Chhoeun v. Marin

• Decision Date: 25 January 2018
• Docket Number: Case No.: SACV 17–01898–CJC(GJSx)
• Court: U.S. District Court — Central District of California
• Parties: Nak Kim CHHOEUN and Mony Neth, individually and on behalf of a class of similarly situated individuals, Petitioners, v. David MARIN, David Jennings, Thomas Homan, Elaine Duke, Jefferson Sessions III, Sandra Hutchens, and Scott Jones, Respondents.

306 F.Supp.3d 1147

Nak Kim CHHOEUN and Mony Neth, individually and on behalf of a class of similarly situated individuals, Petitioners,
v.
David MARIN, David Jennings, Thomas Homan, Elaine Duke, Jefferson Sessions III, Sandra Hutchens, and Scott Jones, Respondents.

Case No.: SACV 17–01898–CJC(GJSx)

United States District Court, C.D. California, Southern Division.

Signed January 25, 2018

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Michael L. Mallow, Katelyn N. Rowe, Christopher M. Lapinig, Laboni A. Hoq, Nicole K. Ochi, Asian Americans Advancing Justice Los Angeles, Angela C. Makabali, Sean A. Commons, Darlene M. Cho, Sidley Austin LLP, Los Angeles, CA, Naomi Ariel Igra, Sidley Austin LLP, Anoop Prasad, Jingni Zhao, Kevin Chun Hoi Lo, Melanie Chun–Yu Kim, Winifred V. Kao, Melanie Chun–Yu Kim, Asian Law Caucus, San Francisco, CA, Lee Gelernt, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, for Petitioners.

Troy D. Liggett, Joseph Carilli, Jr., Julian Kurz, OIL–DCS Trial Attorney, US Department of Justice Office of Immigration Litigation, Washington, DC, for Respondents.

ORDER GRANTING PRELIMINARY INJUNCTION

CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Our Constitution demands that all persons, both citizens and noncitizens, be given due process before the Government takes away a person's right to work and live in the United States. Sadly, for Petitioners here, they were denied due process by the Government when it detained them and threatened to deport them without adequate notice and an opportunity to be heard.

Petitioners are 92 Cambodian citizens who are living in the United States.¹ Many fled Cambodia in the 1970s as small children to escape the brutal Khmer Rouge regime. Although Petitioners have been living in the United States for many years, they were all subject to orders of removal to Cambodia based on criminal convictions that they suffered years ago. When the orders of removal were issued, which in many cases occurred over a decade ago, Petitioners were not deported because Cambodia refused to accept their repatriation. Instead, U.S. Immigration and Customs Enforcement ("ICE") determined that Petitioners were not flight risks and did not pose a danger to society. Accordingly, Petitioners were released from custody and returned to their families and communities. Since then, Petitioners have served as peaceable and productive members of our society, and their removal orders laid dormant.

In October 2017, ICE took Petitioners away from their communities and families when it suddenly commenced a series of raids to detain them. Without warning, armed ICE officers raided Petitioners' homes and workplaces. Some Petitioners were detained at ICE offices when they reported for what they assumed were perfunctory meetings. Approximately 100 Petitioners were detained in the October 2017 raids and 92 remain in ICE custody. ICE still has not afforded Petitioners an

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adequate opportunity to challenge their current detention or the underlying orders of removal. Instead, ICE continues to detain most of them and plans to deport most of them to Cambodia at any time.

Petitioners ask this Court for limited relief—a brief stay of deportations during which Petitioners may reopen their immigration proceedings and challenge their removal orders. Specifically, Petitioners request that their removals be enjoined until February 5, 2018, in order to file motions to reopen. For those who file a motion to reopen, Petitioners request that the stay be extended through the adjudication of the administrative proceedings and, if necessary, until they have submitted motions to stay in the appropriate court of appeals.

The removal orders Petitioners seek to reopen have lain dormant, in many cases for over a decade. Circumstances have changed in the interim that may allow Petitioners to raise serious questions regarding the validity of their underlying convictions and removal orders. Denying Petitioners the right to do so amounts to a denial of due process. Accordingly, the Court GRANTS Petitioners' request for injunctive relief.

