Gomez Garcia et al. v. Kristi Noem et al.

Opinion

O 1

2 3 4 5 6 7

8 United States District Court 9 Central District of California

11 GOMEZ GARCIA et al., Case № 5:25-cv-02771-ODW (PDx)

12 Plaintiffs, ORDER GRANTING EX PARTE 13 v. APPLICATION FOR TEMPORARY 14 KRISTI NOEM et al., RESTRAINING ORDER AND 15 ORDER TO SHOW CAUSE [4] Defendants.

16 17 I. INTRODUCTION 18 Petitioners Gilberto Gomez Garcia, Elvia Cruz Vargas, Alejandro Tellez 19 Mendez, and Panfilo Cirilo Noriega Enriquez move the Court ex parte for a temporary 20 restraining order requiring, among other things, their release from custody or an 21 individualized bond hearing before an immigration judge. (Ex Parte Appl. (“TRO”), 22 Dkt. No. 4.) Respondents Kristi Noem, Secretary of the Department of Homeland 23 Security (“DHS”), Pamela Bondi, U.S. Attorney General, Todd Lyons, Acting Director 24 of Immigration and Customs Enforcement (“ICE”), Ernesto Santacruz, Jr., Acting 25 Director of ICE Los Angeles Field Office, Fereti Semaia, Warden of Adelanto ICE 26 Processing Center, Executive Office for Immigration Review (“EOIR”), ICE, and 27 DHS oppose the request. (Opp’n, Dkt. No. 9.) For the reasons discussed below, the 28 Court GRANTS the TRO. 1 II. BACKGROUND 2 Petitioners are foreign nationals currently detained at the ICE Adelanto 3 Processing Center and Desert View Annex in Adelanto, California. (Pet. ¶ 1, Dkt. 4 No. 1.) Between July 3, 2025, and September 1, 2025, ICE or Border Patrol agents 5 arrested Petitioners in Orange County and Los Angeles County. (Id. ¶¶ 16–19.) 6 Pursuant to a new ICE “Interim Guidance Regarding Detention Authority for 7 Applications for Admission” (“New Policy”), “all noncitizens who entered the United 8 States without inspection shall now be deemed ‘applicants for admission’ and subject 9 to mandatory detention under 8 U.S.C. § 1225(b)(2)(A).” (Id. ¶ 38.) Prior to the New 10 Policy, foreign nationals “present without admission” were not considered detained 11 under 8 U.S.C. § 1225. (Id. ¶ 34.) Instead, they were considered detained under 12 8 U.S.C. § 1226(a) and received bond hearings. (Id. ¶¶ 34–36.) Section 1226(a) of 13 the Immigration and Nationality Act (“INA”) allows for release on bond or 14 conditional parole, but § 1225(b)(2)(A) does not. The Immigration Judges (“IJ” or 15 “IJs”) in Petitioners’ cases adopted the legal analysis set forth in the New Policy and 16 the Board of Immigration Appeals (“BIA”) decision in Matter of Yajure Hurtado, 17 29 I. & N. Dec. 216 (BIA 2025) and, having deemed Petitioners “applicant[s] for 18 admission,” the IJs denied Petitioners’ requests for bond hearings. (Id. ¶¶ 5, 16–19.) 19 Based on these allegations, on October 20, 2025, Petitioners filed a Petition for 20 Writ of Habeas Corpus on the grounds that their detention violates 8 U.S.C. § 1226(a); 21 DHS and EOIR Bond Regulations; the Administrative Procedure Act (“APA”), 22 5 U.S.C. § 706(2); and their Fifth Amendment Right to Due Process. (Id. ¶¶ 70–83.) 23 That same day, Petitioners filed this Application for a Temporary Restraining Order 24 and Order to Show Cause. (TRO.) Petitioners request that this Court (1) order 25 Respondents to release Petitioners or provide them with individualized bond hearings 26 before an IJ, (2) enjoin Respondents from relocating Petitioners outside of the Central 27 District of California pending resolution of this case, and (3) order Respondents to 28 show cause why a preliminary injunction should not issue. (Id. at 1.) 1 III. LEGAL STANDARD 2 A temporary restraining order (“TRO”) is an “extraordinary remedy that may 3 only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 4 Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008). The standard for issuing a 5 TRO is “substantially identical” to that for issuing a preliminary injunction. Stuhlbarg 6 Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). 7 Pursuant to Federal Rule of Civil Procedure (“Rule”) 65, a court may grant 8 preliminary injunctive relief to prevent “immediate and irreparable injury.” Fed. R. 9 Civ. P. 65(b). To obtain this relief, a plaintiff must establish the “Winter” factors: 10 (1) the plaintiff “is likely to succeed on the merits”; (2) the plaintiff “is likely to suffer 11 irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips 12 in [the plaintiff’s] favor”; and (4) “an injunction is in the public interest.” Am. 13 Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) 14 (quoting Winter, 555 U.S. at 20). 15 The Ninth Circuit uses a sliding scale approach to preliminary injunctions, such 16 that “a stronger showing of one element may offset a weaker showing of another.” 