1 MW 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
No. CV-19-05515-PHX-SPL (DMF) 9 Kuldeep Kumar,
10 Petitioner, ORDER v. 11 12 William Barr, et al., 13 Respondents. 14 15 Petitioner Kuldeep Kumar has filed, through counsel, a Petition for Writ of Habeas 16 Corpus under 28 U.S.C. § 2241 (Doc. 1) and a Motion for Preliminary Injunction and/or 17 Temporary Restraining Order (Doc. 2). The Court will deny the Motion for Temporary 18 Restraining Order and call Respondents to answer the Petition and respond to the Motion 19 for Preliminary Injunction. 20 I. Background 21 Petitioner is a native and citizen of India. On February 9, 2019, he entered the 22 United States without inspection near Otay Mesa, California, and was encountered and 23 taken into custody by the United States Department of Homeland Security (DHS) on 24 February 12, 2019. (Docs. 1-2, 1-3.) Petitioner was determined to be inadmissible to the 25 United States and placed in expedited removal proceedings pursuant to Immigration and 26 Naturalization Act (INA) § 235(b)(1), 8 U.S.C. § 1225(b)(1). (Doc. 1-2.) Petitioner 27 expressed a fear of persecution or torture if returned to India and was referred for a credible 28 fear determination and detained in the CoreCivic La Palma Detention Center in Eloy, 1 Arizona. (Doc. 1-4.) 2 On March 14, 2019, Petitioner received a telephonic credible fear interview. (Docs. 3 1-4, 1-5.) An asylum officer determined Petitioner had not established a credible fear of 4 persecution or torture if removed to India, finding that, after “[c]onsidering the totality of 5 the circumstances and all relevant factors, [Petitioner had] not established that [his] 6 testimony is credible.” (Doc. 1-6.) The determination was approved by a supervisory 7 asylum officer, and on March 27, 2019, Petitioner was ordered removed from the United 8 States. (Docs. 1-4, 1-6.) Petitioner requested review of the credible fear determination by 9 an Immigration Judge (IJ), and a hearing was scheduled for April 4, 2019. (Docs. 1-6, 1- 10 7, 1-9.) Petitioner retained counsel, who filed a notice of appearance with the immigration 11 court on April 3, 2019. (Doc. 1-10.) During his hearing the following day, Petitioner 12 advised that he had retained counsel, but the IJ “erroneously indicated there was no E-28 13 submitted and held the hearing prior to 11 a.m. without the benefit of counsel.” (Doc. 1 ¶ 14 23.) At the conclusion of the hearing, the IJ affirmed the asylum officer’s credible fear 15 determination. (Doc. 1-8.) 16 II. Petition 17 In his Petition, Petitioner names United States Attorney General William Barr, 18 former Acting DHS Secretary Kevin McAleenan, Executive Office for Immigration 19 Review (EOIR) Director James McHenry, United States Immigration and Customs 20 Enforcement (ICE) Phoenix Field Office Director Enrique Lucero, and United States 21 Immigration Judge John Davis as Respondents.1 Petitioner asserts that the Court has 22 habeas corpus jurisdiction to review his claims pursuant to the Ninth Circuit’s decision in
23 1 Under the rationale articulated in Armentero, infra, and in the absence of authority addressing whether the proper respondent in immigration habeas corpus proceedings under 24 § 2241 is the Attorney General, the Acting DHS Secretary, or the ICE Field Office Director, the Court will not dismiss these Respondents or the Petition for failure to name a proper 25 respondent at this stage of the proceedings. See Armentero v. INS, 340 F.3d 1058, 1071- 73 (9th Cir. 2003) (finding the DHS Secretary and the Attorney General were proper 26 respondents), withdrawn, 382 F.3d 1153 (9th Cir. 2004) (order); see also Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004) (declining to resolve whether the Attorney General 27 is a proper respondent in an immigration habeas corpus petition). However, the Court will dismiss Respondents McHenry and Davis because the rationale articulated in Armentero 28 would not extend to these Respondents. 