order Detention Unit (“HQPDU”) or ERO HQ;
• 	His redetention has not been reviewed or authorized by the Executive
Associate Commissioner or District Director;
• 	He has been redetained in the absence of changed circumstances capable
of rebutting his prior showing of NSLRRF;
• 	He has not received a written decision stating the reasons for his
redetention; and
• 	He 	has 	not 	received 	an 	individualized 	post-detention 	interview 	to
determine whether his OOS should be reinstated or to otherwise allow
him to provide information to demonstrate there is NSLRRFF.
Id. at 5-6.
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In Count Three, Petitioner raises two due process claims. First, he
alleges 	that 	“he 	has 	served 	more 	than 	six 	months 	in 	civil 	immigration
detention” which violates his due process rights as the Government has not
rebutted his prior showing that there was no significant likelihood of his
removal in the reasonably foreseeable future. Id. at 26-27. And he raises a
separate due process claim based on his allegations that he has been detained
“to 	punish 	him 	and 	to 	otherwise 	send 	a 	message 	to 	similarly 	situated
individuals that they must leave the United States to avoid a similar fate.” Id.
at 27.
In 	Count 	Four, 	Petitioner 	alleges 	that 	Respondents 	violated 	the
Administrative Procedure Act (APA) as “[their] decisions, which represent
changes in the agencies’ policies and positions, have considered factors that
Congress did not intend to be considered, have entirely failed to consider
important aspects of the case, and have offered explanations for their decisions
that run counter to the evidence before the agencies.” Id. at 27-28.
Petitioner seeks “immediate release” and the reinstatement of his prior
OOS “subject to one caveat”—that it “permit[s] him to reside in New York”
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with his wife. Id. at 7.2 He also seeks various forms of declaratory and
injunctive relief. Id. at 28-29.
He sues Respondents in their official capacities. Id. at 10-11.
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 v. Davis, 533 U.S. 678, 687
(2001)).
2 	Petitioner 	also 	asks 	the 	Court 	to 	restrain 	“Respondents 	from
transferring him to a location where 	he cannot 	reasonably consult 	with
counsel,” and enter “an emergency preliminary order requiring Respondents to
give [him] due process prior to removing him” to a third country. Doc. 1, at 6-
7. Given the undersigned’s recommended disposition of Petitioner’s habeas
claims, as explained below, Petitioner’s requests will be made moot by the
adoption of this Report & Recommendation.
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IV. 	Analysis.
Petitioner argues that “ICE has no information that could reasonably
lead it to believe changed circumstances exist that justify redetention under 8
C.F.R. § 241.13(i)(2)-(3).” Doc. 1, at 16. He asserts that he satisfies the criteria
for release under § 241.4(e), (f). Id. at 16-17. He alleges that ICE violated its
regulations 	prior 	to 	detaining 	him, 	and 	that 	there 	is 	“[n]o 	independent
alternative basis” to support Respondents’ decision to renew his detention. Id.
at 25-26.
A. 	Statutory and regulatory framework.
Petitioner 	contends 	that 	his 	prolonged 	detention 	violates 	8 	U.S.C.
§ 1231(a). Id. at 20. This statute dictates that “when an alien is ordered
removed, the Attorney General shall remove the alien from the United States
within a period of 90 days (in this section referred to as the ‘removal period’).”
8 U.S.C. § 1231(a)(1)(A). “During the removal period, the Attorney General
shall detain the alien.” Id. § 1231(a)(2)(A). The removal period begins on the
latest of the following dates:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders
a stay of the removal of the alien, the date of the court’s final order.
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(iii) 	If 	the 	alien 	is 	detained 	or 	confined 	(except 	under 	an
immigration process), the date the alien is released from detention
or confinement.
Id. § 1231(a)(1)(B).
The removal period may be extended “and the alien may remain in
detention during such extended period if the alien fails or refuses to make
timely application in good faith for travel or other documents . . . or conspires
or acts to prevent the alien’s removal.” Id. § 1231(a)(1)(C).