17 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Under the 18 sliding scale approach, a plaintiff is entitled to a preliminary injunction if he has raised 19 “serious questions going to the merits . . . and the balance of hardships tips sharply in 20 [his] favor,” “so long as the plaintiff also shows that there is a likelihood of irreparable 21 injury and that the injunction is in the public interest.” Id. at 1135 (internal quotation 22 marks omitted). 23 IV. DISCUSSION 24 Respondents first argue that this Court lacks jurisdiction over this matter. 25 (Opp’n 5–9.) In the alternative, Respondents argue Petitioners fail to meet the 26 requirements for a TRO. (Id. at 9–14.) The Court first considers whether it has 27 jurisdiction over this matter, then turns to the merits of the TRO. 28 1 A. Jurisdiction 2 Respondents contend that 8 U.S.C. § 1252(b)(9) and (g) preclude review of 3 Petitioners’ claims. (Opp’n 5–9.) The Court examines each subsection in turn. 4 1. Section 1252(b)(9) 5 Respondents argue that, under § 1252(b)(9), “judicial review of all questions of 6 law . . . including interpretation and application of statutory provisions . . . arising 7 from any action taken . . . to remove an alien from the United States” is the purview of 8 the appropriate federal court of appeals. (Opp’n 6 (citing § 1252(b)(9)).) Although 9 § 1252(b)(9) allocates judicial review to federal courts of appeals, this statutory 10 provision has a much narrower scope than Respondents contend. 11 Section 1252(b)(9) provides: 12 Judicial review of all questions of law and fact, including interpretation 13 and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the 14 United States under this subchapter shall be available only in judicial 15 review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under 16 section 2241 of Title 28 or any other habeas corpus provision, by 17 section 1361 or 1651 of such title, or by any other provision of law 18 (statutory or nonstatutory), to review such an order or such questions of law or fact. 19 Respondents contend that § 1252(b)(9) is an “unmistakable ‘zipper’ clause” that 20 “‘channels judicial review of [all claims arising from deportation proceedings]’ to a 21 court of appeals in the first instance.” (Opp’n 6 (alteration in original) (citing Reno v. 22 American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999)). 23 Section 1252(b)(9) calls for review of “final orders of removal” to federal courts of 24 appeals. No final order of removal has been issued for any Petitioner in this case and 25 Respondents do not argue otherwise. (See generally Opp’n.) Instead, the IJs denied 26 Petitioners’ requests for bond hearings. (Pet. ¶¶ 5, 16–19.) Absent a final order of 27 removal, § 1252(b)(9) does not preclude this Court’s review of Petitioners’ TRO. 28 1 Respondents also rely on Jennings v. Rodriguez, 583 U.S. 281 (2018) to argue 2 that § 1252(b)(9) bars this Court’s review because Petitioners challenge the 3 government’s removal orders, “including decisions to detain for purposes of removal 4 or for proceedings.” (Opp’n 8–9.) In Jennings, the Supreme Court held that 5 § 1252(b)(9) did not bar review because the plaintiff there did not “ask[] for review of 6 an order of removal; challenge the decision to detain them in the first place or to seek 7 removal; or challenge any part of the process by which their removability will be 8 determined.” 58 U.S. at 294–95 (citation modified). In determining the applicability 9 of § 1252(b)(9), the Supreme Court considered if the “question[] of law”—whether 10 statutory provisions require detention without a bond hearing—“arise[s] from” actions 11 taken to remove the plaintiff. Id. at 292–93. 12 As discussed above, and contrary to Respondents’ assertion, Petitioners here do 13 not challenge an order of removal, the decision to detain them in the first place, or any 14 determination of their removability. Rather, Petitioners raise a “question of law” as to 15 whether “statutory provisions require detention without a bond hearing.” Id. at 292– 16 93. Specifically, Petitioners contend that their detention is governed by § 1226(a), not 17 § 1225(b)(2), and their continued detention without a bond hearing violates § 1226(a). 18 (See Pet. ¶¶ 71–72.) Accordingly, as Petitioners’ claims do not “arise from” removal 19 proceedings, § 1252(b)(9) does not bar this Court’s review of Petitioners’ TRO. 20 2. Section 1252(g) 21 Respondents next argue that § 1252(g) “deprives courts of jurisdiction, 22 including habeas corpus jurisdiction.” (Opp’n 5 (emphasis omitted).) 