Avirmed v. U.S. Department of Homeland Security (DHS)

• Court: District Court, S.D. California
• Decided: July 16, 2025
• Docket: 3:25-cv-01310
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 25-cv-1310-DMS-DEB BAYARTULGA AVIRMED,

12 Plaintiff, ORDER CONFIRMING GRANT OF 13 v. MOTION FOR PRELIMINARY INJUNCTION 14 U.S. DEPARTMENT OF HOMELAND

SECURITY (DHS); KRISTI NOEM, in 15 her official capacity as Secretary of the 16 DHS; U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS); 17 KIKA SCOTT, in her official capacity as 18 Senior Official Performing the Duties of the Director of USCIS; CUSTOMS AND 19 BORDER PROTECTION (CBP); PETE 20 R. FLORES, in his official capacity as Acting Commissioner of CBP; 21 IMMIGRATION AND CUSTOMS 22 ENFORCEMENT (ICE); TODD LYONS, in his official capacity as Acting Director 23 of ICE; U.S. DEPARTMENT OF 24 JUSTICE (DOJ); and PAMELA BONDI, in her official capacity as Attorney 25 General, 26 Defendants. 27 28 1 Plaintiff, who is deaf and non-verbal, brings a motion for preliminary injunction 2 against Defendants to postpone proceedings in immigration court pending reasonable 3 accommodations for his disabilities under Section 504 of the Rehabilitation Act. (Motion, 4 ECF No. 16-1). The matter came on for hearing on July 9, 2025. Alegría Guadalupe De 5 La Cruz and Sylvia Torres-Guillén appeared for Plaintiff and Lisa Hemann and Erin 6 Dimbleby appeared for Defendants. After hearing from counsel, the Court granted in part 7 and denied in part Plaintiff’s Motion and entered a minute order vacating impending 8 proceedings before the immigration court and providing certain accommodations to 9 Plaintiff. For the following reasons, the Court confirms its ruling. 10 I. BACKGROUND 11 Plaintiff Bayartulga Avirmed is a 48-year-old deaf and non-verbal citizen of 12 Mongolia who is presently detained at the Otay Mesa Detention Center (“OMDC”). (TRO, 13 at 23–24). In 2020, Plaintiff was beaten by a group of men in his neighborhood in 14 Mongolia “because he did not turn around when they called his name and they considered 15 it disrespectful.” (Avirmed Decl., ECF No. 6 ¶ 4). Between 2020 and 2024, the attackers 16 repeatedly demanded money from Plaintiff and threatened additional violence if he refused 17 to pay. (Id. ¶ 6). Plaintiff attempted to report the attackers to the local authorities, but 18 Mongolian police declined to investigate because they “d[id] not have a way to 19 communicate with Plaintiff.” (Id. ¶ 5). Plaintiff then fled Mongolia and sought asylum 20 within the United States due to the constant threats he received from his attackers and the 21 lack of recourse from local law enforcement officials. (Complaint, ECF No. 1 ¶ 2). From 22 the beatings, Plaintiff “suffered traumatic brain injury that adversely affected his memory, 23 his vision, and left him with fainting spells, confusion, and seizures.” (Id.). 24 Plaintiff crossed into the United States between ports of entry on the Southern border 25 on or about February 15, 2025 and was soon after arrested by U.S. Customs & Border 26 Protection (“CBP”) agents. (TRO at 24). Plaintiff only communicates through Mongolian 27 Sign Language (“MSL”) and written Mongolian. (Id. at 23). Upon arrest by CBP, Plaintiff 28 attempted to give CBP a letter translated from Mongolian to English expressing his fear of 1 return to Mongolia and his intent to apply for asylum. (Id. at 24). CBP agents refused to 2 accept or read the letter and transferred Plaintiff to Immigration & Customs Enforcement 3 (“ICE”) custody at OMDC without ever providing him an MSL interpreter. (Id.). Upon 4 arrival at OMDC, Plaintiff attempted to give ICE agents the translated letter but was again 5 rebuked. (Id. at 25). 6 On or about March 5, 2025, an immigration official attempted to conduct an asylum 7 interview with Plaintiff without an interpreter. (Id.). Plaintiff was able to provide the 8 interviewer the letter, on which the official wrote the words “USA” and “Mongolia.” (Id.). 