1 MW 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
No. CV-20-00379-PHX-SPL (DMF) 9 Gurmit Singh,
10 Petitioner, ORDER v. 11 12 William Barr, et al., 13 Respondents. 14 15 Petitioner Gurmit Singh, who is detained in the Florence Service Processing Center 16 (SPC) in Florence, Arizona, has filed, through counsel, a Petition for Writ of Habeas 17 Corpus under 28 U.S.C. § 2241 (Doc. 1) and a Motion for Preliminary Injunction and/or 18 Temporary Restraining Order (Doc. 2). The Court will require Respondents to answer the 19 Petition and respond to the Motion for Preliminary Injunction. 20 I. Background 21 Petitioner is a native and citizen of India. On August 30, 2019, he entered the United 22 States without inspection near San Luis, Arizona, and was encountered and taken into 23 custody by the United States Department of Homeland Security (DHS) the same day. 24 (Docs. 1-3, 1-4.) Petitioner was determined to be inadmissible to the United States and 25 placed in expedited removal proceedings pursuant to Immigration and Naturalization Act 26 (INA) § 235(b)(1), 8 U.S.C. § 1225(b)(1). (Doc. 1-3.) Petitioner expressed a fear of 27 persecution or torture if returned to India and was referred for a credible fear determination. 28 Petitioner was then transferred and detained in the CoreCivic La Palma Correctional Center 1 in Eloy, Arizona. (Doc. 1-5.) 2 On September 17, 2019 and September 19, 2019, Petitioner received credible fear 3 interviews. (Docs. 1 ¶ 19, 1-5, 1-6.) An asylum officer found Petitioner was credible but 4 determined that he had not established a credible or reasonable fear of persecution or torture 5 if removed to India.1 (Docs. 1-5, 1-7, 1-8.) The asylum officer reasoned in part that 6 Petitioner had “not established a reasonable fear of persecution . . . because . . . [he] could 7 reasonably avoid persecution by relocating within [his] country,” and had “not established 8 a reasonable fear of torture . . . because [he had] not established that there is a reasonable 9 possibility that . . . [he] would suffer severe physical or mental pain or suffering.” (Doc. 10 1-8; but see Doc. 1-7 at 4.) The determination was approved by a supervisory asylum 11 officer, and on September 24, 2019, Petitioner was ordered removed from the United 12 States. (Docs. 1-5, 1-8) 13 Petitioner requested review of the credible fear determination by an Immigration 14 Judge (IJ), and a hearing was held on September 27, 2019. (Docs. 1-8 to 1-13.) At the 15 conclusion of the hearing, the IJ affirmed the asylum officer’s credible fear determination. 16 (Id.) 17 On October 4, 2019, Petitioner filed, through former counsel Viney Gupta, a petition 18 for review with the Ninth Circuit Court of Appeals. Singh v. Barr, No. 19-72514, Doc. 1 19 (9th Cir. Oct. 4, 2019).2 A temporary stay of removal was entered the same day. Id. 20 . . . . 21
22 1 Petitioner was deemed ineligible for asylum pursuant 8 C.F.R. § 208.13(c)(4) on the basis that he did not apply for protection from persecution or torture in at least one 23 country through which he transited en route to the United States, and therefore found to have “not established a significant possibility of establishing eligibility for asylum and [] 24 received a negative credible fear of persecution determination.” (Docs. 1-5 at 6; 1-7 at 5.) Consequently, Petitioner was screened only “for potential entitlement to withholding under 25 INA [§] 241 or [Convention Against Torture] protection under a ‘reasonable possibility of persecution’ and ‘reasonable possibility of torture’ standard.” (Id.) 26 2 On October 10, 2019, Gupta was suspended from practice before the Ninth Circuit 27 for six months and was withdrawn as counsel. Singh v. Barr, No. 19-72514, Doc. 5 (9th Cir. Nov. 19, 2019). Alternate counsel later filed a notice of appearance on Petitioner’s 28 behalf before the Ninth Circuit. Id., Doc. 14 (9th Cir. Feb. 11, 2020). 1 II. Petition 2 In his Petition, Petitioner names United States Attorney General William Barr, 3 Acting DHS Secretary Chad Wolf, Executive Office for Immigration Review Director 4 James McHenry, United States Immigration and Customs Enforcement Phoenix Field 5 Office Director Enrique Lucero, and United States Immigration Judge Sean Keenan 6 Respondents. 