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 PRELIMINARY 9 v. INJUNCTION
10 POLLY KAISER, et al., 11 Defendants.
12 13 I. INTRODUCTION 14 On May 6, 2022, the Court granted Petitioner’s Motion for Temporary Restraining Order 15 (“TRO”) and ordered Respondents to show cause why a preliminary injunction should not issue. 16 ECF No. 20. On May 13, 2022, Respondents filed a response to the Court’s order. ECF No. 22. 17 On May 17, 2022, Petitioner filed a reply. ECF No. 23. The Court determines this matter is 18 suitable for disposition without oral argument. See Civ. L.R. 7-1(b). Having considered the 19 parties’ papers and relevant legal authority, the Court GRANTS a preliminary injunction for the 20 reasons stated below.1 21 II. BACKGROUND 22 The Court described in detail the factual background of this case in the Court’s Order 23 Granting TRO. See ECF No. 20 at 1-2. The Court incorporates by reference the factual 24 background set forth therein. 25 26 27 1 III. LEGAL STANDARD 2 To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood of 3 success on the merits, (2) a likelihood of irreparable harm to the moving party in the absence of 4 preliminary relief, (3) the balance of equities tips in the favor of the moving party, and (4) an 5 injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 6 (2008). These factors may be evaluated on a sliding scale, such that a preliminary injunction may 7 be issued when the moving party demonstrates “serious questions going to the merits and a 8 hardship balance that tips sharply toward the [petitioner] . . . assuming the other two elements of 9 the Winter test are also met.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 10 2011). 11 12 IV. DISCUSSION 13 A. Likelihood of Success on the Merits 14 In the Court’s Order Granting TRO, the Court “join[ed] other courts of this district facing 15 facts similar to the present case” and found “Petitioner raised serious questions going to the merits 16 of his claim that due process requires a hearing before an IJ prior to re-detention.” ECF No. 20 at 17 3. The Court discussed Jorge M.F. v. Wilkinson, where a court of this district faced facts that 18 mirror the present case and granted a TRO and preliminary injunction. See Jorge M.F. v. 19 Wilkinson, Case No. 21-cv-1434-JST, 2021 WL 783561 (N.D. Cal. Mar. 1, 2021); Jorge M.F. v. 20 Jennings, 534 F. Supp. 3d 1050 (N.D. Cal. 2021), notice of appeal filed, No. 21-15993 (9th Cir. 2021). 21 The Jorge M.F. court ultimately affirmed its findings that the due process inquiry supported 22 “serious questions” going to the merits of petitioner’s claim that due process requires a hearing 23 before an IJ prior to re-detention. Jorge M.F. v. Jennings, 534 F.Supp.3d at 1054-57. 24 Similar to the court in Jorge M.F., this Court finds the due process inquiry supports a 25 showing of “serious questions” going to the merits of Petitioner’s due process claim. The three 26 factors “relevant for the due process inquiry” are (1) “the private interest,” (2) “the risk of an 27 erroneous deprivation and the value of additional procedures sought,” and (3) “the government's 1 Eldridge, 424 U.S. 319, 335 (1976). 2 The Court finds Petitioner has a “private interest” in remaining on bond because he is 3 employed and financially supports his family. See Ortega v. Bonnar, 415 F. Supp.3d 963, 970 4 (N.D. Cal. 2019) (“Ortega has a substantial private interest in remaining on bond . . . He is living 5 with his wife, spending time with his mother and other family members, working as a bicycle 6 mechanic, and developing friendships in his community.”). There is a “risk of an erroneous 7 deprivation” and “value [in] additional procedures sought” because Petitioner has a liberty interest 8 in his conditional release, and he challenges the legal validity of the BIA’s order. See Jorge M.F. 9 v. Jennings, 534 F. Supp. 3d at 1055 (“Petitioner's challenges to the legal validity of the BIA’s 10 order . . . support the Court’s conclusion that there is a risk of an erroneous deprivation of 11 Petitioner’s liberty absent a pre-deprivation hearing”); Jorge M.F., 2021 WL 783561 at *2 12 (discussing liberty interest in conditional release under Morrissey v. Brewer, 408 U.S. 471 13 (1972)). The “government’s interest” in re-detaining Petitioner without a second hearing is low 14 because concerns of Petitioner’s flight risk or danger “is unsubstantiated in light of [Petitioner’s] 15 strong family ties and his continued employment,” and Petitioner’s “actions in posting a bond and 16 complying with the conditions of release.” Jorge M.F., 2021 WL 783561 at *3 (internal citations 17 and quotations omitted). Accordingly, the Court finds Petitioner has raised serious questions 18 going to the merits of his claim that due process requires a hearing before an IJ prior to re- 19 detention. 20 Respondents argue the Court’s findings in Jorge M.F. are distinguishable from the instant 21 case because Jorge M.F. involved detention under § 1226(a) while the instant case involves 22 detention under § 1226(c). ECF No. 22 at 11. Respondents also assert Petitioner was afforded 23 due process safeguards in his first IJ hearing, and Morrissey does not provide Petitioner a liberty 24 interest. Id. at 12-13. 25 The Court is unpersuaded by Respondents’ arguments. Indeed, the Jorge M.F. court 26 rejected similar arguments regarding the application of due process under different immigration 27 statutes. See Jorge M.F. v. Jennings, 534 F. Supp. 3d at 1055 (“[A]lthough Respondents 1 1226(a) is at issue here, Ortiz Vargas rejected the same argument . . . the procedural due process 2 inquiry . . . arising from the re-arrest or re-detention of a non-citizen after release on bond [was] 3 similar to the procedural due process claim in that case”) (internal citations and quotations 4 omitted); cf. Rodriguez v. Robbins, 715 F.3d 1127, 1139 (9th Cir. 2013) (discussing due process 5 under § 1226(c)). Although Petitioner has had a bond hearing, Respondents do not address what 6 safeguards, if any, are present if Petitioner is detained pending the BIA’s order and subjected to 7 unjust detention. Regarding Petitioner’s liberty interest, the Court declines to depart from the 8 finding in Jorge M.F.:
9 Ortega v. Bonnar held that a noncitizen’s liberty interest in remaining out of custody on bond was similar to the liberty interests 10 of people on pre-parole, parole, and probation, and that ‘[g]iven the civil context, a [noncitizen’s] liberty interest is arguably greater than 11 the interest of parolees in Morrissey.’ . . . The Court finds this reasoning to be persuasive and declines to ignore the due process 12 principles articulated in Morrissey on the basis that it was not decided in the immigration context. 13 Jorge M.F. v. Jennings, 534 F. Supp. 3d at 1054 (citing Ortega v. Bonnar, 415 F. Supp. 3d 14 963, 969-970 (N.D. Cal. 2019)). Accordingly, the Court finds Petitioner has raised “serious 15 questions” going to the merits of his due process claims and this factor weighs in favor of 16 preliminary injunction.2 17 18 B. Likelihood of Irreparable Harm 19 Respondents argue Petitioner fails to show irreparable harm because he “waited over three 20 months before filing his Petition and moving for emergency injunctive relief.” ECF No. 22 at 19.
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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 PRELIMINARY 9 v. INJUNCTION
10 POLLY KAISER, et al., 11 Defendants.
12 13 I. INTRODUCTION 14 On May 6, 2022, the Court granted Petitioner’s Motion for Temporary Restraining Order 15 (“TRO”) and ordered Respondents to show cause why a preliminary injunction should not issue. 16 ECF No. 20. On May 13, 2022, Respondents filed a response to the Court’s order. ECF No. 22. 17 On May 17, 2022, Petitioner filed a reply. ECF No. 23. The Court determines this matter is 18 suitable for disposition without oral argument. See Civ. L.R. 7-1(b). Having considered the 19 parties’ papers and relevant legal authority, the Court GRANTS a preliminary injunction for the 20 reasons stated below.1 21 II. BACKGROUND 22 The Court described in detail the factual background of this case in the Court’s Order 23 Granting TRO. See ECF No. 20 at 1-2. The Court incorporates by reference the factual 24 background set forth therein. 25 26 27 1 III. LEGAL STANDARD 2 To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood of 3 success on the merits, (2) a likelihood of irreparable harm to the moving party in the absence of 4 preliminary relief, (3) the balance of equities tips in the favor of the moving party, and (4) an 5 injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 6 (2008). These factors may be evaluated on a sliding scale, such that a preliminary injunction may 7 be issued when the moving party demonstrates “serious questions going to the merits and a 8 hardship balance that tips sharply toward the [petitioner] . . . assuming the other two elements of 9 the Winter test are also met.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 10 2011). 11 12 IV. DISCUSSION 13 A. Likelihood of Success on the Merits 14 In the Court’s Order Granting TRO, the Court “join[ed] other courts of this district facing 15 facts similar to the present case” and found “Petitioner raised serious questions going to the merits 16 of his claim that due process requires a hearing before an IJ prior to re-detention.” ECF No. 20 at 17 3. The Court discussed Jorge M.F. v. Wilkinson, where a court of this district faced facts that 18 mirror the present case and granted a TRO and preliminary injunction. See Jorge M.F. v. 19 Wilkinson, Case No. 21-cv-1434-JST, 2021 WL 783561 (N.D. Cal. Mar. 1, 2021); Jorge M.F. v. 20 Jennings, 534 F. Supp. 3d 1050 (N.D. Cal. 2021), notice of appeal filed, No. 21-15993 (9th Cir. 2021). 21 The Jorge M.F. court ultimately affirmed its findings that the due process inquiry supported 22 “serious questions” going to the merits of petitioner’s claim that due process requires a hearing 23 before an IJ prior to re-detention. Jorge M.F. v. Jennings, 534 F.Supp.3d at 1054-57. 24 Similar to the court in Jorge M.F., this Court finds the due process inquiry supports a 25 showing of “serious questions” going to the merits of Petitioner’s due process claim. The three 26 factors “relevant for the due process inquiry” are (1) “the private interest,” (2) “the risk of an 27 erroneous deprivation and the value of additional procedures sought,” and (3) “the government's 1 Eldridge, 424 U.S. 319, 335 (1976). 2 The Court finds Petitioner has a “private interest” in remaining on bond because he is 3 employed and financially supports his family. See Ortega v. Bonnar, 415 F. Supp.3d 963, 970 4 (N.D. Cal. 2019) (“Ortega has a substantial private interest in remaining on bond . . . He is living 5 with his wife, spending time with his mother and other family members, working as a bicycle 6 mechanic, and developing friendships in his community.”). There is a “risk of an erroneous 7 deprivation” and “value [in] additional procedures sought” because Petitioner has a liberty interest 8 in his conditional release, and he challenges the legal validity of the BIA’s order. See Jorge M.F. 9 v. Jennings, 534 F. Supp. 3d at 1055 (“Petitioner's challenges to the legal validity of the BIA’s 10 order . . . support the Court’s conclusion that there is a risk of an erroneous deprivation of 11 Petitioner’s liberty absent a pre-deprivation hearing”); Jorge M.F., 2021 WL 783561 at *2 12 (discussing liberty interest in conditional release under Morrissey v. Brewer, 408 U.S. 471 13 (1972)). The “government’s interest” in re-detaining Petitioner without a second hearing is low 14 because concerns of Petitioner’s flight risk or danger “is unsubstantiated in light of [Petitioner’s] 15 strong family ties and his continued employment,” and Petitioner’s “actions in posting a bond and 16 complying with the conditions of release.” Jorge M.F., 2021 WL 783561 at *3 (internal citations 17 and quotations omitted). Accordingly, the Court finds Petitioner has raised serious questions 18 going to the merits of his claim that due process requires a hearing before an IJ prior to re- 19 detention. 20 Respondents argue the Court’s findings in Jorge M.F. are distinguishable from the instant 21 case because Jorge M.F. involved detention under § 1226(a) while the instant case involves 22 detention under § 1226(c). ECF No. 22 at 11. Respondents also assert Petitioner was afforded 23 due process safeguards in his first IJ hearing, and Morrissey does not provide Petitioner a liberty 24 interest. Id. at 12-13. 25 The Court is unpersuaded by Respondents’ arguments. Indeed, the Jorge M.F. court 26 rejected similar arguments regarding the application of due process under different immigration 27 statutes. See Jorge M.F. v. Jennings, 534 F. Supp. 3d at 1055 (“[A]lthough Respondents 1 1226(a) is at issue here, Ortiz Vargas rejected the same argument . . . the procedural due process 2 inquiry . . . arising from the re-arrest or re-detention of a non-citizen after release on bond [was] 3 similar to the procedural due process claim in that case”) (internal citations and quotations 4 omitted); cf. Rodriguez v. Robbins, 715 F.3d 1127, 1139 (9th Cir. 2013) (discussing due process 5 under § 1226(c)). Although Petitioner has had a bond hearing, Respondents do not address what 6 safeguards, if any, are present if Petitioner is detained pending the BIA’s order and subjected to 7 unjust detention. Regarding Petitioner’s liberty interest, the Court declines to depart from the 8 finding in Jorge M.F.:
9 Ortega v. Bonnar held that a noncitizen’s liberty interest in remaining out of custody on bond was similar to the liberty interests 10 of people on pre-parole, parole, and probation, and that ‘[g]iven the civil context, a [noncitizen’s] liberty interest is arguably greater than 11 the interest of parolees in Morrissey.’ . . . The Court finds this reasoning to be persuasive and declines to ignore the due process 12 principles articulated in Morrissey on the basis that it was not decided in the immigration context. 13 Jorge M.F. v. Jennings, 534 F. Supp. 3d at 1054 (citing Ortega v. Bonnar, 415 F. Supp. 3d 14 963, 969-970 (N.D. Cal. 2019)). Accordingly, the Court finds Petitioner has raised “serious 15 questions” going to the merits of his due process claims and this factor weighs in favor of 16 preliminary injunction.2 17 18 B. Likelihood of Irreparable Harm 19 Respondents argue Petitioner fails to show irreparable harm because he “waited over three 20 months before filing his Petition and moving for emergency injunctive relief.” ECF No. 22 at 19. 21 Respondents assert Petitioner’s harm is speculative or too tenuous, and that detention is 22 constitutionally valid during the deportation process. Id. at 20. 23 The Court finds Petitioner is likely to suffer irreparable harm absent preliminary 24 injunction. Given the COVID-19 pandemic, the Court finds Petitioner’s three-month delay 25 reasonable. See ECF No. 23-1 (Upshaw Decl.) at ¶¶ 6-13 (discussing counsel and COVID-19 26
27 2 Because the Court finds Petitioner raises “serious questions” regarding the merits of his claim 1 related delays). Petitioner faces imminent separation from his mother and children absent a 2 preliminary injunction. See Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017) (listing 3 “economic burdens imposed on detainees and their families” and “collateral harms to children of 4 detainees” as irreparable harms imposed by immigration detention); ECF No. 1-25, Ex. W (Garcia 5 Letter) (describing Petitioner managing bills and medication, translating letters, running errands, 6 and providing clothes and necessities for family). Although detention is a part of the deportation 7 process, “[i]t is well established that the Fifth Amendment entitles aliens to due process of law in 8 deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). Therefore, the Court finds 9 this factor sharply weighs in favor of granting preliminary injunction. 10 11 C. Balance of Equities and Public Interest 12 When the government is a party, the balance of equities and public interest factors merge. 13 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). 14 Respondents argue Petitioner’s harm does not outweigh the public interest in applying 15 immigration laws and enforcing BIA decisions. ECF No. 22 at 20-21. 16 The Court finds the balance of equities and public interest favor granting preliminary 17 injunction. The Court incorporates its analysis from its Order Granting TRO and finds the risk of 18 violating Petitioner’s due process rights outweighs the minimal impact on Respondents. As 19 discussed in this Order, the Court joins other courts in this district facing similar facts in finding 20 serious questions going to the merits of Petitioner’s due process claims. Therefore, the Court finds 21 these two factors weigh in favor of granting preliminary injunction. 22 Accordingly, on the present record, and for reasons underlying the issuance of the TRO, 23 the Court finds Petitioner has sufficiently demonstrated that there are serious questions going to 24 the merits of his due process claim, the hardship balance tips sharply in favor of Petitioner, and the 25 balance of equities and public interest are served by granting preliminary injunction. 26 27 V. CONCLUSION 1 injunction. The Court hereby ENJOINS Respondents, and their agents and employees, from re- 2 || detaining Petitioner Nectali Ulises Romero Romero without adequate notice and a hearing 3 pending final disposition of this action. 4 IT IS SO ORDERED. 5 6 || Dated: May 20, 2022 7 J \ - l. □ THOMAS S. HIXSON 8 United States Magistrate Judge 9 10 11 12
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