9 Plaintiff then attempted to communicate through body language that he feared returning to 10 Mongolia. (Id.). 11 Sometime in early April 2025, Plaintiff was assigned pro bono counsel for his 12 immigration proceedings through the County of San Diego’s Immigrant Rights Legal 13 Defense Program. (Complaint ¶ 5). Plaintiff’s counsel and his U.S.-citizen sister, 14 Bayalagmaa Avirmed, repeatedly informed ICE and the Asylum Office of U.S. Citizenship 15 & Immigration Services (“USCIS”) about Plaintiff’s disability and his need for an MSL 16 interpreter. (TRO, at 25). Plaintiff’s counsel also requested that she be allowed to represent 17 Plaintiff during his credible fear interview but was instead told that Plaintiff had not been 18 referred to USCIS for such an interview by ICE or CBP. (Id.). 19 On April 17, 2025, Plaintiff’s counsel reached out to the Mental Health Team of the 20 Office of the Principal Legal Advisor (“OPLA”) for San Diego. (Id. at 26). Plaintiff’s 21 counsel suggested to OPLA that Plaintiff’s disability entitled him to protections pursuant 22 to the Franco-Gonzalez settlement,1 the Immigration & Nationality Act (“INA”) and 23 Section 504 of the Rehabilitation Act (“Section 504”). (Id.). Counsel also requested that 24 OPLA issue Plaintiff a Notice to Appear (“NTA”), so that Plaintiff would be placed in 25

26 1See Franco-Gonzalez v. Holder, No. 10-cv-02211, 2013 WL 3674492 (C.D. Cal. Apr. 23, 2013). 27 Plaintiff’s counsel contends that “Plaintiff, as a disabled individual with serious mental disorder or defect rendering him incompetent to represent himself, is entitled to representation at all immigration 28 1 removal proceedings and begin the asylum review process in immigration court. (Id.). 2 OPLA then informed counsel that her NTA request should be directed to ICE and that the 3 office would “reach out to OMDC Medical to inquire [if] a Qualified Mental Health 4 Provider has [been] found that meets the SMI criteria.” (Id.). Counsel placed its request 5 for a discretionary NTA and safeguards and accommodations to ICE on April 28, 2025. 6 (Id.). Counsel also formally filed a motion for custody redetermination with the Otay Mesa 7 Immigration Court and requested accommodations for Plaintiff pursuant to the Franco- 8 Gonzalez settlement, Matter of M.A.M.,2 and Section 504. (Id.); (Complaint ¶ 58). 9 On May 6, 2025, Plaintiff was again interviewed by an immigration official, this 10 time with the assistance of a sign language interpreter. (TRO, at 26–27). Because the 11 interpreter did not use MSL, neither Plaintiff nor the interpreter could understand each 12 other. (Id. at 27). Following this interview, Plaintiff was served a “Convention Against 13 Torture Assessment Notice” which stated that Plaintiff “did not establish it is more likely 14 than not that [Plaintiff] will be tortured in Mongolia.” (Id.). This notice was not written 15 in Mongolian nor was it translated to him in MSL. (Id.). Based on this interview and 16 notice, Counsel filed a stay of removal with ICE on May 12, 2025. (Id.). The stay was not 17 granted. (Id.). 18 On May 15, 2025, immigration officials visited Plaintiff in his cell to attempt another 19 interview—this time with an American Sign Language (“ASL”) interpreter. (Id.). 20 Plaintiff’s cellmates reminded the officials that Plaintiff did not understand ASL. (Id.). 21 Acknowledging this fact, the officials called Ms. Avirmed and asked her to serve as an 22 MSL interpreter. (Id.). Ms. Avirmed declined and explained to the officials that she was 23 not sufficiently proficient in MSL to serve as an interpreter. (Id.). Ms. Avirmed then 24 provided the contact information for an MSL interpreter to the officials, but they did not 25 heed her advice. 