United States District Court, D. Arizona
ORDER
HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.
Petitioner
Kuldeep Kumar 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 deny the Motion
for Temporary Restraining Order and call Respondents to
answer the Petition and respond to the Motion for Preliminary
Injunction.
I.
Background
Petitioner
is a native and citizen of India. On February 9, 2019, he
entered the United States without inspection near Otay Mesa,
California, and was encountered and taken into custody by the
United States Department of Homeland Security (DHS) on
February 12, 2019. (Docs. 1-2, 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). (Doc. 1-2.) Petitioner expressed a fear of
persecution or torture if returned to India and was referred
for a credible fear determination and detained in the
CoreCivic La Palma Detention Center in Eloy, Arizona. (Doc.
1-4.)
On
March 14, 2019, Petitioner received a telephonic credible
fear interview. (Docs. 1-4, 1-5.) An asylum officer
determined Petitioner had not established a credible fear of
persecution or torture if removed to India, finding that,
after “[c]onsidering the totality of the circumstances
and all relevant factors, [Petitioner had] not established
that [his] testimony is credible.” (Doc. 1-6.) The
determination was approved by a supervisory asylum officer,
and on March 27, 2019, Petitioner was ordered removed from
the United States. (Docs. 1-4, 1-6.) Petitioner requested
review of the credible fear determination by an Immigration
Judge (IJ), and a hearing was scheduled for April 4, 2019.
(Docs. 1-6, 1-7, 1-9.) Petitioner retained counsel, who filed
a notice of appearance with the immigration court on April 3,
2019. (Doc. 1-10.) During his hearing the following day,
Petitioner advised that he had retained counsel, but the IJ
“erroneously indicated there was no E-28 submitted and
held the hearing prior to 11 a.m. without the benefit of
counsel.” (Doc. 1 ¶ 23.) At the conclusion of the
hearing, the IJ affirmed the asylum officer's credible
fear determination. (Doc. 1-8.)
II.
Petition
In his
Petition, Petitioner names United States Attorney General
William Barr, former Acting DHS Secretary Kevin McAleenan,
Executive Office for Immigration Review (EOIR) Director James
McHenry, United States Immigration and Customs Enforcement
(ICE) Phoenix Field Office Director Enrique Lucero, and
United States Immigration Judge John Davis as
Respondents.[1] Petitioner asserts that the Court has
habeas corpus jurisdiction to review his 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), cert. granted, No. 19-161 (Oct. 18,
2019).[2]
Petitioner
brings two grounds for relief. In Grounds One and Two,
Petitioner claims that his credible fear proceedings denied
him 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 his credible fear
interview and failed to apply the correct legal standard when
evaluating his credible fear claim. Petitioner further
alleges that the IJ denied him his right to be represented by
counsel and applied the wrong legal standard to his claims.
In his
demand for relief, Petitioner asks the Court to: (1)
determine that his expedited removal order violated his
statutory, regulatory, and constitutional rights and, as a
result, he is being detained in violation of the law; (2)
vacate the expedited removal order; and (3) order that he
“be provided a new, meaningful opportunity to apply for
asylum and other relief from removal.” (Doc. 1 at 19.)
The
Court will require Respondents Barr, McAleenan, and Lucero to
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) he is likely to
succeed on the merits; (2) he is likely to suffer irreparable
harm in the absence of injunctive relief; (3) the balance of
equities tips in his 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 his continued detention, to order
Respondents to provide him with an individualized asylum
hearing, and to stay his removal from the United States while
this action is pending. To the extent Petitioner seeks
release from custody and a new hearing on his asylum claims,
he has not shown that he will suffer irreparable injury
before Respondents can be heard in opposition. Nor has
Petitioner demonstrated that he is at risk of imminent
removal. Petitioner alleges that he is subject to an order of
expedited removal that became final more than six months ago.
Yet, he does not allege any facts which explain why the order
remains unexecuted or indicate that he will be removed in the
immediate future. Petitioner therefore fails to meet his
burden to demonstrate that he is entitled to immediate
injunctive relief, and his Motion for Temporary Restraining
Order will be denied. See Granny Goose Foods, Inc. v.
Brotherhood ofTeamsters & 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 restraining order may be entered only to
execute the “underlying purpose of preserving the
status quo and preventing irreparable harm just so long as is
necessary to hold a hearing, and no longer”). In its
discretion, however, the Court will call for a response to
the ...