1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSE CARLOS CORDERO PELICO, et al., Case No. 25-cv-07286-EMC (EMC)
8 Plaintiffs, ORDER GRANTING PETITIONERS’ 9 v. EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER 10 POLLY KAISER, et al., 11 Defendants. Docket No. 5
12 13 Before the Court is Petitioners’ Ex Parte Motion for Temporary Restraining Order. TRO 14 Mot., ECF Nos. 5- 6. On August 28, 2025, Petitioners filed a Petition for Writ of Habeas Corpus 15 against Respondents Acting Field Office Director Polly Kaiser, Acting Director of Immigration 16 and Customs Enforcement Todd M. Lyons, Secretary of the Department of Homeland Security 17 Kristi Noem, and United States Attorney General Pamela Bondi. ECF No. 1. On August 29, 18 2025, Petitioners filed an Ex Parte Motion for Temporary Restraining Order. ECF Nos. 5-6. 19 Respondents opposed. See ECF No. 9. Petitioners ask this Court to (1) order their immediate 20 release from Respondents’ custody pending these proceedings, (2) enjoin Respondents from re- 21 detaining them, and (3) enjoin Respondents from transferring them out of this District or deporting 22 them during the pendency of the underlying proceedings. See TRO Mot., ECF No. 6. 23 For the foregoing reasons, the TRO is GRANTED as modified below. 24 25 I. BACKGROUND 26 According to the record before the Court, Petitioners are five non-citizens. Petitioners 27 Adriana Patricia Lezcano Rondon and Fredy Andres Reyes Gonzales are asylum seekers from 1 Malagon Torres and Jacqueline Karina Mendoza Nunez are asylum seekers from Nicaragua. Id. ¶ 2 11, 12. Petitioner Jose Carlos Cordero Pelico is a Guatemalan national. Id. ¶9. When each of 3 Petitioner arrived in the United States, he or she was apprehended by immigration officials at the 4 border. Id. ¶ 51- 56. There, federal official determined that each petitioner “posed little if any 5 flight or danger to the community and released [them] into the community to wait for [an] 6 immigration court date.” Id. Since that time, Petitioners have complied with the terms of their 7 release. Id. Petitioners have “no criminal history anywhere in the world.” Id. 8 On August 28, 2025, Petitioners appeared in-person in San Francisco Immigration Court 9 for master calendar hearings. Id. ¶ 57. In each case, the government moved to dismiss its case 10 seeking each Petitioner’s removal. Id. Except in the case of Petitioner Nunez, the presiding judge 11 did not grant the motions; instead, he gave each of Petitioners time to respond to the motion and 12 continued their hearings. Id.; ECF No. 9 at 7. When Petitioners exited the courtroom, 13 Immigration and Customs Enforcement (“ICE”) agents immediately arrested Petitioners. ECF No. 14 1 ¶ 58. Petitioners are currently being detained at 630 Sansome Street in San Francisco, 15 California. Id. 16 On August 28, 2025, this Petition was filed. Soon after filing the habeas petition, 17 Petitioners’ counsel provided notice of the Petition and a forthcoming motion for a TRO, along 18 with a copy of the Petition, to Respondents’ counsel. Decl. of Jordan Weiner ¶¶ 5, ECF No. 6-3. 19 The next morning, counsel provided Respondent’s counsel with a copy of the TRO motion and 20 supporting documents. Id. In the motion for TRO, Petitioners contend that their arrest and 21 detention violate the Due Process Clause of the Fifth Amendment, both substantively (because 22 Respondents allegedly have no valid interest in detaining them) and procedurally (because they 23 were not provided with a pre-detention bond hearing). On August 29, Respondents filed a 24 response, arguing that Petitioners have not met the standard for a temporary restraining order 25 because they are subject to mandatory detention under 8 U.S.C. § 1225 and lack a cognizable 26 liberty interest. See ECF No. 9. 27 II. LEGAL STANDARD 1 The standard for issuing a temporary restraining order is substantially identical to the 2 standard for issuing a preliminary injunction. Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th 3 Cir. 2017). Thus, a party seeking a temporary restraining order must establish “[1] that he is likely 4 to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of 5 preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in 6 the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). 7 “[I]f 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 issue if 9 the balance of hardships tips sharply in the plaintiff’s favor, and the other two Winter factors are 10 satisfied.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (internal 11 quotation marks and citations omitted). “[W]hen the Government is the opposing party,” the final 12 two factors “merge.” Nken v. Holder, 556 U.S. 418, 435 (2009). 