Perez-Perez v. Adducci

• Decision Date: 09 May 2020
• Docket Number: Case Number 20-10833
• Citation: 459 F.Supp.3d 918
• Parties: Roderico Filadelfo PEREZ-PEREZ, Petitioner, v. Rebecca ADDUCCI, Detroit District Director, United States Immigration and Customs Enforcement, Matthew T. Albence, Director, United States Immigration and Customs Enforcement, Kevin McAleenan, Secretary of the United States Department of Homeland Security, and William P. Barr, United States Attorney General, Respondents.
• Court: U.S. District Court — Eastern District of Michigan

459 F.Supp.3d 918

Roderico Filadelfo PEREZ-PEREZ, Petitioner,

v.Rebecca ADDUCCI, Detroit District Director, United States Immigration and Customs Enforcement, Matthew T. Albence, Director, United States Immigration and Customs Enforcement, Kevin McAleenan, Secretary of the United States Department of Homeland Security, and William P. Barr, United States Attorney General, Respondents.

Case Number 20-10833

United States District Court, E.D. Michigan, Southern Division.

Signed May 9, 2020

Shanta Driver, Driver, Schon and Associates PLC, Detroit, MI, for Petitioner.

Lynn Marie Dodge, U.S. Attorney's Office, Detroit, MI, for Respondents.

OPINION AND ORDER GRANTING IN PART MOTION FOR TEMPORARY RESTRAINING ORDER AS PRELIMINARY INJUNCTION

DAVID M. LAWSON, United States District Judge

Petitioner Roderico Filadelfo Perez-Perez filed an emergency petition for a writ of habeas corpus on March 31, 2020, and two weeks later filed an emergency motion for a temporary restraining order. Perez-Perez is a 41-year-old native and citizen of Guatemala who currently is detained by the United States Immigration Customs and Enforcement Agency ("ICE") at the Monroe County Jail Dormitory pending his removal under 8 U.S.C. § 1182(a) for being unlawfully present in the United States. He suffers from hypertension, which is one of the comorbidities identified by the Centers for Disease Control and Prevention (CDC) that elevates the risk of complications from the rapidly-spreading novel coronavirus, and he asks for immediate release.

Since the case was filed, the Immigration Court in Detroit granted his application for cancelation of removal and adjustment of status to that of legal permanent resident. The Immigration Court found that he had a good moral character, and that in light of the coronavirus pandemic, it would be an "exceptional and extremely unusual hardship" to his American children if he were deported. Yet, the government has not relented; it has appealed the decision to the Board of Immigration Appeals (BIA) and refuses to release Perez-Perez, even though a nurse who works four days per week at the Monroe County Jail Dormitory tested positive for COVID-19.

The relevant factors the Court must balance when faced with a request for preliminary injunctive relief weigh in favor of Perez-Perez. The motion will be granted, and his release is ordered, subject to a 14-day quarantine requirement.

I.

Perez-Perez has lived in the United States for at least twenty years. He has three children, two of whom are U.S. citizens (24 and 17 years old), and one is legally present under the Deferred Action for Childhood Arrivals (DACA) policy (19 years old).

On December 18, 2019, ICE initiated removal proceedings against Perez-Perez, charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States without being admitted or paroled. ICE detained Perez-Perez while his removal was pending.

At a hearing before the Immigration Court on January 8, 2020, Perez-Perez admitted that his presence in the United States was unlawful and conceded that he was removable. The Immigration Court then denied the petitioner's request for bond, finding that he was a danger to his community due to his criminal history, which consists of minor traffic infractions, with one exception: a conviction for drunken driving on December 10, 2019.

Perez-Perez applied for cancellation of removal under 8 U.S.C. § 1229b(b), and a hearing was set for June 15, 2020. The Immigration Court then advanced the hearing to April 24, 2020, at which time Immigration Judge Jennifer Gorland granted relief and adjusted Perez-Perez's status to lawful permanent resident. The government appealed that decision to the BIA. The petitioner remains in ICE custody at the Monroe County Jail Dormitory in Monroe, Michigan.

Perez-Perez contends that he suffers from hypertension, which places him at a heightened risk of developing severe complications should he contract COVID-19. In a declaration dated April 13, 2020, he stated, "I have a pre-existing medical condition. Less than a year ago I was diagnosed with having high blood pressure. I sought medical care at a clinic called Covenant, located on Michigan Ave in Detroit, MI, for a high fever and was informed that I had high blood pressure." Medical personnel failed to diagnose that condition when Perez-Perez underwent an initial medical assessment at the Monroe County Jail, and no one has prescribed hypertension medication for him.

In his petition for habeas corpus relief, the petitioner seeks immediate release. After a nurse at the Monroe County Jail Dormitory tested positive for COVID-19, the petitioner's request took on new urgency, and he moved for a temporary restraining order and served notice on the government.

