Opinion
Case No. 5:21-cv-01418-JWH-SHKx
2021-10-19
Sandra Lizbeth CASTANEDA, Plaintiff, v. Merrick B. GARLAND, United States Attorney General; Executive Office for Immigration Review; Jean King, Acting Director, Executive Office for Immigration Review; Roodin Rooyani, Assistant Chief Immigration Judge for the Los Angeles Immigration Court, Executive Office for Immigration Review, Defendants.
Anoop Prasad, Jingni Zhao, Asian Law Caucus, San Francisco, CA, for Plaintiff. Joseph William Tursi, AUSA - US Attorneys Office Central District of California, Los Angeles, CA, DCS Trial Attorney, District Court Section, Washington, DC, for Defendants.
Anoop Prasad, Jingni Zhao, Asian Law Caucus, San Francisco, CA, for Plaintiff.
Joseph William Tursi, AUSA - US Attorneys Office Central District of California, Los Angeles, CA, DCS Trial Attorney, District Court Section, Washington, DC, for Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION [ECF No. 14]
John W. Holcomb, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff Sandra Lizbeth Castaneda was born in Mexico, but she is a lawful permanent resident of the United States. From 2003 until a few months ago, Castaneda was serving a 40-years-to-life sentence in California state prison in connection with a gang-related homicide. In view of Castaneda's remarkable rehabilitation, California Governor Gavin Newsome commuted her sentence, and on July 27, 2021, she was released from the California Institution for Women in Chino. Immediately upon her release, she was arrested by U.S. Immigration and Customs Enforcement ("ICE"). Castaneda is currently in federal custody at the Stewart Detention Center in Lumpkin, Georgia.
Unless otherwise indicated, all dates are in 2021.
According to the uncontested factual allegations in the Complaint and in Castaneda's moving papers, Defendants Merrick B. Garland (the United States Attorney General); the Executive Office for Immigration Review; Jean King (the Acting Director of the Executive Office for Immigration Review); and Roodin Rooyani (the Assistant Chief Immigration Judge for the Los Angeles Immigration Court) refused to accept Castaneda's motion for a bond hearing at the Los Angeles Immigration Court; they moved her to Georgia in contravention of government policy; and they now insist that any bond hearing take place in Georgia, under Eleventh Circuit law, instead of in Los Angeles, under Ninth Circuit law.
Through her instant motion for a preliminary injunction, Castaneda asks the Court (1) to set aside, under the Administrative Procedure Act, Defendants’ rejection of Castaneda's bond motion; and (2) to issue an injunction or a writ of mandamus compelling Defendants to accept Castaneda's bond motion nunc pro tunc and to conduct the bond hearing at the Los Angeles Immigration Court. After considering the papers filed in support and in opposition, as well as the oral argument of counsel at the hearing on the Motion, the Court GRANTS the Motion, for the reasons set forth herein.
Pl.’s Mot. for Prelim. Inj. (the "Motion") [ECF No. 14].
The Court considered the following papers: (1) Compl. (the "Complaint") [ECF No. 1]; (2) the Motion (including its attachments); (3) Defs.’ Opp'n to the Motion (including its attachments) (the "Opposition") [ECF No. 15]; and (4) Pl.’s Reply in Support of the Motion (including its attachments) (the "Reply") [ECF No. 16].
II. BACKGROUND
A. Procedural History
Castaneda commenced this action on August 20, and she filed the instant Motion on September 3. Defendants timely filed their Opposition a week later, and Castaneda timely filed her Reply a week after that. The Court conducted a hearing on the Motion on October 4.
B. Facts
Castaneda was born in Mexico. She came to the United States as a lawful permanent resident around 1991, when she was nine years old. Eleven years later, when Castaneda was 20 years old, she drove two friends, both of whom were gang members, to get food. Her friends spotted members of a rival gang on the sidewalk. The friends drew guns and fired, killing one person and injuring a second. Castaneda drove away, with her two friends still in the car. Neither friend was ever apprehended or prosecuted for the shooting. Castaneda, however, was arrested and convicted of murder in California state court, and she was sentenced to 40 years to life in prison.
Complaint ¶ 27.
Id. at ¶ 28.
Id.
Id.
Id. at ¶ 29.
Id.
Castaneda did not languish while she was incarcerated; instead, she made the most of her circumstances. Specifically, Castaneda completed her GED, enrolled in college classes, and voluntarily participated in and led workshops such as Beyond Violence, Conflict Anger Lifelong Management, and Restorative Justice/Victim Impact. In addition, Castaneda mentored other incarcerated women through the Big Sister Mentor Program, and she served as a peer educator in connection with the Prison Rape Elimination Act. During her last 10 years in prison, Castaneda had no significant rules violations. Prison staff described her conduct and her rehabilitation as exceptional.
Id. at ¶ 30.
