Ortiz vs. Sessions et. al.

Filing 20

ORDER DENYING PETITIONER'S MOTION FOR TEMPORARY RESTRAINING ORDER re 1 filed by Andres Magana Ortiz. Signed by JUDGE LESLIE E. KOBAYASHI on 05/22/2017. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications including the Clerk, 9CCA received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ANDRES MAGANA ORTIZ,

)
)
Plaintiff,
)
)
vs.
)
)
JEFFERSON B. SESSIONS III,
)
Attorney General, et al.,
)
)
Defendants.
)
_____________________________ )

CIVIL 17-00210 LEK-KJM

ORDER DENYING PETITIONER’S MOTION
FOR TEMPORARY RESTRAINING ORDER
Before the Court is Petitioner Andres Magana Ortiz’s
(“Magana Ortiz”) Petition for Writ of Habeas Corpus; Emergency
Request for Stay of Deportation (“Petition”), filed May 10, 2017.
[Dkt. no. 1.]

This Court has construed the portion of the

Petition requesting a stay of deportation as a motion seeking a
temporary restraining order (“TRO”) and a preliminary injunction.
The portion of the Petition seeking a TRO (“Motion”) came on for
hearing on May 15, 2017.

Respondents Jefferson Sessions, III,

U.S. Attorney General, Department of Justice; John F. Kelley,
Secretary, U.S. Department of Homeland Security (“DHS”);
Erik Bonnar, Director, DHS, San Francisco Immigration and Customs
Enforcement (“ICE”); Michael A. Samaniego, Assistant Field
Director, Detention and Removal Operation, ICE (collectively
“Respondents”) filed a response in opposition to the Motion
(“Response”) on May 15, 2017, prior to the hearing.

After

careful consideration of the Motion, supporting and opposing
memoranda, the arguments of counsel, and the relevant legal
authority, Magana Ortiz’s Motion is HEREBY DENIED for the reasons
set forth below.
BACKGROUND
I.

The Petition
The following background is set forth in Magana Ortiz’s

verified Petition.

See Petition at pg. 20 (Verification).

Respondents apparently do not dispute his recitation of the
factual background, although at the hearing Respondents’ counsel
pointed out some arguably relevant facts that are not included in
the Petition.
Magana Ortiz is a forty-three-year-old Mexican citizen
who entered the United States twenty eight years ago without
inspection.

[Petition at pg. 2.]

He is currently married to

Brenda Josphine Cleveland-Reynolds, who he met in June 2012,
began living with in August 2015, and married on January 16,
2016.

[Id. at ¶ 9.]

Magana Ortiz has three children who were

born in the United States.

The oldest of the three, Victoria

Magana Ledesma, will turn twenty-one in August 2017.

[Id. at

¶ 11.]
DHS initiated removal proceedings against Magana Ortiz
by filing a Notice to Appear (“NTA”) on March 22, 2011 with the
Immigration Court in Honolulu.

He was charged with being
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removable under § 212(a)(6)(A)(i) of the Immigration and
Nationality Act (“INA”), codified at 8 U.S.C. § 1182.1

DHS

alleged four factual grounds to support the charge of removal.
Magana Ortiz’s counsel admitted the four allegations, and the
Immigration Court found, by clear and convincing evidence, that
Magana Ortiz was removable.

The Immigration Judge held a merits

hearing and, on December 22, 2011, denied Magana Ortiz’s
applications for relief, including his request for voluntary
departure in lieu of removal.

[Petition at ¶¶ 12-15.]

The

Immigration Judge found that Magana Ortiz “failed to establish

1

Section 1182(a)(6)(A)(i) states:
(a) Classes of aliens ineligible for visas or
admission
Except as otherwise provided in this chapter,
aliens who are inadmissible under the following
paragraphs are ineligible to receive visas and
ineligible to be admitted to the United States:
. . . .
(6) Illegal entrants and immigration
violators
(A) Aliens present without admission or
parole
(i)

In general

An alien present in the United
States without being admitted or
paroled, or who arrives in the
United States at any time or place
other than as designated by the
Attorney General, is inadmissible.
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that his removal would result in exception and extremely unusual
hardship to his qualifying relatives” – i.e. his three children.
[Id. at ¶ 15.]

Magana Ortiz contends that his counsel at the

time failed to develop a sufficient record of hardship at the
hearing before the Immigration Judge.

[Id.]

Magana Ortiz appealed the Immigration Judge’s decision
to the Board of Immigration Appeals (“BIA”), which affirmed the
Immigration Judge’s decision on February 7, 2014.

