Unreported / Non-Citable
Background
Petitioner Thach Nguyen, a lawful permanent resident since 1980, was ordered removed to Vietnam in March 2017.
After three months of detention, ICE released him on an order of supervision in May 2017 because it could not effectuate his removal.
In February 2026, ICE re-detained Nguyen following a local arrest for trespassing.
By July 2026, a deportation officer stated ICE was “in the process of obtaining a travel document” for Nguyen.
Nguyen filed a pro se habeas petition under 28 U.S.C. § 2241 in July 2026, arguing his continued detention violated Zadvydas v.
Davis, 533 U.S. 678 (2001), because his removal was not reasonably foreseeable.
The court appointed counsel, who filed an amended petition.
Respondent elected to stand on its prior answer and declaration.
The Court’s Holding
Magistrate Judge Jeremy D.
Peterson recommended that the district judge grant the habeas petition and ordering Nguyen’s immediate release.
The recommendation concluded that the six-month presumptively reasonable detention period under Zadvydas is cumulative and does not reset upon release and re-detention, citing Aaron H. v.
Chestnut and Sied v.
Nielsen.
Combining the three months of detention in 2017 with over six months of detention in 2026, Nguyen had been held well beyond the presumptively reasonable period.
The recommendation found Nguyen provided good reason to believe removal was not significantly likely in the reasonably foreseeable future, noting his prior release due to Vietnam’s failure to issue travel documents and the continued absence of such documents five months after re-detention.
The burden thus shifted to the government, which offered only vague assertions that it was “in the process of obtaining” or had “requested” a travel document, without evidence of a timeline or likelihood of success.
The recommendation concluded this insufficient to rebut the Zadvydas showing, citing Andreasyan v.
Gonzales, Islam v.
Kane, and Khader v.
Holder.
The court also rejected any reliance on dangerousness to justify indefinite detention, citing Tuan Thai v.
Ashcroft.
The recommendation includes an injunction against re-detention unless a travel document is obtained and regulatory procedures are followed.
This was not an immediate release order.
The parties had three days after service to object, with any response also due within three days, before the assigned district judge acted.
Key Takeaways
- The Zadvydas six-month presumptively reasonable detention period is cumulative across separate periods of detention under 8 U.S.C. § 1231(a); it does not reset when the government releases and later re-detains a noncitizen.
- Once a detainee shows good reason to believe removal is not significantly likely in the reasonably foreseeable future, the government must provide concrete evidence of a substantial likelihood of removal, not merely assert that travel document requests are pending.
- Vague statements that ICE is “in the process of obtaining” or has “requested” a travel document, without evidence of a timeline or probability of success, are insufficient to justify continued detention beyond the presumptive period.
- Dangerousness or criminal history cannot justify indefinite detention under Zadvydas in the Ninth Circuit.
- The court recommended immediate release subject to prior supervision conditions and an injunction barring re-detention unless a travel document is secured and regulatory procedures under 8 C.F.R. §§ 241.4(l), 241.13(i) are followed.
Why It Matters
The ruling gives California practitioners a concrete example of how federal courts separate the statutory source of immigration detention from the process constitutionally required after release and re-detention.
It also shows why the precise remedy and procedural posture matter: a briefing order, recommendation, bond-hearing order, and final release order have different immediate consequences.
Counsel should preserve the governing custody documents, dates, notices, and evidence concerning danger, flight risk, and removal feasibility.