Doe v. Becerra
| Decision Date | 17 January 2023 |
| Docket Number | 23-cv-00072-BLF |
| Parties | JOHN DOE, Petitioner, v. MOISES BECERRA, et al., Respondents. |
| Court | U.S. District Court — Northern District of California |
ORDER DENYING MOTION FOR A TEMPORARY RESTRAINING ORDER [RE: ECF NO. 2]
On January 6, 2023, Petitioner John Doe filed an immigration habeas petition. ECF No. 1 (“Pet.”). He is currently being detained by the Department of Homeland Security (DHS). Id. ¶ 1. Also on January 6 2023, he filed a motion for a temporary restraining order. ECF No. 2-1 (“TRO”). The Government opposes the motion. ECF No. 15 (“Opp.”). The Court held a hearing on the motion on January 13, 2023. For the reasons discussed at the hearing and explained below, the Court DENIES the motion for a TRO.
Petitioner John Doe is a citizen of Mexico who has lived in the United States since age seven. Pet. ¶ 13. In March 2022, he was detained by Immigration and Customs Enforcement (ICE) pending removal proceedings and incarcerated at Golden State Annex in McFarland, California. Id. ¶ 19. On March 22 2022, ICE initiated removal proceedings against Petitioner, charging him as removable for being a noncitizen present in the United States without being admitted or paroled. Id. ¶ 20.
On December 13, 2022, the immigration judge ordered Petitioner be removed to Mexico. Pet. ¶ 22, Ex. B (IJ decision). The immigration judge also granted Petitioner's application for deferral of removal under the Convention Against Torture (CAT), finding that Petitioner is more likely than not to be tortured if removed to Mexico and thereby prohibiting Petitioner's removal to Mexico. Id. Both Petitioner and DHS waived appeal, so the removal order and grant of relief under the CAT became final on December 13, 2022. Id.
On December 14, 2022, Deportation Officer Abad asked Petitioner to designate three countries for removal. Pet. ¶ 24. Petitioner declined to do so. Id. During the proceedings, DHS never claimed that Petitioner had lawful status or a pathway to legal status in any country other than Mexico. Id. ¶ 23. On December 16, 2022, Officer Abad informed Petitioner's counsel that the Agency would continue to detain Petitioner while it attempts to remove him to a third country. Id. ¶ 25. Officer Abad did not tell counsel what countries ICE was considering for removal. Id. On December 27, 2022, Petitioner submitted a kite request to ICE asking what countries it was seeking to remove him to and whether it had received a response from any of those countries. Id. ¶ 26. On December 29, 2022, ICE responded that it was “actively seeking removal to a third-party country” and that it “typically receive[s] a response from every country.” Id. Petitioner has no ties to, no lawful immigration status in, nor any known pathway to obtaining lawful immigration status in any country other than Mexico or the United States. Id. ¶¶ 27, 28, 31. Neither Petitioner nor any known family members have resided in any country other than Mexico or the United States. Id. ¶¶ 29, 30.
On January 6, 2023, Petitioner filed his habeas petition, naming as Resopndents: (1) Moises Becerra, Field Office Director of ICE's San Francisco Field Office; (2) Tae D. Johnson, Acting Director of ICE; (3) Alejandro Mayorkas, DHS Secretary; and (4) Merrick B. Garland, Attorney General. See Pet. The same day, he filed the instant TRO. See TRO.
The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001); Lockheed Missile & Space Co. v. Hughes Aircraft, 887 F.Supp. 1320, 1323 (N.D. Cal. 1995). An injunction is a matter of equitable discretion and is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 32 (2008). A plaintiff seeking emergency injunctive relief must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20. “[I]f a plaintiff can only show that there are serious questions going to the merits-a lesser showing than likelihood of success on the merits-then a preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff's favor, and the other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks and citations omitted).
