UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Southern Division - Santa Ana)
CIVIL DOCKET FOR CASE #: 8:18-cv-00316-CJC-GJS

Hoang Trinh et al v. Thomas D. Homan et al Assigned to: Judge Cormac J. Carney Referred to: Magistrate Judge Gail J. Standish
Related Case: 8:17-cv-01898-CJC-GJS
Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)

Date Filed: 02/22/2018 Jury Demand: None Nature of Suit: 463 Habeas Corpus - Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner Hoang Trinh on behalf of themselves and all of those similarly situated

represented by

Anoop Prasad Asian Americans Advancing Justice Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415-896-1701 Fax: 415-896-1702 Email: anoopp@advancingjustice-alc.org ATTORNEY TO BE NOTICED
Christopher M Butler Pillsbury Winthrop Shaw Pittman LLP 725 South Figueroa Street Suite 2800 Los Angeles, CA 90017 213-488-7100 Fax: 213-629-1033 ATTORNEY TO BE NOTICED
Christopher M Lapinig Asian Americans Advancing Justice Los Angeles 1145 Wilshire Boulevard 2nd Floor Los Angeles, CA 90017 213-977-7500 Fax: 213-977-7595 Email: clapinig@advancingjustice-la.org TERMINATED: 09/05/2019
Farah Tabibkhoei Reed Smith LLP 355 South Grand Avenue Suite 2900 Los Angeles, CA 90071-1514 213-457-8000 Fax: 213-457-8080 Email: ftabibkhoei@reedsmith.com ATTORNEY TO BE NOTICED
Jarrad Lucian Wood

Reed Smith LLP 355 South Grand Avenue Suite 2800 Los Angeles, CA 90071-1514 213-457-8000 Fax: 213-457-8080 Email: jlwood@reedsmith.com ATTORNEY TO BE NOTICED
Jesse A Davis Davis Adams LLC 317 West Hill Street Suite 201 Decatur, GA 30030 404-373-8466 Fax: 404-373-8455 Email: jess.davis@davis-adams.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jingni Zhao Asian Americans Advancing Justice Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415-896-1701 Fax: 415-896-1702 Email: jennyz@advancingjustice-alc.org ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo Asian Americans Advancing Justice Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415-896-1701 Fax: 415-896-1702 Email: kevinl@advancingjustice-alc.org ATTORNEY TO BE NOTICED
Laboni A. Hoq

1124 Hope Street South Pasadena, CA 91030 9097090599 Email: labonihoq@hotmail.com TERMINATED: 11/05/2019
Le T Duong Reed Smith LLP 101 Second Street Suite 1800 San Francisco, CA 94105-3659 415-543-8700 Fax: 415-391-8269 Email: lduong@reedsmith.com ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim Asian Americans Advancing Justice Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415-896-1701 Fax: 415-896-1702 Email: melaniek@advancingjustice-alc.org TERMINATED: 10/15/2019
Patil Derderian Derderian Law PC 500 North Central Avenue Suite 840 Glendale, CA 91203 818-588-4050 Email: patil@derderianlaw.com ATTORNEY TO BE NOTICED
Phi U Nguyen Asian Americans Advancing Justice 5680 Oakbrook Parkway Suite 148 Norcross, GA 30093 770-818-6147 Fax: 404-890-5690 Email: pnguyen@advancingjustice-atlanta.

org PRO HAC VICE ATTORNEY TO BE NOTICED
Raymond A Cardozo Reed Smith LLP 101 2nd Street Suite 1800 San Francisco, CA 94105 415-543-8700 Fax: 415-391-8269 Email: rcardozo@reedsmith.com ATTORNEY TO BE NOTICED
Winifred V Kao Asian Americans Advancing Justice Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415-896-1701 Fax: 415-896-1702 Email: winifredk@advancingjustice-alc.org ATTORNEY TO BE NOTICED
Tuan Van Uong Yu Mohandesi LLP 633 West 5th Street, Suite 2800 Los Angeles, CA 90071 213-500-0662 Fax: 213-377-5501 Email: tuong@yumollp.com ATTORNEY TO BE NOTICED

Petitioner Vu Ha on behalf of themselves and all of those similarly situated

represented by

Anoop Prasad (See above for address) ATTORNEY TO BE NOTICED
Christopher M Butler (See above for address) ATTORNEY TO BE NOTICED
Christopher M Lapinig

(See above for address) TERMINATED: 09/05/2019
Farah Tabibkhoei (See above for address) ATTORNEY TO BE NOTICED
Jarrad Lucian Wood (See above for address) ATTORNEY TO BE NOTICED
Jesse A Davis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) ATTORNEY TO BE NOTICED
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Le T Duong (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 10/15/2019
Patil Derderian (See above for address) ATTORNEY TO BE NOTICED
Phi U Nguyen (See above for address) PRO HAC VICE

ATTORNEY TO BE NOTICED
Raymond A Cardozo (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
Tuan Van Uong (See above for address) ATTORNEY TO BE NOTICED

Petitioner Long Nguyen on behalf of themselves and all of those similarly situated

represented by

Anoop Prasad (See above for address) ATTORNEY TO BE NOTICED
Christopher M Butler (See above for address) ATTORNEY TO BE NOTICED
Christopher M Lapinig (See above for address) TERMINATED: 09/05/2019
Farah Tabibkhoei (See above for address) ATTORNEY TO BE NOTICED
Jarrad Lucian Wood (See above for address) ATTORNEY TO BE NOTICED
Jesse A Davis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) ATTORNEY TO BE NOTICED
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Le T Duong (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address)

Ngoc Hoang on behalf of themselves and all of those similarly situated

represented by

TERMINATED: 10/15/2019
Patil Derderian (See above for address) ATTORNEY TO BE NOTICED
Phi U Nguyen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Raymond A Cardozo (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
Tuan Van Uong (See above for address) ATTORNEY TO BE NOTICED
Anoop Prasad (See above for address) ATTORNEY TO BE NOTICED
Christopher M Butler (See above for address) ATTORNEY TO BE NOTICED
Christopher M Lapinig (See above for address) TERMINATED: 09/05/2019
Farah Tabibkhoei (See above for address) ATTORNEY TO BE NOTICED
Jarrad Lucian Wood (See above for address) ATTORNEY TO BE NOTICED
Jesse A Davis

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) ATTORNEY TO BE NOTICED
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Le T Duong (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 10/15/2019
Patil Derderian (See above for address) ATTORNEY TO BE NOTICED
Phi U Nguyen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Raymond A Cardozo (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
Tuan Van Uong (See above for address)

ATTORNEY TO BE NOTICED

v. Respondent Thomas D Homan Deputy Director and Senior Official Performing Duties of the Director, United States Immigration and Customs Enforcement

represented by

Assistant 2241-194 US Attorney SA-CV AUSA - Office of US Attorney Criminal Division - US Courthouse 411 West Fourth Street Suite 8000 Santa Ana, CA 92701-4599 714-338-3500 Email: USACAC.Habeas@usdoj.gov ATTORNEY TO BE NOTICED
Hans Chen US Department of Justice Office of Immigration Litigation Civil Division P O Box 868 Washington, DC 20044 301-307-4469 Fax: 202-305-7000 Email: hans.h.chen@usdoj.gov TERMINATED: 05/24/2018
Julian Kurz US Department of Justice Civil Division - Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20044 202-616-4962 Fax: 202-305-7000 Email: julian.m.kurz@usdoj.gov ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney Office of Immigration Litigation District Court Section PO Box 868 Ben Franklin Station Washington, DC 20044 202-353-8806 Email: oil-dcs.cacd@usdoj.gov ATTORNEY TO BE NOTICED
Troy D Liggett

US Department of Justice Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20044 202-532-4765 Fax: 202-305-7000 Email: troy.liggett@usdoj.gov ATTORNEY TO BE NOTICED

Respondent

Kirstjen M. Nielsen Secretary, United States Department of Homeland Security

represented by

Respondent
Jefferson B Sessions III United States Attorney General;

represented by

Assistant 2241-194 US Attorney SA-CV (See above for address) ATTORNEY TO BE NOTICED
Hans Chen (See above for address) TERMINATED: 05/24/2018
Julian Kurz (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
Troy D Liggett (See above for address) ATTORNEY TO BE NOTICED
Assistant 2241-194 US Attorney SA-CV (See above for address) ATTORNEY TO BE NOTICED
Hans Chen (See above for address) TERMINATED: 05/24/2018

Respondent David Marin Field Office Director, Los Angeles Field Office, United States Immigration and Customs Enforcement

represented by

Julian Kurz (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
Troy D Liggett (See above for address) ATTORNEY TO BE NOTICED
Tuan Van Uong (See above for address) ATTORNEY TO BE NOTICED
Assistant 2241-194 US Attorney SA-CV (See above for address) ATTORNEY TO BE NOTICED
Hans Chen (See above for address) TERMINATED: 05/24/2018
Julian Kurz (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
Troy D Liggett (See above for address) ATTORNEY TO BE NOTICED

Respondent Sandra Hutchens Sheriff, Orange County, Calif. TERMINATED: 08/17/2018

represented by

Assistant 2241-194 US Attorney SA-CV (See above for address) ATTORNEY TO BE NOTICED

Hans Chen (See above for address) TERMINATED: 05/24/2018
Julian Kurz (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
Steven C Miller Office of the County Counsel County of Orange 333 West Santa Ana Boulevard Suite 407 Santa Ana, CA 92702-1379 714-834-3300 Fax: 714-834-2359 Email: steven.miller@coco.ocgov.com
Troy D Liggett (See above for address) ATTORNEY TO BE NOTICED

Respondent Warden Adelanto ICE Processing Center formerly doing business as Doe 1

represented by

Assistant 2241-194 US Attorney SA-CV (See above for address) ATTORNEY TO BE NOTICED
Hans Chen (See above for address) TERMINATED: 05/24/2018
Julian Kurz (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney

(See above for address) ATTORNEY TO BE NOTICED
Troy D Liggett (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/22/2018
02/22/2018 02/22/2018 02/22/2018 02/22/2018

#

Docket Text

1

PETITION for Writ of Habeas Corpus by a Person in Federal

Custody (28 USC 2241), Receipt No. 0973-21303112 for $5 filing

fee, filed by Petitioners Long Nguyen, Vu Ha, Ngoc Hoang,

Hoang Trinh. (Attachments: # 1 Attachment A to Habeas Corpus

Class Action Petition And Class Action Complaint For

Declaratory And Injunctive Relief) (Attorney Tuan Van Uong

added to party Vu Ha(pty:pet), Attorney Tuan Van Uong added to

party Ngoc Hoang(pty:pet), Attorney Tuan Van Uong added to

party Long Nguyen(pty:pet), Attorney Tuan Van Uong added to

party Hoang Trinh(pty:pet))(Uong, Tuan) (Entered: 02/22/2018)

2

CIVIL COVER SHEET filed by Petitioners Vu Ha, Ngoc Hoang,

Long Nguyen, Hoang Trinh. (Attachments: # 1 Attachment to

Civil Cover Sheet)(Uong, Tuan) (Entered: 02/22/2018)

3

NOTICE of Interested Parties filed by Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh, identifying none known.

(Uong, Tuan) (Entered: 02/22/2018)

4

NOTICE of Related Case(s) filed by Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh. Related Case(s):

8:17-cv-01898-CJC (GJSx) (Uong, Tuan) (Entered: 02/22/2018)

5

Request for Clerk to Issue Summons on Petition for Writ of

Habeas Corpus,, 1 , Civil Cover Sheet (CV-71) 2 ,

Certificate/Notice of Interested Parties 3 , Notice of Related

Case(s) 4 filed by Petitioners Vu Ha, Ngoc Hoang, Long Nguyen,

Hoang Trinh. (Uong, Tuan) (Entered: 02/22/2018)

02/23/2018
02/23/2018 02/23/2018 02/23/2018 02/26/2018 02/27/2018

6

APPLICATION of Non-Resident Attorney Phi U. Nguyen to

Appear Pro Hac Vice on behalf of Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh (Pro Hac Vice Fee - Fee

Paid, Receipt No. 0973-21303626) filed by PLAINTIFFS Vu Ha,

Ngoc Hoang, Lo ng Nguyen, Hoang Trinh. (Attachments: # 1

Proposed Order) (Attorney Laboni A Hoq added to party Vu

Ha(pty:pet), Attorney Laboni A Hoq added to party Ngoc

Hoang(pty:pet), Attorney Laboni A Hoq added to party Long

Nguyen(pty:pet), Attorney Laboni A Hoq added to party Hoang

Trinh(pty:pet)) (Hoq, Laboni) (Entered: 02/23/2018)

7

APPLICATION of Non-Resident Attorney Jesse A. Davis III to

Appear Pro Hac Vice on behalf of Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh (Pro Hac Vice Fee - Fee

Paid, Receipt No. 0973-21303682) filed by PLAINTIFFS Vu Ha,

Ngoc Hoan g, Long Nguyen, Hoang Trinh. (Attachments: # 1

Proposed Order) (Hoq, Laboni) (Entered: 02/23/2018)

8

NOTICE OF REFERENCE to a U.S. Magistrate Judge. This case

has been assigned to the calendar of the Honorable District

Judge John A. Kronstadt and referred to Magistrate Judge Paul

L. Abrams, who is authorized to consider preliminary matters and

conduct all further hearings as may be appropriate or necessary.

Pursuant to Local Rule 83-2.4, the Court must be notified within

five (5) days of any address change. See notice for additional

details. (ghap) (Entered: 02/23/2018)

9

NOTICE OF DEFICIENCIES in Request to Issue Summons RE:

Summons Request, 5 . The following error(s) was found: Do not

put "et al" on the summons caption.. The summons cannot be

issued until this defect has been corrected. Please correct the

defect and re-file your request. (ghap) (Entered: 02/23/2018)

10

Request for Clerk to Issue Summons on Petition for Writ of

Habeas Corpus,, 1 , Civil Cover Sheet (CV-71) 2 ,

Certificate/Notice of Interested Parties 3 , Summons Request, 5 ,

Notice of Related Case(s) 4 filed by Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh. (Uong, Tuan) (Entered:

02/26/2018)

11 60 DAY Summons Issued re Petition for Writ of Habeas Corpus,, 1 as to Defendants Thomas D Homan, David Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. (sbou) (Entered: 02/27/2018)

02/27/2018 02/28/2018 03/01/2018
03/02/2018 03/16/2018

12 21 DAY Summons Issued re Petition for Writ of Habeas Corpus,, 1 as to Defendant Sandra Hutchens. (sbou) (Entered: 02/27/2018)

13

ORDER RE TRANSFER PURSUANT TO GENERAL ORDER

16-05-Related Case- filed. Related Case No: SACV17-01898

CJC (GJSx). Case transferred from Judge John A. Kronstadt to

Judge Cormac J. Carney for all further proceedings. The case

number will now reflect the initials of the transferee Judge

SACV18-00316 CJC (PLA). Signed by Judge Cormac J. Carney.

(lwag) (Entered: 02/28/2018)

14

Notice of Appearance or Withdrawal of Counsel: for attorney

Hans Chen counsel for Respondents Thomas D Homan, Sandra

Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B

Sessions III, Warden. Adding Hans H. Chen as counsel of record

for Thomas D. Homan, et al. for the reason indicated in the

G-123 Notice. Filed by Respondents Thomas D. Homan, et al..

(Attorney Hans Chen added to party Thomas D Homan(pty:res),

Attorney Hans Chen added to party Sandra Hutchens(pty:res),

Attorney Hans Chen added to party David Marin(pty:res),

Attorney Hans Chen added to party Kirstjen M. Nielsen(pty:res),

Attorney Hans Chen added to party Jefferson B Sessions

III(pty:res), Attorney Hans Chen added to party

Warden(pty:res))(Chen, Hans) (Entered: 03/01/2018)

15

NOTICE OF CLERICAL ERROR: Due to clerical error Re:

Transferring Case purs GO 16-05 (Related Case)(CV 34), 13

The Notice to Counsel from Clerk portion of the transfer order did

not reflect the correct magistrate judge for the reassignment of

the case. The Case has been reassigned from Magistrate Judge

Paul L. Abrams to Magistrate Judge Gail J. Standish. The case

will now reflect the initials of the transferee Judge SACV

18-00316 CJC (GJS). (mca) (Entered: 03/02/2018)

16 ORDER VACATING REFERENCE TO MAGISTRATE JUDGE by Judge Cormac J. Carney. Reference of case to Magistrate Judge Gail J. Standish is vacated. Case transferred to the calendar of Magistrate Judge Gail J. Standish for Discovery. Case number now reads as 8:18-cv-00316 CJC(GJSx). (rn) (Entered: 03/16/2018)

03/22/2018
04/03/2018 04/03/2018 04/05/2018 04/25/2018

17 NOTICE of Appearance filed by attorney Raymond A Cardozo on behalf of Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh (Attorney Raymond A Cardozo added to party Vu Ha(pty:pet), Attorney Raymond A Cardozo added to party Ngoc Hoang(pty:pet), Attorney Raymond A Cardozo added to party Long Nguyen(pty:pet), Attorney Raymond A Cardozo added to party Hoang Trinh(pty:pet))(Cardozo, Raymond) (Entered: 03/22/2018)

18

ORDER by Judge Cormac J. Carney, GRANTING 6

Non-Resident Attorney Phi U. Nguyen APPLICATION to Appear

Pro Hac Vice on behalf of Plaintiff(s) Hoang Trinh, Vu Ha, Long

Nguyen, and Ngoc Hoang, designating Laboni Hoq as local

counsel. (es) (Entered: 04/03/2018)

19

ORDER by Judge Cormac J. Carney, GRANTING 7

Non-Resident Attorney Jesse A Davis, III APPLICATION to

Appear Pro Hac Vice on behalf of Plaintiff(s) Hoang Trinh, Vu Ha,

Long Nguyen, and Ngoc Hoang, designating Laboni Hoq as local

counsel. (es) (Entered: 04/03/2018)

20 NOTICE of Change of Attorney Business or Contact Information: for attorney Laboni A Hoq counsel for Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh. Changing Address to 5680 Oakbrook Parkway, Suite 148, Norcross, Georgia 30093. Filed by Petitioners Hoang Trinh, Vu Ha, Long Nguyen, and Ngoc Hoang. (Hoq, Laboni) (Entered: 04/05/2018)

21

NOTICE of Change of address by Phi U Nguyen attorney for

Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh.

Changing attorneys address to 5680 Oakbrook Parkway, Suite

148, Norcross, Georgia 30093. Filed by Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh. (Nguyen, Phi) (Entered:

04/25/2018)

04/25/2018 04/25/2018

22 NOTICE OF MOTION AND MOTION for Preliminary Injunction re Enjoining Respondents from detaining Petitioners AND FOR PROVISIONAL CLASS CERTIFICATION. Motion filed by Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh. Motion set for hearing on 6/4/2018 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Memorandum of Points and Authorities in Support of Petitioners Motions for a
Preliminary Injunction and for Provisional Class Certification, # 2 Declaration of Raymond A. Cordozo in Support of Petitioners
Motions, # 3 Declaration of Tuan Hoang in Support of Petitioners Motions, # 4 Declaration of Nancy Nguyen in Support of
Petitioners Motions, # 5 Declaration of Tri Nguyen in Support of Petitioners Motions, # 6 Declaration of Tania Pham in Support of
Petitioners Motions, # 7 Declaration of Hien Le in Support of Petitioners Motions, # 8 Declaration of Corey Endo in Support of Petitioners Motions, # 9 Declaration of Hoang Trinh in Support of Petitioners Motions, # 10 Declaration of Phi Nguyen in Support of Petitioners Motions, # 11 Declaration of Jingni Zhao in Support of Petitioners Motions, # 12 Declaration of Thu-Hoang Nguyen-Vo
in Support of Petitioners Motions, # 13 Declaration of Ngoc Hoang in Support of Petitioners Motions, # 14 Declaration of Hoang Bao Nguyen in Support of Petitioners Motions, # 15 Declaration of Robert Huynh in Support of Petitioners Motions, # 16 Declaration of Vu T Ha in Support of Petitioners Motions, # 17 Declaration of Long Nguyen in Support of Petitioners Motions, # 18 Declaration of Laboni Hoq in Support of Petitioners Motions, # 19 Declaration of Jesse A Davis III in Support of Petitioners Motions, # 20 Declaration of Viet Van Nguyen in Support of Petitioners Motions, # 21 Declaration of Linh Huynh in Support of Petitioners Motions, # 22 Proposed Order Granting Petitioners
Motions for a Preliminary Injunction and Provisional Class Certification) (Uong, Tuan) (Entered: 04/25/2018)

23

REQUEST FOR JUDICIAL NOTICE re NOTICE OF MOTION

AND MOTION for Preliminary Injunction re Enjoining

Respondents from detaining Petitioners AND FOR

PROVISIONAL CLASS CERTIFICATION. Motion 22 filed by

Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh.

(Uong, Tuan) (Entered: 04/25/2018)

04/30/2018 05/02/2018 05/10/2018 05/11/2018 05/14/2018

24

NOTICE OF MOTION AND MOTION to Dismiss Case filed by

respondents Thomas D Homan, Sandra Hutchens, David Marin,

Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. Motion set

for hearing on 6/4/2018 at 01:30 PM before Judge Cormac J.

Carney. (Attachments: # 1 Declaration of Michael V. Bernacke, #

2 Proposed Order) (Chen, Hans) (Entered: 04/30/2018)

25

Notice of Appearance or Withdrawal of Counsel: for attorney Le

T Duong counsel for Petitioners Vu Ha, Ngoc Hoang, Long

Nguyen, Hoang Trinh. Adding Le T. Duong as counsel of record

for Petitioners for the reason indicated in the G-123 Notice. Filed

by Petitioners Hoang Trinh, Vu Ha, Long Nguyen, Ngoc Hoang.

(Attorney Le T Duong added to party Vu Ha(pty:pet), Attorney Le

T Duong added to party Ngoc Hoang(pty:pet), Attorney Le T

Duong added to party Long Nguyen(pty:pet), Attorney Le T

Duong added to party Hoang Trinh(pty:pet))(Duong, Le)

(Entered: 05/02/2018)

26 STIPULATION for Extension of Time to File Response and Reply as to NOTICE OF MOTION AND MOTION for Preliminary
Injunction re Enjoining Respondents from detaining Petitioners AND FOR PROVISIONAL CLASS CERTIFICATION. Motion 22 , Request for Judicial Notice, 23 filed by respondents Thomas D
Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. (Attachments: # 1 Proposed
Order)(Chen, Hans) (Entered: 05/10/2018)

27

First AMENDED COMPLAINT against Respondents Thomas D

Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen,

Jefferson B Sessions III, Warden amending Petition for Writ of

Habeas Corpus,, 1 , filed by Petitioners Long Nguyen, Vu Ha,

Ngoc Hoang, Hoang Trinh (Attachments: # 1 Attachment A to

First Amended Habeas Corpus Class Action Petition And Class

Action Complaint For Declaratory And Injunctive Relief)(Uong,

Tuan) (Entered: 05/11/2018)

28

Notice of Withdrawal of Motion to Dismiss Case, 24 filed by

Respondents Thomas D Homan, Sandra Hutchens, David Marin,

Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. (Chen,

Hans) (Entered: 05/14/2018)

05/14/2018 05/14/2018 05/14/2018 05/14/2018 05/14/2018 05/14/2018

29

PROOF OF SERVICE Executed by Plaintiff Hoang Trinh, upon

Defendant Warden served on 5/1/2018, answer due 5/22/2018.

Service of the Summons and Complaint were executed upon

Doe 1: Warden, Adelanto in compliance with California Code of

Civil Procedure by personal service.Original Summons returned.

(Tabibkhoei, Farah) (Entered: 05/14/2018)

30

PROOF OF SERVICE Executed by Plaintiff Hoang Trinh, upon

Defendant Thomas D Homan served on 3/6/2018, answer due

3/27/2018. Service of the Summons and Complaint were

executed upon Thomas D. Homan in compliance with Federal

Rules of Civil Procedure by personal service.Original Summons

returned. (Tabibkhoei, Farah) (Entered: 05/14/2018)

31

PROOF OF SERVICE Executed by Plaintiff Hoang Trinh, upon

Defendant David Marin served on 3/1/2018, answer due

3/22/2018. Service of the Summons and Complaint were

executed upon David Marin in compliance with Federal Rules of

Civil Procedure by personal service.Original Summons returned.

(Tabibkhoei, Farah) (Entered: 05/14/2018)

32

PROOF OF SERVICE Executed by Plaintiff Hoang Trinh, upon

Defendant Kirstjen M. Nielsen served on 3/1/2018, answer due

3/22/2018. Service of the Summons and Complaint were

executed upon Kristjen M. Nielsen in compliance with Federal

Rules of Civil Procedure by personal service.Original Summons

returned. (Tabibkhoei, Farah) (Entered: 05/14/2018)

33

PROOF OF SERVICE Executed by Plaintiff Hoang Trinh, upon

Defendant Jefferson B Sessions III served on 3/1/2018, answer

due 3/22/2018. Service of the Summons and Complaint were

executed upon Jefferson B.Sessions III in compliance with

Federal Rules of Civil Procedure by personal service.Original

Summons returned. (Tabibkhoei, Farah) (Entered: 05/14/2018)

34

PROOF OF SERVICE Executed by Plaintiff Hoang Trinh, upon

Defendant Sandra Hutchens served on 3/1/2018, answer due

3/22/2018. Service of the Summons and Complaint were

executed upon Sandra Hutchens in compliance with Federal

Rules of Civil Procedure by personal service.Original Summons

returned. (Tabibkhoei, Farah) (Entered: 05/14/2018)

05/14/2018
05/18/2018 05/18/2018 05/18/2018 05/21/2018

35

ORDER RESETTING HEARING DATE OF PLAINTIFFS'

MOTIONS by Judge Cormac J. Carney, IT IS HEREBY

FURTHER ORDERED that the hearing on Petitioners Motion for

a Preliminary Injunction and for Provisional Class Certification

(Motion), ECF No. 22, and for Petitioners Request for Judicial

Notice in Support of Motion for a Preliminary Injunction and

Provisional Class Certification (Request), ECF No. 23, is reset

from June 4, 2018, to June 11, 2018, at 1:30p.m. IT IS HEREBY

FURTHER ORDERED that the deadline for Respondents to

respond to the Motion and Request is Friday, May 18, 2018, and

that the deadline for Petitioners to reply in further support of their

Motion and Request is Friday, May 25, 2018. (es) (Entered:

05/14/2018)

36

Notice of Appearance or Withdrawal of Counsel: for attorney

Julian Kurz counsel for Respondents Thomas D Homan, Sandra

Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B

Sessions III, Warden. Filed by Respondents Thomas D. Homan,

et al.. (Attorney Julian Kurz added to party Thomas D

Homan(pty:res), Attorney Julian Kurz added to party Sandra

Hutchens(pty:res), Attorney Julian Kurz added to party David

Marin(pty:res), Attorney Julian Kurz added to party Kirstjen M.

Nielsen(pty:res), Attorney Julian Kurz added to party Jefferson B

Sessions III(pty:res), Attorney Julian Kurz added to party

Warden(pty:res))(Kurz, Julian) (Entered: 05/18/2018)

37

OPPOSITION to NOTICE OF MOTION AND MOTION for

Preliminary Injunction re Enjoining Respondents from detaining

Petitioners AND FOR PROVISIONAL CLASS CERTIFICATION.

Motion 22 filed by Respondents Thomas D Homan, Sandra

Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B

Sessions III, Warden. (Attachments: # 1 Affidavit of Michael V.

Bernacke (supplemental))(Chen, Hans) (Entered: 05/18/2018)

38 OPPOSITION to Pet'rs' Req. for Judicial Notice, ECF No. 23 filed by Respondents Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. (Chen, Hans) (Entered: 05/18/2018)

39

(Attorney Steven C Miller added to party Sandra

Hutchens(pty:res))(Miller, Steven) (Entered: 05/21/2018)

05/23/2018 05/23/2018
05/24/2018 05/25/2018 05/25/2018 05/25/2018

40

ORDER by Judge Cormac J. Carney: denying without prejudice

22 petitioners' MOTION for Preliminary Injunction and for

Provisional Class Certification. (twdb) (Entered: 05/23/2018)

41

EX PARTE APPLICATION for Order for Petitioners' Ex Parte

Application For An Order Extending Class Certification Deadline

filed by Plaintiff Ngoc Hoang. (Attachments: # 1 Declaration of

Jingni Zhao In Support of Petitioners' Ex Parte Application For An

Order Extending Class Certification Deadline, # 2 Proposed

Order Granting Petitioners' Ex Parte Application For An Order

Extending Class Certification Deadline) (Tabibkhoei, Farah)

(Entered: 05/23/2018)

42

Notice of Appearance or Withdrawal of Counsel: for attorney

Hans Chen counsel for Respondents Thomas D Homan, Sandra

Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B

Sessions III, Warden. Hans Haris Chen is no longer counsel of

record for the aforementioned party in this case for the reason

indicated in the G-123 Notice. Filed by respondents Thomas D.

Homan, et al.. (Chen, Hans) (Entered: 05/24/2018)

43

STATEMENT of PARTIAL OPPOSITION RE: EX PARTE

APPLICATION for Order for Petitioners' Ex Parte Application For

An Order Extending Class Certification Deadline 41 filed by

Respondents Thomas D Homan, Sandra Hutchens, David Marin,

Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. (Kurz,

Julian) (Entered: 05/25/2018)

44 Joint STIPULATION for Extension of Time to File Response as to Amended Complaint/Petition, 27 filed by Respondents Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden.(Kurz, Julian) (Entered: 05/25/2018)

45

ORDER Granting Petitioner's Ex Parte Application for an Order

Extending Class Certification Deadline 41 by Judge Cormac J.

Carney: IT IS HEREBY ORDERED that Petitioners deadline to

file a class certification motion shall be extended to August 28,

2018 to permit Petitioners to take discovery and develop a

sufficient factual record prior to filing their motion for class

certification. (lwag) (Entered: 05/25/2018)

05/29/2018
06/01/2018 06/06/2018 06/06/2018 06/06/2018

46 NOTICE of Appearance filed by attorney Troy D Liggett on behalf of Respondents Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden (Attorney Troy D Liggett added to party Thomas D
Homan(pty:res), Attorney Troy D Liggett added to party Sandra Hutchens(pty:res), Attorney Troy D Liggett added to party David Marin(pty:res), Attorney Troy D Liggett added to party Kirstjen M. Nielsen(pty:res), Attorney Troy D Liggett added to party Jefferson B Sessions III(pty:res), Attorney Troy D Liggett added to party
Warden(pty:res))(Liggett, Troy) (Entered: 05/29/2018)

47

ORDER 44 by Judge Cormac J. Carney: The Court hereby

approves the parties Stipulation to Extend Time to Respond to

First Amended Petition. The Court hereby extends the deadline

to respond to Petitioners First Amended Habeas Corpus Class

Action Petition and Class Complaint for Declaratory and

Injunctive Relief to June 8, 2018. (lwag) (Entered: 06/01/2018)

48 EX PARTE APPLICATION for Order for Applying Habeas Corpus Procedures filed by Respondents Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. (Attachments: # 1 Declaration, # 2 Proposed Order) (Kurz, Julian) (Entered: 06/06/2018)

49

EX PARTE APPLICATION to Stay pending Ruling on Ex Parte

Application to Apply Habeas Procedures filed by Respondents

Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M.

Nielsen, Jefferson B Sessions III, Warden. (Attachments: # 1

Declaration, # 2 Proposed Order) (Kurz, Julian) (Entered:

06/06/2018)

50

MINUTE IN CHAMBERS by Judge Cormac J. Carney: Order

Setting Briefing and Hearing Schedule for EX PARTE

APPLICATION to Apply Habeas Procedures 48 and Granting EX

PARTE APPLICATION to Stay Deadline to Respond to First

Amended Petition 49 . With respect to the first ex parte

application, (Dkt. 48), the Court hereby DIRECTS Petitioners to

file an opposition by June 25, 2018. Respondents may file a reply

by July 2, 2018. A hearing is scheduled for July 9, 2018, at 3:00

p.m. in Courtroom 9B. (mt) (Entered: 06/07/2018)

06/25/2018 07/02/2018 07/02/2018 07/03/2018 07/17/2018 07/20/2018
07/31/2018

51

Opposition re: EX PARTE APPLICATION for Order for Applying

Habeas Corpus Procedures 48 * Petitioners Opposition To

Respondents Ex Parte Application For Order Applying Habeas

Corpus Procedures * filed by Petitioners Vu Ha, Ngoc Hoang,

Long Nguyen, Hoang Trinh. (Uong, Tuan) (Entered: 06/25/2018)

52

REPLY in Support of EX PARTE APPLICATION for Order for

Applying Habeas Corpus Procedures 48 filed by Respondents

Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M.

Nielsen, Jefferson B Sessions III, Warden. (Kurz, Julian)

(Entered: 07/02/2018)

53 EX PARTE APPLICATION to Sever Claims filed by Respondents Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. (Attachments: # 1 Declaration, # 2 Proposed Order) (Kurz, Julian) (Entered: 07/02/2018)

54 ORDER by Judge Cormac J. Carney: Denying Respondents' EX PARTE APPLICATIONS 48 , 53 . Respondents are hereby
DIRECTED to respond to Petitioners' First Amended Complaint by July 20, 2018. (mt) (Entered: 07/03/2018)

55

REQUEST for Protective Order filed by Petitioner Hoang Trinh.

(Attachments: # 1 Proposed Order)(Tabibkhoei, Farah) (Entered:

07/17/2018)

56

NOTICE OF MOTION AND MOTION to Dismiss Case and

Return re: Habeas Corpus Claims filed by Respondents Thomas

D Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen,

Jefferson B Sessions III, Warden. Motion set for hearing on

9/10/2018 at 01:30 PM before Judge Cormac J. Carney.

(Attachments: # 1 Exhibit A - Second Suppl. Decl. of Michael V.

Bernacke, # 2 Proposed Order) (Kurz, Julian) (Entered:

07/20/2018)

57

STIPULATED PROTECTIVE ORDER by Magistrate Judge Gail

J. Standish re REQUEST for Protective Order 55 . (ec) (Entered:

07/31/2018)

08/14/2018 08/15/2018 08/17/2018 08/20/2018 08/27/2018 08/28/2018

58 OPPOSITION to NOTICE OF MOTION AND MOTION to Dismiss Case and Return re: Habeas Corpus Claims 56 Petitioners'
Opposition to Respondents' Motion to Dismiss filed by Petitioner Hoang Trinh. (Attachments: # 1 Declaration, # 2 Evidentiary Objections)(Duong, Le) (Entered: 08/14/2018)

59 STIPULATION to Dismiss Respondent Sandra Hutchens filed by Respondents Kirstjen M. Nielsen, Jefferson B Sessions III, Sandra Hutchens, David Marin, Warden, Thomas D Homan. (Attachments: # 1 Proposed Order)(Kurz, Julian) (Entered: 08/15/2018)

60

ORDER by Judge Cormac J. Carney, Granting Stipulation to

Dismissing Respondent Sandra Hutchens 59 . Sandra Hutchens

(Sheriff, Orange County, Calif.) terminated. (twdb) (Entered:

08/17/2018)

61

Notice of Appearance or Withdrawal of Counsel: for attorney

Steven C Miller counsel for Respondent Sandra Hutchens.

Steven C. Miller will no longer receive service of documents from

the Clerks Office for the reason indicated in the G-123 Notice.

Filed by Respondent Sandra Hutchens, Sheriff, Orange County,

Calif.. (Miller, Steven) (Entered: 08/20/2018)

62

REPLY in Support of NOTICE OF MOTION AND MOTION to

Dismiss Case and Return re: Habeas Corpus Claims 56 filed by

Respondents Thomas D Homan, David Marin, Kirstjen M.

Nielsen, Jefferson B Sessions III, Warden. (Kurz, Julian)

(Entered: 08/27/2018)

63

APPLICATION to file document in support of Petitioners' Motion

for Class Certification under seal filed by Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh. Application set for hearing

on 10/15/2018 at 01:30 PM before Judge Cormac J. Carney.

(Attachments: # 1 Memorandum, # 2 Proposed Order, # 3

Redacted Document)(Tabibkhoei, Farah) (Entered: 08/28/2018)

08/28/2018 08/28/2018
09/06/2018 09/17/2018 09/20/2018

64 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document in support of Petitioners' Motion for Class Certification under seal 63 filed by Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh. (Attachments: # 1 Unredacted Document (Declaration of Dai Diep attached as Exhibit 1 to Declaration of Farah Tabibkhoei))(Tabibkhoei, Farah) (Entered: 08/28/2018)

65

NOTICE OF MOTION AND MOTION to Certify Class filed by

Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh.

Motion set for hearing on 10/15/2018 at 01:30 PM before Judge

Cormac J. Carney. (Attachments: # 1 Memorandum, # 2

Declaration of Sieu Nguyen, # 3 Declaration of Dai Diep

(Redacted), # 4 Declaration of Jingni Zhao, # 5 Exhibit A to

Declaration of Jingni Zhao, # 6 Exhibit B to Declaration of Jingni

Zhao, # 7 Exhibit C to Declaration of Jingni Zhao, # 8 Proposed

Order) (Tabibkhoei, Farah) (Entered: 08/28/2018)

66

ORDER by Judge Cormac J. Carney: Denying 56 Defendants'

MOTION to Dismiss and Habeas Return. (twdb) (Entered:

09/06/2018)

67

OPPOSITION to NOTICE OF MOTION AND MOTION to Certify

Class 65 filed by Respondents Thomas D Homan, Sandra

Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B

Sessions III, Warden. (Attachments: # 1 Exhibit A - Bernacke

Declaration IV, # 2 Exhibit B - List of Individual Habeas

Petitions)(Kurz, Julian) (Entered: 09/17/2018)

68

ANSWER to Amended Complaint/Petition, 27 filed by

Respondents Thomas D Homan, David Marin, Kirstjen M.

