1 WO MW 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
No. CV-20-00752-PHX-MTL (MTM) 9 Virender Singh,
10 Petitioner, ORDER v. 11 12 William Barr, et al., 13 Respondents. 14 15 Petitioner Virender Singh (A# 215-677-204), who is detained in the Florence 16 Service Processing Center in Florence, Arizona, has filed, through counsel, a Petition for 17 Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) and a Motion for Preliminary 18 Injunction and/or Temporary Restraining Order (Doc. 2). The Court will issue a temporary 19 stay of removal and call Respondents to answer the Petition. 20 I. Background 21 Petitioner is a native and citizen of India. On October 13, 2019, he entered the 22 United States without inspection at an unknown location and was encountered and taken 23 into custody by the United States Department of Homeland Security (“DHS”). (Doc. 1-3.) 24 Petitioner was determined to be inadmissible to the United States and placed in expedited 25 removal proceedings pursuant to Immigration and Nationality Act (“INA”) § 235(b)(1), 26 8 U.S.C. § 1225(b)(1). (Doc. 1-6.) Petitioner expressed a fear of persecution or torture if 27 returned to India and was referred for a credible fear determination. Petitioner was then 28 1 transferred and detained in the Imperial Regional Detention Facility in Imperial, California. 2 (Docs. 1-3, 1-6.) 3 On December 10 and 12, 2019, Petitioner received credible fear interviews. (Docs. 4 1-3, 1-4.) An asylum officer found Petitioner’s testimony was not credible and therefore 5 determined that he had not established a credible or reasonable fear of persecution or torture 6 if removed to India.1 (Docs. 1-3 at 6-7; 1-5 at 2-4.) The determination was approved by a 7 supervisory asylum officer (Doc. 1-3 at 7), and Petitioner was ordered removed from the 8 United States (Doc. 1-6). Petitioner requested review of the credible fear determination by 9 an Immigration Judge (“IJ”) (id.), and on January 27, 2020, the IJ affirmed the asylum 10 officer’s credible fear determination.2 Petitioner was subsequently transferred to the 11 Florence Service Processing Center in Florence, Arizona, where he is currently detained.3 12 II. Petition 13 In his Petition, Petitioner names United States Attorney General William Barr, 14 Acting DHS Secretary Chad Wolf, Executive Office for Immigration Review Director 15 James McHenry, and former United States Immigration and Customs Enforcement 16 Phoenix Field Office Director Enrique Lucero as Respondents.4 17 1 Petitioner was deemed ineligible for asylum pursuant 8 C.F.R. § 208.13(c)(4) on 18 the basis that he did not apply for protection from persecution or torture in at least one country through which he transited en route to the United States, and therefore found to 19 have “not established a significant possibility of establishing eligibility for asylum and [] received a negative credible fear of persecution determination.” (Docs. 1-3 at 7; 1-5 at 20 5-6.) Consequently, Petitioner was screened only “for potential entitlement to withholding under INA [§] 241 or [Convention Against Torture] protection under a ‘reasonable 21 possibility of persecution’ and ‘reasonable possibility of torture’ standard.” (Id.)
22 2 See Executive Office for Immigration Review Automated Case Information, https://portal.eoir.justice.gov/InfoSystem (last accessed Apr. 20, 2020). 23 3 See United States Immigration and Customs Enforcement Online Detainee Locator 24 System, https://locator.ice.gov (last accessed Apr. 20, 2020).
