The opinion
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UNITED STATES DISTRICT COURT
6 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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JULIAN DAVID PALACIOS OBREGON, CASE NO. C26-0484-KKE
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Petitioner(s), ORDER ON HABEAS PETITION
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v.
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TODD BLANCHE,
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Respondent(s).
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Petitioner Julian David Palacios Obregon, proceeding through counsel, petitions for a writ
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of habeas corpus pursuant to 28 U.S.C. § 2241. Dkt. No. 20. Petitioner is a Colombian national
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and legal resident of Canada currently detained at the Northwest ICE Processing Center
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(“NWIPC”) in Tacoma, Washington. He challenges the legality of his ongoing confinement and
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seeks adjacent relief related to his impending removal to Canada. For the following reasons, the
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Court finds that Petitioner has not shown that he is unlawfully detained and therefore denies his
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request for immediate release. However, the Court also finds, consistent with well-established
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authority from this District, that due process entitles Petitioner to notice and an opportunity to have
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his fear of removal to Canada (or any other third country) heard by an immigration judge in
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reopened removal proceedings prior to being removed to any country not specified in his final
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order of removal.
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Accordingly, the Court will grant in part and deny in part Petitioner’s amended petition.
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1 I. BACKGROUND
2 A. Factual Background
3 Petitioner is a national and citizen of Colombia currently detained at NWIPC. Dkt. No. 20
4 at 5–6. In Colombia, Petitioner was engaged in various social and political causes in his
5 community. Id. at 7–8. According to his operative petition, in 2018, Petitioner received the “Best
6 Leaders of Colombia” award after working on an initiative to transition members of criminal
7 groups into gainful employment or education. Id. Because of his activism against criminal
8 organizations, Petitioner became the target of threats and violence, including multiple
9 assassination attempts. Id. at 8. When Petitioner began investigating and reporting on corruption
10 by members of Colombia’s Congress and other government officials, he received additional death
11 threats and experienced several attempts on his life. Dkt. No. 1 ¶¶ 30–42.
12 Petitioner fled Colombia in January 2024, after being warned of another assassination plot
13 and plans to harm his family. Id. ¶ 42. He initially arrived in Ecuador, where he alleges three
14 police officers beat him for unknown reasons. Id. ¶ 43. Later that year, Petitioner claims that two
15 men on a motorcycle attacked him, shooting him multiple times in the legs. Id. ¶ 44. He also
16 claims that, on three different occasions, men on motorcycles had asked the receptionist at his
17 hotel whether Petitioner was staying there. Id. Fearing that he was in imminent danger if he
18 remained in Ecuador, Petitioner obtained a visa to Canada, where he resettled in August 2024. Id.
19 Petitioner obtained legal residency in Canada. Dkt. No. 20 at 10, Dkt. No. 14 ¶ 6. While
20 living there, Petitioner claims he continued to face threats related to his activism in Colombia.
21 Dkt. No. 20 at 8. In particular, he claims that, one day, another Colombian recognized Petitioner,
22 followed him home, and posted a video online that went viral, leading to multiple online threats.
23 Id.; Dkt. No. 1 ¶ 45. Two days later, Petitioner claims that “someone broke into [his] apartment
24 and painted threats on the windows and walls.” Dkt. No. 1 ¶ 45. When he complained to the
1 police, he claims they told him nothing could be done. Dkt. No. 20 at 9. Fearing he would not be
2 safe in Canada, Petitioner decided to leave for the United States, where his brothers had previously
3 been granted asylum. Id.; Dkt. No. 1 ¶¶ 44, 47.
4 On December 1, 2024, Petitioner arrived at the Peace Arch port of entry and presented
5 himself to Customs and Border Protection (“CBP”), explaining he intended to apply for asylum.
6 Dkt. No. 28-1 at 3. Petitioner expressed fear of returning to either Colombia or Canada, and CBP
7 detained him and transported him to NWIPC, where he has been in custody ever since. Id.
8 On August 21, 2025, an immigration judge (“IJ”) ordered Petitioner removed to Colombia
9 but granted him withholding of removal to that country. Dkt. No. 20 at 4–5, 25; Dkt. No. 28-2.
10 Immigration and Customs Enforcement (“ICE”) subsequently contacted Canada Border Services
11 Agency, which informed ICE of Petitioner’s legal residency in Canada and, later, stated it would
12 accept Petitioner’s return to Canada. Dkt. No. 14 ¶ 6, Dkt. No. 32-3 at 2, Dkt. No. 32-4 at 2. ICE
13 served Petitioner with a third country removal notice indicating it intended to remove him to
14 Canada—a “third county” despite his residency there because it was not listed on his removal
15 order. Dkt. No. 14 ¶ 8. Petitioner again expressed fear of returning to Canada and was referred to
16 U.S. Citizenship and Immigration Services (“USCIS”) for a screening interview to assess his
17 eligibility for protection from removal to Canada. Id. ¶ 9.
