“An error by counsel, even if professionally unreasonable, does 23 not warrant setting aside the [underlying] judgment . . . if the error had no effect on the 24 judgment.”
How later courts described this case
- “An error by counsel, even if professionally unreasonable, does 23 not warrant setting aside the [underlying] judgment . . . if the error had no effect on the 24 judgment.”
- Although the injunction factors may be considered on a sliding scale, “[t]o reach 6 this sliding scale analysis . . . a moving party must, at an irreducible minimum, 7 demonstrate some chance of success on the merits.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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LUCIANO MORALES, CASE NO. 19cv1575-LAB (AHG)
11 Plaintiff,
ORDER DENYING TEMPORARY
12 vs. RESTRAINING ORDER [Dkt. 2]
13 KEVIN MCALEENAN, et al.,
14 Defendants.
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17 Petitioner Luciano Morales has filed a last-minute request for a temporary
18 restraining order (“TRO”) enjoining the government from executing a removal scheduled
19 to take place today, August 21, 2019, at 4:00 p.m. For the reasons below, that request
20 is DENIED.
21 Background
22 Morales, a Mexican citizen, entered the United States unlawfully in 2009.
23 Following his arrest, the United States instituted removal proceedings against him on
24 February 11, 2015. For the last four years, he has sought to forestall or overturn his
25 removal by arguing, among other things, that his 2015 arrest violated the Fourth
26 Amendment and that evidence related to the arrest should be suppressed. The
27 immigration judge rejected the suppression argument, admitted the evidence, and
28 sustained the government’s allegations. On appeal, the Board of Immigration Appeals
1 (“BIA”) concluded that Morales had waived his ability to challenge the immigration judge’s
2 suppression finding because Petitioner’s then-counsel did not address the issue in his
3 appeal. The BIA denied Morales’ appeal on July 2, 2018. Arguing that his counsel’s
4 inadvertent waiver constituted ineffective assistance of counsel, Morales filed a Motion to
5 Reopen with the BIA on August 6, 2019. Before that motion could be heard, however,
6 the government informed counsel that it planned to deport Morales on August 21, 2019
7 at 4:00 p.m. He now seeks to enjoin that deportation until the BIA can hear his Motion to
8 Reopen.
9 Analysis
10 Although the Court has only limited jurisdiction over deportation-related matters, it
11 does have jurisdiction over habeas petitions—like this one—that are derivative of the
12 underlying deportation order. See Sied v. Nielsen, 2018 WL 1142202, at *12 (N.D. Cal.
13 2018) (“In sum, if a habeas petition is not a direct challenge to an order of removal, nothing
14 in Section 1252(a)(5) or (b)(9) prevents a district court from exercising jurisdiction to hear
15 the petition.).
16 But despite having jurisdiction, the Court cannot grant the extraordinary relief
17 Morales seeks here. To grant an ex parte TRO, Petitioner must establish “that he is likely
18 to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
19 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
20 the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)
21 (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The scant
22 information provided by Morales does not establish that he is likely to succeed on the
23 merits of his underlying claim. In particular, other than his bare allegation that the stop
24 that resulted in his arrest was an “egregious violation of his 5th Amendment rights,”
25 Morales offers no information about the circumstances surrounding the stop nor about
26 any subsequent ICE investigation into its legality. The Court simply can’t deduce from
27 these unadorned allegations that Morales has any likelihood of successfully challenging
28 his removal on a motion to reopen. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
1 (Preliminary injunctive relief “is an extraordinary and drastic remedy, one that should not
2 be granted unless the movant, by a clear showing, carries the burden of persuasion.”).
3 Aside from the lack of factual substance, there is a substantial likelihood that
4 Morales’s Motion to Reopen will be denied as untimely. A party seeking to reopen an
5 immigration appeal must generally file that motion “no later than 90 days after the date
6 on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). The
7 BIA issued its final administrative decision on April 10, 2019 when it denied Morales’s
8 motion for reconsideration. This means any motion to reopen was due on or about July
9 9, 2019. But Morales didn’t file his motion until August 9, 2019 – a month after the
10 statutory deadline and well outside the 90-day window. Morales’s petition doesn’t reveal
11 when his present counsel first learned of the illegal stop allegation, so the Court has no
12 basis for concluding that he might qualify for equitable tolling that would extend this
13 window. Instead, as it stands, it appears substantially likely that any Motion to Reopen
14 will be denied as untimely. This further undercuts Morales’s argument that he is likely to
15 succeed on the merits of his underlying claim.
