Xiao Ao v. Kristi Noem, et al.
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
Petitioner Xiao Ao, an immigration detainee ordered removed to China with withholding of removal granted, filed a petition for a writ of habeas corpus seeking release under *Zadvydas* and an order requiring notice and a hearing before removal to a third country. The Court denied the request for release as premature but granted the request for notice and an opportunity to be heard before removal to a third country.
| What the court decided | The model |
|---|---|
Denial of Petition for release from custody“Hence, the Court finds his request for release is premature and DENIES WITHOUT PREJUDICE the Petition to the extent it seeks release from custody.” | agree with court The removal order was issued on July 21, 2025, and the order was filed on December 9, 2025. This period is approximately 4.5 months, which is less than the six-month presumption established in *Zadvydas*. Therefore, the petitioner has not yet reached the point where the burden shifts to the government to show a significant likelihood of removal in the reasonably foreseeable future. The denial is procedurally correct at this stage. |
Grant of Petition for order requiring notice and opportunity to be heard before removal to a third country“Because the Court finds this memo is contrary to law, the Court GRANTS the Petition to the extent it seeks notice and an opportunity to be heard before removal to a third country.” | agree with court The court relies on *Andriasian v. I.N.S.* to establish the right to notice and a hearing before removal to a third country. It finds that an ICE memo purporting to waive this right based on State Department assurances is contrary to law. This aligns with the principle that administrative agency memoranda cannot override statutory or judicially recognized due process rights in this context. |
The order itself: sound — The court correctly applies the *Zadvydas* timeline to deny the release request as premature. It correctly cites *Andriasian* to support the due process requirement for notice and a hearing before third-country removal and logically concludes that an internal ICE memo cannot override this judicially established right. The reasoning is direct and supported by the cited authorities.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 XIAO AO, Case No. 25-cv-03256-BAS-VET 12 Petitioner, ORDER GRANTING IN PART AND 13 v. DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS 14 KRISTI NOEM, et al., (ECF No. 1) 15 Respondents. 16 17 18 On July 21, 2025, an Immigration Judge ordered Petitioner removed from the United 19 States but granted withholding of removal to China. (Petition (“Pet.”), ECF No. 1.) 20 Petitioner now argues there is no significant likelihood he will be removed in the 21 reasonably foreseeable future and thus must be released pursuant to Zadvydas v. Davis, 22 533 U.S. 678 (2001). (Id.) The Government files a Return in Opposition (ECF No. 5), and 23 Petitioner files a Traverse (ECF No. 7). The Court GRANTS IN PART and DENIES IN 24 PART the Petition. 25 Zadvydas establishes a presumption that six months is a reasonable time for the 26 Government to remove an individual after the removal order is granted. 533 U.S. at 701. 27 Although this Court agrees this rule is a rebuttable presumption, Petitioner fails to rebut 28 | ||the presumption. Hence, the Court finds his request for release is premature and DENIES 2 || WITHOUT PREJUDICE the Petition to the extent it seeks release from custody. 3 However, Petitioner also seeks an order that the Government not remove him to a 4 country without notice and an opportunity to be heard. (Pet.) The Government may 5 ||not remove an individual to a third country without such notice and an opportunity to 6 ||respond. Andriasian v. I.N.S., 180 F.3d 1033, 1041 (9th Cir. 1999). Despite this 7 ||requirement, a June 6, 2025, Immigration and Customs Enforcement (“ICE”) memo 8 indicates ICE need not give immigrants notice or a hearing before removal—provided the 9 || State Department finds the third country has given credible assurances against persecution 10 || and torture. (Peti, Ex. B.) Because the Court finds this memo is contrary to law, the Court 11 || GRANTS the Petition to the extent it seeks notice and an opportunity to be heard before 12 ||}removal to a third country. 13 For the reasons stated above, the Court DENIES the Petition WITHOUT 14 || PREJUDICE to the extent it seeks immediate release. If six months pass without any 15 || likelihood of removal in the reasonably foreseeable future, Petitioner is free to refile the 16 || Petition at that time. The Court GRANTS the Petition to the extent it seeks an order that 17 be given notice and an opportunity to be heard before removal to a third country. The 18 || Court ORDERS: 19 Respondents are PROHIBITED from removing Petitioner Xiao Ao without 0 providing Petitioner with notice of the country they plan to remove him to and an opportunity to be heard. 21 22 || The Clerk of Court shall close the case. 23 IT IS SO ORDERED. 24 25 || DATED: December 9, 2025 Yi ly A (Dipharb 26 Hon. Cynthia Bashant, Chief Judge 57 United States District Court 28 ~_9_