Hernandez-Ceren v. Wolf et al

Filing 8

ORDER denying #3 Motion for Emergency Writ of Habeas Corpus, or alternatively, for a Temporary Restraining Order Staying His Removal. Defendants-Respondents shall file a response by 6/19/2020, and Plaintiff-Petitioner shall have seven (7) days from the filing of such response to file a reply. Entered by Judge Raymond P. Moore on 6/6/2020. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 1:20-cv-01628-RM
HUGO HERNANDEZ-CEREN,
Plaintiff-Petitioner,
v.
CHAD WOLF, in his official capacity as Acting Secretary of Homeland Security,
WILLIAM BARR, in his capacity as Attorney General of the United States,
MATTHEW ALBENCE, in his official capacity as Acting Director, U.S. Immigration and
Customs Enforcement, and
KENNETH CUCCINELLI, in his purported official capacity as Acting Director, U.S.
Citizenship and Immigration Services,
Defendants-Respondents.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on Plaintiff-Petitioner’s Motion for Emergency Writ of
Habeas Corpus, or Alternatively, for a Temporary Restraining Order Staying His Removal (ECF
No. 3). For the reasons below, the Court denies the emergency relief requested but orders
Defendants-Respondents to respond to Plaintiff-Petitioner’s Verified Petition for Writ of Habeas
Corpus and Complaint for Declaratory and Injunctive Relief (ECF No. 1) pursuant to the briefing
schedule set forth below.
I.

LEGAL STANDARDS
Generally, a court may grant a writ of habeas corpus when a person is in custody, and a

person subject to removal is in custody for habeas purposes. See Thoung v. United States,
913 F.3d 999, 1001 (10th Cir. 2019).

To obtain a temporary restraining order or injunctive relief in any other form, a party
must establish “(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm
unless the injunction is issued; (3) that the threatened injury outweighs the harm that the
preliminary injunction may cause the opposing party; and (4) that the injunction, if issued, will
not adversely affect the public interest.” Diné Citizens Against Ruining Our Environment v.
Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (quotation omitted). Because a preliminary
injunction is an extraordinary remedy, the party’s right to relief must be clear and unequivocal.
Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005).
II.

BACKGROUND
In the Verified Petition 1, Plaintiff-Petitioner contends the federal government is

unlawfully planning to deport him as early as tomorrow, June 7, 2020, while his petition for a
T Nonimmigrant Visa remains pending before United States Citizenship and Immigration
Services (“USCIS”). Plaintiff-Petitioner is a class representative in another case filed in the
District of Colorado in 2014, in which the plaintiffs assert forced labor violations under the
Trafficking Victims Protection Act (“TVPA”) based on allegations that Plaintiff-Petitioner and
others in immigration detention were required to engage in sanitation and other services for the
detention facility. See Menocal v. The GEO Group, Inc., 113 F.3d 1125 (D. Colo. 2015). The
conduct underlying those allegations occurred several years ago in this District, while
Plaintiff-Petitioner was in custody at a detention facility in Aurora, Colorado.
Plaintiff-Petitioner was subsequently transferred to a detention facility in California,
where he filed his application for a T Nonimmigrant Visa with USCIS in May 2018 based on the

1

The Petition has been verified only by counsel.

2

same underlying allegations in the Menocal case. There is no suggestion that his transfer to
California was to manipulate jurisdiction in some manner or was otherwise improperly
motivated. USCIS has yet to make a preliminary determination as to whether his application is
bona fide. Should USCIS determine that it is, that would automatically stay execution of any
removal order until the visa application was decided. However, if he is deported, he would be
ineligible for a T Nonimmigrant Visa because he would no longer satisfy the physical presence
requirement.
On June 4, 2020, the United States Court of Appeals for the Ninth Circuit denied
Plaintiff-Petitioner’s motion to stay the issuance of the mandate on its prior decisions denying his
petition to review his administratively final order of removal. Yesterday, June 5, the mandate
issued, and Plaintiff-Petitioner filed his current habeas petition and emergency motion in this
Court. At that time, he was at a detention center in Alabama; his present location is uncertain.
Plaintiff-Petitioner contends he is subject to imminent removal to El Salvador as early as
tomorrow, June 7, and that he could be transferred among different detention facilities prior to
his deportation.
In his habeas petition, Plaintiff-Petitioner contends that his deportation while his
application for a T Nonimmigrant Visa remains pending before USCIS would violate his right to
procedural due process under the Fifth Amendment. Plaintiff-Petitioner further contends that his
deportation would constitute arbitrary and capricious agency action in violation of the
Administrative Procedure Act (“APA”). In his emergency motion, he requests an order
enjoining his removal until June 15, 2020, and an expedited briefing schedule on his habeas
petition.
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III.

DISCUSSION
To begin with, the Court has doubts as to whether it has subject matter jurisdiction over

this matter. Generally, “[a] § 2241 petition for a writ of habeas corpus must be addressed to the
federal district court where the prisoner is confined.” United States v. Scott, 803 F.2d 1095,
1096 (10th Cir. 1986); see also Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004) (“[F]or core
habeas petitions challenging present physical confinement, jurisdiction lies only in one district:
the district of confinement.”). There are no allegations that Plaintiff-Petitioner has been detained
in this District for several years. Nor is there any allegation that anything having to do with his
order of removal, application for a T Nonimmigrant Visa, or review thereof occurred in this
District. Plaintiff-Petitioner points out that Padilla expressly does not apply to immigration
disputes and, citing Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 493-94
(1973), argues a more flexible approach is warranted and that the Court should consider (1) the
location where the events took place, (2) where records and witnesses pertinent to the claim are
likely to be found, (3) the convenience of the forum for respondent and petitioner, and (4) the
familiarity of the court with the applicable laws. (ECF No. 3 at 7-12.) But even accepting that
as true, no event which is the subject of the habeas petition (i.e., adjudication of the removal
order, current detention, application for a T Nonimmigrant Visa, action or inaction with respect
to review of that application, denial of due process) occurred in Colorado.
Assuming for present purposes that the identified factors support jurisdiction in this case,
the Court has serious doubts as to whether this is the proper venue for this matter.
Plaintiff-Petitioner filed his application for a T Nonimmigrant Visa in California, which is where
removal proceedings were held and concluded. Plaintiff-Petitioner’s motion provides almost no
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information about those proceedings; neither does the record in this case at this stage. To the
extent Plaintiff-Petitioner is challenging how his visa application is being processed or not being
processed, the allegations in the habeas petition have no substantial connection with this District.
Although Plaintiff-Petitioner contends that “events relevant to the petition” occurred in the
District of Colorado (ECF No. 1 at ¶ 10), the fact that conduct referred to in the visa application
allegedly occurred in this District years and years ago is thin support for finding venue is proper.
The Court is not persuaded at all that a due process or APA review of agency action would place
the requisite legal focus on the allegations of the Verified Petition rather than on the action itself.
Moreover, Plaintiff-Petitioner cites no binding authority showing he is entitled to relief.
The Court is not persuaded that the mere filing of an application for a T Nonimmigrant Visa
creates a liberty interest sufficient to support a procedural due process claim in the context
asserted here. If that were the case, persons in removal proceedings could circumvent being
deported simply by filing such an application. 2 With respect to Plaintiff-Petitioner’s APA claim,
the current pleadings provide scant support for the notion that his deportation would constitute
arbitrary and capricious agency action. (See ECF No. 3 at 15.)
Finally, granting Petitioner’s motion would bypass the usual and preferred process for
resolving a habeas petition on the merits. The Court is disinclined to grant the relief requested
when the case is in its current posture. The Court has not yet heard from Respondents on the
contested issues raised in Petitioner’s habeas petition.

Notably, Plaintiff-Petitioner argues that even if USCIS denied his visa application, his due process rights would
entitle him to challenge that decision, during which time, presumably, he still could not be deported. (See ECF
No. 3 at 13.)
2

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IV.

CONCLUSION
Accordingly, the Court DENIES Plaintiff-Petitioner’s motion for emergency relief (ECF

No. 3) and sets forth the following briefing schedule on the habeas petition:
(1)

Defendants-Respondents shall file a response on or before June 19, 2020; and

(2)

Plaintiff-Petitioner shall have seven days from the filing of such response to file a

reply.
DATED this 6th day of June, 2020.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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