JENIFER OROZCO ACOSTA 3:25-cv-09601
Plaintiff, ORDER GRANTING TEMPORARY v. RESTRAINING ORDER
SERGIO ALBARRAN et al. Defendants.
Jenifer Orozco Acosta (“petitioner”) move the Court ex parte for a temporary restraining order that would, among other things, require her immediate release from ongoing detention by agents of Immigration and Customs Enforcement (“ICE”) and prohibit ICE from re-arresting her without notice and a pre-detention bond hearing.1 For the reasons set forth below, the Court grants the requested order. The Court orders defendants to release Ms. Orozco Acosta from her ongoing detention and prohibits defendants from re-arresting or otherwise re-detaining her without first providing her with a pre-detention bond hearing before an immigration judge at which the government establishes by clear and convincing evidence that her detention is necessary to prevent her flight or to protect the public. The evidence before the Court establishes that Ms. Orozco Acosta fled her home country
1 Petitioners ask the Court to order that they remain within the Northern District of California in order to preserve this Court’s jurisdiction over their petition. But it is well-established that “when the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner’s release.” Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004). Petitioners also request that the Court prohibit their deportation during and entered the United States in 2023. Immigration officials apprehended and released her on her own recognizance under 8 U.S.C. § 1226(a), concluding that she posed little if any flight risk or danger to the community. Ms. Orozco Acosta filed an application for asylum, withholding of removal, and protection under the Convention Against Torture, and has complied with her ICE and immigration court requirements. Ms. Orozco Acosta has not been convicted of a crime. On November 6, 2025, Ms. Orozco Acosta appeared at the immigration court in San Francisco for a master hearing. During the hearing, the government moved to dismiss her pending case. The immigration judge continued the hearing to allow Ms. Orozco Acosta to respond to the motion. As Ms. Orozco Acosta exited the courtroom, ICE agents arrested her. She is currently being held at the San Francisco Immigration Court at 630 Sansome Street, San Francisco, California. Ms. Orozco Acosta, with representation of counsel, filed a petition for a writ of habeas corpus and an ex parte motion for a temporary restraining order on November 6, 2025. Among other claims, she contends that her arrest and detention violates the Due Process Clause of the Fifth Amendment, both substantively (because defendants allegedly have no valid interest in detaining her) and procedurally (because defendants have not or would not provide a pre-detention bond hearing). The defendants are Sergio Albarran, Field Office Director of the San Francisco Immigration and Customs Enforcement Office; Todd Lyons, Acting Director of United States Immigration and Customs Enforcement; Kristi Noem, Secretary of the United States Department of Homeland Security; and Pamela Bondi, Attorney General of the United States. The standard for issuing a temporary restraining order is largely identical to the standard for issuing a preliminary injunction. See Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017). Petitioners seeking such relief must establish that (1) they are “likely to succeed on the merits”; (2) they are “likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips in [their] favor”; and (4) “an injunction is in the public interest.” there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor and the other two Winter factors are satisfied.’” All. for the Wild Rockies v. Peña, 865 F.3d 1211, 1217 (9th Cir. 2017) (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)). “Where, as here, the party opposing injunctive relief is a government entity, the third and fourth factors—the balance of equities and the public interest— merge.” Hubbard v. City of San Diego, 139 F.4th 843, 854 (9th Cir. 2025) (citation modified). Although the substantive standards for both motions are similar, the timeframe for a temporary restraining order is different. While a preliminary injunction remains in effect pending final resolution of the litigation, “a TRO ‘should be restricted to … preserving the status quo and preventing irreparable harm just so long as is necessary to hold a [preliminary injunction] hearing and no longer.’” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (quoting Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974)). Federal Rule of Civil Procedure 65(b)(1) allows a temporary restraining order to be issued without notice to the opposing party—i.e., ex parte—only if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition” and “the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” As an initial matter, Ms. Orozco Acosta has satisfied the requirements for issuance of an ex parte order. The affidavit of petitioner’s counsel demonstrates that Ms. Orozco Acosta will suffer immediate and irreparable injury, loss, or damage by virtue of her continued detention before respondents can be heard in opposition, and that counsel attempted to contact Civil Division chief Pamela Johann of the United States Attorney’s Office for the Northern District of California on November 6, 2025, at 2:11 p.m.. With respect to the showing required to justify Ms. Orozco Acosta’s requested relief, she violates her procedural due process rights under the Due Process Clause of the Fifth Amendment. The Court recently considered that issue under virtually indistinguishable circumstances in Pablo Sequen v. Albarran, No. 25-CV-06487-PCP, __ F. Supp. 3d __, 2025 WL 2935630 (N.D. Cal. Oct. 15, 2025). For the reasons explained in far greater detail therein, a noncitizen like Ms. Orozco Acosta who was conditionally released into the United States has a significant liberty interest in remaining out of immigration custody. Id. at *5. Because Ms. Orozco Acosta has resided in the United States for well more than a year—certainly long enough to “begin[] to develop … ties” and become “a part of our population”—the Fifth Amendment entitles her to due process protections for that liberty interest. Id. at *5 (first quoting Landon v. Plasencia, 459 U.S. 21, 32–33 (1982); and then quoting Yamataya v. Fisher, 189 U.S. 86, 100–01 (1903)). The statutory procedures potentially available to Ms. Orozco Acosta do not satisfy that constitutional mandate. Ev
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JENIFER OROZCO ACOSTA 3:25-cv-09601
Plaintiff, ORDER GRANTING TEMPORARY v. RESTRAINING ORDER
SERGIO ALBARRAN et al. Defendants.
Jenifer Orozco Acosta (“petitioner”) move the Court ex parte for a temporary restraining order that would, among other things, require her immediate release from ongoing detention by agents of Immigration and Customs Enforcement (“ICE”) and prohibit ICE from re-arresting her without notice and a pre-detention bond hearing.1 For the reasons set forth below, the Court grants the requested order. The Court orders defendants to release Ms. Orozco Acosta from her ongoing detention and prohibits defendants from re-arresting or otherwise re-detaining her without first providing her with a pre-detention bond hearing before an immigration judge at which the government establishes by clear and convincing evidence that her detention is necessary to prevent her flight or to protect the public. The evidence before the Court establishes that Ms. Orozco Acosta fled her home country
1 Petitioners ask the Court to order that they remain within the Northern District of California in order to preserve this Court’s jurisdiction over their petition. But it is well-established that “when the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner’s release.” Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004). Petitioners also request that the Court prohibit their deportation during and entered the United States in 2023. Immigration officials apprehended and released her on her own recognizance under 8 U.S.C. § 1226(a), concluding that she posed little if any flight risk or danger to the community. Ms. Orozco Acosta filed an application for asylum, withholding of removal, and protection under the Convention Against Torture, and has complied with her ICE and immigration court requirements. Ms. Orozco Acosta has not been convicted of a crime. On November 6, 2025, Ms. Orozco Acosta appeared at the immigration court in San Francisco for a master hearing. During the hearing, the government moved to dismiss her pending case. The immigration judge continued the hearing to allow Ms. Orozco Acosta to respond to the motion. As Ms. Orozco Acosta exited the courtroom, ICE agents arrested her. She is currently being held at the San Francisco Immigration Court at 630 Sansome Street, San Francisco, California. Ms. Orozco Acosta, with representation of counsel, filed a petition for a writ of habeas corpus and an ex parte motion for a temporary restraining order on November 6, 2025. Among other claims, she contends that her arrest and detention violates the Due Process Clause of the Fifth Amendment, both substantively (because defendants allegedly have no valid interest in detaining her) and procedurally (because defendants have not or would not provide a pre-detention bond hearing). The defendants are Sergio Albarran, Field Office Director of the San Francisco Immigration and Customs Enforcement Office; Todd Lyons, Acting Director of United States Immigration and Customs Enforcement; Kristi Noem, Secretary of the United States Department of Homeland Security; and Pamela Bondi, Attorney General of the United