3 Petitioner asserts that the Court has habeas corpus jurisdiction to review 7 his claims pursuant to the Ninth Circuit’s decision in Thuraissigiam v. U.S. Dep’t of 8 Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), cert. granted, No. 19-161 (Oct. 18, 2019). 9 Petitioner brings two grounds for relief. In Grounds One and Two, Petitioner claims 10 that his credible fear proceedings denied him a fair and meaningful opportunity to apply 11 for relief in violation of the governing statute and implementing regulation, 8 U.S.C. 12 § 1225(b)(1) and 8 C.F.R. § 208.30(d), and the Due Process Clause of the Fifth 13 Amendment. Petitioner alleges DHS failed to employ the required non-adversarial 14 procedures when conducting his credible fear interview, relied on outdated evidence that 15 was inapplicable to his specific circumstances, failed to consider binding case law, and 16 failed to apply the correct legal standard when evaluating his claims. Petitioner further 17 alleges that the IJ failed to consider binding law, applied the wrong legal standard, and did 18 not engage in a meaningful review of his claims. 19 In his demand for relief, Petitioner asks the Court to: (1) determine that his expedited 20 removal order violated his statutory, regulatory, and constitutional rights and, as a result, 21 he is being detained in violation of the law; (2) vacate the expedited removal order; (3) 22 order that he “be provided a new, meaningful opportunity to apply for asylum and other 23
24 3 Under the rationale articulated in Armentero, infra, and in the absence of authority addressing who is the proper respondent in immigration habeas corpus proceedings under 25 § 2241, the Court will not dismiss Respondents Barr, Wolf, and Lucero or the Petition for failure to name a proper respondent at this stage of the proceedings. See Armentero v. INS, 26 340 F.3d 1058, 1071-73 (9th Cir. 2003) (finding the DHS Secretary and the Attorney General were proper respondents), withdrawn, 382 F.3d 1153 (9th Cir. 2004) (order); see 27 also Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004) (declining to resolve whether the Attorney General is a proper respondent in an immigration habeas corpus petition). 28 However, the Court will dismiss Respondents McHenry and Keenan because the rationale articulated in Armentero would not extend to them. 1 relief from removal”; and (4) award him costs and attorneys’ fees pursuant to the Equal 2 Access to Justice Act. (Doc. 1 at 25-26.) 3 The Court will require Respondents Barr, Wolf, and Lucero to answer the Petition. 4 III.
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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-20-00379-PHX-SPL (DMF) 9 Gurmit Singh,
10 Petitioner, ORDER v. 11 12 William Barr, et al., 13 Respondents. 14 15 Petitioner Gurmit Singh, who is detained in the Florence Service Processing Center 16 (SPC) in Florence, Arizona, has filed, through counsel, a Petition for Writ of Habeas 17 Corpus under 28 U.S.C. § 2241 (Doc. 1) and a Motion for Preliminary Injunction and/or 18 Temporary Restraining Order (Doc. 2). The Court will require Respondents to answer the 19 Petition and respond to the Motion for Preliminary Injunction. 20 I. Background 21 Petitioner is a native and citizen of India. On August 30, 2019, he entered the United 22 States without inspection near San Luis, Arizona, and was encountered and taken into 23 custody by the United States Department of Homeland Security (DHS) the same day. 24 (Docs. 1-3, 1-4.) Petitioner was determined to be inadmissible to the United States and 25 placed in expedited removal proceedings pursuant to Immigration and Naturalization Act 26 (INA) § 235(b)(1), 8 U.S.C. § 1225(b)(1). (Doc. 1-3.) Petitioner expressed a fear of 27 persecution or torture if returned to India and was referred for a credible fear determination. 28 Petitioner was then transferred and detained in the CoreCivic La Palma Correctional Center 1 in Eloy, Arizona. (Doc. 1-5.) 