Id.
Id.
Id.
Id.
In April 2019, Ralph Diaz, the Secretary of the California Department of Corrections and Rehabilitation ("CDCR") wrote to the presiding judge in Castaneda's criminal case. Diaz recommend that the court resentence Castaneda in view of her rehabilitation and her readiness to transition into society. In November 2020, California Governor Gavin Newsom granted Castaneda clemency and commuted her sentence, thereby making her immediately eligible for consideration for parole. In April 2021, the Board of Parole Hearings found that Castaneda did not pose a danger to the community and recommended her release. In May, Los Angeles Superior Court Judge Connie Quinones recalled Castaneda's sentence. On July 21, Judge Quinones vacated Castaneda's conviction. Judge Quinones held that Castaneda's murder conviction was legally insufficient under California's current felony murder law. With her conviction vacated, Castaneda became eligible for immediate release from California state prison.
Id. at ¶ 32.
Id.
Id. at ¶ 33.
Id. at ¶ 34.
Id. at ¶ 35.
Id. at ¶ 36.
Id. at ¶ 36.
Id.
At that point, ICE placed a "detainer" on Castaneda. The detainer served as a request that CDCR facilitate Castaneda's transfer to ICE custody upon her release from prison. Castaneda then began working with immigration attorney Anoop Prasad to prepare for potential removal proceedings. On July 26, Prasad faxed to ICE a copy of the state court's July 21 minute order vacating Castaneda's conviction. Prasad requested that ICE drop the detainer because ICE had no basis to detain or remove Castaneda—a lawful permanent resident. Castaneda is informed and believes that CDCR also provided ICE with a copy of the July 21 minute order.
Id. at ¶ 37.
Id. at ¶ 38.
Id. at ¶ 39.
Id.
Id.
Nevertheless, ICE arrested Castaneda at around 9:00 a.m. on July 27—immediately upon her release from prison—and transported her to its San Bernardino Sub-Office. Around one hour later, Prasad called staff at that Sub-Office, who confirmed that ICE was aware of the vacatur of Castaneda's conviction, but that ICE declined to release Castaneda. That same day, an Assistant District Attorney for Los Angeles County also called ICE to inform the agency that the state criminal court had vacated Castaneda's only removable conviction.
Id. at ¶ 40.
Id.
Id.
In an effort to seek the review of Castaneda's detention, Prasad prepared to file a motion for a bond hearing at the Los Angeles Immigration Court at 606 S. Olive Street (which is commonly known as "LOS"). Castaneda alleges that LOS had jurisdiction over Castaneda's place of detention at the San Bernardino Sub-Office. Defendants disagree.
Id. at ¶ 41.
Id.
See Decl. of Rodin Rooyani ¶ 7 [ECF No. 15].
LOS permits only paper filings—not electronic filings—so Prasad enlisted the assistance of a fellow immigration attorney, Veronica Barba, to file Castaneda's bond motion at LOS by hand. The parties dispute the extent to which the immigration court's public website suggests that LOS was the correct immigration court location at which to file the motion. Defendants acknowledge in their Opposition, however, that the U.S. Justice Department website states that LOS "may have jurisdiction over ‘LOS ANGELES, CA—DHS DISTRICT OFFICE (including any sub-offices).’ "
Complaint ¶ 42.
Compare id. at ¶ 41 with Opposition 3:17-4:16.
Opposition 3:20-23.
When Barba attempted to file Castaneda's bond motion by hand at LOS, a clerk at the filing window refused to accept the papers, telling Barba that ICE had not yet placed Castaneda in removal proceedings by filing a Notice to Appear. Barba advised the clerk that the Immigration Court Practice Manual provides that the immigration court could conduct bond proceedings prior to the filing of a Notice to Appear and that the court was required to accept Castaneda's bond motion. Barba conveyed the same information to Harold Suhr, a supervisor at LOS. Suhr responded with the same explanation as the clerk and refused to accept the filing.
Complaint ¶ 43.
Id.
Id.
Id. ; see also Decl. of Anoop Prasad ¶ 10 (the "Prasad Declaration") [ECF No. 14-3].
Shortly thereafter, Prasad telephoned Suhr. Suhr explained to Prasad that he would not accept the filing until ICE filed a Notice to Appear, and Suhr added that bond motions could be filed only at immigration court locations that hear detained cases (unlike LOS). Prasad responded to Suhr with citations to precedent and to the Immigration Court Practice Manual, explaining that Suhr was incorrect with respect to the necessity of a Notice to Appear. Prasad additionally explained that LOS was designated as an immigration court that could review Castaneda's detention at an ICE sub-office. Accordingly, Prasad requested that Suhr's supervisor or the Court Administrator consider the filing. Suhr agreed to check with the Court Administrator and to call Prasad back before the court closed that day. Suhr failed to honor that commitment; he did not call Prasad back, despite Prasad's numerous voicemails. According to Prasad—and uncontested by Defendants—Suhr never told Prasad to file the bond motion at an immigration court location other than LOS, such as the Los Angeles Immigration Court at N. Los Angeles Street (which is commonly known as "NLA"). Prasad testifies that he "did not ask Mr. Suhr to identify the immigration court that would accept Ms. Castaneda's bond motion because he told me clearly that the bond motion was being rejected because no Notice to Appear had been filed."