18 USCIS interviewed Petitioner for about four and a half hours over two days, during which
19 he was represented by a Department of Justice accredited representative. Dkt. No. 30-1 ¶¶ 2–3.
20 USCIS found that Petitioner was credible but nevertheless determined he “did not establish that it
21 is more likely than not that he will be persecuted on account of a protected ground or tortured in
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Canada.” Dkt. No. 34-2 at 3–4. The Government1 initially stated that ICE was awaiting a travel
2 document from Canada to effectuate his removal (Dkt. No. 25 at 10–11, Dkt. No. 26 ¶ 6) but has
3 more recently informed Petitioner’s counsel that Canada is not issuing a travel document but has
4 confirmed it “will receive him into Canada” nonetheless (Dkt. No. 32-2 at 5).
5 While detained, Petitioner has sought medical treatment for gastrointestinal symptoms
6 potentially related to a stomach infection called Heliobacter Pylori (“H. Pylori”). Dkt. No. 20 at
7 3. The Court previously recounted his condition and treatment history at NWIPC in its earlier
8 order on Petitioner’s motion for a temporary restraining order (“TRO”):
9 [During his detention,] Petitioner contends that he has suffered severe abdominal
pain, vomiting, fecal incontinence, and gastrointestinal bleeding; requiring him to
10 wear adult diapers, causing distress, and harming his dignity. [Dkt. No. 9] at 1–2.
He contends that he has been denied immediate access to showers and is required
11 to shower with over a hundred other detainees, “making adequate hygiene
impossible.” Id. at 2. And he contends that NWIPC does not provide qualified
12 medical staff overnight. Id. at 2.
Respondent filed a declaration by NWIPC’s clinic director, Dr. Eddie Wang,
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responding to Petitioner’s claims and providing additional detail about his
condition and treatment. Dkt. No. 19. Dr. Wang states that Petitioner was first
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seen for concerns about abdominal pain, incontinence, and gastrointestinal bleeding
in January 2025, not long after he was initially detained. Id. ¶ 8. At that time,
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however, Petitioner stated that the current episode had subsided and he did not
currently need treatment. Id. A few weeks later, however, Petitioner complained
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again of recurring diarrhea, including bleeding, as well as vomiting. Id. ¶ 9.
NWIPC medical staff ordered a stool blood test, which returned negative, and an
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H. Pylori test, which returned positive. Id. ¶ 9–10. Staff then began treating
Petitioner’s H. Pylori with antibiotics and scheduled an ultrasound for April 2025.
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Id. ¶ 10.
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Days after staring his antibiotic treatment, Petitioner was seen again for complaints
of continuing abdominal pain, which Dr. Wang states is “typical with [an] H. Pylori
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treatment regimen.” Id. ¶ 13. NWIPC medical staff placed a “GI referral”—
presumably a referral to a gastroenterologist—and scheduled Petitioner for a
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Computed Tomography (“CT”) scan in May 2025. Id. Because a CT scan provides
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1 This order refers to Respondents Todd Blanche, Markwayne Mullin, and Drew H. Bostock generally as “the
Government.” Each of these three respondents is substituted for their predecessor pursuant to Federal Rule of Civil
24 Procedure 25(d).
1 greater evaluative detail than an ultrasound, Dr. Wang states that the previously
scheduled ultrasound was cancelled. Id.
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Between the end of February and early March 2025, NWIPC staff saw Petitioner
several more times for complaints of vomiting with blood, dizziness, abdominal
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pain, and heartburn. Id. ¶¶ 15–18. Dr. Wang’s declaration does not reflect any
treatments administered during these visits, except prescribing Maalox for the
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heartburn, but states that Petitioner’s vital signs and abdominal exams were normal.
Id.
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On March 12, 2025, Petitioner completed his first regimen of H. Pylori treatment
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and NWIPC medical staff ordered a retest to ensure the treatment’s efficacy. Id. ¶
19. According to Dr. Wang, Petitioner had been given adult diapers, but his
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incontinence resolved around this time. Id. Days later, however, Petitioner again
reported abdominal pain and was seen by medical staff (no treatment is reported,
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though, by that time, the CT scan was scheduled in a month and a half). Id. ¶ 20.
In late March, Petitioner’s H. Pylori retest results were returned, showing that the
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treatment had failed and that Petitioner remained positive for the infection. Id. ¶
21. Accordingly, staff initiated a second round of treatment on April 4, 2025. Id.
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¶ 22.
