holding district courts will only 22 have jurisdiction in the “rare case[s]” where petitioners allege a “colorable” constitutional 23 or legal challenge to the government’s procedures
How later courts described this case
- holding district courts will only 22 have jurisdiction in the “rare case[s]” where petitioners allege a “colorable” constitutional 23 or legal challenge to the government’s procedures
- holding the scope of habeas jurisdiction “is limited to claims that allege 18 constitutional or statutory error”
- holding once the BIA rendered its decision, the petitioner “could have properly 3 pursued habeas relief in the district court”
Written by the judges who cited it.
The opinion
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9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
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12 JULIO ROMERO-SALAS, Case No.: 20cv0073-BAS (KSC)
13 Petitioner,
ORDER DENYING PETITIONER’S
14 v. MOTION FOR PRELIMINARY
INJUNCTION
15 WILLIAM BARR, et al.,
16 Respondents. [ECF No. 8]
17
18 Presently before the Court is Petitioner Julio Romero-Salas’s Motion for Preliminary
19 Injunction. (“Mot.,” ECF No. 8.) Petitioner is an asylum-seeker from Mexico who is
20 currently in removal proceedings before the Otay Mesa Immigration Court and detained at
21 the Otay Mesa Detention Center. (Id. at 2.) He seeks a preliminary injunction requiring
22 the Respondents in this case to release him from their custody if they do not provide him
23 with a constitutionally adequate bond hearing within seven days. Respondents filed an
24 opposition to the Motion, (“Opp’n,” ECF No. 11) and Petitioner filed a Reply, (“Reply,”
25 ECF No. 12).
26 The Court finds this Motion suitable for determination on the papers and without
27 oral argument. Civ. L. R. 7.1(d)(1). For the reasons stated below, the Court DENIES the
28 Motion.
1 I. BACKGROUND
2
Petitioner has been in the custody of the United States Department of Homeland
3
Security (DHS) since about May 2, 2019. (Mot. at 2.) He is currently detained at the Otay
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Mesa Detention Center in San Diego, California. (Id.)
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Petitioner lived in the United States previously, and between the years 2006 and
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2009, he was living in Long Beach, California. While there, he was struck by cars on three
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separate occasions, which, according to his neuropsychological evaluator, “resulted in
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posttraumatic amnesia and neuromedical sequelae, consistent with traumatic brain injury
9
(TBI).” (Id.) The evaluator diagnosed Petitioner with various mental disorders, and
10 Petitioner does not remember much about the time period, but he remembers experiencing
11 hallucinations. (Id.) Also during the 2006 to 2009 time period, Petitioner was convicted
12 of various crimes. He admits,
13 In 2007, he was convicted of violating Cal. Penal Code § 853.7 (“Violation of
14 promise to appear as misdemeanor”) and sentenced to probation. Later that
year, he was convicted of vandalism, in violation of Cal. Penal Code § 594(a),
15 and sentenced to 30 days’ imprisonment with probation. Later in 2007, he
16 was convicted of a misdemeanor local ordinance violation and sentenced to
two days’ imprisonment with probation. He was convicted once more in
17 2007 of violating section 594(a), for which he received a sentence of 90 days’
18 imprisonment. In 2008, Mr. Romero Salas was convicted once more of
vandalism, see id., and sentenced to 90 days’ imprisonment plus restitution.
19 He was also convicted that year of violating penal code sections 602(o)
20 (trespass) and 245(a) (assault with a deadly weapon other than a firearm [with
likely great bodily injury])—for which he was sentenced to 30 days’
21 imprisonment plus restitution. Finally, Mr. Romero was convicted in 2009 of
22 violating penal code section 148.9(a) (misdemeanor false representation of
identity to peace officer) and sentenced to ten days’ imprisonment with
23 probation.
