Franco–gonzales v. Holder

• Citation: 767 F.Supp.2d 1034
• Decision Date: 01 February 2011
• Docket Number: Case No. CV 10–02211 DMG (DTB).
• Parties: Jose Antonio FRANCO–GONZALES, et al., Petitioner,v.Eric H. HOLDER, Jr. Attorney General, et al., Respondents.
• Court: U.S. District Court — Central District of California

767 F.Supp.2d 1034

Jose Antonio FRANCO–GONZALES, et al., Petitioner,

v.Eric H. HOLDER, Jr. Attorney General, et al., Respondents.

Case No. CV 10–02211 DMG (DTB).

United States District Court, C.D. California.

Dec. 27, 2010.Ordered Unsealed on Feb. 1, 2011.

John David Blair–Loy, Sean Riordan, ACLU of San Diego & Imperial Counties, San Diego, CA, Michael H. Steinberg, Sullivan & Cromwell LLP, Ahilan T. Arulanantham, Jennifer L. Stark, ACLU Foundation of Southern California, James J. Preis, Mental Health Advocacy Services Inc., Judy London, Talia R. Inlender, Public counsel, Los Angeles, CA, Judy Rabinovitz, American Civil Liberties Union, New York, NY, Matt Adams, Northwest Immigrant Rights Project, Riddhi Mukhopadhyay Northwest Immigrants' Rights Project, Seattle, WA, for Petitioner.Samuel P. Go, Victor M. Lawrence, Office of Immigration Litigation, Neelam Ihsanullah, U.S. Department of Justice, Washington, DC, Assistant U.S. Attorney LA–CV, AUSA–Office of U.S. Attorney, Los Angeles, CA, for Respondent.

AMENDED ORDER RE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

DOLLY M. GEE, District Judge.

This matter is before the Court on the Motion for a Preliminary Injunction filed by Plaintiffs Aleksandr Petrovich Khukhryanskiy and Ever Francisco Martinez–Rivas (“Plaintiffs”). The Court conducted a hearing on December 8, 2010 (the “December 8 Hearing”). Having duly considered the parties' respective positions, as presented in their briefs and at oral argument, the Court now renders is decision. For the reasons set forth below, Plaintiffs' Motion is GRANTED in part.

I.PROCEDURAL BACKGROUND

On March 26, 2010, Petitioner Jose Antonio Franco–Gonzales (“Franco”) filed a Petition for Writ of Habeas Corpus (the “Petition”) in this Court alleging various violations of the Immigration and Nationality Act (“INA”), the Due Process Clause of the 5th Amendment to the U.S. Constitution, and Section 504 of the Rehabilitation Act. On March 31, 2010, Respondents released Franco from custody on his own recognizance, under conditions of supervision pursuant to section 236 of the INA, 8 U.S.C. § 1226.

On August 2, 2010, Franco attempted to file a first amended class action complaint (the “Amended Complaint”), which sought to add new plaintiffs and new causes of action and sought certification on behalf of a class of plaintiffs whose situations are similar to Franco's former situation, i.e., mentally disabled immigrant detainees who are held in custody without counsel. (Am. Compl. ¶¶ 39–82, 96–137.) On August 6, 2010, the Honorable David T. Bristow, United States Magistrate Judge, rejected the Amended Complaint as untimely under Fed.R.Civ.P. 15(a). On August 23, 2010, Franco filed an Ex Parte Application to file the Amended Complaint, which Magistrate Judge Bristow denied on September 3, 2010.

On September 14, 2010, Franco filed a Motion for Review of Magistrate Judge's Decision Denying Ex Parte Application to Amend Complaint. On October 18, 2010, this Court granted Franco's Motion and provided Franco 15 days to file an amended complaint. [Doc. # 54.]

On November 2, 2010, Franco filed a First Amended Class Action Complaint (“First Amended Complaint”), which added Khukhryanskiy and Martinez as well as three other named plaintiffs. [Doc. # 64.] The First Amended Complaint alleges the following causes of action: (1) right to a competency evaluation under the INA; (2) right to a competency evaluation under the Due Process Clause; (3) right to appointed counsel under the INA; (4) right to appointed counsel under Section 504 of the Rehabilitation Act; (5) right to appointed counsel under the Due Process Clause; (6) right to release under the INA; (7) right to release under the Due Process Clause; (8) right to a detention hearing under the INA; (9) right to a detention hearing under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”); (10) right to a detention hearing under the Due Process Clause; and (11) violation of the Administrative Procedures Act.¹

On November 15, 2010, Plaintiffs filed (1) a TRO Application [Doc. # 57], (2) a Motion for a Preliminary Injunction [Doc. # 57], and (3) an Expedited Discovery Application [Doc. # 60]. On November 16, 2010, Defendants filed an Opposition to the TRO Application, and on November 17, 2010, Plaintiffs filed a Reply. Defendants filed their Opposition to the Expedited Discovery Application on November 19, 2010, and on November 22, 2010, Plaintiffs filed a Reply. On November 24, 2010, the Court issued an order (the “TRO”) granting Plaintiffs' TRO Application and denying Plaintiffs' Expedited Discovery Application. [Doc. # 78.] The Court also set a hearing on the Preliminary Injunction Motion for December 8, 2010.

