Suazo v. Barr

• Court: District Court, S.D. California
• Decided: October 1, 2019
• Docket: 3:19-cv-01882
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NISMEL M. FUNES SUAZO Case No.: 19cv1882-LAB (MSB)

12 Petitioner, ORDER DENYING WITHOUT 13 v. PREJUDICE MOTION FOR TEMPORARY RESTRAINING 14 KEVIN K. MCALEENAN, Acting ORDER; AND Secretary of U.S. DHS and 15 Commissioner of U.S. DHS, et al. ORDER REQUIRING 16 Respondents. PETITIONER TO SUPPLEMENT 17 OR AMEND

19 On September 30, Petitioner Nismel Michell Funes Suazo1 (“Funes”) filed a 20 petition for writ of habeas corpus under 28 U.S.C. § 2241, and along with it a 21 motion for a temporary restraining order (“TRO”). 22 Respondents apparently have no notice of the TRO motion, and the motion 23 does not explain why a TRO should be granted before they can respond. For this 24 reason alone, the motion is subject to denial. See Fed. R. Civ. P. 65(b)(1). The 25

26 27 1 The Petition notes that in some Department of Homeland Security documents, Funes’ second surname is misspelled as “Sauzo.” The Petition refers to her as 28 1 motion says Funes believes her removal is imminent, though it does not say how 2 soon it might be. Under 28 U.S.C. 2243, unless it appears a petitioner is entitled 3 to no relief, the Court must either grant the writ or issue to Respondents an order 4 to show cause. But this provision does not apply to motions for preliminary 5 injunctive relief, such as TROs. Only in a narrow range of cases may a court issue 6 a TRO before the opposing party has an opportunity to be heard. Granny Goose 7 Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 438–39 (1974). 8 The TRO motion does not address the standard for issuance of a TRO, and 9 the relevant factors appear to be incompletely addressed. See Alliance for Wild 10 Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017) (citing Winter v. Natural Res. 11 Def. Council, Inc., 555 U.S. 7 (2008)) (discussing standards for preliminary 12 injunctive relief). Under either of the two tests used by the Ninth Circuit, merits are 13 a key factor, and neither the petition nor the TRO motion adequately address them. 14 Under 8 U.S.C. § 1252(e)(e), judicial review of determinations under 15 8 U.S.C. § 1225(b)(1) (including “credible fear” determinations in asylum 16 applications) is limited to three issues, none of which apply here. Funes cites 17 Thuraissigiam v. U.S. Dept. of Homeland Security, 917 F.3d 1097 (9th Cir. 2019) 18 as holding that the Court has jurisdiction to review “credible fear” determinations 19 made by an immigration judge. This is not quite correct, although the opinion does 20 hold that the limitations on judicial review under § 1252(e) may violate the 21 Constitution’s Suspension Clause if they deprive a petitioner of a meaningful 22 opportunity to demonstrate that she is being held in violation of applicable federal 23 law. Thuraissigiam at 1100, 1119 (“[W]e hold that § 1252(e)(2) violates the 24 Suspension Clause as applied to Thuraissigiam, although we do not profess to 25 decide in this opinion what right or rights Thuraissigiam may vindicate via use of 26 the writ.”) 27 In that case, the petitioner claimed that DHS deprived him of both a 28 meaningful right to apply for asylum and other relief, and violated his rights under 1 the Due Process Clause of the Fifth Amendment. The opinion makes clear that 2 district courts have jurisdiction at least to consider claims that they were deprived 3 of a meaningful opportunity to present their claims and have them adjudicated. But 4 it does not appear to provide for judicial review of an immigration judge’s 5 discretionary determinations. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 6 (9th Cir. 2005). 7 Funes claims that her Due Process rights were violated in several ways. 8 First, she says that on March 22 she was interviewed in Spanish with the aid of an 9 interpreter by an asylum officer. She believed the officer was antagonistic and did 10 not evaluate her statements objectively. She attributes this to a breakdown in 11 communications and the officer’s frustration with the computer he was using. At 12 the close of the hearing, she said she was told to sign the papers, which were in 13 English, and that she did not check the box indicating she did not want an 14 immigration judge to review the asylum officer’s decision. On the form she 15 attaches, the box declining immigration judge review is checked. She does not 16 say whether she checked the box requesting review by an immigration judge, or 17 whether she left both boxes blank. While she says she wanted immigration judge 18 review, she does not say whether she requested it by checking the box. 19 Funes claims that review by an immigration judge should have taken place 20 within seven days, but that instead it was improperly delayed by five months, until 21 September 9. She argues that review by the immigration judge within seven days 22 is mandatory under 8 U.S.C. § 1225(b)(1)(B)(iii)(III), though in fact it is only 23 mandatory if the person seeking asylum requests it. Because Funes does not say 24 whether she requested it, and because the form she attaches does not suggest 25 that she requested it, there is no basis for determining that this provision was 26 violated. But even if it was violated, Funes does not show how a late review of the 27 “credible fear” determination prevented her from obtaining meaningful review of 28 her claims. 1 Funes also claims the immigration judge violated her Due Process rights by 2 ||declining to consider explanations and evidence clarifying statements that the 3 |}asylum officer had found inconsistent. Neither the petition nor the motion 4 ||adequately explain why this amounted to a Due Process violation. The petition 5 || gives only a brief explanation (Pet., 4 15), and the motion does not add anything. 6 ||Not every failure to receive or consider evidence amounts to a Due Process 7 || violation. See, e.g., Ghafar v. Holder, 321 Fed. Appx. 711, 712-13 (9 Cir. 2009) 8 || (citing Ladha v. INS, 215 F.3d 889, 904 (9th Cir. 2000)). 9 Funes is also seeking relief separately, and says she has retained separate 10 || counsel to seek a re-interview with the asylum officer. (Pet., 17.) She must keep 11 ||the Court apprised of the status of those efforts. In the event of any development 12 (including those resulting from those efforts and those resulting from her detention 13 |/status) that might affect the need for or availability of relief, or the Court’s 14 jurisdiction, she must promptly file a notice informing the Court of the development 15 its significance. 16 The motion for a TRO is DENIED WITHOUT PREJUDICE. As it stands now, 17 petition would be subject to denial. Within 21 calendar days of the date this 18 || order is issued, Funes may file either a supplemental brief adequately explaining 19 ||her claims, or an amended petition. After doing so, she may renew her motion for 20 TRO or preliminary injunction, which should comply with Fed. R. Civ. P. 65 as 21 || well as this Chambers’ standing order, { 4. 22 23 IT IS SO ORDERED. 24 ||Dated: October 1, 2019 25 ‘yu A lA, Wy 26 Honorable Larry Alan Burns 27 Chief United States District Judge 28