Mendez-Cruz v. Lynch et al

Filing 18

ORDER - IT IS ORDERED withdrawing the reference to the Magistrate Judge and granting Petitioner's Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 10 ). Within 20 days, Respondents must provide Petitioner with a hear ing before an Immigration Judge with the power to grant him release on bond if the Immigration Judge determines that he qualifies for release under applicable law. IT IS FURTHER ORDERED that within 5 days of Petitioner's forthcoming bond hearing, the parties must provide a joint status report to the Court indicating what remaining proceedings are necessary. (See document for further details). Signed by Judge G Murray Snow on 2/17/17. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eliseo Mendez-Cruz, Petitioner, 10 11 ORDER v. 12 No. CV-16-04416-PHX-GMS (DMF) Loretta E Lynch, et al., 13 Respondents. 14 15 Before the Court is Petitioner’s Motion for Temporary Restraining Order and/or 16 Preliminary Injunction (Doc. 10) seeking an order enjoining his further detention without 17 being provided with a fair bond hearing. The Court heard oral argument on the motion 18 on Friday, February 17, 2017. After consideration of the parties’ briefs and argument, the 19 Court grants the Motion. The underlying Petition for Writ of Habeas Corpus will remain 20 pending before the Magistrate Judge for further proceedings and the parties will be 21 required to file a joint status report following Petitioner’s bond hearing. 22 I. Background 23 Petitioner is a native and citizen of Guatemala. He entered the United States on 24 July 24, 2015, and was removed in August 2015. Petitioner re-entered the United States 25 again on December 26, 2015, was removed for the second time in January 2016, and 26 most recently re-entered the United States in March 2016. He was prosecuted for illegal 27 re-entry after deportation and his prior removal order was reinstated. After Petitioner 28 served his 30-day sentence stemming from his illegal re-entry conviction, he expressed a 1 fear of returning to Guatemala, which resulted in his referral for a reasonable fear 2 interview and a suspension of the execution of his removal order. 3 Petitioner made a showing of reasonable fear if returned to Guatemala and was 4 referred to immigration proceedings for Withholding of Removal and relief under the 5 Convention Against Torture. 6 scheduled for May 2017. While Petitioner’s immigration proceedings were ongoing, he 7 sought a custody redetermination hearing, which was denied by the Immigration Judge 8 for lack of jurisdiction, and is currently on appeal before the BIA. Petitioner has been 9 detained without a bond hearing since March 27, 2016—or nearly 11 months. Petitioner’s hearing on the merits of these claims is 10 In his underlying Petition for Writ of Habeas Corpus, Petitioner argues that his 11 lengthy detention without bond is unlawful in this Circuit. He seeks a declaration that his 12 current detention without an appropriate bond hearing is unlawful and an order directing 13 Respondents to grant him a bond hearing before an IJ, with the burden on the government 14 to show that he is either a flight risk or a danger to society. 15 II. Motion for Preliminary Injunction 16 A. Standard 17 “‘[A] preliminary injunction is an extraordinary and drastic remedy, one that 18 should not be granted unless the movant, by a clear showing, carries the burden of 19 persuasion.’” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 20 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129– 21 130 (2d ed. 1995)). To obtain a preliminary injunction, the moving party must show 22 “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in 23 the absence of preliminary relief, that the balance of equities tips in his favor, and that an 24 injunction is in the public interest.” Winter v. Natural Resources Def. Council, Inc., 555 25 U.S. 7, 20 (2008); Am. Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 26 (9th Cir. 2009). 27 /// 28 /// -2- 1 The Ninth Circuit’s “serious questions” version of the sliding scale test for 2 preliminary injunctions remains viable after the Supreme Court’s decision in Winter. 