Borjas-Calix v. Lynch et al

Filing 25

ORDER: IT IS ORDERED the 11 Motion for Leave to File Amended Complaint is GRANTED; Plaintiff shall file his First Amended Complaint for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus (Doc. 11-2) by 5/1/17. Defendants shall file Answer within 10 days after service of the First Amended Complaint. The 8 Motion for Preliminary Injunction is GRANTED. Defendants are hereby ENJOINED from re-detaining Plaintiff based on the ruling of the BIA. Plaintiff's release from custody and the terms of the release as ruled by the IJ remain in effect. (See attached PDF for complete information). Signed by Senior Judge David C Bury on 4/25/17.(BAC)

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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 Jorge Alberto Borjas-Calix, CV-16-685-TUC-DCB 10 11 Plaintiff, 12 13 ORDER vs. Jeff B. Sessions, et al., 14 Defendants. 15 16 17 Before the Court are the First Motion for Preliminary Injunction 18 (Doc. 8) and Motion for Leave to File Amended Complaint (Doc. 11). 19 Oral argument was conducted on March 27, 2017 and the matter was 20 taken under advisement. 21 22 The Court now rules. SUMMARY Plaintiff Jorge Alberto Borjas-Calix is a native and citizen of 23 Honduras who is subject to an order of removal issued by the United 24 States Department of Homeland Security (DHS). He filed a Complaint in 25 federal court seeking Declaratory and Injunctive Relief in accordance 26 with Federal Rules of Civil Procedure 8(a), 57, and 65. Plaintiff was 27 ordered released by an immigration judge (IJ) in Florence, Arizona, 28 pursuant to controlling authority in this Circuit, but the Department 1 of Homeland Security (DHS) appealed the IJ’s decision to the Executive 2 Office for Immigration Review (EOIR), Board of Immigration Appeals 3 (BIA). The BIA reversed the IJ and vacated the IJ’s decision granting 4 Plaintiff’s release on bond. The DHS, Immigration and Customs 5 Enforcement (ICE), Enforcement and Removal Operations (ERO), now seeks 6 to re-detain Plaintiff, which Plaintiff claims will deprive him of his 7 due process right against unlawful deprivation of liberty. 8 9 10 PROCEDURAL BACKGROUND Plaintiff, a citizen of Honduras, first entered the United States without inspection on or about March 16, 1997. On March 20, 1997, an 11 IJ ordered Plaintiff removed from the United States, which resulted in 12 13 14 15 his deportation on March 25, 1997. Between June l6, 2008 and July 19, 2011, the ICE reinstated Plaintiff’s previous order of removal twice and deported him each time. 16 On or about March l, 2013, Plaintiff entered the United States 17 without inspection near Nogales, Arizona. On March 25, 2015, he was 18 taken into ICE custody. 19 returning to Honduras. 20 21 22 23 At that time, he indicated he had no fear of On March 25, 2015, ICE-ERO issued Plaintiff a Form 1-871, Notice of Intent/Decision to Reinstate Prior Order, pursuant to Section 241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5), as an alien who has illegally reentered the United States after being previously removed. 24 This Decision reinstated Plaintiff’s March 25, 1997, order of removal. 25 26 27 28 On or about April 22, 2015, Plaintiff was convicted of Illegal Entry, in violation of Title 8 U.S.C. § 1325(a)(l), and sentenced to 75 days' incarceration. On or about June 6, 2015, Plaintiff returned -2- 1 2 3 to ICE custody at the Florence Detention Center so he could be removed to Honduras. On or about July 21, 2015, an Asylum Pre-Screening Officer found 4 Plaintiff had a reasonable fear of persecution or torture, and 5 referred Plaintiff’s case to an IJ to allow Plaintiff to apply for 6 withholding of removal under the Act and protection under the CAT. 7 8 9 10 On December 2, 2015, Plaintiff filed a motion with the IJ, requesting a custody redetermination hearing. The IJ denied the motion on January 12, 2016, finding that the immigration court lacked jurisdiction. 11 On January 27, 2016, Plaintiff filed a motion to reconsider the 12 13 14 15 16 17 18 IJ’s decision, which was granted on January 28, 2016. On February 9, 2016, the IJ held a custody redetermination hearing and set a $10,000 bond. On February 11, 2016, Plaintiff posted bond for his release from the Florence Detention Center. On February 22, 2016, the Department filed its Notice of Appeal 19 with the BIA. The Department and Plaintiff filed appeal briefs with 20 the BIA. 21 22 23 On September 30, 2016, the BIA issued its decision finding that Plaintiff was not eligible for a custody redetermination hearing, and vacated the IJ’s decision. 