holding that any interpretation 18 of the relevant detention statute—8 U.S.C. § 1231—that would permit “indefinite 19 detention of an alien would raise a serious constitutional problem”
How later courts described this case
- holding that any interpretation 18 of the relevant detention statute—8 U.S.C. § 1231—that would permit “indefinite 19 detention of an alien would raise a serious constitutional problem”
Written by the judges who cited it.
The opinion
1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF CALIFORNIA
3 Loc Minh NGUYEN, Case No.: 25-cv-2441-AGS-MMP
4 Petitioner,
ORDER GRANTING MOTION TO
5 v. APPOINT COUNSEL (ECF 6)
6 WARDEN, et al.,
7 Respondents.
8
9 Petitioner Loc Minh Nguyen requests appointed counsel in support of his habeas
10 corpus petition. (See ECF 6); see also 28 U.S.C. § 2241 (habeas corpus). Courts may
11 appoint an attorney for an “impoverished habeas petitioner” when “the interests of justice
12 so require.” Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (cleaned up); see also
13 18 U.S.C. § 3006A(a)(2)(B). In this assessment, courts evaluate a petitioner’s
14 (a) “likelihood of success on the merits” and (b) “ability . . . to articulate his claims pro
15 se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d
16 1328, 1331 (9th Cir. 1986).
17 A. Financial Eligibility
18 As a threshold matter, the government challenges whether Nguyen “has
19 demonstrated that he is financially eligible to receive Court-appointed legal
20 representation.” (ECF 8, at 2.) But Nguyen asserts that he “do[es] not have any savings,”
21 “cannot make money while in immigration detention,” and “do[es] not think that [he] can
22 afford a lawyer.” (ECF 6, at 12.) He also has “no assets” and “no property,” and his “car
23 was impounded” while in custody. (ECF 11-1, at 1.) So Nguyen sufficiently alleges that he
24 cannot afford counsel.
25 B. Likelihood of Success
26 Nguyen has also established a sufficient likelihood of success to warrant appointing
27 legal representation. According to Nguyen, in 1979 he “came to the United States” from
28 Vietnam and “got a green card.” (ECF 6-1, at 2.) After a “felony theft” conviction “around
1 1994,” he lost his immigration status and an immigration judge “ordered [him] removed”
2 in “2001.” (ECF 6, at 12.) He was “detained for about 16 months,” but then Immigration
3 and Customs Enforcement “released” him “because ICE could not remove [him]” to
4 Vietnam. (Id.)
5 Although ICE previously released Nguyen, it may “revoke [his] release” and “return
6 [him] to custody if, on account of changed circumstances,” ICE “determines that there is a
7 significant likelihood” that he “may be removed in the reasonably foreseeable future.” See
8 8 C.F.R. § 241.13(i)(2). In fact, on “June 4, 2025,” ICE allegedly detained Nguyen again.
9 (ECF 6, at 12.) Yet Nguyen argues that the government will run into the same stumbling
10 block as before because “Vietnam has a longstanding policy of not accepting pre-1995
11 Vietnamese immigrants for deportation.” (Id. at 3.)
12 He notes that a 2008 “repatriation treaty” between the United States and Vietnam
13 “exempted pre-1995 Vietnamese immigrants.” (Id.) And despite a 2020 agreement that
14 “created a process for removing pre-1995 Vietnamese immigrants,” only “four immigrants
15 who came to the U.S. before 1995 were given travel documents and deported” “between
16 September 2021 and September 2023.” (Id. at 3–4.) What’s more, ICE previously detained
17 Nguyen for “for about 16 months” and has detained him for more than 130 days in his most
18 recent detention. (ECF 6, at 12.) Collectively, that far exceeds the
19 “six-month presumptively reasonable” “post-removal[-order]” “detention period.” See Kim
20 Ho Ma v. Ashcroft, 257 F.3d 1095, 1102 n.5 (9th Cir. 2001) (quotations omitted).
21 The government disputes Nguyen’s likelihood of success on the merits, asserting
22 that (1) the government is engaging in “diligent efforts” “to prepare a travel document
23 package to send to the Vietnamese embassy” and (2) the six-month period is not
24 “aggregated,” but rather resets with each detention. (ECF 8, at 2–3.) Neither point is
25 persuasive.
26 As to the first argument, courts seem to have universally rejected the notion that
27 mere “diligent efforts” “to prepare a travel document” (id.) suffice to show a significant
28 likelihood of removal in the reasonably foreseeable future. See, e.g., Hoac v. Becerra, No.
1 2:25-CV-01740-DC-JDP, 2025 WL 1993771, at *4 (E.D. Cal. July 16, 2025) (“The fact
2 that Respondents intend to complete a travel document request for Petitioner does not make
3 it significantly likely he will be removed in the foreseeable future.”); Sun v. Noem, No.