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25 (Id. at 2–3.) Petitioner also believes he was “falsely accused and convicted of rape in
26 Mexico in either the 1970s or 1990s.” (Id. at 3; see also “Exhibit F to Petition,” ECF No.
27 1-8, at 5 (Petitioner declares, “I think I was convicted [of rape]. I spent about 12 years in
28 the Santa Marta Catitla Penitentiary in Mexico City.”).)
1 In 2010, DHS removed Petitioner to Mexico, where he lived, homeless, for nine
2 years, until “fear of harm in Mexico caused him to flee to the United States” in April 2019.
3 (Id.) DHS apprehended him and he was charged with illegal entry in violation of 18 U.S.C.
4 § 1325. (Id.; 19-mj-21735-MJS-GPC-1.) The government moved to detain Petitioner, but
5 Judge Curiel denied that motion and set bail at $1,000. After the court ordered a
6 competency evaluation, the government moved to dismiss the complaint against Petitioner.
7 Judge Curiel granted the motion on May 1, 2019. (Id., ECF No. 8.) Petitioner never posted
8 bail in his criminal case. After the complaint was dismissed, DHS took custody of
9 Petitioner. (Mot. at 3.)
10 On June 21, 2019, DHS filed a Notice to Appear with the Otay Mesa Immigration
11 Court. (Id.) On or about July 11, 2019, DHS issued a “Notice of Franco-Gonzalez Class
12 Membership” for Petitioner which entitled him to a bond hearing after he had been detained
13 for 180 days. See Franco-Gonzalez v. Holder, No. CV 10-2211 DMG (DTBx), 2013 WL
14 3674492 (C.D. Cal. Apr. 23, 2013); (“Exhibit E to Petition,” ECF No. 1-7). On July 18,
15 2019, an Immigration Judge (“IJ”) found Petitioner to be incompetent and appointed him
16 counsel in his removal proceedings. (Mot. at 4; “Medeiros Decl.,” ECF No. 1-3, ¶ 1.)
17 Petitioner applied for asylum. (Mot. at 4.) Petitioner’s appointed counsel “has found that
18 Mr. Romero’s mental disorders create serious obstacles to effectively representing him in
19 connection with his asylum application. Although Mr. Romero has been adamant that he
20 is afraid to return to Mexico, he has been unable fully articulate why.” (Id.)
21 A bond hearing was held on December 16, 2019. The IJ found that DHS had
22 established by clear and convincing evidence that Petitioner was a danger to the community
23 and therefore the IJ denied bond. Petitioner filed a timely appeal to the Board of
24 Immigration Appeals (BIA) and the appeal remains pending. (Mot. at 3.) The merits
25 hearing on his asylum application is scheduled for March 31, 2020. (Id.; “Exhibit D to
26 Mot.,” ECF No. 8-6.) In January 2019, Petitioner filed a petition for habeas corpus
27 pursuant to 28 U.S.C. § 2241 and the present Motion for Preliminary Injunction. Both seek
28 the same relief.
1 II. LEGAL STANDARD
2 Federal Rule of Civil Procedure 65 governs the issuance of preliminary injunctions.
3 A preliminary injunction is an equitable remedy aimed at preserving the status quo and at
4 preventing the occurrence of irreparable harm during the course of litigation. See Fed. R.
5 Civ. P. 65. “A plaintiff seeking a preliminary injunction must establish that he is likely to
6 succeed on the merits, that he is likely to suffer irreparable harm in the absence of
7 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
8 the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A
9 preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear
10 showing that the plaintiff is entitled to such relief.” Id. at 22.
11 III. ANALYSIS
12 Petitioner seeks an order that would release him from detention if he is not provided
13 with a “constitutionally adequate” bond hearing within seven days. (Mot. at 1.) He argues
14 if he is released, “venue in his removal proceedings would transfer from the Otay Mesa
15 Immigration Court’s expedited detained docket to a non-expedited non-detained docket.
16 And this would give [him]—who prior to his current detention was homeless in Tijuana,
17 and not receiving mental-health treatment—time to rehabilitate.” (Id. at 7.) This “will
18 increase the likelihood that [he] rehabilitates such that he can better articulate what has
19 happened to him in Mexico and why he is afraid of returning there.” (Id. at 1.)
