Unreported / Non-Citable
Background
Anh Thi Ngo, a Vietnamese citizen who entered the United States as a refugee in 1991 and became a lawful permanent resident, was ordered removed in 2006 based on criminal convictions. Because Vietnam would not accept her return, ICE released her on an order of supervision (OSUP) in 2006. For nearly two decades, Ngo complied with all reporting requirements, raised a U.S. citizen daughter, and cared for elderly parents. On September 16, 2025, at a routine check-in, an ICE officer stated “things have changed” and “Vietnam accepts people now,” then handcuffed and detained her without further explanation. Ngo was held for two months without notice of the reasons for revocation of her release or an opportunity to respond.
In November 2025, she was interviewed only to gather removal information, not to contest re-detention. In January 2026, ICE informed her Vietnam had denied travel documents; a March 2026 custody review reiterated the denial. Ngo filed a habeas petition in April 2026. While the case was pending, her underlying criminal convictions were vacated, she filed a motion to reopen removal proceedings, and obtained a stay of removal. The government produced a Vietnamese passport issued March 12, 2026 (expired September 12, 2026), and scheduled a removal flight for May 5, 2026, which did not occur due to the stay. The district judge referred the matter to the magistrate judge for findings and recommendations.
The Court’s Holding
The magistrate judge granted respondents’ motion for reconsideration of a document-production order only to the extent of excusing compliance, treating the failure to produce records as a concession that petitioner’s factual allegations are undisputed. On the merits, the magistrate judge found Ngo’s re-detention violated procedural due process under the Fifth Amendment (Claim Three) on two independent grounds: (1) due process required a pre-deprivation hearing before a neutral arbiter before revoking her supervised release after nearly two decades, and (2) ICE failed to follow its own regulations at 8 C.F.R. §§ 241.13(i) and 241.4(l), which require an individualized determination of changed circumstances existing at the time of revocation, written notice of the specific reasons for revocation, and a prompt informal interview to respond. The travel document obtained six months after re-detention could not retroactively justify the revocation.
The magistrate judge also recommended granting Claim Five, enjoining removal to a third country unless the government provides constitutionally adequate notice and a meaningful opportunity to present fear-based claims, relying on precedent finding current third-country removal policies violate due process. The magistrate judge recommended dismissing Claims One, Two, and Four without prejudice. The court recommended immediate release under the same OSUP conditions as before September 16, 2025, and a permanent injunction against re-detention absent a pre-deprivation bond hearing before a neutral decisionmaker where the government bears the burden of showing material changed circumstances supporting a significant likelihood of removal in the reasonably foreseeable future, or clear and convincing evidence of flight risk or danger to the community.
Key Takeaways
- A noncitizen released on an order of supervision for nearly two decades has a protected liberty interest in continued release that crystallizes over time, triggering Fifth Amendment due process protections before re-detention.
- Due process requires a pre-deprivation hearing before a neutral immigration judge before ICE may revoke long-term supervised release, absent exigent circumstances; post-hoc justifications such as travel documents obtained after re-detention cannot cure the constitutional violation.
- ICE must comply with its own regulations at 8 C.F.R. §§ 241.13(i) and 241.4(l), which require an individualized determination of changed circumstances existing at or before the time of revocation, specific written notice of the reasons for revocation, and a prompt informal interview to respond—none of which occurred here.
- A travel document procured months after re-detention does not constitute a ‘changed circumstance’ justifying revocation under 8 C.F.R. § 241.13(i)(2); the changed circumstances must exist at the time of the revocation decision.
- Third-country removal policies that provide no notice or opportunity to raise fear-based claims violate due process, the Convention Against Torture, and governing regulations; courts may enjoin such removals absent constitutionally adequate procedures.
Why It Matters
This decision reinforces a growing consensus among district courts in the Ninth Circuit that long-term supervised release creates a robust liberty interest requiring pre-deprivation process before revocation. It squarely holds that the government cannot circumvent due process by re-detaining first and building a record later, and that regulatory compliance is not optional.
The ruling’s injunction against third-country removal without notice and a fear-claim opportunity addresses a systemic gap in current ICE practice. The recommended remedy—immediate release and a permanent injunction conditioning future re-detention on a neutral hearing—provides a template for similar cases involving Vietnamese, Laotian, and other nationals from countries that historically refused repatriation. The decision also clarifies that vacatur of underlying criminal convictions and a pending motion to reopen, while not directly relied upon for the due process holding, further undermine any likelihood of removal in the reasonably foreseeable future.