11 According to Dr. Wang, medical staff followed up two weeks later, and Petitioner
indicated he was doing better and reported that he still had intermittent diarrhea but
12 no blood. Id. ¶ 23. His CT scan was performed in early May, as scheduled, but the
findings “were normal and did not display any abnormalities.” Id. ¶ 24. Shortly
13 thereafter, Petitioner had his appointment with a gastroenterologist, who reviewed
Petitioner’s labs and CT scan with him. Id. ¶ 25. The gastroenterologist
14 recommended an esophagogastroduodenoscopy (“EGD”) and a colonoscopy. Id.
Due to “administrative delay[,]” the referral was not placed until July 16—two
15 months later—and was then approved and scheduled for September 3, 2025. Id. A
few weeks later, medical staff followed up with Petitioner, who, according to Dr.
16 Wang, reported that his abdominal symptoms had improved over the last several
weeks. Id. ¶ 26.
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Petitioner did not end up having his EGD and colonoscopy as scheduled.
18 According to Dr. Wang, this is because less than a week earlier, Petitioner went on
hunger strike and declined to call it off after medical staff informed him that the
19 procedures—which required sedation—could not be safely preformed unless he
regained his strength. Id. ¶¶ 27–30. Petitioner apparently ended the strike at some
20 point, and the procedures were rescheduled for February 26, 2026—after briefing
on the TRO was complete. Id. ¶ 32.
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In October 2025, Petitioner again reported intermittent abdominal pain and was
22 prescribed antibiotics and abdominal cramping medication. Id. Nearly a month
later, he was seen again for reports of recurring diarrhea with blood and abdominal
23 pain, but Petitioner reportedly stated that the symptoms “were flaring” but “got
better[.]” Id. ¶ 33. No treatment is reported for this visit. Id. Two weeks later,
24 medical staff followed up, and Petitioner reported his incontinence had returned
1 and that he had “recurring abdominal symptoms.” Id. ¶ 34. Staff conducted a stool
test, which returned negative for infections. Id. But just under two months later,
2 Petitioner again returned to medical staff complaining of recurring abdominal
symptoms, was retested for H. Pylori, and his test returned positive. Id. ¶¶ 35–36.
3 Accordingly, staff initiated H. Pylori treatment for a third time. Id. ¶ 36.
Dkt. No. 24 at 2–4.
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On February 26, 2026, Petitioner attended his rescheduled EGD and colonoscopy
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appointment but was, again, unable to receive a colonoscopy. Dkt. No. 27 ¶ 4. Dr. Wang states
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this was “due to improper bowel preparation.” Dkt. No. 27 ¶ 4. According to Dr. Wang,
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“Petitioner followed the bowel preparation regimen as ordered” but “[d]uring the preparation
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regimen, petitioner vomited some of the GI contents[,]” which was “deemed … improper
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preparation for the colonoscopy.” Id. Petitioner, however, contends that NWIPC failed to take
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steps to ensure he was given a low-fiber diet in the days leading up to the procedure, failed to
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ensure he was placed on a liquid diet for a full day, and was only given a brochure in English
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detailing these necessary preparations hours before the procedure. Dkt. No. 34 at 2–3; see also
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Dkt. No. 34-4 ¶¶ 2–4, 8–10. Petitioner claims that he was merely given a liquid to consume and
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told that it would suffice notwithstanding NWIPC’s failure to provide the necessary diet ahead of
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time. Dkt. No. 34 at 2–3. Petitioner received an EGD, the results from which are not in the record.
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Dkt. No. 27 ¶ 4.
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On March 25, the Court held a status conference at which the Government provided
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additional details about Petitioner’s treatment plan. The Government’s counsel stated that NWIPC
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medical staff believe Petitioner has a treatment-resistant subset of H. Pylori and have therefore
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ordered specialized medication for eradicating this strain. Petitioner will undergo a regimen of
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treatment once this medication arrives and will be retested weeks after that is complete to
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determine if he remains positive for the infection. Counsel also shared that Petitioner’s
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colonoscopy has been rescheduled for May 12, 2026. Prior to the procedure, ICE intends to
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1 schedule an appointment for Petitioner with a registered nurse and a translator, during which the
2 nurse will discuss the necessary preparation for the colonoscopy with Petitioner. Although,
3 according to counsel, NWIPC typically serves a low fiber diet, counsel expressed that ICE was
4 willing to ensure Petitioner is given such a diet in the days leading up to his procedure, as
5 recommended by his medical team. Counsel also indicated that, before the May 12 procedure, the
6 facility intends to move Petitioner to medical segregation sooner to ensure that he is able to initiate
7 an all-liquid diet at least 24 hours in advance of the procedure.