Magana Ortiz

filed a petition with the Ninth Circuit for review of the BIA
decision.

The Ninth Circuit granted his motion to stay his

removal pending the resolution of his petition for review.
However, the Ninth Circuit dismissed the petition on May 12, 2014
for lack of jurisdiction.

[Id. at ¶¶ 16, 18.]

While Magana Ortiz’s appeals were pending, the United
States Citizenship and Immigration Services (“USCIS”) granted
Magana Ortiz an employment authorization from November 11, 2013
to November 19, 2014.

[Id. at ¶ 17.]

On September 9, 2014,

Magana Ortiz filed a Form I-246 Application for a Stay of
Deportation or Removal with DHS.
2014 for one year.

It was granted on September 23,

Magana Ortiz filed a second I-246 on

September 2, 2015 (“9/2/15 I-246”), requesting a one-year
extension, but no action was taken.

[Id. at ¶ 19.]

He filed a

third I-246 on November 2, 2016, but that application was denied
on March 21, 2017.

[Id. at ¶ 21.]

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While the 9/2/15 I-246 was pending, Mrs. ClevelandReynolds filed an I-130 Relative Petition for Alien Relative
(“Cleveland-Reynolds I-130”).

DHS received the Cleveland-

Reynolds I-130 on March 29, 2016.

The Cleveland-Reynolds I-130

seeks to have Magana Ortiz classified as Mrs. ClevelandReynolds’s immediate relative pursuant to INA § 201(b), 8 U.S.C.
§ 1151(b).

[Petition at ¶ 10.]

Magana Ortiz alleges that the

Cleveland-Reynolds I-130 has been pending “beyond normal
processing times.”

[Id.]

On March 22, 2017, Magana Ortiz received a Notice to
Removable Alien, which required him to report to DHS for removal
to Mexico on April 18, 2017.

On April 4, 2017, Magana Ortiz

filed a fourth I-246, and he filed a supplement on April 17, 2017
(collectively “4/4/17 I-246”).
4/4/17 I-246 on April 18, 2017.

Respondent Bonnar denied the
[Id. at ¶¶ 22-23.]

In the

4/4/17 I-246, Magana Ortiz acknowledged that he has to return to
Mexico to obtain an immigrant visa, but he requested a nine-month
stay because: the Cleveland-Reynolds I-130 is still pending; and,
when Ms. Magana Ledesma turns twenty-one in August 2017, she can
file her own I-130 petition for Magana Ortiz.

[Id. at ¶ 30.]

According to the Petition, if either the Cleveland-Reynolds I-130
or Ms. Magana Ledesma’s anticipated I-130 is granted,
Magana Ortiz, “will be able to file an I-601 provisional waiver
[application] which upon adjudication by USCIS will enable him to

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return to Mexico with a waiver of the 10 year bar for unlawful
presence.”2

[Id.]

Also on April 18, 2017, Magana Ortiz appeared before
DHS for departure, but Ms. Magana Ledesma posted a bond on his
behalf, and he agreed to leave the United States by May 16, 2017.
But for the posting of the immigration bond, Magana Ortiz would
have been held at the Federal Detention Center pending removal to
Mexico.

[Id. at ¶¶ 22, 24.]

Magana Ortiz therefore alleges that

he “is in ‘custody’ or ‘constructive custody’.”

[Id. at ¶ 31.]

He therefore brings his arguments in a petition for habeas corpus

2

Pursuant to § 1182(a)(9)(B)(i), the following aliens “are
ineligible to receive visas and ineligible to be admitted to the
United States”:
(9)

Aliens previously removed
. . . .
(B)

Aliens unlawfully present
(i)

In general

Any alien (other than an alien lawfully
admitted for permanent residence) who–
. . . .
(II) has been unlawfully present in
the United States for one year or
more, and who again seeks admission
within 10 years of the date of such
alien’s departure or removal from
the United States,
is inadmissible.
The Court will refer to this as “the ten-year ban.”
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relief, and he states that he has not filed any other petition
for habeas relief regarding the other decisions described in the
Petition.

[Id. at pg. 18, ¶ VI.]
The Petition alleges that Magana Ortiz’s three children

“will suffer immediate and irreparable financial and emotional
hardship and instability” if he is removed at this time.
¶ 25.]

[Id. at

It also alleges that the coffee farmers who hire

Magana Ortiz to maintain their farms “will also suffer great
hardship” if he is removed at this time.

[Id. at ¶ 28.]

Further, his removal “will have a devastating economic and
psychological effect” on him and “his United States citizen
family.”

[Id. at pg. 18, ¶ VII.]