26 27 28 1 On May 22, 2025, Plaintiff filed his Complaint and motion for temporary restraining 2 order (TRO) seeking reasonable accommodations for his disabilities and stay of removal 3 pending further court order. On May 27, 2025, after Plaintiff challenged the expedited 4 removal proceedings, Defendants issued Plaintiff an NTA to appear before an immigration 5 judge on June 9, 2025. (TRO Opp’n, ECF No. 7, at 4). The issuance of the NTA 6 terminated Plaintiff’s expedited removal proceedings and commenced removal 7 proceedings under Section 240 of the INA (“240 proceedings”), where Plaintiff enjoys a 8 statutory right to counsel, among other provisions. 9 Plaintiff was scheduled to appear before an immigration judge on July 14, 2025 for 10 a competency hearing. On approximately June 6, 2025, Defendants conducted a mental 11 health evaluation of Plaintiff in anticipation of the competency hearing. (B. Avirmed Decl., 12 ECF No. 16-7 ¶ 18). Plaintiff moved to postpone that hearing pending accommodations 13 he claims entitlement to as a disabled person. 14 Since Plaintiff entered immigration detention, he has been subject to several 15 immigration interviews without the assistance of an MSL interpreter or other 16 accommodations. (TRO Opp’n, at 3–4). Plaintiff also had access to counsel only at his 17 240 immigration hearings and not during expedited removal proceedings. (Id.). Plaintiff 18 moves the Court to order Defendants to (1) provide all reasonable accommodations 19 afforded to him under Section 504 at all future immigration proceedings; (2) strike from 20 his A-file determinations made during Plaintiff’s expedited removal proceedings without 21 the presence of an MSL interpreter; (3) strike his prior mental evaluations conducted 22 without the presence of an MSL interpreter; (4) conduct new mental evaluations and other 23 240 proceedings with accommodations; (5) continue the July 14, 2025 competency hearing 24 until requests (1) and (4) are provided; (6) expand the time limit at OMDC to three hours 25 for Plaintiff’s video calls, which include but are not limited to Plaintiff, his immigration 26 counsel, an MSL interpreter, and his sister; (7) allow for Plaintiff’s sister to be present at 27 the 240 proceedings; and (8) translate all written immigration court orders into written 28 Mongolian. (Motion, at 30–31). 1 II. JURISDICTION 2 Defendants first argue Plaintiff lacks Article III standing to bring his Section 504 3 claim and his claims are moot. To have Article III standing, Plaintiff “must have (1) 4 suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the 5 defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 6 Inc. v. Robins, 578 U.S. 330, 338 (2016). 7 Defendants contend Plaintiff lacks Article III standing because he was taken out of 8 expedited removal proceedings after Plaintiff filed his Complaint and motion for TRO, and 9 therefore his alleged injuries are moot as they relate only to Defendants’ failure to provide 10 reasonable accommodations during those proceedings.3 (Opp’n, ECF No. 17, at 5–6). 11 However, a voluntary “cessation of [alleged] activity in response to pending litigation does 12 not moot a case, unless the party alleging mootness can show that the ‘allegedly wrongful 13 behavior could not reasonably be expected to recur.’” Rosemere Neighborhood Ass’n. v. 14 U.S. E.P.A, 581 F.3d 1169, 1173 (9th Cir. 2009) (quoting Friends of the Earth, Inc. v. 15 Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). And while placement into 16 240 proceedings will afford Plaintiff counsel and interpreter services, it is undisputed 17 Plaintiff was not provided interpreter services during prior 240 proceedings, including his 18 bond and initial master calendar hearings, as well as his mental health examination. 19 (Montavon Decl., ECF No. 16-2 ¶¶ 16, 25, 31–33). Plaintiff has therefore alleged injuries 20 in fact caused by Defendants’ failure to provide reasonable accommodations during his 21 240 proceedings, and injuries that are redressable with appropriate injunctive relief. 