23 Section 1252(g) provides: 24 Except as provided in this section and notwithstanding any other 25 provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 26 1651 of such title, no court shall have jurisdiction to hear any cause or 27 claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or 28 execute removal orders against any alien under this chapter. 1 Respondents argue that Petitioners’ claims stem from their detention during 2 removal proceedings and that § 1252(g) “bars district courts from hearing challenges 3 to the method by which the Secretary of Homeland Security chooses to commence 4 removal proceedings, including the decision to detain an alien pending removal.” 5 (Opp’n 5.) This argument requires the Court to adopt a broad interpretation of 6 § 1252(g), an interpretation that the Supreme Court has expressly rejected. 7 The Supreme Court has adopted a narrow application of § 1252(g), applying it 8 “only to three discrete actions that the Attorney General may take: her ‘decision or 9 action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” 10 Reno, 525 U.S. at 482. This language “refer[s] to just those three specific actions 11 themselves,” Jennings, 583 U.S. at 294 (citing Reno, 525 U.S. at 482–83), and is 12 “clearly designed to give some measure of protection to . . . discretionary 13 determinations, providing that if they are reviewable at all, they at least will not be 14 made the bases for separate rounds of judicial intervention outside the streamlined 15 process that Congress has designed,” Reno, 525 U.S. at 485. Thus, “Section 1252(g) 16 was directed against a particular evil: attempts to impose judicial constraints upon 17 prosecutorial discretion.” Id. at 485 n.9. As the Ninth Circuit has held, “the district 18 court may consider a purely legal question that does not challenge the Attorney 19 General’s discretionary authority, even if the answer to that legal question—a 20 description of the relevant law—forms the backdrop against which the Attorney 21 General later will exercise discretionary authority.” U.S. v. Hovsepian, 359 F.3d 1144, 22 1155 (9th Cir. 2004). 23 Here, Petitioners raise a question of law as to whether their mandatory detention 24 during the pendency of their removal proceedings falls under § 1226(a) or 25 § 1225(b)(2). Petitioners do not challenge the Attorney General’s discretionary 26 authority to commence, adjudicate, or execute removal proceedings. Therefore, 27 § 1252(g) does not bar this Court’s review of Petitioners’ TRO. 28 1 B. Merits of the TRO: Winter Factors 2 Having determined that the Court has jurisdiction over Petitioners’ TRO, the 3 Court now turns to the merits of the TRO by discussing the Winter factors. 4 1. Likelihood of Success on the Merits 5 Petitioners contend that § 1226(a), not § 1225(b)(2), governs their detention. 6 (TRO 6.) Respondents argue that § 1225(b)(2) governs because it applies to 7 “applicants for admission,” and Petitioners fall under this category because they are 8 present in the United States without having been admitted. (Opp’n 9.) 9 a) Statutory Text 10 First, the statutory text does not support Respondents’ contention that § 1225 11 governs where, as here, an alien is present in the United States without admission. 12 (Id. at 9.) The Court accepts Respondents’ argument that “detention” under § 1225 13 applies to “applicants for admission,” which fall into two categories as articulated in 14 Jennings. (Opp’n 9–10); see Jennings, 583 U.S. at 287 (noting that “applicants for 15 admission fall into one of two categories, those covered by § 1225(b)(1) and those 16 covered by § 1225(b)(2)”). Subsection (b)(1) “applies to aliens initially determined to 17 be inadmissible due to fraud, misrepresentation, or lack of valid documentation,” and 18 subsection (b)(2) serves as a broad “catchall provision.” Id. Petitioners here are not 19 “applicants for admission” and thus do not fit in either category. 20 The text of § 1226 provides further guidance. Section 1226(a) provides: 21 On a warrant issued by the Attorney General, an alien may be arrested 22 and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending 23 such decision, the Attorney General 24 (1) may continue to detain the arrested alien; and 25 (2) may release the alien on 26 (A) bond of at least $1,500 with security approved by, and 27 containing conditions prescribed by, the Attorney General; or 28 (B) conditional parole . . . . 