States. The standard for issuing a temporary restraining order is largely identical to the standard for issuing a preliminary injunction. See Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017). Petitioners seeking such relief must establish that (1) they are “likely to succeed on the merits”; (2) they are “likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips in [their] favor”; and (4) “an injunction is in the public interest.” there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor and the other two Winter factors are satisfied.’” All. for the Wild Rockies v. Peña, 865 F.3d 1211, 1217 (9th Cir. 2017) (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)). “Where, as here, the party opposing injunctive relief is a government entity, the third and fourth factors—the balance of equities and the public interest— merge.” Hubbard v. City of San Diego, 139 F.4th 843, 854 (9th Cir. 2025) (citation modified). Although the substantive standards for both motions are similar, the timeframe for a temporary restraining order is different. While a preliminary injunction remains in effect pending final resolution of the litigation, “a TRO ‘should be restricted to … preserving the status quo and preventing irreparable harm just so long as is necessary to hold a [preliminary injunction] hearing and no longer.’” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (quoting Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974)). Federal Rule of Civil Procedure 65(b)(1) allows a temporary restraining order to be issued without notice to the opposing party—i.e., ex parte—only if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition” and “the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” As an initial matter, Ms. Orozco Acosta has satisfied the requirements for issuance of an ex parte order. The affidavit of petitioner’s counsel demonstrates that Ms. Orozco Acosta will suffer immediate and irreparable injury, loss, or damage by virtue of her continued detention before respondents can be heard in opposition, and that counsel attempted to contact Civil Division chief Pamela Johann of the United States Attorney’s Office for the Northern District of California on November 6, 2025, at 2:11 p.m.. With respect to the showing required to justify Ms. Orozco Acosta’s requested relief, she violates her procedural due process rights under the Due Process Clause of the Fifth Amendment. The Court recently considered that issue under virtually indistinguishable circumstances in Pablo Sequen v. Albarran, No. 25-CV-06487-PCP, __ F. Supp. 3d __, 2025 WL 2935630 (N.D. Cal. Oct. 15, 2025). For the reasons explained in far greater detail therein, a noncitizen like Ms. Orozco Acosta who was conditionally released into the United States has a significant liberty interest in remaining out of immigration custody. Id. at *5. Because Ms. Orozco Acosta has resided in the United States for well more than a year—certainly long enough to “begin[] to develop … ties” and become “a part of our population”—the Fifth Amendment entitles her to due process protections for that liberty interest. Id. at *5 (first quoting Landon v. Plasencia, 459 U.S. 21, 32–33 (1982); and then quoting Yamataya v. Fisher, 189 U.S. 86, 100–01 (1903)). The statutory procedures potentially available to Ms. Orozco Acosta do not satisfy that constitutional mandate. Even assuming that she will receive a post-arrest bond hearing before an immigration judge, there remains a substantial risk that the government is erroneously depriving Ms. Orozco Acosta of her liberty in the meantime, as the available record suggests that she is neither a flight risk nor a danger to the public See id. at *8; Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Given the apparent lack of a valid basis on which to detain Ms. Orozco Acosta and the limited cost of providing a custody hearing in immigration court, the government has at most a minimal countervailing interest in her continued detention. See Pablo Sequen, __ F. Supp. 3d __, 2025 WL 2935630 at *12; Garro Pinchi v. Noem, No. 5:25-cv-05632, __ F.Supp.3d __, 2025 WL 2084921, at *6 (N.D. Cal. July 24, 2025). Taken together, the strength of Ms. Orozco Acosta’s liberty interest, the high likelihood of erroneous deprivation, and the government’s minimal countervailing interest demonstrate that she is likely to succeed on the merits of her procedural due-process claim. See Pablo Sequen, __ F. Supp. 3d. __, 2025 WL 2650637 at *12; Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Ms. Orozco Acosta has also demonstrated a likelihood of irreparable injury in the absence of temporary relief due to her ongoing and likely unconstitutional deprivation of liberty. “The loss or threatened infringement upon [constitutional] rights for even minimal periods of time Cir. 2019) (citation modified). “When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Baird v. Bonta, 81 F.4th 1036, 1042 (9th Cir. 2023) (citation modified). “[I]t follows inexorably from [the Court's] conclusion” that Ms. Orozco Acosta “will likely be deprived of [her] physical liberty unconstitutionally in the absence of the injunction ... that [she] ha[s] also carried [her] burden as to irreparable harm.” Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017). The final two Winter factors, the balance of the equities and public interest, merge because the government is the opposing party. These factors also weigh heavily in favor of granting a temporary restraining order. “Because public interest concerns are implicated when a constitutional right has been violated, all citizens have a stake in upholding the Constitution, meaning it is always in the public interest to prevent the violation of a party's constitutional rights.” Baird, 81 F.4th at 1042 (citation modified). Further, “the Ninth Circuit has recognized that ‘the costs to the public of immigration detention are staggering.’” Jorge M. F. v. Wilkinson, No. 21-CV-01434, 2021 WL 783561, at *3 (N.D. Cal. Mar. 1, 2021) (citation modified) (quoting Hernandez, 872 F.3d at 996). And where Ms. Orozco Acosta is suffering irreparable harm while in detention, the potential harm to the government—at worst, a short delay in detaining her until it makes the requisite showing of necessity before a neutral decisionmaker—is minimal. See id. at *3; Diaz v. Kaiser, No. 3:25-CV-05071, 2025 WL 1676854, at *3 (N.D. Cal. June 14, 2025). In any case, enjoining the government from constitutional violations does not impose harm “in any legally cognizable sense.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983). Finally, Ms. Orozco Acosta’s immediate release is required to return her to the status quo. The “status quo” refers to the state of the parties’ relationship “before the action challenged in the complaint occurred.” Youth 71Five Ministries v. Williams, No. 24-101, __ F.4th __, 2025 WL 2385151, at *5 (Aug. 18, 2025). Here, that is the moment prior to Ms. Orozco Acosta’s likely illegal detention. See Pablo Sequen, __ F. Supp. 3d __, 2025 WL 2650637, at *4 n.2; Kuzmenko v. Phillips, No. 25-CV-00663, 2025 WL 779743, at *2 (E.D. Cal. Mar. 10, 2025) (granting a temporary restraining order requiring immediate release of the petitioner back to home Because Ms. Orozco Acosta satisfies all of the requirements for temporary injunctive relief and such relief is necessary to restore the status quo, her motion for a temporary restraining order is granted. See Pablo Sequen v. Kaiser, No. 25-CV-06487-PCP, 2025 WL 2203419, at *3 (N.D. Cal. Aug. 1, 2025) (collecting similar cases). And because “there is no realistic likelihood of harm to the [respondents] from enjoining [their] conduct.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003), no security is needed to ensure that respondents will be reimbursed for “costs and damages sustained by … hav[ing] been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The Court exercises its discretion under Rule 65(c) to dispense with the filing of bond. Jorgensen, 320 F.3d at 919. For the foregoing reasons, it is hereby ORDERED that petitioners’ motion for a temporary restraining order as to Ms. Orozco Acosta is GRANTED to preserve the status quo pending further briefing and a hearing on this matter. Defendants are ORDERED to immediately release Ms. Orozco Acosta from custody and are ENJOINED AND RESTRAINED from re-detaining her without providing her with a pre-deprivation hearing before a neutral decisionmaker at which the government establishes by clear and convincing evidence that her detention is necessary to prevent her flight or to protect the public. Should defendants choose to conduct such a hearing, defendants are ORDERED to provide Ms. Orozco Acosta with reasonable advance notice of the time and place of the hearing. This Order shall remain in effect until November 20, 2025. The Petition for Writ of Habeas Corpus, Dkt. No. 1, Motion for Temporary Restraining Order, Dkt. No. 2, and this Order SHALL be served on defendants such that they receive actual notice as soon as possible. Petitioners shall file proof of service or a status report by no later than November 7, 2025, at 5:00 p.m. Defendants shall provide a status report confirming the release of Ms. Orozco Acosta by no later than November 7, 2025, at 5:00 p.m. Defendants are ORDERED TO SHOW CAUSE why a preliminary injunction should not issue in favor of Ms. Orozco Acosta. The hearing will be held in the courtroom of the assigned ] file a response to petitioners’ motion by no later than November 10, 2025. Any reply shall be filed 2 by November 14, 2025. 3
6 Dated: November 6, 2025 P. Casey#itts 7 United States District Judge 8 9 10 11 a 12
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