Perera v. Jennings
| Decision Date | 11 June 2021 |
| Docket Number | Case No. 21-cv-04136-BLF |
| Parties | IMESH PERERA, Plaintiff, v. DAVID W. JENNINGS, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Petitioner-Plaintiff Imesh Perera filed a petition for writ of habeas corpus and complaint for injunctive and declarative relief in this action on June 1, 2021 against Respondent-Defendants U.S. Immigration and Customs Enforcement ("ICE") San Francisco Field Office Director David W. Jennings, Acting ICE Director Tae D. Johnson, DHS Secretary Alejandro Mayorkas, and Attorney General Merrick Garland (collectively "Defendants"). ECF 1; Compl., ECF 18-2. Perera simultaneously filed a motion seeking a temporary restraining order ("TRO") and an order to show cause why a preliminary injunction should not issue. ECF 4; Mot., ECF 18-3. The Court ordered that notice be given to Defendants and held a motion hearing on June 10, 2021.
As set forth below, Perera's motion is GRANTED. Respondents-Defendants, and their agents and employees, are ORDERED TO SHOW CAUSE before this Court why a preliminary injunction should not issue under the same terms as this temporary restraining order. The hearing on the Order to Show Cause will be held on July 15, 2021 at 9:00 am. Briefing shall be submitted as provided in the Order Granting Motion for Temporary Restraining Order.
The declarations and associated exhibits of Judah Lakin and Scott Mossman establish the following facts. See Lakin Decl., ECF 1-1; Mossman Decl., ECF 18-1. Perera was born in Sri Lanka in 1990 to Marian and Prince Perera. Perera and his family came to the United States in 2002 based on his mother's H-1B visa. Mossman Decl. ¶ 4. Along with the rest of his family, Perera adjusted to lawful permanent resident status in 2007. Id. ¶ 5. His parents became U.S. citizens in 2012. Id. On May 21, 2010, Perera was convicted in the Superior Court of California, County of Placer, for transportation of a controlled substance in violation of California Health and Safety Code § 11379(a). Id. ¶ 6. On August 18, 2010, Mr. Perera and ten co-defendants were indicted on federal controlled substances charges in the U.S. District Court for the Eastern District of California. Id. On March 20, 2015, Perera pled guilty to conspiracy to distribute and possess with intent to distribute MDMA and BZP in violation of 21 U.S.C. §§ 846 and 841(a)(1). Id. ¶ 7. Because Perera had spent nearly five years in custody at that point, the court ordered him released at the time of the plea. Id. On September 10, 2015, the court sentenced Perera to 50 months with credit for time served and a term of supervised release of 36 months. Id.
The past six years have proved transformative for Perera. He has successfully completed probation and avoided further criminal arrests or charges. Perera Decl. ¶¶ 13-15; Lakin Decl. at Ex. F (Letter from Probation Officer). He has pursued a college education, studying real estate and business administration, while working full-time. Perera Decl. ¶ 16; Lakin Decl. at Ex. K (Sierra College Transcript), Ex. L (Letter from counselor at Sierra College), Ex. Q (Letter from program technician at Sierra College). He has climbed the ranks at Safeway, earning five promotions in four years and ultimately becoming a store director responsible for 130 employees. Perera Decl. ¶ 17-19. He has committed himself to spiritual development and devotion as well as his church community. Perera Decl. ¶¶ 13, 30; Lakin Decl. at Ex. C (Letter from Marian and Prince Perera); Lakin Decl. at Ex. M (Letter from Perera's Priest). He is engaged to a U.S. citizen, who is pregnant with their first child, a son. Lakin Decl. at Ex. D (Letter from Chloe Enriquez). He bought a homeso his son would have somewhere "safe and secure" to grow up. Perera Decl. ¶ 18. As Perera explains: "I now know that time is the one thing you can't get back and I have lived my life every day since being released from federal custody with that understanding." Perera Decl. ¶ 15.
