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Organista v. Sessions

United States District Court, D. Arizona

February 8, 2018

Carlos Villalobos Organista, Petitioner,
Jefferson B Sessions, III, et al., Respondents.



         Before the Court is Petitioner Carlos Villalobos Organista's Motion for Preliminary Injunction (Doc. 3). The Court heard oral argument on the motion on February 8, 2018. After consideration of the parties' briefs and their argument, the Court denies the Motion. Further, pursuant to Rule 65(a)(2), because the Petition presents a legal question that is fully briefed through the motion for injunctive relief, this Order operates as an adjudication on the merits of the Petition.

         I. Background

         Petitioner is a native and citizen of Mexico. On July 5, 2016, Petitioner entered the United States at the Nogales, Arizona port of entry as a nonimmigrant visa holder. Petitioner's authorized period of stay expired on January 4, 2017. On April 4, 2017, Petitioner was taken into the custody of the United States Immigration and Customs Enforcement (Doc. 1 at 6). Petitioner has applied for asylum, withholding of removal, and protection under the Convention Against Torture. (Id. at 3.)

         On November 22, 2017, Petitioner was afforded a custody redetermination hearing before an Immigration Judge (IJ). The IJ granted Petitioner release upon payment of a bond of $20, 000. (Id. at 6.) Petitioner's family attempted to post bond but was prevented from doing so because the Department of Homeland Security (DHS) invoked the automatic stay provision of 8 C.F.R. § 1003.19(i)(2), which allows the government to stay an IJ's order of release on bond where DHS initially determined the alien should not be released and where the IJ later ordered a bond of $10, 000 or more. (Id.)

         Petitioner filed his first Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on December 20, 2017, challenging the automatic stay. The Court granted a preliminary injunction and directed the government to release Petitioner in accordance with IJ Phelps's decision and order dated November 22, 2017. The government complied and Petitioner was released from custody on December 28, 2017. That same day, the government sought a discretionary stay from the BIA under § 1003.19(i)(1), and it was granted on December 29, 2017. Petitioner was redetained and he remains in custody.

         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.

         B. Likelihood of Success on the Merits

         Petitioner remains detained under 8 U.S.C. § 1226(a). His now nine month detention has thus been prolonged as that term is defined by the precedents in this Circuit and in the United States Supreme Court. In November 2017, Petitioner sought and received a custody redetermination hearing before an IJ pursuant to Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060, 1087 (9th Cir. 2015), which requires that after an individual has been detained under 8 U.S.C. § 1226(a) for more than six months, the government must produce “clear and convincing evidence that the non-citizen is a flight risk or a danger to the community.” Id. Further, after a detention has become prolonged, continuing detention determinations must be made by a neutral decsionmaker. Rodriguez III, 804 F.3d at 1069 (quoting Diouf v. Napolitano (Diouf II), 634 F.3d 1081, 1091-92 (9th Cir. 2011)). At Petitioner's hearing, the IJ heard the evidence, and set bond at $20, 000, but the government invoked an automatic stay of that decision pending appeal to the BIA. The constitutional defect addressed in Petitioner's first § 2241 Petition was that the government's invocation of an automatic stay of the IJ's bond determination deprived Petitioner of a hearing before a neutral decisionmaker. As a result, in its Order on Petitioner's motion for preliminary injunction, the Court noted the existence of § 1003.19(i)(1), pursuant to which the government could seek a discretionary stay from the BIA-a neutral decisionmaker-of the IJ's bond determination (2:17cv4719, Doc. 13 at 5).

         The government sought and received that discretionary stay. The problem Petitioner alleges in the instant petition, is that he did not receive notice and an opportunity to be heard prior to the request for emergency stay being granted. Thus, in this case, the Court must answer a different question: whether the BIA's ex parte issuance of a discretionary stay pursuant to § 1003.19(i)(1) violates due process. The Court notes the dearth of authority on this provision and observes that the only case to evaluate a due process challenge to the discretionary stay provision involves a situation where the petitioner was given the ...

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