Trinh v. Homan, Case No.: SACV 18-00316-CJC(GJSx)

Citation466 F.Supp.3d 1077
Decision Date11 June 2020
Docket NumberCase No.: SACV 18-00316-CJC(GJSx)
Parties Hoang TRINH, Vu Ha, Long Nguyen, Ngoc Hoang, Dai Diep, Bao Duong, and Sieu Nguyen, on behalf of themselves and those similarly situated, Petitioners, v. Thomas D. HOMAN, Kirstjen M. Nielsen, Jefferson B. Sessions III, David Marin, Sandra Hutchens, and John Doe, Respondents.
CourtU.S. District Court — Central District of California

Anoop Prasad, Jingni Zhao, Kevin Chun Hoi Lo, Melanie Chun-Yu Kim, Winifred V. Kao, Asian Law Caucus, Le T. Duong, Raymond A. Cardozo, Reed Smith LLP, San Francisco, CA, Christopher M. Butler, Hunton Andrews Kurth LLP, Christopher M. Lapinig, Asian Americans Advancing Justice Los Angeles, Farah Tabibkhoei, Jarrad Lucian Wood, Patil Derderian, Tuan Van Uong, Reed Smith LLP, Los Angeles, CA, Jesse A. Davis, Pro Hac Vice, Davis Adams LLC, Decatur, GA, A. Laboni A. Hoq, South Pasadena, CA, Phi U. Nguyen, Pro Hac Vice, Asian Americans Advancing Justice, Norcross, GA, for Petitioners.

Assistant 2241-194 US Attorney SA-CV, AUSA - Office of US Attorney, Santa Ana, CA, Julian Kurz, US Department of Justice, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Troy D. Liggett, US Department of Justice Office of Immigration Litigation, Washington, DC, for Respondents Thomas D. Homan, Kirstjen M. Nielsen, David Marin, Warden.

Assistant 2241-194 US Attorney SA-CV, AUSA - Office of US Attorney, Santa Ana, CA, Julian Kurz, US Department of Justice, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Troy D. Liggett, US Department of Justice Office of Immigration Litigation, Washington, DC, Tuan Van Uong, Reed Smith LLP, Los Angeles, CA, for Respondent Jefferson B. Sessions, III.




This class action challenges the government's practice of subjecting Vietnamese immigrants to detention despite the remote possibility of their removal to Vietnam. (Dkt. 27 [First Amended Habeas Corpus Petition and Class Action Complaint, hereinafter "FAC"] ¶¶ 1–4.) The named Petitioners assert that they, along with hundreds of other Vietnamese citizens who immigrated to the United States before July 12, 1995 ("pre-1995 Vietnamese immigrants"), were subjected to this practice.

Now before the Court are cross motions for summary judgment on one of the two counts asserted in the FAC. (See Dkt. 119-1 [Petitioners' Memorandum in Support of Motion for Summary Judgment, hereinafter "Mot."]; Dkt. 124 [Respondents' Cross-Motion and Opposition, hereinafter "Cross Mot."].) For the following reasons, Petitioners' motion is DENIED IN SUBSTANTIAL PART, and Respondents' cross-motion is GRANTED IN SUBSTANTIAL PART .1

A. Legal Background

Federal immigration law provides that after a removal order becomes final, the government "shall remove the alien from the United States within a period of 90 days." 8 U.S.C § 1231(a)(1)(A). This ninety-day period is often referred to as the "initial removal period" and during it, the government "shall detain the alien." Id. § 1231(a)(2). In some circumstances, federal immigration authorities can continue to detain an alien beyond the initial removal period. Specifically, section 1231(a)(6) allows the government to detain certain enumerated classes of aliens—including those were ordered removal due to criminal convictions—for more than ninety days. Id. § 1231(a)(6). In Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Court addressed the question of how long the government can detain an alien pursuant to section 1231(a)(6).

The Zadvydas Court began by rejecting the government's position that section 1231(a)(6) permitted indefinite detention following the initial removal period. See id. It held that "[a] statute that permitted indefinite detention of an alien would raise a serious constitutional problem," and instead determined that section 1231(a)(6) "implicitly limits an alien's detention to a period reasonably necessary to bring about that alien's removal." Id. at 679, 121 S.Ct. 2491. Thus, "once removal is no longer foreseeable, continued detention is no longer authorized by [ section 1231(a)(6) ]." Id. at 699, 121 S.Ct. 2491.

The Court went on to institute a framework that would govern future challenges to section 1231(a)(6) detention. "[F]or the sake of uniform administration in the federal courts," the Court found that post-removal detention was "presumptively reasonable" for the first six months. Id. at 700–01, 121 S.Ct. 2491. When that "presumptively reasonable" six-month period ends, aliens seeking release from custody bear the initial burden of providing "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." Id. at 701, 121 S.Ct. 2491 ; see Banda v. McAleenan , 385 F. Supp. 3d 1099, 1117 (W.D. Wash. 2019) (explaining that "at six months, the burden is on the detainee—not the government—to establish a basis for release"). Once that initial showing is made, the burden shifts to the Government to respond with evidence sufficient to rebut it. See Zadvydas , 533 U.S. at 701, 121 S.Ct. 2491.

