United States District Court, D. Arizona
G. Murray Snow, United States District Judge
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
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
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.
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.
Motion for Preliminary Injunction
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).
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
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).
Likelihood of Success on the Merits
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 ...