22 Accordingly, the Court finds Plaintiff has sufficiently alleged Article III standing and his 23 claims are not moot. 24 Defendants next argue the Court lacks jurisdiction because Plaintiff’s requested 25 injunctive relief is based on claims not pled in his Complaint. (Id. at 7–8). Plaintiff argues 26 27 28 1 this Court retains jurisdiction because he requests reasonable accommodations throughout 2 the immigration proceedings, which he has adequately alleged in his Complaint. (Reply, 3 ECF No. 19, at 7). The Court agrees. 4 For this Court to grant injunctive relief, “there must be a relationship between the 5 injury claimed in the motion for injunctive relief and the conduct asserted in the underlying 6 complaint.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th 7 Cir. 2015) (quoting De Beers Consol. Mines, 325 U.S. 212, 220 (1945)) (stating “[t]his 8 requires a sufficient nexus between the claims raised in a motion for injunctive relief and 9 the claims set forth in the underlying complaint itself.”) Plaintiff’s Complaint broadly 10 alleges violations of his Section 504 rights throughout the “immigration processes,” and 11 seeks reasonable accommodations during “his asylum request” and “stay of removal” 12 pending such accommodations and review of any final order issued by immigration 13 officials. (Complaint ¶¶ 1, 6, 9, 12, 45, 62-63). Plaintiff has pled a sufficient nexus 14 between the claims advanced in his Complaint and the relief requested. The Court has 15 jurisdiction and will proceed with Plaintiff’s request for preliminary injunction.4 16 III. LEGAL STANDARD 17 A. Preliminary Injunction 18 “A party seeking a preliminary injunction must meet one of two variants of the same 19 standard.” All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017). Under 20 the Winter standard, a party is entitled to a preliminary injunction if it demonstrates (1) 21 “that [it] is likely to succeed on the merits,” (2) “that [it] is likely to suffer irreparable harm 22 in the absence of preliminary relief,” (3) “that the balance of equities tips in [its] favor,” 23 and (4) “that an injunction is in the public interest.” Winter, 555 U.S. at 20. Under the 24

25 26 4 At oral argument, Defendants also referenced jurisdictional arguments under 8 U.S.C. §§ 1252(a)(5) (addressing judicial review “of an order of removal”), (b)(9) (similar). Notably, these arguments were not 27 raised in Defendants’ opposition, likely because they do not apply. The Court is addressing Plaintiff’s requests for accommodations under Section 504 during immigration proceedings, for which there is 28 1 Ninth Circuit’s “‘serious questions’ test—a ‘sliding scale’ variant of the Winter test— . . . 2 a party is entitled to a preliminary injunction if it demonstrates (1) ‘serious questions going 3 to the merits,’ (2) a likelihood of irreparable injury,’ (3) ‘a balance of hardships that tips 4 sharply towards the plaintiff,’ and (4) ‘the injunction is in the public interest.’” Flathead- 5 Lolo-Bitterroot Citizen Task Force v. Montana, 98 F.4th 1180, 1190 (9th Cir. 2024) 6 (quoting All. for the Wild Rockies, 865 F.3d at 1217). Under this “serious questions” test, 7 “if a plaintiff can only show that there are serious questions going to the merits—a lesser 8 showing than likelihood of success on the merits—then a preliminary injunction may still 9 issue if the balance of hardships tips sharply in the plaintiff’s favor, and the other two 10 Winter factors are satisfied.” All. for the Wild Rockies, 865 F.3d at 1217 (quoting Shell 11 Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (internal quotations 12 omitted)). A plaintiff need only demonstrate success as to at least one of their claims to 13 receive a preliminary injunction. See Ozkay v. Equity Wave Lending, Inc., No. 20-cv- 14 08263-JST, 2020 WL 12764953, at *2 (N.D. Cal. Nov. 25, 2020). 