Finally, detention of an alien subject to a final order of removal may not
be indefinite and is presumptively reasonable for only six months beyond the
removal period. Zadvydas, 533 U.S. at 701. After that, the detainee may bring
a habeas action to challenge his detention. Id. at 684-85, 688. To obtain habeas
relief, the petitioner has the initial burden to “provide[] good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable
future.” Id. at 701. Presuming the petitioner does so, the burden shifts,
requiring “the Government [to] respond with evidence sufficient to rebut that
showing.” Id. “[F]or the detention to remain reasonable, as the period of prior
postremoval confinement grows, what counts as the ‘reasonably foreseeable
future’ conversely would have to shrink.” Id.
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B. 	The Court has jurisdiction to hear Petitioner’s claims.
As it has argued in other cases before the Court, the Government
contends that 8 U.S.C. § 1252 deprives the Court of jurisdiction to hear
Petitioner’s habeas claims. Doc. 11, at 25-28.
Section 1252(g) provides that “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.” 8 U.S.C. § 1252(g). Section 1252(g) is a “jurisdiction-
stripping ‘zipper clause,’” which “channel[s] review of all ‘decisions and actions
leading up to or consequent upon final orders of deportation’ in the courts of
appeal, following issuance of an order of removal.” Mukantagara v. DHS, 67
F.4th 1113, 1115 (10th Cir. 2023) (quoting Reno v. American-Arab Anti-
Discrimination Comm., 525 U.S. 471, 482-85 (1999)).
Section 1252(g) is to be read narrowly, Reno, 525 U.S. at 482, and it does
not cover “all claims arising from deportation proceedings” or impose “a general
jurisdictional limitation.” Id. Instead, it “applies only to three discrete actions
that the Attorney General may take: her ‘decision or action’ to ‘commence
proceedings, adjudicate cases, or execute removal orders.’” Id. Further, the
Supreme Court has noted that it is “implausible that the mention of three
discrete events along the road to deportation was a shorthand way of referring
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to all claims arising from deportation proceedings.” Id. “‘[C]laims that clearly
are included within the definition of ‘arising from’ . . . [are] those claims
connected directly and immediately with a ‘decision or action by the Attorney
General 	to 	commence 	proceedings, 	adjudicate 	cases, 	or 	execute 	removal
orders.’’” Namgyal Tsering v. ICE, 403 F. App’x 339, 343 (10th Cir. 2010)
(quoting Humphries v. Various Fed. USINS Emp., 164 F.3d 936, 943 (5th Cir.
1999)).
Respondents contend that Petitioner challenges the Attorney General’s
action taken to execute his order of removal, which would preclude the Court
from reviewing his claim. Doc. 11, at 25-26. Petitioner does not ask the Court
to review the Attorney General’s decision to execute the order of removal,
which would be beyond the Court’s purview. Instead, he argues, in part, that
ICE 	disregarded 	its 	own 	regulations 	when 	it 	revoked 	his 	OOS 	and 	the
improper revocation violated his due process rights. See Barrios v. Ripa, 2025
WL 2280485, at *5 (S.D. Fla. Aug. 8, 2025) (“[T]he Court does have jurisdiction
to adjudicate whether Respondents complied with their own [OOS] revocation
procedures.”).
Likewise, for similar reasons, Respondents’ fleeting reference to 8 U.S.C.
§ 1252(b)(9) also fails to deprive the Court of jurisdiction. Doc. 11, at 27. Section
1252(b)(9) provides that “[j]udicial review of all questions of law and fact,
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including 	interpretation 	and 	application 	of 	constitutional 	and 	statutory
provisions, arising from any action taken or proceeding brought to remove an
alien from the United States . . . shall be available only in judicial review of a
final order under this section.” 8 U.S.C. § 1252(b)(9).
