Nguyen

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

TINH VAN NGUYEN, )

)

Petitioner, )

)

v. ) Case No. CIV-26-728-JD

)

WARDEN OF DIAMONDBACK )

DETENTION FACILITY et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Tinh Van Nguyen, a noncitizen appearing with counsel1, filed

a motion for preliminary injunction, Doc. 6, and an emergency motion to stay

removal pending resolution of habeas corpus proceedings, Doc. 7.2 United

States District Judge Jodi W. Dishman referred the case to the undersigned

Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C).

Doc. 8.

For the reasons below, the undersigned recommends the Court deny

Petitioner’s motions.

1 This Report and Recommendation “uses the term ‘noncitizen’ as

equivalent to the statutory term ‘alien.’” Nasrallah v. Barr, 590 U.S. 573, 578

n.2 (2020) (citing 8 U.S.C. § 1101(a)(3)).

2 Citations to a court document are to its electronic case filing designation

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

I. Factual background and procedural history.

Petitioner is a native and citizen of Vietnam. Doc. 1, at 1. “He entered

the United States over two years ago” through “the Orderly Departure

Program created to manage the outflow of Vietnamese refugees.” Id. He

“entered the United States with permission and annually maintained his

necessary work permit in compliance with all federal immigration laws.” Id.

On or about October 23, 2001, an Immigration Judge (IJ) ordered Petitioner to

be removed, but “National Security Concerns . . . prohibited his return to

Vietnam.” Id.

At some point, Petitioner was released by Immigration & Customs

Enforcement (ICE) under an order of supervision (OOS) with conditions of

release. See id. at 2, 10. He maintains that he “remained in compliance with

all conditions of release set forth by ICE in order to properly remain in the

United States since his deportation order in 2001.” Id. at 2. On September 17,

2025, Petitioner was detained at his mandated routine check-in and

“subsequently detained by ICE before being sent to Diamondback Correctional

Facility in Watonga, Oklahoma[.]” Id.

Petitioner filed his habeas corpus petition on April 6, 2026. Id. at 1. He

claims in Ground One of his petition that Respondents violated the

Administrative Procedure Act (APA), the Immigration and Nationality Act

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(INA), and federal regulations when they revoked his OOS and detained him

even though he had reported as required. Doc. 1, at 11-14. In Ground Two, he

claims he is subject to “unlawful indefinite detention” in violation of the APA,

INA, the Accardi doctrine3, and 8 U.S.C. § 1231 because Respondents have

made no efforts toward his removal in several years and there is no significant

likelihood they will remove him in the reasonably foreseeable future as

required under Zadvydas v. Davis, 533 U.S. 678 (2001). Id. at 14-16. He asserts

in Ground Three that he is subject to indefinite detention and unlawful re-

detention in violation of his Fifth Amendment substantive due process rights.

Id. at 16-17. And in Ground Four, he asserts he is subject to indefinite

detention in violation of his Fifth Amendment procedural due process rights.

Id. at 17-18. He seeks, among other things, a declaration that his re-detention

is unlawful and an order directing Respondents to immediately release him

from detention. Id. at 19.

On April 30, 2026, Petitioner filed his motion for a preliminary

injunction and an emergency motion to stay removal pending resolution of his

habeas corpus proceedings. Docs. 6 & 7. In his emergency motion, Petitioner

advised the Court that he is scheduled to be removed by Respondents on May

3 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

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5, 2026, to Vietnam. Doc. 7, at 1. Petitioner seeks either the restoration of the

status quo by his immediate release, see Doc. 6, at 14, or, the stay of his

removal, see Doc. 7, at 8.

II. Discussion.

A. Temporary Restraining Order requirements.

Under Federal Rule of Civil Procedure 65(b)(1), a court may only grant a

motion for a temporary restraining order without notice, if the moving party

has complied with certain requirements, including “certif[ying] in writing any

efforts made to give notice [to the non-movant] and the reasons why it should

not be required.” Fed. R. Civ. P. 65(b)(1)(B).4 Petitioner has not complied with

those requirements here as he has not submitted to the Court any certification

of efforts made to give notice to Respondents before filing the motion.

4 “Ex parte [TROs] are no doubt necessary in certain circumstances, but

under federal law they should be restricted to serving their underlying purpose

of preserving the status quo and preventing irreparable harm just so long as is

necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v.

Teamsters, 415 U.S. 423, 439 (1974) (internal citation omitted). A TRO is

issued “pending the hearing of a motion for a temporary injunction,” and “its

life ceases with the disposition of that motion and without further order of the

court[.]” Houghton v. Cortelyou, 208 U.S. 149, 156 (1908) (internal quotation

marks omitted). By contrast, “[t]he purpose of a preliminary injunction is

merely to preserve the relative positions of the parties until a trial on the

merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).

4

Therefore, the Court should deny the motion. See, e.g., Bahadorani v.

Bondi, et al., No. CIV-25-1091-PRW, Doc. 11 (W.D. Okla. Sept. 24, 2025)

(denying temporary restraining order when the petitioner disregarded Fed. R.

Civ. P. 65(b)(1)); Honeycutt v. Mitchell, No. CIV-08-140-W, 2008 WL 4694226,

at *1 (W.D. Okla. Oct. 23, 2008) (recognizing that a temporary restraining

order is “an extraordinary remedy, appropriate only when the procedural

safeguards of Fed. R. Civ. P. 65(b) are scrupulously honored”).

