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Mendez-Cruz v. Lynch

United States District Court, D. Arizona

February 17, 2017

Eliseo Mendez-Cruz, Petitioner,
v.
Loretta E Lynch, et al., Respondents.

          ORDER

          Hon. G. Murray Snow, United States District Judge

         Before the Court is Petitioner's Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 10) seeking an order enjoining his further detention without being provided with a fair bond hearing. The Court heard oral argument on the motion on Friday, February 17, 2017. After consideration of the parties' briefs and argument, the Court grants the Motion. The underlying Petition for Writ of Habeas Corpus will remain pending before the Magistrate Judge for further proceedings and the parties will be required to file a joint status report following Petitioner's bond hearing.

         I. Background

         Petitioner is a native and citizen of Guatemala. He entered the United States on July 24, 2015, and was removed in August 2015. Petitioner re-entered the United States again on December 26, 2015, was removed for the second time in January 2016, and most recently re-entered the United States in March 2016. He was prosecuted for illegal re-entry after deportation and his prior removal order was reinstated. After Petitioner served his 30-day sentence stemming from his illegal re-entry conviction, he expressed a fear of returning to Guatemala, which resulted in his referral for a reasonable fear interview and a suspension of the execution of his removal order.

         Petitioner made a showing of reasonable fear if returned to Guatemala and was referred to immigration proceedings for Withholding of Removal and relief under the Convention Against Torture. Petitioner's hearing on the merits of these claims is scheduled for May 2017. While Petitioner's immigration proceedings were ongoing, he sought a custody redetermination hearing, which was denied by the Immigration Judge for lack of jurisdiction, and is currently on appeal before the BIA. Petitioner has been detained without a bond hearing since March 27, 2016-or nearly 11 months.

         In his underlying Petition for Writ of Habeas Corpus, Petitioner argues that his lengthy detention without bond is unlawful in this Circuit. He seeks a declaration that his current detention without an appropriate bond hearing is unlawful and an order directing Respondents to grant him a bond hearing before an IJ, with the burden on the government to show that he is either a flight risk or a danger to society.

         II. Motion for Preliminary Injunction

         A. Standard

         “‘[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129- 130 (2d ed. 1995)). To obtain a preliminary injunction, the moving party must show “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.” Winter v. Natural Resources Def. Council, Inc., 555 U.S. 7, 20 (2008); Am. Trucking Ass'n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).

         The Ninth Circuit's “serious questions” version of the sliding scale test for preliminary injunctions remains viable after the Supreme Court's decision in Winter. Alliance for the Wild Rockies v. Cottrell 632 F.3d 1127, 1134 (9th Cir. 2011). Under that test, a preliminary injunction is appropriate when a plaintiff demonstrates that “‘serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor.'” Id. at 1134-35 (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)). The movant must also satisfy the other two Winter factors- likelihood of irreparable harm and that an injunction is in the public interest. Id. With respect to the irreparable harm prong, Winter specifically rejected the Ninth Circuit's “possibility of irreparable injury” standard. Stormans, Inc. v. Selecky 586 F.3d 1109, 1127 (9th Cir. 2009). Under Winter, a party seeking preliminary relief must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. The Court explained that “[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our 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.” Id.

         Additionally, because Petitioner seeks a mandatory injunction-an injunction altering the status quo-a “heightened standard” applies. Katie A. ex rel. Ludin v. Los Angeles County, 481 F.3d 1150, 1156 (9th Cir. 2007). A mandatory injunction is “‘particularly disfavored'” and a “district court should deny such relief ‘unless the facts and law clearly favor the moving party.'” Stanley v. University of Southern California, 13 F.3d 1313, 1320 (9th Cir. 1994) (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979).

         B. Likelihood of Success on the Merits

         1. Exhaustion

         Respondents' initial argument against relief is that Petitioner has not fully exhausted his administrative remedies, and the Court should decline to entertain his petition at this time. But exhaustion is a prudential rather than jurisdictional requirement. Singh v. Holder,638 F.3d 1196, 1203 n. 3 (9th Cir. 2011). Courts may require prudential exhaustion if (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; or (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review. Puga v. Chertoff,488 F.3d 812, 815 (9th Cir.2007). Even if these factors weigh in favor of prudential exhaustion, waiver of exhaustion may be appropriate “where administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void.” Lai ...


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