Kaur v. Barr

          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 ...