Vo v. Board of Immigration Appeals

Background

Tien Vo entered the United States as a refugee from Vietnam in 1980 at age six and later became a lawful permanent resident. State-court convictions based on guilty pleas in 1994, 1995, and 1999 led to removal proceedings and a final order of removal to Vietnam. Because he could not then be removed to Vietnam, he was released under an order of supervision and reported annually for about twenty-five years.

In 2020, state courts vacated the convictions after finding that Vo’s guilty pleas were invalid. Vo did not file a third request to reopen his immigration proceedings at that time, asserting that mental-health conditions prevented him from pursuing relief. After being detained by Immigration and Customs Enforcement at a supervision check-in in September 2025, Vo filed a petition for a writ of habeas corpus and was released.

On January 29, 2026, Vo filed a third motion to reopen his immigration proceedings with the Board of Immigration Appeals, arguing that the vacated convictions meant he was not removable. He also filed a motion to stay removal. The Government opposed the motion to reopen, and briefing was completed on February 26, 2026. Vo was detained again that day, and immigration officials obtained travel documents and scheduled his removal for March 15, 2026. The Board denied his motion to stay removal on March 3, 2026. His motion to reopen remained pending, although the Board later granted his request to expedite it.

Temporary Restraining-Order Request

Vo filed this case under the Administrative Procedure Act and the Mandamus Act, claiming that the Board had unreasonably delayed deciding his motion to reopen and seeking an order requiring a decision by March 9, 2026. In his separate motion for a temporary restraining order, he asked the court to stop his removal and require the Board to decide the motion to reopen by that date.

The court applied the standards for temporary and preliminary injunctions. Those standards generally require a showing of likely success, likely irreparable harm, a favorable balance of hardships, and consistency with the public interest. Because Vo sought a mandatory order requiring the Board to act by a specific date, he had to make the stronger showing that the law and facts clearly favored his position.

Ruling on Removal

The court held that it lacked jurisdiction to stop Vo’s removal under 8 U.S.C. § 1252(g). The court stated that this statute removes federal-court jurisdiction over claims arising from the decision to execute a removal order. The court therefore denied Vo’s motion to the extent he sought to stop his removal to Vietnam.

Ruling on the Requested Deadline for the Board

The court evaluated Vo’s claims under the six-factor test used for alleged unreasonable agency delay. The first factor asks whether the agency’s timing follows a reasonable explanation; other factors consider congressional guidance, effects on health and welfare, competing agency priorities, the interests harmed by delay, and possible government misconduct.

The court found that less than a week had passed between completion of briefing on the motion to reopen and Vo’s filing of the temporary restraining-order motion. Although the removal schedule created an emergency, Vo identified no case holding that the Board’s failure to act within days was unreasonable. The court also found that the applicable regulations generally contemplated decisions within 90 days for a single Board member or 180 days for a three-member panel, and that a new regulation taking effect March 9, 2026, applied only prospectively.

The first, second, fourth, and sixth factors favored the Government. The third and fifth factors favored Vo because the delay affected his health and welfare. Overall, the court concluded that a majority of the factors favored the Government and that Vo had not shown a likelihood of success on his unreasonable-delay claims. Because he failed to satisfy that requirement, the court did not consider the remaining requirements for emergency relief.

Disposition

The court denied the motion for a temporary restraining order. It separately denied the motion to the extent Vo sought to enjoin his removal and denied it to the extent he sought to require the Board to adjudicate his motion to reopen by March 9, 2026. The order terminated ECF 2.