Nielsen, Jefferson B Sessions III, Warden.(Liggett, Troy)

(Entered: 09/20/2018)

09/24/2018
09/26/2018 10/01/2018 10/10/2018

69

TEXT ONLY ENTRY: NOTICE TO PARTIES by District Cormac

J. Carney. Effective October 9, 2018, Judge Cormac J. Carney

will be located in the First Street U.S. Courthouse, Courtroom

7C, on the 7th floor, located at 350 W. 1st Street, Los Angeles,

California 90012. All Court appearances shall be made in

Courtroom 7C of the First Street U.S. Courthouse unless

otherwise ordered by the Court. All required mandatory

chambers copies shall be delivered and placed in the drop box

located outside the Clerk's Office on the 4th floor of the First

Street Courthouse. Judge Carney's Courtroom Deputy Clerk,

Melissa H. Kunig, may be reached at (714) 338-2849.

The location for filing civil and/or criminal documents in paper format exempted from electronic filing is at Edward R. Roybal Federal Building and U.S. Courthouse, 255 East Temple Street, Room 180, Los Angeles, California 90012. Documents under this
exemption may also be filed in the Santa Ana or Riverside courthouses.

Please refer to Judge Carney's Procedures & Schedules Page on the Court's website **UPDATED AS OF SEPTEMBER 24, 2018** for updated procedures regarding mandatory chambers copies. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rrey) TEXT ONLY ENTRY (Entered: 09/24/2018)

70

JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of

trial 3, filed by Petitioner Ngoc Hoang.. (Uong, Tuan) (Entered:

09/26/2018)

71

REPLY In Support NOTICE OF MOTION AND MOTION to

Certify Class 65 Petitioners' Reply Brief In Support of Motion For

Class Certification filed by Petitioner Hoang Trinh. (Uong, Tuan)

(Entered: 10/01/2018)

72

ORDER GRANTING PETITIONERS' APPLICATION FOR

LEAVE TO FILE PORTIONS OF DECLARATION OF DAI DIEP

IN SUPPORT OF PETITIONERS' MOTION FOR CLASS

CERTIFICATION UNDER SEAL 63 by Judge Cormac J. Carney.

The Court hereby GRANTS Petitioners' application for leave to

file portions of the Declaration of Dai Diep in support of

Petitioner's motion for class certification. SEE ORDER FOR

DETAILS. (iv) (Entered: 10/10/2018)

10/11/2018 10/15/2018 10/18/2018
10/23/2018 11/29/2018 11/29/2018

73

NOTICE OF LODGING filed Updated List of Individual Habeas

Petitions Filed by Putative Class Members re Response in

Opposition to Motion, 67 (Attachments: # 1 Updated List)(Liggett,

Troy) (Entered: 10/11/2018)

74 MINUTES OF PETITIONERS MOTION TO CERTIFY CLASS 65 held before Judge Cormac J. Carney. Motion hearing held. The Court hears oral argument from the parties. The Court takes the Motion under submission. Order to issue. Court Reporter: Debbie Hino-Spaan. (lom) (Entered: 10/15/2018)

75

ORDER GRANTING IN PART AND DENYING IN PART

PETITIONERS' MOTION FOR CLASS CERTIFICATION 65 by

Judge Cormac J. Carney. Petitioners' motion for class

certification is GRANTED IN PART and DENIED IN PART. The

Court hereby designates Petitioners' counsel as class counsel

and appoints the named Petitioners as class representatives. (iv)

(Entered: 10/18/2018)

76

TRANSCRIPT ORDER as to Petitioner Hoang Trinh for Court

Reporter. Court will contact Tuan V. Uong at

tuong@reedsmith.com with further instructions regarding this

order. Transcript preparation will not begin until payment has

been satisfied with the court reporter. (Uong, Tuan) (Entered:

10/23/2018)

77

SCHEDULING ORDER by Judge Cormac J. Carney. Discovery

cut-off 8/8/2019. Motions due by 10/7/2019. Last date to conduct

settlement conference is 9/10/2019. Pretrial Conference set for

11/4/2019 at 3:00 p.m. Jury Trial set for 11/19/2019 at 8:30 a.m.

(mku) (Entered: 11/29/2018)

78

ORDER REGARDING SETTLEMENT PROCEDURES,

PRE-TRIAL CONFERENCE, AND TRIAL by Judge Cormac J.

Carney. (mku) (Entered: 11/29/2018)

01/07/2019
01/07/2019 01/08/2019 01/29/2019 01/30/2019

79

NOTICE by Magistrate Judge Gail J. Standish scheduling a

Pre-Discovery Motion Telephone Conference regarding the

parties' December 20, 2018 email for 1/10/19 at 11:00 AM before

Magistrate Judge Gail J. Standish. Counsel shall meet and

confer to set up a bridge line and provide the call in information

to the Court. Additionally, counsel shall notify the Court Clerk via

email at GJS_chambers@cacd.uscourts.gov of the name of each

counsel appearing on the call. NOTE: During the telephone

hearing, counsel must identify themselves before they speak for

the benefit of the court and the court recorder/reporter.THERE IS

NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ec)

TEXT ONLY ENTRY (Entered: 01/07/2019)

80

EX PARTE APPLICATION to Stay Case pending End of Federal

Government Shutdown (Unopposed) filed by Respondents

Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M.

Nielsen, Jefferson B Sessions III, Warden. (Attachments: # 1

Proposed Order) (Kurz, Julian) (Entered: 01/07/2019)

81

ORDER GRANTING RESPONDENTS' UNOPPOSED EX

PARTE APPLICATION TO STAY PROCEEDINGS 80 by Judge

Cormac J. Carney. The Court hereby GRANTS the application,

STAYS this case until the federal government shutdown ends,

and CANCELS the telephonic hearing that is currently set before

the Honorable Judge Standish for January 10, 2019. (MD JS-6.

Case Terminated) (iv) (Entered: 01/08/2019)

82 EX PARTE APPLICATION to Reopen Case (Unopposed) filed by Respondents Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. (Attachments: # 1 Proposed Order) (Kurz, Julian) (Entered: 01/29/2019)

83

ORDER GRANTING RESPONDENTS' UNOPPOSED EX

PARTE APPLICATION TO REOPEN PROCEEDINGS 82 by

Judge Cormac J. Carney. The Court hereby REOPENS this case

and LIFTS the stay. The parties SHALL propose three dates and

times for a telephonic hearing in accordance with Judge

Standishs procedures. (MD-JS5 Case Reopened) (iv) (Entered:

02/01/2019)

02/27/2019 02/28/2019 03/06/2019
03/11/2019

84

TRANSCRIPT ORDER as to Respondents Thomas D Homan,

Sandra Hutchens, Kirstjen M. Nielsen, Jefferson B Sessions III

for Court Reporter. Court will contact Dan Meyer at

Daniel.C.Meyer@usdoj.gov with further instructions regarding

this order. Transcript preparation will not begin until payment has

been satisfied with the court reporter. (Kurz, Julian) (Entered:

02/27/2019)

85

NOTICE by Magistrate Judge Gail J. Standish scheduling a

Pre-Discovery Motion Telephone Conference regarding the

parties' February 28, 2019 email for 3/6/2019 at 11:30 AM before

Magistrate Judge Gail J. Standish. Counsel shall meet and

confer to set up a bridge line and provide the call in information

to the Court. Additionally, counsel shall notify the Court Clerk via

email at GJS_chambers@cacd.uscourts.gov of the name of each

counsel appearing on the call. NOTE: During the telephone

hearing, counsel must identify themselves before they speak for

the benefit of the court and the court recorder/reporter.THERE IS

NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ec)

TEXT ONLY ENTRY (Entered: 02/28/2019)

86 MINUTES OF Pre-Discovery Motion Telephone Conference held before Magistrate Judge Gail J. Standish regarding parties'
February 28, 2019. The Court confers with the parties regarding their email of February 28, 2018, which sets forth various
discovery disputes. As explained in more detail on the record, the Court orders counsel to meet and confer in an effort to narrow the issues presented in their e-mail. For those issues that remain, the Court sets the following briefing scheduled: petitioners' motion to compel is due by Wednesday, March 20, 2019; the opposition is due by Wednesday, March 27, 2018; the reply, if any, is due by Wednesday, April 3, 2019. Upon
completion of the briefing, the Court will determine if a hearing is necessary, at which time counsel will be notified. Court Recorder:
XTR. (ec) (Entered: 03/06/2019)

87

TRANSCRIPT ORDER as to Petitioner Ngoc Hoang for Court

Reporter. Court will contact Farah Tabibkhoei at

vparedes@reedsmith.com with further instructions regarding this

order. Transcript preparation will not begin until payment has

been satisfied with the court reporter. (Tabibkhoei, Farah)

(Entered: 03/11/2019)

03/13/2019
03/13/2019 03/14/2019 03/19/2019 04/12/2019

88

TRANSCRIPT for proceedings held on 3/6/2019. Electronic

Court Recorder: Exceptional Reporting Services, Inc., phone

number (361) 949-2988. Transcript may be viewed at the court

public terminal or purchased through the Court

Reporter/Electronic Court Recorder before the deadline for

Release of Transcript Restriction. After that date it may be

obtained through PACER. Notice of Intent to Redact due within 7

days of this date. Redaction Request due 4/3/2019. Redacted

Transcript Deadline set for 4/15/2019. Release of Transcript

Restriction set for 6/11/2019. (at) (Entered: 03/14/2019)

89

NOTICE OF FILING TRANSCRIPT filed for proceedings

3/6/2019 re Transcript 88 THERE IS NO PDF DOCUMENT

ASSOCIATED WITH THIS ENTRY. (at) TEXT ONLY ENTRY

(Entered: 03/14/2019)

90 Joint STIPULATION for Extension of Time to File Response as to Text Only Scheduling Notice,, 85 filed by Petitioner Ngoc Hoang. (Attachments: # 1 Proposed Order Granting Joint Stipulation to Modify Briefing Schedule For Motion to Compel Further Responses to Petitioners Written Discovery to Respondents)(Uong, Tuan) (Entered: 03/14/2019)

91

ORDER by Magistrate Judge Gail J. Standish re Stipulation for

Extension of Time 90 . The briefing schedule for Petitioners'

anticipated Motion to Compel shall be modified as

follows:Wednesday, April 10, 2019: Motion to Compel to be

filed/served;Wednesday, April 17, 2019: Opposition Brief to be

filed/served; and Wednesday, April 24, 2019: Reply Brief to be

filed/served. (ec) (Entered: 03/19/2019)

92

Joint STIPULATION to Reschedule Scheduling Order,

STIPULATION for Order to Modify Scheduling Order filed by

Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh.

(Attachments: # 1 Proposed Order Granting Joint Stipulation to

Modify Scheduling Order)(Uong, Tuan) (Entered: 04/12/2019)

04/15/2019
04/17/2019
04/17/2019 07/12/2019 07/17/2019

93

ORDER GRANTING JOINT STIPULATION TO MODIFY

SCHEDULING ORDER 92 by Judge Cormac J. Carney. The

Court orders as follows: 1. All discovery, including discovery

motions, shall be completed by October 8, 2019. Discovery

motions must be heard and filed prior to this date. 2. The parties

shall have until February 7, 2020 to file and have heard all other

motions, including motions join or amend the pleadings. 3. The

parties shall have until January 10, 2020 to conduct settlement

proceedings. 4. A pretrial conference will be held on March 16,

2020 at 3:00 p.m. 5. The case will be set for trial on March 24,

2020 at 8:30 a.m. (lom) (Entered: 04/16/2019)

94

TRANSCRIPT for proceedings held on 10/15/2018 at 1:32 p.m.

****Transcript may be viewed at the court public terminal or

purchased through Court Reporter DEBBIE HINO-SPAAN at:

WEBSITE www.debbiehinospaan.com; E-mail,

dhinospaan@yahoo.com before the deadline for Release of

Transcript restriction. After that date, it may be obtained from the

Court Reporter or through PACER. Additional formats of the

transcript (ASCII, Condensed, and Word Indexing/Concordance)

are also available to be purchased at any time through the Court

Reporter. Notice of Intent to Redact due within 7 days of this

date.** Redaction Request due 5/8/2019. Redacted Transcript

Deadline set for 5/20/2019. Release of Transcript Restriction set

for 7/16/2019. (dhs) (Entered: 04/17/2019)

95

NOTICE OF FILING TRANSCRIPT filed for proceedings

10/15/2018 at 1:32 p.m. re Transcript 94 THERE IS NO PDF

DOCUMENT ASSOCIATED WITH THIS ENTRY. (dhs) TEXT

ONLY ENTRY (Entered: 04/17/2019)

96

Joint STIPULATION for Order Modifying Scheduling Order filed

by Respondents Thomas D Homan, Sandra Hutchens, David

Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden.

(Attachments: # 1 Proposed Order)(Kurz, Julian) (Entered:

07/12/2019)

97

ORDER GRANTING JOINT STIPULATION TO MODIFY

SCHEDULING ORDER 96 by Judge Cormac J. Carney. Pretrial

conference will be held on July 6, 2020 at 3:00 p.m. This case

will be set for trial on July 14, 2020 at 8:30 a.m. SEE ORDER

FOR DETAILS. (iv) (Entered: 07/22/2019)

09/05/2019 10/11/2019 10/11/2019 10/11/2019 10/15/2019 10/16/2019 10/31/2019

98

Notice of Appearance or Withdrawal of Counsel: for attorney

Christopher M Lapinig counsel for Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh. Christopher M. Lapinig is no

longer counsel of record for the aforementioned party in this case

for the reason indicated in the G-123 Notice. Filed by Plaintiffs

Trinh, et al.. (Lapinig, Christopher) (Entered: 09/05/2019)

99

REQUEST for Protective Order filed by Respondents Thomas D

Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen,

Jefferson B Sessions III, Warden. (Attachments: # 1 Proposed

Order)(Kurz, Julian) (Entered: 10/11/2019)

100

NOTICE OF MOTION AND MOTION to hold case in abeyance

pending a decision in Aleman-Gonzalez v. Barr (9th Cir.) filed by

Respondents Thomas D Homan, Sandra Hutchens, David Marin,

Kirstjen M. Nielsen, Jefferson B Sessions III, Warden.

(Attachments: # 1 Proposed Order) (Kurz, Julian) (Entered:

10/11/2019)

101 ORDER GRANTING UNOPPOSED MOTION TO HOLD COUNT II IN ABEYANCE 100 by Judge Cormac J. Carney. Count II is held in abeyance until the Ninth Circuit issues a decision in Aleman-Gonzalez v. Barr, No. 18-16465. (iv) (Entered: 10/11/2019)

102

Notice of Appearance or Withdrawal of Counsel: for attorney

Melanie Chun-Yu Kim counsel for Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh. Melanie Chun-Yu Kim is no

longer counsel of record for the aforementioned party in this case

for the reason indicated in the G-123 Notice. Filed by Plaintiffs

Trinh, et al. (Kim, Melanie) (Entered: 10/15/2019)

103

ORDER by Magistrate Judge Gail J. Standish: granting 99

Request for Amended Protective Order. (ec) (Entered:

10/16/2019)

104

REQUEST of Laboni A. Hoq to Withdraw as Attorney filed by

Petitioner Hoang Trinh. Request set for hearing on 11/27/2019 at

01:00 PM before Judge Cormac J. Carney. (Attachments: # 1

Proposed Order) (Hoq, Laboni) (Entered: 10/31/2019)

11/05/2019 01/03/2020
01/06/2020 01/07/2020

105

ORDER ON REQUEST FOR APPROVAL OF SUBSTITUTION

OR WITHDRAWAL OF ATTORNEY 104 by Judge Cormac J.

Carney. The request of Hoang Trinh to substitute Winifred Kao as

attorney of record instead of Laboni Hoq is GRANTED. (iv)

(Entered: 11/06/2019)

106

Text Only Entry: Order by Judge Standish. The Court has

reviewed the parties joint e-mail seeking a pre-discovery motion

telephonic conference related to Respondents assertion of the

deliberative process privilege over a small subset of the

documents produced. Given the impending discovery cutoff

(January 29, 2020) and the parties agreement that in camera

review is necessary, the Court dispenses with the pre-discovery

motion teleconference requirement and sets the following briefing

schedule: Respondents, who bear the burden of demonstrating

that the privilege applies, will file their opening brief on or before

Wednesday, January 8, 2020 and shall submit the disputed

documents for in camera review at that time; Petitioners will file

their response on or before Tuesday, January 14, 2020;

Respondents reply, if any, is limited to five pages and is due on

or before Thursday, January 16, 2020. THERE IS NO PDF

DOCUMENT ASSOCIATED WITH THIS ENTRY. (vm) TEXT

ONLY ENTRY (Entered: 01/03/2020)

107

NOTICE OF MOTION AND MOTION for Order for Extending

Briefing Deadlines and Discovery-Cutoff Date (Unopposed) filed

by Respondents Thomas D Homan, Sandra Hutchens, David

Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden.

(Attachments: # 1 Proposed Order) (Kurz, Julian) (Entered:

01/06/2020)

108

ORDER GRANTING UNOPPOSED MOTION TO EXTEND

BRIEFING AND DISCOVERY DEADLINES 107 by Judge

Cormac J. Carney. The discovery-cutoff date is extended from

January 29 to February 21, 2020. The discovery-briefing

schedule is revised as follows: Respondents' opening brief is due

on January 15; Petitioners response brief is due on January 22;

Respondents reply brief is due on January 24; and Respondents

will provide the disputed documents to the Court by January 10.

(iv) (Entered: 01/08/2020)

01/15/2020 01/22/2020 01/24/2020 02/04/2020
02/20/2020 02/20/2020

109

BRIEF filed by Respondents Thomas D Homan, Sandra

Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B

Sessions III, Warden. regarding Generic Text Only Entry,,, 106 .

(Attachments: # 1 Exhibit A - Robbins Declaration, # 2 Exhibit B -

Mesquita Declaration)(Kurz, Julian) (Entered: 01/15/2020)

110 RESPONSE filed by Petitioner Hoang Trinhto Brief (non-motion non-appeal), 109 Petitioner's Response to Respondent's Brief
Re: Discovery Dispute (Tabibkhoei, Farah) (Entered: 01/22/2020)

111

REPLY filed by Respondents Thomas D Homan, Sandra

Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B

Sessions III, Warden to Response 110 (Kurz, Julian) (Entered:

01/24/2020)

112

NOTICE by Magistrate Judge Gail J. Standish scheduling a

Discovery hearing re in camera documents for 2/20/2020 11:00

am before Magistrate Judge Gail J. Standish, located at the

Roybal Courthouse, 255 E. Temple Street, Los Angeles, in

Courtroom 640, 6th Floor. THERE IS NO PDF DOCUMENT

ASSOCIATED WITH THIS ENTRY. (efc) TEXT ONLY ENTRY

(Entered: 02/04/2020)

113 NOTICE OF LODGING filed re Text Only Scheduling Notice, 112 (Attachments: # 1 Document Index)(Kurz, Julian) (Entered: 02/20/2020)

114

MINUTES OF Discovery Hearing held before Magistrate Judge

Gail J. Standish regarding in camera documents reviewed by the

Court. The narrow issue before the Court is whether certain

redactions applied by Respondent to twenty-five documents,

which the Court reviewed in camera, are proper. Specifically,

Petitioners challenge whether, in asserting the deliberative

process privilege as to these documents (in whole or in part),

Respondents fulfilled their obligation to produce reasonably

severable factual material. See F.T.C. v. Warner Commc'ns Inc.,

742 F.2d 1156, 1161 (9th Cir. 1984). The documents at issue are

primarily drafts of memoranda and internal analyses, and, in

general, are documents to which the deliberative process

privilege applies. (See order for details) Court Recorder: CS

Roybal Courtroom 640. (efc) (Entered: 02/20/2020)

03/06/2020
03/06/2020 03/06/2020 03/06/2020 03/06/2020
03/10/2020 03/10/2020

115

Joint STIPULATION for Order re Joint Stipulation of Facts filed

by Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang

Trinh.(Attorney Jarrad Lucian Wood added to party Vu

Ha(pty:pet), Attorney Jarrad Lucian Wood added to party Ngoc

Hoang(pty:pet), Attorney Jarrad Lucian Wood added to party

Long Nguyen(pty:pet), Attorney Jarrad Lucian Wood added to

party Hoang Trinh(pty:pet))(Wood, Jarrad) (Entered: 03/06/2020)

116

APPLICATION to file document Exhibits under seal filed by

Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh.

(Attachments: # 1 Proposed Order, # 2 Redacted

Document)(Tabibkhoei, Farah) (Entered: 03/06/2020)

117 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Exhibits under seal 116 filed by Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh.(Tabibkhoei, Farah) (Entered: 03/06/2020)

118

CERTIFICATE OF SERVICE filed by Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh, re APPLICATION to file

document Exhibits under seal 116 served on 03//06/2020.

(Tabibkhoei, Farah) (Entered: 03/06/2020)

119

NOTICE OF MOTION AND MOTION for Partial Summary

Judgment as to Federal Rule of Civil Procedure 56 on Count One

of the First Amended Complaint, Dkt. 27 filed by Petitioners Vu

Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh. Motion set for

hearing on 5/18/2020 at 01:30 PM before Judge Cormac J.

Carney. (Attachments: # 1 Memorandum, # 2 Declaration, # 3

Statement of Uncontroverted Facts, # 4 Proposed Order)

(Tabibkhoei, Farah) (Entered: 03/06/2020)

120

NOTICE OF MOTION AND MOTION for Extension of Time to

File L.R. 79-5.2.2(b)(i) Declaration filed by Respondents Thomas

D Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen,

Jefferson B Sessions III, Warden. (Attachments: # 1 Proposed

Order) (Kurz, Julian) (Entered: 03/10/2020)

121 ORDER GRANTING UNOPPOSED MOTION TO EXTEND L.R. 79-5.2.2(b)(i) DEADLINE 120 by Judge Cormac J. Carney. The deadline to file an L.R. 79-5.2.2(b)(i) declaration is extended to March 27, 2020. (iv) (Entered: 03/10/2020)

03/23/2020 03/24/2020

122

NOTICE OF MOTION AND MOTION for Relief Related to

COVID-19 Disruptions (Unopposed) filed by Respondents

Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M.

Nielsen, Jefferson B Sessions III, Warden. (Attachments: # 1

Proposed Order) (Kurz, Julian) (Entered: 03/23/2020)

123 ORDER GRANTING RESPONDENTS' UNOPPOSED MOTION TO EXTEND MOTIONS DEADLINE, EXTEND L.R. 79-5.2.2(b)(i) DEADLINE, CONTINUE MOTION HEARING, AND WAIVE HAND-SIGNATURE REQUIREMENT 122 by Judge Cormac J. Carney. The hearing on the parties' motions for summary judgment is continued from May 18, 2020 to June 8, 2020 at 1:30 p.m. SEE ORDER FOR DETAILS. (iv) (Entered: 03/25/2020)

04/10/2020 04/17/2020 04/21/2020

124

NOTICE OF MOTION AND MOTION for Partial Summary

Judgment as to Count One and Response to Petitioners' Motion

for Summary Judgment filed by Respondents Thomas D Homan,

Sandra Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B

Sessions III, Warden. Motion set for hearing on 6/8/2020 at 01:30

PM before Judge Cormac J. Carney. (Attachments: # 1

Statement of Uncontroverted Facts and Conclusions of Law, # 2

Statement of Genuine Disputes, # 3 Kurz Declaration and

Exhibits) (Kurz, Julian) (Entered: 04/10/2020)

125

DECLARATION of Heath Simon in support of NOTICE OF

MOTION AND MOTION for Partial Summary Judgment as to

Count One and Response to Petitioners' Motion for Summary

Judgment 124 filed by Respondents Thomas D Homan, Sandra

Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B

Sessions III, Warden. (Kurz, Julian) (Entered: 04/17/2020)

126

Notice of Electronic Filing re NOTICE OF MOTION AND

MOTION for Partial Summary Judgment as to Count One and

Response to Petitioners' Motion for Summary Judgment 124 ,

Declaration (Motion related), 125 e-mailed to Christopher M

Butler at cbutler@reedsmith.com bounced due to No such email

box. The primary e-mail address associated with the attorney

record has been deleted. Pursuant to Local Rules it is the

attorneys obligation to maintain all personal contact information

including e-mail address in the CM/ECF system. THERE IS NO

PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ir) TEXT

ONLY ENTRY (Entered: 04/21/2020)

04/27/2020 05/01/2020 05/08/2020
05/08/2020
05/08/2020

127

NOTICE OF MOTION AND MOTION for Extension of Time to

File L.R. 79-5.2.2(b)(i) Declaration filed by Respondents Thomas

D Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen,

Jefferson B Sessions III, Warden. (Attachments: # 1 Proposed

Order) (Kurz, Julian) (Entered: 04/27/2020)

128 ORDER GRANTING RESPONDENTS' UNOPPOSED MOTION TO EXTEND L.R. 79- 5.2.2(b)(i) DEADLINE 127 by Judge
Cormac J. Carney. The deadline to file a Local Rule 79-5.2.2(b)(i) declaration, if necessary, is extended to May 11, 2020. (iv) (Entered: 05/01/2020)

129 APPLICATION to file document (Exhibits under seal in support of their opposition to Respondents' MSJ, Count One) under seal filed by Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh. (Attachments: # 1 Proposed Order, # 2 Redacted Document Reply and Opposition MSJ, # 3 Redacted Document Reply to Respondents Statement of Genuine Disputes, # 4 Redacted Document Statement of Genuine Disputes, # 5 Redacted Document Wood Declaration ISO Petitioners Opp. to Respondents MSJ)(Wood, Jarrad) (Entered: 05/08/2020)

130 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document (Exhibits under seal in support of their opposition to Respondents' MSJ, Count One) under seal 129 filed by Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh. (Attachments: # 1 Unredacted Document Reply and Opposition MSJ, # 2 Unredacted Document Reply to Respondents Statement of Genuine Disputes, # 3 Unredacted Document
Statement of Genuine Disputes, # 4 Certificate of Service)(Wood, Jarrad) (Entered: 05/08/2020)

131

OBJECTIONS - Petitioners' Evidentiary Objections to

Respondents' Evidence in Support of Respondents' MSJ on

Count One and Response to Petitioners' MSJ on Count One filed

by Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh.

(Wood, Jarrad) (Entered: 05/08/2020)

05/11/2020 05/11/2020 05/11/2020 05/12/2020 05/13/2020 05/19/2020

132

APPLICATION to File Under Seal (Exhibit in Support of

Respondents' Motion for Summary Judgment) filed by

Respondents Thomas D Homan, Sandra Hutchens, David Marin,

Kirstjen M. Nielsen, Jefferson B Sessions III, Warden.

(Attachments: # 1 Proposed Order, # 2 Exhibit A - Redacted

Version of Document Proposed to Be Filed Under Seal) (Kurz,

Julian) (Entered: 05/11/2020)

133

APPLICATION to file document (Exhibit in Support of

Respondents' Motion for Summary Judgment) under seal filed by

Respondents Thomas D Homan, Sandra Hutchens, David Marin,

Kirstjen M. Nielsen, Jefferson B Sessions III, Warden.

(Attachments: # 1 Proposed Order, # 2 Exhibit A - Redacted

Version of Document Proposed to Be Filed Under Seal)(Kurz,

Julian) (Entered: 05/11/2020)

134 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document (Exhibit in Support of Respondents' Motion for Summary Judgment) under seal 133 filed by Respondents
Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. (Attachments: # 1
Exhibit A - Declaration of Marla Jones, # 2 Exhibit B Unredacted Version of Document Proposed to Be Filed Under
Seal)(Kurz, Julian) (Entered: 05/11/2020)
135 First NOTICE OF MOTION AND MOTION for Extension of Time to File L.R. 79-5.2.2(b)(i) Declaration filed by Respondents
Thomas D Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. (Attachments: # 1
Proposed Order) (Kurz, Julian) (Entered: 05/12/2020)

136

EXHIBIT B to the Declaration of Julian Kurz in Support of to

NOTICE OF MOTION AND MOTION for Partial Summary

Judgment as to Count One and Response to Petitioners' Motion

for Summary Judgment 124 filed by Respondents Thomas D

Homan, Sandra Hutchens, David Marin, Kirstjen M. Nielsen,

Jefferson B Sessions III, Warden. (Kurz, Julian) (Entered:

05/13/2020)

137 ORDER GRANTING RESPONDENTS' UNOPPOSED MOTION TO EXTEND L.R. 79-5.2.2(b)(i) DEADLINE 135 by Judge
Cormac J. Carney. The Court orders that the deadline to file a Local Rule 79-5.2.2(b)(i) declaration, if necessary, is extended to
June 2, 2020. (iv) (Entered: 05/19/2020)

05/25/2020
05/25/2020 06/01/2020 06/02/2020 06/04/2020 06/05/2020 06/08/2020

138

REPLY in Support of NOTICE OF MOTION AND MOTION for

Partial Summary Judgment as to Count One and Response to

Petitioners' Motion for Summary Judgment 124 filed by

Respondents Thomas D Homan, Sandra Hutchens, David Marin,

Kirstjen M. Nielsen, Jefferson B Sessions III, Warden.

(Attachments: # 1 Exhibit A - FY2020 Travel Documents Issued

to Pre-1995 Aliens, # 2 Exhibit B - Declaration of Marla Jones

(May 22, 2020), # 3 Exhibit C - Supp. Interrog. Response

(verified May 20, 2020))(Kurz, Julian) (Entered: 05/25/2020)

139

RESPONSE filed by Respondents Thomas D Homan, Sandra

Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B

Sessions III, Warden to Petitioners' Statement of Genuine

Disputes (Dkt. 129-4) (Attachments: # 1 Exhibit A - May 21 and

22, 2020 Emails, # 2 Exhibit B - Supp. Declaration of Joseph P.

Laws)(Kurz, Julian) (Entered: 05/25/2020)

140 OBJECTIONS TO RESPONDENTS' EVIDENCE IN SUPPORT OF REPLY (DKTS. 138-1, 138-2, 138-3, 139-2) filed by
Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh. (Attachments: # 1 Proposed Order)(Wood, Jarrad) (Entered:
06/01/2020)

141 Notice of Withdrawal of Leave to File Document Under Seal,, 129 filed by Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang
Trinh. (Attachments: # 1 Declaration, # 2 Proposed Order)(Wood, Jarrad) (Entered: 06/02/2020)

142

MINUTES (IN CHAMBERS) ORDER CONTINUING HEARING

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT by Judge

Cormac J. Carney. The Court hereby CONTINUES the hearing

on the cross-motions by one week to June 15, 2020, at 1:30 p.m.

(iv) (Entered: 06/04/2020)

143

EX PARTE APPLICATION for Leave to file Supplemental Brief

filed by Respondents Thomas D Homan, Sandra Hutchens,

David Marin, Kirstjen M. Nielsen, Jefferson B Sessions III,

Warden. (Attachments: # 1 Declaration in Support, # 2 Proposed

Order) (Kurz, Julian) (Entered: 06/05/2020)

144 MEMORANDUM in Opposition to EX PARTE APPLICATION for Leave to file Supplemental Brief 143 filed by Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh. (Wood, Jarrad) (Entered: 06/08/2020)

06/08/2020 06/11/2020 06/29/2020 07/10/2020

145

MINUTES (IN CHAMBERS) ORDER DENYING

RESPONDENTS' EX PARTE APPLICATION FOR LEAVE TO

SUBMIT SUPPLEMENTAL BRIEFING 143 by Judge Cormac J.

Carney. See minute order for details. (lom) (Entered: 06/09/2020)

146

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

119 , 124 by Judge Cormac J. Carney. Respondents' motion for

summary judgment on Count One is GRANTED IN

SUBSTANTIAL PART and Petitioners' motion for summary

judgment on Count One is DENIED IN SUBSTANTIAL PART. (iv)

(Entered: 06/11/2020)

147

NOTICE OF MOTION AND MOTION for Reconsideration re

Order on Motion for Partial Summary Judgment,,, 146 filed by

Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh.

Motion set for hearing on 8/3/2020 at 01:30 PM before Judge

Cormac J. Carney. (Attachments: # 1 Proposed Order, # 2

Memorandum, # 3 Declaration) (Wood, Jarrad) (Entered:

06/29/2020)

148

TEXT ONLY ENTRY: NOTICE TO PARTIES by District Judge

Cormac J. Carney. Effective July 13, 2020, Judge Cormac J.

Carney will be located in the Ronald Reagan Federal Building

and U.S. Courthouse, Courtroom 9B, on the 9th floor, located at

411 W. 4th Street, Santa Ana, California 92701-4516. All Court

appearances shall be made in Courtroom 9B of the Ronald

Reagan Federal Buiding and U.S. Courthouse unless otherwise

ordered by the Court. All required mandatory chambers copies

shall be delivered and placed in the drop box located on the 9th

Floor of the Ronald Reagan Federal Building and U.S.

Courthouse. Judge Carneys Courtroom Deputy Clerk, may be

reached at CJC_Chambers@cacd.uscourts.gov. The location for

filing civil and/or criminal documents in paper format exempted

from electronic filing is at the Clerks Office, Ronald Reagan

Federal Building and U.S. Courthouse, located at 411 W. 4th

Street, Santa Ana, California 92701-4516. Documents under this

exemption may also be filed in the Los Angeles or Riverside

courthouses. Please refer to Judge Carneys Procedures and

Schedules Page on the Courts website **UPDATED AS OF JULY

9, 2020** for updated procedures regarding mandatory chambers

copies. THERE IS NO PDF DOCUMENT ASSOCIATED WITH

THIS ENTRY. (cbr) TEXT ONLY ENTRY (Entered: 07/10/2020)

07/13/2020 07/15/2020

149

OPPOSITION to NOTICE OF MOTION AND MOTION for

Reconsideration re Order on Motion for Partial Summary

Judgment,,, 146 147 filed by Respondents Thomas D Homan,

Sandra Hutchens, David Marin, Kirstjen M. Nielsen, Jefferson B

Sessions III, Warden. (Attachments: # 1 Exhibit 1 - Declaration of

Marla Jones, # 2 Exhibit 2 - March 18 Email, # 3 Exhibit 3 -

Requests for Release)(Kurz, Julian) (Entered: 07/13/2020)

150

EX PARTE APPLICATION to Continue HEARING AND HOLD

MOTION FOR RECONSIDERATION IN ABEYANCE from August

3, 2020 to August 17, 2020 filed by Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh. (Attachments: # 1 Proposed

Order, # 2 Declaration) (Wood, Jarrad) (Entered: 07/15/2020)

07/17/2020 07/20/2020 07/22/2020

151

OPPOSITION to EX PARTE APPLICATION to Continue

HEARING AND HOLD MOTION FOR RECONSIDERATION IN

ABEYANCE from August 3, 2020 to August 17, 2020 150 filed by

Respondents Thomas D Homan, Sandra Hutchens, David Marin,

Kirstjen M. Nielsen, Jefferson B Sessions III, Warden. (Kurz,

Julian) (Entered: 07/17/2020)

152

ORDER by Judge Cormac J. Carney: Granting 150 EX PARTE

APPLICATION to Continue Hearing and Hold Motion For

Reconsideration in Abeyance. The Motion for Reconsideration is

in abeyance until the date of the hearing; and the deadline for

Petitioners Reply is extended to August 3, 2020. Motion hearing

continued to 8/17/2020 at 01:30 PM before Judge Cormac J.