15 Injunctive relief can be prohibitory or mandatory. “A prohibitory injunction 16 prohibits a party from taking action and ‘preserve[s] the status quo pending a determination 17 of the action on the merits.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 18 571 F.3d 873, 878 (9th Cir. 2009) (quoting Chalk v. U.S. Dist. Ct., 840 F.2d 701, 704 (9th 19 Cir. 1988)). “A mandatory injunction orders a responsible party to take action[,] . . . goes 20 well beyond simply maintaining the status quo [p]endente lite[,] [and] is particularly 21 disfavored.” Id. at 879 (internal quotations omitted). “The status quo means ‘the last, 22 uncontested status which preceded the pending controversy.’” N.D. ex rel. Parents Acting 23 as Guardians Ad Litem v. State of Haw. Dep’t of Educ., 600 F.3d 1104, 1112 n.6 (9th Cir. 24 2010) (quoting Marlyn Nutraceuticals, Inc., 571 F.3d at 879). Here, Plaintiff’s request is 25 prohibitory because he seeks to preserve the status quo preceding this litigation: a scenario 26 where Plaintiff receives the reasonable accommodations Defendants should have provided 27 under Section 504 during his immigration proceedings. 28 1 A district court may also consider “the parties’ pleadings, declarations, affidavits, 2 and exhibits submitted in support of and in opposition to the [motion for preliminary 3 injunction].” Cal. Rifle & Pistol Ass’n, Inc. v. Los Angeles Cnty. Sheriff’s Dep’t, 745 F. 4 Supp. 3d 1037, 1048 (C.D. Cal. 2024); see also Johnson v. Couturier, 572 F.3d 1067, 1083 5 (9th Cir. 2009) (finding district court did not abuse its discretion in granting a preliminary 6 injunction when it relied on hearsay evidence and “the many exhibits, affidavits, 7 declarations and factual allegations which have been submitted . . . by all parties . . . 8 throughout the course of this litigation”). Any evidentiary issues “properly go to weight 9 rather than admissibility.” Am. Hotel & Lodging Ass’n v. City of Los Angeles, 119 F. Supp. 10 3d 1177, 1185 (C.D. Cal. 2015). 11 IV. DISCUSSION 12 A. Likelihood of Success on the Merits 13 “The first factor under Winter is the most important—likely success on the merits.” 14 Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). While Plaintiff carries the 15 burden of demonstrating likelihood of success, he is not required to prove his case in full 16 at the preliminary injunction stage but only such portions that enable him to obtain the 17 injunctive relief he seeks. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). 18 1. Section 504 of the Rehabilitation Act 19 Plaintiff claims he has been denied the reasonable accommodations afforded to him 20 pursuant to Section 504 of the Rehabilitation Act throughout his 240 hearings and related 21 proceedings. Under that statute, “[n]o otherwise qualified individual with a disability . . . 22 shall, solely by reason of her or his disability, be excluded from the participation in, be 23 denied the benefits of, or be subjected to discrimination under any program or activity 24 receiving Federal financial assistance.” 29 U.S.C. § 794(a). To succeed on a Section 504 25 discrimination claim, Plaintiff must show that (1) “[he] is a qualified individual with a 26 disability; (2) [he] was denied a reasonable accommodation that he needs in order to enjoy 27 meaningful access to the benefits of public services; and (3) the program providing the 28 benefit receives federal financial assistance” or is conducted by an executive agency. 1 Csutoras v. Paradise High School, 12 F.4th 960, 968–69 (9th Cir. 2021) (quoting A.G. v. 2 Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016)) (cleaned 3 up); see also 29 U.S.C. § 794(a). “Discrimination solely by reason of disability occurs 4 when a program ‘effectively denies otherwise qualified handicapped individuals the 5 meaningful access to which they are entitled.’” Ibarra v. Colvin, No. 23-CV-01037-SI, 6 2024 WL 5505739, at *2 (N.D. Cal. Dec. 30, 2024) (quoting Alexander v. Choate, 469 7 U.S. 287, 300 (1985)). 