8 B. Procedural History
9 Petitioner, initially proceeding pro se, filed his original habeas petition on February 13,
10 2026. Dkt. No. 11. Since then, Petitioner has been appointed and obtained counsel from the Office
11 of the Federal Public Defender. See Dkt. Nos. 16, 17. The Court has denied two TRO motions
12 and granted or provisionally granted two others. Dkt. Nos. 7, 8, 24, 33. Most recently, the Court
13 provisionally granted Petitioner’s TRO motion and enjoined his transfer from this District pending
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complete briefing on the TRO motion.2 Dkt. No. 33 at 4. Petitioner’s amended petition (Dkt. No.
15 20) is now fully briefed and ripe for the Court’s consideration (see Dkt. Nos. 25, 34).
16 II. DISCUSSION
17 A. Legal Standard
18 To succeed on a habeas petition, a petitioner must show he “is in custody in violation of
19 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241. “The essence of
20 habeas corpus is an attack by a person in custody upon the legality of that custody, and … the
21 traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez,
22 411 U.S. 475, 484 (1973). A district court’s habeas jurisdiction includes challenges to
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24 2 The Government never filed an opposition to the TRO motion, so the provisional relief remains in place.
1 immigration-related detention. Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see also Demore v.
2 Kim, 538 U.S. 510, 517 (2003).
3 B. Punitive Confinement
4 Petitioner contends that the inadequacy of his medical care at NWIPC renders the
5 conditions of his confinement punitive in violation of due process. Dkt. No. 34 at 1–5. The
6 Government responds that challenges to conditions of confinement are not cognizable in habeas
7 and that Petitioner’s conditions are, in any event, constitutional. Dkt. No. 225 at 14–18.
8 The parties agree that the Fifth Amendment prohibits conditions of civil detention that
9 “amount to punishment of the detainee.” Dkt. No. 25 at 16 (quoting Bell v. Wolfish, 441 U.S. 520,
10 535 (1979); Dkt. No. 34 at 4. This is because civil detainees, such as noncitizens awaiting removal,
11 have not been adjudicated guilty of a punishable crime “in accordance with due process of law.”
12 Bell, 441 U.S. at 535–36; see also Wong Wing v. United States, 163 U.S. 228, 237 (1896) (holding
13 that “imprisonment at hard labor” of noncitizens subject to deportation “without a trial by jury”
14 violated due process). “Whether civil detention is unconstitutionally punitive … is a question that
15 clearly sounds in habeas because it goes directly to the legality of the detention itself.” Sorio v.
16 Hermosillo, No. 2:25-CV-02492-TL, 2026 WL 413530, at *9 (W.D. Wash. Feb. 13, 2026); see
17 also Doe v. Becerra, 723 F. Supp. 3d 688, 691 n.1 (N.D. Cal. 2024) (distinguishing Pinson v.
18 Carvajal, 69 F.4th 1059 (9th Cir. 2023), which involved a challenge to conditions of confinement
19 by criminally convicted prisoners, from challenges to punitive detention by civil detainees, which
20 may be brought in habeas).
21 The parties also agree on the applicable test for punitive confinement, which considers
22 whether a condition is either “intended to punish” or “excessive in relation to its non-punitive
23 purpose.” Jones v. Blanas, 393 F.3d 918, 933–34 (9th Cir. 2004) (citation modified); see also Dkt.
24 No. 25 at 16–17 (“A petitioner may show punishment through an express intent to punish or a
1 condition that is not ‘reasonably related to a legitimate governmental objective.’”) (quoting Bell,
2 441 U.S. at 538–39). Petitioner does not argue that the Government intends to punish him but,
3 rather, that the inadequacy of his medical care renders his confinement excessive in relation to the
4 purpose of effectuating his removal. Dkt. No. 34 at 5.
5 Having reviewed the record, the Court cannot conclude that Petitioner’s care at NWIPC
6 has been so deficient as to make his confinement punitive in violation of due process. Petitioner
7 compares his situation to Sorio, in which the court found “the unique facts” and “extreme
8 consequences” in that case—involving “a pattern of failures of care” that resulted in the partial
9 amputation of a detainee’s foot—so excessive as to render the conditions of the detention
10 unconstitutionally punitive. 2026 WL 413530, at *10–12; Dkt. No. 34 at 4. In Sorio, the facility’s
11 medical staff repeatedly ignored the detainee’s requests for care, refused to provide needed
12 antibiotics, continued to ignore his pleas as his condition worsened, and treated him with
13 medication for the wrong condition, possibly exacerbating his condition. 2026 WL 413530, at
14 *10. Having entered detention in good health, the detainee had after eight months suffered “two
15 partial foot amputations”; developed “ulcerative colitis …, acute blood loss anemia, [and] a kidney
16 injury”; and experienced “dramatic unintended weight loss.” Id. at *1.
