Salazar-Leyva v. Sessions et al

Filing 20

ORDER by Judge Edward M. Chen Granting 2 Petitioner's Ex Parte Application for Temporary Restraining Order. (emcsec, COURT STAFF) (Filed on 7/28/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 CHRISTIAN FELIPE SALAZAR-LEYVA, 7 Plaintiff, 8 ORDER GRANTING PETITIONER'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER v. 9 10 JEFFERSON B. SESSIONS, et al., Docket No. 2 Defendants. 11 12 For the Northern District of California United States District Court Case No. 17-cv-04213-EMC Petitioner Christian Felipe Salazar-Leyva has filed a habeas petition pursuant to 28 U.S.C. 13 14 § 2241. In his petition, he argues that he is entitled to habeas relief because the Board of 15 Immigration Appeals violated the Constitution and/or other federal law by ordering his detention 16 without bond pending removal proceedings.1 Currently pending before the Court is Mr. Salazar‟s 17 motion for a temporary restraining order (“TRO”). The Court held a hearing on Mr. Salazar‟s 18 motion on July 27, 2017. At the hearing, the Court GRANTED the motion. This order 19 memorializes the Court‟s oral ruling and provides additional analysis, as necessary. I. 20 21 A. DISCUSSION Legal Standard The standard for issuing a temporary restraining order is essentially the same as that for 22 23 issuing a preliminary injunction. See Missud v. State of Cal., No. C-14-1503 EMC, 2014 U.S. 24 Dist. LEXIS 73376, at *1 (N.D. Cal. May 28, 2014). The moving party must demonstrate that: (1) 25 he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of 26 relief; (3) the balance of equity tips in its favor; and (4) the injunction is in the public interest. See 27 1 28 At the time that Mr. Salazar filed his petition, he was not in custody but, by the time of the hearing, he had surrendered to government authorities. 1 Beaty v. Brewer, 649 F.3d 1071, 1072 (9th Cir. 2011) (citing Winter v. Natural Res. Def. Council, 2 Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008)). The Ninth Circuit has adopted a sliding scale approach wherein the robustness of the 3 4 requisite showing on the merits varies with the balance of hardships; temporary injunctive relief 5 may be issued where, e.g., the likelihood of success is such that serious questions going to the 6 merits are raised and the balance of hardships tips sharply in the plaintiff‟s favor. See Alliance 7 For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). 8 B. Irreparable Harm and Balance of Hardships are ongoing,2 then he will not be present to bond with his soon-to-be-born child and co-parent his 11 other children (both biological and nonbiological). Cf. Andreiu v. Ashcroft, 253 F.3d 477, 484 12 For the Northern District of California Mr. Salazar claims irreparable injury because, if he is detained while removal proceedings 10 United States District Court 9 (9th Cir. 2001) (en banc) (where asylum applicant moved for a stay of removal pending review of 13 his asylum application, stating that “[o]ther important factors include separation from family 14 members”). In response, the government did not contest this injury claimed by Mr. Salazar. The 15 16 government simply argued that there was a public interest in keeping an individual who had been 17 adjudicated a danger to the community confined. The government disavowed that there was 18 anything unique about Mr. Salazar or his situation to weigh specially in favor of confinement. 19 The Court finds that Mr. Salazar has adequately established irreparable harm in the 20 absence of a TRO and that the balance of hardships weighs in his favor. Whether Mr. Salazar is in 21 fact a danger to the community is the underlying question; the immigration judge (“IJ”) found that 22 he was not, but the BIA disagreed so at the very least that proposition is debatable. Moreover, 23 there is nothing to indicate that Mr. Salazar is a flight risk should he be released from custody 24 temporarily. The IJ found he was not and the government does not contend otherwise. Mr. 25 Salazar has been in the United States since 1989, is raising several children, and is due to become 26 a father again soon. In addition, there is no indication that, while Mr. Salazar was free from 27 28 2 At the hearing, Mr. Salazar represented that his next removal hearing is not until October 2018. 2 1 detention on bond, there were any problems. Given these circumstances, the hardship balance tips 2 sharply in Mr. Salazar‟s favor. 3 C. 4 Likelihood of Success on the Merits/Serious Questions Going to the Merits Because the balance of hardships tips sharply in favor of Mr. Salazar, he need only show 5 serious questions going to the merits to be entitled to temporary injunctive relief. For purposes of 6 the TRO, Mr. Salazar argues that there are serious questions going to the merits on two of the four 7 claims asserted in his habeas petition. The Court agrees. 