Rivas Rosales v. Barr, Case No. 20-cv-00888-EMC

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtEDWARD M. CHEN United States District Judge
Decision Date30 March 2020
PartiesJOSE GABRIEL RIVAS ROSALES, et al., Plaintiffs, v. WILLIAM P. BARR, et al., Defendants.
Docket NumberCase No. 20-cv-00888-EMC

WILLIAM P. BARR, et al., Defendants.

Case No. 20-cv-00888-EMC


March 30, 2020


Docket Nos. 4, 24


Petitioners, Jose Gabriel Rivas Rosales, Reyna Romero Lopez, and their minor child E.R.R. (hereinafter, collectively, "Petitioners"), seek a preliminary injunction staying the use of Video Teleconferencing ("VTC") in their asylum case now before an Immigration Judge,1 pending a decision on their petition to this Court for a Writ of Mandamus. That Writ asks that this Court "enjoin Respondents from utilizing Video-Teleconference . . . against the non-detained Petitioners."

Respondents, William P. Barr and James McHenry, are being sued in their official capacities as the Attorney General of the Department of Justice and Director of the Executive Office of Immigration Review ("EOIR") respectively. Petitioners allege that the use of VTC in their asylum case violates their due process rights. The Writ also contends that the immigration courts are scheduling VTC hearings for asylum cases in which the applicants are labeled as

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"family units" from Mexico or Central America on a super-expedited basis, and that the policies and procedures related to this practice violate the Equal Protection Clause of the Fifth Amendment.

For the reasons discussed below, this Court DENIES Petitioners' Motion for a Preliminary Injunction and DISMISSES the action for lack of subject-matter jurisdiction. In addition, because the Court lacks subject-matter jurisdiction over the case, Petitioners' request for judicial notice of certain documents, which go to the merits of their claim, is moot. As such, the request for judicial notice is DENIED.


Petitioners are a family of Salvadoran-nationals who arrived in the United States by making an application for admission at the San Ysidro port of entry on or around December 7, 2018. Statement of Facts ¶ 2, Mot. Prelim. Inj., Docket No. 3. Petitioners did not possess valid immigration entry documents. Id. ¶ 3. The United States Department of Homeland Security ("DHS") issued Petitioners Notices to Appear ("NTA"), dated December 9, 2018, in immigration court. Id. ¶ 4. DHS filed the NTAs with the Immigration Court on February 14, 2019. Declaration of Elizabeth Burgus ("Burgus Decl.") ¶ 3, Docket No. 18. DHS designated Petitioners' case as a family-unit case. Id. ¶ 4. On May 7, 2019, Petitioners appeared in-person at their first master (or "preliminary") calendar hearing, at which they requested a continuance to seek representation. Id. ¶ 5.

A further master calendar hearing for Petitioners' asylum case was scheduled for September 30, 2019 in front of an immigration judge ("IJ") who presides over non-detained matters. Statement of Facts ¶ 6, Mot. Prelim. Inj., Docket No. 3. Petitioners requested another continuance of that hearing, which the IJ granted, and Petitioners' master calendar hearing was reset for November 25, 2019. Burgus Decl. ¶ 7. In the meantime, Petitioners, through Mr. Rivas Rosales, applied for asylum by filing a I-589 application with the EOIR located in San Francisco on or about November 12, 2019. Statement of Facts ¶ 5, Mot. Prelim. Inj., Docket No. 3. Thereafter, Petitioners were scheduled for an individual (or "merits") hearing on February 6, 2020. Id. The hearing notice did not indicate the courtroom or judge assigned to the case. Id. On

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January 22, 2020, Petitioners filed a motion to continue the February 6, 2020 hearing; that motion was denied. Burgus Decl. ¶ 8.

Immigration Judge Gilda Terrazas, an IJ in the Sacramento Immigration Court, was chosen to preside over Petitioners' case via VTC. Id. ¶ 9. On January 23, 2020, Petitioners filed a motion to quash the use of VTC in their case, but the motion was denied on January 28, 2020. Id.; Mot. Quash, Exh. 2, Pet. Writ Mandamus, Docket No. 1; Order of the Immigration Judge, Exh. 2, Pet. Writ Mandamus, Docket No. 1. The denial is brief, merely noting: "Video Conf. Not a Violation of Respondents['] Due Process Rights." Id.

Counsel for Petitioners filed a declaration noting that he has filed six such motions to quash VTC in immigration proceedings; two were granted "for good cause," while "three were denied 'without prejudice, with opportunity to renew should prejudice arise during the hearing' and one was denied for 'lack of good cause.'" Declaration of Gautam Jagannath, Exh. H ¶ 26, Pet. Writ Mandamus, Docket No. 1. The declaration does not specify whether the denial in this case was one of those six, and if so, which type of denial it was.

