United States District Court, D. Arizona
ORDER
Michael T. Liburdi United Stales District Judge
Petitioner
Jashanbreet Singh, who is detained in the CoreCivic La Palma
Correctional 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 July 25, 2019, he
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) the same
day. (Docs. 1-3, 1-4.) 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. 1-3.) Petitioner expressed a fear of
persecution or torture if returned to India and was referred
for a credible fear determination.
On
September 11, 2019, and September 18, 2019, Petitioner
received telephonic credible fear interviews. (Docs. 1-5,
1-6.) An asylum officer found Petitioner was credible but
that he had not established that he had a reasonable fear of
persecution or torture if removed to India.[1] (Docs. 1-5,
1-7.) The asylum officer reasoned that Petitioner
“could reasonably avoid persecution by relocating
within [his] country, ” and Petitioner had “not
established that there is a reasonable possibility that . . .
[he] would suffer severe physical or mental pain or
suffering.” (Doc. 1-7.) The determination was approved
by a supervisory asylum officer, and on October 7, 2019,
Petitioner was ordered removed from the United States. (Docs.
1-5, 1-7.) Petitioner requested review of the credible fear
determination by an Immigration Judge (IJ), and a hearing was
held on October 25, 2019. (Docs. 1 ¶ 21, 1-7, 1-8.)
During the hearing, the IJ received “documents that
were not given to Petitioner, ” including
“Officer's Notes.” At the conclusion of the
hearing, the IJ affirmed the asylum officer's credible
fear determination. (Doc. 1 ¶ 21.)
II.
Petition
In his
Petition, Petitioner names United States Attorney General
William Barr, former Acting DHS Secretary Kevin McAleenan,
[2]
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 Marni Guerrero as
Respondents.[3] 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).
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, referred to reports that were not given to
Petitioner to review, failed to consider binding case law,
and failed to apply the correct legal standard when
evaluating his credible fear claim. Petitioner further
alleges that the IJ applied the wrong legal standard, denied
him a reasonable opportunity to present his case, and took
outside research into consideration that had not been
provided to Petitioner.
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 18.)
The
Court asks that Respondents Barr, Wolf, 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) 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.[4] 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 or
transfer, 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 a new hearing on his asylum claims, release
from custody, or to remain detained in Arizona, he has
not demonstrated that he will
suffer irreparable injury before Respondents can be heard in
opposition. He 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 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
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