1 The disparate nature and reach of § 1225 and § 1226 is further evidenced by the 2 lack of the phrase “applicant for admission” in § 1226. Unlike § 1225, “§ 1226 3 applies to aliens already present in the United States.” Jennings, 583 U.S. at 303. As 4 articulated by the Ninth Circuit, § 1226(a) stands out from the other immigration 5 detention provisions. Rodriguez Diaz v. Garland, 53 F.4th 1189, 1202 (9th Cir. 2022) 6 (“Section 1226(a) and its implementing regulations provide extensive procedural 7 protections that are unavailable under other detention provisions.”). Section 1226(a) 8 includes “several layers of review of the agency’s initial custody determination, an 9 initial bond hearing before a neutral decisionmaker, the opportunity to be represented 10 by counsel and to present evidence, the right to appeal, and the right to seek a new 11 hearing when circumstances materially change.” Id. Further, excepting criminal 12 aliens under subsection (c), § 1226(a)(2) permits detained aliens to be released on 13 bond or conditional parole. Under subsection (c)(1)(E), aliens present in the United 14 States without admission or parole and charged with criminal offenses are subject to 15 mandatory detention. If Respondents are correct in their interpretation, that Congress 16 intended for § 1225 to govern all aliens present in the United States without 17 admission, it would render the exception carved out in § 1226(c)(1)(E) superfluous. 18 Second, Petitioners contend that the plain text of § 1225(b) shows that Congress 19 did not intend to sweep into this section individuals like Petitioners, “who have 20 already entered and are now residing in the United States.” (TRO 12.) Looking to the 21 statutory language, § 1225(b) applies to “Inspection of applicants for admission” and 22 subsection (1) concerns “Inspection of aliens arriving in the United States and certain 23 other aliens who have not been admitted or paroled.” Section 1225(b)(2)(A) applies 24 to “Inspection of other aliens” and provides that “if the examining immigration officer 25 determines that an alien seeking admission is not clearly and beyond a doubt entitled 26 to be admitted, the alien shall be detained . . . .” Section 1225(b)(2)(B)–(C) also refers 27 to various methods of entry, such as an alien arriving on land or arriving as “a 28 crewman” or “a stowaway.” Based on this language, Petitioners contend that 1 § 1225(b)(2)(A) applies only to those “applicants for admission” who take an 2 affirmative act of “seeking admission” by applying for admission or being subject to 3 examination by an immigration officer. (TRO 12–15.) 4 Respondents argue that “applicants for admission” who are present in the 5 United States without being admitted should automatically be categorized as 6 applicants seeking admission. (Opp’n 10–11.) But Respondents fail to present 7 persuasive legal authority on this point. 8 Respondents rely on the BIA’s decision in Matter of Lemus-Losa, 25 I. & N. 9 Dec. 734 (BIA 2012). (Opp’n 11.) In Matter of Lemus-Losa, the BIA determined that 10 “many people who are not actually requesting permission to enter the United States in 11 the ordinary sense are nevertheless deemed to be ‘seeking admission’ under the 12 immigration laws.” 25 I. & N. Dec. at 743. The BIA’s analysis there concerned 13 8 U.S.C. § 1882(9)(B)(i)(II), which deems inadmissible an alien outside of the United 14 States who “again seeks admission” following prior unlawful presence. Id. at 744. 15 The BIA clarified that in some cases, such alien “will have reentered the United States 16 unlawfully, thereby making himself an ‘applicant for admission’ by operation of law, 17 while seeking ‘admission’ through adjustment of status.” Id. Thus, being an 18 “applicant for admission,” alone, does not automatically mean an alien is “seeking 19 admission.” Rather, it appears, based on the BIA’s example, that the further step of 20 applying for adjudication of status is the act of “seeking admission” that triggers 21 § 1225(b)(2)(A). 22 Respondents also rely on Florida v. United Sates, 660 F. Supp 3d 1239 23 (N.D. Fla. 2023), to argue that § 1225(b) “mandates detention of applicants for 24 admission throughout removal proceedings.” (Opp’n 11.) But Florida considered the 25 issue of whether the DHS may first apprehend an alien crossing the border under 26 § 1225(b) and later release them under § 1226(a). 600 F. Supp 3d at 1277. That is not 27 the issue here. The Florida court noted that § 1226(a) applied to “certain aliens 28 already in the country,” while § 1225(b) “include[s] illegal border crossers.” Id. 1 at 1275. The Florida court also noted that “an alien who was apprehended within the 2 interior of the United States necessarily must have been paroled under § 1226(a) . . . 3 because he was not apprehended at the border as a § 1225 arriving alien.” Id. (citing 4 Ortega-Cervantes v. Gonzalez, 501 F.3d 1111, 1116 (9th Cir. 2007)). As Respondents 5 fail to articulate any valid justification for the application of § 1225 to Petitioners, the 6 Court holds that Petitioners demonstrate that they are likely to succeed in establishing 7 that § 1226 governs their claims, rather than § 1225. 