B. The History of U.S.-Vietnam Repatriation Relations

After the Vietnam War, the North Vietnamese government established the current Socialist Republic of Vietnam ("Vietnam"). (Dkt. 22-12 [Declaration of Tu-Huong Nguyen-Vo, hereinafter "Nguyen-Vo Decl."] ¶ 7.) Around that time, waves of people from the former Republic of Vietnam (South Vietnam) fled the country to escape political persecution. (Id. ) Under various humanitarian programs, the United States accepted hundreds of thousands of Vietnamese refugees, including Petitioners. (Id. ¶ 13.)

Between the end of the Vietnam War and 2008, Vietnam refused to repatriate any Vietnamese immigrants who had been ordered removed from the United States. (Dkt. 124-2 [Respondents' Statement of Genuine Disputes, hereinafter "Resp. Statement"] ¶ 2.) Before a Vietnamese immigrant without a passport or other travel document2 can be repatriated, Vietnam must issue a passport or other travel document in response to a request from ICE. (Id. ¶ 1.) In 2008, the United States and Vietnam reached a diplomatic agreement pursuant to which Vietnam agreed to start considering repatriation requests for certain Vietnamese immigrants. (Id. ¶ 3.) Specifically, the agreement obligated Vietnam to consider repatriation requests for Vietnamese immigrants who had arrived in the United States after July 12, 1995. (Dkt. 27-1 [2008 Agreement] at Art. II, ¶ 1.) The agreement also provided that "Vietnamese citizens are not subject to return to Vietnam under this agreement if they arrived in the United States before July 12, 1995." (Id. at Art. II, ¶ 2.) Relying on this provision, Vietnam maintained its policy of non-repatriation for pre-1995 Vietnamese immigrants after signing the 2008 agreement. (Resp. Statement ¶ 5; Dkt. 124-3 [Declaration of Julian Kurz, hereinafter "Kurz Decl."] at Ex. B [Deposition of John Schultz, hereinafter "Schultz Dep."] at 62:6-11.)

C. Post-Removal Detention Practices for Pre-1995 Vietnamese Immigrants

Prior to 2017, U.S. Immigration and Customs Enforcement ("ICE") maintained that the removal of pre-1995 Vietnamese immigrants was unlikely given Vietnam's consistent refusal to repatriate them. (FAC ¶ 3.) Accordingly, ICE adopted a policy of detaining pre-1995 Vietnamese immigrants for no longer than ninety days after their removal orders became final. (Id. ) After ninety days, ICE generally released them into the community on orders of supervision. (Id. )

In 2017, ICE entered into negotiations with Vietnam that were aimed at amending the 2008 Agreement and developing a new policy that would allow for pre-1995 Vietnamese immigrants to be repatriated. (Kurz Decl. at Ex. A [Deposition of Marla Jones, hereinafter "Jones Dep."] at 28:11-19). These negotiations were somewhat successful. Although the 2008 agreement was not officially amended, Vietnamese officials verbally committed to begin considering ICE travel document requests for pre-1995 Vietnamese immigrants on a case-by-case basis, without explicitly committing to accept any of them. (Resp. Statement ¶ 8.)

After receiving this verbal commitment in 2017, ICE departed from its longstanding practice of releasing pre-1995 Vietnamese immigrants with final orders of removal after ninety days of detention. Instead, it began detaining them for more than ninety days based on the possibility that Vietnam might issue the requisite travel documents. (FAC ¶ 4.) ICE also began re-detaining some pre-1995 Vietnamese immigrants who had previously been released on orders of supervision. (See, e.g. , Dkt. 65-2 [Declaration of Sieu Nguyen, hereinafter "Nguyen Decl."] ¶¶ 11–12.) Petitioners responded by filing this lawsuit challenging ICE's new detention practices on February 22, 2018. (Dkt. 1.)

On August 6, 2018, ICE met with Vietnamese officials again to continue discussions about the status of pre-1995 Vietnamese immigrants. (Dkt. 67-1 [Declaration of Michael V. Bernacke, hereinafter "Bernacke Decl."] ¶ 2.) After that meeting, ICE reversed its position again. ICE conceded that, despite Vietnam's verbal commitment to consider travel document requests for pre-1995 immigrants, in general, the removal of these individuals was still not significantly likely. (Resp. Statement ¶ 12.) In October 2018, ICE instructed field offices to resume the practice of releasing pre-1995 Vietnamese immigrants within 90 days of a final order of removal. (Dkt. 119-2 [Declaration of Tuan V. Uong, hereinafter "Uong Decl."] at Ex. F; Schultz Dep. at 178:9-22.) That policy remains in place today. (Resp. Statement ¶ 12.)

D. The Petitioners

Petitioners are Vietnamese immigrants who came to the United States prior to July 12, 1995. (FAC ¶ 1.) They became lawful permanent residents years ago but, based on criminal convictions,...

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