On April 21, 2021, ICE took Perera into custody and initiated removal proceedings. Mossman Decl. ¶ 8. Since then, ICE has detained Perera at Golden State Annex, a private detention facility in McFarland, California. Id. ICE refused Perera the opportunity to post a bond for release from custody during the removal proceedings. Id. ¶¶ 8, 15. On May 25, 2021, Perera denied the charge of removability against him. Id. ¶ 13. If the immigration judge ultimately sustains the charge of removability, Perera intends to apply for withholding of removal to Sri Lanka pursuant to INA § 241(b)(3), 8 U.S.C. § 1231(b)(3) and the Convention Against Torture, and deferral of removal under the Convention Against Torture. Id. ¶ 14; see also Perera Decl. ¶ 31. In particular, country conditions research indicates that Sri Lankan government officials incite and acquiesce in violence against Christians. Id.
On June 1, 2021, Perera filed the petition, complaint, and instant motion for a temporary restraining order. ECF 1; ECF 4. The same day, the Court issued an order directing Defendants to respond to the motion and directing Perera to serve Defendants with notice of the order via email. See ECF 8. Plaintiff has confirmed service as authorized. ECF 9. On June 7, 2021, Defendants filed an opposition brief. Opp., ECF 20. On June 8, 2021, with permission of the Court, Perera filed a reply brief. Reply, ECF 22.
The Court first considers whether jurisdiction lies within this district. ICE is currently detaining Perera at the Golden State Annex facility in McFarland, CA. Golden State Annex is a private facility that falls within the area of responsibility of the San Francisco Field Office of ICE Enforcement and Removal Operations. Respondent-Defendant Jennings is the Field Office Director of ICE's San Francisco Field Office. Compl. ¶¶ 12, 16, 39.
In Rumsfeld v. Padilla, the Supreme Court applied the "immediate custodian rule" to a habeas petition filed by a U.S. citizen detained in military custody in South Carolina. 542 U.S. 430-432 (2004). The immediate custodian rule is the long-held "default rule" that the proper respondent to a habeas petition challenging present physical confinement "is the warden of the facility where [a] prisoner is being held, not the Attorney General or some other remote supervisory official." Id. at 435-39. Padilla refused to decide who the proper respondent is in the immigration detention context, however.
"Courts in this district repeatedly have held, both before and since Lopez-Marroquin,1 that Padilla does not extend to cases such as this one where the immediate custodian lacks any actual authority over the immigrant detainee." Domingo v. Barr, No. 20-CV-06089-YGR, 2020 WL 5798238, at *2 (N.D. Cal. Sept. 29, 2020). This Court concurs with the approach taken by Judge Yvonne Gonzalez Rogers in Domingo as well as other courts in and beyond this district. See, e.g., Montoya Echeverria v. Barr, No. 20-CV-02917-JSC, 2020 WL 2759731, at *3-4 (N.D. Cal. May 27, 2020); Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL 2059848, at *2 (N.D. Cal. April 29, 2020); Rodriguez Sanchez v. Decker, No. 18-CV-8798 (AJN), 2019 WL 3840977, at *2 (S.D.N.Y. Aug. 15, 2019); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1187 (N.D. Cal. 2017). As such, this Court has subject matter jurisdiction and may grant relief pursuant to 28 U.S.C. § 2241.
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. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking preliminary 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 Court begins its analysis by considering Perera's showing on the first Winter factor, likelihood of success on the merits. Perera argues that 8 U.S.C. § 1226(c), as applied to him, is unconstitutional under the Due Process Clause. Mot. at 11-18. The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. U.S. Const. Amend. V. The protection applies to "all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas v. Davis, 533 U.S. 678, 693 (2001). 28 U.S.C. § 2241(c)(3) authorizes a district court to grant a writ of habeas corpus whenever a petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." This includes claims by non-citizens challenging the constitutionality of their detention without bail. Demore v. Kim, 538 U.S. 510, 516-17 (2003). Detention violates due process absent "adequate procedural protections" or "special justification[s]" sufficient to outweigh...
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