Prasad Declaration ¶ 10.
Id.
Id.
Complaint ¶ 43.
Id.
Id.
Suppl. Decl. of Anoop Prasad ¶ 5 (the "Supplemental Prasad Declaration") [ECF No. 16-1].
Id.
At the hearing on this Motion, Defendants’ counsel attempted to cast doubt on Prasad's and Barba's respective recollections of their experiences with the clerk and with Suhr. However, Defendants chose not to submit declarations, nor any other evidence, to the contrary from the clerk or from Suhr. The Court therefore accepts Barba's and Prasad's sworn declarations as accurate and uncontested.
See, e.g. , Tr. For Proceedings Held on October 4, 2021 (the "Transcript") [ECF No. 19] 30:3-9.
Around 9:00 p.m. that same day—July 27—ICE transported Castaneda from the San Bernardino Sub-Office to another holding facility in downtown Los Angeles. She was detained in a room with hard benches and no bed or mattress until around 3:00 a.m. the next morning.
Complaint at ¶ 45.
Id.
Around 6:20 a.m. on July 28, ICE placed Castaneda on a flight to the Stewart Detention Center in Lumpkin, Georgia, where she remains in custody, far away from her friends, family, and attorneys. Castaneda alleges, and Defendants do not contest, that such a transfer is contrary to official ICE policy, which counsels against transfers outside an Area of Responsibility when a detainee's family and attorney are within the Area of Responsibility. At the hearing on the Motion, Defendants’ counsel denied "that here there was some coordinated effort between two different Government agencies [i.e. , ICE and Defendants] to try and skirt someone's ability to seek review [i.e. , a bond hearing] in their chosen venue." However, Defendants’ counsel also conceded, "I don't have any vision into how DHS [i.e. , the Department of Homeland Security] made their decision in this case" to transfer Castaneda from the San Bernardino Sub-Office to the Stewart Detention Center in Georgia.
Id. at ¶¶ 46-47.
Id. at ¶ 47; see also ICE Policy 11022.1: Detainee Transfers, https://www.ice.gov/doclib/detention-reform/pdf/hd-detainee-transfers.pdf.
Transcript 28:12-14.
Id. at 28:2-3.
On July 30, two days after Castaneda arrived in Georgia, ICE filed a Notice to Appear with the Stewart Immigration Court. ICE alleged therein that Castaneda is removable because of her murder conviction.
Complaint at ¶ 48; Opposition 5:7-9.
Complaint at ¶ 48.
Castaneda contends that she is not removable under Ninth Circuit law. She acknowledges, by contrast, that her removability under Eleventh Circuit law is unsettled, at best. Thus, Castaneda argues that the "unlawful decision to reject [her] bond motion at [LOS] has deprived her of access to a bond hearing in a venue where she is clearly eligible for bond." Because Castaneda believes that an immigration judge at the Stewart Detention Center in Georgia is likely to find her to be removable on criminal grounds, she has not filed a bond motion in that venue.
Id. at ¶¶ 53-57.
Id. at ¶ 58.
Id. at ¶ 52.
Id. at ¶ 59.
In her Complaint, Castaneda alleges that the decision to reject her bond motion was an arbitrary and capricious abuse of discretion in violation of the Administrative Procedure Act (the "APA"), 5 U.S.C. § 706. She seeks relief under the APA, as well as a writ of mandamus compelling Defendants to accept Castaneda's bond motion nunc pro tunc and to conduct a hearing at LOS applying Ninth Circuit law. Defendants’ websites suggest that LOS and the Stewart Detention Center are equipped to arrange hearings over telephone or videoconference. Through her instant Motion for a preliminary injunction, seeks the same remedies that she demands in her Complaint.
Id. at ¶ 61.
Id. at ¶ 67.
Id. at ¶¶ 50 & 51. The Court grants Castaneda's request for judicial notice of the contents of Defendants’ websites reproduced with the Prasad Declaration, Exs. J and K. See Fed. R. Evid. 201(b) (the Court can take judicial notice of information that is "not subject to reasonable dispute"); Daniels-Hall v. Nat'l Educ. Ass'n. 629 F.3d 992, 998 (9th Cir. 2010) (taking notice of information "made publicly available by government entities" where "neither party dispute[d] the authenticity of the web sites or the accuracy of the information displayed therein"). Defendants have not disputed the contents of those websites.