17 By contrast, the record here reflects that Petitioner’s medical team has made consistent,
18 albeit not always successful, efforts to treat what has proven to be a treatment-resistant condition
19 with symptoms that “wax and wan[e]” over time. Dkt. No. 19 ¶ 33. Medical staff regularly saw
20 Petitioner regarding his symptoms; followed up with him after appointments to check on the
21 progression of symptoms; initiated testing, retesting, and treatment for his H. Pylori; and scheduled
22 referrals with a gastroenterologist as well as the recommended diagnostic procedures—i.e., a CT,
23 EGD, and colonoscopy. The record also indicates that, at least for a time, NWIPC accommodated
24 Petitioner’s request to shower alone to ensure he could adequately perform hygiene in privacy.
1 Dkt. No. 11-1 at 259, 272. NWIPC medical staff have taken steps to initiate Petitioner’s fourth
2 round of treatment for H. Pylori, this time ordering medication specifically intended for treatment-
3 resistant strains.
4 Petitioner’s traverse argues that NWIPC failed to take adequate steps to prepare him for
5 his February 26 colonoscopy, including failing to put him on a low-fiber diet or an all-liquid diet
6 for the requisite periods before the procedure. NWIPC has now rescheduled his colonoscopy and
7 intends to take additional steps to ensure he is prepared for the procedure in May. The Court
8 cannot find that the resulting delay renders Petitioner’s detention excessive in relation to its non-
9 punitive purposes. Petitioner cites no authority other than Sorio where inadequate medical care
10 was found to render a detainee’s conditions of civil confinement punitive; and the record here
11 simply does not reflect the sort of “objectively unreasonable failures of care” that warranted relief
12 in that case. 2026 WL 413530, at *10 (recounting a pattern of failures that “more likely than not
13 resulted in [the detainee’s] permanent disability”). Moreover, the record contains no evidence
14 comparing the conditions of confinement at NWIPC to those experienced by individuals in
15 criminal confinement, which Ninth Circuit caselaw suggests is important in evaluating claims of
16 punitive of civil confinement. See Jones, 393 F.3d at 931–35 (reversing dismissal of punitive
17 confinement claims where civil detainee demonstrated his conditions of confinement were, in
18 some respects, “substantially more restrictive than confinement in the Main Jail”); King v. Cnty.
19 of L.A., 885 F.3d 548, 556–58 (9th Cir. 2018) (finding conditions of confinement punitive where
20 civil detainee was housed in county jail under effectively the same conditions as criminal
21 detainees); Fraihat v. U.S. Immigr. & Customs Enf’t, 16 F.4th 613, 649 (9th Cir. 2021) (rejecting
22 punitive confinement claim where the “record lack[ed] evidence from which to draw any relevant
23 comparisons between the overall conditions of confinement of ICE detainees as compared to those
24 in criminal custody”).
1 With no record comparing Petitioner’s conditions of confinement to those of a penal
2 institution and because Petitioner has been receiving ongoing medical care, as described above,
3 Petitioner has not shown that he is entitled to release based on the conditions at NWIPC.
4 C. Indefinite Detention
5 Next, Petitioner argues he is entitled to release because his removal to Canada is not
6 reasonably foreseeable and his detention has thus become indefinite. Dkt. No. 20 at 25–26, Dkt.
7 No. 34 at 5–7. Detention of noncitizens following an order of removal is governed by the INA.
8 “When [a noncitizen] has been found to be unlawfully present in the United States and a final order
9 of removal has been entered, the Government ordinarily secures the [noncitizen’s] removal during
10 a subsequent 90-day statutory ‘removal period,’ during which time the [noncitizen] normally is
11 held in custody.” Zadvydas, 533 U.S. at 682. During the 90-day removal period, the Government
12 “shall detain” the noncitizen. 8 U.S.C. § 1231(a)(2)(A). Once the 90-day removal period ends,
13 the Government may continue to detain certain noncitizens. Id. § 1231(a)(6). “[A noncitizen]
14 ordered removed who is inadmissible …, removable[,] … or who has been determined by the
15 Attorney General to be a risk to the community or unlikely to comply with the order of removal,
16 may be detained beyond the removal period[.]” Id.
17 However, the INA does not authorize “indefinite, perhaps permanent, detention” of
18 noncitizens subject to final orders of removal. Zadvydas, 533 U.S. at 699. “A statute permitting
19 indefinite detention of [a noncitizen] would raise a serious constitutional problem [under] … [t]he
20 Fifth Amendment’s Due Process Clause.” Id. at 690. Thus, “once removal is no longer reasonably
21 foreseeable, continued detention is no longer authorized by statute.” Id. at 699. The
22 “presumptively reasonable” period for detention following a removal order is six months. Id. at
23 701.
