1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NECTALI ULISES ROMERO ROMERO, Case No. 22-cv-02508-TSH
8 Plaintiff, ORDER GRANTING TEMPORARY 9 v. RESTRAINING ORDER; ORDER TO SHOW CAUSE 10 POLLY KAISER, et al., Re: Dkt. No. 4 11 Defendants.
12 13 I. INTRODUCTION 14 Pending before the Court is Petitioner Nectali Ulises Romero Romero’s Motion for 15 Temporary Restraining Order (“TRO”). ECF No. 4. On May 3, 2020, Defendants filed an 16 Opposition. ECF No. 18. On May 6, 2022, the Court heard oral argument on Petitioner’s motion. 17 For the reasons stated below, the Court GRANTS Petitioner’s Motion for TRO.1 18 II. BACKGROUND 19 Petitioner was born in El Salvador, brought to the United States as an infant, and became a 20 lawful permanent resident in 1989. ECF Nos. 1-3, Ex. A (Romero Decl.) at ¶ 3; 1-4, Ex. B 21 (Notice to Appear). He is a father of two children and supports his mother. ECF Nos. 1-3, Ex. A 22 (Romero Decl.) at ¶¶ 17, 48; 1-4, ECF No. 1-25, Ex. W (Garcia Letter). 23 In 2016, Petitioner was convicted of two counts of lewd and lascivious acts with a child, in 24 violation of California Penal Code § 288(a), and sentenced to six years in prison. ECF Nos. 1-4, 25 Ex. B (DHS Notice to Appear); 1-5, Ex. C (Petitioner Record of Arrests and Prosecutions Sheet) 26 at 6. In 2019, when Petitioner was released on parole, Immigration and Customs Enforcement 27 1 (“ICE”) detained Petitioner pursuant to 8 U.S.C. § 1226(c). ECF Nos. 1-3 (Romero Decl.) at ¶ 59; 2 1-6 (Form I-831). Petitioner was held in ICE custody for over a year until the Court granted his 3 Petition for Writ of Habeas Corpus and directed the government to “release Petitioner from 4 custody unless within 28 days of this Order he is granted a custody hearing before an immigration 5 judge, at which the government shall justify by clear and convincing evidence Petitioner's 6 continued detention.” Romero Romero v. Wolf, Case No. 20-cv-8031-TSH, 2021 WL 254435, at 7 *5 (N.D. Cal. Jan. 26, 2021) 8 On January 29, 2021, an immigration judge (“IJ”) held a custody hearing and released 9 Petitioner under a $2,500 bond. ECF No. 1-7, Ex. E (IJ Order). The IJ held that Petitioner was 10 neither a danger to the community nor a flight risk. ECF No. 1-14, Ex. L (Memorandum Decision 11 of IJ). On January 29, 2021, Petitioner posted bond and was conditionally released from ICE 12 custody. ECF No. 1-12 (Order of Release in Recognizance). On February 22, 2021, ICE appealed 13 the IJ’s order to the Board of Immigration Appeals (“BIA”). ECF No. 1-13, Ex. K (Notice of 14 Appeal from a Decision of an Immigration Judge). On January 13, 2022, the BIA vacated the IJ’s 15 bond order and ordered Petitioner to be detained without bond. ECF No. 1-13, Ex. O (BIA 16 Order). Petitioner’s removal proceedings are still pending. ECF No. 1-10, Ex. 10 (EOIR Case 17 Status Page) 18 On April 22, 2022, Petitioner’s counsel contacted the Assistant United States Attorney and 19 San Francisco’s ICE Office regarding Petitioner’s request that ICE not re-detain Petitioner. ECF 20 No. 1-8, Ex. F (Upsaw Decl.) at ¶¶ 46-47. Petitioner’s counsel was told that ICE was not in a 21 position to weigh in on Petitioner’s request without a seeing a habeas petition. Id. at 49. 22 On April 25, 2022, Petitioner filed a Petition for Writ of Habeas Corpus, ECF No. 1, and 23 Motion for TRO, ECF No. 4. Petitioner’s next date to report in-person to ICE is May 16, 2022, 24 and he fears he will be detained. ECF No. 4 at 8. On May 3, 2022, Defendants filed an Opposition 25 to Petitioner’s Motion for TRO. ECF No. 19. The Court heard oral argument for Petitioner’s 26 TRO on May 6, 2022. 27 1 III. LEGAL STANDARD 2 The same legal standard applies to a motion for a temporary restraining order and a motion 3 for a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 4 839 n.7 (9th Cir. 2001). A petitioner seeking either remedy “must establish that he is likely to 5 succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 6 relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” 7 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting 8 Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). Alternatively, “[u]nder the ‘sliding 9 scale’ variant of the Winter standard if a [petitioner] can only show that there are serious questions 10 going to the merits—a lesser showing than likelihood of success on the merits—then a preliminary 11 injunction may still issue if the balance of hardships tips sharply in the plaintiff's favor, and the 12 other two Winter factors are satisfied.” Id. (internal quotation marks and citation omitted). 13 IV. DISCUSSION 14 A. Likelihood of Success on the Merits 15 Petitioner argues he has a protected liberty interest in his conditional release and is likely 16 to succeed on the merits of his claim that the Due Process Clause of the Fifth Amendment requires 17 a hearing before an IJ prior to re-detention. ECF No. 4 at 10-16. Defendants argue Petitioner is 18 not likely to succeed on the merits of his claim because the Due Process Clause does not require a 19 second bond hearing and the Court lacks jurisdiction to review the BIA’s Order. ECF No. 18 at 20 7-14. 21 The Ninth Circuit has held that “federal district courts [have] habeas jurisdiction under 28 22 U.S.C. § 2241 to review . . . bond hearing determinations for constitutional claims and legal error. 23 Singh v. Holder, 638 F.3d 1196, 1200 (9th Cir. 2011). Accordingly, this Court joins other courts 24 of this district facing facts similar to the present case and finds Petitioner raised serious questions 25 going to the merits of his claim that due process requires a hearing before an IJ prior to re- 26 detention. 2 See Jorge M.F. v. Wilkinson, Case No. 21-cv-1434-JST, 2021 WL 783561, at *2 27 1 (N.D. Cal. Mar. 1, 2021); Vargas v. Jennings, Case No. 20-cv-5785-PJH, 2020 WL 5074312, at 2 *2 (N.D. Cal. Aug. 23, 2020); Meza v. Bonnar, Case No. 18-cv-02708-BLF, 2018 WL 2151877, at 3 *2 (N.D. Cal. May 10, 2018); cf. Ortega v. Bonnar, 415 F. Supp. 3d 963, 967-970 (N.D. Cal. 4 2019) (discussing grant of TRO and preliminary injunction, and granting petition for Writ of 5 Habeas Corpus where petitioner was released from ICE custody on bond and bond was revoked). 6 In Jennings v. Rodriguez, the Supreme Court reversed a Ninth Circuit holding that certain 7 immigration detention statues3 required periodic bond hearings and remanded the case to the Ninth 8 Circuit to consider whether periodic bond hearings are constitutional under the Due Process 9 Clause of the Fifth Amendment. Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018). The Ninth 10 Circuit subsequently remanded the case to the district court to consider, inter alia, “the minimum 11 requirements of due process to be accorded to all claimants that will ensure a meaningful time and 12 manner of opportunity to be heard.” Rodriguez v. Marin, 909 F.3d 252, 257 (9th Cir. 2018); see 13 also Rodriguez v. Barr, Case No. 20-55770, 2021 WL 4871067, at *1 (9th Cir.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NECTALI ULISES ROMERO ROMERO, Case No. 22-cv-02508-TSH
8 Plaintiff, ORDER GRANTING TEMPORARY 9 v. RESTRAINING ORDER; ORDER TO SHOW CAUSE 10 POLLY KAISER, et al., Re: Dkt. No. 4 11 Defendants.
12 13 I. INTRODUCTION 14 Pending before the Court is Petitioner Nectali Ulises Romero Romero’s Motion for 15 Temporary Restraining Order (“TRO”). ECF No. 4. On May 3, 2020, Defendants filed an 16 Opposition. ECF No. 18. On May 6, 2022, the Court heard oral argument on Petitioner’s motion. 17 For the reasons stated below, the Court GRANTS Petitioner’s Motion for TRO.1 18 II. BACKGROUND 19 Petitioner was born in El Salvador, brought to the United States as an infant, and became a 20 lawful permanent resident in 1989. ECF Nos. 1-3, Ex. A (Romero Decl.) at ¶ 3; 1-4, Ex. B 21 (Notice to Appear). He is a father of two children and supports his mother. ECF Nos. 1-3, Ex. A 22 (Romero Decl.) at ¶¶ 17, 48; 1-4, ECF No. 1-25, Ex. W (Garcia Letter). 23 In 2016, Petitioner was convicted of two counts of lewd and lascivious acts with a child, in 24 violation of California Penal Code § 288(a), and sentenced to six years in prison. ECF Nos. 1-4, 25 Ex. B (DHS Notice to Appear); 1-5, Ex. C (Petitioner Record of Arrests and Prosecutions Sheet) 26 at 6. In 2019, when Petitioner was released on parole, Immigration and Customs Enforcement 27 1 (“ICE”) detained Petitioner pursuant to 8 U.S.C. § 1226(c). ECF Nos. 1-3 (Romero Decl.) at ¶ 59; 2 1-6 (Form I-831). Petitioner was held in ICE custody for over a year until the Court granted his 3 Petition for Writ of Habeas Corpus and directed the government to “release Petitioner from 4 custody unless within 28 days of this Order he is granted a custody hearing before an immigration 5 judge, at which the government shall justify by clear and convincing evidence Petitioner's 6 continued detention.” Romero Romero v. Wolf, Case No. 20-cv-8031-TSH, 2021 WL 254435, at 7 *5 (N.D. Cal. Jan. 26, 2021) 8 On January 29, 2021, an immigration judge (“IJ”) held a custody hearing and released 9 Petitioner under a $2,500 bond. ECF No. 1-7, Ex. E (IJ Order). The IJ held that Petitioner was 10 neither a danger to the community nor a flight risk. ECF No. 1-14, Ex. L (Memorandum Decision 11 of IJ). On January 29, 2021, Petitioner posted bond and was conditionally released from ICE 12 custody. ECF No. 1-12 (Order of Release in Recognizance). On February 22, 2021, ICE appealed 13 the IJ’s order to the Board of Immigration Appeals (“BIA”). ECF No. 1-13, Ex. K (Notice of 14 Appeal from a Decision of an Immigration Judge). On January 13, 2022, the BIA vacated the IJ’s 15 bond order and ordered Petitioner to be detained without bond. ECF No. 1-13, Ex. O (BIA 16 Order). Petitioner’s removal proceedings are still pending. ECF No. 1-10, Ex. 10 (EOIR Case 17 Status Page) 18 On April 22, 2022, Petitioner’s counsel contacted the Assistant United States Attorney and 19 San Francisco’s ICE Office regarding Petitioner’s request that ICE not re-detain Petitioner. ECF 20 No. 1-8, Ex. F (Upsaw Decl.) at ¶¶ 46-47. Petitioner’s counsel was told that ICE was not in a 21 position to weigh in on Petitioner’s request without a seeing a habeas petition. Id. at 49. 22 On April 25, 2022, Petitioner filed a Petition for Writ of Habeas Corpus, ECF No. 1, and 23 Motion for TRO, ECF No. 4. Petitioner’s next date to report in-person to ICE is May 16, 2022, 24 and he fears he will be detained. ECF No. 4 at 8. On May 3, 2022, Defendants filed an Opposition 25 to Petitioner’s Motion for TRO. ECF No. 19. The Court heard oral argument for Petitioner’s 26 TRO on May 6, 2022. 27 1 III. LEGAL STANDARD 2 The same legal standard applies to a motion for a temporary restraining order and a motion 3 for a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 4 839 n.7 (9th Cir. 2001). A petitioner seeking either remedy “must establish that he is likely to 5 succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 6 relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” 7 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting 8 Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). Alternatively, “[u]nder the ‘sliding 9 scale’ variant of the Winter standard if a [petitioner] can only show that there are serious questions 10 going to the merits—a lesser showing than likelihood of success on the merits—then a preliminary 11 injunction may still issue if the balance of hardships tips sharply in the plaintiff's favor, and the 12 other two Winter factors are satisfied.” Id. (internal quotation marks and citation omitted). 13 IV. DISCUSSION 14 A. Likelihood of Success on the Merits 15 Petitioner argues he has a protected liberty interest in his conditional release and is likely 16 to succeed on the merits of his claim that the Due Process Clause of the Fifth Amendment requires 17 a hearing before an IJ prior to re-detention. ECF No. 4 at 10-16. Defendants argue Petitioner is 18 not likely to succeed on the merits of his claim because the Due Process Clause does not require a 19 second bond hearing and the Court lacks jurisdiction to review the BIA’s Order. ECF No. 18 at 20 7-14. 21 The Ninth Circuit has held that “federal district courts [have] habeas jurisdiction under 28 22 U.S.C. § 2241 to review . . . bond hearing determinations for constitutional claims and legal error. 23 Singh v. Holder, 638 F.3d 1196, 1200 (9th Cir. 2011). Accordingly, this Court joins other courts 24 of this district facing facts similar to the present case and finds Petitioner raised serious questions 25 going to the merits of his claim that due process requires a hearing before an IJ prior to re- 26 detention. 2 See Jorge M.F. v. Wilkinson, Case No. 21-cv-1434-JST, 2021 WL 783561, at *2 27 1 (N.D. Cal. Mar. 1, 2021); Vargas v. Jennings, Case No. 20-cv-5785-PJH, 2020 WL 5074312, at 2 *2 (N.D. Cal. Aug. 23, 2020); Meza v. Bonnar, Case No. 18-cv-02708-BLF, 2018 WL 2151877, at 3 *2 (N.D. Cal. May 10, 2018); cf. Ortega v. Bonnar, 415 F. Supp. 3d 963, 967-970 (N.D. Cal. 4 2019) (discussing grant of TRO and preliminary injunction, and granting petition for Writ of 5 Habeas Corpus where petitioner was released from ICE custody on bond and bond was revoked). 6 In Jennings v. Rodriguez, the Supreme Court reversed a Ninth Circuit holding that certain 7 immigration detention statues3 required periodic bond hearings and remanded the case to the Ninth 8 Circuit to consider whether periodic bond hearings are constitutional under the Due Process 9 Clause of the Fifth Amendment. Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018). The Ninth 10 Circuit subsequently remanded the case to the district court to consider, inter alia, “the minimum 11 requirements of due process to be accorded to all claimants that will ensure a meaningful time and 12 manner of opportunity to be heard.” Rodriguez v. Marin, 909 F.3d 252, 257 (9th Cir. 2018); see 13 also Rodriguez v. Barr, Case No. 20-55770, 2021 WL 4871067, at *1 (9th Cir. 2021) (instructing 14 district court to lift injunction “when it considered how it planned to proceed on plaintiffs’ 15 constitutional claims and other questions the Supreme Court asked it to consider in Jennings”). 16 In a case with facts similar to the instant action, a court of this district granted a TRO 17 where the BIA reversed an IJ’s order of conditional release and ordered the petitioner to be 18 detained on no bond. Wilkinson, 2021 WL 783561, at *1, *4. In granting the TRO, the district 19 court found the petitioner “raised serious questions on the merits of his claim that he is entitled to 20 a pre-deprivation hearing before an immigration judge if he is re-arrested.” Id. at *3 (internal 21 citation and quotations omitted). The court later granted a preliminary injunction, which is on 22 appeal. Jorge M.F. v. Jennings, Case No. 21-cv-1434-JST, 534 F. Supp. 3d 1050 (N.D. Cal. 23 2021), notice of appeal filed, No. 21-15993 (9th Cir. June 10, 2021). Similarly, in Ortiz Vargas, 24 another court of this district granted TRO after finding a petitioner raised “serious questions going 25 to the merits of his claim that he has a protectable liberty interest in his conditional release under 26 finds Petitioner raises “serious questions” regarding the merits of his claim that due process 27 requires a rehearing and the Court’s finding that a TRO is warranted based on that claim, the Court 1 [Morrissey v. Brewer, 408 U.S. 471 (1972),] and that he must be afforded a pre-deprivation 2 hearing if respondents seek to re-arrest him.” Ortiz Vargas v. Jennings, No. 20-CV-5785-PJH, 3 2020 WL 5517277, at *2 (N.D. Cal. Sept. 14, 2020). 