8 The first and third elements of Plaintiff’s Section 504 claim are not seriously 9 disputed. Plaintiff, as a deaf and non-verbal individual who is also subject to fainting 10 spells, confusion, and seizures, is a qualified individual with a disability under the statute. 11 See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1136 (9th Cir. 2001) (citing 42 U.S.C. 12 § 12131);5 29 U.S.C. § 705. Defendants include executive agencies, here the Department 13 of Justice and ICE, that are covered by Section 504 because of their responsibility over 14 conducting 240 immigration hearings and related proceedings or overseeing conditions of 15 immigration detention. See 29 U.S.C. § 794(a). Accordingly, Plaintiff is entitled to 16 reasonable accommodations. At issue are the kinds of accommodations Defendants must 17 provide under Section 504 and whether Defendants’ proposed accommodations are 18 sufficient. 19 Defendants propose a relay interpreter team consisting of a Certified Deaf Interpreter 20 (“CDI”) and an American Sign Language Interpreter (“ASI”) to satisfy its obligation to 21 provide reasonable accommodations for Plaintiff at future 240 proceedings. (Opp’n, at 3– 22 4). This solution, according to Defendants, moots his prior Section 504 injuries because 23 there would be no “real and immediate threat of repeated injury.” (Id. at 9). 24 25

26 5 Because “[t]here is no significant difference in analysis of the rights and obligations created by the 27 [Americans with Disabilities Act] and the Rehabilitation Act[,] . . . courts have applied the same analysis to claims brought under both statutes.” Zukle v. Regents of Univ. of California, 166 F.3d 1041, 1045 n.11 28 1 This proposal is certain to preclude Plaintiff from understanding any part of his 240 2 proceedings. The relay is an interpretation cul-de-sac: Plaintiff first mouths or signs in 3 MSL to the CDI, then the CDI attempts to interpret Plaintiff and conveys that interpretation 4 to the ASI, and then the ASI communicates his or her understanding of the CDI’s 5 interpretation to the immigration judge. When asked at oral argument how Plaintiff would 6 understand what was said through this relay, Defendants’ counsel explained that the CDI— 7 who is not trained in MSL—would ultimately “make gestures” at Plaintiff. Such attempts 8 are insufficient as the relay leaves out Plaintiff. The record is replete with evidence and 9 examples showing Plaintiff only understands MSL and written Mongolian. (ECF No. 19- 10 4 ¶ 3); (B. Avirmed Decl. ¶ 7); (Reply, at 9 (collecting examples)). Defendants’ solution 11 is untenable because it deprives Plaintiff of meaningful access to and involvement in the 12 proceedings. At minimum, Section 504 requires Defendants to provide Plaintiff with an 13 MSL interpreter at all future 240 proceedings. Plaintiff has therefore demonstrated likely 14 success on his request to have an MSL interpreter at immigration proceedings.6 15 Plaintiff additionally requests a “redo” of certain past proceedings—Plaintiff’s 16 medical evaluations, bond hearing, and master calendar hearing—which were conducted 17 without the presence of an MSL interpreter. The medical evaluations must be redone as 18 they are critical proceedings necessitating Plaintiff’s engagement with health care 19 providers. The evaluations are the foundation for an immigration judge’s determination of 20 competency and whether Plaintiff is entitled to additional protections under the law; yet, 21 they were conducted without the assistance of an MSL interpreter. (ECF 16-2 ¶¶ 53–55); 22 (B. Avirmed Decl. ¶¶ 16–18). The Court fails to see how Plaintiff could have meaningfully 23 participated in any medical examination designed to evaluate competency when he and the 24 evaluating doctor were unable to communicate. On the other hand, Plaintiff’s bond and 25 26 27 6 Because Plaintiff need only demonstrate success as to one of his claims to