13 An injunction is a matter of equitable discretion and is “an extraordinary remedy that may 14 only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 15 U.S. at 22. A “TRO ‘should be restricted to . . . preserving the status quo and preventing 16 irreparable harm just so long as is necessary to hold a [preliminary injunction] hearing, and no 17 longer.’” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (quoting 18 Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 19 423, 439 (1974)). 20 III. DISCUSSION 21 Petitioners have demonstrated a likelihood of success on the merits of their claim that their 22 ongoing detention violates their procedural due process rights under the Fifth Amendment. 23 Petitioners have a substantial interest in remaining out of custody, and the Due Process Clause 24 entitles Petitioners to a bond hearing before an immigration judge prior to any arrest or detention. 25 Pinchi v. Noem, No. 25-cv-05632-PCP, 2025 WL 2084921, at *2-6 (N.D. Cal. July 24, 2025) 26 (applying the three-part test established in Mathews v. Eldridge, 424 U.S. 319 (1976) to similar 27 circumstances); see also Pablo Sequen v. Kaiser, No. 25-cv-06487-PCP, 2025 WL 2203419, at *2 1 (N.D. Cal. Aug. 1, 2025) (collecting cases). 2 Petitioners have also demonstrated a likelihood of irreparable injury in the absence of 3 temporary relief. The likely unconstitutional deprivation of liberty that Petitioner faces is an 4 immediate and irreparable harm. “It is well established that the deprivation of constitutional rights 5 ‘unquestionably constitutes irreparable injury.’” Hernandez v. Sessions, 872 F.3d 976, 994 (9th 6 Cir. 2017) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)); see also Warsoldier 7 v. Woodford, 418 F.3d 989, 1001-02 (9th Cir. 2005).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSE CARLOS CORDERO PELICO, et al., Case No. 25-cv-07286-EMC (EMC)
8 Plaintiffs, ORDER GRANTING PETITIONERS’ 9 v. EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER 10 POLLY KAISER, et al., 11 Defendants. Docket No. 5
12 13 Before the Court is Petitioners’ Ex Parte Motion for Temporary Restraining Order. TRO 14 Mot., ECF Nos. 5- 6. On August 28, 2025, Petitioners filed a Petition for Writ of Habeas Corpus 15 against Respondents Acting Field Office Director Polly Kaiser, Acting Director of Immigration 16 and Customs Enforcement Todd M. Lyons, Secretary of the Department of Homeland Security 17 Kristi Noem, and United States Attorney General Pamela Bondi. ECF No. 1. On August 29, 18 2025, Petitioners filed an Ex Parte Motion for Temporary Restraining Order. ECF Nos. 5-6. 19 Respondents opposed. See ECF No. 9. Petitioners ask this Court to (1) order their immediate 20 release from Respondents’ custody pending these proceedings, (2) enjoin Respondents from re- 21 detaining them, and (3) enjoin Respondents from transferring them out of this District or deporting 22 them during the pendency of the underlying proceedings. See TRO Mot., ECF No. 6. 23 For the foregoing reasons, the TRO is GRANTED as modified below. 24 25 I. BACKGROUND 26 According to the record before the Court, Petitioners are five non-citizens. Petitioners 27 Adriana Patricia Lezcano Rondon and Fredy Andres Reyes Gonzales are asylum seekers from 1 Malagon Torres and Jacqueline Karina Mendoza Nunez are asylum seekers from Nicaragua. Id. ¶ 2 11, 12. Petitioner Jose Carlos Cordero Pelico is a Guatemalan national. Id. ¶9. When each of 3 Petitioner arrived in the United States, he or she was apprehended by immigration officials at the 4 border. Id. ¶ 51- 56. There, federal official determined that each petitioner “posed little if any 5 flight or danger to the community and released [them] into the community to wait for [an] 6 immigration court date.” Id. Since that time, Petitioners have complied with the terms of their 7 release. Id. Petitioners have “no criminal history anywhere in the world.” Id. 8 On August 28, 2025, Petitioners appeared in-person in San Francisco Immigration Court 9 for master calendar hearings. Id. ¶ 57. In each case, the government moved to dismiss its case 10 seeking each Petitioner’s removal. Id. Except in the case of Petitioner Nunez, the presiding judge 11 did not grant the motions; instead, he gave each of Petitioners time to respond to the motion and 12 continued their hearings. Id.; ECF No. 9 at 7. When Petitioners exited the courtroom, 13 Immigration and Customs Enforcement (“ICE”) agents immediately arrested Petitioners. ECF No. 14 1 ¶ 58. Petitioners are currently being detained at 630 Sansome Street in San Francisco, 15 California. Id. 16 On August 28, 2025, this Petition was filed. Soon after filing the habeas petition, 17 Petitioners’ counsel provided notice of the Petition and a forthcoming motion for a TRO, along 18 with a copy of the Petition, to Respondents’ counsel. Decl. of Jordan Weiner ¶¶ 5, ECF No. 6-3. 