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1 In challenging detention through a habeas petition, the petitioner bears the initial burden of
2 providing “good reason to believe that there is no significant likelihood of removal in the
3 reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. Once that showing is made, the
4 Government “must respond with evidence sufficient to rebut that showing.” Id. If the Government
5 fails to meet its burden, then the noncitizen must be released from detention. See Jennings v.
6 Rodriguez, 583 U.S. 281, 299 (2018).
7 Having been detained for over six months, Petitioner’s detention is no longer
8 “presumptively reasonable.” Zadvydas, 533 U.S. at 701. However, because the Government
9 notified Petitioner on February 12, 2026, that it intends to remove him to Canada, where he is a
10 legal resident, and Canada Border Services Agency has informed ICE it will accept Petitioner’s
11 return (Dkt. No. 14 ¶ 6, Dkt. No. 32-3 at 2, Dkt. No. 32-4 at 2), Petitioner has not met his initial
12 burden of providing “good reason to believe that there is no significant likelihood of removal in
13 the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. Indeed, it appears that ICE would
14 have removed Petitioner to Canada on March 9, 2026, when his guards began driving him toward
15 the border before turning around, apparently upon learning of the Court’s order provisionally
16 barring his transfer. Dkt. No. 34 at 13. Under these circumstances, it appears that Petitioner’s
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removal is imminent, and he is thus not entitled to release under Zadvydas at this time.3
18 D. Third Country Removal
19 In addition to his release, Petitioner seeks injunctive relief related to his potential removal
20 to a third country (i.e., Canada) under the Fifth Amendment to the United States Constitution, 8
21 U.S.C. § 1231, the Convention Against Torture, implementing regulations of the Immigration and
22 Nationality Act, and the Administrative Procedure Act. Dkt. No. 20 at 28–31. The Court will
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3 Nothing in this order prevents Petitioner from renewing his request for relief in the event that he is not ultimately
24 removed as intended.
1 grant some of Petitioner’s requested injunctive relief, after addressing its jurisdiction to hear
2 Petitioner’s claims.
3 1. Petitioner’s membership in the D.V.D. class does not divest the Court of jurisdiction.
4 The Government argues that the Court “should decline to exercise jurisdiction over
5 Petitioner’s third country removal claim as a matter of comity” because he is a member of the
6 certified plaintiff class in D.V.D v. Department of Homeland Security, Civ. A. No. 25-10676 (D.
7 Mass.). Dkt. No. 25 at 11–13. At the same time, the Government acknowledges that this Court
8 and others in this District have repeatedly rejected this argument. Id. at 13 (citing Emara v. Bondi,
9 No. C26-0116-KKE, 2026 WL 266067, at *3 (W.D. Wash. Feb. 2, 2026)). The Court rejects it
10 again here.
11 As it has in previous cases, the Government relies on Pride v. Correa, in which the Ninth
12 Circuit held that, when “the complainant is a member in a class action seeking the same relief[,]”
13 a court “may dismiss those portions of the complaint which duplicate the class action’s allegations
14 and prayer for relief.” 719 F.3d 1130, 1133 (9th Cir. 2013) (citation modified) (quoting Crawford
15 v. Bell, 599 F.2d 890, 892–93 (9th Cir. 1979)). But the Ninth Circuit went on to explain that “a
16 district court may not ‘dismiss[] those allegations … which go beyond the allegations and relief
17 prayed for in [the class action].” Id. (first and last alterations in original) (quoting Crawford, 599
18 F.2d at 893). Here, dismissal would be inappropriate because Petitioner’s individual claims seek
19 relief he is unable or unlikely to obtain in the D.V.D. litigation.
20 Petitioner’s due process claim is also not identical to the claims in the D.V.D. class action
21 because he seeks a meaningful opportunity to seek withholding of removal in the event he fears
22 persecution in a designated third country—a claim not at issue in D.V.D. See Nguyen v. Scott, 796
23 F. Supp. 3d 703, 729–30 (W.D. Wash. 2025); see also Kumar v. Wamsley, No. C25-2055-KKE,
24
1 2025 WL 3204724, at *7 (W.D. Wash. Nov. 17, 2025); Arenado-Borges v. Bondi, No. 2:25-cv-
2 02193-JNW, 2025 WL 3687518, at *6 (W.D. Wash. Dec. 19, 2025).
3 And as the Government acknowledges, dismissal of individual claims that duplicate a class
4 action is not required, rather, it is “within the court’s discretion” and grounded in “its inherent
5 power to control its own docket.” Dkt. No. 25 at 12 (citing Crawford, 599 F.2d at 893). As the
6 Ninth Circuit explained in Crawford, “[a] court may choose not to exercise its jurisdiction when
7 another court having jurisdiction over the same matter has entertained it and can achieve the same
8 result.” 599 F.2d at 893. Here, ample authority supports the Court’s exercise of jurisdiction over
9 Petitioner’s third-country removal claims.
10 Finally, the Government contends that Petitioner’s petition should be dismissed because
11 “[t]he Supreme Court’s stay of the preliminary injunction” in D.V.D. is “precedent and … binding”
12 on Petitioner as a member of the D.V.D. class. Dkt. No. 13 at 13. For the reasons thoroughly
13 explained in Nguyen, and numerous other cases from this district and Circuit, the Court disagrees.
