United States District Court, D. Arizona
ORDER
Michael T. Liburdi, United States District Judge
Petitioner
Sarbjit Kaur, who is detained in the CoreCivic Eloy Detention
Center in Eloy, Arizona, has filed, through counsel, a
Petition for Writ of Habeas Corpus under 28 U.S.C. §
2241 (Doc. 1) and a Motion for Preliminary Injunction and/or
Temporary Restraining Order (Doc. 2). The Court will issue a
temporary stay of removal, call Respondents to answer the
Petition and respond to the Motion for Preliminary
Injunction, and deny the Motion for Temporary Restraining
Order.
I.
Background
Petitioner
is a native and citizen of India. On June 26, 2019, she
entered the United States without inspection near Calexico,
California, and was encountered and taken into custody by the
United States Department of Homeland Security (DHS). (Doc.
1-3.) Petitioner was determined to be inadmissible to the
United States and placed in expedited removal proceedings
pursuant to Immigration and Naturalization Act (INA) §
235(b)(1), 8 U.S.C. § 1225(b)(1). (Docs. 1-3, 1-7.)
Petitioner expressed a fear of persecution or torture if
returned to India and was referred to an asylum officer for a
credible fear determination. (Doc. 1-3.)
On
August 12, 2019, Petitioner received a credible fear
interview with the use of a telephonic Punjabi translator.
(Doc. 1-4.)[1] The asylum officer determined that
Petitioner did not have a credible fear of persecution or
torture, and on August 30, 2019, Petitioner was ordered
removed from the United States. (Docs. 1-4, 1-6, 1-7, 1-9.)
Petitioner requested review of the negative credible fear
finding by an Immigration Judge (IJ). (Doc. 1-6.) A hearing
was scheduled for September 18, 2019, and Petitioner retained
counsel, who filed a notice of appearance with the
immigration court the same day. (Doc. 1 ¶¶ 20-22.)
At the conclusion of the hearing held on September 18, 2019,
the IJ affirmed Petitioner's negative credible fear
determination. (Doc. 1-8.)
II.
Petition
In her
Petition, Petitioner names United States Attorney General
William Barr, Acting DHS Secretary Kevin McAleenan, Executive
Office for Immigration Review (EOIR) Director James McHenry,
Immigration and Customs Enforcement (ICE) Phoenix Field
Office Director Enrique Lucero, and United States Immigration
Judge Irene Feldman as Respondents.[2] Petitioner asserts that the
Court has habeas corpus jurisdiction to review her claims
pursuant to the Ninth Circuit's decision in
Thuraissigiam v. U.S. Dep't of Homeland Sec.,
917 F.3d 1097 (9th Cir. 2019). She brings two grounds for
relief.
In
Grounds One and Two, Petitioner claims that her credible fear
proceedings denied her a fair and meaningful opportunity to
apply for relief in violation of the governing statute and
implementing regulation, 8 U.S.C. § 1225(b)(1) and 8
C.F.R. § 208.30(d), and the Due Process Clause of the
Fifth Amendment. Petitioner alleges DHS failed to employ the
required non-adversarial procedures when conducting her
credible fear interview, failed to consider binding case law,
and failed to apply the correct legal standard when
evaluating her credible fear claim. Petitioner further
alleges that the IJ denied her a reasonable opportunity to
present her case, applied the wrong legal standard, and
considered evidence outside the record without providing her
with prior notice and an opportunity for rebuttal.
In her
demand for relief, Petitioner asks the Court to: (1)
determine that her expedited removal order violated her
statutory, regulatory, and constitutional rights and, as a
result, she is being detained in violation of the law; (2)
vacate the expedited removal order; and (3) order that she
“be provided a new, meaningful opportunity to apply for
asylum and other relief from removal.” (Doc. 1 at
20-21.)
For the
following reasons, the Court asks that Respondents Barr,
McAleenan, and Lucero answer the Petition.
III.
Motion for Preliminary Injunction and/or Temporary
Restraining Order
A
party seeking injunctive relief under Rule 65 of the Federal
Rules of Civil Procedure must show that: (1) she is likely to
succeed on the merits; (2) she is likely to suffer
irreparable harm in the absence of injunctive relief; (3) the
balance of equities tips in her favor; and (4) an injunction
is in the public interest.[3] Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 20 (2008); Pom Wonderful
LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 2014);
Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th
Cir. 2012); Stuhlbarg Int'l Sales Co., Inc. v. John
D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th
Cir. 2001). Where the movant seeks a mandatory injunction,
rather than a prohibitory injunction, injunctive relief is
“subject to a heightened scrutiny and should not be
issued unless the facts and law clearly favor the moving
party.” Dahl v. HEM Pharms. Corp., 7 F.3d
1399, 1403 (9th Cir. 1993).
Unlike
a preliminary injunction, see Fed. R. Civ. P. 65(a),
a temporary restraining order (“TRO”) may be
entered “without written or oral notice to the adverse
party.” Fed.R.Civ.P. 65(b). A TRO may issue, ex parte,
if: “(A) specific facts in an affidavit or a verified
complaint clearly show that immediate and irreparable injury,
loss, or damage will result to the movant before the
adverse party can be heard in opposition; and (B) the
movant's attorney certifies in writing any efforts made
to give notice and the reasons why it should not be
required.” Fed.R.Civ.P. 65(b) (emphasis added).
Petitioner
moves the Court to enjoin her continued detention, to order
Respondents to provide her with an individualized asylum
hearing, and to stay her removal from the United States while
this action is pending. To the extent Petitioner seeks
release from custody and a new hearing on her asylum claims,
she has not demonstrated that she
will suffer irreparable injury before Respondents can be
heard in opposition. She therefore fails to meet her burden
to demonstrate that she is entitled to immediate injunctive
relief, and her Motion for Temporary Restraining Order will
be denied. See Granny Goose Foods, Inc. v. Brotherhood of
Teamsters & Auto Truck Drivers Local No. 70, 415
U.S. 423, 439 (1974) (consistent with the
“stringent” restrictions of Fed.R.Civ.P. 65(b), a
temporary ...