8 9 In his first claim, Mr. Salazar argues that the BIA violated federal law by engaging in independent fact finding in violation of the Code of Federal Regulations. See 8 C.F.R. § findings on credibility, for clear error and that the BIA will not engage in factfinding in the course 12 For the Northern District of California 1003.1(d)(3)(i), (iv) (providing that the BIA will review facts determined by the IJ, including 11 United States District Court 10 of deciding appeals); see also Zumel v. Lynch, 803 F.3d 463, 475 (9th Cir. 2015) (stating that “the 13 BIA may not make its own findings or rely „on its own interpretation of the facts‟[;] [i]f the IJ has 14 left certain factual disputes unresolved and the BIA believes that it cannot decide the case unless 15 they are resolved, it cannot make its own factual findings but instead „must remand to the IJ for 16 further factual findings‟”). More specifically, Mr. Salazar contends that the BIA made 17 independent findings of fact that he had failed to accept responsibility for two domestic violence 18 incidents that took place in 2004 and 2015, respectively. See ER 10 (BIA decision) (stating that 19 the IJ “erred by discounting the fact that the respondent had minimized his responsibility and 20 characterized himself as the non-aggressor in the domestic violence incidents”). The IJ made no 21 express findings regarding Mr. Salazar‟s failure to accept responsibility. Even if the IJ implicitly 22 made findings of fact on the 2015 incident, see ER 17 (IJ decision) (noting that testimony of Mr. 23 Salazar and his wife were similar with respect to the 2015 incident – i.e., that physical contact was 24 accidental – and seemingly crediting that testimony), the government has not pointed to any 25 evidence (at least not at this juncture) that the IJ made findings of fact (either explicit or implicit) 26 on the 2004 incident. For example, nothing in the IJ‟s written order indicates that he found Mr. 27 Salazar credible on his claim that he was not the aggressor in the 2004 incident. The Court 28 therefore finds serious questions going to the merits on Mr. Salazar‟s first claim for relief. 3 1 The Court likewise finds serious questions going to the merits on Mr. Salazar‟s second 2 claim for relief. Here, Mr. Salazar argues that, at the time of the bond determination before the IJ, 3 he could have argued against removability (the ultimate merits) based on the domestic violence 4 waiver of 8 U.S.C. § 1227(a)(7)(A) and, therefore, it was improper for the BIA to, in effect, punish 5 him (or at least subject him to a heightened risk of detention) for presenting evidence that he was 6 not the aggressor in the domestic violence incidents by saying that, for purposes of bond 7 determination, this showed he lacked acceptance of responsibility. As the Court noted at the 8 hearing, Mr. Salazar‟s argument is not without some appeal, particularly given that an analogy 9 could be made to the Bail Reform Act of 1984, see 18 U.S.C. § 3141 et seq. Under the Bail released or detained pending trial is the weight of the evidence against the defendant. See id. § 12 For the Northern District of California Reform Act, one factor for a court to consider in deciding whether a criminal defendant should be 11 United States District Court 10 3142(g)(2). But this factor is generally “considered the lease important” because “„the [c]ourt‟s 13 function in examining the weight of the evidence [at that stage] is not to determine guilt or 14 innocence.‟” United States v. Parker, 65 F. Supp. 3d 358, 365 (W.D.N.Y. 2014); see also United 15 States v. Hir, 517 F.3d 1081, 1090 (9th Cir. 2008) (stating that the “weight of the evidence” factor 16 is the least important because “„the statute neither requires nor permits a pretrial determination that 17 a person is guilty‟”). An analogous argument could be made here: namely, it is not appropriate to 18 give substantial weight at the bond determination stage to the fact that the alien is raising a merits- 19 based waiver argument under § 1227(a)(7)(A) and rendering a determination on that claim. II. 20 21 22 23 CONCLUSION For the foregoing reasons, the Court concludes that Mr. Salazar has adequately established that he is entitled to a TRO. The terms of the TRO are as follows. 1. Respondents, including their employees and agents, and others acting in concert 24 with them are hereby enjoined from detaining Mr. Salazar pursuant to the decision of the BIA 25 dated June 2, 2017. 26 2. The decision of the IJ dated December 7, 2016, ordering Mr. Salazar released upon 27 payment of a $6,000 bond, remains in full force and effect, including all conditions contained 28 therein. 4 3. 1 2 Unless otherwise ordered, the TRO shall expire at the conclusion of the preliminary injunction hearing, which is currently set for August 31, 2017, at 1:30 p.m.3 This order disposes of Docket No. 2. 3 4 IT IS SO ORDERED. 5 6 7 Dated: July 28, 2017 ______________________________________ EDWARD M. CHEN United States District Judge 8 9 10 12 For the Northern District of California United States District Court 11 13 14 15 16 17 18 19 20 21 22 23 24 25 3 26 27 28 Although a TRO typically lasts for only 14 days, there is good cause to extend the term of the TRO here – i.e., to enable full and complete briefing on the preliminary injunction motion. There is no apparent prejudice to the government because, as noted above, Mr. Salazar does not appear to be a flight risk and he has been released on bond without any problems for many months. Moreover, the government did not, at the hearing, object to the term of the TRO. Indeed, it was the government who asked for more time for briefing on the preliminary injunction motion. 5

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