Carney. (twdb) (Entered: 07/20/2020)

153

Objection In Support of Opposition re: NOTICE OF MOTION

AND MOTION for Reconsideration re Order on Motion for Partial

Summary Judgment,,, 146 147 [Petitioners' Objections to

Respondents' Evidence In Support of Opposition to Petitioners'

Motion for Reconsideration (Dkt. 149-1)] filed by Petitioners Vu

Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh. (Wood, Jarrad)

(Entered: 07/22/2020)

08/03/2020
08/04/2020 05/05/2021 05/07/2021 06/07/2021

154

REPLY ISO NOTICE OF MOTION AND MOTION for

Reconsideration re Order on Motion for Partial Summary

Judgment,,, 146 147 Petitioners' Reply In Support of Motion for

Reconsideration filed by Petitioners Vu Ha, Ngoc Hoang, Long

Nguyen, Hoang Trinh. (Attachments: # 1 Declaration, # 2 Exhibit

A, # 3 Exhibit B, # 4 Exhibit C)(Wood, Jarrad) (Entered:

08/03/2020)

155 Notice of Withdrawal of Motion for Reconsideration, 147 filed by Petitioners Vu Ha, Ngoc Hoang, Long Nguyen, Hoang Trinh. (Wood, Jarrad) (Entered: 08/04/2020)

156 MINUTE ORDER IN CHAMBERS by Judge Cormac J. Carney: ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE
DISMISSED AND CLOSED. Respondents may file a response by 5/17/21. ( Show Cause Response due by 5/12/2021.) (twdb)
(Entered: 05/05/2021)

157

RESPONSE filed by Petitioners Vu Ha, Ngoc Hoang, Long

Nguyen, Hoang Trinhto Minutes of In Chambers Order/Directive -

no proceeding held, Set/Reset Deadlines 156 JOINT

RESPONSE TO ORDER TO SHOW CAUSE WHY CASE

SHOULD NOT BE DISMISSED AND CLOSED (Wood, Jarrad)

(Entered: 05/07/2021)

158

STATUS REPORT JOINT filed by Petitioners Vu Ha, Ngoc

Hoang, Long Nguyen, Hoang Trinh. (Wood, Jarrad) (Entered:

06/07/2021)

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 Case 8:18-cv-00316 Document 1 Filed 02/22/18 Page 1 of 23 Page ID #:1

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1 PHI U. NGUYEN (GA BAR NO. 578019) (Pro Hac Vice to be filed)
2 ASIAN AMERICANS ADVANCING JUSTICE -ATLANTA
3 6040 Unity Dr., Suite E Norcross, Georgia 30071
4 Telephone: (770) 818-6147 Fax: (404) 890-5690
5 Email: pnguyen@advancingjustice-atlanta.org

6 LABONI HOQ (SBN 224140) CHRISTOPHER LAPINIG (SBN 802525)
7 ASIAN AMERICANS ADVANCING JUSTICE – LA 1145 Wilshire Blvd., 2nd Floor
8 Los Angeles, CA 90017 Telephone: (213) 977-7500
9 Fax: (213) 977-7595 Email: lhoq@advancingjustice-la.org
10 Email: clapinig@advancingjustice-la.org

11 Additional Counsel Listed On Next Page

12 Attorneys for Petitioners

13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15 HOANG TRINH, VU HA, LONG

16

NGUYEN, and NGOC HOANG, on behalf of themselves and all of those

17 similarly situated,

18

Petitioners, v.

19 THOMAS D. HOMAN, Deputy

20

Director and Senior Official Performing Duties of the Director, United States

21

Immigration and Customs Enforcement; KIRSTJEN M. NIELSEN, Secretary,

22

United States Department of Homeland Security; JEFFERSON B. SESSIONS

23

III, United States Attorney General; DAVID MARIN, Field Office Director,

24

Los Angeles Field Office, United States Immigration and Customs Enforcement;

25

SANDRA HUTCHENS, Sheriff, Orange County, Calif.; and DOE 1,

26

Warden, Adelanto ICE Processing Center,

27

Respondents.

Case No. 8:18-cv-316 HABEAS CORPUS CLASS ACTION PETITION AND CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

28

Case No. 8:18-cv-316

– 1 –

HABEAS CORPUS CLASS ACTION PETITION AND CLASS

ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 8:18-cv-00316 Document 1 Filed 02/22/18 Page 2 of 23 Page ID #:2

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1 JINGNI (JENNY) ZHAO (SBN 284684) ANOOP PRASAD (SBN 250681)
2 KEVIN CHUN HOI LO (SBN 278908) MELANIE CHUN-YU KIM (SBN 292588)
3 WINIFRED KAO (SBN 241473) ASIAN AMERICANS ADVANCING JUSTICE –
4 ASIAN LAW CAUCUS 55 Columbus Avenue
5 San Francisco, CA 94111 Telephone: (415) 896-1701
6 Fax: (415)896-1702 Email: jennyz@advancingjustice-alc.org
7 TUAN V. UONG (SBN 272447)
8 FARAH TABIBKHOEI (SBN 266312) CHRISTOPHER M. BUTLER (SBN 318219)
9 PATIL T. DERDERIAN (SBN 316549) REED SMITH, LLP
10 355 South Grand Avenue, Suite 2800 Telephone: (213) 457-8000
11 Fax: (213) 457-8080 Email: tuong@reedsmith.com
12 Email: ftabibkhoei@reedsmith.com Email: cbutler@reedsmith.com
13 Email: pderderian@reedsmith.com

14 JESSE A. DAVIS III (GA BAR NO. 140978) (Pro Hac Vice to be filed)
15 DAVIS ADAMS, LLC 317 W. Hill St., Suite 201
16 Decatur, Georgia 30030 Telephone: (404) 373-8466
17 Fax: (404) 373-8455 Email: jess.davis@davis-adams.com
18

19

20

21

22

23

24

25

26

27

28

Case No. 8:18-cv-316

– 2 –

HABEAS CORPUS CLASS ACTION PETITION AND CLASS

ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 8:18-cv-00316 Document 1 Filed 02/22/18 Page 3 of 23 Page ID #:3

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

INTRODUCTION

2

1. This class action habeas petition and complaint for declaratory and

3 injunctive relief is brought on behalf of Petitioners, who fled war-torn Vietnam, were

4 accepted by the United States as refugees before July 12, 1995 and have resided in

5 the United States since they were young children or teenagers. As a result of abrupt

6 and unlawful actions by Respondents, Petitioners currently face unwarranted and

7 indefinite immigration detention.

8

2. Petitioners became lawful permanent residents of this country many

9 years ago but, based on criminal convictions, lost their green cards and were ordered

10 removed from the United States. Although Petitioners have final orders of removal,

11 they cannot be repatriated under the existing repatriation agreement between the

12 United States and Vietnam. See Agreement Between the Government of the United

13 States and the Government of the Socialist Republic of Vietnam on the Acceptance 14 of the Return of Vietnamese Citizens.1 The agreement does not allow for the

15 repatriation of Vietnamese immigrants who came to the United States before July 12,

16 1995 (“pre-1995 Vietnamese immigrants”), a population that is largely comprised of

17 refugees who fled Vietnam after the war to escape persecution under the new

18 communist regime.

19

3. United States Immigration and Customs Enforcement (“ICE”) has had a

20 longstanding practice of releasing pre-1995 Vietnamese immigrants with final orders

21 of removal due to legal constraints on their detention authority. Recognizing that

22 removal of pre-1995 Vietnamese immigrants are “not subject to return to Vietnam”

23 under the repatriation agreement, ICE has typically released these immigrants on

24 orders of supervision within 90 days of their removal orders becoming final. The

25

26 1 This agreement can be found on the U.S. Department of State’s website. See Attachment A (Agreement Concerning the Acceptance of the Return of Vietnamese
27 Citizens, U.S.- NAM., Jan. 22, 2008, 08 – 43, https://www.state. gov/documents/organization/108921.pdf.)

28

Case No. 8:18-cv-316

– 1 –

HABEAS CORPUS CLASS ACTION PETITION AND CLASS

ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 8:18-cv-00316 Document 1 Filed 02/22/18 Page 4 of 23 Page ID #:4

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1 repatriation agreement has thus given thousands of pre-1995 Vietnamese immigrants

2 the opportunity to return to their families and communities to rebuild their lives.

3

4. In 2017, ICE abruptly departed from past enforcement practices

4 pertaining to pre-1995 Vietnamese immigrants with final orders of removal. ICE

5 began subjecting pre-1995 Vietnamese immigrants to much longer periods of post-

6 removal order detention, in some cases as long as eleven months. ICE also began re-

7 detaining without notice pre-1995 Vietnamese immigrants all across the United

8 States who had been living peaceably in their communities on orders of supervision

9 for years or decades.

10

5. ICE’s enforcement tactics have sown fear in Vietnamese refugee

11 communities around the country. Immigrants from other countries that have also

12 historically refused to accept immigrants for repatriation, including Cambodia,

13 Somalia, and Iraq, are similarly experiencing indiscriminate ICE arrests, which are

14 the subjects of pending legal actions as well. See, e.g., Nak Kim Chhoeun, et al. v.

15 David Marin, et al., United States District Court, Central District of California, Case

16 No. 8:17-cv-01898-CJC (GJSx).

17

6. At the time of this filing, Petitioners’ counsel are aware of

18 approximately 40 pre-1995 Vietnamese immigrants with final orders of removal

19 across the country who are beyond 90 days of post-removal order detention. The

20 total number of similarly situated individuals is likely much larger. Furthermore, on

21 information and belief, ICE intends to continue to detain pre-1995 Vietnamese

22 immigrants with final orders of removal. The number of Vietnamese with final

23 orders of removal who are at risk of future detention is between 8,000 and 10,000.

24 Based on ICE estimates from 2008, an overwhelming percentage of these individuals

25 arrived in the United States before July 12, 1995.

26

7. ICE has undertaken its detention campaign without any evidence that

27 Vietnam will accept pre-1995 Vietnamese immigrants that have been or will be

28

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1 detained. The repatriation agreement has not been rescinded or modified by either

2 country. Given Vietnam’s longstanding policy of categorically denying repatriation

3 to pre-1995 Vietnamese immigrants, memorialized in the existing and valid

4 repatriation agreement, detention of Petitioners without an individualized and

5 specific showing that Vietnam actually intends to accept them is unlawful.

6

8. Additionally, ICE has kept pre-1995 Vietnamese immigrants in

7 detention past 90 days, and often past 180 days, without providing them any

8 meaningful custody review to determine whether continued detention is warranted

9 because they pose a danger or flight risk. ICE cannot lawfully detain Petitioners

10 absent an individualized showing of danger or flight risk before a neutral decision

11 maker, especially as their detention becomes more prolonged.

12

JURISDICTION

13

9. This Court has subject matter jurisdiction under 28 U.S.C. § 2241

14 (habeas corpus), the Suspension Clause of Article I of the United States Constitution,

15 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1361 (mandamus), and 5 U.S.C. §§

16 701 et seq. (Administrative Procedures Act). The Court may also grant relief under

17 28 U.S.C. §§ 2201-02 (Declaratory Judgment Act) and 28 U.S.C. § 1651 (All Writs

18 Act).

19

VENUE

20

10. Venue is proper in the Central District of California under 28 U.S.C. §

21 1391(e) because Respondents are federal officers sued in their official capacity;

22 Respondents Marin and Hutchens are based in this district; Petitioners Hoang Trinh

23 and Vu Ha and numerous class members reside in this district; Petitioners Hoang

24 Trinh and Vu Ha and numerous class members are currently detained in this district;

25 and a substantial part of the events or omissions giving rise to these claims occurred

26 in this district. Venue is also proper under 28 U.S.C. §§ 2241 et seq., as Respondents

27 exercise control over Petitioners. Armentero v. INS, 340 F.3d 1058, 1069-70 (9th Cir.

28

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1 2003), withdrawn on reh’g, 382 F.3d 1153 (9th Cir. 2004) (explaining why

2 “practicality, efficiency, and the interests of justice” demand relaxation of immediate

3 custodian rule in habeas challenges to immigration detention); see also Roman v.

4 Ashcroft, 340 F.3d 314, 319 (6th Cir. 2003) (recognizing that while ICE Field Office

5 Director is generally the proper respondent for immigration habeas petitioners,

6 higher level ICE officials may be proper respondents in extraordinary

7 circumstances); Vasquez v. Reno, 233 F.3d 688, 696 (1st Cir. 2000).

8

PARTIES

9

11. Petitioner Hoang Trinh is a 41-year-old resident of Orange County,

10 California who legally entered the United States from Vietnam as a four-year-old

11 refugee in 1980. He subsequently adjusted his status to become a lawful permanent

12 resident. His parents, now married for more than 50 years, raised a large Catholic

13 family—Hoang and his six sisters—that centered around helping build a thriving

14 family business: a neighborhood bakery. Hoang later married and now has two

15 children, an 18-year-old daughter who attends California State University, Long

16 Beach, and a 13-year-old son. Hoang’s wife, two children, parents, and six sisters are

17 all United States citizens. Hoang has no remaining family in Vietnam. In early 2015,

18 Hoang was arrested on a drug charge, for which he served one year in prison. After

19 allegedly being found in possession of a marijuana plant in 2017, Hoang was

20 incarcerated in Orange County before being transferred to ICE custody. He was

21 ordered removed from the United States on July 27, 2017 and has remained

22 incarcerated at the Theo Lacy Facility in Orange County for the past almost seven

23 months. Hoang has never been interviewed by the Vietnamese government regarding

24 repatriation to Vietnam.

25

12. Petitioner Vu Ha is a 37-year-old resident of Orange County, California

26 who legally entered the United States from Vietnam as a 10-year-old refugee in

27 1990. He became a lawful permanent resident shortly after his arrival to the United

28

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1 States. His parents are United States citizens, as are his sister and his 13-year-old

2 daughter. An artist and avid runner, Vu has primarily worked at the nail salon his

3 mother owns. He was arrested three times as a young adult between the years 2000

4 and 2005, with the most serious offense being robbery. In 2017, Vu was arrested and

5 detained for failing to pay a citation for driving without a license. He was then

6 transported from a county jail to ICE custody in May 2017. He was ordered removed

7 from the United States on September 19, 2017 and has remained incarcerated at the

8 Adelanto ICE Processing Center in Adelanto, California for the past five months. Vu

9 has never been interviewed by the Vietnamese government regarding repatriation to

10 Vietnam.

11

13. Petitioner Long Nguyen is 41-year-old resident of Charleston, South

12 Carolina, who legally entered the United States as an eleven-year-old refugee in

13 1987. He became a lawful permanent resident the following year. He is now married

14 to a United States citizen and has a two-year-old daughter and three stepdaughters

15 who are all United States citizens. His parents also reside in the United States as

16 lawful permanent residents. The Nguyen family is active in their local Catholic

17 church, and Long and his wife have worked together for many years in the nail salon

18 he manages. Long’s only felony offense involved a nonviolent drug charge in 2006,

19 in Kansas City, Missouri. In September or October 2011, ICE detained Long upon

20 his reentry to the United States after traveling abroad. He was ordered to be removed

21 from the United States on April 18, 2012 and subsequently released on an order of

22 supervision under which he consistently and reliably reported to ICE. Then, on

23 October 19, 2017, Long was pulled over while driving to work and re-detained by

24 ICE officers. He has been held at the Stewart Detention Center in Lumpkin, Georgia

25 since then, for the past four months.

26

14. Petitioner Ngoc Hoang is a 44-year-old resident of Gwinnett County,

27 Georgia who legally entered the United States in 1990 as a refugee. Both of his

28

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1 parents and his only sibling are United States citizens. Ngoc was married to a United

2 States citizen with whom he has four children, ages 16, 14, 13 and 11, all of whom

3 are United States citizens. All of his children now live with Ngoc and his second

4 wife; he is the primary provider for his family, working as a nail salon technician. He

5 has no family remaining in Vietnam. In 1994, Ngoc pleaded guilty to check fraud in

6 Washington, and in 2010, he was placed on probation in Georgia for simple assault

7 and simple battery. He was ordered removed from the United States on

8 December 12, 2012 and subsequently released on an order of supervision

9 approximately two months later. Over the next almost five years, Ngoc consistently

10 complied with the requirements of his order of supervision. On the morning of

11 November 6, 2017, Ngoc was suddenly re-arrested by ICE officers at his home and

12 has been held at the Stewart Detention Center in Lumpkin, Georgia or the Irwin

13 County Detention Center in Ocilla, Georgia in ICE custody for the past almost four

14 months. Ngoc has never been interviewed by the Vietnamese government regarding

15 repatriation to Vietnam and has not been given a 90-day custody review by ICE.

16

15. Respondent Thomas D. Homan is the Deputy Director and Senior

17 Official Performing Duties of the Director of ICE. As the head of ICE, an agency

18 within the United States Department of Homeland Security that detains and removes

19 noncitizens, Respondent Homan is a legal custodian of Petitioners and all class

20 members. Respondent Homan is an appropriate respondent for this habeas action

21 because, on information and belief, decisions regarding the detention of pre-1995

22 Vietnamese immigrants are being made at ICE Headquarters and because Petitioners

23 and class members are often transferred between different regions of the country.

24

16. Respondent Kirstjen M. Nielsen is the Secretary of the United States

25 Department of Homeland Security. She is responsible for the implementation and

26 enforcement of the immigration laws and oversees ICE. Respondent Nielsen has

27 ultimate custodial authority over Petitioners and all class members.

28

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1

17. Respondent Jefferson B. Sessions III is the Attorney General of the

2 United States. As the head of the United States Department of Justice, which

3 oversees the immigration courts, Respondent Sessions shares responsibility for

4 enforcement of the immigration laws with Respondents Kirstjen M. Nielsen and

5 Thomas D. Homan.

6

18. Respondent David Marin is the Field Office Director for ICE’s Los

7 Angeles, California, Field Office, which has detention authority over non-citizens in

8 ICE custody at Adelanto ICE Processing Center in Adelanto, California, including

9 Petitioner Vu Ha, as well as detention authority over non-citizens in ICE custody at

10 ICE’s Theo Lacy Facility in Orange, California, including Petitioner Hoang Trinh.

11

19. Respondent Sandra Hutchens is the Sheriff of Orange County,

12 California, which holds a contract with ICE to detain noncitizens. Respondent

13 Hutchens is responsible for the operation of the Theo Lacy Facility in Orange,

14 California, where Petitioner Hoang Trinh is detained.

15

20. Respondent Doe 1 is the warden at the Adelanto ICE Processing Center,

16 a private detention facility owned by The GEO Group, Inc., which holds a contract

17 with ICE to detain noncitizens. Respondent Doe 1 is responsible for the operation of

18 the Adelanto ICE Processing Center in Adelanto, California, where Petitioner Vu Ha

19 is detained. On information and belief, the identity of the warden is not public

20 information, and therefore, Petitioner intends to amend the complaint to add this

21 respondent at a later time.

22

21. All Respondents are sued in their official capacity.

23 LEGAL BACKGROUND
24 Detention
25

26

22. Following a final order of removal, ICE is directed by statute to detain

27 an individual for 90 days in order to effectuate removal. 8 U.S.C. § 1231(a)(2). This

28

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1 90-day period, also known as “the removal period,” generally commences as soon as

2 a removal order becomes administratively final. § 1231(a)(1)(A), § 1231(a)(1)(B).

3

23. If ICE fails to remove an individual during the 90-day removal period,

4 the law requires ICE to release the individual under conditions of supervision,

5 including periodic reporting. § 1231(a)(3) (“If the alien . . . is not removed within the

6 removal period, the alien, pending removal, shall be subject to

7 supervision.”). Limited exceptions to this rule exist. Specifically, ICE “may” detain

8 an individual beyond 90 days if the individual was ordered removed on criminal

9 grounds or is determined to pose a danger or flight risk. § 1231(a)(6). However,

10 ICE’s authority to detain an individual beyond the removal period under such

11 circumstances is not boundless. Rather, it is constrained by the constitutional

12 requirement that detention “bear a reasonable relationship to the purpose for which

13 the individual [was] committed.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001)

14 (citations omitted). Because the principal purpose of the post-final-order detention

15 statute is to effectuate removal, detention bears no reasonable relation to its purpose

16 if removal cannot be effectuated. Id. at 697.

17

24. The United States Supreme Court has accordingly construed Section

18 1231(a)(6) as authorizing post-final order detention only for a “period reasonably

19 necessary to secure removal,” a period that the Court determined to be presumptively

20 six months. Id. at 699-701. After this six month period, if a detainee provides “good

21 reason” to believe that his or her removal is not significantly likely in the reasonably

22 foreseeable future, “the Government must respond with evidence sufficient to rebut

23 that showing.” Id. at 701. If the government cannot do so, the individual must be

24 released.

25

25. However, detainees are entitled to release even before six months of

26 detention, as long as removal is not reasonably foreseeable. See 8 C.F.R. §

27 241.13(b)(1) (authorizing release after 90 days where removal not reasonably

28

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1 foreseeable). Moreover, as the period of post-final-order detention grows, what

2 counts as “reasonably foreseeable” must conversely shrink. Zadvydas at 701.

3

26. Even where detention meets the Zadvydas standard for reasonable

4 foreseeability, detention violates the Due Process Clause unless it is “reasonably

5 related” to the government’s purpose, which is to prevent danger or flight risk. See

6 Zadvydas, 533 U.S. at 700 (“[I]f removal is reasonably foreseeable, the habeas court

7 should consider the risk of the alien’s committing further crimes as a factor

8 potentially justifying confinement within that reasonable removal period”) (emphasis

9 added); id. at 699 (purpose of detention is “assuring the alien’s presence at the

10 moment of removal”); id. at 690-91 (discussing twin justifications of detention as

11 preventing flight and protecting the community). Thus, due process requires a

12 meaningful determination that Petitioners pose a danger or flight risk that warrant

13 post-final-order detention, regardless of whether their removal can be effectuated

14 within a reasonable period of time.

15

27. The government’s own regulations contemplate this requirement. They

16 dictate that even after ICE determines that removal is reasonably foreseeable—and

17 that detention therefore does not per se exceed statutory authority—the government

18 must still determine whether continued detention is warranted based on flight risk or

19 danger. See 8 C.F.R. § 241.13(g)(2) (providing that where removal is reasonably

20 foreseeable, “detention will continue to be governed under the established standards”

21 in 8 C.F.R. § 241.4).

22

28. The regulations, at 8 C.F.R. § 241.4, set forth the custody review

23 process that existed even before the Supreme Court’s decision in Zadvydas. This

24 mandated process, known as the post-order custody review, requires ICE to conduct

25 “90-day custody reviews” prior to expiration of the 90-day removal period and to

26 consider release of individuals who pose no danger or flight risk, 8 C.F.R. §

27 241.4(e)-(f). Among the factors to be considered in these custody reviews are “ties to

28

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1 the United States such as the number of close relatives residing here lawfully”;

2 whether the noncitizen “is a significant flight risk”; and “any other information that

3 is probative of whether” the noncitizen is likely to “adjust to life in a community,”

4 “engage in future acts of violence,” “engage in future criminal activity,” pose a

5 danger to themselves or others, or “violate the conditions of his or her release from

6 immigration custody pending removal from the United States.” Id.

7

29. Individuals with final orders who are released after a post-order custody

8 review are subject to orders of supervision. 8 C.F.R. § 241.4(j). After an individual

9 has been released on an order of supervision, ICE cannot revoke such an order

10 without cause or adequate legal process.

11

12

FACTS

13

Vietnam’s Repatriation Agreement with the United States

14

30. In 2008, after ten years of negotiation, Vietnam and the United States

15 executed a repatriation agreement to govern the repatriation of certain Vietnamese

16 immigrants with final orders of removal to Vietnam. Before this agreement was

17 negotiated, Vietnam refused to repatriate the overwhelming majority of Vietnamese

18 immigrants ordered removed from the United States.

19

31. Vietnam and the United States stipulated that the repatriation agreement

20 would be valid for five years from the date of its execution and then automatically

21 extended for successive three-year terms thereafter absent at least six months written

22 notice of an intent to terminate from one government to the other. See Agreement,

23 Article 6, Entry into Force and Duration.

24

32. Upon information and belief, the repatriation agreement has not been

25 terminated or modified by either Vietnam or the United States.

26

33. The repatriation agreement does not permit the repatriation of

27 Vietnamese immigrants who came to the United States before July 12, 1995. It

28 expressly stipulates that “Vietnamese citizens are not subject to return to Vietnam

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1 under this Agreement if they arrived in the United States before July 12, 1995.” See

2 Agreement, Article 2: Removable Persons and Conditions of Acceptance. The

3 categorical exemption of pre-1995 Vietnamese immigrants from repatriation reflects

4 humanitarian considerations related to the United States’ role in the Vietnam War,

5 the subsequent resettlement of Vietnamese refugees in America, and the continuing

6 tension between the Vietnamese government and the Vietnamese refugees who were

7 forced to flee their homes to avoid profound hardship and persecution after the war.

8

34. The end of the Vietnam War caused hundreds of thousands of South

9 Vietnamese refugees to flee to the United States by boat or by air to escape political

10 persecution and death. Other Vietnamese immigrants who resettled in America

11 before July 12, 1995 were accepted to the United States to reunite with their loved

12 ones or for other humanitarian reasons. The Vietnamese refugees who fled to the

13 United States in the 20 years following the Vietnam War included those with close

14 ties to the United States military or South Vietnamese government who feared for

15 their lives under the new communist government and the hundreds of thousands of

16 “Boat People” who poured out of Vietnam in rickety, wooden boats, desperate to

17 escape communist re-education camps and other forms of political persecution.

18

35. Abandoned children of American soldiers and Vietnamese women—

19 known as “Amerasians” and pejoratively referred to as the “dust of life” in

20 Vietnam—were also among the waves of Vietnamese immigrants who resettled in

21 the United States before July 12, 1995. In addition to growing up fatherless,

22 Amerasians were roundly shunned by Vietnamese society for being mixed race and

23 born out of wedlock and in many cases rejected by their own mothers. These

24 punishing circumstances set Amerasians on a trajectory of homelessness and abject

25 poverty. With physical features that betrayed them as the children of American

26 soldiers, Amerasians became even more vulnerable to mistreatment after communist

27 takeover of Vietnam in 1975, as they carried the faces of those who had fought

28

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1 against the North Vietnamese. After 1975, many were imprisoned in labor or

2 reeducation camps. Recognizing the extreme persecution faced by Amerasians and

3 acknowledging its responsibility towards these half-American children, the United

4 States in the 1980s enacted laws that gave thousands of Vietnamese Amerasians the

5 opportunity to leave behind a country that never accepted them in order start anew in

6 the homeland of their fathers.

7

36. These early Vietnamese refugees to America lacked resources—formal

8 education, English-language proficiency, a supportive ethnic community, or mental

9 health services to help cope with war-related trauma—to ease their transition to an

10 unfamiliar country. In addition, ad hoc resettlement practices dispersed these

11 refugees, often pushing them into economically deteriorating, high-crime

12 neighborhoods with under-resourced schools. While many Vietnamese refugees beat

13 the odds stacked against them to pursue higher education, start successful small

14 businesses, and build families in their new homeland, some were convicted of crimes

15 that resulted in orders of removal.

16

37. Vietnam’s longstanding practice of refusing repatriation has for years

17 protected pre-1995 Vietnamese immigrants from being removed to the country they

18 fled to escape starvation, violence, and death. The exclusion of pre-1995 Vietnamese

19 immigrants from the repatriation agreement is central to maintaining human rights

20 protections for this population. According to the U.S. Department of State’s 2016

21 Human Rights Report on Vietnam, the most significant human rights problems in

22 Vietnam are severe government restrictions of citizens’ political rights.2 Most pre-

23 1995 Vietnamese immigrants are ex-citizens of South Vietnam, a country that ceased

24 to exist after North Vietnam prevailed in the war in April 1975, leaving hundreds of

25 thousands of South Vietnamese stateless. Many of those who were not immediately

26

27 2U.S. Dept. of State, Vietnam 2016 Human Rights Report, 2016, https://www.state.gov/documents/organization/265598.pdf.

28

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1 evacuated from Vietnam were incarcerated for months or years in re-education

2 prisons, where they endured political indoctrination and forced physical labor

3 because of their perceived threat and lack of loyalty to the new communist

4 government.

5

38. The repatriation agreement has also profoundly impacted the way pre-

6 1995 Vietnamese immigrants have handled their removal proceedings. Many of

7 these immigrants, who faced the possibility of years in detention while litigating

8 their removal cases, at great financial cost which most could not afford, chose

9 instead to forego the pursuit of meritorious defenses based on the reasonable

10 expectation that they would not be deported to Vietnam.

11

39. Although the repatriation agreement officially opened the door for

12 repatriation of Vietnamese immigrants who arrived to the United States on or after

13 July 12, 1995, Vietnam continues to accept only a very limited number of persons

14 for repatriation each year and still regularly refuses to issue travel documents. Based

15 on publicly available information from ICE and from the Executive Office for

16 Immigration Review, from 2008 to 2016, Vietnam only accepted an average of 13

17 percent of individuals ordered removed to Vietnam each year. On information and

18 belief, a negligible percentage of the removals to Vietnam have been removals of

19 pre-1995 Vietnamese immigrants, consistent with the repatriation agreement.

20

40. Because of the exclusion of pre-1995 immigrants from the repatriation

21 agreement and the overall lack of cooperation from the Vietnamese government, the

22 United States government has been unable to carry out most orders of removal to

23 Vietnam. Consequently, ICE has for years routinely released pre-1995 Vietnamese

24 immigrants with final orders of removal from immigration custody upon or even

25 before expiration of the 90-day removal period. Thousands of Vietnamese returned

26 to their families, their jobs, and their communities and built productive, peaceful

27 lives following completion of their removal proceedings.

28

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1

41. Currently, between 8,000 and 10,000 Vietnamese Americans are living

2 in the United States with final orders of removal. According to ICE estimates, 6,200

3 of the 7,700 Vietnamese who had final orders of removal in 2008 came to the United

4 States before 1995, indicating that the vast majority of the 8,000 to 10,000

5 Vietnamese with final orders of removal today are pre-1995 Vietnamese immigrants.

6 Unlawful Detention in Violation of the Repatriation Agreement
7

8

42. Signed in January 2017, Executive Order 13768 announced a massive

9 expansion of immigration enforcement. Exec. Order No. 13,768, 82 Fed. Reg. 8799

10 (Jan. 25, 2017), The order identified “recalcitrant” countries that refuse repatriation

11 as a problem area and directed the Secretary of Homeland Security and the Secretary

12 of State to implement sanctions on these countries. Id. at § 12.

13

43. ICE soon after began conducting widespread arrests of immigrants from

14 “recalcitrant” countries, including Iraq, Cambodia, and Somalia, without requisite

15 evidence that these countries would repatriate the individuals arrested, often

16 followed by prolonged detention without due consideration to whether detention was

17 necessary to effectuate their removal. Immigrants from these countries filed class

18 action lawsuits around the country challenging ICE’s unlawful denial of due process

19 to their communities.

20

44. ICE likewise aggressively stepped up enforcement against the

21 Vietnamese community in 2017. It ended its practice of releasing pre-1995

22 Vietnamese immigrants from detention promptly following their orders of removal.

23 Instead, deportation officers began holding pre-1995 Vietnamese immigrants for

24 longer than 90 days, and often longer than 180 days, citing a directive from ICE

25 Headquarters.

26

45. In March 2017, ICE also began re-arresting pre-1995 Vietnamese

27 immigrants with final orders of removal whom it had previously released. Many

28

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1 were transported to Krome Detention Center in Miami, Florida to be interviewed by

2 the Vietnamese Consulate between March 20 and 31, 2017.

3

46. On September 21, 2017, the United States submitted 95 cases of

4 Vietnamese immigrants with final orders of removal to the Vietnamese government

5 to consider for repatriation.

6

47. In October 2017, ICE again carried out mass arrests of Vietnamese

7 immigrants with final orders of removal who had returned to their communities on

8 orders of supervision—including pre-1995 Vietnamese immigrants. Arrests occurred

9 in several states across the country, including Georgia, Pennsylvania, Texas,

10 Colorado, and California. Many of the individuals arrested were transported to

11 Stewart Detention Center in Lumpkin, Georgia to be interviewed by the Vietnamese

12 Consulate between the end of October and beginning of November, 2017.

13 Afterwards, they were transported to various detention centers for continued

14 detention.

15

48. In defense of ICE’s abrupt change in policy and violation of the

16 repatriation agreement, the United States government claims that Vietnam is now

17 “willing to consider” repatriation of Vietnamese who came to the United States

18 before July 12, 1995. However, the government has not substantiated this claim with

19 any official document memorializing Vietnam’s alleged change in policy, and the

20 repatriation agreement remains in effect. Further, the Vietnamese government’s

21 conduct does not signal any meaningful departure from its categorical refusal to

22 repatriate pre-1995 Vietnamese immigrants, despite continued pressure from the

23 United States.

24

49. On information and belief, the Vietnamese government has only issued

25 travel documents to seven pre-1995 Vietnamese immigrants. Moreover, on

26 information and belief, Vietnam will not accept the deportation of any pre-1995

27 individuals without an interview. Some Petitioners and class members have never

28

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1 been interviewed by the Vietnamese Consulate and are therefore not being

2 considered for repatriation, yet remain in ICE custody.

3

50. During interviews conducted by the Consulate, Vietnamese officials

4 questioned individuals about whether they have any family living in Vietnam who

5 can support them if deported; whether they have any family living in the United

6 States who will be impacted if deported; and whether they are willing to accept their

7 deportation. On information and belief, Vietnam is extremely reluctant to issue travel

8 documents to individuals like Petitioners who have no family in Vietnam; whose

9 families in the United States will suffer hardship as a result of their deportation;

10 and/or who do not wish to return to Vietnam. In addition to Petitioners, the pre-1995

11 Vietnamese immigrants detained by ICE include at least four Amerasians whom

12 Vietnam is highly unlikely to repatriate.

13

51. Despite the United States government’s vague representations, the

14 Vietnamese government’s conduct does not indicate that it truly intends to repatriate

15 the hundreds of pre-1995 Vietnamese whom ICE is currently detaining or will likely

16 detain under its current detention campaign.

17

52. ICE lacks any particularized evidence that Vietnam will accept

18 Petitioners’ or class members’ repatriation. Despite this lack of proof that

19 Petitioners’ and class members’ repatriation is significantly likely in the reasonably

20 foreseeable future, ICE has kept all Petitioners and class members past 90 days and

21 some past 180 days.

22

53. Furthermore, Petitioners and class members are being detained without

23 an individualized hearing before a neutral decision maker to assess whether detention

24 is warranted due to danger or flight risk. This includes Petitioners Ngoc Hoang and

25 Long Nguyen and class members who for years consistently and reliably reported to

26 ICE as required under their orders of supervision.

27

28

Case No. 8:18-cv-316

– 16 –

HABEAS CORPUS CLASS ACTION PETITION AND CLASS

ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 8:18-cv-00316 Document 1 Filed 02/22/18 Page 19 of 23 Page ID #:19

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

54. To the extent that ICE has been conducting any 90-day post-order

2 custody reviews for Petitioners and other class members, they have been perfunctory,

3 resulting in boilerplate decisions that merely rubberstamp continued detention. Some

4 class members have been told by ICE employees that Vietnamese with final orders

5 of removal will continue to be detained until the Vietnamese government issues a

6 travel document, though some requests for travel documents have been pending

7 since late October or early November 2017 and others since March 2017. On

8 information and belief, the refusal to release any pre-1995 Vietnamese immigrants

9 after 90 days is driven by an ICE Headquarters policy being uniformly implemented

10 across the United States.

11

CLASS ALLEGATIONS

12

55. Petitioners bring this action on behalf of themselves and all other

13 similarly situated persons pursuant to Federal Rules of Civil Procedure 23(a) and

14 23(b)(2), and as a representative habeas class action for similarly situated persons

15 pursuant to a procedure analogous to Rules 23(a) and 23(b)(2). See Ali v. Ashcroft,

16 346 F.3d 873, 889-91 (9th Cir. 2003) (holding that the district court did not exceed

17 its habeas jurisdiction in certifying a nationwide habeas class), withdrawn and

18 amended on other grounds on reh’g, Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005);

19 see also Geraghty v. U.S. Parole Commission, 429 F. Supp. 737, 740 (M.D. Pa.

20 1977) (noting that “procedures analogous to a class action have been fashioned in

21 habeas corpus actions where necessary and appropriate”).

22

56. Petitioners seek to represent the following classes: (1) all Vietnamese

23 nationals who arrived in the United States before July 12, 1995 and who have been

24 or will be detained by ICE for more than 90 days after receiving final orders of

25 removal (“90-Day Class”); and (2) all Vietnamese nationals who arrived in the

26 United States before July 12, 1995 and who have been or will be detained by ICE for

27 more than 180 days after receiving final orders of removal (“180-Day Class”).

28

Case No. 8:18-cv-316

– 17 –

HABEAS CORPUS CLASS ACTION PETITION AND CLASS

ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 8:18-cv-00316 Document 1 Filed 02/22/18 Page 20 of 23 Page ID #:20

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

57. Members of each proposed class are so numerous that joinder is

2 impracticable. Petitioners have identified at least 45 pre-1995 Vietnamese

3 immigrants with final orders of removal presently in ICE custody in just 20 of ICE’s

4 111 detention facilities. At least 37 of the 45 have been detained for more than 90

5 days; 18 of those 37 have been detained for more than 180 days. The total numbers

6 of 90-Day Class members and 180-Day Class members are likely much higher.

7 Further, 8,000 to 10,000 Vietnamese immigrants in the United States currently have

8 final orders of removal. ICE’s aggressive detention of these individuals as part of a

9 Headquarters-driven decision means the 90-day Class and 180-day Class will

10 continue to grow.

11

58. Petitioners’ claims are typical of the claims of the proposed classes. In

12 addition, Petitioners will fairly and adequately represent the interests of all members

13 of the proposed classes. Petitioners seek relief that is identical to the relief sought by

14 members of each class, and they have no interests that are adverse to other class

15 members. Petitioners have retained counsel who have experience in immigration law

16 and class action litigation and will adequately represent the interests of the classes.

17

59. Multiple questions of law and fact are common to members of the

18 proposed classes, including:

19

a. Whether the 90-Day Class members and 180-Day Class members have

20 shown good reason to believe that their removal is not reasonably foreseeable;

21

b. Whether Respondents have sufficient evidence that the 90-Day Class

22 members’ and 180-Day Class members’ removal is reasonably foreseeable to justify

23 continued detention given that they are specifically excluded from repatriation under

24 the repatriation agreement; and

25

c. Whether Respondents have afforded 90-Day Class members and 180-

26 Day Class members individualized determinations of the need for detention that

27 satisfy Section 1231 and due process.