4 3:25-CV-02433-CAB-MMP, 2025 WL 2800037, at *2, *4 (S.D. Cal. Sept. 30, 2025)
5 (ruling that petitioner is likely to succeed on the merits of the habeas petition under
6 § 241.13(i) when respondents were “preparing to apply for the necessary documents to
7 remove Petitioner”); Nguyen v. Hyde, 788 F. Supp. 3d 144, 152 (D. Mass. 2025) (rejecting
8 respondents’ argument under § 241.13 when ICE was “currently processing a travel
9 document for [petitioner] to return to Vietnam”).
10 As for the government’s second point, district courts appear to have unanimously
11 “held that the six-month period does not reset when the government detains an alien
12 under 8 U.S.C. § 1231(a), releases him from detention, and then re-detains him again.”
13 Sied v. Nielsen, No. 17-CV-06785-LB, 2018 WL 1876907, at *6 (N.D. Cal. Apr. 19, 2018)
14 (collecting cases). So Nguyen has adequately alleged that the government will again be
15 unable to remove him in the “reasonably foreseeable future” and that he’s been detained
16 after the presumptively reasonable post-removal-order six-month period. See 8 C.F.R.
17 § 241.13(i); Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (holding that any interpretation
18 of the relevant detention statute—8 U.S.C. § 1231—that would permit “indefinite
19 detention of an alien would raise a serious constitutional problem”).
20 C. Complexity of the Legal Issues
21 The final attorney-appointment consideration—the complexity of the legal issues—
22 similarly points in favor of appointing an attorney. The parties here must interpret intricate
23 statutes, grapple with indefinite-detention-related common law, and navigate agency
24 regulations. See, e.g., 8 U.S.C. § 1231(a)(6); Zadvydas, 533 U.S. at 690; 8 C.F.R.
25 § 241.13(i). This undertaking is entirely within the immigration legal context, which has
26 been deemed “second only to the Internal Revenue Code in complexity.” United States v.
27 Ahumada-Aguilar, 295 F.3d 943, 950 (9th Cir. 2002) (quotations omitted); see also Torres
28 v. Barr, 976 F.3d 918, 923 (9th Cir. 2020) (“Divining [the immigration laws’] meaning is
1 ordinarily not for the faint of heart.”). Given Nguyen has “no legal education or training”
2 and “cannot use the internet without restriction” to research or address the government’s
3 legal arguments (ECF 6, at 12), he has adequately shown that he cannot “articulate his
4 claims” without a lawyer, see Wilborn, 789 F.2d at 1331.
5 Respondents’ arguments to the contrary miss the mark. They suggest that the
6 operative “question is . . . whether denial of Petitioner’s motion would amount to a denial
7 of due process.” (ECF 8, at 3.) True, “counsel must be appointed to represent indigent
8 defendants in [habeas] proceedings when the complexities of the case are such that denial
9 of counsel would amount to a denial of due process.” Brown v. United States, 623 F.2d 54,
10 61 (9th Cir. 1980) (emphasis added). But that’s not the only circumstance in which the
11 Court may appoint counsel. In addressing the related question of whether the court can
12 appoint counsel, the Ninth Circuit has been clear: “In the absence of such circumstances
13 [mandating appointment], a request for counsel in [habeas] proceedings . . . is addressed to
14 the sound discretion of the trial court.” Id. Considering that the “complex provisions of the
15 [Immigration and Nationality Act] have provoked comparisons to a morass, a Gordian
16 knot, and King Minos’s labyrinth in ancient Crete,” Torres, 976 F.3d at 923 (cleaned up),
17 this Court will appoint counsel. Other courts in this district have done the same under
18 similar circumstances. See, e.g., Phan v. Warden, Case No. 25-cv-2369-AJB, ECF 5,
19 ECF 8 (S.D. Cal. Sept. 25, 2025) (appointing counsel for a habeas petitioner in the
20 immigration context whose claims implicated 8 U.S.C. § 1231(a)(6), Zadvydas, and
21 8 C.F.R. § 241.13(i)); Rebenok v. Noem, Case No. 25-cv-2171-TWR, ECF 6 (S.D. Cal.
22 Sept. 19, 2025) (same).
23 CONCLUSION
24 Nguyen’s attorney-appointment request is GRANTED. Federal Defenders of
25 San Diego, Inc., is appointed to represent Nguyen, given that organization’s expressed
26 willingness to represent him in this matter. (See generally ECF 6.)
27 By October 31, 2025, respondents must return or answer Nguyen’s petition. Any
28 reply or traverse is due by November 7, 2025.
1 || Dated: October 21, 2025
3 Hon. Andrew G. Schopler
A United States District Judge
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