1 Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), cert. 2 granted, No. 19-161 (Oct. 18, 2019).2 3 Petitioner brings two grounds for relief. In Grounds One and Two, Petitioner claims 4 that his credible fear proceedings denied him a fair and meaningful opportunity to apply 5 for relief in violation of the governing statute and implementing regulation, 8 U.S.C. 6 § 1225(b)(1) and 8 C.F.R. § 208.30(d), and the Due Process Clause of the Fifth 7 Amendment. Petitioner alleges DHS failed to employ the required non-adversarial 8 procedures when conducting his credible fear interview and failed to apply the correct legal 9 standard when evaluating his credible fear claim. Petitioner further alleges that the IJ 10 denied him his right to be represented by counsel and applied the wrong legal standard to 11 his claims. 12 In his demand for relief, Petitioner asks the Court to: (1) determine that his expedited 13 removal order violated his statutory, regulatory, and constitutional rights and, as a result, 14 he is being detained in violation of the law; (2) vacate the expedited removal order; and (3) 15 order that he “be provided a new, meaningful opportunity to apply for asylum and other 16 relief from removal.” (Doc. 1 at 19.) 17 The Court will require Respondents Barr, McAleenan, and Lucero to answer the 18 Petition. 19 III. Motion for Preliminary Injunction and/or Temporary Restraining Order 20 A party seeking injunctive relief under Rule 65 of the Federal Rules of Civil 21 Procedure must show that: (1) he is likely to succeed on the merits; (2) he is likely to suffer 22 irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his 23 favor; and (4) an injunction is in the public interest.3 Winter v. Natural Resources Defense
24 2 In Thuraissigiam, the Ninth Circuit found that 8 U.S.C. § 1252(e)(2)’s statutory limitation on habeas corpus review “violate[d] the Suspension Clause as applied to 25 Thuraissigiam,” and held “[t]he district court ha[d] jurisdiction and, on remand, should exercise that jurisdiction to consider Thuraissigiam’s legal challenges to the procedures 26 leading to his expedited removal order.” 917 F.3d at 1119.
27 3 Where a party “can only show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary 28 injunction may still issue if the ‘balance of hardships tips sharply in the [party]’s favor,’ 1 Council, Inc., 555 U.S. 7, 20 (2008); Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 2 1124 (9th Cir. 2014); Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir. 2012); 3 Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th 4 Cir. 2001).
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1 MW 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
No. CV-19-05515-PHX-SPL (DMF) 9 Kuldeep Kumar,
10 Petitioner, ORDER v. 11 12 William Barr, et al., 13 Respondents. 14 15 Petitioner Kuldeep Kumar has filed, through counsel, a Petition for Writ of Habeas 16 Corpus under 28 U.S.C. § 2241 (Doc. 1) and a Motion for Preliminary Injunction and/or 17 Temporary Restraining Order (Doc. 2). The Court will deny the Motion for Temporary 18 Restraining Order and call Respondents to answer the Petition and respond to the Motion 19 for Preliminary Injunction. 20 I. Background 21 Petitioner is a native and citizen of India. On February 9, 2019, he entered the 22 United States without inspection near Otay Mesa, California, and was encountered and 23 taken into custody by the United States Department of Homeland Security (DHS) on 24 February 12, 2019. (Docs. 1-2, 1-3.) Petitioner was determined to be inadmissible to the 25 United States and placed in expedited removal proceedings pursuant to Immigration and 26 Naturalization Act (INA) § 235(b)(1), 8 U.S.C. § 1225(b)(1). (Doc. 1-2.) Petitioner 27 expressed a fear of persecution or torture if returned to India and was referred for a credible 28 fear determination and detained in the CoreCivic La Palma Detention Center in Eloy, 1 Arizona. (Doc. 1-4.) 