II. BACKGROUND

A. Procedural History

Named Petitioners Nak Kim Chhoeun and Mony Neth brought this action on October 27, 2017, soon after ICE began to round up and detain Petitioners without notice. (Dkt. 1 [Complaint]; see also Dkt. 27 [First Amended Habeas Corpus Petition and Complaint, hereinafter "FAC"].) In this lawsuit, Petitioners contend that their detention and impending removals violate due process. (See generally id. )

In early December 2017, after Petitioners had been detained for approximately two months, they learned that the first flight to Cambodia was scheduled for the morning of December 18, 2017, and that the Government planned to complete removals by the end of that month. (Dkt. 28 ["TRO App."] at 1.) In light of the imminent removals, Petitioners filed an application for a temporary restraining order on December 12, 2017, asking the Court to stay deportations for approximately 60 days until February 5, 2018. (See generally TRO App.) Petitioners explained that this additional, limited time was necessary to give those who wanted to file motions to reopen their removal orders an opportunity to do so. (Id. ) On December 14, 2017, the Court granted the temporary restraining order and stayed the deportations for a period of 28 days. (Dkt. 32.) The Court also ordered the parties to show cause why a preliminary injunction should not issue and set the preliminary injunction hearing for January 11, 2018. (Id. ) The parties then stipulated, at the Government's request, to extend the term of the temporary restraining order and to continue the preliminary injunction hearing to January 25, 2018. (Dkts. 39, 40.)

Since the Court granted the temporary restraining order, Petitioners' counsel have worked to identify, locate, and interview the 92 Petitioners who have been issued travel papers or who are being considered for travel papers. (Dkt. 62 at 4.) This has not been an easy task, as Petitioners are being held in and transferred between various detention facilities, and the Government has refused to identify and release key documents related to them. (Id. ; Dkt. 62–6 [Supplemental Declaration of Anoop Prasad, hereinafter "Supp. Prasad Decl."] ¶¶ 13–14, 18.) Notwithstanding these obstacles, Petitioners' counsel have been able to provide or facilitate legal consultations for 42 Petitioners. (Supp. Prasad Decl. ¶ 14.) Of the 42 Petitioners who received

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legal consultations, eleven Petitioners have secured counsel to file motions to reopen. (Id. ) Petitioners represent that additional motions to reopen will be filed within the next few days, and reiterate their request that deportations be stayed so that these additional motions can be filed and litigated. (Dkt. 62 at 5.)

B. Petitioners' Background

Many Petitioners are refugees who fled Cambodia in the 1970s as small children to escape the Khmer Rouge's campaign of mass murder and torture. (FAC ¶ 1.) Since then, Petitioners have made their homes in the United States and serve as integral members of their families and communities. (Id. ) Almost all are lawful permanent residents and have parents, spouses, and children who are U.S. citizens. (Id. ¶¶ 1–2.)

1. Nak Kim Chhoeun

Petitioner Nak Kim Chhoeun was born in Cambodia in 1975. (Dkt. 28–2 [Declaration of Nak Kim Chhoeun, hereinafter "Chhoeun Decl."] ¶ 2.) He fled Cambodia with his parents and siblings when he was three years old. (Id. ) Chhoeun's family spent time in a refugee camp in Thailand and in the Philippines before entering the United States in June 1981. (Id. ) Upon entering the United States they lived in Fort Worth, Texas, and one or two years later they settled in Long Beach, California. (Id. ¶ 3.) Chhoeun's parents and six siblings are U.S. citizens. (Id. ¶ 2.)

Sometime around 1999, when Chhoeun was in his early 20s, he found himself involved in a gang-related incident. (Id. ¶ 4; TRO App. at 3.) The incident occurred when Chhoeun agreed to drive his friend's brother to run an errand. (Chhoeun Decl. ¶ 4.) Although Chhoeun did not know it at the time, the neighborhood they drove into had a reputation for being dangerous and when they arrived, people approached his car and threw bottles at it. (Id. ) Chhoeun tried to drive away, but his friend's brother pulled out a gun and shot at a parked car. (Id. ) No one was injured and police were not called to the scene. (Id. )

Chhoeun later learned that the individuals who approached his car were members of a gang. (Id. ¶ 4.) Police subsequently questioned the gang members and learned of Chhoeun's involvement. (Id. ) Based on the information gathered by the police, the District Attorney pressed charges against Chhoeun. (Id. ) It is not clear from the record precisely what Chhoeun was charged with and the disposition of these charges. Chhoeun states in his declaration that he went to trial for at least some of the charges—though he does not clarify which ones—and that a jury convicted him but he was ultimately acquitted on appeal....