25 4 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 26 § 2241, the Court will not dismiss Respondents Barr, Wolf, or Lucero or the Petition for failure to name a proper respondent at this stage of the proceedings. See Armentero v. INS, 27 340 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 28 also Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004) (declining to resolve whether the 1 Petitioner brings two grounds for relief. In Grounds One and Two, Petitioner claims 2 that his credible fear proceedings denied him a fair and meaningful opportunity to apply 3 for relief in violation of the INA, the implementing regulations, and the Due Process Clause 4 of the Fifth Amendment. Petitioner alleges DHS failed to employ the required non- 5 adversarial procedures when conducting his credible fear interview and failed to apply the 6 correct legal standard when evaluating his credible fear claim. Petitioner further alleges 7 that the IJ applied the wrong legal standard and failed to consider binding case law. 8 Petitioner asserts that the Court has habeas corpus jurisdiction to review his claims pursuant 9 to the Ninth Circuit’s decision in Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 10 1097 (9th Cir. 2019), cert. granted, No. 19-161 (Oct. 18, 2019). 11 Petitioner asks the Court to: (1) determine that his expedited removal order violated 12 his statutory, regulatory, and constitutional rights and, as a result, he is being detained in 13 violation of the law; (2) vacate the expedited removal order; (3) order that he “be provided 14 a new, meaningful opportunity to apply for asylum and other relief from removal”; and (4) 15 award him costs and attorneys’ fees pursuant to the Equal Access to Justice Act. (Doc. 1 16 at 23.) 17 The Court asks that Respondents Barr, Wolf, and Lucero to answer the Petition. 18 III. Motion for Preliminary Injunction and/or Temporary Restraining Order 19 Petitioner moves the Court to enjoin his continued detention or transfer, to order 20 Respondents to provide him with an individualized asylum hearing, and to stay his removal 21 from the United States while this action is pending. Petitioner states that he has been 22 notified by DHS “that he is at immediate risk of removal” and “has already been relocated 23 from California to an immigration processing center in Arizona in an effort to remove him, 24 which signifies that Petitioner’s removal is imminent.” (Doc. 2 at 3.) 25 A party seeking injunctive relief under Rule 65 of the Federal Rules of Civil 26 Procedure must show that: (1) he is likely to succeed on the merits; (2) he is likely to suffer 27 Attorney General is a proper respondent in an immigration habeas corpus petition). 28 However, the Court will dismiss Respondent McHenry because the rationale articulated in Armentero would not extend to him. 1 irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his 2 favor; and (4) an injunction is in the public interest. Winter v. Natural Resources Defense 3 Council, Inc., 555 U.S. 7, 20 (2008); Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir. 4 2012); Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 5 (9th Cir. 2001); see also Alliance for the Wild Rockies v. Cottrell,
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1 WO MW 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
No. CV-20-00752-PHX-MTL (MTM) 9 Virender Singh,
10 Petitioner, ORDER v. 11 12 William Barr, et al., 13 Respondents. 14 15 Petitioner Virender Singh (A# 215-677-204), who is detained in the Florence 16 Service Processing Center in Florence, Arizona, has filed, through counsel, a Petition for 17 Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) and a Motion for Preliminary 18 Injunction and/or Temporary Restraining Order (Doc. 2). The Court will issue a temporary 19 stay of removal and call Respondents to answer the Petition. 20 I. Background 21 Petitioner is a native and citizen of India. On October 13, 2019, he entered the 22 United States without inspection at an unknown location and was encountered and taken 23 into custody by the United States Department of Homeland Security (“DHS”). (Doc. 1-3.) 24 Petitioner was determined to be inadmissible to the United States and placed in expedited 25 removal proceedings pursuant to Immigration and Nationality Act (“INA”) § 235(b)(1), 26 8 U.S.C. § 1225(b)(1). (Doc. 1-6.) Petitioner expressed a fear of persecution or torture if 27 returned to India and was referred for a credible fear determination. Petitioner was then 28 1 transferred and detained in the Imperial Regional Detention Facility in Imperial, California. 2 (Docs. 1-3, 1-6.) 3 On December 10 and 12, 2019, Petitioner received credible fear interviews. (Docs. 4 1-3, 1-4.) An asylum officer found Petitioner’s testimony was not credible and therefore 5 determined that he had not established a credible or reasonable fear of persecution or torture 6 if removed to India.1 (Docs. 1-3 at 6-7; 1-5 at 2-4.) The determination was approved by a 7 supervisory asylum officer (Doc. 1-3 at 7), and Petitioner was ordered removed from the 8 United States (Doc. 1-6). Petitioner requested review of the credible fear determination by 9 an Immigration Judge (“IJ”) (id.), and on January 27, 2020, the IJ affirmed the asylum 10 officer’s credible fear determination.2 Petitioner was subsequently transferred to the 11 Florence Service Processing Center in Florence, Arizona, where he is currently detained.3 12 II. Petition 13 In his Petition, Petitioner names United States Attorney General William Barr, 14 Acting DHS Secretary Chad Wolf, Executive Office for Immigration Review Director 15 James McHenry, and former United States Immigration and Customs Enforcement 16 Phoenix Field Office Director Enrique Lucero as Respondents.4 17 1 Petitioner was deemed ineligible for asylum pursuant 8 C.F.R. § 208.13(c)(4) on 18 the basis that he did not apply for protection from persecution or torture in at least one country through which he transited en route to the United States, and therefore found to 19 have “not established a significant possibility of establishing eligibility for asylum and [] received a negative credible fear of persecution determination.” (Docs. 1-3 at 7; 1-5 at 20 5-6.) Consequently, Petitioner was screened only “for potential entitlement to withholding under INA [§] 241 or [Convention Against Torture] protection under a ‘reasonable 21 possibility of persecution’ and ‘reasonable possibility of torture’ standard.” (Id.)