3 Alliance for the Wild Rockies v. Cottrell 632 F. 3d 1127, 1134 (9th Cir. 2011). Under that 4 test, a preliminary injunction is appropriate when a plaintiff demonstrates that “‘serious 5 questions going to the merits were raised and the balance of hardships tips sharply in the 6 plaintiff’s favor.’” Id. at 1134-35 (quoting Lands Council v. McNair, 537 F.3d 981, 987 7 (9th Cir. 2008) (en banc)). The movant must also satisfy the other two Winter factors— 8 likelihood of irreparable harm and that an injunction is in the public interest. Id. With 9 respect to the irreparable harm prong, Winter specifically rejected the Ninth Circuit’s 10 “possibility of irreparable injury” standard. Stormans, Inc. v. Selecky 586 F.3d 1109, 11 1127 (9th Cir. 2009). 12 “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 13 555 U.S. at 22. The Court explained that “[i]ssuing a preliminary injunction based only 14 on a possibility of irreparable harm is inconsistent with our characterization of injunctive 15 relief as an extraordinary remedy that may only be awarded upon a clear showing that the 16 plaintiff is entitled to such relief.” Id. Under Winter, a party seeking preliminary relief must 17 Additionally, because Petitioner seeks a mandatory injunction—an injunction 18 altering the status quo—a “heightened standard” applies. Katie A. ex rel. Ludin v. Los 19 Angeles County, 481 F.3d 1150, 1156 (9th Cir. 2007). 20 “‘particularly disfavored’” and a “district court should deny such relief ‘unless the facts 21 and law clearly favor the moving party.’” Stanley v. University of Southern California, 22 13 F.3d 1313, 1320 (9th Cir. 1994) (quoting Anderson v. United States, 612 F.2d 1112, 23 1114 (9th Cir. 1979). 24 25 B. A mandatory injunction is Likelihood of Success on the Merits 1. Exhaustion 26 Respondents’ initial argument against relief is that Petitioner has not fully 27 exhausted his administrative remedies, and the Court should decline to entertain his 28 petition at this time. But exhaustion is a prudential rather than jurisdictional requirement. -3- 1 Singh v. Holder, 638 F.3d 1196, 1203 n. 3 (9th Cir. 2011). Courts may require prudential 2 exhaustion if (1) agency expertise makes agency consideration necessary to generate a 3 proper record and reach a proper decision; (2) relaxation of the requirement would 4 encourage the deliberate bypass of the administrative scheme; or (3) administrative 5 review is likely to allow the agency to correct its own mistakes and to preclude the need 6 for judicial review. Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir.2007). Even if these 7 factors weigh in favor of prudential exhaustion, waiver of exhaustion may be appropriate 8 “where administrative remedies are inadequate or not efficacious, pursuit of 9 administrative remedies would be a futile gesture, irreparable injury will result, or the 10 administrative proceedings would be void.” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th 11 Cir.2004) (citation and quotation marks omitted). 12 timeframe within which the BIA must rule, and the Court finds that Petitioner is entitled 13 to a bond hearing, it will decline to require prudential exhaustion. 14 2. Because there is no definitive Detention Under 8 U.S.C. § § 1226(a) or 1231(a) 15 Petitioner asserts an entitlement to a bond hearing whether his detention arises 16 under 8 U.S.C. § 1226(a) or 8 U.S.C. § 1231(a). While § 1226(c) controls the detention 17 of certain criminal aliens during the pendency of their removal hearings, § 1231(a) 18 controls the detention of removable aliens “during” and “beyond” “the [statutory] 19 removal period.” 20 During withholding proceedings, the IJ may determine only if Petitioner should be 21 granted withholding or deferral of removal. 8 C.F.R. § 1208.2(c)(3)(i). “During such 22 proceedings, all parties are prohibited from raising or considering any other issues, 23 including but not limited to issues of admissibility, deportability, eligibility for waivers, 24 and eligibility for any other form of relief.” Id. 25 Nothing about a withholding-only proceeding allows the Petitioner to attack or 26 relitigate the finality of his underlying removal order. His detention, thus, does not arise 27 pursuant to § 1226(a). 