28

Case No. 8:18-cv-316

– 18 –

HABEAS CORPUS CLASS ACTION PETITION AND CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 8:18-cv-00316 Document 1 Filed 02/22/18 Page 21 of 23 Page ID #:21

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

60. Respondent’s conduct and refusal to act apply generally to the 90-day

2 Class and 180-day Class, thereby making the final injunctive relief and declaratory

3 relief sought by the Petitioners appropriate with respect to the class as a whole.

4

CLAIMS FOR RELIEF

5

Count One: Unlawful Detention Where Removal Is Not Reasonably Foreseeable

6

61. The foregoing allegations are realleged and incorporated herein.

7

62. Post-removal order detention violates Section 1231 where removal is

8 not significantly likely to occur in the reasonably foreseeable future. Zadvydas v.

9 Davis, 533 U.S. 678 (2001). Detention under these circumstances also violates

10 constitutional due process.

11

63. Petitioners’ and class members’ removal is not significantly likely to

12 occur in the reasonably foreseeable future because they are specifically excluded

13 from repatriation under the repatriation agreement.

14

64. The 90-Day Class members’ Zadvydas claim is ripe because the six-

15 month period set forth in Zadvydas is a rebuttable presumption, not a rule. The

16 presumption is rebutted by a repatriation agreement that expressly excludes pre-1995

17 Vietnamese immigrants from repatriation, along with Vietnam’s historical refusal to

18 accept them.

19

65. Through the repatriation agreement and Vietnam’s historical practice,

20 Petitioners and class members have made their initial showing under Zadvydas of

21 “good reason to believe” that their removal is not reasonably foreseeable. Id. at 701.

22

66. Petitioners and class members have shifted the burden to Respondents

23 to produce individualized evidence that their removal is reasonably

24 foreseeable. Respondents lack such evidence, yet continue to detain Petitioners and

25 class members in violation of Section 1231 and constitutional due process.

26

67. Petitioners and class members are entitled under the law to immediate

27 release on orders of supervision.

28

Case No. 8:18-cv-316

– 19 –

HABEAS CORPUS CLASS ACTION PETITION AND CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 8:18-cv-00316 Document 1 Filed 02/22/18 Page 22 of 23 Page ID #:22

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

Count Two: Unlawful Detention Without

Determinations of Danger and Flight Risk

2

68. The foregoing allegations are realleged and incorporated herein.

3

69. Even when removal is reasonably foreseeable, detention violates

4 Section 1231 and due process under the United States Constitution unless it is

5 reasonably related to the government’s purposes of preventing flight and protecting

6 the community. Zadvydas, 533 U.S. at 690-91.

7

70. Respondents are subjecting Petitioners and class members to months of

8 detention without any individualized determination that they pose a danger or flight

9 risk that would justify their detention.

10

71. The only procedure the government has provided—administrative post-

11 order custody reviews—is inadequate to satisfy the requirements of due

12 process. Moreover, the government is not meaningfully conducting these post-order

13 custody reviews in compliance with its own regulations but is merely

14 rubberstamping continued detention with respect to the Petitioners and class

15 members as a whole.

16

72. Respondents may not continue to detain Petitioners and class members

17 without individualized determinations by impartial adjudicators of whether detention

18 is justified based on danger or flight risk.

19

PRAYER FOR RELIEF

20

73. WHEREFORE, Petitioner respectfully requests that the Court grant the

21 following relief:

22

a. Assume jurisdiction over this matter;

23

b. Certify this matter as a class action, name Petitioners Vu Ha, Long

24 Nguyen, and Ngoc Hoang as class representatives of the 90-Day Class, name

25 Petitioner Hoang Trinh as class representative of the 180-Day Class, and appoint

26 Petitioners’ counsel as class counsel;

27

c. Declare that Respondents have violated the rights of the class;

28

Case No. 8:18-cv-316

– 20 –

HABEAS CORPUS CLASS ACTION PETITION AND CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 8:18-cv-00316 Document 1 Filed 02/22/18 Page 23 of 23 Page ID #:23

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

d. Order Respondents to release from detention Petitioners and all class

2 members for whom Respondents lack individualized evidence that removal is

3 significantly likely to occur in the reasonably foreseeable future;

4

e. Order Respondents to release Petitioners and all class members from

5 detention absent an individualized determination by an impartial adjudicator that their

6 detention is justified based on danger or flight risk, which cannot be sufficiently

7 addressed by alternative conditions of release and/or supervision;

8

f. Award Petitioners reasonable attorneys’ fees and costs under the Equal

9 Access to Justice Act, 28 U.S.C. § 2412, and on any other basis justified under law;

10 and

11

g. Grant any other and further relief as the Court deems just and proper.

12

13 Dated: February 22, 2018

Respectfully submitted,

14

/S/ Tuan V. Uong

Tuan V. Uong

15

Farah Tabibkhoei

Christopher M. Butler

16

Patil T. Derderian

REED SMITH, LLP

17

/S/ Phi U. Nguyen

18

Phi U. Nguyen

ASIAN AMERICANS ADVANCING JUSTICE-ATLANTA

19

/S/ Laboni Hoq

20

Laboni Hoq

Christopher Lapinig

21

ASIAN AMERICANS ADVANCING JUSTICE-LA

22

/S/ Jingni Zhao

Jingni (Jenny) Zhao

23

Anoop Prasad

Kevin Chun Hoi Lo

24

Melanie Chun-Yu Kim

Winifred Kao

25

ASIAN AMERICANS ADVANCING JUSTICE-ASIAN LAW

CAUCUS

26

/S/ Jesse A. Davis III

27

Jesse A. Davis III

DAVIS ADAMS, LLC

28

Attorneys for Petitioners

Case No. 8:18-cv-316

– 21 –

HABEAS CORPUS CLASS ACTION PETITION AND CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 8:18-cv-00316 Document 1-1 Filed 02/22/18 Page 1 of 8 Page ID #:24
ATTACHMENT A

Case 8:18-cv-00316 Document 1-1 Filed 02/22/18 Page 2 of 8 Page ID #:25
08 – 43
AGREEMENT BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND
THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM ON
THE ACCEPTANCE OF THE RETURN OF VIETNAMESE CITIZENS
The Government of the United States of America (hereinafter called "the U.S. Government") and the Government of the Socialist Republic of Vietnam (hereinafter called "the Vietnamese Government"),
With a wish of developing friendly relations between the two countries, and to establish procedures for competent authorities of both countries on the prompt and orderly acceptance of Vietnamese citizens who have been ordered removed by the U.S. Government,
In order to establish common procedures for the relevant authorities based on the legal principles of each country and the international responsibility to accept the return of repatriated citizens; and to follow recognized principles of international law, to allow for a case-by-case determination of repatriation, and to recognize the right of the receiving country to determine nationality,
Have agreed to the following:
Article 1 General Provisions
1. The U.S. Government will carry out the repatriation of Vietnamese citizens who violated U.S. law in accordance with U.S. and international law and the provisions of this Agreement. The repatriation should take into account the humanitarian aspect, family unity and circumstances of each person in each individual case.
2. The Vietnamese Government may consider the return of its citizens who violated U.S. law based on the consideration of legal procedures and the
'/

Case 8:18-cv-00316 Document 1-1 Filed 02/22/18 Page 3 of 8 Page ID #:26

status and circumstances of each individual case. The subject individuals and the acceptance procedure will be based on the terms of this Agreement.

3. Repatriation will be carried out in an orderly and safe way, and with respect for the individual human dignity of the person repatriated. The U.S. Government will allow Vietnamese citizens who have been ordered removed a reasonable time to arrange their personal affairs before returning them to Vietnam.

4. Persons repatriated under this Agreement have the right to transfer their legal money and personal property to Vietnam.

5. The U.S. Government will pay for the cost of returning to Vietnam persons repatriated under this Agreement, as provided in Article 5 and Annex 1. The U.S. Government will also pay for the cost of returning to the United States any person who was mistakenly repatriated, in accordance with Article 3 of this Agreement.

Article 2 Removable Persons and Conditions of Acceptance

1. The Vietnamese Government will accept the return of Vietnamese citizens in accordance with Article 1 and item 2 of Article 2 of this Agreement, if upon investigation the individual meets the following requirements:

(a) The individual is a citizen of Vietnam and is not a citizen of the United States or of any other country;

(b) The individual previously resided in Vietnam and has no current residence in a third country;

(c) The individual has violated U.S. laws and has been ordered by competent authority removed from the United States; and

(d) If the individual has been convicted of a criminal offense (including immigration violation), the person will have completed any imprisonment before removal, and any reduction in sentence will have been ordered by competent authority.

2. Vietnamese citizens are not subject to return to Vietnam under this Agreement if they arrived in the United States before July 12, 1995, the date on which diplomatic relations were re-established between the U.S.

A

1111

Case 8:18-cv-00316 Document 1-1 Filed 02/22/18 Page 4 of 8 Page ID #:27
Government and the Vietnamese Government. The U.S. Government and the Vietnamese Government maintain their respective legal positions relative to Vietnamese citizens who departed Vietnam for the United States prior to that date.
3. In the case of a citizen of Vietnam who immigrated to the United States from a third country where that person had a permanent residence and who has been ordered removed from the United States, the U.S. Government will seek to return that person to the third country or consider allowing that person to stay in the United States, before requesting removal to Vietnam.
4. In any case where the Vietnamese Government obtains information relevant to the repatriation of an individual that was not previously considered by the U.S. Government, the Vietnamese Government may request a humanitarian reconsideration based on the specific circumstances of the repatriated person in accordance with United States law.
Article 3 Return of Persons Repatriated in Error
Upon notice by the Vietnamese Government that a person returned to Vietnam by the U.S. Government does not meet all criteria mentioned in Article 2 of this Agreement, the U.S. Government should promptly receive the return of that person to the United States without any special procedure.
Article 4 Acceptance Procedures
1. When the U.S. Government believes that a removable person is a citizen of Vietnam and meets all criteria within Article 2 of this Agreement, the U.S. Department of Homeland Security, on behalf of the U.S. Government, will request appropriate travel documents from the Vietnamese Government and will forward the appropriate files to that Government. Such files will include three sets of documents, the original and two copies. The original and one copy shall be forwarded to the Vietnamese Ministry of Public Security (Immigration Department) by the U.S. Embassy in Vietnam, and the other copy will be sent to the Vietnamese Ministry of Foreign Affairs (Consular Department).
Each file will contain a diplomatic note which requests that the Vietnamese Government accept the returnee, the name of the person the U.S. Government believes should be repatriated to Vietnam, the appropriate forms completed by such person (an example of which is provided in Annex 2 of

Case 8:18-cv-00316 Document 1-1 Filed 02/22/18 Page 5 of 8 Page ID #:28
this Agreement), a copy of the order of removal, and other documents regarding the person's biography, citizenship, criminal history, sentence imposed, and decision of amnesty or reduction of criminal sentence. The order of removal will be translated into Vietnamese on the standard form, and the criminal history will include a National Crime Information Center (NCIC) record in English accompanied by a code key translated into Vietnamese. All documents and translations will be certified by the competent U.S. authorities.
2. Upon request by the Vietnamese Government, the U.S. Government will arrange and facilitate the interview of persons who fall within Article 2(1) of this Agreement by Vietnamese immigration officials to determine information regarding the Vietnamese citizenship, biographical data, and last place of residence of such persons. The U.S. Department of Homeland Security will arrange a venue for those interviews. The U.S. Government also will facilitate interviews by U.S.-based consular officers of the Vietnamese Government of deportable persons whom the U.S. believes to be Vietnamese citizens.
3. The Vietnamese Government will provide a prompt response to the U.S. Government on cases referred under this Article after the Vietnamese verification is made. If it is determined that a person whose name and file has been provided to the Vietnamese Government in accordance with this Article meets the requirements of Article 2, the Ministry of Public Security of the Vietnamese Government will issue a travel document authorizing that person's return to Vietnam, and will provide written notification to the U.S. Embassy in Vietnam.
4. When the Vietnamese Government has issued a travel document under this Agreement, the U.S. Government will provide at least fifteen (15) days notice of the flight and travel arrangements by which the person will be returned to Vietnam. The U.S. Embassy in Vietnam will inform the Ministry of Public Security (Immigration Department) and the Ministry of Foreign Affairs (Consular Department) of the date and number of the flight, the time of arrival, the port of entry (Noi Bai Airport in Hanoi or Tan Son Nhat Airport in Ho Chi Minh City), and the details regarding any U.S. officers escorting the person to be returned (such as names, dates of birth, passport numbers, estimated times of stay in Vietnam, etc), and allow the Vietnamese side to confirm receipt of the returnees.
When a person under medical treatment is returned to Vietnam under this Agreement, the escorting U.S. officers will provide a copy of the person's health record to the receiving Vietnamese officials at the port of entry. The

Case 8:18-cv-00316 Document 1-1 Filed 02/22/18 Page 6 of 8 Page ID #:29
escorting and receiving officers will sign a joint report verifying the person's repatriation.
Article 5 Expenses
1. The U.S. Government will pay for the cost of transporting Vietnamese citizens to Vietnam under this Agreement.
2. The U.S. Government will pay for the costs of receiving repatriated persons including: verifying fee, the receipt at the airport and transportation of the persons from airport to the place of residences in accordance with the enclosed Annex 1.
3. The U.S. Government will pay for the cost of arranging interviews by relevant Vietnamese officials of persons whom the U.S. Government believes to be Vietnamese citizens and subject to repatriation under this Agreement.
4. The U.S. Government will pay for the cost of returning to the United States persons who were repatriated in error, as provided in Article 3 of this Agreement.
Article 6 Entry into Force and Duration
1. This Agreement will enter into force sixty (60) days from the date of signature by both Governments.
2. Upon entry into force, this Agreement will be valid for five years. The Agreement will be extended automatically for terms of three years thereafter unless written notice not to extend is given by one Government to the other at least six months prior to the expiration date of the Agreement.
Article 7 Amendment and Supplementation
This Agreement may be amended or supplemented by written agreement of the Vietnamese Government and the U.S. Government through appropriate diplomatic channels.

Case 8:18-cv-00316 Document 1-1 Filed 02/22/18 Page 7 of 8 Page ID #:30

Article 8 Resolution of Disputes
Any disputes regarding the interpretation and implementation of this Agreement will be resolved through appropriate diplomatic channels.
Article 9 Suspension or Termination
This Agreement may be suspended or terminated by either Government. Such suspension or termination of this Agreement will come into effect after thirty days (30) from the date one Government receives the written notification from the other Government of its intention to suspend or terminate.
Done at Hanoi, on 22 January 2008 in duplicate in the English and Vietnamese languages, both texts being equally authentic.

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA

FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF
VIETNAM

Dr-

Case 8:18-cv-00316 Document 1-1 Filed 02/22/18 Page 8 of 8 Page ID #:31

EXPENSES FOR REPATRIATION

Annex 1

Content
1/ Expenses for verification (including verification through the Vietnamese Embassy in the U.S.,) and receipt at airports in Vietnam 2/ Transportation fee for the repatriated person from airport to the place of residence

Expenses for Repatriation $140/person $ 10/person

Total:

$150/person

 
 Case 8:18-cv-00316-CJC-GJS Document 66 Filed 09/06/18 Page 1 of 18 Page ID #:839

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

12

HOANG TRINH, VU HA, LONG NGUYEN, NGOC HOANG, DAI DIEP,

) ) )

Case No.: SACV 18-00316-CJC(GJSx)

13 BAO DUONG, and SIEU NGUYEN, on )

14

behalf of themselves and those similarly situated,

) ) )

15

) ORDER DENYING DEFENDANTS’

16

Petitioners,

) MOTION TO DISMISS AND HABEAS ) RETURN

17

v.

) )

)

18

THOMAS D. HOMAN, KIRSTJEN M.

) )

19 NIELSEN, JEFFERSON B. SESSIONS )

20

III, DAVID MARIN, SANDRA HUTCHENS, and JOHN DOE,

) ) )

21

)

22

Defendants.

) )

)

23

24

25 I. INTRODUCTION

26

27

The seven named Petitioners bring this Habeas Corpus Petition and Class Action

28 Complaint on behalf of themselves and a putative class of Vietnamese citizens who

-1-

Case 8:18-cv-00316-CJC-GJS Document 66 Filed 09/06/18 Page 2 of 18 Page ID #:840

1 immigrated to the United States before 1995. (Dkt. 27 [First Amended Habeas Corpus 2 Petition and Class Action Complaint, hereinafter “FAC”] ¶¶ 1–4.) Petitioners allege that 3 in 2017, U.S. Immigration and Customs Enforcement (“ICE”) began subjecting these 4 “pre-1995 Vietnamese immigrants” to prolonged, post-removal order detention despite 5 the purportedly remote possibility of their removal to Vietnam. (Id. ¶ 4.)

6

7

Petitioners bring two causes of action for habeas relief, declaratory relief, and

8 injunctive relief. (Id. ¶ 76.) In Count One, Petitioners assert that their post-removal

9 order detention violates federal immigration law, 8 U.S.C. § 1231, and constitutional due

10 process where removal is not likely to occur in the foreseeable future. (Id. ¶¶ 64–70.) In

11 Count Two, Petitioners assert that even where removal is reasonably foreseeable, their

12 prolonged detention violates section 1231 and constitutional due process when it is

13 “without any individualized determination that they pose a danger or flight risk.” (Id. ¶¶

14 72–75.)

15

16

Petitioners bring these causes of action on behalf of themselves and three putative

17 classes: (1) all pre-1995 Vietnamese immigrants who have been or will be detained by

18 ICE for more than 90 days after receiving removal orders (“90-Day Class”), (2) all pre-

19 1995 Vietnamese immigrants who have been or will be detained by ICE for more than

20 180 days after receiving removal orders (“180-Day Class”), and (3) all pre-1995

21 Vietnamese immigrants who have been or will be detained by ICE for more than 180

22 days without a bond hearing (“Prolonged Detention Class”). (Id. ¶ 59.)

23

24

Before the Court is Defendants’ hybrid motion to dismiss and habeas return. (Dkt.

25 56 [hereinafter “Mot.”].) For the following reasons, the motion is DENIED.1

26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 28 for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set
for September 10, 2018, at 1:30 p.m. is hereby vacated and off calendar.
-2-

Case 8:18-cv-00316-CJC-GJS Document 66 Filed 09/06/18 Page 3 of 18 Page ID #:841

1 II. BACKGROUND

2

3

Petitioners are citizens of Vietnam who immigrated to the United States before

4 July 12, 1995. (FAC ¶ 1.) Petitioners became lawful permanent residents years ago but,

5 based on criminal convictions, lost their green cards and were ordered removed. (Id. ¶ 2.)

6 Petitioners allege that until recently, ICE had a longstanding practice of detaining pre-

7 1995 Vietnamese immigrants for no longer than 90 days. (Id. ¶ 3.) This practice was

8 purportedly implemented because a 2008 diplomatic agreement between the United

9 States and Vietnam provides that Vietnamese citizens who arrived to the United States

10 before July 12, 1995 are not subject to return to Vietnam. (Id. ¶¶ 2, 36; Ex. A, Art. 2, ¶

11 2.) The parties seemingly do not dispute that the 2008 agreement is still in effect.2

12

13

Petitioners allege that in 2017, ICE departed from this longstanding practice and

14 began subjecting pre-1995 Vietnamese immigrants to prolonged periods of detention.

15 (Id. ¶ 4.) ICE also purportedly began re-detaining, without notice, pre-1995 Vietnamese

16 immigrants who had previously been released from detention and were living on orders

17 of supervision. (Id.) On February 22, 2018, four of the named Petitioners filed this

18 action challenging their detention. (Dkt. 1.) On April 30, 2018, the Government moved

19 to dismiss the case, arguing it was moot because the four named Petitioners had since

20 been released from custody. (Dkt. 24.) On May 11, 2018, Petitioners filed the operative

21 First Amended Habeas Corpus Petition and Class Action Complaint, adding three new

22 Petitioners who were, at the time, in immigration detention. (FAC.) All seven named

23 Petitioners, described below, have now been released from custody.

24

25

26

2 The agreement can be accessed on the U.S. Department of State’s website at https://www.state.gov/documents/organization/108921.pdf. The agreement states it will be valid for five

27 years and extended automatically for successive three-year terms thereafter, unless written notice not to extend is given by either country. (TAC Ex. A, Art. 6.) Petitioners allege and Defendants do not contest

28 that the agreement has not been terminated or modified by either country. (TAC ¶ 35; see generally

Mot.)

-3-

Case 8:18-cv-00316-CJC-GJS Document 66 Filed 09/06/18 Page 4 of 18 Page ID #:842

1

Hoang Trinh, the first named Petitioner, is a resident of Orange County, California,

2 who legally entered the United States as a four-year-old refugee in 1980. (Id. ¶ 11.) He

3 became a lawful permanent resident, married, and now has two children ages thirteen and

4 eighteen. (Id.) Hoang’s wife, two children, parents, and six sisters are all U.S. citizens.

5 (Id.) In early 2015, Hoang was arrested on a drug charge, for which he served one year

6 in prison. (Id.) Hoang was later incarcerated for alleged possession of a marijuana plant

7 before being transferred to ICE custody in June 2017. (Id.) He was ordered removed on

8 July 27, 2017. (Id.) He remained in immigration detention until April 16, 2018, when he

9 was released on an order of supervision. (Id.) He did not receive a bond hearing. (Id.)

10

11

Petitioner Vu Ha is a resident of Orange County, California, who legally entered

12 the United States as a ten-year-old refugee in 1990 and became a lawful permanent

13 resident shortly thereafter. (Id. ¶ 12.) His parents, sister, and daughter are U.S. citizens.

14 (Id.) He was arrested three times as a young adult between 2000 and 2005, once being

15 for robbery. (Id.) In 2017, he was arrested and detained for failure to pay a citation for

16 driving without a license. (Id.) He was transported from county jail to ICE custody in

17 May 2017 and was ordered removed on September 19, 2017. (Id.) He remained in

18 immigration detention until April 13, 2018, when he was released on an order of

19 supervision. (Id.) He did not receive a bond hearing. (Id.)

20

21

Petitioner Long Nguyen is a resident of Charleston, South Carolina, who legally

22 entered the United States as an eleven-year-old refugee in 1987 and became a lawful

23 permanent resident the following year. (Id. ¶ 13.) Nguyen’s wife and five children are

24 all U.S. citizens, and his parents are lawful permanent residents. (Id.) Nguyen and his

25 wife have worked together for many years at a nail salon his wife manages. (Id.) In

26 2006, he was convicted of a nonviolent felony drug offense. (Id.) In 2010 or 2011, he

27 was detained after traveling abroad and ordered removed on April 18, 2012. (Id.) He

28 was released on an order of supervision after Vietnam refused to accept his deportation.

-4-

Case 8:18-cv-00316-CJC-GJS Document 66 Filed 09/06/18 Page 5 of 18 Page ID #:843

1 (Id.) Although he reliably reported to ICE for years under his order of supervision, he 2 was pulled over on his way to work and detained from October 19, 2017 to March 23, 3 2018, when he was again released on an order of supervision. (Id.)

4

5

Petitioner Ngoc Hoang is a resident of Gwinnett County, Georgia, who legally

6 entered the United States in 1990. (Id. ¶ 14.) Hoang was married to a U.S. citizen with

7 whom he has four children, all under the age of eighteen. (Id.) Hoang works as a nail

8 salon technician. (Id.) In 1994, he pled guilty to check fraud and in 2010, he was placed

9 on probation for simple assault and simple battery. (Id.) He was ordered removed on

10 December 12, 2012 and released on an order of supervision approximately two months

11 later. (Id.) Over the next five years, Hoang complied with the requirements of that order.

12 (Id.) But on November 6, 2017, he was unexpectedly re-arrested by ICE officers at his

13 home. (Id.) He was detained until April 23, 2018, when he was released on an order of

14 supervision. (Id.)

15

16

Petitioner Sieu Nguyen is a resident of Sacramento, California, who escaped

17 Vietnam when he was three years old. (Id. ¶ 15.) Sieu and his family were accepted as

18 refugees in September 1989, and he became a lawful permanent resident shortly

19 thereafter. (Id.) His parents and seven siblings are all U.S. citizens. (Id.) Sieu was

20 convicted of robbery in 2007 and burglary and receipt of stolen property in 2010. (Id.)

21 After serving time in prison, he was transferred to a detention facility. (Id.) He was

22 ordered removed on December 19, 2017, (id.), and has since been released from custody.

23

24

Petitioner Dai Diep is a resident of Santa Ana, California, who legally entered the

25 United States as a refugee in 1995 and became a lawful permanent resident the following

26 year. (Id. ¶ 16.) He arrived with his mother, stepfather, and two half-siblings, all of

27 whom are now U.S. citizens. (Id.) In November 2015, he pled guilty to second-degree

28 robbery, second-degree burglary, and vandalism, for which he was sentenced to two

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1 years of imprisonment. (Id.) In April 2017, he was released on parole from state prison 2 and transferred to ICE custody. (Id.) He was ordered removed on October 26, 2017, 3 (id.), and has since been released from custody.

4

5

Petitioner Bao Duong is a resident of San Diego, California, who legally entered

6 the United States as a refugee in 1980 and became a lawful permanent resident the same

7 year. (Id. ¶ 17.) His parents are lawful permanent residents and his three sisters are U.S.

8 citizens. (Id.) In 2013, Duong was convicted of robbery and imprisoned for three years.

9 (Id.) He was released on parole in June 2016 and arrested for alleged possession of

10 marijuana in September 2017. (Id.) He was transferred to ICE custody and ordered

11 removed from the United States on November 14, 2017. (Id.) He has since been released

12 from custody.

13

14

Petitioners allege that ICE’s abrupt change in practices with respect to the named

15 Petitioners and similarly situated individuals is unlawful because there is no evidence that

16 Vietnam will now accept the return of pre-1995 Vietnamese immigrants. (Id. ¶ 54.)

17 Defendants argue that ICE’s change in practices was based on a “new understanding”

18 between the United States and Vietnam regarding the removal of pre-1995 immigrants.

19 (Mot. at 14.) Defendants assert that pursuant to that understanding, ICE has removed

20 eleven pre-1995 individuals to Vietnam since July 2017. (Dkt. 37-1 [Declaration of

21 Michael Bernacke, hereinafter “Bernacke Decl.”] ¶ 6; Dkt. 56-1 [Second Declaration of

22 Michael Bernacke, hereinafter “Bernacke Decl. II”] ¶ 6.)

23

24

On July 2, 2018, Defendants filed an ex parte application to sever Petitioners’

25 habeas and civil rights claims. (Dkt. 53.) The Court denied the application because both

26 of Petitioners’ claims “seek habeas relief, along with injunctive and declaratory relief.”

27 (Dkt. 54 at 4.) On July 20, 2018, Defendants filed the instant hybrid motion to dismiss

28 and habeas return. (Dkt. 56.) On August 28, 2018, Petitioners filed a motion for

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1 certification of its three putative classes under Federal Rule of Civil Procedure 23(b)(2). 2 (Dkt. 65.)

3
4 III. DISCUSSION

5

6

Defendants move to dismiss Petitioners’ claims as moot under Federal Rule of

7 Civil Procedure 12(b)(1) because the seven named Petitioners have been released from

8 custody. In the alternative, Defendants move to deny habeas relief on the merits and

9 dismiss the non-habeas claims for failure to state a claim under Rule 12(b)(6).

10 Defendants also argue that Petitioners’ claims with respect to the putative 90-Day Class

11 members are premature. The Court considers each argument in turn.

12

13

A. Mootness

14

15

Defendants first move to dismiss both of Petitioners’ claims as moot. (Mot. at 10.)

16 Defendants argue that this action does not involve a live case or controversy because the

17 seven named Petitioners have been released from detention, and no exception to

18 mootness applies. (Id. at 11.) Petitioners contend that their action continues to present a

19 live case or controversy despite Petitioners’ release. (Opp. at 7–10.) Petitioners also

20 argue that even if their habeas claims are moot, the “inherently transitory” exception to

21 mootness applies. The inherently transitory exception applies where a class

22 representative’s claims will likely expire before the court can certify a class and other

23 similarly situated individuals will continue to suffer the same injury. Pitts v. Terrible

24 Herbst, Inc., 653 F.3d 1081, 1090 (9th Cir. 2011). When a claim is inherently transitory,

25 certification of the class “relat[es] back” to the time the complaint was filed to “preserve

26 the merits of the case for judicial resolution.” County of Riverside v. McLaughlin, 500

27 U.S. 44, 52 (1991). Because the Court finds that Petitioners’ claims are not moot, it need

28 not address whether the inherently transitory exception to mootness applies.

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1

Mootness is properly raised in a Rule 12(b)(1) motion to dismiss. White v. Lee,

2 227 F.3d 1214, 1242 (9th Cir. 2000). For a court to have Article III standing to hear a

3 case, there must be an actual case or controversy. U.S. Const. art. III, § 2, cl. 1. The

4 plaintiff must allege a concrete injury in fact that is fairly traceable to the defendant’s

5 unlawful conduct and that is likely redressable by a favorable decision. Lujan v.

6 Defenders of Wildlife, 504 U.S. 555, 560 (1992). If circumstances arise such that issues

7 are no longer “live” or the parties no longer hold a “legally cognizable interest” in the

8 action, the court must dismiss the action as moot. Powell v. McCormack, 395 U.S. 486,

9 496 (1969). However, “a case is not moot if any effective relief may be granted,” and the

10 party asserting mootness “bears a heavy burden.” Karuk Tribe of Calif. v. U.S. Forest

11 Serv., 681 F.3d 1006, 1017 (9th Cir. 2012).

12

13

Petitioners’ claims continue to present a live controversy despite the named

14 Petitioners’ release from detention. A habeas petition continues to present a live

15 controversy after a petitioner’s release if there is “some remaining collateral consequence

16 that may be redressed by success on that petition.” Abdala v. Immigration &

17 Naturalization Serv., 488 F.3d 1061, 1064 (9th Cir. 2007), cert. denied (internal citations

18 and quotations omitted). Because Plaintiffs may be re-detained at any time, they retain a

19 live interest in habeas relief. See Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir.

20 2009) (ICE’s release of petitioner did not moot habeas petition where there was “no

21 meaningful substantive limit” on ICE’s ability to re-detain him); Clark v. Martinez, 543

22 U.S. 371, 376 n.3 (2005) (petitioner’s unlawful detention claim continued to involve a

23 “live case or controversy” because his release could be revoked in ICE’s discretion).

24

25

Defendants rely on Abdala v. INS for the assertion that “a habeas petition does not

26 continue to present a live controversy once the petitioner is released from custody.”

27 (Mot. 11.) However, Defendants overstate Abdala’s holding. In Abdala, the Ninth

28 Circuit held that the habeas petition challenging only the length of detention became

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1 moot when the petitioner was deported, not simply released in ICE’s discretion, because 2 the court could no longer provide any relief. Id. at 1065. The Ninth Circuit in Abdala 3 stated, however, that even “[d]eportation from the United States after filing a habeas 4 petition does not necessarily moot a petitioner’s claim.” Id. at 1063. In the other cases 5 that Defendants cite, the petitioners had been deported or had already received the relief 6 they sought. See Qalinle v. Donahue, 2016 WL 674939, at *2 (D. Ariz. Jan. 29, 2016) 7 (characterizing petitioner’s claim as moot because the relief he requested, an order of 8 supervision, could not be granted where petitioner was already released from custody); 9 Martinez-Reyes v. Burns, 2011 WL 1375293, at *2 (C.D. Cal. Mar. 18, 2011) (holding 10 that because petitioner’s removal to Mexico meant he was released from ICE custody, he 11 “received the only relief [the] Court might provide him” under his habeas petition). Here, 12 by contrast, Petitioners do not seek release from detention alone. Petitioners also seek 13 declaratory relief that their removal to Vietnam is not reasonably foreseeable and that 14 they are entitled to individualized bond hearings. The Court can still provide Petitioners 15 relief. Defendants have failed to meet their “heavy burden” of showing Petitioners’ 16 claims are moot. See Karuk Tribe of Calif., 681 F.3d at 1017.

17

18

B. Failure to State a Claim

19

20

Defendants next move to dismiss Petitioners’ claims for failure to state a claim

21 under Federal Rule of Civil Procedure 12(b)(6). (Mot. at 13.)3 A motion to dismiss

22 under Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint.

23 The issue on a motion to dismiss for failure to state a claim is not whether the claimant

24

25 3 Defendants filed a hybrid motion to dismiss and habeas return, seeking dismissal of the non-habeas

26

claims for failure to state a claim and denial of habeas relief on the merits. (Mot. at 1.) To the extent that Defendants ask the Court to sever Petitioners’ claims into their habeas and non-habeas components,

27 the Court has already declined to do so. (See Dkt. 54 [order denying Defendants’ ex parte application].) And for the Court to reach the merits of the habeas claims, an evidentiary hearing is required because

28 there is a factual dispute regarding whether Petitioners face a significant likelihood of removal in the

foreseeable future. Owino v. Napolitano, 575 F.3d 952, 956 (9th Cir. 2009).

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1 will ultimately prevail, but whether the claimant is entitled to offer evidence to support 2 the claims asserted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). 3 Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires only a short and plain 4 statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 5 8(a)(2). When evaluating a Rule 12(b)(6) motion, the district court must accept all 6 material allegations in the complaint as true and construe them in the light most favorable 7 to the non-moving party. Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994). The 8 district court may also consider additional facts in materials that the district court may 9 take judicial notice, Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994), as well as 10 “documents whose contents are alleged in a complaint and whose authenticity no party 11 questions, but which are not physically attached to the pleading,” Branch v. Tunnell, 14 12 F.3d 449, 454 (9th Cir. 1994), overruled in part on other grounds by Galbraith v. Cnty. of 13 Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

14

15

However, “the tenet that a court must accept as true all of the allegations contained

16 in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678

17 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (stating that while

18 a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

19 allegations, courts “are not bound to accept as true a legal conclusion couched as a factual

20 allegation” (citations and quotations omitted)). Dismissal of a complaint for failure to

21 state a claim is not proper where a plaintiff has alleged “enough facts to state a claim to

22 relief that is plausible on its face.” Twombly, 550 U.S. at 570.

23

24

1. Count One: Likelihood of Removal

25

26

In Count One, Petitioners assert that their post-removal order detention violates

27 federal immigration law and constitutional due process where their removal is not likely

28 to occur in the reasonably foreseeable future. (FAC ¶¶ 64–70.) Petitioners assert Count

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1 One on behalf of all three putative classes. Defendants argue that Count One does not 2 state a claim because Petitioners have failed to establish that pre-1995 Vietnamese 3 immigrants are not likely to be removed in the foreseeable future. (Mot. at 13–15.) 4 Defendants also argue that Count One as to the 90-Day Class is unripe. (Id. at 16–18).

5

6

Petitioners’ post-removal order detention is governed by federal immigration law,

7 8 U.S.C. § 1231. Section 1231 provides that after an alien is ordered removed, the

8 Government “shall remove the alien from the United States within a period of 90 days.”

9 Id. § 1231(a)(1)(A). During the 90-day removal period, the Government “shall detain the

10 alien.” Id. § 1231(a)(2). Once the 90-day removal period ends, the Government may

11 continue to detain certain aliens, such as Petitioners, whose criminal convictions render

12 them removable. Id. § 1231(a)(6). Section 1231(a)(6), however, does not authorize the

13 Government to detain an alien indefinitely. Zadvydas v. Davis, 533 U.S. 678, 688–702

14 (2001). Rather, the statute, “read in light of the Constitution’s demands, limits an alien’s

15 post-removal-period detention to a period reasonably necessary to bring about the alien’s

16 removal.” Id. at 689. In Zadvydas, the Supreme Court held that six months is a

17 “presumptively” reasonable period of detention. Id. at 701. If after six months, the

18 noncitizen provides “good reason to believe that there is no significant likelihood of

19 removal in the reasonably foreseeable future,” the Government must provide sufficient

20 evidence to rebut the noncitizen’s showing of indefinite detention. Id.

21

22

Petitioners argue that their removal is unlikely to occur in the reasonably

23 foreseeable future because the 2008 United States-Vietnam diplomatic agreement

24 “expressly excludes pre-1995 Vietnamese immigrants from repatriation.” (FAC ¶ 67.)

25 That agreement provides that “Vietnamese citizens are not subject to return to Vietnam

26 under this agreement if they arrived in the United States before July 12, 1995.” (Id. Ex.

27 A, Art. 2, ¶ 2.) Petitioners assert that ICE has had a longstanding practice of releasing

28 pre-1995 Vietnamese immigrants under removal orders on the basis of this agreement.

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1 (FAC ¶ 3.) Because these immigrants are “not subject to return to Vietnam,” Petitioners 2 contend that ICE has typically released them on orders of supervision. (Id.) Although 3 ICE has since departed from that practice and has begun subjecting pre-1995 Vietnamese 4 immigrants to longer post-removal order detention, (id. ¶ 4), Petitioners argue that 5 removal is still not reasonably foreseeable for two reasons. First, Petitioners argue that 6 the 2008 repatriation agreement is still in effect. Second, Petitioners argue that 7 Vietnam’s past practice of refusing these immigrants shows it will continue to refuse 8 repatriation of the “hundreds of pre-1995 Vietnamese [immigrants] whom ICE is 9 currently detaining or will likely detain under its current detention campaign.” (Id. ¶¶ 51, 10 54.)

11

12

Petitioners have alleged sufficient facts to state a claim for indefinite detention that

13 is “plausible on its face.” See Twombly, 550 U.S. at 570. Under Zadvydas, a noncitizen’s

14 detention under section 1231(a)(6) is limited to a “period reasonably necessary to bring

15 about that alien’s removal.” 533 U.S. at 689. Here, Petitioners allege that their detention

16 is unlawful because there is no likelihood of removal in the reasonably foreseeable future.