22 2 See Executive Office for Immigration Review Automated Case Information, https://portal.eoir.justice.gov/InfoSystem (last accessed Apr. 20, 2020). 23 3 See United States Immigration and Customs Enforcement Online Detainee Locator 24 System, https://locator.ice.gov (last accessed Apr. 20, 2020).
25 4 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 26 § 2241, the Court will not dismiss Respondents Barr, Wolf, or Lucero or the Petition for failure to name a proper respondent at this stage of the proceedings. See Armentero v. INS, 27 340 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 28 also Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004) (declining to resolve whether the 1 Petitioner brings two grounds for relief. In Grounds One and Two, Petitioner claims 2 that his credible fear proceedings denied him a fair and meaningful opportunity to apply 3 for relief in violation of the INA, the implementing regulations, and the Due Process Clause 4 of the Fifth Amendment. Petitioner alleges DHS failed to employ the required non- 5 adversarial procedures when conducting his credible fear interview and failed to apply the 6 correct legal standard when evaluating his credible fear claim. Petitioner further alleges 7 that the IJ applied the wrong legal standard and failed to consider binding case law. 8 Petitioner asserts that the Court has habeas corpus jurisdiction to review his claims pursuant 9 to the Ninth Circuit’s decision in Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 10 1097 (9th Cir. 2019), cert. granted, No. 19-161 (Oct. 18, 2019). 11 Petitioner asks the Court to: (1) determine that his expedited removal order violated 12 his statutory, regulatory, and constitutional rights and, as a result, he is being detained in 13 violation of the law; (2) vacate the expedited removal order; (3) order that he “be provided 14 a new, meaningful opportunity to apply for asylum and other relief from removal”; and (4) 15 award him costs and attorneys’ fees pursuant to the Equal Access to Justice Act. (Doc. 1 16 at 23.) 17 The Court asks that Respondents Barr, Wolf, and Lucero to answer the Petition. 18 III. Motion for Preliminary Injunction and/or Temporary Restraining Order 19 Petitioner moves the Court to enjoin his continued detention or transfer, to order 20 Respondents to provide him with an individualized asylum hearing, and to stay his removal 21 from the United States while this action is pending. Petitioner states that he has been 22 notified by DHS “that he is at immediate risk of removal” and “has already been relocated 23 from California to an immigration processing center in Arizona in an effort to remove him, 24 which signifies that Petitioner’s removal is imminent.” (Doc. 2 at 3.) 25 A party seeking injunctive relief under Rule 65 of the Federal Rules of Civil 26 Procedure must show that: (1) he is likely to succeed on the merits; (2) he is likely to suffer 27 Attorney General is a proper respondent in an immigration habeas corpus petition). 28 However, the Court will dismiss Respondent McHenry because the rationale articulated in Armentero would not extend to him. 1 irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his 2 favor; and (4) an injunction is in the public interest. Winter v. Natural Resources Defense 3 Council, Inc., 555 U.S. 7, 20 (2008); Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir. 4 2012); Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 5 (9th Cir. 2001); see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 6 Cir. 2011) (discussing Ninth Circuit’s alternative “serious questions” test). Where a 7 movant seeks a mandatory injunction, rather than a prohibitory injunction, injunctive relief 8 is “subject to a higher standard” and is “permissible when ‘extreme or very serious damage 9 will result’ that is not ‘capable of compensation in damages,’ and the merits of the case are 10 not ‘doubtful.’” Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir. 2017) (quoting Marlyn 11 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)). 12 A temporary restraining order (TRO) under Rule 65(b), unlike a preliminary 13 injunction under Rule 65(a), may be entered before an adverse party has had an opportunity 14 to respond. A TRO may issue if: “(A) specific facts in an affidavit or a verified complaint 15 clearly show that immediate and irreparable injury, loss, or damage will result to the 16 movant before the adverse party can be heard in opposition; and (B) the movant’s attorney 17 certifies in writing any efforts made to give notice and the reasons why it should not be 18 required.” Fed. R. Civ. P. 65(b) (emphasis added). 