Magana Ortiz represents that

“[h]e is not a threat to the community and has always reported to
USDHS when requested.”

[Id.]

The Petition asks this Court to:
1)

stay his removal for nine months;

2)
find that Ortiz and his family have been denied their right
to due process under the Fifth Amendment to the United States
Constitution because of the failure to process the ClevelandReynolds I-130 within the normal processing time;
3)
order Respondents to adjudicate the Cleveland-Reynolds I-130
on an expedited basis;
4)
find that Respondents abused their discretion and denied
Magana Ortiz due process when they denied his 4/4/17 I-246;
5)
find that Magana Ortiz, his three children, and
Mrs. Cleveland-Reynolds are being denied substantive and
procedural due process because Respondents previously granted
Magana Ortiz stays of removal, and his removal at this time based

7

on the improper denial of the 4/4/17 I-246 would cause them
immediate and irreparable harm;
6)
stay Magana Ortiz’s removal for the period of time requested
in the 4/4/17 I-246 and enjoin Respondents from cancelling or
otherwise voiding Magana Ortiz’s immigration bond;
7)
issue a writ of habeas corpus requiring Respondents to show
cause why Magana Ortiz should not be discharged from the custody
that he is currently under and why he should not be allowed to
remain in the United States while the Petition is pending;
8)
if Respondents do not show cause, issue a stay of his
removal and an injunction prohibiting his removal until this
Court rules on the Petition and Ortiz exhausts any appeals from
this Court’s ruling; and
9)

order any other appropriate relief.

[Id. at pgs. 16-19.]
II.

The Mandamus Action
On May 5, 2017, Mrs. Cleveland-Reynolds and

Magana Ortiz (“Mandamus Plaintiffs”), filed their Verified
Complaint for Mandamus and for Declaratory Relief against
Defendants John F. Kelley, Secretary, DHS; James McCament, Acting
Director, USCIS; Gerald Heinauer, Director, Nebraska Service
Center, USCIS (“Mandamus Complaint” and “Mandamus Defendants”).
[Cleveland-Reynolds, et al. v. Kelley, et al., CV 17-00207 LEKKJM (“Mandamus Action”), dkt. no. 1.]

The Mandamus Complaint is

based on the same factual allegations as the Petition in the
instant case.

The Mandamus Complaint seeks: 1) a writ of

mandamus requiring the Mandamus Defendants to process the
Cleveland-Reynolds I-130 in according with the applicable laws

8

and regulations;3 2) a declaratory judgment that the Mandamus
Defendants’ refusal to process the Cleveland-Reynolds I-130 is
arbitrary, violates the Mandamus Plaintiffs’ due process rights,
and violates the applicable laws and regulations.

[Mandamus

Complaint at § I, ¶ 1.]
The summons was issued on May 8, 2017.

[Dkt. no. 4.]

On May 12, 2017, the Mandamus Plaintiffs filed a Proof of
Service, stating that the Mandamus Complaint and the summons were
served on the Mandamus Defendants “by personal delivery or USPS
Priority Mail.”

[Dkt. no. 6.]

The Mandamus Defendants have not

yet entered an appearance in the case.

The Mandamus Plaintiffs

have not moved for any preliminary relief.

However, because of

the substantial overlap between the two cases, this Court finds
that they are related and has considered the instant Motion in
the context of both cases.
STANDARD
This Court has described the applicable standards as
follows:
In general, the standard for a temporary
restraining order or a preliminary injunction is
as follows:
“[I]njunctive relief is an extraordinary
remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to

3

According to the Mandamus Complaint, the ClevelandReynolds I-130 is pending with the DHS, USCIS, Nebraska Service
Center. [Mandamus Complaint at § I, ¶ 1.]
9