B. Petitioner’s request for an injunction is barred by 8 U.S.C.

§ 1252(g).

Petitioner seeks an order enjoining Respondents from executing

Petitioner’s removal order. Doc. 7, at 8. The Court’s first consideration must be

whether it has jurisdiction to grant Petitioner’s requested relief. See Sinochem

Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31 (2007) (“[A]

federal court generally may not rule on the merits of a case without first

determining that it has jurisdiction.” (internal quotation marks omitted)). This

request falls squarely within 8 U.S.C. § 1252(g)’s jurisdictional bar because it

arises from Respondents’ discretionary decision to execute Petitioner’s removal

order.

Under 8 U.S.C. § 1252(g), “no court shall have jurisdiction to hear any

cause or claim by or on behalf of any alien arising from the decision or action

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by the Attorney General to commence proceedings, adjudicate cases, or execute

removal orders against any alien.” The Supreme Court limits § 1252(g)’s

application to those three specified actions and stresses that the statutory aim

is to prevent “attempts to impose judicial constraints upon prosecutorial

discretion.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482,

485 n.9 (1999); see McClosky v. Keisler, 248 F. App’x 915, 918 (10th Cir. 2007)

(“Section 1252(g)’s jurisdictional limitation reaches claims that the Attorney

General is unfairly executing a removal order.” (internal quotation marks

omitted)). “Congress decided that, as a matter of public policy, [federal courts]

do not have jurisdiction to decide claims that arise from the decision of the

Executive Branch to execute a removal order.” Rranxburgaj v. Wolf, 825 F.

App’x 278, 283 (6th Cir. 2020). This remains true “whether or not [federal

courts] agree with ICE’s decision to execute [a petitioner’s] removal order.” Id.

In Rauda v. Jennings, 55 F. 4th 773, 778 (9th Cir. 2022), the Ninth

Circuit held that § 1252(g) deprived the court of jurisdiction over the

petitioner’s request to enjoin the government from executing his removal order

until the Board of Immigration Appeals (BIA) ruled on his motion to reopen.

Id. at 776, 778. It held that § 1252(g)’s “plain text” precluded judicial review

because the “[t]he execution of [the] removal order [was] precisely what” the

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petitioner was challenging. Id. at 777. Petitioner does the same in seeking to

prevent his imminent removal.

Petitioner asserts he has raised significant and important constitutional

challenges to the Respondents’ decision to detain him, and the Court should

address them before he is removed to Vietnam today. Doc. 7, at 1-2. While

Petitioner’s challenge to the legality of his initial detention may fall squarely

within this Court’s habeas jurisdiction, the relief Petitioner seeks—prevention

of his imminent removal—does not. See, e.g., Rauda, 55 F.4th at 778 (holding

that § 1252(g) bars any challenge to the discretionary decision to execute a

removal order “[n]o matter how [a petitioner] frames it”); Vo v. Warden of

Diamondback Det. Facility, No. 26-727-D, Doc. 20, at 2-3 (adopting Report and

Recommendation recommending denial of similar challenge by a Vietnamese

noncitizen to his removal proceedings as “this Court does not have jurisdiction

to enjoin Respondents from removing Petitioner to Vietnam”); cf. Dep’t of

Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 119 (2020) (“Claims so far

outside the ‘core’ of habeas may not be pursued through habeas.”). And “the

discretion to decide whether to execute a removal order includes the discretion

to decide when to do it. Both are covered by the statute.” Tazu v. Att’y Gen.

U.S., 975 F.3d 292, 297 (3d Cir. 2020)).

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Petitioner seeks an order preventing Respondents from executing his

final removal order. Section 1252(g) bars this Court’s consideration of this

request. So the Court should deny Petitioner’s emergency motion to stay his

removal to Vietnam.

III. Recommendation and notice of right to object.

For the reasons set forth above, the undersigned recommends the Court

DENY Petitioner’s motion for a preliminary injunction and emergency motion

to stay his removal to Vietnam. Docs. 6 & 7.

The undersigned advises Petitioner of his right to file an objection to this

Report and Recommendation with the Clerk of this Court by May 12, 2026, in

accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72.5 The

undersigned further advises that failure to make timely objections to this

Report and Recommendation waives the right to appellate review of both

5 Given the expedited nature of these proceedings, the undersigned has

reduced the typical objection time to this Report and Recommendation to seven

days. See Fed. R. Civ. P. 72(b)(2) advisory committee’s note to 1983 addition

(noting that rule establishing 14-day response time “does not extend to habeas

corpus petitions, which are covered by the specific rules relating to proceedings

under Sections 2254 and 2255 of Title 28.”); see also Whitmore v. Parker, 484

F. App’x 227, 231, 231 n.2 (10th Cir. 2012) (“The Rules Governing § 2254 Cases

may be applied discretionarily to habeas petitions under § 2241” and that

“while the Federal Rules of Civil Procedure may be applied in habeas

proceedings, they need not be in every instance – particularly where strict

application would undermine the habeas review process”).

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factual and legal questions contained herein. Moore v. United States, 950 F.2d

656, 659 (10th Cir. 1991). This Report and Recommendation does not

terminate the referral to the undersigned Magistrate Judge in the captioned

matter.

ENTERED this 5th day of May, 2026.

hea tere _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE