Silva v. Lynch et al

Filing 9

ORDER by Judge Lucy H. Koh denying 2 Motion for TRO. (lhklc1, COURT STAFF) (Filed on 9/23/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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JOEL E SILVA,
Petitioner,

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ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER

v.

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Case No. 16-CV-05435-LHK

Re: Dkt. No. 2
SARA SANDANA, et al.,
Defendants.

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On September 22, 2016, Joel Empleo Silva (“Petitioner”) filed a Petition for Habeas

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Corpus and a Motion for a Temporary Restraining Order. ECF No. 1; ECF No. 2 (collectively

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referred to as “Pet.”). This case was assigned to Magistrate Judge Corley on September 23, 2016

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and reassigned to the undersigned judge at 12:49 p.m. on September 23, 2016. Before the court is

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Petitioner’s Motion for a Temporary Restraining Order. Id.

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I.

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FACTUAL & PROCEDURAL BACKGROUND
On August 28, 2015, an Immigration Judge (“IJ”) ordered Petitioner’s removal from the

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United States. Pet. ¶ 13. Petitioner was a legal permanent resident convicted four times of petty

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theft. Id. The IJ found Petitioner removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having

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committed crimes involving moral turpitude. Id.

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Case No. 16-CV-05435-LHK
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

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On December 21, 2015, the Board of Immigration Appeals (“BIA”) dismissed Petitioner’s

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appeal. Id. ¶ 15. At a time unspecified by the Petitioner, the BIA refused to release Petitioner on

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bond because the BIA found that Petitioner was a danger to “property.” Id. ¶ 6.
On January 13, 2016, Petitioner petitioned for review of the BIA’s decision to the Ninth

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Circuit Court of Appeals. Id. ¶ 16. On June 10, 2016, the Ninth Circuit panel hearing the case

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granted Petitioner’s motion for stay of removal. Id. Petitioner’s appeal is currently pending. Id.

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at 4.
During Petitioner’s removal proceedings and during the pendency of his appeal, he has

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been a detainee of U.S. Immigration and Customs Enforcement (“ICE”). On the morning of

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September 22, 2016, Petitioner’s counsel learned that, on September 22, 2016 at 1:00 p.m.,

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United States District Court
Northern District of California

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Petitioner would be transferred from the West County Detention Facility in Richmond, California

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to a detention facility in Louisiana. Id. at 17.

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The same day, Petitioner filed a Petition for Habeas Corpus and Motion for a Temporary

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Restraining Order. Petitioner’s petition seeks two forms of relief. First, Petitioner requests that

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the court enjoin ICE from transferring Petitioner to Lousiana or, alternatively, order ICE to return

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Petitioner to the West County Detention Facility in Richmond, California. Pet. ¶ 22–23. Second,

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Petitioner requests that the court order Petitioner’s release from ICE custody. Pet. ¶ 24. Petitioner

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moves for a temporary restraining order on both forms of relief. Pet. at 1–2.

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II.

LEGAL STANDARD

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The standard for issuing a temporary restraining order is identical to the standard for

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issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832,

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839 n.7 (9th Cir. 2001). Preliminary relief is an “extraordinary remedy that may only be awarded

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upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council,

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Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish [1] that

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he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence

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of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is

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in the public interest.” Id. at 20. “[T]he decision whether to grant or deny injunctive relief rests

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Case No. 16-CV-05435-LHK
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

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within the equitable discretion of the district courts,” and “such discretion must be exercised

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consistent with traditional principles of equity.” eBay Inc. v. MercExchange, L.L.C., 547 U.S.

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388, 394 (2006).

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III.

DISCUSSION

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As discussed above, Petitioner seeks two forms of relief in the instant motion for a

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temporary restraining order. First, Petitioner requests that the court enjoin ICE from transferring

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Petitioner to Louisiana or order ICE to return Petitioner to Richmond, California. Pet. ¶ 22–23.

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Second, Petitioner requests that the court order Petitioner’s release from ICE custody. Pet. ¶ 24.

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The Court addresses each of these forms of relief in turn.

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With respect to Petitioner’s first claim, Petitioner fails to establish a likelihood of success

United States District Court
Northern District of California

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on the merits. In Petitioner’s motion for a temporary restraining order and petition for habeas

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corpus, Petitioner cites to no legal authority showing that Petitioner has a right to a specific

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detention location. Therefore, Petitioner fails to establish that he is likely to succeed on the merits

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with respect to Petitioner’s transfer by ICE, and the Court need not reach the other Winter factors.

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See Kuznetsov v. Clark, 2007 WL 1655233 (D. Wash June 6, 2007) (denying petitioner’s motion

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for temporary restraining order seeking to prevent a transfer from an ICE facility in Washington to

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a “prison in Alabama” because petitioner “provide[d] no argument or legal authority showing that

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the Court has any basis or authority to enter such relief”); Rosales-Leon v. Chertoff, 2007 WL

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1655237 (D. Wash. June 6, 2007) (same).

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With respect to Petitioner’s second claim, Petitioner has also failed to show a likelihood of

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success on the merits. Petitioner asserts that the BIA denied Petitioner’s release bond based on

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Petitioner’s four prior petty theft convictions. Pet. ¶ 20. Petitioner asserts that the BIA’s denial

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of bond is in violation of Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), which holds that the

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government must show that the detainee is a “flight risk or a danger to the community” by clear

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and convincing evidence. Id. at 1203. Singh also notes that, in some cases, denials of bond based

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on criminal history alone “may not be warranted.” Id. at 1206. Petitioner’s arguments do not

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establish a likelihood of success on the merits. First, while the table of contents in Petitioner’s

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Case No. 16-CV-05435-LHK
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

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petition lists the “BIA decision denying bond” as Exhibit C, the Petitioner fails to attach that

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decision to the petition. See Pet. at 10. Second, Petitioner fails to cite authority or explain why

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Singh’s conditional statement that a denial of bond may not be warranted under some

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circumstances if based solely on prior petty theft convictions forbids the BIA from basing its

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decision on prior petty theft convictions in all circumstances, or in Petitioner’s case in particular.

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Additionally, Petitioner fails to cite authority or explain why the BIA’s use of Petitioner’s criminal

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record as the basis for its decision denying release shows that the BIA did not apply the required

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clear and convincing evidence standard. Thus, Plaintiff fails to establish a likelihood of success

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on the merits on this claim as well, and the Court need not reach the other Winter factors.

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United States District Court
Northern District of California

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IV.

CONCLUSION
For the foregoing reasons, Petitioner’s motion for a temporary restraining order is

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DENIED.

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IT IS SO ORDERED.

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Dated: September 23, 2016
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 16-CV-05435-LHK
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER