1 WO 2 MW 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
No. CV-20-01189-PHX-MTL (JFM) 9 Baljeet Singh Sidhu,
10 Petitioner, ORDER v. 11 12 Chad Wolf, et al., 13 Respondents. 14 15 Petitioner Baljeet Singh Sidhu (A# 201-918-157) has filed, through counsel, a 16 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) and an Emergency 17 Motion to Stay Removal (Doc. 2). The Court will enter a temporary stay of removal and 18 call Respondents to answer the Petition. 19 I. Background 20 Petitioner is a native and citizen of India. On May 30, 2019, he entered the United 21 States without inspection near Lukeville, California, and was encountered and taken into 22 custody by the United States Department of Homeland Security (“DHS”). (Doc. 1-2 at 3, 23 13-16, 20.) Petitioner was determined to be inadmissible to the United States and placed 24 in expedited removal proceedings pursuant to Immigration and Nationality Act (“INA”) 25 § 235(b)(1), 8 U.S.C. § 1225(b)(1). He expressed a fear of persecution or torture if 26 returned to India and was referred for a credible fear determination. (Id.) Petitioner was 27 then transferred and detained in the CoreCivic La Palma Correctional Center in Eloy, 28 Arizona. (Id. at 17.) 1 On August 14, 2019, Petitioner received a credible fear interview. (Doc. 1-2 at 3- 2 11.) An asylum officer found Petitioner was credible but determined that he had not 3 established a credible fear of persecution or torture if removed to India. (Id. at 2, 22.) The 4 asylum officer reasoned in part that Petitioner (1) had not established a credible fear of 5 persecution because “under all the circumstances it is reasonable for [him] to relocate 6 within [his] country to avoid persecution”; and (2) had not established a credible fear of 7 torture because he had “not established that there is a significant possibility that . . . [he] 8 would suffer severe physical or mental pain or suffering.” (Id. at 2.) The determination 9 was approved by a supervisory asylum officer (id. at 11), and on August 22, 2019, 10 Petitioner was ordered removed from the United States (id. at 2, 17). 11 Petitioner requested review of the credible fear determination by an immigration 12 judge (“IJ”) (id. at 2), and on August 28, 2019, the IJ affirmed the asylum officer’s credible 13 fear determination.1 Petitioner was later transferred to the CoreCivic Adams County 14 Correctional Center in Natchez, Mississippi. (Doc. 1 ¶ 11.) 15 II. Petition 16 In his Petition, Petitioner names Acting DHS Secretary Chad Wolf, United States 17 Attorney General William Barr, Acting United States Immigration and Customs 18 Enforcement (“ICE”) Director Matthew T. Albence, Acting United States Citizenship and 19 Immigration Services (“USCIS”) Director Kenneth Cuccinelli, USCIS New Orleans Field 20 Office Director Stanley Crockett, and Adams County Correctional Center Warden Shawn 21 Gillis as Respondents. 2 22 Petitioner brings four grounds for relief. In Grounds One through Three, Petitioner 23 1 See Executive Office for Immigration Review Automated Case Information 24 System, https://portal.eoir.justice.gov/InfoSystem (last accessed Jun. 17, 2020). 2 Under the rationale articulated in Armentero, infra, and in the absence of authority 25 addressing who is the proper respondent in immigration habeas corpus proceedings under § 2241, the Court will not dismiss Respondents or the Petition for failure to name a proper 26 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 27 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 28 is a proper respondent in an immigration habeas corpus petition). 1 claims that his credible fear proceedings denied him a fair and meaningful opportunity to 2 apply for relief in violation of the INA, the implementing regulations, and the Due Process 3 Clause of the Fifth Amendment. Petitioner alleges the asylum officer failed to employ the 4 required non-adversarial procedures when conducting his credible fear interview, 5 misallocated the burden of proof, failed to consider all the facts, and misapplied the law 6 when evaluating his credible fear claim, and failed to provide a written explanation of his 7 decision. In Ground Four, Petitioner requests attorney’s fees and costs under the Equal 8 Access to Justice Act. Petitioner asserts that this Court has habeas corpus jurisdiction to 9 review his claims pursuant to the Ninth Circuit’s decision in Thuraissigiam v. U.S. Dep’t 10 of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), cert. granted, No. 19-161 (Oct. 18, 11 2019). 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 22-23.) 17 III. Emergency Motion to Stay Removal 18 First, Petitioner asks that he “not be relocated outside the state of Arizona.” (Doc. 19 2 at 18.) Because Petitioner is not located in Arizona, and the Motion does not contain any 20 supporting discussion, Petitioner’s request to enjoin his transfer will be denied. 21 Second, Petitioner moves the Court to stay his removal from the United States while 22 this action is pending. He states that his “removal is imminent: there is an ICE-charted 23 flight going to India this week, and by all accounts, [Petitioner] is on the flight manifest.” 