24 On October 14, 2016, ICE issued a Notice to Obligor to Deliver 25 26 27 28 Alien, directing the person who posted Plaintiff’s bond to deliver him to ICE on November 18, 2016. On October 24, 2016, Plaintiff filed his Complaint for Declaratory -3- 1 and Injunctive Relief, seeking to enjoin Defendants from proceeding with 2 any further action that would result in Plaintiff being taken into ICE 3 custody or detention. Plaintiff then filed a Motion for Preliminary 4 Injunction and/or Temporary Restraining Order, seeking an order enjoining 5 Defendants from detaining Plaintiff or taking him into custody until the 6 motion for preliminary injunction and/or the Complaint may be 7 adjudicated. 8 9 10 On December 27, 2017, based on a stipulation of the parties, this Court issued a Temporary Restraining Order enjoining Defendants from taking Plaintiff into custody or detaining him until the 11 motion for preliminary injunction is adjudicated. 12 STANDARD OF REVIEW 13 14 15 A. Preliminary Injunction Preliminary injunctions are intended to preserve the relative 16 positions of the parties until a trial on the merits can be held. 17 Sierra On–Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 18 (9th Cir. 1984). This Court should not grant a preliminary injunction 19 unless Plaintiff shows: (1) a strong likelihood of his success on the 20 merits; (2) that he is likely to suffer an irreparable injury absent 21 preliminary relief; (3) the balance of hardships favors him; and (4) 22 the public interest favors a preliminary injunction. Winter v. Natural 23 Res. Def. Council, 555 U.S. 7, 20 (2008). . “To the extent prior cases 24 applying the ‘serious questions’ test have held that a preliminary 25 injunction may issue where the plaintiff shows only that serious 26 questions going to the merits were raised and the balance of hardships 27 tips sharply in the plaintiff's favor, without satisfying the other 28 two prongs, they are superseded by Winter, which requires the -4- 1 plaintiff to make a showing on all four prongs. [Citation omitted.] 2 But the ‘serious questions’ approach survives Winter when applied as 3 part of the four-element Winter test. That is, ‘serious questions 4 going to the merits’ and a balance of hardships that tips sharply 5 towards the plaintiff can support issuance of a preliminary 6 injunction, so long as the plaintiff also shows that there is a 7 likelihood of irreparable injury and that the injunction is in the 8 public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 9 1127, 1134 (9th Cir. 2011). To show harm, Plaintiff must allege that 10 concrete, imminent harm is likely with particularized facts. See 11 Winter, 555 U.S. at 20. This standard reflects the idea that a 12 preliminary injunction is an “extraordinary remedy that may only be 13 awarded upon a clear showing that the plaintiff is entitled to such 14 relief.” Id. at 22. 15 16 17 B. Amend Pleadings Rule 15, Fed.R.Civ.P., provides that a party may amend its 18 pleading as a matter of course within (1) 21 days after serving the 19 pleading or (2) 21 days after the earlier of service of a responsive 20 pleading or service of a Rule 12(b) motion. Fed. R. Civ. P. 15(a)(1). 21 Outside of this timeframe, “a party may amend its pleading only with 22 the opposing party’s written consent or the court’s leave,” though the 23 court “should freely give leave when justice so requires.” Fed. R. 24 25 Civ. P. 15(a)(2). Although leave to amend is not granted automatically, “the rule should be interpreted with ‘extreme 26 liberality.’” Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 27 28 1990) (citation omitted). -5- A court considers five factors in determining whether to grant leave 1 2 to amend: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing 3 party, (4) futility of amendment, and (5) whether plaintiff has 4 previously amended his complaint1.” In re W. States Wholesale Nat. Gas 5 Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013) (quotation omitted). 6 “Not all of the factors merit equal weight. As this circuit and others 7 have held, it is the consideration of prejudice to the opposing party 8 that carries the greatest weight. Prejudice is the touchstone of the 9 10 inquiry under Rule 15(a).” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citation omitted). “Absent 11 prejudice, or a strong showing of any of the remaining [ ] factors, there 12 13 14 exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id., 316 F.3d at 1052 (emphasis in original). DISCUSSION 15 16 17 A. Preliminary Injunction Plaintiff is likely to succeed on the merits of his claim because 18 Ninth Circuit controlling authority unequivocally applies in this 19 instance and requires his release from ICE detention. See Rodriguez v. 20 Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015), cert. granted, 21 136 S.Ct. 2489 (2016); Diouf v. Napolitano (Diouf II), 634 F.3d 1081 (9th 22 23 Cir. 2011); see also Guardado-Quevara v. Lynch, et al., No. CV-16-00800PHX-PGR(JZB). Plaintiff can only be held under either 8 U.S.C. § 1226(a), 24 or 8 U.S.C. § 1231(a). And, under either statute, Ninth Circuit 25 26 controlling authority (e.g., Rodriguez III, Diouf II) unequivocally 27 28 -6- 1 mandates Plaintiff’s release. 