Respondents, relying on Tazu v. Att’y Gen. United States, 975 F.3d 292
(3d Cir. 2020), contend that “Petitioner’s detention is for the purpose of
executing his removal order.” Doc. 11, at 27. So, like Tazu, “‘the legal questions
he raises about the scope of the Attorney General’s discretion to re-detain him
are bound up with (and thus ‘arise[e] from’) an ‘action taken to remove him
there.’” Id. (quoting Tazu, 975 F.3d, at 299).
Petitioner’s case is distinguishable from Tazu. There, the Government
re-detained the noncitizen after previously releasing him on supervised release
when it was determined that it was unlikely he would be removed in the
foreseeable future. Tazu, 975 F.3d. at 294-95. Unlike Petitioner’s renewed
detention, the Government in Tazu detained the noncitizen immediately after
receiving a passport from Bangladesh (the noncitizen’s native country) to
execute his removal order. Id. at 295. Here, the central dispute is the lack of
any changed circumstances warranting Petitioner’s prolonged re-detention.
And “[c]hallenges to the length or conditions of an alien’s confinement are not
directly abut removal.” Id. at 299. So, § 1252(b)(9) also does not bar review of
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Petitioner’s claim.
C. 	Respondents improperly revoked Petitioner’s OOS.
In Count Two, Petitioner alleges that Respondents failed to comply with
the INA and ICE’s applicable regulations “prior to redetaining [him] after [his]
release on an OOS.” Doc. 1, at 26.
Respondents state that “[Petitioner] was released from [Enforcement
Removal Operations (ERO)] custody on an [OOS] under 8 CFR § 241.13,
because at the time there was no significant likelihood of removal to Vietnam.”
Doc. 11, Ex. 1, at 3. So, to revoke Petitioner’s OOS and “return [him] to custody”
required a determination that “there is a significant likelihood that [Petitioner]
may be removed in the reasonably foreseeable future” “on account of changed
circumstances.” 8 C.F.R. § 241.13(i)(2).
As Petitioner notes, there is no indication that Respondents informed
him in writing of the reason for his redetention on September 9, 2025. Doc. 14,
at 7. Section 214.4(d) provides that:
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) (emphasis added).3 Respondents’ assertion that “Petitioner
3 	Section 241.4(d) applies here per § 241.4(b)(4):
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was given notice” verbally, Doc. 11, at 29-30, is also contradicted by Petitioner:
I dispute the accuracy of deportation officer Julio Guzman’s
claims regarding his interactions with and statements to me.
He did not explain to me why I was detained, nor did he tell
me that I had an opportunity to explain to him why my
supervision should not be revoked or why I should not be
detained 	while 	the 	government 	tries 	to 	obtain 	a 	travel
document for me. If he had given me such opportunities, I
would have taken full advantage of them.
Doc. 14, Ex. 1 (Petitioner’s Affidavit). Even if Respondents verbally informed
Petitioner of the reasons why they revoked his 	OOS, it still would not
constitute proper notice. A review of 	other district court cases involving
renewed detentions to effectuate removal shows that ICE typically will provide
the detainee with written notice at some point during detention and provide it
to the Court when responding to the detainee’s habeas petition. Zhu v. Genalo,
2025 WL 2452352, at * 8 (S.D.N.Y. Aug. 26, 2025) (citing cases); see also Yee S.
The custody review procedures in this section do not apply after
the Service has made a determination, pursuant to the procedures
provided in 8 CFR 241.13, that there is no significant likelihood
that an alien under a final order of removal can be removed in the
reasonably 	foreseeable 	future. 	However, 	if 	the 	Service
subsequently determines, because of a change of circumstances,
that there is a significant likelihood that the alien may be removed
in the reasonably foreseeable future to the country to which the
alien was ordered removed or to a third country, the alien shall
again be subject to the custody review procedures under this
section.