20 A. Likelihood of Success on the Merits
21 Petitioner acknowledges that he must overcome various procedural hurdles before
22 the substance of his case may be heard, namely, whether he should be required to exhaust
23 administrative remedies and whether the Court has jurisdiction over his claims. He argues
24 he is able to succeed on the merits of all issues.
25 1. Administrative Exhaustion
26 Petitioner appealed the IJ’s bond denial to the BIA, but the BIA has not issued a
27 ruling on his appeal or even set a briefing schedule. (Mot. at 6.) Petitioner admits that he
28 has not exhausted administrative remedies because he filed his habeas petition in this Court
1 before the BIA issued a decision. See Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th
2 Cir. 2011) (holding once the BIA rendered its decision, the petitioner “could have properly
3 pursued habeas relief in the district court”). Petitioner argues that he is likely to succeed
4 on his argument that the exhaustion requirement should not prevent the Court from
5 reaching the merits of his habeas petition. (Mot. at 10.) He argues the Court is “quite
6 competent” to analyze the petition without waiting for the BIA’s opinion, and he will be
7 irreparably harmed if the Court does not waive exhaustion. (Id. at 11–12.)
8 “District courts are authorized by 28 U.S.C. § 2241 to consider petitions for habeas
9 corpus. That section does not specifically require petitioners to exhaust direct appeals
10 before filing petitions for habeas corpus.” Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047
11 (9th Cir. 2001), abrogated by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006).
12 However, as a prudential matter, “habeas petitioners [must] exhaust available judicial and
13 administrative remedies before seeking relief under § 2241.” Id. Courts may require
14 prudential exhaustion when:
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(1) agency expertise makes agency consideration necessary to generate a
16 proper record and reach a proper decision; (2) relaxation of the requirement
would encourage the deliberate bypass of the administrative scheme; and (3)
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administrative review is likely to allow the agency to correct its own mistakes
18 and to preclude the need for judicial review.
19 Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007). If a petitioner fails to exhaust
20 prudentially required administrative remedies, then “a district court ordinarily should either
21 dismiss the petition without prejudice or stay the proceedings until the petitioner has
22 exhausted remedies.” Leonardo, 646 F.3d at 1160. Nonetheless, even if the three Puga
23 factors weigh in favor of prudential exhaustion, a court may waive the prudential
24 exhaustion requirement if “administrative remedies are inadequate or not efficacious,
25 pursuit of administrative remedies would be a futile gesture, irreparable injury will result,
26 or the administrative proceedings would be void.” Laing v. Ashcroft, 370 F.3d 994, 1000
27 (9th Cir. 2004) (quoting SEC v. G.C. George Sec., Inc., 637 F.2d 685, 688 (9th Cir. 1981)).
28 Here, Petitioner first argues that the Puga factors do not weigh in favor of the Court
1 applying the exhaustion requirement. The Court disagrees. Petitioner believes the IJ’s
2 determination was wrong, which is an issue that can be directly addressed by the BIA. The
3 BIA can “correct” the IJ’s mistake, if it made one. And allowing Petitioner to bypass the
4 BIA and come directly to this Court would indeed encourage others to do the same. See
5 Rojas–Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003) (holding a petitioner “must
6 exhaust administrative remedies before raising . . . constitutional claims in a habeas petition
7 when those claims are reviewable by the BIA on appeal . . . ‘The exhaustion requirement
8 avoids premature interference with the agency’s processes and helps to compile a full
9 judicial record.”). Therefore, the Court finds it “may” require prudential exhaustion under
10 Puga.
11 Petitioner next argues that the Court should waive the exhaustion requirement
12 because he will be irreparably injured if his challenge is not heard before the merits hearing
13 on his asylum application, which is scheduled for March 31, 2020. In sum, it appears that
14 Petitioner’s attorney fears that the asylum claim will be unsuccessful because at this point,
15 neither he nor Petitioner will be able to articulate why Petitioner should be granted asylum.