17 In support of this allegation, Petitioners allege that due to the 2008 repatriation agreement

18 still in effect, Vietnam has not accepted the great majority of pre-1995 immigrants. (FAC

19 ¶¶ 51, 54.) According to ICE’s estimates, 6,200 of the 7,700 Vietnamese immigrants

20 subject to final orders of removal in 2008 immigrated to the United States before 1995.

21 (Id. ¶ 44.) Although Petitioners acknowledge that a small number of pre-1995

22 Vietnamese immigrants have since been removed, that number pales in comparison to the

23 estimated 6,200 pre-1995 Vietnamese immigrants who are either in detention or face the

24 risk of future detention. (See id. ¶¶ 44, 52.) Named Petitioners Vu Ha and Hoang Trinh,

25 for instance, were both held in immigration detention for approximately 300 days, far

26 past the presumptively reasonable six-month period in Zadvydas. (See id. ¶¶ 11, 12.)

27
28 //

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1

Defendants nevertheless argue that Plaintiffs have failed to state a claim under

2 Count One because recent developments in United States-Vietnam relations indicate that

3 removal to Vietnam is no longer unlikely in the foreseeable future. Defendants assert

4 that the 2008 United States-Vietnam diplomatic agreement provides that citizens are not

5 subject to return to Vietnam under the terms of that agreement only. (Mot. at 14 [citing

6 FAC Ex. A, Art. 2, ¶ 2].) The United States may however, “under agreements or

7 understandings other than the 2008 amendment,” still remove pre-1995 Vietnamese

8 immigrants. (Mot. at 14.) Defendants assert that the United States and Vietnam reached

9 one such understanding in mid-2017, pursuant to which ICE has removed eleven pre-

10 1995 Vietnamese immigrants since July 2017. (Mot. at 14 [citing Bernacke Decl. ¶ 6;

11 Bernacke Decl. II ¶ 6].) For these assertions, Defendants rely on sworn affidavits by an

12 ICE official. (See Bernacke Decl. ¶ 1.)

13

14

On a motion to dismiss under Federal Rule 12(b)(6), however, the Court “may not

15 consider any material beyond the pleadings.” Friedman v. AARP, Inc., 855 F.4d 1047,

16 1051 (9th Cir. 2017). Defendants argue that the pleadings standards under Rule 12 are

17 “inconsistent with the standards and procedures” that the Supreme Court outlined in

18 Zadvydas. (Dkt. 62 [Reply] at 5.) Defendants claim that on a motion to dismiss a

19 Zadvydas claim, the Court should not accept the petitioner’s allegations as true and must

20 consider the defendant’s declarations and other evidence beyond the pleadings. (Id. at 6.)

21 The Court declines to adopt Defendants’ approach here. The Supreme Court in Zadvydas

22 established a burden-shifting framework by which Defendants have an opportunity to

23 rebut Petitioners’ showing. Defendants fail to cite any binding authority that interprets

24 Zadvydas as requiring this Court to eschew well-established pleading standards. Given

25 ICE’s allegedly longstanding practice of not removing pre-1995 Vietnamese immigrants

26 and the 2008 diplomatic agreement, Petitioners have stated a plausible claim for relief

27 under Count One.

28

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1

Defendants alternatively argue that Petitioners’ claim under Count One is

2 premature as to the putative 90-Day Class. (Mot. at 16–18.) Petitioners’ proposed 90-

3 Day Class consists of pre-1995 Vietnamese immigrants who have been detained for more

4 than 90 days after receiving a final order of removal. Defendants argue that post-removal

5 order noncitizens cannot bring a Zadvydas claim challenging their detention until they

6 have been detained for the presumptively reasonable six-month period. Until then,

7 Defendants argue, the 90-Day Class’ claim is unripe.

8

9

The issue of whether noncitizens can challenge their detention under section

10 1231(a)(6) before the six-month period passes appears to be an open question in the

11 Ninth Circuit. In Zadvydas, the Supreme Court held that section 1231(a)(6) “implicitly

12 limits an alien’s detention to a period reasonably necessary to bring about that alien’s

13 removal.” Id. at 689. Recognizing the “difficult judgments” that would be left to the

14 district court, the Supreme Court established a “presumptively reasonable period of

15 detention” of six months. Id. at 701. Once an individual has been detained for six

16 months, constitutional concerns presumptively arise, and the Supreme Court’s burden-

17 shifting framework serves as a “guide [for] lower court determinations.” Id. at 700–701.

18 The Supreme Court in Zadvydas did not explicitly preclude a noncitizen from challenging

19 his detention prior to the end of the presumptively reasonable six-month period.

20

21

Defendants argue that the Ninth Circuit’s holding in Khotesouvan v. Morones

22 “squarely” indicates that a Zadvydas claim is unripe before the six-month period. (Mot.

23 at 16.) In Khotesouvan, the Ninth Circuit considered Zadvydas claims by Vietnamese

24 and Laotian noncitizens who had been in post-removal order detention. 386 F.3d 1298,

25 1301 (9th Cir. 2004). At issue was whether the Government could continue to detain

26 post-removal order petitioners who had been in custody for less than 90 days, but whose

27 removal the Government conceded was not reasonably foreseeable. Id. at 1299. The

28

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1 Ninth Circuit held that the petitioners could not raise a due process claim challenging 2 their detention under Zadvydas “until at least 90 days of detention have passed.” Id.

3

4

Defendants have failed to show how Zadvydas or Khotesouvan close the door on

5 Petitioners’ claim as to the putative 90-Day Class. The six-month Zadvydas presumption

6 is “just that—a presumption.” Clark v. Martinez, 543 U.S. 371, 387 (2005) (O’Connor,

7 J., concurring). The Supreme Court in Zadvydas outlined a “guide” for approaching

8 these detention challenges, 533 U.S. at 700–701, not a prohibition on claims challenging

9 detention less than six months. Further, the petitioners in Khotesouvan were being

10 detained pursuant to a notably different provision of section 1231. In Khotesouvan, the

11 petitioners were still within the statutory 90-day removal period under section 1231(a)(2),

12 during which the Government “shall detain the alien.” See 8 U.S.C. § 1231(a)(2)

13 (emphasis added). The 90-Day Class proposed here consists of individuals detained for

14 more than 90 days pursuant to section 1231(a)(6), under which the Supreme Court found

15 the discretionary “may” language posed a risk of indefinite detention. Zadvydas, 533

16 U.S. at 697. In holding that a noncitizen could not challenge their detention “until at least

17 90 days of detention have passed,” the Ninth Circuit in Khotesouvan left open the 90-Day

18 Class Members’ claim challenging detention greater than 90 days. Petitioners have stated

19 a plausible claim for relief as to the 90-Day Class for the reasons already addressed in the

20 discussion of Count One above.

21

22

2. Count Two: Individualized Bond Hearing

23

24

In Count Two, Petitioners claim that even if removal is reasonably foreseeable,

25 detention for more than six months violates section 1231 and constitutional due process

26 where it is “without any individualized determination that [the noncitizens] pose a danger

27 or flight risk.” (Id. ¶¶ 72–75.) Petitioners assert this claim on behalf of the members of

28 the Prolonged Detention Class, i.e., all pre-1995 Vietnamese immigrants who have been

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1 or will be detained by ICE for more than 180 days without a bond hearing. Defendants 2 move to dismiss Count Two for failure to state a claim on the grounds that it is not 3 supported by statute and conflicts with Supreme Court authority. (Mot. at 18–23.)

4

5

Petitioners do not assert that the text of section 1231(a)(6) itself provides for

6 individualized bond hearings. Rather, Petitioners assert that noncitizens facing prolonged

7 detention under section 1231 are entitled to an individualized bond hearing based on

8 Ninth Circuit authority in Diouf v. Napolitano. In that case, the Ninth Circuit held that

9 prolonged detention under section 1231(a)(6) raises “serious constitutional concerns”

10 where it occurs “without adequate procedural protections.” 634 F.3d 1081, 1085–86 (9th

11 Cir. 2011) (quotation marks omitted). The court concluded that a noncitizen facing

12 prolonged detention under § 1231(a)(6) therefore “is entitled to a bond hearing before an

13 immigration judge.” Id. “[U]nless the government establishes that the alien poses a risk

14 of flight or a danger to the community,” the noncitizen is entitled to release from

15 detention. Id.

16

17

Defendants dispute the reach of the Ninth Circuit’s holding in Diouf and argue it

18 has been “effectively overruled by” and is “clearly irreconcilable” with Supreme Court

19 authority in Jennings v. Rodriquez. (Mot. at 20.) In Jennings, the Supreme Court held

20 that three pre-removal order detention statutes not at issue in this litigation—8 U.S.C. §§

21 1225(b), 1226(a), 1226(c)—cannot be construed to require bond hearings. 138 S. Ct.

22 830, 848–51 (2018). Defendants argue that in light of Jennings, the Ninth Circuit in

23 Diouf “did not plausibly interpret the statutory text” of section 1231(a)(6). (Mot. at 20.)

24 Defendants claim that because Diouf applied Ninth Circuit precedent that was overturned

25 in Jennings, Jennings and Diouf are irreconcilable. (Id. at 21.)

26

27

The outcome in Jennings does not foreclose Petitioners’ claim here. First, the

28 Supreme Court in Jennings expressly stated that section 1231(a)(6) “differs materially”

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1 from the three statutes at issue in that case. 138 S. Ct. at 833. Unlike the other detention 2 statutes, section 1231(a)(6) could plausibly be read to contain an “implicit time limit” and 3 employed discretionary language that justified application of the constitutional avoidance 4 doctrine. Id. at 843–44 (citing Zadvydas, 533 U.S. at 683). Further, at least nine district 5 courts in the Ninth Circuit have held that Diouf remains good law post-Jennings.4 This 6 Court can disregard Diouf only if it is “clearly irreconcilable” with Jennings—a “high 7 standard.” See United States v. Robertson, 875 F.3d 1281, 1291 (9th Cir. 2017). In light 8 of the Supreme Court’s express distinguishing of section 1231(a)(6) and the authority in 9 this Circuit to the contrary, Defendants have failed to meet that high standard here.

10

11

Petitioners also assert that they are entitled to bond hearings under the Due Process

12 Clause. (Opp. at 18.) Detention must be accompanied by “adequate procedural

13 protections” to ensure that the Government’s asserted interest “outweighs the individual’s

14 constitutionally protected interest in avoiding physical restraint.” Zadvydas, 633 U.S. at

15 690. Defendants argue that under Zadvydas, post-removal order detention does not raise

16 a due process violation until the petitioner shows he is not significantly likely to be

17 removed in the reasonably foreseeable future. (Opp. at 18.) Defendants argue that

18 because Petitioners have not made that showing here, their detention cannot raise a

19 constitutional problem under Zadvydas. (Id.) However, as noted, Petitioners have

20 alleged sufficient facts to state a claim that their removal is not reasonably foreseeable in

21 the future. Petitioners have alleged sufficient facts to state a claim for individualized

22 bond hearings under Count Two.

23

24

4 See Ramos v. Sessions, 2018 WL 1317276, at *3 (N.D. Cal. Mar. 13, 2018); Cortez v. Sessions, 2018

25 WL 1510187, at *8 (N.D. Cal. Mar. 27, 2018); Borjas-Calix v. Sessions, 2018 WL 1428154, at *15 (D.

26

Ariz. Mar. 22, 2018); Banos v. Asher, 2018 WL 1617706, at *1 (W.D. Wash. Apr. 4, 2018); Higareda v. Sessions, CV-18-00491-PHX-SPL (DKD) (D. Ariz. Apr. 5, 2018), Dkt. 20; Sied v. Nielsen, 2018 WL

27 1876907, at *5 (N.D. Cal. Apr. 19, 2018); Mercado-Guillen v. Nielsen, 2018 WL 1876916, at *3 (N.D. Cal. Apr. 19, 2018); Hurtado-Romero v. Sessions, 2018 WL 2234500, at *2 (N.D. Cal. May 16, 2018);

28 Gonzalez v. Sessions, 2018 WL 2688569, at *11 (N.D. Cal. June 5, 2018). Several of these cases are on

appeal to the Ninth Circuit.

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1

IV. CONCLUSION

2

3

For the foregoing reasons, Defendants’ hybrid motion to dismiss and habeas return

4 is DENIED.

5

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7
DATED: September 6, 2018
8
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9
CORMAC J. CARNEY
10
UNITED STATES DISTRICT JUDGE
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 Case 8:18-cv-00316-CJC-GJS Document 75 Filed 10/18/18 Page 1 of 20 Page ID #:939

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

12

HOANG TRINH, VU HA, LONG NGUYEN, NGOC HOANG, DAI DIEP,

) ) )

Case No.: SACV 18-00316-CJC(GJSx)

13 BAO DUONG, and SIEU NGUYEN, on )

14

behalf of themselves and those similarly situated,

) ) )

15

)

16

Petitioners,

) ORDER GRANTING IN PART AND ) DENYING IN PART PETITIONERS’

17

v.

) MOTION FOR CLASS ) CERTIFICATION

)

18

THOMAS D. HOMAN, KIRSTJEN M.

) )

19 NIELSEN, JEFFERSON B. SESSIONS )

20

III, DAVID MARIN, SANDRA HUTCHENS, and JOHN DOE,

) ) )

21

)

22

Defendants.

) )

)

23

24
I. INTRODUCTION
25

26

This putative class action challenges the Government’s practice of subjecting

27 Vietnamese immigrants to post-removal order detention despite the remote possibility of

28 their removal to Vietnam. (Dkt. 27 [First Amended Habeas Corpus Petition and Class

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1 Action Complaint, hereinafter “FAC”] ¶¶ 1–4.) The named Petitioners assert that they, 2 along with thousands of other Vietnamese refugees who immigrated to the United States 3 before July 12, 1995 (“pre-1995 Vietnamese immigrants”), have been or will be 4 subjected to this practice.

5

6

Petitioners bring two causes of action for habeas relief, declaratory relief, and

7 injunctive relief. (Id. ¶ 76.) In Count One, Petitioners assert that their post-removal

8 order detention violates federal immigration law, 8 U.S.C. § 1231, and constitutional due

9 process where removal is not likely to occur in the foreseeable future. (Id. ¶¶ 64–70.) In

10 Count Two, Petitioners assert that even where removal is reasonably foreseeable, their

11 prolonged detention violates section 1231 and constitutional due process when it is

12 “without any individualized determination that they pose a danger or flight risk.” (Id. ¶¶

13 72–75.)

14

15

Petitioners now seek to certify three putative classes of pre-1995 Vietnamese

16 immigrants who, like them, received removal orders, faced varying periods of

17 immigration detention, and either remain detained or face redetention by the

18 Government. (Dkt. 65 [Mot. for Class Cert., hereinafter “Mot.”].) Petitioners’ three

19 putative classes consist of (1) all pre-1995 Vietnamese immigrants who have been or will

20 be detained by ICE for more than 90 days after receiving removal orders (“90-Day

21 Class”), (2) all pre-1995 Vietnamese immigrants who have been or will be detained by

22 ICE for more than 180 days after receiving removal orders (“180-Day Class”), and (3) all

23 pre-1995 Vietnamese immigrants who have been or will be detained by ICE for more

24 than 180 days in total without a bond hearing (“Prolonged Detention Class”). (FAC ¶

25 59.) For the following reasons, Petitioners’ motion for class certification is GRANTED

26 IN PART and DENIED IN PART.

27
28 //

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1 II. BACKGROUND

2

3

After the Vietnam War, the North Vietnamese government established the current

4 Socialist Republic of Vietnam. (Dkt. 22-12 [Declaration of Tu-Huong Nguyen-Vo,

5 hereinafter “Nguyen-Vo Decl.”] ¶ 7.) Beginning in 1975, waves of Vietnamese refugees

6 fled persecution and imprisonment by the new socialist regime. (Id.) Under various

7 humanitarian programs, the United States accepted hundreds of thousands of these

8 refugees, including Petitioners. (Id. ¶ 13.)

9

10

Petitioners are Vietnamese citizens who immigrated to the United States prior to

11 July 12, 1995. (FAC ¶ 1.) They became lawful permanent residents years ago but, based

12 on criminal convictions, lost their green cards and were ordered removed. (Id. ¶ 2.)

13 After facing varying periods of post-removal order detention, they have been released

14 under orders of supervision that require them to regularly report to U.S. Immigration and

15 Customs Enforcement (“ICE”) offices. See 8 U.S.C. § 1231(a)(3); 8 C.F.R. § 241.5(a).

16 Many have gone on to live productive lives, supporting and caring for dependent family

17 members who are U.S. citizens. (See e.g., Dkt. 22-13 [Declaration of Ngoc Hoang,

18 hereinafter “N. Hoang Decl.”] ¶¶ 8, 15, 18; Dkt. 22-7 [Declaration of Long Nguyen,

19 hereinafter “L. Nguyen Decl.”] ¶ 3; Dkt. 65-3 [Declaration of Dai Diep, hereinafter “Diep

20 Decl.”] ¶ 16.)

21

22

Petitioners allege that until recently, the Government had a longstanding practice

23 of detaining pre-1995 Vietnamese immigrants subject to removal orders for no longer

24 than 90 days. (FAC ¶ 3.) This practice was purportedly implemented pursuant to a 2008

25 diplomatic agreement (“Agreement”) between the United States and Vietnam that

26 provides that “Vietnamese citizens are not subject to return to Vietnam under this

27 Agreement if they arrived in the United States before July 12, 1995.” (Id. ¶¶ 2, 36; id.

28

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1 Ex. A, Art. 2, ¶ 2.)1 Under Supreme Court authority in Zadvydas v. Davis, post-removal 2 order detention triggers constitutional due process concerns where the immigrant’s 3 removal is not significantly likely in the reasonably foreseeable future. 533 U.S. 678, 4 701 (2001). Petitioners allege that because the Agreement rendered pre-1995 Vietnamese 5 immigrants’ removal unlikely, the Government did not detain these individuals long 6 enough to implicate the protections in Zadvydas.

7

8

In 2017, however, the Government departed from this longstanding practice and

9 began subjecting pre-1995 Vietnamese immigrants to periods of detention exceeding 90

10 days. (FAC ¶ 4.) The Government initially contended that this shift in practices was the

11 result of a mid-2017 “understanding” with Vietnamese government officials. (Dkt. 56

12 [Defs.’ Mot. to Dismiss Pets.’ FAC] at 14.) Under that understanding, Vietnam had

13 begun to consider requests for travel documents for pre-1995 Vietnamese immigrants,

14 despite the 2008 Agreement. (Dkt. 56-1 [Second Declaration of Michael Bernacke,

15 hereinafter “Bernacke Decl. II.”] ¶ 2.) Accordingly, the Government claimed that

16 Petitioners could not show that their removal to Vietnam was not significantly likely in

17 the reasonably foreseeable future.

18

19

Now, months later, the Government reverses its position. The Government

20 contends that it has reached another new understanding with Vietnamese government

21 officials under which the removal of pre-1995 Vietnamese is not reasonably foreseeable,

22 consistent with Petitioners’ contention from the outset. (Dkt. 67 [Govt.’s Opp. to Pets.’

23 Mot. for Class Cert., hereinafter “Opp.”].) This second understanding purportedly

24 occurred the week of August 6—a month before the Court’s Order denying the

25 Government’s motion to dismiss. (Opp. at 1; see Dkt. 66.) However, the Government

26
27 1 The Agreement states it will be valid for five years and extended automatically for successive threeyear terms thereafter, unless written notice not to extend is given by either country. (FAC Ex. A, Art.
28 6.) The Petitioners allege and the Government does not contest that the Agreement has not been terminated or modified by either country. (FAC ¶ 35.)
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1 did not disclose this information until September 17, in its opposition to the instant 2 motion. Under this second understanding, the Government “no longer believes that 3 Vietnamese nationals who immigrated to the United States before July 12, 1995 . . . are 4 significantly likely to be removed to Vietnam in the reasonably foreseeable future.” (Id.) 5 Because removal to Vietnam is not reasonably foreseeable, the Government claims that it 6 has begun releasing all pre-1995 Vietnamese immigrants on orders of supervision. (Id.; 7 Dkt. 67-1 [Fourth Declaration of Michael Bernacke, hereinafter “Bernacke Decl. IV”] ¶ 8 2.)

9

10

Setting aside the dynamic state of United States-Vietnam immigration relations,

11 the Government’s data shows that Vietnam has consistently refused travel document

12 requests for pre-1995 Vietnamese immigrants. From February 22, 2018 to July 28, 2018,

13 ICE detained at least 105 pre-1995 Vietnamese immigrants for more than 90 days post-

14 removal order, 64 for more than 180 days post-removal order, and 116 for more than 180

15 days in total. (Dkt. 65-4 [Declaration of Jingni Zhao, hereinafter “Zhao Decl.”] ¶ 5; id.

16 Ex. A.) As of July 28, 2018, at least 55 pre-1995 Vietnamese immigrants were still in

17 custody. 30 of those immigrants had been detained for more than 90 days post-removal

18 order and 12 had been detained for more than 180 days post-removal order. (Id. ¶ 4; id.

19 Ex. A.) The Government submitted 86 travel document requests to Vietnam for these

20 individuals. All but one have been denied or remain unanswered. (Id. ¶ 7; id. Ex. B.)

21 The one pre-1995 Vietnamese immigrant who received a travel document received the

22 document approximately three months ago, yet is still in detention. (Id. Ex. C.) At the

23 hearing on October 15, 2018, the Government disclosed that 28 pre-1995 Vietnamese

24 immigrants are currently in detention, 4 of whom have been detained for more than 90

25 days post-removal order. Although many Petitioners have been released from custody,

26 the Government has explicitly reserved the right to redetain them. (Bernacke Decl. IV ¶

27 3.)

28

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1 III. ANALYSIS

2

3

Under Federal Rule of Civil Procedure 23, district courts have broad discretion to

4 determine whether a class should be certified. Armstrong v. Davis, 275 F.3d 849, 871

5 n.28 (9th Cir. 2001). Rule 23 is not merely a pleading standard—a party seeking class

6 certification must affirmatively demonstrate compliance with the Rule by proving the

7 requirements in fact. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Rule

8 23(a) provides that a case is appropriate for certification as a class action if: “(1) the class

9 is so numerous that joinder of all members is impracticable; (2) there are questions of law

10 or fact common to the class; (3) the claims or defenses of the representative parties are

11 typical of the claims or defenses of the class; and (4) the representative parties will fairly

12 and adequately protect the interests of the class.” These four requirements are often

13 referred to as numerosity, commonality, typicality, and adequacy. See Gen. Tel. Co. of

14 Sw. v. Falcon, 457 U.S. 147, 156 (1982).

15

16

Rule 23(b) defines different types of classes. Leyva v. Medline Indus. Inc., 716

17 F.3d 510, 512 (9th Cir. 2012). In this case, Petitioners seek certification pursuant to Rule

18 23(b)(2). (Mot. at 2.) Rule 23(b)(2) permits certification if “the party opposing the class

19 has acted or refused to act on grounds that apply generally to the class, so that final

20 injunctive relief or corresponding declaratory relief is appropriate respecting the class as

21 a whole.” Petitioners bear the burden of satisfying the elements of Rules 23(a) and

22 23(b)(2) for each of their three proposed classes. See Zinser v. Accufix Research Inst.,

23 Inc., 253 F.3d 1180, 1186 (9th Cir. 2001).

24

25

26

27

28 //

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1

A. Rule 23(a)

2

3

Under Rule 23(a), Petitioners must meet the four requirements of commonality,

4 typicality, numerosity, and adequacy. The Court considers each requirement in turn.

5

6

1. Commonality

7

8

Under Rule 23(a)(2)’s commonality requirement, there must be “questions of law

9 or fact common to the class.” Petitioners must “demonstrate that the class members

10 ‘have suffered the same injury,’” not “merely that they have all suffered a violation of the

11 same provision of law.” Wal-Mart Stores, 564 U.S. at 350 (quoting Gen. Tel. Co., 457

12 U.S. at 157). Petitioners’ claim must depend on a “common contention” that is “capable

13 of classwide resolution.” Id. This means “that determination of its truth or falsity will

14 resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.

15

16

Petitioners move to certify their putative 90-Day and 180-Day Classes as to Count

17 One. In Count One, Petitioners assert that their post-removal order detention violates

18 federal immigration law, 8 U.S.C. § 1231(a)(6), and constitutional due process where

19 their removal is not significantly likely to occur in the reasonably foreseeable future.

20 (FAC ¶¶ 64–70.) Section 1231 provides that after an alien is ordered removed, the

21 Government “shall remove the alien from the United States within a period of 90 days.”

22 8 U.S.C. § 1231(a)(1)(A). During the 90-day removal period, the Government “shall

23 detain the alien.” Id. § 1231(a)(2). Once the 90-day removal period ends, the

24 Government may continue to detain certain noncitizens, such as Petitioners, whose

25 criminal convictions render them removable. Id. § 1231(a)(6). Section 1231(a)(6) does

26 not, however, authorize the Government to detain a noncitizen indefinitely. Zadvydas,

27 533 U.S. at 688–702. Rather, the statute, “read in light of the Constitution’s demands,

28 limits an alien’s post-removal-period detention to a period reasonably necessary to bring

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1 about the alien’s removal.” Id. at 689. Recognizing the “difficult judgments” that would 2 be left to a district court, the Supreme Court held that six months is a “presumptively” 3 reasonable period of detention. Id. at 701. If after six months, the noncitizen provides 4 “good reason to believe that there is no significant likelihood of removal in the 5 reasonably foreseeable future,” the Government “must respond with evidence sufficient 6 to rebut that showing.” Id. If the Government fails to do so, it cannot subject the 7 noncitizen to continued detention. See id.

8

9

Petitioners’ 90-Day and 180-Day Class claims present common questions that will

10 “resolve an issue that is central to the validity of each one of the claims in one stroke.”

11 See Walmart Stores, 564 U.S. at 350. The resolution of Petitioners’ claim as to the 90-

12 Day Class presents at least one common question: whether the class members may bring

13 a Zadvydas claim after the 90-day removal period but before the presumptively

14 reasonable six-month period. (Mot. at 16.) Petitioners seek a uniform declaration that

15 the 90-Day Class has overcome Zadvydas’ “six-month presumption of reasonableness,”

16 shifting the burden to the Government to show that the putative members’ removal is

17 reasonably foreseeable. (Id. at 24; Dkt. 71 [Pets.’ Reply, hereinafter “Reply”] at 10.) As

18 this Court stated in denying the Government’s motion to dismiss, whether a noncitizen

19 can challenge post-removal order detention under Zadvydas prior to the six-month period

20 appears to be an open question in the Ninth Circuit. (Dkt. 66 at 14.) Answering that

21 question, among others, will determine whether Petitioners’ claim as to the putative 90-

22 Day Class can proceed.

23

24

Petitioners’ claim as to the 180-Day Class likewise presents at least one common

25 question: whether the 2008 Agreement and “Vietnam’s historical practice” of refusing

26 repatriation of pre-1995 Vietnamese immigrants allows Petitioners to satisfy their initial

27 burden under Zadvydas. (Mot. at 14–15.) If this question is answered in the affirmative,

28 the burden under Zadvydas would shift to the Government to provide evidence that the

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1 putative class members’ removal is reasonably foreseeable. See Zadvydas, 533 U.S. at 2 701. The fact that the Government now concedes that Vietnam will not accept pre-1995 3 Vietnamese immigrants does not render this question moot. Many of the pre-1995 4 Vietnamese immigrants remain in detention, and those already released can be redetained 5 at any time. Indeed, the Government has explicitly reserved its right to redetain these 6 individuals. (See Bernacke Decl. IV ¶ 3.)

7

8

Petitioners move to certify their putative Prolonged Detention Class as to Count

9 Two. In Count Two, Petitioners claim that even if their removal is reasonably

10 foreseeable, detention for more than six months violates section 1231 and constitutional

11 due process where it is “without any individualized determination that [the noncitizens]

12 pose a danger or flight risk.” (FAC ¶¶ 72–75.) Petitioners’ Prolonged Detention Class

13 includes individuals who have been or will be detained for more than 180 days in total,

14 “including days in detention both before and after a final removal order.” (Mot. at 8, 10.)

15 Accordingly, if a pre-1995 Vietnamese immigrant was detained for 180 days under 8

16 U.S.C. § 1226 (pre-removal order detention statute) and only one day under 8 U.S.C. §

17 1231 (post-removal order detention statute), the individual would fall into the proposed

18 class.

19

20

Petitioners assert that noncitizens facing prolonged detention under section 1231

21 are entitled to an individualized bond hearing based on Ninth Circuit authority in Diouf v.

22 Napolitano. In that case, the court held that prolonged detention under section 1231(a)(6)

23 raises “serious constitutional concerns” where it occurs “without adequate procedural

24 protections.” 634 F.3d 1081, 1085–86 (9th Cir. 2011) (quotation marks omitted). The

25 court concluded that a noncitizen facing prolonged detention under section 1231(a)(6)

26 therefore “is entitled to a bond hearing before an immigration judge.” Id. “[U]nless the

27 government establishes that the alien poses a risk of flight or a danger to the community,”

28 the noncitizen is entitled to release from detention. Id. In its motion to dismiss

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1 Petitioners’ FAC, the Government contended that Diouf was “effectively overruled by” 2 Jennings v. Rodriguez. (Dkt. 56 at 20.) In Jennings, the Supreme Court held that three 3 pre-removal order detention statutes cannot be construed to require bond hearings. 138 4 S. Ct. 830, 848–51 (2018). In light of Jennings, the Government argued, the Ninth 5 Circuit in Diouf did not “plausibly interpret the statutory text” of section 1231. (Dkt. 56 6 at 20.)

7

8

The Government claims that the differences between pre-removal order and post-

9 removal order detention statutes “preclude” a finding that common answers can drive the

10 resolution of the Prolonged Detention Class’s claim. (Opp. at 14.) The Court disagrees.

11 The Government’s argument goes to the merits of Petitioners’ claim under Count Two,

12 not to class certification. Regardless of which party is correct, whether Petitioners’

13 putative Prolonged Detention Class is entitled to a bond hearing presents a “common

14 contention” that is “capable of classwide resolution.” Wal-Mart Stores, 564 U.S. at 350.

15 Because common answers will drive the resolution of Petitioners’ class claims,

16 Petitioners’ three proposed classes satisfy the commonality requirement under Rule

17 23(a).

18

19

2. Typicality

20

21

Under Rule 23(a)(3), the named Petitioners’ claims or defenses must be “typical of

22 the claims or defenses of the class.” “The test of typicality ‘is whether other members

23 have the same or similar injury, whether the action is based on conduct which is not

24 unique to the named Petitioners, and whether other class members have been injured by

25 the same course of conduct.’” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th

26 Cir. 2011) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)).

27 Typicality aims to ensure that “the interest of the named representative aligns with the

28 interests of the class.” Hanon, 976 F.2d at 508. “Under the rule’s permissive standards,

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1 representative claims are ‘typical’ if they are reasonably coextensive with those of absent 2 class members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150 3 F.3d 1011, 1020 (9th Cir. 1998).

4

5

The named Petitioners face a similar injury based on the same course of conduct—

6 the Government’s detention policies regarding pre-1995 Vietnamese immigrants.

7 Petitioner Hoang Trinh (“Trinh”) seeks to represent the 180-Day Class and Prolonged

8 Detention Class. (Mot. at 17.) Trinh entered the United States with his family as a four-

9 year-old refugee in 1980. (FAC ¶ 11; Dkt. 22-9 [Declaration of Hoang Trinh, hereinafter

10 “Trinh Decl.”] ¶¶ 2–3.) He worked in his family’s bakery while growing up and now

11 runs a Vietnamese sandwich shop with his wife. (FAC ¶ 11; see Trinh Decl. ¶ 8; Mot. at

12 17.) Trinh’s wife, two children, parents, and six sisters are all U.S. citizens. (FAC ¶ 11.)

13 He was ordered removed following incarceration for alleged possession of a marijuana

14 plant. (Id.) Trinh was detained for more than 180 days following entry of a removal

15 order without a bond hearing. (Trinh Decl. ¶¶ 9, 11, 14; Dkt. 24-1 [Declaration of

16 Michael Bernacke, hereinafter “Bernacke Decl. I”] ¶ 2.)

17

18

Petitioner Vu Ha (“Ha”) seeks to represent the 90-Day Class and the Prolonged

19 Detention Class. (Mot. at 18.) Ha escaped Vietnam at the age of nine and entered the

20 United States as a ten-year-old refugee in 1990. (FAC ¶ 12; Dkt. 22-16 [Declaration of

21 Vu Ha, hereinafter “Ha Decl.”] ¶ 3.) His parents, sister, and daughter are U.S. citizens.

22 (FAC ¶ 12; Ha Decl. ¶ 4.) He was arrested three times as a young adult between 2000

23 and 2005, once being for robbery. (FAC ¶ 12.) In 2017, he was arrested and detained for

24 failure to pay a citation for driving without a license. (Id.) He was transported from

25 county jail to ICE custody in May 2017 and was ordered removed on September 19,

26 2017. (Id.) He was detained for more than 90 days following entry of his removal order

27 and for more than 180 days in total without a bond hearing. (Ha Decl. ¶¶ 12, 18;

28 Bernacke Decl. I ¶ 2.)

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1

Petitioner Long Nguyen (“Nguyen”) seeks to represent the 90-Day Class. (Mot. at

2 18.) Nguyen entered the United States as an eleven-year-old refugee in 1987. (FAC ¶

3 13.) His wife, three step-daughters, and two-year-old daughter are all U.S. citizens. (L.

4 Nguyen Decl. ¶ 9.) He and his wife work at a nail salon that his wife manages. (FAC ¶

5 13.) In 2006, he was convicted of a nonviolent felony drug offense. (Id.) In 2010 or

6 2011, he was detained after traveling abroad and ordered removed on April 18, 2012.

7 (Id.) He was detained for more than 90 days after entry of his removal order. (L.

8 Nguyen Decl. ¶¶ 12, 16; Bernacke Decl. I ¶ 2.)

9

10

Petitioner Ngoc Hoang (“Hoang”) seeks to represent the 90-Day Class. (Mot. at

11 18.) Hoang entered the United States at age sixteen in 1990, after his father was jailed in

12 a reeducation camp for having served in the South Vietnamese military. (FAC ¶ 14; N.

13 Hoang Decl. ¶¶ 3, 5.) Hoang was married to a U.S. citizen with whom he has four

14 children, all under the age of eighteen. (FAC ¶ 14.) Hoang now works as a nail salon

15 technician. (Id.) In 1994, he pled guilty to check fraud and in 2010, he was placed on

16 probation for simple assault and simple battery. (Id.) He was ordered removed on

17 December 12, 2012 and released on an order of supervision approximately two months

18 later. (Id.) Over the next five years, Hoang complied with the requirements of that order.

19 (Id.) But on November 6, 2017, he was unexpectedly re-arrested by ICE officers at his

20 home. (Id.) Hoang was detained for more than 90 days after entry of his final removal

21 order. (N. Hoang Decl. ¶¶ 12, 16; Bernacke Decl. I ¶ 2.)

22

23

Petitioner Sieu Nguyen (“Sieu”) seeks to represent the 90-Day Class and the

24 Prolonged Detention Class. (Mot. at 18–19.) Sieu entered the United States at age three

25 in 1989. (FAC ¶ 15; Dkt. 65-2 [Declaration of Sieu Nguyen, hereinafter Sieu Decl.] ¶ 2.)

26 His parents and seven siblings are all U.S. citizens. (Sieu Decl. ¶ 3.) Sieu was convicted

27 of robbery in 2007 and burglary and receipt of stolen property in 2010. (Id.) He was

28

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1 ordered removed on December 19, 2017, and detained for more than 180 days without a 2 bond hearing. (Id. ¶¶ 7, 10; Bernacke Decl. II ¶ 7.)

3

4

Petitioner Dai Dep (“Diep”) seeks to represent the 180-Day Class and Prolonged

5 Detention Class. (Mot. at 19.) Diep entered the United States as a refugee in 1995.

6 (Diep Decl. ¶ 2.) His mother, stepfather, and half-siblings are all U.S. citizens, as is his

7 biological father, who worked for the U.S. Department of Defense during the Vietnam

8 War. (Id. ¶ 9.) In November 2015, he pled guilty to second-degree robbery, second-

9 degree burglary, and vandalism, for which he was sentenced to two years of

10 imprisonment. (FAC ¶ 17.) He was ordered removed on October 26, 2017, (id.), and

11 was detained for more than 180 days without a bond hearing, (Diep Decl. ¶¶ 13, 15;

12 Bernacke Decl. II ¶ 7).

13

14

The Government disputes Petitioners’ ability to satisfy the typicality requirement,

15 but it offers no arguments on the issue. (See Opp. at 6.) Here, the named Petitioners

16 were subjected to post-removal order detention for varying periods of time, despite the

17 remote possibility of their removal to Vietnam. They now seek uniform relief from

18 further detention. The named Petitioners’ interests thus “align[] with the interests of the

19 class.” See Hanon, 976 F.2d at 508. Petitioners have satisfied their burden of showing

20 typicality under 23(a)(3).