On February 5, 2020, Petitioners' filed in this Court an Emergency Petition for Writ of Mandamus, an Emergency Motion for Temporary Restraining Order ("TRO"), and a Motion for Preliminary Injunction. See Docket Nos. 1-3. The Court denied Petitioners TRO, which sought to enjoin the use of VTC in their hearing on February 6, 2020, see Docket No. 12, and on February 6, 2020, Petitioners appeared before Immigration Judge Terrazas via VTC for their individual hearing, see Burgus Decl. ¶ 10. At that hearing, Petitioners requested a continuance to pursue this district court litigation and to obtain a psychological evaluation of Petitioner Rivas-Rosales. Id. Judge Terrazas denied Petitioners' continuance request, conducted the hearing, and took Petitioners' testimony regarding their asylum application. Id. The hearing was adjourned after three hours of testimony; Judge Terrazas found there was insufficient time to complete the hearing, id. ¶ 10, and scheduled a master calendar hearing for March 2, 2020 to identify a suitable date for another individual hearing. Id. ¶ 11. The next merits hearing is scheduled for July 2020. See Docket No. 20.

Currently before this Court is Petitioners' Motion for Preliminary Injunction, Docket No. 3

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and Petitioners' Motion for Judicial Notice, Docket No. 24. A hearing for Petitioners' Motion for Preliminary Injunction was scheduled for March 26, 2020 but has been vacated in light of the COVID-19 emergency and General Order 72. See Docket No. 23.2 The matter was taken under submission on the papers.


A. Legal Standard

A court "must dismiss the action" if it "determines at any time that it lacks subject-matter jurisdiction." Fed. R. Civ. P. 12(h)(3). Likewise, "[a] district court may not grant a preliminary injunction if it lacks subject matter jurisdiction over the claim before it." Shell Offshore Inc. v. Greenpeace, Inc., 864 F. Supp. 2d 839, 842 (D. Alaska 2012), aff'd, 709 F.3d 1281 (9th Cir. 2013). Indeed, a motion for a preliminary injunction is moot if the court lacks subject matter jurisdiction. Id. Thus, the jurisdictional challenge raised by the Government must be considered before the Court can reach the merits of Petitioners' motion for a preliminary injunction. See Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 815 (9th Cir. 2017) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)) ("Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case.").

B. Analysis

1. Subject-Matter Jurisdiction

a. Petitioners' Proposed Bases for Jurisdiction

Federal courts are courts of limited jurisdiction; the Court must first determine whether it possesses subject-matter jurisdiction to hear Petitioners' claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998); Bell v. Hood, 327 U.S. 678, 682 (1946). Petitioners bear the burden of establishing subject-matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986).

Petitioners identify six statutes that they contend furnish this Court with subject-matter

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jurisdiction over Petitioners' claims: 28 U.S.C. § 1348 ("Banking Association As Party"), 28 U.S.C. § 2201-02 ("Declaratory Judgment Act"), 28 U.S.C. § 1651 ("Writs"), 5 U.S.C. § 551 et seq. plus § 701 et seq. ("Administrative Procedure Act"), 28 U.S.C. § 1331 ("Federal Question Jurisdiction"), and 28 U.S.C. § 1361 ("Action to Compel An Officer of the United States to Perform His Duty"). However, none are availing.

Petitioners first offer 28 U.S.C. § 1348, see Pet. Writ Mandamus ¶ 14, Docket No. 1, but they appear to have identified the wrong section because this statute only applies when the United States brings an action against a national banking association. See 28 U.S.C. § 1348 ("The district courts shall have original jurisdiction of any civil action commenced by the United States, or by direction of any officer thereof, against any national banking association"). This case was not brought by the United States against a national banking association; therefore, it does not furnish this Court with jurisdiction.3

Petitioners next offer 28 U.S.C. § 2201-02. However, the Declaratory Judgment Act also does not confer jurisdiction because it creates a remedy, not an independent basis for federal jurisdiction. See Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by Kay v. Ehrler, 499 U.S. 432 (1991) ("The declaratory judgment statute ... does not create an independent basis for federal jurisdiction"); see also In re Packaged Seafood Products Antitrust Litigation, 338 F. Supp. 3d 1079, 1097 (quoting Guaranty Nat'l Ins. Co. v. Gates, 916 F.2d 508, 511 (9th Cir. 1990)) ("The Declaratory Judgment Act is a 'procedural device only; it does not confer an independent basis of jurisdiction on the federal court.'")4

Third, Petitioners assert that 28 U.S.C. § 1651 confers subject matter jurisdiction. However, the All Writs Act "does not confer original jurisdiction, but rather, prescribes the scope of relief that may be granted when jurisdiction otherwise exists."...

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