4 Given the Supreme Court’s instruction to consider whether periodic bond hearings are 5 required by the Due Process Clause of the Fifth Amendment and the pending appeal in Jorge M.F. 6 v. Jennings, Case No. 21-cv-1434-JST, 534 F. Supp. 3d 1050 (N.D. Cal. Apr. 14, 2021), notice of 7 appeal filed, No. 21-15993 (9th Cir. June 10, 2021), the Court finds there are “serious questions” 8 going to the merits of Petitioner’s claim that the Due Process Clause of the Fifth Amendment 9 requires a hearing before an IJ prior to re-detention. Cf. Wilkinson v. Austin, 545 U.S. 209, 221 10 (2005) (“A liberty interest may arise from the Constitution itself, by reason of guarantees implicit 11 in the word ‘liberty,’ or it may arise from an expectation or interest created by state laws or 12 policies.”) 13 B. Likelihood of Irreparable Harm 14 The Court finds Petitioner is likely to suffer irreparable harm absent a TRO. The Ninth 15 Circuit has recognized “the irreparable harms imposed on anyone subject to immigration detention 16 (or other forms of imprisonment).” Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017). 17 Here, Petitioner could be taken into ICE custody on May 16, 2022 and separated from his two 18 children and mother. See id. (listing “economic burdens imposed on detainees and their families” 19 and “collateral harms to children of detainees” as irreparable harms imposed by immigration 20 detention). Therefore, this factor weighs in favor of granting a TRO. 21 C. Balance of Equities and Public Interest 22 When the government is a party, the balance of equities and public interest factors merge. 23 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). 24 The Court finds the balance of equities and public interest sharply favor granting a TRO. 25 Petitioner faces a potential violation of his right to due process and liberty interest. In contrast, 26 any impact on Defendants would be minimal. An IJ has found Petitioner is neither a danger to 27 society nor a flight risk. ECF No. 1-14, Ex. L (Memorandum Decision of the IJ). Petitioner has 1 of release, ECF No. 1-8, Ex. F (Upsaw Decl.) at 36-45. Moreover, “[t]he costs to the public of 2 || immigration detention are ‘staggering’” and public has an interest in “the efficient allocation of the 3 government's fiscal resources.” Hernandez, 872 F.3d at 996-97. “Given the low risk that 4 [Petitioner] would cause harm to others or flee, in light of his strong family ties, financial 5 responsibilities and work commitments, such government expenditure in this case would not 6 || greatly serve the interests of the general public.” Ortiz Vargas, 2020 WL 5074312, at *4. 7 Accordingly, the balance of equities and public interest favor a TRO. 8 Vv. CONCLUSION 9 For the foregoing reasons, the Court GRANTS Petitioner’s Motion for Temporary 10 || Restraining Order. The Court hereby ENJOINS Respondents, and their agents and employees, 11 from re-detaining Petitioner without notice and a hearing. This Temporary Restraining Order shall 12 || take effect immediately and shall remain in effect until for a period of 14 days, through May 20, 5 13 2022, or further order of this Court. 14 Accordingly, respondents are ORDERED TO SHOW CAUSE why a preliminary 3 15 injunction should not issue. Respondents shall file any response to this Order to Show Cause on a 16 || or before May 13, 2022. Petitioner shall file any reply on or before May 17, 2022. IT IS SO ORDERED. 18 19 Dated: May 6, 2022 20 TAA. Ip THOMAS S. HIXSON United States Magistrate Judge 22 23 24 25 26 27 28