21

22

3. Numerosity & Adequacy

23

24

The Government’s moving papers do not contest that Petitioners’ three putative

25 classes are sufficiently numerous and that the named Petitioners will serve as

26 adequate representatives.2 In any event, Petitioners satisfy both requirements here.

27
28 2 See Opp. at 6 n.2 [“Respondents acknowledge that several thousand pre-1995 aliens live in the United States. Respondents thus concede that the proposed classes satisfy the numerosity
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1 Under Rule 23(a)(1), Petitioners must show that the “class is so numerous that joinder

2 of all members is impracticable.” According to the Government, in the five months

3 after this action was filed, ICE detained at least 105 pre-1995 Vietnamese immigrants

4 for more than 90 days post-removal order, 64 for more than 180 days post-removal

5 order, and 116 for more than 180 days in total. (Zhao Decl. ¶ 5, Ex. A.) While the

6 size of Petitioners’ putative classes fluctuates, the numbers identified reflect a large

7 pool of individuals who have been or will be impacted by the Government’s 8 detention practices. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1202–03 (N.D. Cal. 9 2017) (finding numerosity satisfied based on 15 identified class members and the 10 likelihood of future members). Further, other factors make joinder of the putative class 11 members impracticable. These individuals are geographically dispersed and face 12 restricted access to legal resources and high poverty rates. Petitioners have met their 13 burden of showing that the putative classes are sufficiently numerous under Rule 14 23(a)(1).3

15

16

Petitioners have also shown that the named Petitioners “will fairly and adequately

17 represent the interests of the class.” Fed. R. Civ. P. 23(a)(4). Adequacy of representation

18 requires that the named Petitioners (1) have no interests antagonistic to the interests of the

19 class and (2) are represented by counsel that is capable of vigorously prosecuting their

20 interests. In re Cathode Ray Tube (CRT) Antitrust Litig., 308 F.R.D. 606, 618 (N.D. Cal.

21

22 requirement. Respondents also do not contest that, if the Court certified a class, Petitioners’

23

attorneys would fairly and adequately represent the class’s interests.”]. 3 The Government argued for the first time at the hearing on October 15, 2018 that Petitioners could not

24 satisfy the numerosity requirement. According to the Government’s new data, only 28 pre-1995

Vietnamese immigrants are currently in detention, 4 of whom have been detained beyond the mandatory

25 90-day removal period. Because the Government is releasing pre-1995 Vietnamese immigrants, it

26

argues, Petitioners’ proposed classes are no longer sufficiently numerous. This argument, however, ignores the parameters of Petitioners’ proposed classes. Petitioners seek to certify classes of individuals

27 who have been or will be detained by ICE for more than 90 days where removal is not reasonably foreseeable. Petitioners’ classes, by their nature, are subject to fluctuation and potentially include

28 individuals not currently in detention. Although the Government has suddenly decided to release pre-

1995 Vietnamese immigrants, it continues to explicitly reserve its right to redetain Petitioners.

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1 2015). Here, Petitioners satisfy both requirements. There are no conflicts between the 2 interests of the named Petitioners and those of the putative class members. Named 3 Petitioners share with the putative class members an interest in minimizing detention and 4 protecting their due process rights. The named Petitioners have also retained counsel 5 who are well qualified in immigrant rights and class-action litigation. (See Dkts. 22-2 6 [Declaration of Raymond Cardozo], 22-10 [Declaration of Phi Nguyen], 22-11 7 [Declaration of Jingni Zhao].) There is no indication that Petitioners’ counsel will not 8 continue to vigorously protect Petitioners’ interests. Petitioners’ three putative classes 9 satisfy the four requirements under Rule 23(a).

10

11

B. Rule 23(b)(2)

12

13

Petitioners seek certification pursuant to Rule 23(b)(2). Under Rule 23(b)(2),

14 Petitioners must show that “the party opposing the class has acted or refused to act on

15 grounds that apply generally to the class, so that final injunctive relief or corresponding

16 declaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(2) “applies

17 only when a single injunction or declaratory judgment would provide relief to each

18 member of the class.” Wal-Mart Stores, 564 U.S. at 360. “The rule does not require [the

19 Court] to examine the viability or bases of class members’ claims for declaratory and

20 injunctive relief, but only to look at whether class members seek uniform relief from a

21 practice applicable to all of them.” Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir.

22 2010). The Court considers each putative class in turn.

23

24

The putative 90-Day Class members have faced uniform conduct capable of

25 uniform relief. First, they have been subjected to the same allegedly unlawful conduct:

26 post-removal order detention for more than 90 days where removal to Vietnam is not

27 significantly likely in the reasonably foreseeable future. Further, they seek a uniform

28 remedy. Petitioners seek declaratory relief stating that (1) the Class can challenge its

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1 detention under Zadvydas before the presumptively reasonable six-month period, and (2) 2 that the Class has shown its removal is not significantly likely in the foreseeable future, 3 shifting the burden to the Government to demonstrate that removal is reasonably 4 foreseeable. (Mot. at 23–24.)

5

6

The Government does not dispute that Petitioners’ proposed declaratory relief

7 would provide relief to each member of the putative 90-Day Class. Rather, they contend

8 that if this Court granted that relief, it would contradict the holding in Zadvydas.

9 Zadvydas, the Government argues, “requires an alien to make an initial showing, based

10 on current facts and circumstances, of ‘good reason to believe’ that his removal is not

11 reasonably foreseeable.” (Opp. at 13 [emphasis in original].) By issuing a classwide

12 declaration regarding the foreseeability of pre-1995 immigrants’ removal under

13 Zadvydas, the Government contends that the Court would issue an improper “classwide,

14 per se predetermination that pre-1995 [Vietnamese immigrants] cannot be removed.”

15 (Id. at 10.)

16

17

The Government mischaracterizes Petitioners’ proposed declaratory relief.

18 Petitioners do not seek a “per se predetermination” that all pre-1995 Vietnamese

19 immigrants cannot be removed. Petitioners seek an order declaring that the removal of

20 pre-1995 Vietnamese immigrants is not reasonably foreseeable based on the facts

21 currently before the Court. If the Court declares that the current circumstances indicate

22 “good reason to believe” that pre-1995 Vietnamese immigrants’ removal is not

23 significantly likely in the reasonably foreseeable future, the Government would have the

24 opportunity to rebut that showing under Zadvydas. In any event, the Government fails to

25 identify any individualized criteria that would definitively make removal more or less

26 foreseeable for a pre-1995 Vietnamese immigrant. To date, they have addressed the

27 putative class members’ likelihood of removal on a groupwide basis. Initially they

28 argued that classwide relief was inappropriate because pre-1995 Vietnamese immigrants

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1 could be removed under a new verbal understanding with Vietnam. Now they claim 2 classwide relief is inappropriate because pre-1995 Vietnamese immigrants definitively 3 cannot be removed under another new understanding. Whether or not Petitioners will 4 ultimately prevail on the merits, the adjudication of their request would provide or deny 5 “uniform relief from a practice applicable to all of” the putative 90-Day Class members. 6 See Rodriguez, 591 F.3d at 1125. The Court grants certification of the 90-Day Class as to 7 the isolated issues of whether the Class has overcome the six-month presumption of 8 reasonableness and met its burden under Zadvydas. See Fed. R. Civ. P. 23(c)(4) (“When 9 appropriate, an action may be brought or maintained as a class action with respect to 10 particular issues.”)

11

12

On behalf of the 180-Day Class, Petitioners seek injunctive relief, or in the

13 alternative, declaratory relief. Petitioners’ proposed injunctive relief enjoins the

14 Government from detaining pre-1995 Vietnamese immigrants for more than 180 days

15 “absent proof that Vietnam has agreed to repatriate” them. (Mot. at 8, 21; Reply at 4, 7.)

16 In the alternative, Petitioners ask this Court to declare that the 180-Day Class members,

17 like the 90-Day Class members, have met their initial burden under Zadvydas by showing

18 that their removal is not significantly likely in the reasonably foreseeable future. (Mot. at

19 23.)

20

21

Petitioners’ proposed injunctive relief contradicts Zadvydas and intrudes on

22 legislative and executive branch authority. Under Zadvydas, Petitioners can challenge

23 their detention where they show their removal is not significantly likely in the reasonably

24 foreseeable future. Petitioners’ injunctive relief, however, asks this Court to prevent the

25 Government from detaining pre-1995 Vietnamese immigrants unless the Government

26 makes an evidentiary showing that Vietnam has agreed to repatriate them. The Supreme

27 Court in Zadvydas did not imbue the courts with such expansive authority to interfere

28 with the Government’s ability to effectuate federal immigration law. Indeed, the

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1 Supreme Court explicitly counseled against such an intrusion. See Zadvydas, 533 U.S. at 2 659 (recognizing that the “Judicial Branch must defer to Executive and Legislative 3 Branch decisionmaking” in immigration law); id. at 700 (stating that a court’s review in 4 these cases “must take appropriate account of the greater immigration-related expertise of 5 the Executive Branch”). The Supreme Court was careful to acknowledge that the courts 6 have no authority to “deny the right of Congress to remove aliens, to subject them to 7 supervision with conditions when released from detention, or to incarcerate them where 8 appropriate for violations of those conditions.” Id. at 659. The Supreme Court simply 9 addressed the issue of “whether aliens that the Government finds itself unable to remove 10 are to be condemned to an indefinite term of imprisonment within the United States.” Id. 11 Under Zadvydas, Petitioners may challenge that “indefinite . . . imprisonment” once it 12 occurs.

13

14

In the alternative, Petitioners seek declaratory relief that mirrors the relief sought

15 on behalf of the 90-Day Class. Specifically, they ask this Court to declare that the 180-

16 Day Class members have met their burden under Zadvydas to show “good reason to

17 believe that there is no significant likelihood of removal in the reasonably foreseeable

18 future.” 533 U.S. at 701. Unlike Petitioners’ proposed injunctive relief, this declaratory

19 relief can be issued on a classwide basis without categorically preventing the Government

20 from redetaining pre-1995 Vietnamese immigrants.4 At 180 days of post-removal order

21 detention, the Government could continue detaining a pre-1995 Vietnamese immigrant if

22 Vietnam issued a travel document or otherwise agreed to repatriation. Petitioners have

23 met their burden of showing that the putative 180-Day Class members have faced

24 uniform conduct addressable by uniform declaratory relief under Rule 23(b)(2).

25

26

4 The Government contends that Supreme Court authority in Jama v. ICE counsels against imposing “improper restriction[s] on the Government’s authority to remove post-order aliens.” (Opp. at 10 [citing

27 Jama v. ICE, 543 U.S. 335, 344 (2005)].) However, that case was not about the Government’s detention authority. The issue was whether ICE was authorized to remove noncitizens to Somalia, which lacked a

28 functioning government to provide advance consent. Here, Petitioners’ proposed relief does not

interfere with noncitizens’ removal. It concerns prolonged detention where their removal is unlikely.

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1

The Government contends that declaratory relief, without injunctive relief, is

2 meaningless. At the hearing, counsel for the Government argued that because any

3 declaratory relief stating that the class members’ removal is not reasonably foreseeable

4 under Zadvydas would be limited to the facts and circumstances currently before the

5 Court, that relief would not have any weight if the circumstances affecting their removal

6 change. Although declaratory relief on behalf of the 90-Day and 180-Day Classes would

7 be limited in its reach, it is not without teeth. Declaratory relief stating that the class

8 members have met their initial burden under Zadvydas would allow them to challenge

9 more easily on an individual or perhaps collective basis the constitutionality of further

10 detention when Vietnam continues to refuse their repatriation. The Court recognizes that

11 it cannot interfere with the Government’s authority to detain individuals pursuant to

12 federal immigration law, but it can and must intervene where detention deprives

13 individuals of their constitutional rights. Although the Government now has conceded

14 that class members’ removal to Vietnam is not likely in the reasonably foreseeable future,

15 the Government has not conceded that it violated these individuals’ constitutional rights

16 when it detained them with the knowledge that they could not and would not be removed

17 to Vietnam. And more importantly, many of the class members still remain in detention,

18 and the Government has explicitly reserved its right to redetain all of those it has recently

19 released. Contrary to the Government’s assertion, the proposed declaratory relief is not

20 meaningless.

21

22

Finally, Petitioners have also shown that the putative Prolonged Detention Class

23 members have faced uniform conduct capable of uniform relief. On behalf of the

24 Prolonged Detention Class, Petitioners seek individualized bond hearings for pre-1995

25 Vietnamese immigrants who have been or will be detained for more than 180 days in

26 total. The putative class members have been subjected to a uniform practice: detention

27 for more than 180 days in total without a bond hearing. The requested relief—bond

28 hearings—would “provide relief to each member of the class.” See Wal-Mart Stores, 564

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Case 8:18-cv-00316-CJC-GJS Document 75 Filed 10/18/18 Page 20 of 20 Page ID #:958

1 U.S. at 360. Courts in this Circuit have routinely employed Rule 23(b)(2) to certify 2 claims involving the Government’s blanket refusal to conduct bond hearings. See, e.g., 3 Preap v. Johnson, 303 F.R.D. 566, 571 (N.D. Cal. 2014) (holding that “the class action 4 mechanism easily and efficiently establishes the right of all class members to a bond 5 hearing”); Riviera v. Holder, 307 F.R.D. 539, 551 (W.D. Wash. 2015); Hernandez v. 6 Lynch, 2016 WL 7116611, at *19 (C.D. Cal. Nov. 10, 2016), aff’d sub nom. Hernandez v. 7 Sessions, 872 F.3d 976 (9th Cir. 2017). Whether Petitioners’ 180-Day Class is entitled to 8 individualized bond hearings here is a question for the merits. Petitioners have satisfied 9 their burden of showing that the putative Prolonged Detention Class is appropriate for 10 certification under Rule 23(b)(2).

11
12 IV. CONCLUSION

13

14

For the foregoing reasons, Petitioners’ motion for class certification is GRANTED

15 IN PART and DENIED IN PART. The Court hereby designates Petitioners’ counsel as

16 class counsel and appoints the named Petitioners as class representatives.

17

18

19
DATED: October 18, 2018
20
__________________________________
21
CORMAC J. CARNEY
22
UNITED STATES DISTRICT JUDGE
23

24

25

26

27

28

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 Case 8:18-cv-00316-CJC-GJS Document 40 Filed 05/23/18 Page 1 of 3 Page ID #:482

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

)

12

) Case No.: SACV 18-00316-CJC(GJSx)

)

13 HOANG TRINH, VU HA, LONG 14 NGUYEN, NGOC HOANG, DAI

) ) )

DIEP, BAO DUONG, and SIEU

)

15 16

NGUYEN, on behalf of themselves and all of those similarly situated,

) ORDER DENYING WITHOUT ) PREJUDICE PETITIONERS’ ) MOTION FOR A PRELIMINARY

) INJUNCTION AND FOR

17
Petitioners,

) PROVISIONAL CLASS ) CERTIFICATION

18
v.

) )

19

)

20

THOMAS D. HOMAN, KIRSTJEN M.

) )

NIELSEN, JEFFERSON B. SESSIONS )

21 III, DAVID MARIN, SANDRA 22 HUTCHENS, and DOE 1,

) ) )

)

23

)

Defendants.

)

24

)

)

25

26
27 // 28 //

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Case 8:18-cv-00316-CJC-GJS Document 40 Filed 05/23/18 Page 2 of 3 Page ID #:483

1

Before the Court is Petitioners’ motion for a preliminary injunction and for

2 provisional class certification. (Dkt. 22.) For the following reasons, the motion is

3 DENIED WITHOUT PREJUDICE.1

4

5

Petitioners are citizens of Vietnam who immigrated to the United States before

6 1995. Petitioners are subject to orders of removal to Vietnam based on criminal

7 convictions, and were recently placed in immigration detention pursuant to those removal

8 orders. On February 22, 2018, four named Petitioners, Hoang Trinh, Vu Ha, Long

9 Nguyen, and Ngoc Hoang, initiated this habeas class action petition. (Dkt. 1.)

10 Petitioners alleged that their continued detention was unlawful because Vietnamese

11 nationals who immigrated before 1995 are protected from removal proceedings under an

12 agreement between the United States and Vietnam. (See generally id.)

13

14

On April 25, 2018, Petitioners filed their motion for a preliminary injunction and

15 for provisional class certification. (Dkt. 22.) On April 30, 2018, Respondents filed a

16 motion to dismiss. (Dkt. 24.) Respondents explained that all four Petitioners named in

17 the habeas petition have since been released from immigration detention, so their claims

18 were moot. (Id.) In response, Petitioners filed a First Amended Habeas Petition and

19 Complaint on May 11, 2018. (Dkt. 27.) In their amended pleading, Petitioners allege

20 that the original four named Petitioners have been released from detention. (Id. ¶¶ 11–

21 14.) But the amended pleading adds three named Petitioners, Sieu Nguyen, Dai Diep,

22 and Boa Duong, who are currently in detention. (Id. ¶¶ 15–17.)

23
24 // 25 //

26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 28 for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set
for June 11, 2018, at 1:30 p.m. is hereby vacated and off calendar.
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Case 8:18-cv-00316-CJC-GJS Document 40 Filed 05/23/18 Page 3 of 3 Page ID #:484

1

On May 14, 2018, Respondents withdrew their motion to dismiss in light of

2 Petitioners’ amended petition. (Dkt. 28.) Respondents now contend that Petitioners’

3 motion for a preliminary injunction and provisional class certification should be denied

4 because it is based on the original habeas petition. (Dkt. 37 at 10–12.) The Court agrees

5 with Respondents.

6

7

In order to warrant a grant of injunctive relief, Petitioners must show a relationship

8 between “the injury claimed in the motion for injunctive relief and the conduct asserted in

9 the underlying complaint.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810

10 F.3d 631, 636 (9th Cir. 2015). Petitioners’ motion is based on conduct and claims

11 asserted in their original petition with respect to the original four named Petitioners and

12 their continued detention. But Petitioners have since amended their petition indicating

13 that the original four Petitioners have been released from custody. Petitioners’ motion is

14 therefore based on claims that no longer have legal effect. Doe v. Unocal Corp., 27 F.

15 Supp. 2d 1174, 1180 (C.D. Cal. 1998), aff’d and adopted, 248 F.3d 915 (9th Cir. 2001)

16 (“It is hornbook law that an amended pleading supersedes the original, the latter being

17 treated thereafter as non-existent. Once amended, the original no longer performs any

18 function as a pleading.”) (citations and quotations omitted). Without a nexus between

19 operative claims and the injury claimed in a motion for injunctive relief, the Court may

20 not grant the requested injunctive relief. Pac. Radiation Oncology, LLC, 810 F.3d at 636.

21

22

23

DATED: May 23, 2018

24

25

26

__________________________________ CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

27

28

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 Case 8:18-cv-00316-CJC-GJS Document 27 Filed 05/11/18 Page 1 of 26 Page ID #:383

REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1 PHI U. NGUYEN (GA BAR NO. 578019) (Admitted Pro Hac Vice)
2 ASIAN AMERICANS ADVANCING JUSTICE – ATLANTA
3 5680 Oakbrook Parkway, Suite 148 Norcross, Georgia 30093
4 Telephone: (770) 818-6147 Fax: (404) 890-5690
5 Email: pnguyen@advancingjustice-atlanta.org

6 Additional Counsel Listed On Next Page

7 Attorneys for Petitioners

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION – RONALD REAGAN FEDERAL BUILDING

11 HOANG TRINH, VU HA, LONG

12

NGUYEN, NGOC HOANG, DAI DIEP, BAO DUONG, and SIEU

13

NGUYEN, on behalf of themselves and all of those similarly situated,

14

Petitioners,

15

v.

16

THOMAS D. HOMAN, Deputy Director and Senior Official Performing

17

Duties of the Director, United States Immigration and Customs Enforcement;

18

KIRSTJEN M. NIELSEN, Secretary, United States Department of Homeland

19

Security; JEFFERSON B. SESSIONS III, United States Attorney General;

20

DAVID MARIN, Field Office Director, Los Angeles Field Office, United States

21

Immigration and Customs Enforcement; SANDRA HUTCHENS, Sheriff,

22

Orange County, Calif.; and DOE 1, Warden, Adelanto ICE Processing

23 Center,

Respondents.

24

Case No. 8:18-cv-316-CJC-GJS FIRST AMENDED HABEAS CORPUS CLASS ACTION PETITION AND CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

25

26

27

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Case No. 8:18-cv-316

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REED SMITH LLP
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1 LABONI HOQ (SBN 224140) CHRISTOPHER LAPINIG (SBN 802525)
2 ASIAN AMERICANS ADVANCING JUSTICE – LA 1145 Wilshire Blvd., 2nd Floor
3 Los Angeles, CA 90017 Telephone: (213) 977-7500
4 Fax: (213) 977-7595 Email: lhoq@advancingjustice-la.org
5 Email: clapinig@advancingjustice-la.org

6 JINGNI (JENNY) ZHAO (SBN 284684)

7

ANOOP PRASAD (SBN 250681) KEVIN CHUN HOI LO (SBN 278908)

8

MELANIE CHUN-YU KIM (SBN 292588) WINIFRED KAO (SBN 241473)

9

ASIAN AMERICANS ADVANCING JUSTICE – ASIAN LAW CAUCUS

10

55 Columbus Avenue San Francisco, CA 94111

11

Telephone: (415) 896-1701 Fax: (415)896-1702

12 Email: jennyz@advancingjustice-alc.org

13

TUAN V. UONG (SBN 272447) FARAH TABIBKHOEI (SBN 266312)

14

CHRISTOPHER M. BUTLER (SBN 318219) PATIL T. DERDERIAN (SBN 316549)

15

REED SMITH, LLP 355 South Grand Avenue, Suite 2800

16

Telephone: (213) 457-8000 Fax: (213) 457-8080

17

Email: tuong@reedsmith.com Email: ftabibkhoei@reedsmith.com

18

Email: cbutler@reedsmith.com Email: pderderian@reedsmith.com

19 JESSE A. DAVIS III (GA BAR NO. 140978)

20

(Admitted Pro Hac Vice) DAVIS ADAMS, LLC

21

317 W. Hill St., Suite 201 Decatur, Georgia 30030

22

Telephone: (404) 373-8466 Fax: (404) 373-8455

23 Email: jess.davis@davis-adams.com

24

25

26

27

28

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REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

INTRODUCTION

2

1. This class action habeas petition and complaint for declaratory and

3 injunctive relief is brought on behalf of Petitioners, who fled war-torn Vietnam, were 4 accepted by the United States as refugees before July 12, 1995 and have resided in

5 the United States since they were young children or teenagers. As a result of abrupt

6 and unlawful actions by Respondents, Petitioners currently face unwarranted and 7 indefinite immigration detention.

8

2. Petitioners became lawful permanent residents of this country many

9 years ago but, based on criminal convictions, lost their green cards and were ordered 10 removed from the United States. Although Petitioners have final orders of removal,

11 they cannot be repatriated under the existing repatriation agreement between the

12 United States and Vietnam. See Agreement Between the Government of the United 13 States and the Government of the Socialist Republic of Vietnam on the Acceptance 14 of the Return of Vietnamese Citizens.1 The agreement does not allow for the

15 repatriation of Vietnamese immigrants who came to the United States before July 12, 16 1995 (“pre-1995 Vietnamese immigrants”), a population that is largely comprised of

17 refugees who fled Vietnam after the war to escape persecution under the new

18 communist regime.

19

3. United States Immigration and Customs Enforcement (“ICE”) has had a

20 longstanding practice of releasing pre-1995 Vietnamese immigrants with final orders

21 of removal due to legal constraints on their detention authority. Recognizing that pre22 1995 Vietnamese immigrants are “not subject to return to Vietnam” under the

23 repatriation agreement, ICE has typically released these immigrants on orders of

24 supervision within 90 days of their removal orders becoming final. The repatriation

25

26 1 This agreement can be found on the U.S. Department of State’s website. See
27 Attachment A (Agreement Concerning the Acceptance of the Return of Vietnamese Citizens, U.S.- NAM., Jan. 22, 2008, 08 – 43, https://www.state.gov/documents/
28 organization/108921.pdf).

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1 agreement has thus given thousands of pre-1995 Vietnamese immigrants the

2 opportunity to return to their families and communities to rebuild their lives.

3

4. In 2017, ICE abruptly departed from past enforcement practices

4 pertaining to pre-1995 Vietnamese immigrants with final orders of removal. ICE

5 began subjecting pre-1995 Vietnamese immigrants to much longer periods of post-

6 removal order detention, in some cases as long as eleven months. ICE also began re-

7 detaining without notice pre-1995 Vietnamese immigrants all across the United

8 States who had been living peaceably in their communities on orders of supervision

9 for years or decades.

10

5. ICE’s enforcement tactics have sown fear in Vietnamese refugee

11 communities around the country. Immigrants from other countries that have also

12 historically refused to accept immigrants for repatriation, including Cambodia,

13 Somalia, and Iraq, are similarly experiencing indiscriminate ICE arrests, which are

14 the subjects of pending legal actions as well. See, e.g., Nak Kim Chhoeun v. David

15 Marin, United States District Court, Central District of California, Case No. 8:17-cv-

16 01898-CJC (GJSx).

17 6. When this action was filed on February 22, 2018, Petitioners’ counsel

18 were aware of approximately 40 pre-1995 Vietnamese immigrants with final orders

19 of removal across the country who were beyond 90 days of post-removal order

20 detention. The total number of similarly situated individuals was likely much larger.

21 Since then, Petitioners’ counsel have learned of additional pre-1995 Vietnamese

22 immigrants who have reached 90 days of post-removal order detention. On

23 information and belief, ICE intends to continue to detain pre-1995 Vietnamese

24 immigrants with final orders of removal. The number of Vietnamese with final

25 orders of removal who are at risk of future detention is between 8,000 and 10,000.

26 Based on ICE estimates from 2008, an overwhelming percentage of these individuals

27 arrived in the United States before July 12, 1995.

28

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1

7. ICE has undertaken its detention campaign without any evidence that

2 Vietnam will accept pre-1995 Vietnamese immigrants that have been or will be

3 detained. The repatriation agreement has not been rescinded or modified by either

4 country. Given Vietnam’s longstanding policy of categorically denying repatriation

5 to pre-1995 Vietnamese immigrants, memorialized in the existing and valid

6 repatriation agreement, detention of Petitioners without an individualized and

7 specific showing that Vietnam actually intends to accept them is unlawful.

8 8. Additionally, ICE has kept pre-1995 Vietnamese immigrants in

9 detention past 180 days without providing them any meaningful custody review to

10 determine whether continued detention is warranted because they pose a danger or

11 flight risk. ICE cannot lawfully hold Petitioners in prolonged detention absent an

12 individualized showing of danger or flight risk before a neutral decision maker.

13

JURISDICTION

14 9. This Court has subject matter jurisdiction under 28 U.S.C. § 2241

15 (habeas corpus), the Suspension Clause of Article I of the United States Constitution,

16 28 U.S.C. § 1331 (federal question), and 28 U.S.C. § 1361 (mandamus). The Court

17 may also grant relief under 28 U.S.C. §§ 2201-02 (Declaratory Judgment Act) and

18 28 U.S.C. § 1651 (All Writs Act).

19

VENUE

20 10. Venue is proper in the Central District of California under 28 U.S.C. §

21 1391(e) because Respondents are federal officers sued in their official capacity;

22 Respondents Marin and Hutchens are based in this district; Petitioners Hoang Trinh,

23 Vu Ha, and Dai Diep and numerous class members reside in this district; Petitioners

24 Dai Diep, Bao Duong, and Sieu Nguyen and numerous class members are currently

25 detained in this district; Petitioners Hoang Trinh and Vu Ha were previously

26 detained in this district; and a substantial part of the events or omissions giving rise

27 to these claims occurred in this district. Venue is also proper under 28 U.S.C. §§

28

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1 2241 et seq., as Respondents exercise control over Petitioners. Armentero v. INS, 340

2 F.3d 1058, 1069-70 (9th Cir. 2003), withdrawn on reh’g, 382 F.3d 1153 (9th Cir.

3 2004) (explaining why “practicality, efficiency, and the interests of justice” demand

4 relaxation of immediate custodian rule in habeas challenges to immigration

5 detention); see also Roman v. Ashcroft, 340 F.3d 314, 319 (6th Cir. 2003)

6 (recognizing that while ICE Field Office Director is generally the proper respondent

7 for immigration habeas petitioners, higher level ICE officials may be proper

8 respondents in extraordinary circumstances); Vasquez v. Reno, 233 F.3d 688, 696

9 (1st Cir. 2000).

10

PARTIES

11 11. Petitioner Hoang Trinh is a 41-year-old resident of Orange County,

12 California who legally entered the United States from Vietnam as a four-year-old

13 refugee in 1980. He subsequently adjusted his status to become a lawful permanent

14 resident. His parents, now married for more than 50 years, raised a large Catholic

15 family—Hoang and his six sisters—that centered around helping build a thriving

16 family business: a neighborhood bakery. Hoang later married and now has two

17 children, an 18-year-old daughter who attends California State University, Long

18 Beach, and a 13-year-old son. Hoang’s wife, two children, parents, and six sisters are

19 all United States citizens. Hoang has no remaining family in Vietnam. In early 2015,

20 Hoang was arrested on a drug charge, for which he served one year in prison. After

21 allegedly being found in possession of a marijuana plant in 2017, Hoang was

22 incarcerated in Orange County before being transferred to ICE custody in June 2017.

23 He was ordered removed from the United States on July 27, 2017 and remained

24 incarcerated at the Theo Lacy Facility in Orange County until April 16, 2018, when

25 he was released on an order of supervision. During this time, he was never afforded a

26 bond hearing before an immigration judge to determine whether his prolonged

27

28

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1 detention was justified. He was also never interviewed by the Vietnamese

2 government regarding repatriation to Vietnam.

3

12. Petitioner Vu Ha is a 37-year-old resident of Orange County, California

4 who legally entered the United States from Vietnam as a 10-year-old refugee in

5 1990. He became a lawful permanent resident shortly after his arrival to the United

6 States. His parents are United States citizens, as are his sister and his 18-year-old

7 daughter. An artist and avid runner, Vu has primarily worked at the nail salon his

8 mother owns. He was arrested three times as a young adult between the years 2000

9 and 2005, with the most serious offense being robbery. In 2017, Vu was arrested and

10 detained for failing to pay a citation for driving without a license. He was then

11 transported from a county jail to ICE custody in May 2017. He was ordered removed

12 from the United States on September 19, 2017 and remained incarcerated at the

13 Adelanto ICE Processing Center in Adelanto, California until April 13, 2018, when

14 he was released on an order of supervision. Vu has never been interviewed by the

15 Vietnamese government regarding repatriation to Vietnam. While detained, Vu was

16 never afforded a bond hearing before an immigration judge to determine whether his

17 prolonged detention was justified.

18

13. Petitioner Long Nguyen is 41-year-old resident of Charleston, South

19 Carolina, who legally entered the United States as an eleven-year-old refugee in

20 1987. He became a lawful permanent resident the following year. He is now married

21 to a United States citizen and has a two-year-old daughter and three stepdaughters

22 who are all United States citizens. His parents also reside in the United States as

23 lawful permanent residents. The Nguyen family is active in their local Catholic

24 church, and Long and his wife have worked together for many years at a nail salon

25 his wife manages. Long’s only felony offense involved a nonviolent drug charge in

26 Kansas in 2006. In 2011 or 2012, ICE detained Long upon his reentry to the United

27 States after traveling abroad. He was ordered to be removed from the United States

28

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1 on April 18, 2012 but was released on an order of supervision after Vietnam would

2 not accept his deportation. Even though he reliably reported to ICE for years under

3 his order of supervision, Long was suddenly pulled over on his way to work and re-

4 detained by ICE officers on October 19, 2017. He was held at the Stewart Detention

5 Center in Lumpkin, Georgia until March 23, 2018, when he was released on an order

6 of supervision.

7

14. Petitioner Ngoc Hoang is a 44-year-old resident of Gwinnett County,

8 Georgia who legally entered the United States in 1990 as a refugee. Both of his

9 parents and his only sibling are United States citizens. Ngoc was married to a United

10 States citizen with whom he has four children, ages 16, 14, 13 and 11, all of whom

11 are United States citizens. Ngoc works as a nail salon technician, helping to provide

12 for his four children, as well as his current partner and her young son. He has no

13 family remaining in Vietnam. In 1994, Ngoc pleaded guilty to check fraud in

14 Washington, and in 2010, he was placed on probation in Georgia for simple assault

15 and simple battery. He was ordered removed from the United States on

16 December 12, 2012 and released on an order of supervision approximately two

17 months later. Over the next almost five years, Ngoc consistently complied with the

18 requirements of his order of supervision. On the morning of November 6, 2017,

19 Ngoc was suddenly re-arrested by ICE officers at his home. He was held at the

20 Stewart Detention Center in Lumpkin, Georgia and the Irwin County Detention

21 Center in Ocilla, Georgia in ICE custody until April 23, 2018, when he was released

22 on an order of supervision. Ngoc has never been interviewed by the Vietnamese

23 government regarding repatriation to Vietnam.

24

15. Petitioner Sieu Nguyen is a 32-year-old resident of Sacramento,

25 California. He, his parents, and his four older brothers escaped Vietnam by boat

26 when Sieu was three years old. They were accepted to the United States as refugees

27 in September 1989, and Sieu became a lawful permanent resident shortly thereafter.

28

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1 The rest of Sieu’s family—his parents, his four older brothers, and his three younger

2 siblings—are all United States citizens. Sieu was convicted of robbery in 2007 and

3 burglary and receipt of stolen property in 2010. After serving time in prison, Sieu

4 was transferred to Adelanto ICE Processing Center in Adelanto, California on

5 November 21, 2017 for the initiation of removal proceedings. Sieu was ordered

6 removed to Vietnam on December 19, 2017 and remains detained in Adelanto. He

7 has never been interviewed by the Vietnamese government regarding repatriation to

8 Vietnam.

9

16. Petitioner Dai Diep is a 46-year-old resident of Santa Ana, California,

10 who legally entered the United States as a refugee in May 1995. He became a lawful

11 permanent resident the following year. Dai came to the United States with his

12 mother, stepfather, and two half-siblings, all of whom are now U.S. citizens living in

13 the United States. In November 2015, he pleaded guilty to second-degree robbery,

14 second-degree burglary, and vandalism and was sentenced to a total of two years of

15 imprisonment. In April 2017, he was released on parole from state prison and

16 transferred to ICE custody. He was ordered removed from the United States on

17 October 26, 2017, and he remains incarcerated at the Adelanto ICE Processing

18 Center in Adelanto, California. Dai has never been interviewed by the Vietnamese

19 government regarding repatriation to Vietnam.

20 17. Petitioner Bao Duong is a 42-year-old resident of San Diego, California,

21 who legally entered the United States as a refugee in 1980 and became a lawful

22 permanent resident the same year. His mother and father are also lawful permanent

23 residents, and his three sisters, two of whom were born in the United States, are U.S.

24 citizens. In 2013, Bao was convicted on robbery charges that resulted in him being

25 imprisoned for three years. He was paroled from prison in June 2016. In September

26 2017, Bao was arrested for allegedly being in possession of marijuana and was

27 transferred to ICE custody after posting bail. He was ordered removed from the

28

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1 United States on November 14, 2017 and has remained incarcerated at the Adelanto

2 ICE Processing Center in Adelanto, California since then. The Vietnamese

3 government has not interviewed Bao regarding repatriation to Vietnam. Bao has not

4 been afforded a bond hearing before an immigration judge to determine whether his

5 prolonged detention is justified.

6

18. Respondent Thomas D. Homan is the Deputy Director and Senior

7 Official Performing Duties of the Director of ICE. As the head of ICE, an agency

8 within the United States Department of Homeland Security that detains and removes

9 noncitizens, Respondent Homan is a legal custodian of Petitioners and all class

10 members. Respondent Homan is an appropriate respondent for this habeas action

11 because, on information and belief, decisions regarding the detention of pre-1995

12 Vietnamese immigrants are being made at ICE Headquarters and because Petitioners

13 and class members are often transferred between different regions of the country.

14 19. Respondent Kirstjen M. Nielsen is the Secretary of the United States

15 Department of Homeland Security. She is responsible for the implementation and

16 enforcement of the immigration laws and oversees ICE. Respondent Nielsen has

17 ultimate custodial authority over Petitioners and all class members.

18

20. Respondent Jefferson B. Sessions III is the Attorney General of the

19 United States. As the head of the United States Department of Justice, which

20 oversees the immigration courts, Respondent Sessions shares responsibility for

21 enforcement of the immigration laws with Respondents Kirstjen M. Nielsen and

22 Thomas D. Homan.

23 21. Respondent David Marin is the Field Office Director for ICE’s Los

24 Angeles, California, Field Office, which has detention authority over noncitizens in

25 ICE custody at Adelanto ICE Processing Center in Adelanto, California and Theo

26 Lacy Facility in Orange, California.

27

28

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1

22. Respondent Sandra Hutchens is the Sheriff of Orange County,

2 California, which holds a contract with ICE to detain noncitizens. Respondent

3 Hutchens is responsible for the operation of the Theo Lacy Facility in Orange,

4 California, where Petitioner Hoang Trinh was detained.

5 23. Respondent Doe 1 is the warden at the Adelanto ICE Processing Center,

6 a private detention facility owned by The GEO Group, Inc., which holds a contract

7 with ICE to detain noncitizens. Respondent Doe 1 is responsible for the operation of

8 the Adelanto ICE Processing Center in Adelanto, California, where Petitioners Dai

9 Diep, Bao Duong, and Sieu Nguyen are detained and where Petitioner Vu Ha was

10 detained. On information and belief, the identity of the warden is not public

11 information, and therefore, Petitioners intend to name this Respondent at a later time.