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v. Bondi, 2025 WL 2879479, at *2 (D. Minn. Oct. 9, 2025) (“The next day,
having already detained Petitioner, ICE served a [Notice] on him.”); see, e.g.,
K.E.O. v. Woosley, 2025 WL 2553394, at *6 (W.D. Ky. Sept. 4, 2025) (noting
that the United States provided the district court a copy of the Petitioner’s
Notice to correct deficiencies identified by the Petitioner and recognizing that
“[she was] entitled 	to a Notice . 	. . 	pursuant 	to authority delegated 	by
regulation”) (internal quotation marks omitted); Umanzor-Chavez v. Noem,
2025 WL 2467640, at *2 (D. Md. Aug. 27, 2025) (noting that when Petitioner
reported to ICE check-in his OOS “was revoked, and he was served with a
notice that ICE intends to remove him to Mexico.”) (internal quotation marks
omitted).
The 	importance 	of 	properly 	providing 	notice 	is 	reinforced 	by
§ 241.13(i)(3):
Upon revocation, the alien will be notified of the reasons for
revocation of his or her release. The Service will conduct an
initial informal interview promptly after his or her return
to Service 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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8 C.F.R. § 241.13(i)(3) (emphasis added). Petitioner cannot “respond to the
reasons for revocation stated in the notification” if he was never served with a
physical copy in the first instance. And the parties provide no indication that
the required informal interview has taken place.
Respondents have also failed to demonstrate to the Court that they made
the required determination for revocation under § 241.13(i)(2) before re-
detaining 	Petitioner. 	This 	is 	crucial 	as 	“ICE 	is 	not 	permitted 	to 	hold
[Petitioner] indefinitely while it waits for travel documents from Vietnam.”
Tran v. Bondi, 2025 WL 3140462, at *3 (W.D. Wash. Nov. 10, 2025). Section
241.13(i)(2) provides that ICE “may revoke an alien’s release under [§ 241.13]
and return the alien to custody if, on account of changed circumstances, . . . [it]
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).
Respondents 	state 	that 	“[b]ased 	on 	the 	Government 	of 	Vietnam’s
willingness to accept its citizens, and the number of successful removals ERO
has made to Vietnam this Fiscal Year . . . removal of [Petitioner] to Vietnam is
significantly likely in the reasonably foreseeable future.” Doc. 11, Ex. 1, at 4.
Regarding the Memorandum of Understanding cited by Petitioner, Doc. 1, at
1, Respondents state that “ICE is currently not recognizing Memorandums of
Understanding, and the Government of Vietnam has issued travel documents
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for every travel document request ERO has submitted since February 2025.”
Doc. 11, Ex. 1, at 3-4.
Here, there is no indication that ICE has even submitted Petitioner’s
travel document requests to Vietnam. Instead, Respondents vaguely assert
that ICE headquarters “is actively working with the State Department to
remove 	[Petitioner] 	to 	Vietnam.” 	Id. 	at 	3. 	And 	regardless 	of 	whether
Respondents are currently recognizing prior Memorandums of Understanding,
Respondents overlook that Petitioner has unsuccessfully applied for travel
documents 	from 	Vietnam 	on 	multiple 	occasions. 	Doc. 	1, 	at 	3. 	Notably,
Petitioner applied for travel documents three weeks prior to being detained.
Even 	if 	the 	Government 	has 	successfully 	removed 	pre-1995 	Vietnamese
detainees this year, Respondents still have provided nothing to the Court to
suggest that this time will be different for Petitioner. 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.”).
The declaration and Respondents’ brief are wholly lacking in any details
about any communication with the Vietnamese government about Petitioner’s
removal status that would reflect that there is now a likelihood of Petitioner
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being 	removed. 	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); see also Pham v. Bondi, No. CIV-25-1157-SLP, 2025 WL 3243870, at *2
(W.D. Okla. Nov. 20, 2025) (“Courts have found that such increase in frequency
of removals alone does not demonstrate significant likelihood of removal in the
reasonably foreseeable future.”) (collecting cases). And Respondents have 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).
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.