such relief.” Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 129 S. Ct. 365,
376, 172 L. Ed. 2d 249 (2008). The standard
for granting a preliminary injunction and the
standard for granting a temporary restraining
order are identical. See Haw. Cnty. Green
Party v. Clinton, 980 F. Supp. 1160, 1164 (D.
Haw. 1997); Fed. R. Civ. P. 65.
Sakala v. BAC Home Loans Servicing, LP, CV. No.
10–00578 DAE–LEK, 2011 WL 719482, at *4 (D.
Hawai`i Feb. 22, 2011) (alteration in original).
A plaintiff seeking a preliminary
injunction must establish that he is likely
to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of
preliminary relief, that the balance of
equities tips in his favor, and that an
injunction is in the public interest. Am.
Trucking Ass’ns v. City of Los Angeles, 559
F.3d 1046, 1052 (9th Cir. 2009) (quoting
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 129 S. Ct. 365, 374, 172 L. Ed.
2d 249 (2008)) (explaining that, “[t]o the
extent that [the Ninth Circuit’s] cases have
suggested a lesser standard, they are no
longer controlling, or even viable” (footnote
omitted)); see also Winter, 129 S. Ct. at
374–76 (holding that, even where a likelihood
of success on the merits is established, a
mere “possibility” of irreparable injury is
insufficient to warrant preliminary
injunctive relief, because “[i]ssuing a
preliminary injunction based only on a
possibility of irreparable harm is
inconsistent with [the Supreme Court’s]
characterization of injunctive relief as an
extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is
entitled to such relief”).
Painsolvers, Inc. v. State Farm Mut. Auto. Ins.
Co., 685 F. Supp. 2d 1123, 1128–29 (D. Hawai`i
2010) (footnote and some citations omitted)
(alterations in original). The Ninth Circuit has
held that its “serious questions” version of the
sliding scale test for preliminary injunctions
10

survives Winter to the extent that, a court may
grant a preliminary injunction where the plaintiff
(1) “demonstrates . . . that serious questions
going to the merits were raised and the balance of
hardships tips sharply in the plaintiff’s
favor[,]” and (2) satisfies the other Winter
factors, likelihood of irreparable injury and that
the injunction is in the public interest.
Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1134–35 (9th Cir. 2011) (citation and
block quote format omitted) (some alterations in
original).
Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 47 F. Supp. 3d
1069, 1075-76 (D. Hawai`i 2014) (alterations in Pac. Radiation)
(some citations omitted).

“Regardless of which standard applies,

the movant always has the burden of proof on each element of the
test.”

Hernandez v. Spencer, CIV. NO. 15-00256 SOM-RLP, 2015 WL

4999699, at *1 (D. Hawai`i Aug. 20, 2015) (citations and
quotation marks omitted).
DISCUSSION
The gravamen of the Motion is the issue of whether
there is irreparable harm.

The Petition asserts that

Magana Ortiz’s family will suffer extreme hardship if he is
removed at this time.

It also alleges that Magana Ortiz’s

business and the farming community will suffer hardship.
However, the United States Supreme Court has recognized that
“[a]lthough removal is a serious burden for many aliens, it is
not categorically irreparable.”
435 (2009).

Nken v. Holder, 556 U.S. 418,

Thus, “the burden of removal alone cannot constitute

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the requisite irreparable injury.”4

Id.

At the hearing on the Motion, Magana Ortiz – through
his counsel – argued that the I-130 application process for an
alien spouse involves an interview of both spouses and, if
Magana Ortiz is removed at this time, he will not be available
for an interview.

He acknowledges that the legitimacy of his

marriage to Mrs. Cleveland-Reynolds is at issue in the ClevelandReynolds I-130.

As stated by Respondents:

Of particular relevance here is the need to
investigate the bona fides of [Magana Ortiz]’s
marriage. Under 8 U.S.C. § 1255(e), an alien
(like [Magana Ortiz]) who married after the
commencement of removal proceedings and sought
adjustment of status on the basis of that marriage
is presumed to have married to “procur[e] the
alien’s admission as an immigrant.” Sharma v.
Holder, 633 F.3d 865, 872 (9th Cir. 2011) (citing
8 C.F.R. § 204.2(a)(1)(iii)(B)(2-3, 5-6)). . . .
[Response at 7 (some alterations in Response).]

Magana Ortiz

argues that, if he is not able to provide additional evidence in
support of his marriage through an interview, the ClevelandReynolds I-130 may be denied, and he would be ineligible to apply
for a waiver of the ten-year ban.

4

Nken involved a stay pending an appeal of a removal order.
556 U.S. at 421-22. The Supreme Court noted that “[t]here is
substantial overlap between [the factors governing stays] and the
factors governing preliminary injunctions.” Id. at 434. One of
the factors governing the issuance of a stay is “‘whether the
applicant will be irreparably injured absent a stay.’” Id.
(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
12

First, there is no evidence or legal authority which
indicates that the Cleveland-Reynolds I-130 would be denied based
upon Magana Ortiz’s removal and unavailability for an interview.
At the hearing on the Motion, Respondents’ counsel represented
that USCIS would continue to process the Cleveland-Reynolds I-130
based on, inter alia, an interview of Mrs. Cleveland-Reyonlds.
Cf. Nken, 556 U.S. at 435 (“Aliens who are removed may continue
to pursue their petitions for review, and those who prevail can
be afforded effective relief by facilitation of their
return . . . .”).