12

24. All Respondents are sued in their official capacity.

13 LEGAL BACKGROUND

14 Detention
15

16

25. Following a final order of removal, ICE is directed by statute to detain

17 an individual for 90 days in order to effectuate removal. 8 U.S.C. § 1231(a)(2). This

18 90-day period, also known as “the removal period,” generally commences as soon as

19 a removal order becomes administratively final. Id. § 1231(a)(1)(A), §

20 1231(a)(1)(B).

21

26. If ICE fails to remove an individual during the 90-day removal period,

22 the law requires ICE to release the individual under conditions of supervision,

23 including periodic reporting. Id. § 1231(a)(3) (“If the alien . . . is not removed within

24 the removal period, the alien, pending removal, shall be subject to

25 supervision.”). Limited exceptions to this rule exist. Specifically, ICE “may” detain

26 an individual beyond 90 days if the individual was ordered removed on criminal

27 grounds or is determined to pose a danger or flight risk. Id. § 1231(a)(6). However,

28 ICE’s authority to detain an individual beyond the removal period under such

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1 circumstances is not boundless. Rather, it is constrained by the constitutional

2 requirement that detention “bear a reasonable relationship to the purpose for which

3 the individual [was] committed.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001)

4 (citations omitted). Because the principal purpose of the post-final-order detention

5 statute is to effectuate removal, detention bears no reasonable relation to its purpose

6 if removal cannot be effectuated. Id. at 697.

7

27. The United States Supreme Court has accordingly construed Section

8 1231(a)(6) as authorizing post-final order detention only for a “period reasonably

9 necessary to secure removal,” a period that the Court determined to be presumptively

10 six months. Id. at 699-701. After this six month period, if a detainee provides “good

11 reason” to believe that his or her removal is not significantly likely in the reasonably

12 foreseeable future, “the Government must respond with evidence sufficient to rebut

13 that showing.” Id. at 701. If the government cannot do so, the individual must be

14 released.

15

28. However, detainees are entitled to release even before six months of

16 detention, as long as removal is not reasonably foreseeable. See 8 C.F.R. §

17 241.13(b)(1) (authorizing release after 90 days where removal not reasonably

18 foreseeable). Moreover, as the period of post-final-order detention grows, what

19 counts as “reasonably foreseeable” must conversely shrink. Zadvydas, 533 U.S. at

20 701.

21

29. Even where detention meets the Zadvydas standard for reasonable

22 foreseeability, detention violates the Due Process Clause unless it is “reasonably

23 related” to the government’s purpose, which is to prevent danger or flight risk. See

24 Zadvydas, 533 U.S. at 700 (“[I]f removal is reasonably foreseeable, the habeas court

25 should consider the risk of the alien’s committing further crimes as a factor

26 potentially justifying confinement within that reasonable removal period”) (emphasis

27 added); id. at 699 (purpose of detention is “assuring the alien’s presence at the

28

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1 moment of removal”); id. at 690-91 (discussing twin justifications of detention as

2 preventing flight and protecting the community). Thus, due process requires a

3 meaningful determination that Petitioners pose a danger or flight risk that would

4 warrant post-final-order detention, regardless of whether their removal can be

5 effectuated within a reasonable period of time.

6

30. The government’s own regulations contemplate this requirement. They

7 dictate that even after ICE determines that removal is reasonably foreseeable—and

8 that detention therefore does not per se exceed statutory authority—the government

9 must still determine whether continued detention is warranted based on flight risk or

10 danger. See 8 C.F.R. § 241.13(g)(2) (providing that where removal is reasonably

11 foreseeable, “detention will continue to be governed under the established standards”

12 in 8 C.F.R. § 241.4).

13

31. The regulations, at 8 C.F.R. § 241.4, set forth the custody review

14 process that existed even before the Supreme Court’s decision in Zadvydas. This

15 mandated process, known as the post-order custody review, requires ICE to conduct

16 “90-day custody reviews” prior to expiration of the 90-day removal period and to

17 consider release of individuals who pose no danger or flight risk, 8 C.F.R. §

18 241.4(e)-(f). Among the factors to be considered in these custody reviews are “ties to

19 the United States such as the number of close relatives residing here lawfully”;

20 whether the noncitizen “is a significant flight risk”; and “any other information that

21 is probative of whether” the noncitizen is likely to “adjust to life in a community,”

22 “engage in future acts of violence,” “engage in future criminal activity,” pose a

23 danger to themselves or others, or “violate the conditions of his or her release from

24 immigration custody pending removal from the United States.” Id.

25

32. Individuals with final orders who are released after a post-order custody

26 review are subject to orders of supervision. 8 C.F.R. § 241.4(j). After an individual

27

28

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1 has been released on an order of supervision, ICE cannot revoke such an order 2
without cause or adequate legal process. 3

4

FACTS

5

Vietnam’s Repatriation Agreement with the United States

6

33. In 2008, after ten years of negotiation, Vietnam and the United States

7 executed a repatriation agreement to govern the repatriation of certain Vietnamese

8 immigrants with final orders of removal to Vietnam. Before this agreement was

9 negotiated, Vietnam refused to repatriate the overwhelming majority of Vietnamese

10 immigrants ordered removed from the United States.

11

34. Vietnam and the United States stipulated that the repatriation agreement

12 would be valid for five years from the date of its execution and then automatically 13 extended for successive three-year terms thereafter absent at least six months written 14 notice of an intent to terminate from one government to the other. See Agreement,

15 Article 6, Entry into Force and Duration.

16

35. Upon information and belief, the repatriation agreement has not been

17 terminated or modified by either Vietnam or the United States.

18

36. The repatriation agreement does not permit the repatriation of

19 Vietnamese immigrants who came to the United States before July 12, 1995. It

20 expressly stipulates that “Vietnamese citizens are not subject to return to Vietnam

21 under this Agreement if they arrived in the United States before July 12, 1995.” See 22 Agreement, Article 2: Removable Persons and Conditions of Acceptance. The 23 categorical exemption of pre-1995 Vietnamese immigrants from repatriation reflects

24 humanitarian considerations related to the United States’ role in the Vietnam War, 25 the subsequent resettlement of Vietnamese refugees in America, and the continuing 26 tension between the Vietnamese government and the Vietnamese refugees who were

27 forced to flee their homes to avoid profound hardship and persecution after the war.

28

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1

37. The end of the Vietnam War caused hundreds of thousands of South

2 Vietnamese refugees to flee to the United States by boat or by air to escape political

3 persecution and death. Other Vietnamese immigrants who resettled in America

4 before July 12, 1995 were accepted to the United States to reunite with their loved

5 ones or for other humanitarian reasons. The Vietnamese refugees who fled to the

6 United States in the 20 years following the Vietnam War included those with close

7 ties to the United States military or South Vietnamese government who feared for

8 their lives under the new communist government and the hundreds of thousands of

9 “Boat People” who poured out of Vietnam in rickety, wooden boats, desperate to

10 escape communist re-education camps and other forms of political persecution.

11 38. Abandoned children of American soldiers and Vietnamese women—

12 known as “Amerasians” and pejoratively referred to as the “dust of life” in

13 Vietnam—were also among the waves of Vietnamese immigrants who resettled in

14 the United States before July 12, 1995. In addition to growing up fatherless,

15 Amerasians were roundly shunned by Vietnamese society for being mixed race and

16 born out of wedlock and in many cases rejected by their own mothers. These

17 punishing circumstances set Amerasians on a trajectory of homelessness and abject

18 poverty. With physical features that betrayed them as the children of American

19 soldiers, Amerasians became even more vulnerable to mistreatment after communist

20 takeover of Vietnam in 1975, as they carried the faces of those who had fought

21 against the North Vietnamese. After 1975, many were imprisoned in labor or

22 reeducation camps. Recognizing the extreme persecution faced by Amerasians and

23 acknowledging its responsibility towards these half-American children, the United

24 States in the 1980s enacted laws that gave thousands of Vietnamese Amerasians the

25 opportunity to leave behind a country that never accepted them in order start anew in

26 the homeland of their fathers.

27

28

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1

39. These early Vietnamese refugees to America lacked resources—formal

2 education, English-language proficiency, a supportive ethnic community, or mental

3 health services to help cope with war-related trauma—to ease their transition to an

4 unfamiliar country. In addition, ad hoc resettlement practices dispersed these

5 refugees, often pushing them into economically deteriorating, high-crime

6 neighborhoods with under-resourced schools. While many Vietnamese refugees beat

7 the odds stacked against them to pursue higher education, start successful small

8 businesses, and build families in their new homeland, some were convicted of crimes

9 that resulted in orders of removal.

10

40. Vietnam’s longstanding practice of refusing repatriation has for years

11 protected pre-1995 Vietnamese immigrants from being removed to the country they

12 fled to escape starvation, violence, and death. The exclusion of pre-1995 Vietnamese

13 immigrants from the repatriation agreement is central to maintaining human rights

14 protections for this population. According to the U.S. Department of State’s 2016

15 Human Rights Report on Vietnam, the most significant human rights problems in

16 Vietnam are severe government restrictions of citizens’ political rights.2 Most pre-

17 1995 Vietnamese immigrants are ex-citizens of South Vietnam, a country that ceased

18 to exist after North Vietnam prevailed in the war in April 1975, leaving hundreds of

19 thousands of South Vietnamese stateless. Many of those who were not immediately

20 evacuated from Vietnam were incarcerated for months or years in re-education

21 prisons, where they endured political indoctrination and forced physical labor

22 because of their perceived threat and lack of loyalty to the new communist

23 government.

24

41. The repatriation agreement has also profoundly impacted the way pre-

25 1995 Vietnamese immigrants have handled their removal proceedings. Many of

26

27 2 U.S. Dep’t of State, Vietnam 2016 Human Rights Report, https://www.state.gov/ documents/organization/265598.pdf.
28

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1 these immigrants, who faced the possibility of years in detention while litigating

2 their removal cases at great financial cost which most could not afford, chose instead

3 to forego the pursuit of meritorious defenses based on the reasonable expectation that

4 they would not be deported to Vietnam.

5 42. Although the repatriation agreement officially opened the door for

6 repatriation of Vietnamese immigrants who arrived to the United States on or after

7 July 12, 1995, Vietnam continues to accept only a very limited number of persons

8 for repatriation each year and still regularly refuses to issue travel documents. Based

9 on publicly available information from ICE and from the Executive Office for

10 Immigration Review, from 2008 to 2016, Vietnam only accepted an average of 13

11 percent of individuals ordered removed to Vietnam each year. On information and

12 belief, a negligible percentage of the removals to Vietnam have been removals of

13 pre-1995 Vietnamese immigrants, consistent with the repatriation agreement.

14 43. Because of the exclusion of pre-1995 immigrants from the repatriation

15 agreement and the overall lack of cooperation from the Vietnamese government, the

16 United States government has been unable to carry out most orders of removal to

17 Vietnam. Consequently, ICE has for years routinely released pre-1995 Vietnamese

18 immigrants with final orders of removal from immigration custody upon or even

19 before expiration of the 90-day removal period. Thousands of Vietnamese returned

20 to their families, their jobs, and their communities and built productive, peaceful

21 lives following completion of their removal proceedings.

22

44. Currently, between 8,000 and 10,000 Vietnamese Americans are living

23 in the United States with final orders of removal. According to ICE estimates, 6,200

24 of the 7,700 Vietnamese who had final orders of removal in 2008 came to the United

25 States before 1995, indicating that the vast majority of the 8,000 to 10,000

26 Vietnamese with final orders of removal today are pre-1995 Vietnamese immigrants.

27

28

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1

Unlawful Detention in Violation of the Repatriation Agreement

2 45. Signed in January 2017, Executive Order 13768 announced a massive

3 expansion of immigration enforcement. Exec. Order No. 13,768, 82 Fed. Reg. 8799

4 (Jan. 25, 2017), The order identified “recalcitrant” countries that refuse repatriation

5 as a problem area and directed the Secretary of Homeland Security and the Secretary

6 of State to implement sanctions on these countries. Id. § 12.

7

46. ICE soon after began conducting widespread arrests of immigrants from

8 “recalcitrant” countries, including Iraq, Cambodia, and Somalia, without requisite

9 evidence that these countries would repatriate the individuals arrested, often

10 followed by prolonged detention without due consideration to whether detention was

11 necessary to effectuate their removal. Immigrants from these countries filed class

12 action lawsuits around the country challenging ICE’s unlawful denial of due process

13 to their communities.

14 47. ICE likewise aggressively stepped up enforcement against the

15 Vietnamese community in 2017. It ended its practice of releasing pre-1995

16 Vietnamese immigrants from detention promptly following their orders of removal.

17 Instead, deportation officers began holding pre-1995 Vietnamese immigrants for

18 longer than 90 days, and often longer than 180 days, citing a directive from ICE

19 Headquarters.

20 48. In March 2017, ICE also began re-arresting pre-1995 Vietnamese

21 immigrants with final orders of removal whom it had previously released. Many

22 were transported to Krome Detention Center in Miami, Florida to be interviewed by

23 the Vietnamese Consulate between March 20 and 31, 2017.

24

49. On September 21, 2017, the United States submitted 95 cases of

25 Vietnamese immigrants with final orders of removal to the Vietnamese government

26 to consider for repatriation.

27

28

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1

50. In October 2017, ICE again carried out mass arrests of Vietnamese

2 immigrants with final orders of removal who had returned to their communities on

3 orders of supervision—including pre-1995 Vietnamese immigrants. Arrests occurred

4 in several states across the country, including Georgia, Pennsylvania, Texas,

5 Colorado, and California. Many of the individuals arrested were transported to

6 Stewart Detention Center in Lumpkin, Georgia to be interviewed by the Vietnamese

7 Consulate between the end of October and beginning of November, 2017.

8 Afterwards, they were transported to various detention centers for continued

9 detention.

10

51. In defense of ICE’s abrupt change in policy and violation of the

11 repatriation agreement, the United States government claims that Vietnam is now

12 “willing to consider” repatriation of Vietnamese who came to the United States

13 before July 12, 1995. However, the government has not substantiated this claim with

14 any official document memorializing Vietnam’s alleged change in policy, and the

15 repatriation agreement remains in effect. Further, the Vietnamese government’s

16 conduct does not signal any meaningful departure from its categorical refusal to

17 repatriate pre-1995 Vietnamese immigrants, despite continued pressure from the

18 United States.

19

52. On information and belief, the Vietnamese government has only issued

20 travel documents to seven pre-1995 Vietnamese immigrants. Moreover, on

21 information and belief, Vietnam will not accept the deportation of any pre-1995

22 individuals without an interview. Some Petitioners and class members have never

23 been interviewed by the Vietnamese Consulate and are therefore not being

24 considered for repatriation, yet remain in ICE custody.

25

53. During interviews conducted by the Consulate, Vietnamese officials

26 questioned individuals about whether they have any family living in Vietnam who

27 can support them if deported; whether they have any family living in the United

28

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1 States who will be impacted if deported; and whether they are willing to accept their

2 deportation. On information and belief, Vietnam is extremely reluctant to issue travel

3 documents to individuals like Petitioners who have no family in Vietnam; whose

4 families in the United States will suffer hardship as a result of their deportation;

5 and/or who do not wish to return to Vietnam.

6

54. Despite the United States government’s vague representations, the

7 Vietnamese government’s conduct does not indicate that it truly intends to repatriate

8 the hundreds of pre-1995 Vietnamese whom ICE is currently detaining or will likely

9 detain under its current detention campaign.

10

55. ICE lacks any particularized evidence that Vietnam will accept

11 Petitioners’ or class members’ repatriation. Despite this lack of proof that

12 Petitioners’ and class members’ repatriation is significantly likely in the reasonably

13 foreseeable future, ICE has detained Petitioners and class members more than 90

14 days or 180 days beyond the date of their removal orders.

15

56. Furthermore, Petitioners and class members are being detained for more

16 than 180 days without an individualized hearing before a neutral decision maker to

17 assess whether detention is warranted due to danger or flight risk. This includes class

18 members who for years consistently and reliably reported to ICE as required under

19 their orders of supervision.

20 57. To the extent that ICE has been conducting any 90-day post-order

21 custody reviews for Petitioners and class members, they have been perfunctory,

22 resulting in boilerplate decisions that merely rubberstamp continued detention. Some

23 class members have been told by ICE employees that Vietnamese with final orders

24 of removal will continue to be detained until the Vietnamese government issues a

25 travel document, though some requests for travel documents have been pending

26 since late October or early November 2017 and others since March 2017. On

27 information and belief, the refusal to release any pre-1995 Vietnamese immigrants

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1 after 90 days is driven by an ICE Headquarters policy being uniformly implemented

2 across the United States.

3

CLASS ALLEGATIONS

4

58. Petitioners bring this action on behalf of themselves and all other

5 similarly situated persons pursuant to Federal Rules of Civil Procedure 23(a) and

6 23(b)(2), and as a representative habeas class action for similarly situated persons

7 pursuant to a procedure analogous to Rules 23(a) and 23(b)(2). See Ali v. Ashcroft,

8 346 F.3d 873, 889-91 (9th Cir. 2003) (holding that the district court did not exceed

9 its habeas jurisdiction in certifying a nationwide habeas class), withdrawn and

10 amended on other grounds on reh’g, Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005);

11 see also Geraghty v. U.S. Parole Commission, 429 F. Supp. 737, 740 (M.D. Pa.

12 1977) (noting that “procedures analogous to a class action have been fashioned in

13 habeas corpus actions where necessary and appropriate”).

14

59. Petitioners seek to represent the following classes: (1) all Vietnamese

15 nationals who arrived in the United States before July 12, 1995 and who have been

16 or will be detained by ICE for more than 90 days after receiving final orders of

17 removal (“90-Day Class”); (2) all Vietnamese nationals who arrived in the United

18 States before July 12, 1995 and who have been or will be detained by ICE for more

19 than 180 days after receiving final orders of removal (“180-Day Class”); and (3) all

20 Vietnamese nationals who arrived in the United States before July 12, 1995, who are

21 subject to final orders of removal, and who have been or will be detained by ICE for

22 more than 180 days without a bond hearing to determine whether their prolonged

23 detention is justified (“Prolonged Detention Class”).

24

60. Members of each proposed class are so numerous that joinder is

25 impracticable. Petitioners identified at least 45 pre-1995 Vietnamese immigrants

26 with final orders of removal who, at the time this action was filed on February 22,

27 2018, were in ICE custody in just 20 of ICE’s 111 detention facilities. At least 37 of

28 the 45 had been detained for more than 90 days after receiving removal orders; 18 of

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REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1 those 37 had been detained for more than 180 days after receiving removal orders.

2 The total numbers of 90-Day Class members and 180-Day Class members were

3 likely much higher. Since the filing of this action, Petitioners have learned of

4 additional pre-1995 Vietnamese immigrants who have reached 90 or 180 days of

5 post-order detention. The Prolonged Detention Class is at least as numerous as the

6 180-Day Class because all individuals who have reached 180 days of post-order

7 detention have also exceeded 180 days of total detention. Further, 8,000 to 10,000

8 Vietnamese immigrants in the United States currently have final orders of removal.

9 ICE’s aggressive detention of these individuals as part of a Headquarters-driven

10 decision means the classes will continue to grow.

11 61. Petitioners’ claims are typical of the claims of the proposed classes. In

12 addition, Petitioners will fairly and adequately represent the interests of all members

13 of the proposed classes. Petitioners seek relief that is identical to the relief sought by

14 members of each class, and they have no interests that are adverse to other class

15 members. Petitioners have retained counsel who have experience in immigration law

16 and class action litigation and will adequately represent the interests of the classes.

17 62. Multiple questions of law and fact are common to members of the

18 proposed classes, including:

19

a. Whether the 90-Day Class members and 180-Day Class members have

20 shown good reason to believe that their removal is not reasonably foreseeable;

21

b. Whether Respondents have sufficient evidence that the 90-Day Class

22 members’ and 180-Day Class members’ removal is reasonably foreseeable to justify

23 continued detention given that they are specifically excluded from repatriation under

24 the repatriation agreement; and

25

c. Whether Respondents have afforded Prolonged Detention Class members

26 individualized determinations of the need for detention that satisfy Section 1231 and

27 due process.

28

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REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

63. Respondent’s conduct and refusal to act apply generally to the 90-Day

2 Class, 180-Day Class, and Prolonged Detention Class, thereby making the final

3 injunctive relief and declaratory relief sought by the Petitioners appropriate with

4 respect to the classes as a whole.

5

CLAIMS FOR RELIEF

6

Count One: Unlawful Detention Where

7

Removal Is Not Reasonably Foreseeable

8

64. The foregoing allegations are realleged and incorporated herein.

9

65. Post-removal order detention violates Section 1231 where removal is

10 not significantly likely to occur in the reasonably foreseeable future. Zadvydas, 533

11 U.S. at 678. Detention under these circumstances also violates constitutional due

12 process.

13

66. The removal of Petitioners, 90-Day Class members, and 180-Day Class

14 members is not significantly likely to occur in the reasonably foreseeable future

15 because they are specifically excluded from repatriation under the repatriation

16 agreement.

17

67. The 90-Day Class members’ Zadvydas claim is ripe because the six-

18 month period set forth in Zadvydas is a rebuttable presumption, not a rule. The 19 presumption is rebutted by a repatriation agreement that expressly excludes pre-1995 20 Vietnamese immigrants from repatriation, along with Vietnam’s historical refusal to

21 accept them.

22

68. Through the repatriation agreement and Vietnam’s historical practice,

23 Petitioners and class members have made their initial showing under Zadvydas of

24 “good reason to believe” that their removal is not reasonably foreseeable. Id. at 701.

25

69. Petitioners, 90-Day Class members, and 180-Day Class members have

26 shifted the burden to Respondents to produce individualized evidence that their

27 removal is reasonably foreseeable. Respondents lack such evidence, yet continue to

28

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REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1 detain Petitioners, 90-Day Class members, and 180-Day Class members in violation

2 of Section 1231 and constitutional due process.

3

70. Petitioners, 90-Day Class Members, and 180-Day Class members are

4 entitled under the law to immediate release on orders of supervision.

5

6

Count Two: Unlawful Detention Without

Determinations of Danger and Flight Risk

7

71. The foregoing allegations are realleged and incorporated herein.

8 72. Even when removal is reasonably foreseeable, detention violates

9 Section 1231 and due process under the United States Constitution unless it is

10 reasonably related to the government’s purposes of preventing flight and protecting

11 the community. Zadvydas, 533 U.S. at 690-91.

12

73. Respondents are subjecting Petitioners and Prolonged Detention Class

13 members to over 180 days of detention without any individualized determination that

14 they pose a danger or flight risk that would justify their detention.

15

74. The only procedure the government has provided—administrative post-

16 order custody reviews—is inadequate to satisfy the requirements of due

17 process. Moreover, the government is not meaningfully conducting these post-order

18 custody reviews in compliance with its own regulations but is merely

19 rubberstamping continued detention with respect to the Petitioners and Prolonged

20 Detention Class members as a whole.

21

75. Respondents may not continue to detain Petitioners and Prolonged

22 Detention Class members without individualized determinations by impartial

23 adjudicators of whether detention is justified based on danger or flight risk.

24

PRAYER FOR RELIEF

25

76. WHEREFORE, Petitioner respectfully requests that the Court grant the

26 following relief:

27

a. Assume jurisdiction over this matter;

28

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REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

b. Certify this matter as a class action, name Petitioners Vu Ha, Long

2 Nguyen, Ngoc Hoang, and Sieu Nguyen as class representatives of the 90-Day Class,

3 name Petitioners Hoang Trinh, Dai Diep, and Bao Duong as class representatives of

4 the 180-Day Class, name Petitioners Hoang Trinh, Vu Ha, and Bao Duong as class

5 representatives of the Prolonged Detention Class, and appoint Petitioners’ counsel as

6 class counsel;

7

c. Declare that Respondents have violated the rights of the classes;

8 d. Order Respondents to release from detention Petitioners and all 90-Day

9 Class members and 180-Day Class members for whom Respondents lack

10 individualized evidence that removal is significantly likely to occur in the reasonably

11 foreseeable future;

12

e. Order Respondents to release Petitioners and all Prolonged Detention

13 Class members from detention absent an individualized determination by an impartial

14 adjudicator that their detention is justified based on danger or flight risk, which

15 cannot be sufficiently addressed by alternative conditions of release and/or

16 supervision;

17 f. Award Petitioners reasonable attorneys’ fees and costs under the Equal

18 Access to Justice Act, 28 U.S.C. § 2412, and on any other basis justified under law;

19 and

20 g. Grant any other and further relief as the Court deems just and proper.

21

22 Dated: May 11, 2018

Respectfully submitted,

23

/S/ Tuan V. Uong

Tuan V. Uong

24

Farah Tabibkhoei

Christopher M. Butler

25

Patil T. Derderian

REED SMITH, LLP

26

27

28

Case No. 8:18-cv-316

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REED SMITH LLP
A limited liability partnership formed in the State of Delaware

1

/S/ Phi U. Nguyen

Phi U. Nguyen

2

ASIAN AMERICANS ADVANCING JUSTICE-ATLANTA

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/S/ Laboni Hoq

Laboni Hoq

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Christopher Lapinig

ASIAN AMERICANS ADVANCING JUSTICE-LA

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/S/ Jingni Zhao

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Jingni (Jenny) Zhao

Anoop Prasad

7

Kevin Chun Hoi Lo

Melanie Chun-Yu Kim

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Winifred Kao

ASIAN AMERICANS ADVANCING JUSTICE-ASIAN LAW

9

CAUCUS

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/S/ Jesse A. Davis III

Jesse A. Davis III

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DAVIS ADAMS, LLC

Attorneys for Petitioners

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Case No. 8:18-cv-316

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 Case 8:18-cv-00316-CJC-GJS Document 146 Filed 06/11/20 Page 1 of 26 Page ID #:2552

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

12

HOANG TRINH, VU HA, LONG NGUYEN, NGOC HOANG, DAI DIEP,

) ) )

Case No.: SACV 18-00316-CJC(GJSx)

13 BAO DUONG, and SIEU NGUYEN, on )

14

behalf of themselves and those similarly situated,

) ) )

15

)

16

Petitioners,

) ORDER ON CROSS MOTIONS FOR ) SUMMARY JUDGMENT [Dkts. 119,

17

v.

) 124] )

)

18

THOMAS D. HOMAN, KIRSTJEN M.

) )

19 NIELSEN, JEFFERSON B. SESSIONS )

20 III, DAVID MARIN, SANDRA HUTCHENS, and JOHN DOE,

) ) )

21

)

)

22

Respondents.

)

)

23

24
I. INTRODUCTION
25

26

This class action challenges the government’s practice of subjecting Vietnamese

27 immigrants to detention despite the remote possibility of their removal to Vietnam. (Dkt.

28 27 [First Amended Habeas Corpus Petition and Class Action Complaint, hereinafter

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Case 8:18-cv-00316-CJC-GJS Document 146 Filed 06/11/20 Page 2 of 26 Page ID #:2553

1 “FAC”] ¶¶ 1–4.) The named Petitioners assert that they, along with hundreds of other 2 Vietnamese citizens who immigrated to the United States before July 12, 1995 (“pre3 1995 Vietnamese immigrants”), were subjected to this practice.

4

5

Now before the Court are cross motions for summary judgment on one of the two

6 counts asserted in the FAC. (See Dkt. 119-1 [Petitioners’ Memorandum in Support of

7 Motion for Summary Judgment, hereinafter “Mot.”]; Dkt. 124 [Respondents’ Cross-

8 Motion and Opposition, hereinafter “Cross Mot.”].) For the following reasons,

9 Petitioners’ motion is DENIED IN SUBSTANTIAL PART, and Respondents’ cross-

10 motion is GRANTED IN SUBSTANTIAL PART.1

11
12 II. BACKGROUND

13

14

A. Legal Background

15

16

Federal immigration law provides that after a removal order becomes final, the

17 government “shall remove the alien from the United States within a period of 90 days.” 8

18 U.S.C § 1231(a)(1)(A). This ninety-day period is often referred to as the “initial removal

19 period” and during it, the government “shall detain the alien.” Id. § 1231(a)(2). In some

20 circumstances, federal immigration authorities can continue to detain an alien beyond the

21 initial removal period. Specifically, section 1231(a)(6) allows the government to detain

22 certain enumerated classes of aliens—including those were ordered removal due to

23 criminal convictions—for more than ninety days. Id. § 1231(a)(6). In Zadvydas v.

24 Davis, 533 U.S. 678 (2001), the Court addressed the question of how long the

25 government can detain an alien pursuant to section 1231(a)(6).

26

27
1 The Court finds this matter appropriate for disposition without a hearing. See Fed. R. Civ. P. 78; Local 28 Rule 7-15. Accordingly, the hearing set for June 15, 2020, at 1:30 p.m. is hereby vacated and off
calendar.
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1

2

The Zadvydas Court began by rejecting the government’s position that section

3 1231(a)(6) permitted indefinite detention following the initial removal period. See id. It

4 held that “[a] statute that permitted indefinite detention of an alien would raise a serious

5 constitutional problem,” and instead determined that section 1231(a)(6) “implicitly limits

6 an alien’s detention to a period reasonably necessary to bring about that alien’s removal.”

7 Id. at 679. Thus, “once removal is no longer foreseeable, continued detention is no

8 longer authorized by [section 1231(a)(6)].” Id. at 699.

9

10

The Court went on to institute a framework that would govern future challenges to

11 section 1231(a)(6) detention. “[F]or the sake of uniform administration in the federal 12 courts,” the Court found that post-removal detention was “presumptively reasonable” for 13 the first six months. Id. at 700–01. When that “presumptively reasonable” six-month

14 period ends, aliens seeking release from custody bear the initial burden of providing

15 “good reason to believe that there is no significant likelihood of removal in the

16 reasonably foreseeable future.” Id. at 701; see Banda v. McAleenan, 385 F. Supp. 3d

17 1099, 1117 (W.D. Wash. 2019) (explaining that “at six months, the burden is on the

18 detainee—not the government—to establish a basis for release”). Once that initial

19 showing is made, the burden shifts to the Government to respond with evidence sufficient

20 to rebut it. See Zadvydas, 533 U.S. at 701.

21

22

B. The History of U.S.-Vietnam Repatriation Relations

23

24

After the Vietnam War, the North Vietnamese government established the current

25 Socialist Republic of Vietnam (“Vietnam”). (Dkt. 22-12 [Declaration of Tu-Huong

26 Nguyen-Vo, hereinafter “Nguyen-Vo Decl.”] ¶ 7.) Around that time, waves of people

27 from the former Republic of Vietnam (South Vietnam) fled the country to escape

28

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1 political persecution. (Id.) Under various humanitarian programs, the United States 2 accepted hundreds of thousands of Vietnamese refugees, including Petitioners. (Id. ¶ 13.)

3

4

Between the end of the Vietnam War and 2008, Vietnam refused to repatriate any

5 Vietnamese immigrants who had been ordered removed from the United States.

6 (Dkt. 124-2 [Respondents’ Statement of Genuine Disputes, hereinafter “Resp.

7 Statement”] ¶ 2.) Before a Vietnamese immigrant without a passport or other travel

8 document2 can be repatriated, Vietnam must issue a passport or other travel document in

9 response to a request from ICE. (Id. ¶ 1.) In 2008, the United States and Vietnam

10 reached a diplomatic agreement pursuant to which Vietnam agreed to start considering

11 repatriation requests for certain Vietnamese immigrants. (Id. ¶ 3.) Specifically, the

12 agreement obligated Vietnam to consider repatriation requests for Vietnamese

13 immigrants who had arrived in the United States after July 12, 1995. (Dkt. 27-1 [2008

14 Agreement] at Art. II, ¶ 1.) The agreement also provided that “Vietnamese citizens are

15 not subject to return to Vietnam under this agreement if they arrived in the United States

16 before July 12, 1995.” (Id. at Art. II, ¶ 2.) Relying on this provision, Vietnam

17 maintained its policy of non-repatriation for pre-1995 Vietnamese immigrants after

18 signing the 2008 agreement. (Resp. Statement ¶ 5; Dkt. 124-3 [Declaration of Julian

19 Kurz, hereinafter “Kurz Decl.”] at Ex. B [Deposition of John Schultz, hereinafter

20 “Schultz Dep.”] at 62:6-11.)

21

22

C. Post-Removal Detention Practices for Pre-1995 Vietnamese Immigrants

23

24

Prior to 2017, U.S. Immigration and Customs Enforcement (“ICE”) maintained

25 that the removal of pre-1995 Vietnamese immigrants was unlikely given Vietnam’s

26

27
2 In this Order, the Court’s analysis only concerns pre-1995 Vietnamese immigrants who do not already 28 have a passport or other travel document. For the sake of clarity, it will not repeat the “without a
passport or travel document” qualification.
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Case 8:18-cv-00316-CJC-GJS Document 146 Filed 06/11/20 Page 5 of 26 Page ID #:2556

1 consistent refusal to repatriate them. (FAC ¶ 3.) Accordingly, ICE adopted a policy of 2 detaining pre-1995 Vietnamese immigrants for no longer than ninety days after their 3 removal orders became final. (Id.) After ninety days, ICE generally released them into 4 the community on orders of supervision. (Id.)

5

6

In 2017, ICE entered into negotiations with Vietnam that were aimed at amending

7 the 2008 Agreement and developing a new policy that would allow for pre-1995

8 Vietnamese immigrants to be repatriated. (Kurz Decl. at Ex. A [Deposition of Marla

9 Jones, hereinafter “Jones Dep.”] at 28:11-19). These negotiations were somewhat

10 successful. Although the 2008 agreement was not officially amended, Vietnamese

11 officials verbally committed to begin considering ICE travel document requests for pre-

12 1995 Vietnamese immigrants on a case-by-case basis, without explicitly committing to

13 accept any of them. (Resp. Statement ¶ 8.)

14

15

After receiving this verbal commitment in 2017, ICE departed from its

16 longstanding practice of releasing pre-1995 Vietnamese immigrants with final orders of

17 removal after ninety days of detention. Instead, it began detaining them for more than

18 ninety days based on the possibility that Vietnam might issue the requisite travel

19 documents. (FAC ¶ 4.) ICE also began re-detaining some pre-1995 Vietnamese

20 immigrants who had previously been released on orders of supervision. (See, e.g., Dkt.

21 65-2 [Declaration of Sieu Nguyen, hereinafter “Nguyen Decl.”] ¶¶ 11–12.) Petitioners

22 responded by filing this lawsuit challenging ICE’s new detention practices on February

23 22, 2018. (Dkt. 1.)

24

25

On August 6, 2018, ICE met with Vietnamese officials again to continue

26 discussions about the status of pre-1995 Vietnamese immigrants. (Dkt. 67-1 [Declaration

27 of Michael V. Bernacke, hereinafter “Bernacke Decl.”] ¶ 2.) After that meeting, ICE

28 reversed its position again. ICE conceded that, despite Vietnam’s verbal commitment to

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Case 8:18-cv-00316-CJC-GJS Document 146 Filed 06/11/20 Page 6 of 26 Page ID #:2557

1 consider travel document requests for pre-1995 immigrants, in general, the removal of 2 these individuals was still not significantly likely. (Resp. Statement ¶ 12.) In October

3 2018, ICE instructed field offices to resume the practice of releasing pre-1995

4 Vietnamese immigrants within 90 days of a final order of removal. (Dkt. 119-2

5 [Declaration of Tuan V. Uong, hereinafter “Uong Decl.”] at Ex. F; Schultz Dep. at 178:9-

6 22.) That policy remains in place today. (Resp. Statement ¶ 12.)

7

8

D. The Petitioners

9

10

Petitioners are Vietnamese immigrants who came to the United States prior to July

11 12, 1995. (FAC ¶ 1.) They became lawful permanent residents years ago but, based on 12 criminal convictions, lost their green cards and were ordered removed. (Id. ¶ 2.) After 13 facing varying periods of post-removal order detention, they have been released under

14 orders of supervision that require them to regularly report to ICE offices. See 8 U.S.C.

15 § 1231(a)(3); 8 C.F.R. § 241.5(a). Many have gone on to live productive lives,

16 supporting and caring for dependent family members. (See e.g., Dkt. 22-13 [Declaration

17 of Ngoc Hoang, hereinafter “N. Hoang Decl.”] ¶¶ 8, 15, 18; Dkt. 65-3 [Declaration of

18 Dai Diep, hereinafter “Diep Decl.”] ¶ 16.)

19

20

Petitioner Hoang Trinh (“Trinh”) entered the United States with his family as a

21 four-year-old refugee in 1980. (FAC ¶ 11; Dkt. 22-9 [Declaration of Hoang Trinh, 22 hereinafter “Trinh Decl.”] ¶¶ 2–3.) He worked in his family’s bakery while growing up 23 and now runs a Vietnamese sandwich shop with his wife. (FAC ¶ 11; see Trinh Decl.

24 ¶ 8.) Trinh’s wife, two children, parents, and six sisters are all U.S. citizens. (FAC ¶ 11.)