2 On September 17, 2019 and September 19, 2019, Petitioner received credible fear 3 interviews. (Docs. 1 ¶ 19, 1-5, 1-6.) An asylum officer found Petitioner was credible but 4 determined that he had not established a credible or reasonable fear of persecution or torture 5 if removed to India.1 (Docs. 1-5, 1-7, 1-8.) The asylum officer reasoned in part that 6 Petitioner had “not established a reasonable fear of persecution . . . because . . . [he] could 7 reasonably avoid persecution by relocating within [his] country,” and had “not established 8 a reasonable fear of torture . . . because [he had] not established that there is a reasonable 9 possibility that . . . [he] would suffer severe physical or mental pain or suffering.” (Doc. 10 1-8; but see Doc. 1-7 at 4.) The determination was approved by a supervisory asylum 11 officer, and on September 24, 2019, Petitioner was ordered removed from the United 12 States. (Docs. 1-5, 1-8) 13 Petitioner requested review of the credible fear determination by an Immigration 14 Judge (IJ), and a hearing was held on September 27, 2019. (Docs. 1-8 to 1-13.) At the 15 conclusion of the hearing, the IJ affirmed the asylum officer’s credible fear determination. 16 (Id.) 17 On October 4, 2019, Petitioner filed, through former counsel Viney Gupta, a petition 18 for review with the Ninth Circuit Court of Appeals. Singh v. Barr, No. 19-72514, Doc. 1 19 (9th Cir. Oct. 4, 2019).2 A temporary stay of removal was entered the same day. Id. 20 . . . . 21
22 1 Petitioner was deemed ineligible for asylum pursuant 8 C.F.R. § 208.13(c)(4) on the basis that he did not apply for protection from persecution or torture in at least one 23 country through which he transited en route to the United States, and therefore found to have “not established a significant possibility of establishing eligibility for asylum and [] 24 received a negative credible fear of persecution determination.” (Docs. 1-5 at 6; 1-7 at 5.) Consequently, Petitioner was screened only “for potential entitlement to withholding under 25 INA [§] 241 or [Convention Against Torture] protection under a ‘reasonable possibility of persecution’ and ‘reasonable possibility of torture’ standard.” (Id.) 26 2 On October 10, 2019, Gupta was suspended from practice before the Ninth Circuit 27 for six months and was withdrawn as counsel. Singh v. Barr, No. 19-72514, Doc. 5 (9th Cir. Nov. 19, 2019). Alternate counsel later filed a notice of appearance on Petitioner’s 28 behalf before the Ninth Circuit. Id., Doc. 14 (9th Cir. Feb. 11, 2020). 1 II. Petition 2 In his Petition, Petitioner names United States Attorney General William Barr, 3 Acting DHS Secretary Chad Wolf, Executive Office for Immigration Review Director 4 James McHenry, United States Immigration and Customs Enforcement Phoenix Field 5 Office Director Enrique Lucero, and United States Immigration Judge Sean Keenan 6 Respondents. 3 Petitioner asserts that the Court has habeas corpus jurisdiction to review 7 his claims pursuant to the Ninth Circuit’s decision in Thuraissigiam v. U.S. Dep’t of 8 Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), cert. granted, No. 19-161 (Oct. 18, 2019). 9 Petitioner brings two grounds for relief. In Grounds One and Two, Petitioner claims 10 that his credible fear proceedings denied him a fair and meaningful opportunity to apply 11 for relief in violation of the governing statute and implementing regulation, 8 U.S.C. 12 § 1225(b)(1) and 8 C.F.R. § 208.30(d), and the Due Process Clause of the Fifth 13 Amendment. Petitioner alleges DHS failed to employ the required non-adversarial 14 procedures when conducting his credible fear interview, relied on outdated evidence that 15 was inapplicable to his specific circumstances, failed to consider binding case law, and 16 failed to apply the correct legal standard when evaluating his claims. Petitioner further 17 alleges that the IJ failed to consider binding law, applied the wrong legal standard, and did 18 not engage in a meaningful review of his claims. 19 In his demand for relief, Petitioner asks the Court to: (1) determine that his expedited 20 removal order violated his statutory, regulatory, and constitutional rights and, as a result, 21 he is being detained in violation of the law; (2) vacate the expedited removal order; (3) 22 order that he “be provided a new, meaningful opportunity to apply for asylum and other 23