19 The next morning, counsel provided Respondent’s counsel with a copy of the TRO motion and 20 supporting documents. Id. In the motion for TRO, Petitioners contend that their arrest and 21 detention violate the Due Process Clause of the Fifth Amendment, both substantively (because 22 Respondents allegedly have no valid interest in detaining them) and procedurally (because they 23 were not provided with a pre-detention bond hearing). On August 29, Respondents filed a 24 response, arguing that Petitioners have not met the standard for a temporary restraining order 25 because they are subject to mandatory detention under 8 U.S.C. § 1225 and lack a cognizable 26 liberty interest. See ECF No. 9. 27 II. LEGAL STANDARD 1 The standard for issuing a temporary restraining order is substantially identical to the 2 standard for issuing a preliminary injunction. Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th 3 Cir. 2017). Thus, a party seeking a temporary restraining order must establish “[1] that he is likely 4 to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of 5 preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in 6 the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). 7 “[I]f 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 issue if 9 the balance of hardships tips sharply in the plaintiff’s favor, and the other two Winter factors are 10 satisfied.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (internal 11 quotation marks and citations omitted). “[W]hen the Government is the opposing party,” the final 12 two factors “merge.” Nken v. Holder, 556 U.S. 418, 435 (2009). 13 An injunction is a matter of equitable discretion and is “an extraordinary remedy that may 14 only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 15 U.S. at 22. A “TRO ‘should be restricted to . . . preserving the status quo and preventing 16 irreparable harm just so long as is necessary to hold a [preliminary injunction] hearing, and no 17 longer.’” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (quoting 18 Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 19 423, 439 (1974)). 20 III. DISCUSSION 21 Petitioners have demonstrated a likelihood of success on the merits of their claim that their 22 ongoing detention violates their procedural due process rights under the Fifth Amendment. 23 Petitioners have a substantial interest in remaining out of custody, and the Due Process Clause 24 entitles Petitioners to a bond hearing before an immigration judge prior to any arrest or detention. 25 Pinchi v. Noem, No. 25-cv-05632-PCP, 2025 WL 2084921, at *2-6 (N.D. Cal. July 24, 2025) 26 (applying the three-part test established in Mathews v. Eldridge, 424 U.S. 319 (1976) to similar 27 circumstances); see also Pablo Sequen v. Kaiser, No. 25-cv-06487-PCP, 2025 WL 2203419, at *2 1 (N.D. Cal. Aug. 1, 2025) (collecting cases). 2 Petitioners have also demonstrated a likelihood of irreparable injury in the absence of 3 temporary relief. The likely unconstitutional deprivation of liberty that Petitioner faces is an 4 immediate and irreparable harm. “It is well established that the deprivation of constitutional rights 5 ‘unquestionably constitutes irreparable injury.’” Hernandez v. Sessions, 872 F.3d 976, 994 (9th 6 Cir. 2017) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)); see also Warsoldier 7 v. Woodford, 418 F.3d 989, 1001-02 (9th Cir. 2005). “[I]t follows inexorably from [the] 8 conclusion” that Petitioners’ detention without a hearing is “likely unconstitutional” that they have 9 “also carried [their] burden as to irreparable harm.” Hernandez, 872 F.3d at 995. 10 The final two Winter factors, the balance of the equities and public interest, also weigh 11 heavily in favor of granting temporary relief. “[T]he public has a strong interest in upholding 12 procedural protections against unlawful detention, and the Ninth Circuit has recognized that the 13 costs to the public of immigration detention are staggering.” Jorge M. F. v. Wilkinson, No. 21-cv- 14 01434-JST, 2021 WL 783561, at *3 (N.D. Cal. Mar. 1, 2021) (cleaned up); see Melendres, 695 15 F.3d at 1002 (“[I]t is always in the public interest to prevent the violation of a party’s 16 constitutional rights.” (quotation omitted)); Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 17 2005) (“Generally, public interest concerns are implicated when a constitutional right has been 18 violated, because all citizens have a stake in upholding the Constitution.”). As other courts in this 19 district and others have concluded under similar circumstances, “the potential harm to [Petitioner] 20 is significant, while the potential harm to the government is minimal.” Pablo Sequen, 2025 WL 21 2203419, at *3. At most, the government faces a short delay in detaining Petitioners if it 22 ultimately demonstrates, by clear and convincing evidence, that their detentions are necessary to 23 prevent danger to the community or flight. See Jorge M. F., 2021 WL 783561, at *3; Diaz v. 24 Kaiser, No. 25-cv-05071, 2025 WL 1676854, at *3 (N.D. Cal. June 14, 2025). The government is 25 not “harmed in any legally cognizable sense by being enjoined from constitutional violations.” 