16 With more time and potential mental health treatment for Petitioner, counsel believes he
17 has a better chance at successfully understanding Petitioner’s asylum claim. He states that
18 it is “improbable that the BIA will resolve [Petitioner’s] appeal before his merits hearing.”
19 (Mot. at 12.)
20 Based on the short time until the asylum hearing, the Court agrees it is unlikely that
21 the BIA will issue an opinion before the hearing. Further, the Court agrees that the BIA’s
22 decision will not add any new facts to the judicial record that would assist the Court in its
23 review of the IJ’s decision. The Court agrees that Petitioner would be irreparably harmed
24 if it is determined that Petitioner was not provided with a constitutionally adequate bond
25 hearing and he must adjudicate his asylum claim without that hearing. The Court finds that
26 Petitioner has proved he is likely to succeed on the merits of his argument that the Court
27 should waive the exhaustion requirement.
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1 2. Jurisdiction
2 Petitioner argues he is likely to succeed on the merits of his argument that the Court
3 has jurisdiction over this case. (Mot. at 14.)
4 After Petitioner had been detained for 180 days, he became a member of the Franco-
5 Gonzalez class. See 2014 WL 5475097, at *12. Petitioner was granted a bond hearing
6 because of this class membership. At the hearing, the Government bears the burden of
7 justifying the class member’s continued detention by clear and convincing evidence. Id.
8 at *13. “Immigration Judges may look to a number of factors in determining whether an
9 alien merits release from bond.” Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006)
10 (listing the factors). “An Immigration Judge has broad discretion in deciding the factors
11 that he or she may consider in custody redeterminations.” Id. “The Immigration Judge
12 may choose to give greater weight to one factor over others, as long as the decision is
13 reasonable.” Id. Here, the IJ concluded that Petitioner should not be released on bond.
14 “[A] federal district court has habeas jurisdiction under 28 U.S.C. § 2241 to review
15 [ ] bond hearing determinations for constitutional claims and legal error.” Singh v. Holder,
16 638 F.3d 1196, 1200–01 (9th Cir. 2011); see also Singh v. Ashcroft, 351 F.3d 435, 439 (9th
17 Cir. 2003) (holding the scope of habeas jurisdiction “is limited to claims that allege
18 constitutional or statutory error”). The writ of habeas corpus “is not available to claim that
19 the INS simply came to an unwise, yet lawful, conclusion when it . . . exercise[d] its
20 discretion.” Gutierrez–Chavez v. INS, 298 F.3d 824, 828 (9th Cir. 2002); see also
21 Hernandez v. Sessions, 872 F.3d 976, 989 (9th Cir. 2017) (holding district courts will only
22 have jurisdiction in the “rare case[s]” where petitioners allege a “colorable” constitutional
23 or legal challenge to the government’s procedures). The Court cannot determine whether
24 it “believes that the proof establishes, by clear and convincing evidence, that [the
25 petitioner] is a danger to the community.” Nguti v. Sessions, No. 16-CV-6703, 2017 WL
26 5891328, at *3 (W.D.N.Y. Nov. 29, 2017). Rather, the Court must decide whether the IJ
27 “relied upon proof that—as a matter of law—could not establish” that conclusion. Id.
28 Here, Petitioner is indeed questioning the IJ’s decision not to release him on bond,
1 but he asserts he is not attacking the IJ’s discretion in her weighing of the various factors
2 but is claiming “that the IJ misapplied the ‘clear and convincing’ standard.” (Mot. at 15.)