24 3 Under the rationale articulated in Armentero, infra, and in the absence of authority addressing who is the proper respondent in immigration habeas corpus proceedings under 25 § 2241, the Court will not dismiss Respondents Barr, Wolf, and Lucero or the Petition for failure to name a proper respondent at this stage of the proceedings. See Armentero v. INS, 26 340 F.3d 1058, 1071-73 (9th Cir. 2003) (finding the DHS Secretary and the Attorney General were proper respondents), withdrawn, 382 F.3d 1153 (9th Cir. 2004) (order); see 27 also Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004) (declining to resolve whether the Attorney General is a proper respondent in an immigration habeas corpus petition). 28 However, the Court will dismiss Respondents McHenry and Keenan because the rationale articulated in Armentero would not extend to them. 1 relief from removal”; and (4) award him costs and attorneys’ fees pursuant to the Equal 2 Access to Justice Act. (Doc. 1 at 25-26.) 3 The Court will require Respondents Barr, Wolf, and Lucero to answer the Petition. 4 III. Motion for Preliminary Injunction and/or Temporary Restraining Order 5 In his Motion, Petitioner moves the Court to enjoin his continued detention, enjoin 6 Respondents from transferring him out of state, order Respondents to provide him with an 7 individualized asylum hearing, and stay his removal from the United States while this 8 action is pending. 9 In the Ninth Circuit, “a petitioner seeking a stay of removal must show that 10 irreparable harm is probable and either: (a) a strong likelihood of success on the merits and 11 that the public interest does not weigh heavily against a stay; or (b) a substantial case on 12 the merits and that the balance of hardships tips sharply in the petitioner’s favor.” Leiva- 13 Perez v. Holder, 640 F.3d 962, 970 (9th Cir. 2011) (discussing application of Nken v. 14 Holder, 556 U.S. 418, 444 (2009)). 15 A party seeking injunctive relief under Rule 65 of the Federal Rules of Civil 16 Procedure, on the other hand, must show that: (1) he is likely to succeed on the merits; 17 (2) he is likely to suffer irreparable harm in the absence of injunctive relief; (3) the balance 18 of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural 19 Resources Defense Council, Inc., 555 U.S. 7, 20 (2008); Pimentel v. Dreyfus, 670 F.3d 20 1096, 1105-06 (9th Cir. 2012); Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 21 240 F.3d 832, 839 n.7 (9th Cir. 2001); see also Alliance for the Wild Rockies v. Cottrell, 22 632 F.3d 1127, 1135 (9th Cir. 2011) (discussing Ninth Circuit’s “serious questions” test). 23 Where a movant seeks a mandatory injunction, rather than a prohibitory injunction, 24 injunctive relief is “subject to a higher standard” and is “permissible when ‘extreme or very 25 serious damage will result’ that is not ‘capable of compensation in damages,’ and the merits 26 of the case are not ‘doubtful.’” Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir. 2017) 27 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 28 (9th Cir. 2009)). 1 A temporary restraining order (TRO) under Rule 65(b), unlike a preliminary 2 injunction under Rule 65(a), may be entered before an adverse party has had an opportunity 3 to respond. A TRO may issue if: “(A) specific facts in an affidavit or a verified complaint 4 clearly show that immediate and irreparable injury, loss, or damage will result to the 5 movant before the adverse party can be heard in opposition; and (B) the movant’s attorney 6 certifies in writing any efforts made to give notice and the reasons why it should not be 7 required.” Fed. R. Civ. P. 65(b) (emphasis added). 