United States District Court, D. Arizona
ORDER
JAMES
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
Petitioner
Narinder Singh Heer, 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 an Emergency Motion to
Stay Removal (Doc. 2). The Court will deny the Motion without
prejudice and require Respondents to answer the Petition.
I.
Background
Petitioner
is a native and citizen of India. On June 29, 2019, he
entered the United States without inspection at an unknown
location and was encountered and taken into custody by the
United States Department of Homeland Security (DHS) the same
day. (Docs. 1 ¶ 34; 1-2 at 55-56.) 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 ¶ 35.) Petitioner expressed a fear
of persecution or torture if returned to India and was
referred for a credible fear determination.
On
August 16, 2019, Petitioner received a credible fear
interview. (Docs. 1 ¶ 35; 1-2 at 34-49.) An asylum
officer found Petitioner was credible but that he had not
established a credible fear of persecution or torture, in
that there was not a significant possibility Petitioner could
establish eligibility for asylum, withholding of removal, or
protection under Article III of the United Nations Convention
Against Torture. (Doc. 1-2 at 48-52.) The asylum officer
reasoned that “[a]lthough [Petitioner had] established
a significant possibility of past persecution on account of
his political opinion, there [was] substantial evidence that
[Petitioner] could internally relocate and that it would be
reasonable for him to do so, ” and “the record
[did] not establish a significant possibility that it is more
likely than not [Petitioner would] be subjected to severe
pain or suffering in another state of India.”
(Id. at 51.)[1] The determination was approved by a
supervisory asylum officer and Petitioner was ordered removed
from the United States. (Id. at 49.)
Petitioner
requested review of the credible fear determination by an
Immigration Judge (IJ), and on September 27, 2019, the IJ
affirmed the asylum officer's credible fear
determination. (Doc. 1 ¶ 36.)[2]
II.
Petition
In his
Petition, Petitioner names Acting DHS Secretary Chad Wolf,
United States Attorney General William Barr, Acting United
States Immigration and Customs Enforcement (ICE) Director
Matthew T. Albence, Acting United States Immigration and
Citizenship Services (USCIS) Director Kenneth Cuccinelli, ICE
Phoenix Field Office Director Henry Lucero, and La Palma
Correctional Center Warden Chuck Keeton as
Respondents.[3] Petitioner brings three grounds for relief
and asserts that this 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).[4]
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 regulations, 8 U.S.C. § 1225(b)(1) and 8
C.F.R. §§ 208.30(d), 1208.13(b), and the Due
Process Clause of the Fifth Amendment. Petitioner alleges the
asylum officer failed to employ the required non-adversarial
procedures when conducting his credible fear interview,
improperly allocated the burden of proof, and misapplied the
relevant regulations and binding case law when evaluating his
credible fear claim. In Ground Three, Petitioner requests
attorney's fees and costs under the Equal Access to
Justice Act.
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
18-19.)
The
Court will require Respondents Wolf, Barr, Albence,
Cuccinelli, Lucero, and Keeton to answer the Petition.
III.
Emergency Motion to Stay Removal
In the
Ninth Circuit, “a petitioner seeking a stay of removal
must show that irreparable harm is probable and either: (a) a
strong likelihood of success on the merits and that the
public interest does not weigh heavily against a stay; or (b)
a substantial case on the merits and that the balance of
hardships tips sharply in the petitioner's favor.”
Leiva-Perez v. Holder, 640 F.3d 962, 970 (9th Cir.
2011) (discussing application of Nken v. Holder, 556
U.S. 418, 444 (2009)).
In his
Emergency Motion, Petitioner asks the Court to stay his
removal from the United States and to enjoin his transfer
outside of Arizona for the duration of these proceedings. The
Motion will be denied without prejudice. Although Petitioner
alleges that he will suffer “grave, irreparable harm if
removed” (Doc. 2 at 10), he has not alleged any
specific facts indicating that he is at risk of imminent
removal, such that he should be granted an emergency stay
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