16 Morales also alleges that his prior counsel was ineffective, but this is largely a red
17 herring. Though Morales’s former counsel has filed a declaration conceding that her
18 handling of Morales’s BIA appeal was ineffective, she does not say it was
19 unconstitutionally defective – only that that it was “below (sic) standard performance of
20 [her] own typical work.” Dkt. 3 Ex. B. More importantly, ineffective assistance of counsel
21 is material only if it affects the ultimate outcome of the case, see Strickland v. Washington,
22 466 U.S. 668, 691 (1984) (“An error by counsel, even if professionally unreasonable, does
23 not warrant setting aside the [underlying] judgment . . . if the error had no effect on the
24 judgment.”). And, as the Court has already pointed out, it cannot be said on this limited
25 record that Morales was likely to succeed on the merits of his suppression argument,
26 even with effective counsel. Whether he may have received ineffective assistance of
27 counsel at an earlier stage of these proceedings is thus immaterial here.
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1 In short, the Court does not find that Morales has shown he is likely to succeed on
2 the merits of his underlying claim. In light of this finding, the Court isn’t required to and
3 does not address the remaining factors Morales must show to justify issuance of an
4 injunction. See Glob. Horizons, Inc. v. U.S. Dep't of Labor, 510 F.3d 1054, 1058 (9th Cir.
5 2007) (Although the injunction factors may be considered on a sliding scale, “[t]o reach
6 this sliding scale analysis . . . a moving party must, at an irreducible minimum,
7 demonstrate some chance of success on the merits.”). While the Court denies the
8 injunction, it’s worth noting that Morales can continue to litigate his Motion to Reopen from
9 Mexico. The availability of this avenue of relief also cuts against a finding of irreparable
10 harm. See Nken v. Holder, 556 U.S. 418, 435 (2009) (“It is accordingly plain that the
11 burden of removal alone cannot constitute the requisite irreparable injury. Aliens who are
12 removed may continue to pursue their petitions for review, and those who prevail can be
13 afforded effective relief by facilitation of their return, along with restoration of the
14 immigration status they had upon removal.”).
15 One last observation: Although the above analysis is sufficient to warrant denying
16 the TRO, the timing of this motion also militates against granting relief. Morales filed his
17 motion approximately 4:00 p.m. on August 21, 2019 – exactly the time that he was
18 scheduled to be removed. Conspicuously absent from Morales’s briefing is any reference
19 to when he first learned of the scheduled deportation date and time. Assuming he knew
20 the schedule sometime before today—which seems likely given the extensive briefing his
21 counsel has prepared—there was no reason to prejudice Respondents by waiting until
22 the time of the scheduled deportation to seek the extraordinary remedy of a TRO. This
23 District’s local rules require that any party seeking ex parte relief submit a declaration
24 demonstrating that (1) the party informed the opposing party when and where the motion
25 would be made, (2) that the party tried but was unable to inform the opposing party of the
26 motion, or (3) that the party should not be required to inform the opposing party. See Civ.
27 L.R. 83.3(g); Fed. R. Civ. Pro. 65(b). Morales hasn’t even tried to make this required
28 showing. Although the burden on the Court is not a significant factor in denying the relief
1 || sought here, it’s also worth pointing out that Morales may have already been deported,
2 || which means the Court runs the very real risk of issuing an advisory opinion on a moot
3 || issue.
4 Morales’ request for a temporary restraining order is DENIED. Dkt. 2. Petitioner’s
5 || counsel is ORDERED to immediately notify the Court if Petitioner is removed. This Order
6 || does not prejudice Petitioner’s right to seek a stay of removal from BIA, DHS, or any other
7 || appropriate immigration authority.
8 IT IS SO ORDERED.
9 || Dated: August 21, 2019 (sm / A (Bay nV
10 Honorable Larry Alan Burns
44 Chief United States District Judge
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