Milda Rodriguez Vasquez v. Chad Wolf

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 4, 2020
• Docket: 20-55142
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MILDA RODRIGUEZ VASQUEZ, on her No. 20-55142 own behalf, and on behalf of her minor son, M.S.M.R., as his next friend, AKA Milda Rodriguez Velasquez and M.S.M.R., minor D.C. No. son 2:20-cv-01274-JAK-GJS

Petitioners-Appellants, MEMORANDUM* v.

CHAD F. WOLF, Secretary and WILLIAM P. BARR, Attorney General,

Respondents-Appellee.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Argued and Submitted November 20, 2020 Pasadena, California

Before: CALLAHAN and BUMATAY, Circuit Judges, and PRESNELL,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gregory A. Presnell, United States District Judge for the Middle District of Florida, sitting by designation. Milda Rodriguez Vasquez and her minor son, M.S.M.R. (together,

“Appellants”), appeal the district court’s denial of a temporary restraining order

(“TRO”). We have jurisdiction under 28 U.S.C. § 1292(a)(1) where, like here,

“the circumstances render the denial tantamount to the denial of a preliminary

injunction.” Religious Tech. Ctr., Church of Scientology Int’l, Inc. v. Scott, 869

F.2d 1306, 1308 (9th Cir. 1989). We vacate the district court’s denial and remand

with instructions to consider new evidence.

1. The Government asks us to deny this appeal as moot.1 We decline to

do so. “‘The test for mootness of an appeal is whether the appellate court can give

the appellant any effective relief in the event that it decides the matter on the merits

in his favor. If it can grant such relief, the matter is not moot.’” Serv. Emps. Int’l

Union v. Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1068 (9th Cir. 2010)

(quoting Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986)). The Government

urges us to focus on the fact that Appellants sought medical assessments which

have been obtained. But this does not fully address the broader context of the case.

Effective relief for the Appellants can be granted by, for example, enjoining the

Government from imposing removal conditions that are adverse to M.S.M.R.’s

medical conditions and recovery.

1 The Government also objects to venue in the Central District of California, but the district court did not reach that issue.

2 20-55142 2. The Government also argues that 8 U.S.C. § 1252(g) bars us from

hearing this claim. That section prohibits courts from hearing any claim “arising

from the decision or action by the Attorney General to commence proceedings,

adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g). But this

prohibition is narrow. See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,

140 S. Ct. 1891, 1907 (2020). It precludes review of only the three actions listed

in the statute: deciding to commence proceedings, deciding to adjudicate cases, and

deciding to execute removal orders. Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 482 (1999). Because the Appellants here challenge the

manner of their removal, and not the discretionary decision to remove them,

§ 1252(g) does not bar this suit.

3. With these preliminary issues resolved, we recognize that this case

comes before us in an unusual posture. After the district court analyzed the

evidence presented to it and denied the TRO, orders from this Court’s motions

panel supplemented the record with additional information about M.S.M.R.’s

medical condition. This new information may alter that analysis. Additionally,

months have passed since the parties submitted this additional information. Given

this unique situation, we vacate the district court’s order denying the TRO and

remand for further proceedings. We instruct the district court to consider the new

evidence presented in this appeal and any other evidence that may come to light

3 20-55142 since we first expanded the record. We also instruct the district court to consider

whether venue in the Central District of California is proper. When considering

the issue of venue, the district court should determine whether the “core habeas”

venue rule under § 2241(a) applies, see Nettles v. Grounds, 830 F.3d 922, 935 (9th

Cir. 2016) (en banc), or whether traditional venue analysis is appropriate. It is

further ordered that this Court’s stay of removal, originally entered on February 26,

2020, shall remain in effect until the district court resolves Appellants’ application

for a TRO.

VACATED and REMANDED.

4 20-55142