25 In 2017, he was arrested by state authorities after being found in possession of a

26 marijuana plant and incarcerated for some period of time. (Id.) Trinh was subsequently

27 transferred to federal custody in June 2017 and ordered removed on July 27, 2017. (Id.)

28 On October 17, 2017, ICE conducted a 90-day post-order custody review (“POCR”) and

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Case 8:18-cv-00316-CJC-GJS Document 146 Filed 06/11/20 Page 7 of 26 Page ID #:2558

1 decided to continue Mr. Trinh’s detention because “Vietnam had not denied him a travel 2 document.” (Resp. Statement ¶ 15.) On March 13, 2018—approximately nine months

3 after his initial detention—ICE conducted a second POCR and decided to continue Mr.

4 Trinh’s detention “on the ground that ICE was working with Vietnam to secure a travel

5 document.” (Id. ¶ 16.) On April 16, 2018, Trinh was released on an order of supervision

6 after ICE determined that he was not significantly likely to be removed in the reasonably

7 foreseeable future. (Id. ¶ 17.) It was later revealed that ICE did not submit a travel

8 document request for Trinh until May 23, 2018, a month after he was released from

9 federal custody. (Id. ¶ 18.)

10

11

Petitioner Vu Ha (“Ha”) escaped Vietnam at the age of nine and entered the United

12 States as a ten-year-old refugee in 1990. (FAC ¶ 12; Dkt. 22-16 [Declaration of Vu Ha,

13 hereinafter “Ha Decl.”] ¶ 3.) His parents, sister, and daughter are U.S. citizens. (FAC

14 ¶ 12; Ha Decl. ¶ 4.) Ha was arrested three times as a young adult between 2000 and 2005

15 and once in 2017 for failure to pay a citation for driving without a license. (FAC ¶ 12.)

16 Following the 2017 arrest, he was transported from county jail to ICE custody and was

17 ordered removed on September 19, 2017. (Id.) He was detained for almost seven months

18 before being released on an order of supervision. (Ha Decl. ¶¶ 12, 18.)

19

20

Petitioner Long Nguyen (“Nguyen”) entered the United States as an eleven-year-

21 old refugee in 1987. (FAC ¶ 13.) His wife, three step-daughters, and two-year-old 22 daughter are all U.S. citizens. (Dkt. 22-17 [Declaration of Long Nguyen, hereinafter “L. 23 Nguyen Decl.”] ¶ 9.) He and his wife work at a nail salon that his wife manages. (FAC

24 ¶ 13.) In 2006, he was convicted of a nonviolent felony drug offense. (Id.) He was

25 ordered removed on April 18, 2012 but released on an order of supervision later that year.

26 (Resp. Statement ¶ 19.) Mr. Nguyen was re-detained by ICE on October 19, 2017 after

27 ICE submitted a travel document request to Vietnam. (Id. ¶¶ 19–20.) Vietnam declined

28 to issue a travel document for Mr. Nguyen on December 28, 2017. (Id. ¶ 22.) Although

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1 Vietnamese officials communicated this decision to ICE in late December 2017, Mr. 2 Nguyen was not released from custody until March 24, 2018. (Id. ¶ 24.)

3

4

Petitioner Ngoc Hoang (“Hoang”) Hoang entered the United States at age sixteen

5 in 1990, after his father was jailed in a reeducation camp for having served in the South

6 Vietnamese military. (FAC ¶ 14; N. Hoang Decl. ¶¶ 3, 5.) Hoang was married to a U.S.

7 citizen with whom he has four children, all under the age of eighteen. (FAC ¶ 14.)

8 Hoang now works as a nail salon technician. (Id.) In 1994, he pled guilty to check fraud

9 and in 2010, he was placed on probation for simple assault and simple battery. (Id.) He

10 was ordered removed on December 12, 2012 and released on an order of supervision

11 approximately two months later. (Id.) Over the next five years, Hoang complied with the

12 requirements of that order. (Id.) But on November 6, 2017, he was unexpectedly re-

13 arrested by ICE officers at his home and not released from federal custody until April 23,

14 2018. (Id.)

15

16

Petitioner Sieu Nguyen (“Sieu”) entered the United States in 1989 when he was

17 three years old. (FAC ¶ 15; Dkt. 65-2 [Declaration of Sieu Nguyen, hereinafter “Sieu

18 Decl.”] ¶ 2.) His parents and seven siblings are all U.S. citizens. (Sieu Decl. ¶ 3.) Sieu

19 was convicted of robbery in 2007 and burglary and receipt of stolen property in 2010.

20 (Id. ¶ 5.) He was ordered removed on December 19, 2017, and detained for

21 approximately seven months before being released on an order of supervision. (Id. ¶¶ 7,

22 10.)

23

24

Petitioner Dai Dep (“Diep”) entered the United States as a refugee in 1995. (Diep

25 Decl. ¶ 2.) His mother, stepfather, and half-siblings are all U.S. citizens, as is his

26 biological father, who worked for the U.S. Department of Defense during the Vietnam

27 War. (Id. ¶ 9.) In November 2015, he pled guilty to second-degree robbery, second-

28 degree burglary, and vandalism, for which he was sentenced to two years of

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1 imprisonment. (FAC ¶ 16.) He was ordered removed on October 26, 2017 and was 2 detained for nearly thirteen months before being released on an order of supervision. 3 (Diep Decl. ¶¶ 13, 15.)

4

5

E. Procedural History

6

7

Petitioners brought this action on February 22, 2018. (Dkt. 1.) The operative

8 pleading contains two counts, each asserted on behalf of putative classes. (See FAC ¶¶

9 58–75.) In Count One, Petitioners assert that their post-removal order detention violates

10 federal immigration law and their constitutional right to due process where removal is not

11 likely to occur in the foreseeable future. (Id. ¶¶ 64–70.) In Count Two, Petitioners assert

12 that even if removal is reasonably foreseeable, their prolonged detention violates section

13 1231 and their right to due process when it is not coupled with an individuated bond

14 hearing. (Id. ¶¶ 72–75.)

15

16

Earlier in this litigation, the Court denied Respondents’ motion to dismiss, (Dkt. 66

17 [hereinafter “MTD Order”]), and granted in part and denied in part Petitioners’ motion

18 for class certification, (Dkt. 75 [hereinafter “Class Cert. Order”]). The Court certified

19 three separate classes comprised of: (1) all pre-1995 Vietnamese immigrants who have

20 been or will be detained by ICE for more than ninety days after receiving removal orders

21 (“90-Day Class”), (2) all pre-1995 Vietnamese immigrants who have been or will be

22 detained by ICE for more than 180 days after receiving removal orders (“180-Day

23 Class”), and (3) all pre-1995 Vietnamese immigrants who have been or will be detained

24 by ICE for more than 180 days in total without a bond hearing (“Prolonged Detention

25 Class”). (Id.) The Court also determined that the only remedy available to Petitioners

26

27

28

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1 under both counts is declaratory relief. (Id.) The parties proceeded to discovery, and the 2 instant cross-motions for summary judgment on Count One followed.3

3
4 III. LEGAL STANDARD

5

6

The Court may grant summary judgment on “each claim or defense—or the part of

7 each claim or defense—on which summary judgment is sought.” Fed. R. Civ. P. 56(a).

8 Summary judgment is proper where the pleadings, the discovery and disclosure materials

9 on file, and any affidavits show that “there is no genuine dispute as to any material fact

10 and the movant is entitled to judgment as a matter of law.” Id.; see also Celotex Corp. v.

11 Catrett, 477 U.S. 317, 322 (1986). The party seeking summary judgment bears the initial

12 burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477

13 U.S. at 325. A factual issue is “genuine” when there is sufficient evidence such that a

14 reasonable trier of fact could resolve the issue in the nonmovant’s favor. Anderson v.

15 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” when its resolution

16 might affect the outcome of the suit under the governing law, and is determined by

17 looking to the substantive law. Id. “Factual disputes that are irrelevant or unnecessary

18 will not be counted.” Id. at 249.

19

20

In considering a motion for summary judgment, the court must examine all the

21 evidence in the light most favorable to the nonmoving party, and draw all justifiable

22 inferences in its favor. Id.; United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); T.W.

23 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630–31 (9th Cir. 1987).

24 The court does not make credibility determinations, nor does it weigh conflicting

25 evidence. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992).

26 But conclusory and speculative testimony in affidavits and moving papers is insufficient

27
28 3 The Prolonged Detention Class only seeks relief under Count Two, so this class is not implicated in the instant cross-motions.
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1 to raise triable issues of fact and defeat summary judgment. Thornhill Publ’g Co. v. GTE 2 Corp., 594 F.2d 730, 738 (9th Cir. 1979). The material the parties present must be the 3 type that would be admissible in evidence. Fed. R. Civ. P. 56(c).

4
5 IV. ANALYSIS

6

7

Petitioners request that the Court grant their motion for summary judgment on

8 Count One and issue declaratory judgments in their favor. Specifically, Petitioners ask

9 the Court to issue the following five declarations:

10

11 1. “There is generally no significant likelihood of removal to Vietnam for pre-1995

12

Vietnamese immigrants who do not hold a valid Vietnamese passport or other

13

travel document;”

14 2. “180-Day Class Members have satisfied their initial burden under Zadvydas v.

15

Davis, 533 U.S. 678 (2001), shifting the burden to the government to justify their

16

continued detention;”

17 3. “90-Day Class Members have rebutted the six-month “presumptively” reasonable

18

period of detention and satisfied their initial burden under Zadvydas, shifting the

19

burden to the government to justify their continued detention;”

20 4. “Respondents unlawfully detained Petitioner Hoang Trinh and other Class

21

Members where there was no significant likelihood of their removal in the

22

reasonably foreseeable future by holding them in post-removal order custody for

23

more than 180 days without submitting a travel document request to Vietnam;”

24 5. “Respondents unlawfully detained Petitioner Long Nguyen where there was no

25

significant likelihood of his removal in the reasonably foreseeable future by

26

holding him in post-removal order custody for several months after Vietnam

27

declined to issue a travel document for him.”

28

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1 (Mot. at 24.) The Court will address each proposed declaration in turn.

2

3

A. Petitioners’ First Proposed Declaration

4

5

Petitioners’ first proposed declaration states that “[t]here is generally no significant

6 likelihood of removal to Vietnam for pre-1995 Vietnamese immigrants who do not hold a

7 valid Vietnamese passport or other travel document.” (Mot. at 24.) Although the Court

8 agrees with Petitioners that in most cases, pre-1995 Vietnamese immigrants are unlikely

9 to be removed to Vietnam, it cannot issue the broad, amorphous declaration they request.

10

11

i. Whether pre-1995 Vietnamese immigrants are significantly likely

12

to be removed

13

14

Before pre-1995 Vietnamese immigrants can be removed to Vietnam, ICE must

15 request travel documents from Vietnam, and Vietnam must respond by issuing the

16 documents. (Resp. Statement ¶ 1.) Thus, the likelihood that any pre-1995 Vietnamese

17 immigrant will be removed hinges on Vietnam’s willingness to issue the documents

18 requested by ICE. (Uong Decl. at Ex. A [Schultz Dep. 93:14-20 ]. Most of the statistics

19 concerning Vietnam’s response rate are undisputed. (Dkt. 115 [Joint Stipulation of

20 Facts].) In 2017, ICE requested travel documents for 40 pre-1995 Vietnamese

21 immigrants, and in response, Vietnam issued 9 travel documents (22.5 percent). (Id. ¶ 1.)

22 In 2018, ICE requested travel documents for 157 pre-1995 Vietnamese immigrants, and

23 in response, Vietnam issued 4 travel documents (2.5 percent). (Id. ¶ 2.) Finally, in 2019,

24 ICE requested travel documents for 54 pre-1995 Vietnamese immigrants and in response,

25 Vietnam issued 5 travel documents (9.3 percent). (Id. ¶ 3.) In total, between 2017 and

26 2019, ICE requested travel documents for pre-1995 Vietnamese immigrants 251 times.

27 Vietnam granted those requests only 18 times, in just over seven percent of cases.

28

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1

During this litigation, Respondents have essentially conceded that removal of pre-

2 1995 immigrants is generally unlikely. In October 2018, the Government admitted that,

3 based on ICE’s August 2018 meeting with Vietnamese officials, “ICE no longer believes

4 that Vietnamese nationals who entered the United States prior to July 12, 1995 [] are

5 significantly likely to be removed to Vietnam in the reasonably foreseeable future.”

6 (Bernacke Decl. ¶ 2.) And in response to Petitioners’ request for admission, Respondents

7 confirmed that “pre-1995 Vietnamese aliens, except ones that currently hold a valid

8 passport or other travel document, generally are not significantly likely to be removed in

9 the foreseeable future.” (Uong Decl. at Ex. O [Respondents’ Objections and Responses

10 to Petitioners’ First Set of Requests for Admission]; see also Schultz Dep. at 29:20–

11 30:12.) These admissions align with ICE’s current practice of releasing pre-1995

12 Vietnamese immigrants within 90 days of them receiving a final removal order. (Resp.

13 Statement ¶ 12.)

14

15

Respondents do not deny their prior admissions, but instead contend that ICE’s

16 relationship with Vietnam has changed, and based on current circumstances, removal of

17 pre-1995 Vietnamese immigrants is significantly likely. In July 2019, ICE stationed a

18 permanent Assistant Attaché for Removals to Vietnam (“Assistant Attaché”) at the U.S.

19 Embassy in Hanoi for the first time. (Dkt. 124-1 [Respondents’ Statement of

20 Uncontroverted Facts, hereinafter “Respondents’ SOF”] ¶ 2.) Since October 2019, the

21 Assistant Attaché has held weekly meetings with Vietnamese immigration officials to

22 discuss ICE’s pending travel document requests. (Id. ¶ 3.) According to Respondents,

23 the Assistant Attaché’s placement and meetings have caused Vietnam to issue travel

24 documents more frequently.4 (Jones Dep. at 87:12-16.)

25
4 The parties vigorously dispute the admissibility of a chart that Respondents submitted to support their 26 assertion that Vietnam is now issuing travel documents at a greater frequency. (See Kurz Decl. Ex. C.) 27 The Court’s Order does not rely on the chart in question. Accordingly, Petitioners’ objections to it are
overruled as moot. See Doe v. Starbucks, Inc., 2009 WL 5183773, at *1 (C.D. Cal. Dec. 18, 2009) (“In 28 motions for summary judgment with numerous objections, it is often unnecessary and impractical for a
court to methodically scrutinize each objection and give a full analysis of each argument raised”.).
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1

2

ii. Petitioners’ proposed declaration is improper

3

4

Petitioners’ proposed declaration essentially reiterates the government’s past

5 position and states that in general, pre-1995 Vietnamese immigrants are not significantly

6 likely to be removed. (Mot. at 24.) Though Petitioners’ statistics on this point are

7 compelling, the Court cannot issue this proposed declaration.

8

9

Under the Declaratory Judgment Act, “in a case of actual controversy within its

10 jurisdiction . . . any court of the United States . . . may declare the rights and other legal

11 relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). It is

12 well established that “federal courts retain substantial discretion in deciding whether to

13 grant declaratory relief.” Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530,

14 534 (1st Cir. 1995); see Hewitt v. Helms, 482 U.S. 755, 762 (1987). Declaratory relief is

15 appropriate “(1) when the judgment will serve a useful purpose in clarifying and settling

16 the legal relations in issue, and (2) when it will terminate and afford relief from the

17 uncertainty, insecurity, and controversy giving rise to the proceeding.” Bilbrey by

18 Bilbrey v. Brown, 738 F.2d 1462, 1470 (9th Cir. 1984). However, “federal courts may

19 not give opinions upon moot questions or abstract propositions.” Calderon v. Moore, 518

20 U.S. 149, 150 (1996) (internal quotation omitted).

21

22

“The duty of this court . . . is to decide actual controversies by a judgment which

23 can be carried into effect.” Mills v. Green, 159 U.S. 651, 653 (1895). Thus, the Court

24 cannot issue a declaration that would be devoid of practical effect. See Calderon, 518

25 U.S. at 150; In re Iraq and Afghanistan Detainees Litig., 479 F. Supp. 2d 85, 118 (D.D.C.

26 2007) (“[A] declaratory judgment should be declined when it would serve only as a

27 statement [] without any practical enforcement effect.”). Petitioners have not explained

28 what practical effect, if any, their proposed declaration would have. Nor could they do so

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1 persuasively. If this Court issued the proposed declaration, individual pre-1995 2 Vietnamese immigrants would still be required to establish that they specifically are not

3 significantly likely to be removed in order to secure release from detention. A statement

4 from this Court that “in general,” pre-1995 Vietnamese immigrants are unlikely to be

5 removed would be of little use to them. Such an abstract pronouncement would not have

6 any bearing on clarifying the rights of the parties, nor would it resolve any legal claim.

7 See S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exch. Inc., 24 F.3d 427, 431 (2d

8 Cir. 1994) (affirming the lower court’s declination to issue declaratory relief because the

9 proposed declaration did “not carry any implications for practical enforcement upon the

10 parties” and would be “a declaration . . . and nothing more”). Rather, the proposed

11 declaration would function only as an advisory opinion, which no federal court is 12 empowered to issue. See Desert Water Agency v. U.S. Dep’t of the Int., 849 F.3d 1250, 13 1258 (9th Cir. 2017) (“The declaratory judgment procedure . . . may not be made the

14 medium for securing an advisory opinion in a controversy which has not arisen.”)

15 (internal quotations omitted). Accordingly, Petitioner’s motion for summary judgment is

16 DENIED as to the first proposed declaration.

17

18

B. Petitioners’ Second Proposed Declaration

19

20

The second proposed declaration concerns the burden-shifting framework

21 established by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). It pertains 22 to the 180-Day Class, which is comprised of “all pre-1995 Vietnamese immigrants who 23 have been or will be detained by ICE for more than 180 days after receiving removal

24 orders.” (Class Cert. Order at 2.) Under Zadvydas, aliens seeking release from custody

25 bear the initial burden of providing “good reason to believe that there is no significant

26 likelihood of removal in the reasonably foreseeable future.” See 533 U.S. at 701. Once

27 that initial showing is made, the burden shifts to the Government to respond with

28 evidence sufficient to rebut it. Id. Petitioners’ proposed declaration would allow every

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1 180-Day Class member to bypass the first step of the Zadvydas framework in future cases 2 by declaring that, as a class, there is “good reason to believe” that their removal is not 3 significantly likely. (Mot. at 24.)

4

5

Respondents contend that this proposed declaration cannot be issued on a class-

6 wide basis. They argue that, inevitably, some class members are, in fact, likely to be

7 removed because Vietnam issues travels documents in a small, but non-negligible portion

8 of cases. In these instances, the class members in question will be unable to meet their

9 initial burden of showing there is “good reason to believe” that they are not significantly

10 likely to be removed. See Zadvydas, 533 U.S. at 701. Essentially, the government argues

11 that because some class members will not be able to show that there is “good reason to

12 believe” that their removal is not significantly likely, issuing a class-wide declaration

13 would be improper. The Court agrees.

14

15

The 180-Day Class was certified under Federal Rule of Civil Procedure 23(b)(2).

16 (Class Cert. Order.) Rule 23(b)(2) classes are entitled to injunctive or declaratory relief

17 only if “a single injunction or declaratory judgment would provide relief to each member

18 of the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011). “The key to the

19 (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—

20 the notion that the [defendant’s] conduct is such that it can be enjoined or declared

21 unlawful only as to all of the class members or as to none of them.” Id. (internal

22 quotations omitted). Thus, Rule 23(b)(2) classes cannot obtain class-wide relief when

23 “each individual class member would be entitled to a different injunction or declaratory

24 judgment against the defendant.” Id. In light of these principles, Rule 23(b)(2) remedies

25 are “generally inappropriate in actions raising significant individual liability or defense

26 issues.” Ramirez v. U.S. Immigration and Customs Enforcement, 338 F. Supp. 3d 1, 47

27 (D.D.C. 2018) (internal quotation omitted).

28

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1

Petitioners’ proposed declaration clashes with the rule that relief under Rule

2 23(b)(2) must be appropriate for “each member of the class.” Wal-Mart Stores, 564 U.S.

3 at 360. When the Court certified the 180-Day Class in 2018, it did so based on the

4 understanding that ICE maintained a policy of detaining pre-1995 Vietnamese

5 immigrants beyond the initial removal period despite Vietnam’s uniform policy of

6 refusing to issue travel documents for them. (Class Cert. Order at 15; FAC ¶ 66 [alleging

7 that class members were being detained despite being “specifically excluded from

8 repatriation under the repatriation agreement”].) This presumed uniformity is what made

9 potential class-wide declaratory relief under Rule 23(b)(2) appropriate. It has since

10 become clear that these uniform policies and practices are no longer in effect. The parties

11 now agree that Vietnam does not maintain a blanket policy of refusing to repatriate pre12 1995 immigrants. (Resp. Statement ¶ 8.) Instead, Vietnam now considers each request 13 from ICE on a case-by-case basis. (Id.) ICE frequently requests travel documents from

14 Vietnam for pre-1995 immigrants, and Vietnam issues them in a non-negligible portion

15 of cases. (Resp. Statement ¶¶ 9–12; Dkt. 115)

16

17

Petitioners do not appear to dispute that once Vietnam issues a travel document,

18 removal becomes significantly likely, rendering class members unable to meet their

19 initial burden under Zadvydas. See Alfaro-Mejia v. Holder, 2013 WL 599876, at *1

20 (C.D. Cal. Feb. 15, 2013) (holding that petitioner could not demonstrate that there is no

21 significant likelihood of her removal in the reasonably foreseeable future because “travel 22 documents for petitioner’s return to El Salvador have been issued recently”); Kumar v. 23 Gonzales, 555 F. Supp. 2d 1061, 1065 (N.D. Cal. 2008) (same). Nor do they dispute that

24 in some instances, Vietnam has issued travel documents for pre-1995 immigrants. (Resp.

25 Statement ¶¶ 9–12; Mot. at 16.) Accordingly, a class-wide declaration stating that each

26 180-Day Class member has met his or her initial burden under Zadvydas would run

27 counter to the facts in cases where Vietnam responds to ICE requests with travel

28 documents. Because not all class members would be entitled to the proposed relief, the

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1 proposed declaration is improper under Rule 23(b)(2). See Wal-Mart Stores, 564 U.S. at 2 360; Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018) (suggesting that Rule 23(b)(2) 3 was an improper vehicle when “some members of the certified class may not be entitled 4 to [the requested relief]”).

5

6

Furthermore, Rule 23(b)(2) remedies are inappropriate in situations where “highly

7 individualized determinations of liability and remedy are made.” Jamie S. v. Milwaukee

8 Pub. Schools, 668 F.3d 481, 499 (7th Cir. 2012).5 Such determinations are required to

9 resolve individual Zadvydas claims. Typically, class members bring Zadvydas claims in

10 individual habeas proceedings in federal courts across the county. (See Dkt. 73-1 [listing

11 71 individual habeas proceedings filed by pre-1995 Vietnamese immigrants in 2017 and

12 2018].) Once a challenge is made, the presiding court typically engages in a fact-

13 dependent inquiry regarding whether the petitioner has shown there is “good reason to

14 believe” that he or she is not significantly likely to be removed, and, if that is the case,

15 whether the government has rebutted the showing. See, e.g., Jaime F. v. Barr, 2020 WL

16 2316437, at *5 (D.N.J. May 11, 2020). These determinations often hinge on specific

17 evidence concerning the government’s progress (or lack thereof) in obtaining travel

18 documents for specific the petitioner. See, e.g., Azad v. Immigration & Customs

19 Enforcement, 2009 WL 2569132, at *2 (S.D.N.Y. Aug. 19, 2009) (finding that ICE failed

20 to rebut a showing by petitioner by analyzing specific contacts that ICE had with the

21 local Consulate of Bangladesh); Mohamed v. Ashcroft, 2002 WL 32620339, at *1 (W.D.

22 Wash. Apr. 15, 2002) (granting relief where government failed to offer any “specific

23 information regarding how or when [it] expect[ed] to obtain the necessary documentation

24

25 5 Compare Nightingale v. U.S. Citizenship and Immigration Servs, 333 F.R.D. 449, 463 (N.D. Cal. 2019) (finding that class-wide relief under Rule 23(b)(2) was appropriate because the plaintiff did “not
26 seek relief with respect to the determinations made on individual A-File FOIA requests” but “rather 27 challenge Defendants’ pattern or practice of refusing to timely make such determinations”) with C.G.B.
v. Wolf, 2020 WL 2935111, at *19 (D.D.C. June 2, 2020) (denying relief under Rule 23(b)(2) when 28 individual class-members’ cases “raise[d] thorny, individualized questions” such that the court could not
issue “an indivisible injunction benefiting all its members at once”).
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1 or cooperation from the Ethiopian government”). Oftentimes, Zadvydas claims require 2 evidentiary hearings on the likelihood of removal. See, e.g., Owino v. Napolitano, 575

3 F.3d 952, 956 (9th Cir. 2009) (ordering the district court to hold an evidentiary hearing

4 on the issue of whether the petitioner was significantly likely to be removed to Kenya).

5 Clearly, each separate Zadvydas challenge requires the presiding court to consider the

6 facts and circumstances of the individual claim. Issuing Petitioners’ proposed declaration

7 would preempt that individualized analysis and replace it with a one-size-fits-all

8 approach ill-suited for the inquiry at hand.

9

10

When establishing the framework that would govern future claims brought under

11 Zadvydas, the Supreme Court recognized that individual cases would require the lower 12 courts to make “difficult judgments” about whether a particular alien is significantly 13 likely to be removed. See 533 U.S. at 700–01. The Supreme Court has also cautioned

14 against issuing Rule 23(b)(2) remedies in analogous situations that involve fact-

15 dependent determinations. See Jennings, 138 S. Ct. at 852 (suggesting that Rule 23(b)(2)

16 was improper because the individual due process claims at issue are “flexible . . and

17 call[] for such procedural protections as the particular situation demands”). In light of the

18 individualized inquiries involved in each class members’ Zadvydas claim, the Court

19 cannot issue a sweeping declaration stating that every 180-Day Class member has

20 established “good reason to believe” that their removal is not significantly likely. That

21 determination must be made in the first instance by the court addressing their individual 22 claim.

23

24

None of the cases Petitioners cite compel a contrary result. First, the rulings

25 Petitioners cite occurred at the certification stage, not at summary judgment. See e.g.,

26 Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010), Parsons v. Ryan, 754 F.3d 657,

27 688 (9th Cir. 2014). And the relief sought in those cases was markedly different from the

28 class-wide declaration Petitioners seek here. In each case, plaintiffs sought a declaration

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1 that a government policy or practice was unlawful or an injunction requiring the 2 government to halt an unlawful policy or practice. See, e.g., Parson, 754 F.3d at 663. 3 Petitioners seek something altogether different: a class-wide declaration that each 4 individual class-members has satisfied a burden in hypothetical future cases. Petitioners 5 have pointed to no case in which a court has issued such a declaration.

6

7

In sum, although many class members may be able to show that there is “good

8 reason to believe” their removal is unlikely, others will not. The Court thus cannot find

9 that Petitioners are entitled to a declaration that each individual class-member has

10 satisfied their initial burden under Zadvydas. Accordingly, it cannot craft declaratory

11 relief that would effectively “provide relief to each member of the class.” See Wal-Mart

12 Stores, 564 U.S. at 360. Petitioners’ motion for summary judgment is therefore

13 DENIED to the extent it seeks this declaration.

14

15

C. Petitioners’ Third Proposed Declaration

16

17

Petitioners’ third proposed declaration concerns the 90-Day Class, which is

18 comprised of “all pre-1995 Vietnamese immigrants who have been or will be detained by

19 ICE for more than 90 days after receiving a removal order.” (Class Cert. Order at 2.)

20 Petitioners seek a declaration that the 90-Day Class members have rebutted the six-month

21 “presumptively” reasonable period of detention and satisfied their initial burden under

22 Zadvydas.

23

24

i. The Zadvydas claim is ripe

25

26

The parties do not dispute that under Zadvydas, detention beyond the initial

27 removal period is only authorized if removal is significantly likely to occur in the

28 reasonably foreseeable future. Rather, they dispute when challenges under Zadvydas can

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1 be brought. Again, in Zadvydas, the Supreme Court, established a “presumptively 2 reasonable period of detention” of six months “for the sake of uniform administration in

3 the federal courts.” 533 U.S. at 700–01. Respondents first argue that the 90-day class’s

4 claim is unripe because Zadvydas claims are barred until detention extends beyond the

5 presumptively reasonable six-month period. The Court disagrees.

6

7

The central holding of Zadvydas is that section 1231(a)(6) does not permit

8 detention beyond the initial 90-day removal period when removal is not reasonably

9 foreseeable. See 533 U.S. at 699–700. At no point did the Zadvydas Court preclude a

10 noncitizen from challenging their detention before the end of the presumptively

11 reasonable six-month period. See Cesar v. Achim, 542 F. Supp. 2d 897, 903 (E.D. Wis. 12 2008) (noting that “[n]othing about this scheme supports the conclusion . . . that the 13 presumptive legality of detention within the first six months is irrebuttable.”); Ali v. Dep’t

14 of Homeland Sec., 2020 WL 1666074, at *4 (S.D. Tex. Apr. 2, 2020) (same); but see

15 Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002) (holding that “in order to

16 state a claim under Zadvydas” the alien must show “post-removal order detention in

17 excess of six months”). Instead, it held that detention for less than six months was

18 presumptively reasonable but left the lower courts to determine whether detention has

19 “exceed[ed] a period reasonably necessary to secure removal” in individual cases. See

20 Zadvydas, 533 U.S. at 699. Respondents have already raised—and this Court has already

21 rejected—the argument that Zadvydas claims are barred during the first six months of 22 detention. (See MTD Order at 14.) Respondents cite no new binding authority for their 23 position, and the Court remains unpersuaded by it. Zadvydas established a “guide” for

24 approaching detention challenges, not a categorical prohibition on claims challenging

25 detention less than six months. See 533 U.S. at 700–01.

26

27 //

28 //

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1

ii. The proposed relief is nonetheless improper

2

3

Although the Court finds that 90-Day Class members are not precluded from

4 challenging their detentions during the “presumptively reasonable” period, the Court

5 cannot issue the class-wide declaration they seek for the same reasons discussed above.

6 Petitioners’ proposed declaration states: “the 90-Day Class Members have rebutted the

7 six-month ‘presumptively’ reasonable period of detention and satisfied their initial

8 burden under Zadvydas, shifting the burden to the government to justify their continued

9 detention.” (Mot. at 24.) This proposed declaration suffers from the same flaws as the

10 declaration discussed in the prior section. In some instances, Vietnam will issue travel

11 documents for 90-Day Class members, rendering them unable to both rebut the 12 presumption and meet their initial burden. See Wal-Mart Stores, 564 U.S. at 360. The 13 fact-intensive question of whether individual class members are significantly likely to be

14 removed needs to be answered in the first instance by the court presiding over the

15 individual claim. Petitioners’ motion for summary judgment is DENIED to the extent it

16 seeks a declaration that each member of the 90-Day Class has rebutted the presumption

17 and satisfied their initial burden under Zadvydas.

18

19

D. Petitioners’ Fourth and Fifth Proposed Declarations

20

21

Finally, Petitioners seek two declarations that Respondents violated the rights

22 Petitioners Trinh and Nguyen by detaining them for months despite the fact that they

23 were unlikely to be removed. Though the Court is extremely troubled by what occurred

24 in these two individual cases, it cannot issue the retrospective declaratory relief

25 Petitioners seek.

26

27

The disturbing facts of Trinh and Nguyen’s detentions are largely undisputed. In

28 2016, Trinh—a father of two who runs a small business with his wife—was convicted of

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1 a drug-related offense. (Trinh Decl. ¶¶ 7–8.) When Mr. Trinh completed his state 2 sentence, he was transferred into ICE custody. (Id. ¶ 10.) He was ordered removed on

3 July 27, 2017. (Resp. Statement ¶ 13.) On October 17, 2017, ICE conducted a 90-day

4 post-order custody review (“POCR”) and decided to continue Mr. Trinh’s detention

5 because “Vietnam had not denied him a travel document.” (Id. ¶ 15.) On March 13,

6 2018—approximately nine months after his initial detention—ICE conducted a second

7 POCR and continued Mr. Trinh’s detention again “on the ground that ICE was working

8 with Vietnam to secure a travel document.” (Id. ¶ 16.) On April 16, 2018, Trinh was

9 released on an order of supervision after ICE determined that he was not significantly

10 likely to be removed. (Id. ¶ 17.)

11

12

It later came to light that ICE did not even submit a travel document request for

13 Mr. Trinh until May 23, 2018—over one month after his release. (Id. ¶ 18.) That request

14 was denied about one month later. (See id.) Thus, ICE’s explanations for his continued

15 detention in the POCRs—that “Vietnam had not denied him a travel document” and that

16 “ICE was working with Vietnam to secure a travel document”—were simply untrue. To

17 date, ICE has offered no explanation for this injustice. As a result of ICE’s malfeasance,

18 Mr. Trinh was unnecessarily detained for several months of his life.

19

20

Mr. Nguyen’s experience with ICE is similarly troubling. Nguyen—who was

21 initially ordered removed in 2012 and had been on supervised release ever since—was re22 detained by ICE on October 19, 2017, after ICE requested travel documents from 23 Vietnam. (Id. ¶ 21.) On December 28, 2017, Vietnam declined to issue travel documents

24 for Nguyen and requested that he be allowed to remain in the United States on

25 humanitarian grounds. (Id. ¶ 22.) After receiving this response from Vietnam, ICE

26

27

28

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1 inexplicably did not release Nguyen from custody until March 23, 2018, nearly three 2 months after Vietnam declined to issue travel documents.6 (Id. ¶ 24.)

3

4

Despite the serious injustices that both Trinh and Nguyen experienced at the hands

5 of ICE, the Court cannot grant the particular form of relief they seek in this case.

6 Typically, declaratory relief targets prospective conduct. Declaratory judgments are used

7 to “afford relief from the uncertainty, insecurity, and controversy giving rise to the

8 proceeding.” Bilbrey, 738 F.2d at 1470. But the declaratory relief Trinh and Nguyen

9 seek is purely retrospective. They seek declarations stating that their rights were violated

10 in 2017 and 2018. In support of their argument that they are entitled to this form of

11 relief, Trinh and Nguyen contend that a retrospective declaration is “the only means of

12 deterring Respondents from engaging in similar violations in the future.” (Mot. at 21.)

13 The Court disagrees that this is proper grounds for issuing the proposed declarations.

14

15

What makes a declaratory judgment “a proper judicial resolution of a ‘case or

16 controversy’ rather than an advisory opinion—is in the settling of some dispute which

17 affects the behavior of the defendant towards the plaintiff.” Hewitt v. Helms, 482 U.S.

18 755, 761 (1987). However, federal courts “are not in the business of pronouncing that

19 past actions which have no demonstrable continuing effect were right or wrong.”

20 Spencer v. Kemna, 523 U.S. 1, 18 (1998). Thus, “in the context of an action for

21 declaratory relief, a plaintiff must be seeking more than a retrospective opinion that he

22 was wrongly harmed by the defendant.” Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir.

23 2011) (citing Ashcroft v. Mattis, 431 U.S. 171, 172 (1977)). Put another way, “a

24 declaratory judgment merely adjudicating past violations of federal law—as opposed to

25

26
27 6 ICE contends that it continued to detain Nguyen because it had asked Vietnam to reconsider its refusal to issue travel documents for him. (Resp. Statement ¶ 23.) However, there is no evidence that Vietnam
28 has any history of acquiescing to such requests. Nor is there any evidence that Vietnam gave ICE any indication that it was actively considering the reconsideration request.
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1 continuing or future violations of federal law—is not an appropriate exercise of federal 2 jurisdiction.” See Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 868 (9th Cir. 2017).

3

4

Because the declaration Petitioners seek would be nothing more than a

5 retrospective opinion that their rights were violated, the Court cannot issue it. See

6 Mendia v. Garcia, 165 F. Supp. 3d 861, 894 (N.D. Cal. 2016) (declining to issue a

7 retrospective declaratory judgment that defendants violated plaintiffs rights); Green v.

8 Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) (declining to issue a retroactive

9 declaratory judgment that “would amount to nothing more than a declaration that he was

10 wronged, and would have no effect on the defendants’ behavior towards him”);

11 Rodriguez v. Tilton, 2015 WL 3507126, at *2 (E.D. Cal. June 3, 2015) (holding that

12 federal courts are “not empowered to issue retrospective declaratory relief with respect to

13 allegedly unconstitutional conduct that has ended”); C.F.C. v. Miami-Dade County, 349

14 F. Supp. 3d 1236, 1254 (S.D. Fla. 2018) (dismissing claim that sought only retrospective

15 declaratory relief when the declaration sought would be “nothing more than a gratuitous

16 comment without any force or effect”). Accordingly, Petitioners’ motion is DENIED to

17 the extent it seeks retrospective declaratory relief regarding Trinh and Nguyen’s

18 detention.

19
20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 //

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1 IV. CONCLUSION

2

3

For the foregoing reasons, Respondents’ motion for summary judgment on Count

4 One is GRANTED IN SUBSTANTIAL PART and Petitioners’ motion for summary

5 judgment on Count One is DENIED IN SUBSTANTIAL PART.

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DATED: June 11, 2020
9
__________________________________
10
CORMAC J. CARNEY
11
CHIEF UNITED STATES DISTRICT JUDGE
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