1 Plaintiff explained in his motion that he is likely to suffer 2 3 irreparable harm in the absence of preliminary relief,” and that if he 4 is re-detained “he will suffer irreparable harm due to his unlawful 5 deprivation of liberty in violation of due process of law.” The 6 ability to file a petition for writ of habeas corpus does not 7 ameliorate the hardship of physical incarceration in Florence or Eloy, 8 a deprivation of liberty, separation from family and loss of 9 10 employment. The balance of hardships and equities weighs in favor of the issuance of a preliminary injunction. No agent or official of the 11 United States government stands to suffer any conceivable hardship in 12 13 the event an injunction is issued. A primary argument advanced by Defendants is that they have a 14 15 “significant interest in enforcing the statutory framework governing 16 lawful immigration.” That is true and this Court takes that mission 17 seriously. But re-detaining Plaintiff in this fashion goes contrary to 18 the rule of law in this Circuit and this Court has an interest in 19 properly and uniformly applying the law of this Circuit. 20 B. 21 22 23 Amend Complaint Plaintiff moves to amend the Complaint to add various Administrative Procedures Act (APA) provisions, as well as a Petition for Writ of Habeas Corpus. Defendants’ primary objection is directed 24 to the issue of custody and ripeness. 25 26 27 28 In the Ninth Circuit, it is well-established that, for the 1 This Order, granting the Motion to Amend the Complaint and add claims under the APA and habeas corpus, renders moot Defendants’ jurisdiction and sovereign immunity arguments. -7- 1 purposes of this lawsuit, Plaintiff satisfies the “in custody” 2 requirement of 28 U.S.C. § 2241(c). This is especially true because 3 Plaintiff, as an alien in “withholding-only” proceedings, already is 4 subject to reinstatement of a final order of removal that has been 5 temporarily suspended while he completes his Immigration Court case. 6 In Veltmann-Barragan v. Holder, 717 F.3d 1086 (9th Cir. 2013), the 7 Ninth Circuit explained: 8 9 10 11 12 13 14 15 16 17 The Supreme Court has defined the phrase “in custody” to include both physical detention and “other restraints on a man’s liberty, restraints not shared by the public generally.” For example, individuals are “in custody” for purposes of § 2241 if they are “subject to a final order of deportation.” Veltmann-Barragan, 717 F.3d at 1088 (quoting Jones v. Cunningham, 371 U.S. 236, 240, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir. 1995)). See also Mendia v. Garcia, 165 F. Supp. 3d 861, 884 (N.D. Cal. 2016). Also highly relevant is the fact that, in Veltmann-Barragan, the Ninth Circuit concluded that the determining factor against finding that the petitioner in that case was “in custody” was the fact that, even 18 though the DHS could have reinstated her former removal order, they had 19 20 21 22 23 not yet done so. In contrast, in this case, DHS has already reinstated Plaintiff’s prior detention order—it has just not yet been executed. Upon review, the Motion to Amend the Complaint will be granted. Fed.R.Civ.P. 15(a). RULING 24 25 HAVING CONSIDERED the briefs and oral arguments of the parties, the 26 Court rules, as follows: 27 IT IS ORDERED that: 28 -8- 1 1. The Motion for Leave to File Amended Complaint (Doc. 11) is 2 GRANTED, finding that Petitioner is “in custody” for the purpose 3 of demonstrating standing to bring a habeas corpus claim pursuant 4 to 28 U.S.C. § 2241(c). 5 Complaint for Declaratory and Injunctive Relief and Petition for 6 Writ of Habeas Corpus (Doc. 11-2) by May 1, 2017. Defendants are 7 directed to file an Answer within ten (10) days after service of 8 the First Amended Complaint; and, 9 2. The Motion for Preliminary Injunction (Doc. 8) is GRANTED, 10 Plaintiff shall file his First Amended finding that Plaintiff is likely to succeed on the merits 11 concerning his request for a Declaratory Judgment: controlling 12 13 14 precedent in this Circuit supports the decision of the Immigration Judge (IJ) who released Plaintiff on bond and does 15 not support the decision of the Board of Immigration Appeals 16 (BIA) which reversed the IJ. 17 re-detaining Plaintiff based on the ruling of the BIA. 18 Plaintiff’s release from custody and the terms of the release as 19 ruled by the IJ remain in effect. 20 Dated this 25th day of April, 2017. Defendants are hereby ENJOINED from 21 22 23 24 Honorable David C. Bury United States District Judge 25 26 27 28 -9-

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