On December 1, 2010, Defendants filed an Opposition to Plaintiffs' Preliminary Injunction Motion. On December 6, 2010, Plaintiffs filed a Reply. On December 15, 2010, each of the parties filed supplemental briefs on issues identified at the December 8 Hearing, and on December 17, 2010, the parties filed their respective supplemental responses. On December 20, 21, and 22, 2010, the parties submitted additional unsolicited filings, including Defendants' “Notice of Clarification,” a “Response to Defendants' Notice of Clarification,” and Defendants' Status Reports regarding their efforts to secure pro bono counsel for Plaintiffs.

II.FACTUAL BACKGROUND

A. ALEKSANDR KHUKHRYANSKIY

Plaintiff Khukhryanskiy is a 45–year–old native and citizen of Ukraine who was admitted to the United States as a refugee on January 9, 1998. (Pls.' Req. for Judicial Notice (“RJN”), Ex. 58.) According to Defendants, Khukhryanskiy failed to adjust his status to that of a legal permanent resident, a step that he was required to take as early as January 9, 1999, pursuant to 8 U.S.C. § 1159(a)(1)(C).² (Defs.' Opp'n at 6.)

On April 15, 2010, Khukhryanskiy was taken into custody by Department of Homeland Security (“DHS”). He was referred to Immigration and Customs Enforcement (“ICE”) from the United States Citizenship and Immigration Services (“USCIS”) after submitting his application for refugee adjustment of status pursuant to 8 U.S.C. § 1159. (Pls.' RJN, Ex. 58.) DHS initiated removal proceedings against him, charging him as deportable for having been convicted of an aggravated felony on the basis of his 2005 conviction for attempted assault and robbery. (Pls.' RJN, Ex. 64.) He is currently detained at the Northwest Detention Center in Tacoma, Washington.

1. Khukhryanskiy's Psychiatric Evaluation

Khukhryanskiy has been diagnosed with paranoid schizophrenia and psychosis (not otherwise specified), post-traumatic stress disorder, and major depression. (Decl. of Ahilan T. Arulanantham (“Arulanantham Decl.” ¶¶ 5–6, Exs. 60–61.)) He has been receiving mental health treatment after being involuntarily placed at Adventist Mental Health Services in 2004 through a mental health commitment hearing. (Arulanantham Decl. ¶ 7, Ex. 62.)

DHS's Form I–213, “Record of Deportable/Inadmissible Alien,” for Khukhryanskiy states:

Subject has been diagnosed by [Snake River Correctional Institute] medical as a Paranoid Schizophrenic and is taking involuntary Haldol Decanoate (150 mg IM q 3 weeks) injections as well as Cogentin (2mg bid prn) twice daily otherwise the subject has no visible defects or injuries.

(Defs.' RJN, Ex. 58 at 4.)

Khukhryanskiy's medical records indicate that on August 20, 2010, Khukhryanskiy went to the clinic and stated:

The voices are really bothering me. I can not be here anymore. Let them deport me. I have court on the 30th, I will sign any thing they ask me to sign. Just get me out of here. I am not sleeping. I need something to help me sleep.

(Decl. of Ahilan Arulanantham in Supp. of Pls.' Reply (“Arulanantham Reply Decl.”) ¶ 8, Ex. 87, at 84.) Then, on August 21, 2010, Khukhryanskiy was brought to medical staff because he was deemed to be a danger to himself. ( Id. at 82.) One entry for August 21, 2010 states:

Patient with paranoid schizophrenia brought down to medical for danger to self. He is banging his head extremely hard to the point that he will injure himself and was yelling. He was brought into clinic in a state of streaming [sic] and struggling with the officers ... He is delusional and hallucinating and in a psychotic episode with aggitation/acting out [sic]. ( Id.) Another entry on August 21, 2010 indicates that Khukhryanskiy placed a cord around his neck:

Suicide Watch Started p/ detainees in POD reported Khuklhyanskiy [sic] was hitting his head against the wall and had placed a ‘cord’ around his neck ...

S: ‘I can't take this place anymore, I can't control the voices in my head. I need to be released. I am going mad here!!!’

When asked if he would hurt/kill self he said, ‘No,’ but when RN asked detainee why he had wrapped a cord around his neck he said it was because he was going mad. Detainee would not elaborate on voices, but instead just kept saying, ‘I must get out.’

( Id. at 83.)

On September 20 and September 24, 2010, Kimberly Barrett, a professor at the University of Washington's Department of Psychology with 20 years of experience conducting competency and mental health evaluations in criminal and immigration proceedings, met with Khukhryanskiy. Declaration of Riddhi Mukhopadhyay (“Mukhopadhyay Decl.” ¶¶ 10–11.) In a report dated October 3, 2010, which is entitled, “Psychological Evaluation: Aleksandra [sic] Mestrovic Khukhryanskiy,” Dr. Barrett states that Khukhryanskiy's mental illness is “chronic and very severe.” (Mukhopadhyay Decl. ¶¶ 10–11, Ex.). Dr. Barrett states:

“Mr. Khukhryanskiy suffers from a very active and pronounced psychotic disorder, schizophrenia of the paranoid type.... He has frequent auditory hallucinations that occur every day, most of the day.... His psychosis interferes with a great deal of his cognitive functioning including thinking, judgment, concentration, interpretation of verbal input, and inability to express himself a great...