3 He believes the IJ erred in “overlying [sic] on his past arrests and convictions in the United
4 States[,]” “relying on [Petitioner’s] testimony[,]” and “failing to explain why these show
5 that he continues to be dangerous.” (Id. at 16.) Petitioner cites Ortega-Rangel v. Sessions,
6 313 F. Supp. 3d 993, 1002 (N.D. Cal. 2018), where the court found it had jurisdiction over
7 the petitioner’s claim because she was not challenging the IJ’s weighing of the evidence,
8 but was contending the IJ violated due process in relying “solely on an arrest to find a
9 danger to the community” when there was no support in the record that she committed the
10 crime for which she was arrested.
11 Because he is arguing that the IJ relied on proof that could not sufficiently establish
12 dangerousness, the Court finds that Plaintiff has pled that he is likely to succeed on the
13 merits of his argument that the Court has jurisdiction over this case.
14 3. The IJ’s Decision
15 Petitioner argues he is likely to succeed on the merits in arguing that the IJ committed
16 prejudicial legal error in concluding that he is dangerous. (Mot. at 17.)1
17 As noted above, the IJ has broad discretion in his or her consideration of many
18 factors at a bond determination hearing. These factors may include any or all of the
19 following:
20 (1) whether the alien has a fixed address in the United States; (2) the alien’s
length of residence in the United States; (3) the alien’s family ties in the
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United States, and whether they may entitle the alien to reside permanently in
22 the United States in the future; (4) the alien’s employment history; (5) the
23
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1 The IJ issued an oral decision at Petitioner’s December 16, 2019 bond hearing. Petitioner has provided
the Court with an audio recording of the hearing. (Exhibit B to Mot., ECF No. 8-4.) After Petitioner filed
25 his habeas petition, the IJ issued a “Bond Memorandum of the Immigration Judge” which explains the
IJ’s reasoning behind her oral decision. (“Exhibit C to Mot.,” ECF No. 8-5.) Petitioner argues that the
26 Court should not consider the memorandum in analyzing the IJ’s decision. (Mot. at 8–9 (citing Singh,
638 F.3d at 1208).)
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The Court does not offer an opinion on whether it can consider the memorandum as well as the
28 IJ’s decision at the hearing, as it only evaluated the IJ’s decision put forth at oral argument in analyzing
1 alien’s record of appearance in court; (6) the alien’s criminal record, including
the extensiveness of criminal activity, the recency of such activity, and the
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seriousness of the offenses; (7) the alien’s history of immigration violations;
3 (8) any attempts by the alien to flee prosecution or otherwise escape from
authorities; and (9) the alien's manner of entry to the United States.
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5 Matter of Guerra, 24 I. & N. Dec. at, 40.
6 At the bond determination hearing in this matter, the IJ considered Petitioner’s own
7 declaration and testimony, wherein he said he was arrested for rape, convicted, and spent
8 about twelve years in the Santa Marta Catitla Penitentiary in Mexico City. (Exhibit B to
9 Mot.; Exhibit F to Petition at 5.) Petitioner also says he did not rape the woman. (Exhibit
10 F to Petition at 5.)
11 Further, the IJ considered the fact that the last time Petitioner was in the United
12 States, he engaged in quite a bit of criminal activity. Petitioner’s crimes range in severity,
13 from an arrest for possession of alcohol and progressing to assault with a deadly weapon
14 with likely great bodily injury. (Exhibit F to Petition at 34–42.) The IJ concluded that the
15 Government had shown by clear and convincing evidence that Petitioner should not be
16 released on bond due to his dangerousness.
17 The Court finds that the IJ relied on evidence on the record that could establish
18 dangerousness. Petitioner himself testified about his rape conviction, and although his
19 testimony was at times hard to follow, there is no dispute that he admitted to the conviction.