Further, 8 C.F.R. § 204.2(a)(1) states, in

pertinent part:
A United States citizen or alien admitted for
lawful permanent residence may file a petition on
behalf of a spouse.
. . . .
(iii) Marriage during proceedings-general
prohibition against approval of visa
petition. A visa petition filed on behalf of
an alien by a United States citizen or a
lawful permanent resident spouse shall not be
approved if the marriage creating the
relationship occurred on or after
November 10, 1986, and while the alien was in
exclusion, deportation, or removal
proceedings, or judicial proceedings relating
thereto. Determination of commencement and
termination of proceedings and exemptions
shall be in accordance with § 245.1(c)(9) of
this chapter, except that the burden in visa
petition proceedings to establish eligibility
for the exemption in § 245.1(c)(9)(iii)(F) of
this chapter shall rest with the petitioner.
. . . .

13

(B) Evidence to establish eligibility
for the bona fide marriage exemption.
The petitioner should submit documents
which establish that the marriage was
entered into in good faith and not
entered into for the purpose of
procuring the alien’s entry as an
immigrant. The types of documents the
petitioner may submit include, but are
not limited to:
(1) Documentation showing joint
ownership of property;
(2) Lease showing joint tenancy of
a common residence;
(3) Documentation showing
commingling of financial resources;
(4) Birth certificate(s) of
child(ren) born to the petitioner
and beneficiary;
(5) Affidavits of third parties
having knowledge of the bona fides
of the marital relationship (Such
persons may be required to testify
before an immigration officer as to
the information contained in the
affidavit. Affidavits must be
sworn to or affirmed by people who
have personal knowledge of the
marital relationship. Each
affidavit must contain the full
name and address, date and place of
birth of the person making the
affidavit and his or her
relationship to the spouses, if
any. The affidavit must contain
complete information and details
explaining how the person acquired
his or her knowledge of the
marriage. Affidavits should be
supported, if possible, by one or
more types of documentary evidence
listed in this paragraph); or

14

(6) Any other documentation which
is relevant to establish that the
marriage was not entered into in
order to evade the immigration laws
of the United States.
(Emphasis added.)

Thus, the review of the legitimacy of

Magana Ortiz’s marriage will be based, in large part, on the
review of documents.

Even if Magana Ortiz is removed as

scheduled, Mrs. Cleveland-Reynolds – or another person acting on
Magana Ortiz’s behalf – will still be able to submit
documentation supporting the legitimacy of the marriage.
This Court recognizes that it would be optimal to have
Magana Ortiz interviewed as part of the consideration of the
Cleveland-Reynolds I-130.

However, the loss of an optimal

opportunity does not constitute irreparable harm in the absence
of a TRO.

Magana Ortiz merely speculates that the Cleveland-

Reynolds I-130 is less likely to be granted without statements
that he would provide during his interview.

This type of

speculative injury is not sufficient to satisfy the irreparable
harm requirement.

See Winter, 555 U.S. at 22 (“[A] preliminary

injunction will not be issued simply to prevent the possibility
of some remote future injury” (citation and quotation marks
omitted)).
This Court has great sympathy for Magana Ortiz and his
family and recognizes that his removal at this time will cause
sadness, economic and emotional distress, and hardship for his

15

family, business, and community but, based on the controlling
case law, this Court is constrained to find that these effects do
not reach the level and force of evidence of irreparable harm.
Nor can this Court find that Magana Ortiz’s unavailability for an
interview constitutes irreparable harm because Mrs. ClevelandReynolds will be able to proceed with the I-130 and I-601
processes.

This Court therefore FINDS that Magana Ortiz has

failed to establish that irreparable harm is likely to occur
unless this Court grants the Motion.
Because a plaintiff seeking a TRO must establish all of
the Winter factors to be entitled to relief, Magana Ortiz’s
failure to establish irreparable harm is fatal to his Motion, and
it is not necessary for this Court to address whether
Magana Ortiz has established the other Winter factors.

This

Court therefore CONCLUDES that Magana Ortiz is not entitled to
the TRO that he requests in the Motion.
CONCLUSION
On the basis of the foregoing, the portion of
Magana Ortiz’s May 10, 2017 Petition for Writ of Habeas Corpus;
Emergency Request for Stay of Deportation that seeks a temporary
restraining order is HEREBY DENIED.
IT IS SO ORDERED.

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DATE AT HONOLULU, HAWAII, May 22, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

ANDRES MAGANA ORTIZ VS. JEFFERSON B. SESSIONS III, Attorney
General, et al; CIVIL 17-00210 LEK-KJM; ORDER DENYING
PETITIONER’S MOTION FOR TEMPORARY RESTRAINING ORDER

17