8 To the extent Petitioner seeks a new hearing on his asylum claims, release from 9 custody, or to remain detained in Arizona, he has not demonstrated that he will suffer 10 irreparable injury before Respondents can be heard in opposition. Nor has Petitioner 11 demonstrated that he is at risk of imminent removal. Rather, as previously discussed, a 12 temporary stay of Petitioner’s removal has been entered by the Ninth Circuit. Petitioner 13 therefore fails to meet his burden to demonstrate that he is entitled to immediate injunctive 14 relief, and his Motion for Temporary Restraining Order will be denied. See Granny Goose 15 Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 16 423, 439 (1974) (consistent with the “stringent” restrictions of Fed. R. Civ. P. 65(b), a 17 temporary restraining order may be entered only to execute the “underlying purpose of 18 preserving the status quo and preventing irreparable harm just so long as is necessary to 19 hold a hearing, and no longer”). In its discretion, however, the Court will call for a response 20 to the Motion for Preliminary Injunction and require that if the Ninth Circuit’s temporary 21 stay of removal is lifted and Respondents intend to remove Petitioner from the United 22 States prior to the conclusion of this action, they must file and serve a “Notice of Intent to 23 Remove” within such time as is reasonable and sufficient to allow Petitioner to file a 24 motion for a stay of removal. Accordingly, 25 IT IS ORDERED: 26 (1) Petitioner’s Motion for Preliminary Injunction and/or Temporary 27 Restraining Order (Doc. 2) is denied without prejudice in part as to Petitioner’s Motion 28 for Temporary Restraining Order. 1 (2) Respondents McHenry and Keenan are dismissed without prejudice. 2 (3) The Clerk of Court shall serve: (1) a copy of the Summons, (2) the Petition 3 for Writ of Habeas Corpus (Doc. 1), (3) the Motion for Preliminary Injunction and/or 4 Temporary Restraining Order (Doc. 2), and (4) this Order upon the United States Attorney 5 for the District of Arizona by certified mail addressed to the civil process clerk at the office 6 of the United States Attorney pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil 7 Procedure. The Clerk of Court shall also send by certified mail a copy of the Summons, 8 the Petition, the Motion for Preliminary Injunction and/or Temporary Restraining Order, 9 and this Order to the United States Attorney General pursuant to Rule 4(i)(1)(B) and to 10 Respondents Barr, Wolf, and Lucero pursuant to Rule 4(i)(2) of the Federal Rules of Civil 11 Procedure. 12 (4) Respondents shall have 30 days from the date of service to answer the 13 Petition for Writ of Habeas Corpus (Doc. 1). Respondents shall not file a dispositive 14 motion in place of an answer absent leave of Court. 15 (5) Petitioner shall have 15 days from the filing of Respondents’ Answer to the 16 Petition to file a Reply. Failure to file a Reply may be deemed as consent to the denial of 17 the Petition on the grounds presented in Respondents’ Answer. 18 (6) Respondents Barr, Wolf, and Lucero shall have 30 days from the date of 19 service to file a Response to Petitioner’s Motion for Preliminary Injunction (Doc. 2). 20 (7) Petitioner shall have 15 days from the filing of Respondents’ Response to 21 the Motion for Preliminary Injunction to file a Reply. 22 (8) If Respondents intend to remove Petitioner from the United States prior to 23 the Court’s disposition of this matter, Respondents must file a “Notice of Intent to 24 Remove” with the Clerk of Court and serve a copy on Petitioner at least 10 days prior to 25 the planned removal, so as to allow Petitioner time to file a motion for a stay of removal. 26 (9) Petitioner must file a “Notice of Change in Status” with the Clerk of Court 27 within 5 days of any material change in Petitioner’s immigration or custody status. 28 Petitioner may not include a motion for other relief with the Notice. 1 (10) The Clerk of Court shall email a copy of this Order to the Immigration TRO 2| Distribution List. 3 Dated this 25th day of February, 2020. 4 5 6 eGaK Gs 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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