20 (See also Exhibit F to Petition at 5 (Petitioner’s declaration).) Petitioner declares that he
21 did not commit the rape, (id.) but the IJ could not ignore the fact that he was indeed
22 convicted. It seems likely that in many cases, the person convicted of a crime will argue
23 they were wrongly convicted, and while such an assertion is considered by the IJ, that does
24 not mean she should ignore the conviction. Information about Petitioner’s other
25 convictions (from 2006 to 2009) was also presented, and the IJ was in possession of
26 detailed information about Petitioner’s criminal history. The Government could not
27 provide information as to Petitioner’s behavior in the past nine years (because he had been
28 in Mexico), so the IJ considered Petitioner’s behavior when he was in the United States.
1 (See Exhibit B to Mot. (the IJ noting that “the last time [Petitioner] was here in the United
2 States he had many encounters with the law in increasing seriousness, and one was a violent
3 offense, . . . an assault with a deadly weapon, not a firearm, great bodily injury likely”).
4 The “recency of [criminal] activity” is only one factor the IJ considers, along with “the
5 extensiveness of criminal activity” and “the seriousness of the offenses.” Singh, 638 F.3d
6 at 1206.
7 An IJ may, consistent with due process, rely on pending criminal charges to make a
8 dangerousness finding “if the evidence supporting the charge is specific and probative.”
9 Ortega-Rangel, 313 F. Supp. 3d at 1005 (citing Matter of Guerra, 24 I & N. Dec. at 40).
10 The Court finds the IJ here did so, and Petitioner’s rap sheet is specific and not contested.
11 The IJ did not rely on the rap sheet alone, she relied on Petitioner’s admission that he was
12 convicted of the crimes and his admission regarding the rape conviction in Mexico.
13 Petitioner’s criminal activity while he was in this country could be considered extensive,
14 and some of it serious. The IJ appropriately considered the information in front of her in
15 making her determination. Petitioner stresses that he was not receiving consistent mental
16 health treatment at the time of various infractions, (Reply at 7), and that should be
17 considered. However, Petitioner is not receiving mental health treatment now, and
18 although he may have access to mental health care if he is released, there is nothing
19 conclusive to say that his mental health will improve if he is released. Such information
20 was in front of the IJ as she made her determination of dangerousness. If Petitioner believes
21 that the IJ overweighed certain evidence or did not properly weigh other evidence in the
22 record, that is not a claim that this Court may consider in its analysis.
23 Again, whether this Court believes that the evidence the IJ considered establishes by
24 clear and convincing evidence that Petitioner is a danger to the community is not the
25 question. The question is whether the IJ relied upon proof that as a matter of law could
26 establish, by clear and convincing evidence, that Petitioner is a danger to the community.
27 Petitioner has not established he is likely to succeed on his argument that the IJ did not rely
28 on such proof.
1 Petitioner has not met his burden of establishing that he is likely to succeed on the
2 ||merits of his claim that the IJ committed prejudicial legal error in concluding that he is
3 ||dangerous. This first factor—likelihood of success on the merits—is “the most important”
4 a preliminary injunction analysis. Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir.
5 |}2015). Because it is a threshold inquiry, when “a plaintiff has failed to show the likelihood
6 ||of success on the merits, [the court] ‘need not consider the remaining three [Winter
7 |{elements].’” Jd. (quoting Ass’n des Eleveurs de Canards et d’Oies du Quebec vy. Harris,
8 F.3d 937, 944 (9th Cir. 2013).
9 IV. CONCLUSION
10 Petitioner is unable to meet his burden in establishing that the IJ committed legal
11 at his bond determination hearing. Therefore, he is not entitled to a preliminary
12 injunction. The Court DENIES Petitioner’s motion. (ECF No. 8.) Within fourteen days
13 || of the date of this Order, the parties are to file a joint notice informing the Court how this
14 || case and Petitioner’s habeas petition should proceed, if at all.
15 IT IS SO ORDERED.
16 / yy
17 || DATED: February 26, 2020 (y wd (Liphan. 6
Is United States District Judge
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