The Immigration and Nationality Act (INA) governs the removal of individuals living unlawfully in the United States. See Johnson v. Guzman Chavez, 141 S.Ct. 2271, 2280 (2021). When an alien is ordered removed by an immigration judge, “DHS must physically remove him from the United States within a 90-day ‘removal period.'” Id. at 2281 (citing 8 U.S.C. § 1231(a)(1)(A)). The Supreme Court has stated that, under 8 U.S.C. § 1231, “[d]uring the removal period, detention is mandatory.” Id. (citing 8 U.S.C. § 1231(a)(2)); see also Zadvydas v. Davis, 533 U.S. 678, 683 (2001) (citing 8 U.S.C. § 1231(a)(2)) (“After entry of a final removal order and during the 90-day removal period, . . . aliens must be held in custody.”). Under the statute, the removal period may be extended in at least three circumstances. Johnson, 141 S.Ct. at 2281. While “the statute does not specify a time limit on how long DHS may detain an alien in the post-removal period, [the Supreme Court] has ‘read an implicit limitation' into the statute ‘in light of the Constitution's demands,' and has held that an alien may be detained only ‘for a period reasonably necessary to bring about that alien's removal from the United States.'” Id. (quoting Zadvydas, 533 U.S. at 689). And the Supreme Court has held that “a period reasonably necessary to bring about the alien's removal from the United States is presumptively six months.” Id. at 2281-82. The same statute has provisions regarding “[c]ountries to which aliens may be removed.” See 8 U.S.C. § 1231(b)(2).
Petitioner argues that 8 U.S.C. § 1231(a)(2), as applied to him, is unconstitutional under the Due Process Clause. TRO at 7. He argues that his continued incarceration violates his due process rights, claiming “due process does not permit ICE to detain [Petitioner] during the removal period arbitrarily and without any process.” Id. He asserts that his detention is unconstitutional unless DHS can establish with credible evidence that Petitioner's legal acceptance by a third country is viable. Id. at 7-8. Petitioner's requested relief is additional process; he asks the Court to require (1) “an evidence-based determination by DHS that third-country removal is viable” and (2) “if necessary, . . . a timely review before an immigration judge.” Id. at 12.
Under the first prong of the TRO analysis, Petitioner asserts that he is likely to succeed on the merits. TRO at 7-13. Petitioner asks the Court to apply the Mathews balancing test, noting that several courts in this district have used that test to evaluate “as-applied constitutional challenges to mandatory immigration detention.” TRO at 8; see Mathews v. Eldridge, 424 U.S. 319 (1976)). The Mathews test balances (1) the individual's private interest; (2) the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional procedural safeguards; and (3) the Government's interest. See 424 U.S. 319. As to the first prong, Petitioner argues his private interest-freedom from detention-is “fundamental” and “overwhelming.” TRO at 8. As to the second prong, he argues that the current procedures produce a high risk of erroneous deprivation, as no procedures require the Government to justify detention during removal proceedings for individuals granted protection from removal to “the only known country that would accept” them. Id. at 9. And he argues that the value of additional safeguards is high, as they could ensure that the prospect of third-country removal, the basis for Petitioner's detention, is viable. Id. Finally, as to the third prong, Petitioner argues that the Government's interest is weak, as its relevant interest is its ability to detain Petitioner without providing process, and providing additional process is a minimal burden. Id. at 10-11.
Under the second prong of the TRO analysis, Petitioner argues that he will suffer irreparable injury in the absence of a restraining order. TRO at 13-14. He asserts that a constitutional infringement is often sufficient to constitute irreparable harm. Id. at 13. And he claims his injury is particularly severe given the severe conditions at Golden State Annex, the facility where he is being held. Id. at 14.
Finally, Petitioner argues the third and fourth prongs of the TRO analysis. TRO at 15. First, he argues that the balance of hardships tips heavily in his favor because the Government is not harmed from being prohibited from engaging in an unconstitutional practice and the burden on the Government from enacting the proposed additional procedures is low, especially compared to the harm Petitioner suffers from his detention. Id. And Petitioner argues that a TRO is in the public interest because it prevents the violation of constitutional rights. Id.
Respondents argue that Petitioner cannot show...
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