19 To the extent Petitioner seeks a new hearing on his asylum claims, release from 20 custody, or to remain detained in Arizona, he has not demonstrated that he will suffer 21 irreparable injury before Respondents have had an opportunity to answer the Petition. He 22 therefore fails to meet his burden to demonstrate that he is entitled to immediate or 23 preliminary injunctive relief, and his Motion will be denied without prejudice with respect 24 to those requests. 25 The potential interests of justice associated with the irrevocable nature of removal, 26 however, suggest the necessity of issuing a temporary stay of removal. The Ninth Circuit 27 Court of Appeals has mandated that “a petitioner seeking a stay of removal must show that 28 irreparable harm is probable and either: (a) a strong likelihood of success on the merits and 1 that the public interest does not weigh heavily against a stay; or (b) a substantial case on 2 the merits and that the balance of hardships tips sharply in the petitioner’s favor.” Leiva- 3 Perez v. Holder, 640 F.3d 962, 970 (9th Cir. 2011) (discussing application of Nken v. 4 Holder, 556 U.S. 418, 444 (2009)). 5 In Thuraissigiam, the Ninth Circuit Court of Appeals held 8 U.S.C. § 1252(e)(2)’s 6 statutory restriction on habeas corpus review violated the Suspension Clause as applied to 7 Thuraissigiam. On that basis, the district court’s initial decision was reversed, and the 8 Ninth Circuit remanded the matter with instructions to exercise jurisdiction and “consider 9 Thuraissigiam’s legal challenges to the procedures leading to his expedited removal order.” 10 917 F.3d at 1119. 11 Similarly, here, Petitioner has raised legal challenges to the process leading to his 12 expedited removal order and alleged circumstances which, if true, would present a 13 substantial case on the merits. This is, of course, without prejudice to Respondents 14 demonstrating the contrary. Because removal would deprive him of the relief he seeks – 15 asylum in the United States – he has also shown that it is probable that he would suffer 16 irreparable harm absent a stay. 17 Lastly, the balance of hardships tips sharply in Petitioner’s favor. A stay will 18 maintain the status quo until the parties have had an opportunity to brief the Petition and 19 will facilitate a considered review of their arguments by the Court and a reasoned decision 20 on the issues presented. 21 Accordingly, IT IS ORDERED: 22 (1) Petitioner’s Motion for Preliminary Injunction and/or Temporary 23 Restraining Order (Doc. 2) is granted insofar as a temporary stay of removal is entered 24 and is otherwise denied without prejudice. 25 (2) Respondents are enjoined from removing Petitioner Virender Singh 26 (A# 215-677-204) from the United States pending further order of this Court. 27 (3) Respondent McHenry is dismissed without prejudice. 28 (4) The Clerk of Court shall email a copy of this Order to the Immigration TRO Distribution List. 2 (5) The Clerk of Court shall serve: (1) a copy of the Summons, (2) the Petition (Doc. 1), and (3) this Order upon the United States Attorney for the District of 4) Arizona by certified mail addressed to the civil process clerk at the office of the United 5 | States Attorney pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. The 6 | Clerk of Court shall also send by certified mail a copy of the Summons, the Petition, and this Order to the United States Attorney General pursuant to Rule 4(i)(1)(B) and to 8 | Respondents Barr, Wolf, and Lucero pursuant to Rule 4(i)(2) of the Federal Rules of Civil 9| Procedure. 10 (6) | Respondents Barr, Wolf, and Lucero shall have 30 days from the date of 11 | service to answer the Petition for Writ of Habeas Corpus (Doc. 1). Respondents shall not file a dispositive motion in place of an answer absent leave of Court. 13 (7) 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 15 | the Petition on the grounds presented in Respondents’ Answer. 16 (8) Petitioner must file a “Notice of Change in Status” with the Clerk of Court within 5 days of any material change in Petitioner’s immigration or custody status. 18 | Petitioner may not include a motion for other relief with the Notice. 19 (9) This matter is referred to Magistrate Judge Michael T. Morrissey pursuant 20 | to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a 21] report and recommendation. 22 Dated this 20th day of April, 2020. 23 Wichad T. gibuadle Michael T. Liburdi 26 United States District Judge 27 28