receive injunctive relief, Ozkay, 2020 WL 12764953, at *2, the Court declines to consider whether Plaintiff has met his burden as 28 1 master calendar hearings were indisputably procedural in nature, did not affect the 2 substance of his pending asylum case or other substantive rights, did not require his active 3 participation, and were explained to Plaintiff by his counsel and sister after the fact without 4 apparent consequence to his pending case. Accordingly, as to the medical evaluation, 5 Plaintiff has shown likely success that Defendants violated his Section 504 rights when 6 they proceeded without an MSL interpreter. The medical evaluations must be redone. 7 As clarified at oral argument, Plaintiff further requests the striking of medical 8 records and other evaluative records from his A-file which were created during the 9 expedited removal process—such as Plaintiff’s credible fear interview and subsequent 10 negative determination. Like the medical evaluation and records, the expedited removal 11 proceedings and records were created without effective interpretation or translation 12 services. Thus, Plaintiff was unable to meaningfully participate in these interviews and 13 evaluations. Because these records may be considered by an immigration judge and 14 adversely affect Plaintiff’s asylum claim and potential protections under the Franco- 15 Gonzalez class and Matter of M.A.M., these records are stricken from Plaintiff’s A-file. 16 Plaintiff also requests that the one-hour time limit for video calls in the detention 17 facility with counsel and his sister be extended to three hours. At oral argument, 18 Defendants disclaimed knowledge of any such policy, which is apparently set by OMDC. 19 To the extent such a policy exists, Defendants will depart from that policy and allow up to 20 three-hours per call. These calls will involve an MSL interpreter and, at times, may include 21 a second Mongolian-to-English interpreter. (Montavon Decl. ¶ 10). Defendants agree that 22 this labored-relay process involving numerous people (though necessary), will take 23 significantly more time than a standard attorney-client call involving same-language 24 communication without disabilities. Accordingly, Plaintiff has demonstrated that 25 providing up to three-hours per video call is a reasonable accommodation under Section 26 504. 27 Next, Plaintiff requests the presence not only of counsel but also his sister at future 28 immigration proceedings. The evidence establishes that Plaintiff’s sister can sign 1 “comfortabl[y]” in MSL and communicate with Plaintiff, (B. Avirmed Decl. ¶ 7), and 2 Plaintiff is willing to share his fears and concerns through his sister to immigration 3 officials. (Montavon Decl. ¶ 51); (B. Avirmed Decl. ¶ 8). This comfort is borne out of 4 their lifelong familial bond and decades of support from his sister through challenging 5 times in Mongolia and here. (Supplemental B. Avirmed Decl., ECF No. 19-3 ¶ 8). 6 Considering Plaintiff’s alleged cognitive disabilities, which leave him “confused, anxious, 7 and increasingly withdrawn,” (Montavon Decl. ¶ 52), Plaintiff has shown that his sister’s 8 presence will help him fully participate in immigration hearings and related proceedings. 9 Accordingly, the Court finds Plaintiff has met his burden of showing that his sister’s 10 presence is a reasonable accommodation under Section 504. 11 Finally, and as clarified at oral argument, Plaintiff requests that all written orders of 12 the immigration judge be translated into written Mongolian. Due to the Court’s grant of 13 Plaintiff’s requests to permit his sister’s presence at all immigration hearings and related 14 proceedings, as well as extended video conference time limits at OMDC, this request 15 appears superfluous and is not granted. 16 B. Likelihood of Irreparable Harm 17 Under the second Winter factor, the Court considers whether Plaintiff is “likely to 18 suffer irreparable harm in the absence of preliminary relief.” 