24 (Doc. 2 at 2.) 25 In the Ninth Circuit, “a petitioner seeking a stay of removal must show that 26 irreparable harm is probable and either: (a) a strong likelihood of success on the merits and 27 that the public interest does not weigh heavily against a stay; or (b) a substantial case on 28 the merits and that the balance of hardships tips sharply in the petitioner’s favor.” Leiva- 1 Perez v. Holder, 640 F.3d 962, 970 (9th Cir. 2011) (discussing application of Nken v. 2 Holder, 556 U.S. 418, 444 (2009)). 3 The Court will issue a temporary stay of removal. Because removal would deprive 4 Petitioner of the relief he seeks – asylum in the United States – he has shown that it is 5 probable that he would suffer irreparable harm absent a stay. Petitioner has also shown 6 that he has a substantial case on the merits, without prejudice to Respondents 7 demonstrating the contrary, by raising material legal issues in the credible fear 8 determination process. Lastly, the balance of hardships tips sharply in Petitioner’s favor. 9 A stay will maintain the status quo until Respondents have had an opportunity to brief the 10 Petition and will facilitate a considered review of the parties’ arguments by the Court and 11 a reasoned decision on the issues presented. 12 IT IS ORDERED: 13 (1) Petitioner’s Emergency Motion to Stay Removal (Doc. 2) is granted in part 14 insofar as a temporary stay of removal is entered and is otherwise denied without prejudice.
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1 WO 2 MW 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
No. CV-20-01189-PHX-MTL (JFM) 9 Baljeet Singh Sidhu,
10 Petitioner, ORDER v. 11 12 Chad Wolf, et al., 13 Respondents. 14 15 Petitioner Baljeet Singh Sidhu (A# 201-918-157) has filed, through counsel, a 16 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) and an Emergency 17 Motion to Stay Removal (Doc. 2). The Court will enter a temporary stay of removal and 18 call Respondents to answer the Petition. 19 I. Background 20 Petitioner is a native and citizen of India. On May 30, 2019, he entered the United 21 States without inspection near Lukeville, California, and was encountered and taken into 22 custody by the United States Department of Homeland Security (“DHS”). (Doc. 1-2 at 3, 23 13-16, 20.) Petitioner was determined to be inadmissible to the United States and placed 24 in expedited removal proceedings pursuant to Immigration and Nationality Act (“INA”) 25 § 235(b)(1), 8 U.S.C. § 1225(b)(1). He expressed a fear of persecution or torture if 26 returned to India and was referred for a credible fear determination. (Id.) Petitioner was 27 then transferred and detained in the CoreCivic La Palma Correctional Center in Eloy, 28 Arizona. (Id. at 17.) 1 On August 14, 2019, Petitioner received a credible fear interview. (Doc. 1-2 at 3- 2 11.) An asylum officer found Petitioner was credible but determined that he had not 3 established a credible fear of persecution or torture if removed to India. (Id. at 2, 22.) The 4 asylum officer reasoned in part that Petitioner (1) had not established a credible fear of 5 persecution because “under all the circumstances it is reasonable for [him] to relocate 6 within [his] country to avoid persecution”; and (2) had not established a credible fear of 7 torture because he had “not established that there is a significant possibility that . . . [he] 8 would suffer severe physical or mental pain or suffering.” (Id. at 2.) The determination 9 was approved by a supervisory asylum officer (id. at 11), and on August 22, 2019, 10 Petitioner was ordered removed from the United States (id. at 2, 17). 11 Petitioner requested review of the credible fear determination by an immigration 12 judge (“IJ”) (id. at 2), and on August 28, 2019, the IJ affirmed the asylum officer’s credible 13 fear determination.1 Petitioner was later transferred to the CoreCivic Adams County 14 Correctional Center in Natchez, Mississippi. (Doc. 1 ¶ 11.) 15 II. Petition 16 In his Petition, Petitioner names Acting DHS Secretary Chad Wolf, United States 17 Attorney General William Barr, Acting United States Immigration and Customs 18 Enforcement (“ICE”) Director Matthew T. Albence, Acting United States Citizenship and 19 Immigration Services (“USCIS”) Director Kenneth Cuccinelli, USCIS New Orleans Field 20 Office Director Stanley Crockett, and Adams County Correctional Center Warden Shawn 21 Gillis as Respondents. 2 22 Petitioner brings four grounds for relief. In Grounds One through Three, Petitioner 23 1 See Executive Office for Immigration Review Automated Case Information 24 System, https://portal.eoir.justice.gov/InfoSystem (last accessed Jun. 17, 2020). 2 Under the rationale articulated in Armentero, infra, and in the absence of authority 25 addressing who is the proper respondent in immigration habeas corpus proceedings under § 2241, the Court will not dismiss Respondents or the Petition for failure to name a proper 26 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 27 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 28 is a proper respondent in an immigration habeas corpus petition). 1 claims that his credible fear proceedings denied him a fair and meaningful opportunity to 2 apply for relief in violation of the INA, the implementing regulations, and the Due Process 3 Clause of the Fifth Amendment. Petitioner alleges the asylum officer failed to employ the 4 required non-adversarial procedures when conducting his credible fear interview, 5 misallocated the burden of proof, failed to consider all the facts, and misapplied the law 6 when evaluating his credible fear claim, and failed to provide a written explanation of his 7 decision. In Ground Four, Petitioner requests attorney’s fees and costs under the Equal 8 Access to Justice Act. Petitioner asserts that this Court has habeas corpus jurisdiction to 9 review his claims pursuant to the Ninth Circuit’s decision in Thuraissigiam v. U.S. Dep’t 10 of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), cert. granted, No. 19-161 (Oct. 18, 11 2019). 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 22-23.) 17 III. Emergency Motion to Stay Removal 18 First, Petitioner asks that he “not be relocated outside the state of Arizona.” (Doc. 19 2 at 18.) Because Petitioner is not located in Arizona, and the Motion does not contain any 20 supporting discussion, Petitioner’s request to enjoin his transfer will be denied. 21 Second, Petitioner moves the Court to stay his removal from the United States while 22 this action is pending. He states that his “removal is imminent: there is an ICE-charted 23 flight going to India this week, and by all accounts, [Petitioner] is on the flight manifest.” 24 (Doc. 2 at 2.) 25 In the Ninth Circuit, “a petitioner seeking a stay of removal must show that 26 irreparable harm is probable and either: (a) a strong likelihood of success on the merits and 27 that the public interest does not weigh heavily against a stay; or (b) a substantial case on 28 the merits and that the balance of hardships tips sharply in the petitioner’s favor.” Leiva- 1 Perez v. Holder, 640 F.3d 962, 970 (9th Cir. 2011) (discussing application of Nken v. 2 Holder, 556 U.S. 418, 444 (2009)). 3 The Court will issue a temporary stay of removal. Because removal would deprive 4 Petitioner of the relief he seeks – asylum in the United States – he has shown that it is 5 probable that he would suffer irreparable harm absent a stay. Petitioner has also shown 6 that he has a substantial case on the merits, without prejudice to Respondents 7 demonstrating the contrary, by raising material legal issues in the credible fear 8 determination process. Lastly, the balance of hardships tips sharply in Petitioner’s favor. 9 A stay will maintain the status quo until Respondents have had an opportunity to brief the 10 Petition and will facilitate a considered review of the parties’ arguments by the Court and 11 a reasoned decision on the issues presented. 12 IT IS ORDERED: 13 (1) Petitioner’s Emergency Motion to Stay Removal (Doc. 2) is granted in part 14 insofar as a temporary stay of removal is entered and is otherwise denied without prejudice. 15 (2) Respondents are enjoined from removing Petitioner Baljeet Singh Sidhu 16 (A# 201-918-157) from the United States pending further order of this Court. 17 (3) The Clerk of Court shall email a copy of this Order to the Immigration TRO 18 Distribution List. 19 (4) The Clerk of Court shall serve: (1) a copy of the Summons, (2) the 20 Petition (Doc. 1), and (3) this Order upon the United States Attorney for the District of 21 Arizona by certified mail addressed to the civil process clerk at the office of the United 22 States Attorney pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. The 23 Clerk of Court shall also send by certified mail a copy of the Summons, the Petition, and 24 this Order to the United States Attorney General pursuant to Rule 4(i)(1)(B) and to 25 Respondents Wolf, Barr, Albence, Cuccinelli, Lucero, Crockett, and Gillis pursuant to Rule 26 4(i)(2) of the Federal Rules of Civil Procedure. 27 (5) Respondents shall have 30 days from the date of service to answer the 28 Petition (Doc. 1). Respondents shall not file a dispositive motion in place of an answer 1| absent leave of Court. 2 (6) Petitioner shall have 15 days from the filing of Respondents’ Answer to the Petition to file a Reply. Failure to file a Reply may be deemed as consent to the denial of the Petition on the grounds presented in Respondents’ Answer. 5 (7) Petitioner must immediately file a “Notice of Change in Status” if there is any material change in Petitioner’s immigration or custody status. Any request for relief 7 | must be made by separate motion and may not be included in the Notice. 8 (8) This matter is referred to Magistrate Judge James F. Metcalf pursuant to 9} Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a 10 | report and recommendation. 11 Dated this 18th day of June, 2020. 12 WMichadl T. dibunde Michael T. Liburdi 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28
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