Duong v. Kaiser

Background

Rachana Duong filed an ex parte motion for a temporary restraining order against Polly Kaiser and other respondents. Duong asked the court to order immediate release from custody.

According to the information available to the court, Duong is a long-time lawful permanent resident who was admitted to the United States as a refugee at age five after fleeing Cambodia with family. At age 19, Duong was convicted of first-degree murder and grand theft. Duong was granted parole from criminal custody in March 2020, later spent three months in Immigration and Customs Enforcement custody, and was released from that custody on June 20, 2020, through the bail-application process. The opinion says Duong complied with the conditions of release and reported to Immigration and Customs Enforcement. Duong also has chronic respiratory issues and works at multiple community organizations.

On September 6, 2025, Immigration and Customs Enforcement officers arrested Duong at home in Fremont, California. The officers allegedly said they needed to retake a photograph and asked Duong to step outside; once Duong did so, the officers detained Duong.

Legal standard

The court applied the same standard used for a preliminary injunction. The moving party had to show a likely success on the merits, likely irreparable harm without relief, a balance of equities favoring relief, and that an injunction would serve the public interest. The court also considered whether Federal Rule of Civil Procedure 65(b) allowed an order without advance notice because immediate harm could occur before the opposing party could respond.

Court’s analysis

The court found that Rule 65(b)’s requirements were satisfied. It also found that Duong was likely to succeed on the claim, likely to suffer irreparable harm, and supported by the balance of equities and public interest.

The court reasoned that the Fifth Amendment’s protection against deprivation of liberty without due process applies to people within the United States, including noncitizens. It found that a person released from immigration custody on bond can have a protected liberty interest in remaining out of custody. Applying the factors from Mathews v. Eldridge, the court concluded that Duong should be immediately released and should receive notice and a hearing before a neutral decisionmaker before being taken back into custody. The court relied in part on Duong’s compliance with release conditions and pursuit of rights in immigration court.

The court found that detention would likely cause irreparable harm to Duong’s liberty. It also found that the public has a strong interest in procedural protections against unlawful detention, while the respondents would face at most a short delay in detaining Duong if detention were ultimately shown to be intended and warranted.

Order

The court granted Duong’s ex parte motion for a temporary restraining order to preserve the status quo while the parties provided further briefing and the court held a hearing. Respondents were ordered to immediately release Duong and were enjoined from re-detaining Duong without notice and a pre-detention hearing before a neutral decisionmaker. The order also barred removing Duong from the United States and stated that Duong could not be deported, removed, or transferred outside the United States until further order.

The temporary restraining order was set to remain in effect until September 20, 2025, at 5 p.m. The court ordered respondents to show cause at an in-person hearing on September 19, 2025, why a preliminary injunction should not issue, and required additional filings and a status report confirming Duong’s release.