555 U.S. at 20. Plaintiff’s 19 inability to meaningfully participate in immigration proceedings is unquestionably a 20 significant depravation of his right to access a daunting process that carries lifelong 21 consequences. See Torres v. U.S. D.H.S., No. EDCV 18-2604 JGB (SHKx), 2020 WL 22 3124216, at *8 (C.D. Cal. Apr. 11, 2020). Such injury constitutes irreparable harm. See 23 Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1084 (N.D. Cal. 1997) (“Injuries 24 to individual dignity and deprivations of civil rights constitute irreparable injury.”); 25 26 27 7 In situations where only a MSL to oral Mongolian interpreter is available, Plaintiff’s sister may finish the relay and translate from oral Mongolian to English. (Supplemental B. Avirmed Decl., ECF No. 19-3 28 1 Sullivan v. Vallejo City Unified Sch. Dist., 731 F. Supp. 947, 961 (E.D. Cal. 1990) (holding 2 injury to ability to function as independent person constituted irreparable injury). 3 Therefore, the second Winter factor favors Plaintiff. 4 C. Balance of Equities and Public Interest 5 When the Government is a party to a case, the third and fourth Winter factors—the 6 balance of the equities and the public interest—merge. See Drakes Bay Oyster Co. v. 7 Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 8 (2009)). Plaintiff’s suit is premised on the violation of his statutory rights guaranteed by 9 Section 504. The accommodations Plaintiff seeks go to the heart of his ability to 10 understand and participate in his 240 proceedings. It would not be “‘in the public’s interest 11 to allow the [Government] . . . to violate the requirements of federal law, especially when 12 there are no adequate remedies available.’” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 13 1053, 1069 (9th Cir. 2014) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 14 2012)). Further, “[the] public interest is served by requiring entities to take steps to ‘assure 15 equality of opportunity’ for people with disabilities.” Enyart v. Nat’l Conf. of Bar Exam’rs, 16 630 F.3d 1153, 1167 (9th Cir. 2011) (quoting 42 U.S.C. § 12101(a)(8)). Accordingly, the 17 third and fourth factors support preliminary relief. A preliminary injunction is warranted 18 under the circumstances. 19 V. CONCLUSION 20 For these reasons, the Court CONFIRMS its GRANT in part and denial in part of 21 Plaintiff’s motion for preliminary injunction. Defendants shall (1) provide a certified MSL 22 interpreter at all Plaintiff’s future immigration hearings and proceedings;8 (2) redo 23 Plaintiff’s medical and mental evaluations with the assistance of certified MSL 24 interpretation; (3) reschedule Plaintiff’s competency hearing (originally set July 14, 2025) 25 pending MSL interpretation services and renewed medical and mental evaluations; (4) 26

27 8 If a relay is needed from MSL to oral Mongolian to English, Defendants shall provide any additional 28 1 || strike Plaintiffs prior medical records and evaluations under the expedited removal process 2 || from Plaintiff's A-file and purge them from consideration at Plaintiffs future immigration 3 || hearings; (5) provide up to three hours per video conference call while in federal detention; 4 permit Plaintiff's sister, Bayalagmaa Avirmed, to attend Plaintiff's future immigration 5 ||hearings and related proceedings (virtual video attendance shall be permitted where Ms. 6 ||Avirmed may have her camera on and screen visible to Plaintiff so that they may 7 |}communicate through MSL), and (7) not remove Plaintiff pending review of any final 8 ||removal order. Plaintiff's counsel is invited to file updates with the Court should 9 || additional concerns arise. 10 IT IS SO ORDERED. 11 Dated: July 16, 2025 12 =n Yn. LAN 13 Hon. Dana M. Sabraw 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff's motion for temporary restraining order shall be dismissed as moot.