14 See 796 F. Supp. 3d at 730–33; see also Kumar, 2025 WL 3204724, at *8 (adopting Nguyen’s
15 reasoning); Arenado-Borges, 2025 WL 3687518, at *6 (same).
16 2. Petitioner is entitled to notice and an opportunity to be heard in reopened removal
proceedings before any third county removal.
17
Petitioner requests an order enjoining the Government from removing him to any third
18
country (including Canada) without notice and a meaningful opportunity to be heard in reopened
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removal proceedings. Dkt. No. 20 at 28–29, 31. Where the Government cannot remove a
20
noncitizen to the country specified in their removal order, it may attempt to remove that person to
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a third country, but in doing so, it must comply both with the INA, 8 U.S.C. § 1231(b), and the
22
Due Process Clause. Aden v. Nielsen, 409 F. Supp. 3d 998, 1019 (W.D. Wash. 2019); Kumar,
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2025 WL 3204724, at *2 (explaining such designations “are subject to the same mandatory
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1 protections that exist in removal proceedings.”). To comply with due process, the Government
2 must provide sufficient notice and a meaningful opportunity for the noncitizen to present any claim
3 of fear of persecution or harm upon removal to a designated third country. Id.; see also Andriasian
4 v. I.N.S., 180 F.3d 1033, 1041 (9th Cir. 1999) (“Failing to notify individuals who are subject to
5 deportation that they have the right to apply … for withholding of deportation to the country to
6 which they will be deported violates both INS regulations and the constitutional right to due
7 process.”); Ibarra-Perez v. United States, 154 F.4th 989, 995 (9th Cir. 2025) (same).
8 The INA prohibits ICE from removing a noncitizen to any country where their “life or
9 freedom would be threatened … because of [their] race, religion, nationality, membership in a
10 particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The Government must
11 “make a determination regarding a noncitizen’s claim of fear before deporting him.” Aden, 409
12 F. Supp. 3d at 1010; 8 U.S.C. § 1231(b)(3)(A). Multiple courts in this district have held that, if a
13 noncitizen claims fear of removal to a designated third country, the Government must allow them
14 to pursue withholding of removal through reopened removal proceedings before an IJ. Nguyen,
15 796 F. Supp. 3d at 739; Aden, 409 F. Supp. 3d at 1011; Baltodano v. Bondi, No. C25-1958RSL,
16 2025 WL 2987766, at *3–4 (W.D. Wash. Oct. 23, 2025).
17 Besides arguing that Petitioner’s due process claim is barred by his membership in the
18 D.V.D. class, the Government provides no response to Petitioner’s contention that he is entitled to
19 have his fear of removal to Canada reviewed by an IJ in reopened removal proceedings.
20 Consistent with the reasoning in Aden and the many decisions of this District following
21 Aden, the Court will grant Petitioner’s request and require that the Government may not seek to
22 remove him to a third country without notifying him and providing a meaningful opportunity to
23 respond in reopened removal proceedings before an immigration judge under 8 U.S.C. §
24
1
1231(b)(3).4 Nguyen, 796 F. Supp. 3d at 727 (“‘[B]oth the due process clause and the governing
2 statute place the burden on the government—regardless of whether the country of deportation is
3 designated during or after the removal hearing—to provide a meaningful opportunity to be heard
4 on asylum and withholding claims.’ This cannot be satisfied by simply allowing the noncitizen to
5 file a motion to reopen their removal proceedings; rather, the removal proceedings must be
6 reopened so that a hearing can be held.”) (quoting Aden, 409 F. Supp. 3d at 1010–1011)); see also,
7 e.g., Abubaka v. Bondi, No. C25-1889RSL, 2025 WL 3204369, at *6–7 (W.D. Wash. Nov. 17,
8 2025) (finding “Aden remains persuasive today” and adopting its holding); Yousufi v. Hermosillo,
9 No. 2:25-CV-2098, 2026 WL 482416, at *3 (W.D. Wash. Feb. 20, 2026) (adopting reasoning of
10 Aden and citing cases doing the same); Ibarra-Perez, 154 F.4th at 1000 (citing Aden favorably).
11 Simply providing Petitioner an interview with a single USCIS officer, without the opportunity to
12 present evidence to an immigration judge bearing on his entitlement to relief from removal, does
13 not satisfy Petitioner’s “right to a full and fair hearing,” “an impartial decisionmaker,” and an
14 “evaluation of the merits of his … particular claim[,]” as due process requires under the
15 circumstances here. Aden, 409 F. Supp. 3d at 1010.