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at *4 (finding that failure to properly revoke the petitioner’s OOS “pursuant to
the applicable regulations” rendered revocation ineffective). So, the Court
recommends Petitioner’s immediate release subject to the same OOS that
governed his prior release.4
D. 	Remaining claims.
The undersigned declines to address Petitioner’s remaining claims as to
how the revocation of his release is otherwise unlawful under the APA or under
Zadvydas. The undersigned also declines to address Petitioner’s request for
declaratory judgment as to the legality and nature of his detention under ICE
regulations and whether ICE’s actions were arbitrary and capricious as his
immediate release, if this Report and Recommendation is adopted, moots these
requests.
As to Petitioner’s remaining requests for injunctive relief, Respondents
maintain 	that 	Petitioner 	asks 	the 	Court 	“to 	issue 	remarkable 	relief
inappropriate for determination . . . such as a demand for injunctive and
declaratory relief, . . . and a demand (for which there appears to be no ripe
4 	Petitioner’s request for the Court to modify his OOS to permit him to
reside in New York is improper as granting his request would intrude on the
Attorney General’s authority to impose “reasonable written restrictions on the
alien’s conduct or activities that the Attorney General prescribes.” 8 U.S.C.
§ 1231(a)(3).
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controversy) that the Court enjoin action for any future revocations of [OOSs]
or 	re-detention 	unless 	specified 	conditions 	are 	met.” 	Doc. 	11, 	at 	9. 	The
undersigned agrees that Petitioner’s requests are overly expansive, so the
Court should deny Petitioner’s requests for the Court to:
• 	Permanently enjoin Respondents from re-detaining him under 8 C.F.R.
§ 241.13(i)(2)-(3) unless and until Respondents have obtained a travel
document allowing for his removal from the United States;
• 	Permanently 	enjoin 	Respondents 	from 	re-detaining 	him 	under
§ 241.13(i)(2)-(3) 	for 	more 	than 	three 	days 	after 	receiving 	a 	travel
document; and to
• 	Permanently enjoin Respondents from deporting him to an allegedly safe
third country without first giving him due process in the form of a full
merits hearing for asylum, withholding of removal, and deferral of
removal under the convention against torture (DCAT) before an IJ
relating 	to 	the 	proposed 	country 	of 	removal 	with 	a 	right 	to 	an
administrative appeal to the Board of Immigration Appeals.
Doc. 1, at 29. “[F]uture decision[s] to detain . . . are appropriately committed
to the executive branch, which—subject to compliance with applicable law—
has substantial latitude in the execution of immigration enforcement decisions,
including as to noncitizens subject to orders of removal.” Funes v. Francis, 2025
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WL 3263896, at 26 (S.D.N.Y. Nov. 24, 2025) (citing United States v. Texas, 599
U.S. 670, 679 (2023), then citing Garland v. Aleman Gonzalez, 596 U.S. 543,
546-48 (2022)).
V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant Petitioner’s request for habeas relief, and order his immediate release
from 	custody 	subject 	to 	the 	terms 	of 	his 	unlawfully 	revoked 	OOS. 	The
undersigned further recommends that the Court order Respondents to submit
a declaration pursuant to 28 U.S.C. § 1746 affirming that Petitioner has been
released from custody.5
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by December 31,
2025, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure
72.6 The undersigned further advises the parties that failure to make timely
5 	As noted at the outset of this Report and Recommendation, Petitioner
seeks a variety of other forms of relief including an “emergency preliminary
order 	requiring 	Respondents 	to 	provide 	72-hour 	notice 	of 	any 	intended
movement of [his person]” and “restraining Respondents from attempting to
move [him] from the State of Oklahoma during the pendency of [his] Petition.”
Doc. 1, at 28. The Court addressed those requests in its order to respond, Doc.
9, so Petitioner’s requests are moot.
6 	Given the expedited nature of these proceedings, the undersigned has
reduced the typical objection time to this Report and Recommendation to five
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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 24th day of December, 2025.
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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