28 detention under Section 1231) prior to expressing a fear of torture, and he will have a “If Petitioner had a final order of removal (and was subject to -4- 1 final order of removal (and will be subject to detention under Section 1231) after his 2 withholding proceedings are completed (no matter what the outcome is), I cannot see 3 how his detention status should change as a matter of law during his withholding 4 proceedings. Such a transitory appearance of new rights vis-a-vis an alien’s ability to 5 obtain bond makes no legal sense.” Reyes v. Lynch, No. 15-CV-00442-MEH, 2015 WL 6 5081597, at *4 (D. Colo. Aug. 28, 2015). The Court therefore finds that Petitioner’s 7 detention arises under 8 U.S.C. § 1231(a). 8 Diouf v. Napolitano, 634 F.3d 1081, 1085 (9th Cir. 2011) (Diouf II), expressly 9 applies “to aliens who have exhausted all direct and collateral review of their removal 10 orders but who, for one reason or another, have not yet been removed from the United 11 States.” 12 affects the finality of his removal order. Thus, Petitioner’s detention is governed by 13 Diouf II. Nor does Diouf II conflict with the Supreme Court’s decision in Zadvydas v. 14 Davis, 533 U.S. 671 (2001), because each decision provides a different remedy and the 15 decisions work in harmony. See Olivera-Julio v. Asher, No. C14-1312-RSM, 2014 WL 16 6387351, at *2 (W.D. Wash. Nov. 14, 2014) (“After this six-month period, an alien is 17 entitled to a bond hearing if removal is not imminent, Diouf v. Napolitano, 634 F.3d 18 1081, 1091–92, 1092 n. 13 (9th Cir. 2011), or conditional release if the alien can 19 demonstrate that there is ‘no significant likelihood of removal in the reasonably 20 foreseeable future,’ Zadvydas, 533 U.S. at 701.”). As Respondents argue, nothing about Petitioner’s withholding proceedings 21 Because entitlement to a bond hearing after 6 months is mandated by Ninth Circuit 22 precedent, the Court agrees with Petitioner that granting the request for injunctive relief is 23 maintaining the status quo as directed by the court of appeals. 24 C. 25 When civil detention of an alien “crosses the six-month threshold and release or 26 removal is not imminent, the private interests at stake are profound. Furthermore, the 27 risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral 28 decisionmaker is substantial.” Diouf, 634 F.3d at 1091–92. Because Petitioner has now Likelihood of Irreparable Injury -5- 1 been detained for nearly one year without a determination by an IJ that he is a flight risk 2 or a danger to the community, he has established a likelihood of irreparable injury. 3 D. 4 Petitioner argues that the balance of hardship tips in his favor because his 5 continued detention without being provided a fair bond hearing is unlawful. Because 6 granting a preliminary injunction will not automatically result in Petitioner’s release, and 7 there is no burden to Respondents in providing a fair bond hearing, the Court finds that 8 the balance of hardships and the public interest favor the granting of a preliminary 9 injunction. Because the Court directs only that an appropriate bond hearing be held, Balance of Hardships and the Public Interest 10 Plaintiff is not required to post bond related to this injunction. 11 III. Conclusion 12 The Court finds that Petitioner is likely to succeed on the merits concerning his 13 right to a bond hearing, that he is likely to suffer irreparable harm in the absence of a 14 preliminary injunction, that the balance of hardships tips in his favor, and that granting 15 him a bond hearing is in the public interest. 16 Temporary Restraining Order and/or Preliminary Injunction (Doc. 10) is granted. Accordingly, Petitioner’s Motion for 17 IT IS ORDERED withdrawing the reference to the Magistrate Judge and 18 granting Petitioner’s Motion for Temporary Restraining Order and/or Preliminary 19 Injunction (Doc. 10). Within 20 days, Respondents must provide Petitioner with a 20 hearing before an Immigration Judge with the power to grant him release on bond if the 21 Immigration Judge determines that he qualifies for release under applicable law. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// -6- 1 IT IS FURTHER ORDERED that within 5 days of Petitioner’s forthcoming 2 bond hearing, the parties must provide a joint status report to the Court indicating what 3 remaining proceedings are necessary. 4 Dated this 17th day of February, 2017. 5 6 7 Honorable G. Murray Snow United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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