16 3. The Court denies Petitioner’s request for an order enjoining removal to Canada or to
any third country.
17
Petitioner argues that ICE’s third-country removal policy is unconstitutionally punitive in
18
violation of his Fifth and Eighth Amendment rights, and he seeks to enjoin the Government from
19
removing him to Canada or to any third country on that basis. Dkt. No. 20 at 31. The Government
20
21
4 While Petitioner has filed at least two motions to reopen his removal proceedings, the record does not indicate that
an IJ has yet reviewed USCIS’s negative fear determination. On March 23, 2026, an IJ denied a motion to reopen
filed by Petitioner two weeks earlier, holding that the motion was untimely and failed to meet any exceptions to the
22 applicable 90-day time-bar. Dkt. No. 38-1 (citing 8 C.F.R. § 1003.23(b)). That order does not reference USCIS’s
fear determination. Id. Petitioner’s counsel, however, states that Petitioner filed a subsequent motion with the
23 immigration court seeking review of the fear determination. Dkt. No. 40 at 1–2. The record does not indicate
whether that motion was granted or, if it was, what the result of the IJ’s review was. Consistent with this order,
Petitioner may not be removed to Canada until an IJ has reviewed USCIS’s negative fear determination in reopened
24 proceedings.
1 argues that Petitioner cannot show the policy as applied to him is punitive because the Government
2 is seeking to remove him to Canada, a country where he previously resided and where he has legal
3 residence. Dkt. No. 25 at 13. While Petitioner responds that the Government’s process for seeking
4 to remove him to Canada “with little notice” demonstrates the removal’s punitive nature (Dkt. No.
5 34 at 12–14), the Court has now ordered the Government to provide notice and an opportunity for
6 Petitioner to challenge the removal to Canada in reopened removal proceedings. The record does
7 not support that removing Petitioner to his country of legal residence after providing him the
8 constitutionally required process for challenging the removal would constitute “punitive
9 banishment.” Dkt. No. 20 at 21.
10 To the extent Petitioner seeks an order barring his possible removal to some other third
11 county, the Government contends that Petitioner cannot meet his burden to show that the policy is
12 “incapable of any valid application.” Id. (quoting Vill. of Hoffman Estates v. Flipside, Hoffman
13 Estates, Inc., 455 U.S. 489, 494 n.5 (1982)). As a threshold matter, numerous courts, including
14 this one, have held the Government’s policy of removing noncitizens to third countries without
15 notice or an opportunity to be heard is unconstitutional. See, e.g., Kumar, 2025 WL 3204724, at
16 *6; Nguyen, 796 F. Supp. 3d at 735 (collecting cases). The Government does not address this
17 growing body of legal authority, nor does it dispute the underlying factual allegations supporting
18 it.
19 Although the Court stands by its prior conclusion (unrebutted here) that the Government
20 violates due process requirements when removing noncitizens to third countries without notice, it
21 nonetheless denies Petitioner’s request for a broad permanent injunction against any third-country
22 removal. This order requires the Government to provide Petitioner with due process in effectuating
23 his removal to Canada or any future third-country removal. As such, on this record, it is not clear
24 to the Court that additional injunctive relief is necessary to prevent irreparable injury at this time.
1 See eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006) (discussing standard for
2 permanent injunctive relief); cf. Kumar, 2025 WL 3204724, at *9 (enjoining third-country removal
3 where petitioner was issued a notice that ICE intended to remove him to a third country where he
4 would likely face persecution).
5 III. CONCLUSION
6 Petitioner’s amended habeas petition (Dkt. No. 20) is GRANTED in part and DENIED in
7 part. The Court ORDERS that:
8 (1) Before the Government may remove Petitioner to Canada, Petitioner must be given the
9 opportunity to have U.S. Citizenship and Immigration Services’ negative fear
10 determination reviewed by an immigration judge in reopened removal proceedings
11 under 8 U.S.C. § 1231(b)(3). Unless an immigration judge has already granted
12 Petitioner’s motion to reopen for this purpose, the Government must move to reopen
13 his removal proceedings if it intends to continue pursuing removal to Canada.
14 (2) If the Government intends to proceed with removing Petitioner to another third country,
15 it must similarly provide him with written notice of its intent to do so and a meaningful
16 opportunity to respond in reopened removal proceedings before an immigration judge
17 under 8 U.S.C. § 1231(b)(3).
18 (3) Any further relief requested in the amended petition is DENIED.
19 Dated this 5th day of May, 2026.
20
A
21
Kymberly K. Evanson
22 United S tates District Judge
23
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