26 Zepeda v. U.S. Immigr. & Nat. Serv., 753 F.2d 719, 727 (9th Cir. 1983). Faced with “a conflict 27 between [administrative] concerns and preventable human suffering, [the Court has] little 1 Hernandez, 872 F.3d at 996) (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983)). 2 A TRO immediately releasing Petitioners is appropriate to return them to the status quo. 3 E. Bay Sanctuary Covenant, 932 F.3d at 779. The status quo refers to “the last uncontested status 4 which preceded the pending controversy.” Doe v. Noem, 778 F. Supp. 3d 1151, 1166 (W.D. 5 Wash. 2025) (quoting GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1210 (9th Cir. 2000)). 6 That is the moment prior to Petitioners’ likely illegal detention. See Kuzmenko v. Phillips, No. 25- 7 cv-00663, 2025 WL 779743, at *2 (E.D. Cal. Mar. 10, 2025) (granting a temporary restraining 8 order requiring immediate release of the petitioner back to home confinement from custody, as a 9 restoration of the status quo). 10 Because Petitioners satisfy all requirements for temporary injunctive relief and such relief 11 is necessary to restore the status quo, the TRO Motion is granted as detailed below. This Order 12 accords with many other recent grants of temporary relief in similar circumstances. See, e.g., 13 Aceros v. Kaiser, No. 25-cv-06924, 2025 WL 2453968, at *3 (N.D. Cal. Aug. 16, 2025) (granting 14 temporary restraining order); Alva v. Kaiser, No. 25-cv-06676, 2025 WL 2294917, at *3 (N.D. 15 Cal. Aug. 7, 2025) (same); Ramirez-Clavijo v. Kaiser, No. 25-CV-06248-BLF, 2025 WL 16 2097467, at *4 (N.D. Cal. July 25, 2025) (same); Pinchi v. Noem, No. 25-cv-05632, 2025 WL 17 1853763, at *4 (N.D. Cal. July 4, 2025) (granting temporary restraining order requiring release of 18 asylum seeker and a pre-detention bond hearing before re-arrest); Singh, 2025 WL 1918679, at 19 *10 (granting preliminary injunction); Doe v. Becerra, No. 25-cv-647-DJC-DMC, 2025 WL 20 691664, at *8 (E.D. Cal. Mar. 3, 2025) (granting temporary restraining order); see also Diaz, 2025 21 WL 1676854 (granting temporary restraining order requiring pre-detention hearing before re- 22 detention of noncitizen out of custody five years); Garcia v. Bondi, No. 25-cv-5070, 2025 WL 23 1676855, at *3 (N.D. Cal. June 14, 2025) (granting temporary restraining order requiring pre- 24 detention hearing before re-detention of noncitizen out of custody six years ); Enamorado v. 25 Kaiser, No. 25-cv-4072-NW, 2025 WL 1382859, at *3 (N.D. Cal. May 12, 2025). 26 Finally, the Court exercises its discretion under Rule 65(c) to dispense with the filing of 27 bond. “[T]here is no realistic likelihood of harm to the [Respondents] from enjoining [their] 1 needed to ensure that Respondents will be reimbursed for “‘costs and damages sustained by .. . 2 || hav[ing] been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). 3 IV. ORDER 4 For the foregoing reasons, IT IS HEREBY ORDERED that Petitioners’ Motion for 5 || Temporary Restraining Order is GRANTED to preserve the status quo pending further briefing 6 and a hearing on this matter. Respondents are ORDERED to immediately release Petitioners 7 from Respondents’ custody and ENJOINED AND RESTRAINED from re-detaining Petitioners 8 without notice and a pre-deprivation hearing before a neutral decisionmaker, and from removing 9 Petitioners from the United States.' This Order shall remain in effect until Friday, September 12, 10 || 2025. 11 Respondents shall provide a status report confirming Petitioners release by Saturday, 12 || August 30, 2025 at 3 p.m.
2 13 Respondents are ORDERED TO SHOW CAUSE in-person at a hearing before Judge
v 14 || Edward M. Chen on September 11 at 1:30 p.m. why a preliminary injunction should not issue. © 15 || Respondents shall file a response to Petitioner’s motion by no later than September 5, 2025. Any 16 || reply shall be filed by September 9, 2025.
Z 18 IT IS SO ORDERED. 19 20 Dated: August 29, 2025 21 22 EDWARD M. CHEN 23 United States District Judge 24 25 26 ' Petitioners also asks the Court to order that they remain within the Northern District of California in order to preserve this Court’s jurisdiction, but it is well-established that “when the 07 Government moves a habeas petitioner after [he or she] properly files a petition naming [his or her] immediate custodian, the District Court retains jurisdiction and may direct the writ to any 2g || tespondent within its jurisdiction who has legal authority to effectuate the prisoner’s release.” Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004).