2 On March 14, 2019, Petitioner received a telephonic credible fear interview. (Docs. 3 1-4, 1-5.) An asylum officer determined Petitioner had not established a credible fear of 4 persecution or torture if removed to India, finding that, after “[c]onsidering the totality of 5 the circumstances and all relevant factors, [Petitioner had] not established that [his] 6 testimony is credible.” (Doc. 1-6.) The determination was approved by a supervisory 7 asylum officer, and on March 27, 2019, Petitioner was ordered removed from the United 8 States. (Docs. 1-4, 1-6.) Petitioner requested review of the credible fear determination by 9 an Immigration Judge (IJ), and a hearing was scheduled for April 4, 2019. (Docs. 1-6, 1- 10 7, 1-9.) Petitioner retained counsel, who filed a notice of appearance with the immigration 11 court on April 3, 2019. (Doc. 1-10.) During his hearing the following day, Petitioner 12 advised that he had retained counsel, but the IJ “erroneously indicated there was no E-28 13 submitted and held the hearing prior to 11 a.m. without the benefit of counsel.” (Doc. 1 ¶ 14 23.) At the conclusion of the hearing, the IJ affirmed the asylum officer’s credible fear 15 determination. (Doc. 1-8.) 16 II. Petition 17 In his Petition, Petitioner names United States Attorney General William Barr, 18 former Acting DHS Secretary Kevin McAleenan, Executive Office for Immigration 19 Review (EOIR) Director James McHenry, United States Immigration and Customs 20 Enforcement (ICE) Phoenix Field Office Director Enrique Lucero, and United States 21 Immigration Judge John Davis as Respondents.1 Petitioner asserts that the Court has 22 habeas corpus jurisdiction to review his claims pursuant to the Ninth Circuit’s decision in
23 1 Under the rationale articulated in Armentero, infra, and in the absence of authority addressing whether the proper respondent in immigration habeas corpus proceedings under 24 § 2241 is the Attorney General, the Acting DHS Secretary, or the ICE Field Office Director, the Court will not dismiss these Respondents or the Petition for failure to name a proper 25 respondent at this stage of the proceedings. See Armentero v. INS, 340 F.3d 1058, 1071- 73 (9th Cir. 2003) (finding the DHS Secretary and the Attorney General were proper 26 respondents), withdrawn, 382 F.3d 1153 (9th Cir. 2004) (order); see also Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004) (declining to resolve whether the Attorney General 27 is a proper respondent in an immigration habeas corpus petition). However, the Court will dismiss Respondents McHenry and Davis because the rationale articulated in Armentero 28 would not extend to these Respondents. 1 Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), cert. 2 granted, No. 19-161 (Oct. 18, 2019).2 3 Petitioner brings two grounds for relief. In Grounds One and Two, Petitioner claims 4 that his credible fear proceedings denied him a fair and meaningful opportunity to apply 5 for relief in violation of the governing statute and implementing regulation, 8 U.S.C. 6 § 1225(b)(1) and 8 C.F.R. § 208.30(d), and the Due Process Clause of the Fifth 7 Amendment. Petitioner alleges DHS failed to employ the required non-adversarial 8 procedures when conducting his credible fear interview and failed to apply the correct legal 9 standard when evaluating his credible fear claim. Petitioner further alleges that the IJ 10 denied him his right to be represented by counsel and applied the wrong legal standard to 11 his claims. 12 In his demand for relief, Petitioner asks the Court to: (1) determine that his expedited 13 removal order violated his statutory, regulatory, and constitutional rights and, as a result, 14 he is being detained in violation of the law; (2) vacate the expedited removal order; and (3) 15 order that he “be provided a new, meaningful opportunity to apply for asylum and other 16 relief from removal.” (Doc. 1 at 19.) 17 The Court will require Respondents Barr, McAleenan, and Lucero to answer the 18 Petition. 19 III. Motion for Preliminary Injunction and/or Temporary Restraining Order 20 A party seeking injunctive relief under Rule 65 of the Federal Rules of Civil 21 Procedure must show that: (1) he is likely to succeed on the merits; (2) he is likely to suffer 22 irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his 23 favor; and (4) an injunction is in the public interest.3 Winter v. Natural Resources Defense
24 2 In Thuraissigiam, the Ninth Circuit found that 8 U.S.C. § 1252(e)(2)’s statutory limitation on habeas corpus review “violate[d] the Suspension Clause as applied to 25 Thuraissigiam,” and held “[t]he district court ha[d] jurisdiction and, on remand, should exercise that jurisdiction to consider Thuraissigiam’s legal challenges to the procedures 26 leading to his expedited removal order.” 917 F.3d at 1119.