8 2. Likelihood of Irreparable Harm 9 Petitioners contend that they will suffer irreparable harm in the absence of a 10 TRO as they will continue to be detained without a bond hearing. (TRO 18.) 11 Respondents do not argue that Petitioners fail to show a likelihood of irreparable harm 12 if they continue to be detained without a bond hearing. (See generally Opp’n.) Here, 13 the harm resulting from Petitioners’ continued detention without due process is the 14 deprivation of their right to a bond hearing. See Melendez v. Arpaio, 695 F.3d 990, 15 1002 (9th Cir. 2012) (“It is well established that the deprivation of constitutional 16 rights ‘unquestionably constitutes irreparable injury.’”). As Petitioners note, the “four 17 Petitioners have now been detained without a bond hearing for between fifty and one 18 hundred ten days.” (TRO 18.) Continued detention without bond hearings will only 19 perpetuate the harm. The Court finds that the potential for Petitioners’ continued 20 detention without an initial bond hearing would cause irreparable injury, as this 21 violates their statutory rights afforded under § 1226(a). Thus, Petitioners demonstrate 22 that continued detention without a bond hearing is likely to result in irreparable harm. 23 3. Balance of Equities and Public Interest 24 The last two Winter factors “merge when the Government is the opposing 25 party.” Nken v. Holder, 556 U.S. 418, 435 (2009). The balance of hardships tips 26 strongly in Petitioners’ favor as they would suffer great hardship if this Court were to 27 deny the TRO. See Cottrell, 632 F.3d at 1134–35 (requiring the balance of hardships 28 to “tip sharply” in the moving party’s favor). 1 Petitioners contend that a TRO is in the public interest because they challenge 2 the New Policy for violating federal laws and Respondents cannot be harmed by being 3 required to end an unlawful practice. (TRO 19–20.) Respondents argue that they 4 have a compelling interest in allowing the BIA to speak on the issue, as the BIA 5 “exists to resolve disputes like this” and “provide clear and uniform guidance.” 6 (Opp’n 13–14.) Respondents further argue that “the government has a compelling 7 interest in the steady enforcement of its immigration laws” and “[j]udicial intervention 8 would only disrupt the status quo” and “inject[] a degree of uncertainty” in the 9 immigration process. (Id.) Because the parties’ dispute the legality of the application 10 of the New Policy, the Court is unpersuaded that granting the TRO here would disrupt 11 the status quo, especially when the New Policy hinders Petitioners’ due process rights. 12 Further, as discussed above, the dispute here involves a “question of law” challenging 13 the New Policy’s statutory interpretation, which the BIA has adopted. Accordingly, to 14 the extent that the BIA’s adopted statutory interpretation deprives Petitioners of their 15 constitutional rights and violates federal law, “it is clear that neither equity nor the 16 public’s interest are furthered by allowing violations of federal law to continue.” 17 Galvez v. Jaddou, 52 F.4th 821, 832 (9th Cir. 2022). Accordingly, the last two Winter 18 factors weigh in favor of an injunction. 19 Having found that all Winter factors weigh in favor of granting the TRO, the 20 Court hereby GRANTS Petitioners’ TRO. (Dkt. No. 4.) In light of this finding, the 21 Court declines to reach Respondents’ argument that the TRO would constrain the 22 government’s discretion to decide where to place immigration detainees like 23 Petitioners. (Opp’n 14–16.) 24 25 26 27 28 1 Vv. CONCLUSION 2 For the reasons discussed above, the Court finds that all four Winter factors 3 || weigh in favor of a TRO. Accordingly, the Court GRANTS the TRO. (Dkt. No. 4.) 4|| It is hereby ORDERED that: 5 e Respondents shall release Petitioners or, in the alternative, provide each 6 Petitioner with an individualized bond hearing before an immigration 7 judge pursuant to 8 U.S.C. § 1226(a) within seven (7) days of this Order; 8 e Respondents are enjoined from relocating Petitioners outside of the 9 Central District of California pending final resolution of this case; and 10 e Respondents shall SHOW CAUSE, in writing only, to be received by the 11 Court no later than October 27, 2025, as to why the Court should not 12 issue a preliminary injunction in this case. Petitioners may file a reply by 13 October 29, 2025. The Court SETS a hearing on the preliminary 14 injunction on November 3, 2025, at 10:00 a.m., via Zoom. 15 16 IT IS SO ORDERED. 17 October 22, 2025 : pode

19 OTIS D. VBAGHT, II 50 UNITED STATES DISTRICT JUDGE

21 22 23 24 25 26 27 28