II.

Before turning to the merits of the motion, the government's challenge to subject matter jurisdiction must be addressed. The government contends that 8 U.S.C. § 1226(e) ousts the Court's authority to adjudicate Perez-Perez's release petition, because the decision by the Immigration Judge to deny bond was a non-reviewable discretionary call. Section 1226 gives the Attorney General the discretion to release or parole an alien who is subject to removal. 8 U.S.C. § 1226(a)(2). And "[n]o court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." Id. § 1226(e).

An Immigration Judge denied bond to Perez-Perez on January 8, 2020. But since then, Immigration Judge Gorland granted his petition for cancellation of removal and ordered that he be "issued all appropriate documents necessary to give effect to [her] order." The government states that because it appealed, the Immigration Court's order is not a final order. But there is not much left to the underpinnings of the discretionary decision to detain the petitioner.

Moreover, although it is true that section 1226(e) prevents a federal court from reviewing an immigration judge's discretionary bond determination, it "does not limit habeas jurisdiction over constitutional claims or questions of law." Singh v. Holder , 638 F.3d 1196, 1202 (9th Cir. 2011). In Demore v. Kim , 538 U.S. 510, 516-17, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the Supreme Court held that section 1226(e) does not strip a district court of its traditional habeas jurisdiction, "bar constitutional challenge[s]," or preclude a district court from addressing a habeas petition "challeng[ing] the statutory framework that permits [the petitioner's detention] without bail." See also Al–Siddiqi v. Achim , 531 F.3d 490, 494 (7th Cir. 2008) (holding that § 1226(e) "does not deprive us of our authority to review statutory and constitutional challenges"); Saint Fort v. Ashcroft , 329 F.3d 191, 200 (1st Cir. 2003) (noting that Demore "read the jurisdiction-limiting provision in § 1226(e) as applying only to review of the Attorney General's discretionary judgment"); Sierra v. INS, 258 F.3d 1213, 1217–18 (10th Cir. 2001) (holding, before Demore was decided, that " § 1226(e) does not ‘speak[ ] with sufficient clarity to bar jurisdiction pursuant to the general habeas statute’ " (alterations in original) (quoting INS v. St. Cyr, 533 U.S. 289, 313, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) )).

And district courts facing similar arguments in the COVID-19 context held that section 1226(e) did not strip them of jurisdiction to hear constitutional claims or questions of law arising from petitions for writs of habeas corpus. See Malam v. Adducci , 452 F. Supp. 3d 643, 652–53(E.D. Mich. April 5, 2020) (Levy, J) (concluding that section "1226(e) does not prevent this Court from exercising jurisdiction"); Perez v. Wolf , 445 F. Supp. 3d 275, 283–84 (N.D. Cal. April 14, 2020) (same); Monterosa v. Decker , 2020 WL 1847771, at *4 (S.D.N.Y. April 11, 2020) (same).

Section 1226(e) does not bar the petitioner's request for relief here.

III.

Although the petitioner styled his motion as one for a temporary restraining order, he gave notice to the government and did not seek a ruling before the government could respond. His request should be characterized more properly as a motion for a preliminary injunction. Federal Rule of Civil Procedure 65 governs both. A temporary restraining order (TRO) may be issued without notice to the opponent and is meant to preserve the status quo until a court can make a reasoned resolution of a dispute. Fed. R. Civ. P. 65(b)(1) ; Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir. 1996). TROs are of a short duration and usually terminate with a ruling on a preliminary injunction. Workman v. Bredesen, 486 F.3d 896, 922 (6th Cir. 2007) ; Fed. R. Civ. P. 65(b). Here, because the defendants are on notice, the Court will treat the petitioner's motion as one for a preliminary injunction rather than a motion for a temporary restraining order. This linguistic difference is largely academic as the same factors apply to both. See Ohio Republican Party v. Brunner, 543 F.3d 357, 362 (6th Cir. 2008).

The petitioner bears the burden of demonstrating entitlement to injunctive relief. Leary v. Daeschner , 228 F.3d 729, 739 (6th Cir. 2000). Generally, courts consider four factors in determining whether to grant a preliminary injunction: "(1) whether the movant has demonstrated a substantial likelihood of success on the merits, (2) whether the movant will suffer irreparable injury absent injunction, (3) whether a preliminary injunction would cause substantial harm to others, and (4) whether the public interest will be served by an injunction." Flight Options, LLC v. Int'l Bhd. of Teamsters, Local 1108 , 863 F.3d 529, 540 (6th Cir. 2017) (citing Overstreet v. Lexington-Fayette Urban County Gov't , 305 F.3d 566, 573 (6th Cir. 2002) ). "These factors are not prerequisites, but are factors that are to be balanced against each other." Overstreet , 305 F.3d at 573.

A. Likelihood of Success

The...