27 3 Where a party “can only show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary 28 injunction may still issue if the ‘balance of hardships tips sharply in the [party]’s favor,’ 1 Council, Inc., 555 U.S. 7, 20 (2008); Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 2 1124 (9th Cir. 2014); Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir. 2012); 3 Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th 4 Cir. 2001). Where the movant seeks a mandatory injunction, rather than a prohibitory 5 injunction, injunctive relief is “subject to a heightened scrutiny and should not be issued 6 unless the facts and law clearly favor the moving party.” Dahl v. HEM Pharms. Corp., 7 7 F.3d 1399, 1403 (9th Cir. 1993). 8 Unlike a preliminary injunction, see Fed. R. Civ. P. 65(a), a temporary restraining 9 order (TRO) may be entered “without written or oral notice to the adverse party.” Fed. R. 10 Civ. P. 65(b). A TRO may issue, ex parte, if: “(A) specific facts in an affidavit or a verified 11 complaint clearly show that immediate and irreparable injury, loss, or damage will result 12 to the movant before the adverse party can be heard in opposition; and (B) the movant’s 13 attorney certifies in writing any efforts made to give notice and the reasons why it should 14 not be required.” Fed. R. Civ. P. 65(b) (emphasis added). 15 Petitioner moves the Court to enjoin his continued detention, to order Respondents 16 to provide him with an individualized asylum hearing, and to stay his removal from the 17 United States while this action is pending. To the extent Petitioner seeks release from 18 custody and a new hearing on his asylum claims, he has not shown that he will suffer 19 irreparable injury before Respondents can be heard in opposition. Nor has Petitioner 20 demonstrated that he is at risk of imminent removal. Petitioner alleges that he is subject to 21 an order of expedited removal that became final more than six months ago. Yet, he does 22 not allege any facts which explain why the order remains unexecuted or indicate that he 23 will be removed in the immediate future. Petitioner therefore fails to meet his burden to 24 demonstrate that he is entitled to immediate injunctive relief, and his Motion for Temporary 25 Restraining Order will be denied. See Granny Goose Foods, Inc. v. Brotherhood of 26
27 and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 28 F.3d 1127, 1135 (9th Cir. 2011)). Under this Ninth Circuit “serious questions” test, “[t]he elements . . . must be balanced, so that a stronger showing of one element may offset a 1 Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974) (consistent with 2 the “stringent” restrictions of Fed. R. Civ. P. 65(b), a temporary restraining order may be 3 entered only to execute the “underlying purpose of preserving the status quo and preventing 4 irreparable harm just so long as is necessary to hold a hearing, and no longer”). In its 5 discretion, however, the Court will call for a response to the Motion for Preliminary 6 Injunction and require that if Respondents intend to remove Petitioner from the United 7 States prior to the conclusion of this matter, they must file and serve a “Notice of Intent to 8 Remove” within such time as is reasonable and sufficient to allow Petitioner to file a 9 motion for a stay of removal. Accordingly, 10 IT IS ORDERED: 11 (1) Petitioner’s Motion for Preliminary Injunction and/or Temporary 12 Restraining Order (Doc. 2) is denied without prejudice in part as to Petitioner’s Motion 13 for Temporary Restraining Order. 14 (2) Respondents McHenry and Davis are dismissed without prejudice. 15 (3) The Clerk of Court shall serve: (1) a copy of the Summons, (2) the 16 Petition (Doc. 1), (3) the Motion for Preliminary Injunction and/or Temporary Restraining 17 Order (Doc. 2), and (4) this Order upon the United States Attorney for the District of 18 Arizona by certified mail addressed to the civil process clerk at the office of the United 19 States Attorney pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. The 20 Clerk of Court shall also send by certified mail a copy of the Summons, the Petition, the 21 Motion for Preliminary Injunction and/or Temporary Restraining Order, and this Order to 22 the United States Attorney General pursuant to Rule 4(i)(1)(B) and to Respondents Barr, 23 McAleenan, and Lucero pursuant to Rule 4(i)(2) of the Federal Rules of Civil Procedure. 24 (4) Respondents Barr, McAleenan, and Lucero shall have 30 days from the date 25 of service to file a Response to Petitioner’s Motion for Preliminary Injunction (Doc. 2). 26 (5) Petitioner shall have 15 days from the filing of Respondents’ Response to 27 the Motion for Preliminary Injunction to file a Reply. 28 (6) Respondents shall have 30 days from the date of service to answer the Petition (Doc. 1). Respondents shall not file a dispositive motion in place of an answer 2| absent leave of Court. 3 (7) Petitioner shall have 15 days from the filing of Respondents’ Answer to the 4| Petition to file a Reply. 5 (8) If Respondents intend to remove Petitioner from the United States prior to 6| the Court’s disposition of this matter, Respondents must file a “Notice of Intent to Remove” 7 | with the Clerk of Court and serve a copy on Petitioner at least 10 days prior to the planned 8 | removal, so as to allow Petitioner time to file a motion for a stay of removal. 9 (9) Petitioner must file a “Notice of Change in Status” with the Clerk of Court within 5 days of any material change in Petitioner’s immigration or custody status. 11 | Petitioner may not include a motion for other relief with the Notice. 12 Dated this 30th day of October, 2019. 13 14 I RH 16 17 18 19 20 21 22 23 24 25 26 27 28