III. LEGAL STANDARD
"A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right." Munaf v. Geren , 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (citations omitted). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In the Ninth Circuit, "serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotations omitted).
IV. DISCUSSION
The parties disagree whether the Court has subject matter jurisdiction to hear this matter. In addition, they disagree whether Castaneda has met her burden to demonstrate her entitlement to a preliminary injunction. The Court will address each issue in turn.
A. Subject Matter Jurisdiction
Defendants argue that the Court lacks jurisdiction (1) because there was no final agency decision under the APA; and (2) because Castaneda's claims fall under the channeling provisions of the Immigration and Nationality Act (the "INA"), 8 U.S.C. §§ 1252(a)(5) & (b)(9).
1. The APA
To satisfy the jurisdictional requirement of the APA, a plaintiff must challenge a "final" agency action. ONRC Action v. Bureau of Land Mgmt. , 150 F.3d 1132, 1135 (9th Cir. 1998) (citing Salmon River Concerned Citizens v. Robertson , 32 F.3d 1346, 1353-54 (9th Cir. 1994) ); see also 5 U.S.C. § 704. If the agency action that the plaintiff challenges is not "final" within the meaning of the APA, then federal courts lack subject matter jurisdiction over a dispute concerning that action. See, e.g., Rattlesnake Coalition v. EPA , 509 F.3d 1095, 1104 (9th Cir. 2007) ("Absent final agency action, there was no jurisdiction in the district court ....").
To determine whether an agency action is "final" with respect to the APA, courts apply the test that the Supreme Court articulated in Bennett v. Spear , 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Under the Bennett test, an "agency action is ‘final’ when (1) the agency reaches the ‘consummation’ of its decision-making process and (2) the action determines the ‘rights and obligations’ of the parties or is one from which ‘legal consequences will flow.’ " Rattlesnake Coalition , 509 F.3d at 1103 (citing Bennett , 520 U.S. at 177-78, 117 S.Ct. 1154 ). In evaluating finality, a court should "focus on the practical and legal effects of the agency action: [T]he finality element must be interpreted in a pragmatic and flexible manner." Oregon Nat. Desert Ass'n v. U.S. Forest Serv. , 465 F.3d 977, 982 (9th Cir. 2006) (citations and quotation marks omitted) (alteration in original). The "finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury." Darby v. Cisneros , 509 U.S. 137, 144, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) (internal citations and quotations omitted) (emphasis added).
a. Bennett Test—Consummation of Agency Decision-Making Process
The first question under the Bennett test is whether the decision to reject the bond motion was the "consummation" of the decision-making process. Rattlesnake Coalition , 509 F.3d at 1103. Defendants argue that the decision to reject Castaneda's motion was not a final agency decision because the rejection consisted only of telling Castaneda's counsel that she was at the wrong immigration court. According to Defendants, "the refusal to accept the motion was tentative as the clerk did not say the filing would be rejected at every immigration court."
Opposition 7:10-25.
Id. at 7:13-16.
Here, Defendants ignore three crucial details from the Complaint, the Prasad Declaration, and the Supplemental Prasad Declaration, none of which have Defendants adequately contested. First, the primary justification for the rejection that the clerk and Suhr gave to Barba and Prasad was that ICE had not filed a Notice to Appear. Second, Suhr told neither Barba nor Prasad to file the motion at a different immigration court location. Third, when Prasad called Suhr, Prasad requested that either Suhr's supervisor or the Court Administrator consider the filing. Suhr agreed to investigate the matter and to call Prasad back before the court closed that day. Suhr failed to call Prasad back, despite Prasad's numerous follow-up voicemails to Suhr.
See Complaint ¶ 43; Prasad Declaration ¶ 10; Supplemental Prasad Declaration ¶ 5.
See id.
Complaint ¶ 44.
Id.
Id.
Thus, in addition to telling Prasad that the bond motion filing was rejected because there was no Notice to Appear, Suhr kept Prasad waiting—without any apparent recourse—until the court closed. By the time that the court opened the next day, ICE had already placed Castaneda on a flight to Georgia. Only now—in their Opposition to Castaneda's Motion—do Defendants maintain that the bond motion was properly rejected at LOS because LOS was the wrong immigration court location for Castaneda to file such a bond motion.
Id. at ¶¶ 46 & 48.
See, e.g. , Opposition 7:10-25.
While Defendants attempt to cast doubt on Prasad's and Barba's version of events, they did not submit any contrary evidence. The Court therefore has no reason to doubt that both Prasad and Barba were told that the motion was denied because ICE did not file a Notice to Appear .
Transcript 35:13-24.
With this in mind, it is clear that "the initial decisionmaker ... arrived at a definitive position on the issue," Darby , 509 U.S. at 144, 113 S.Ct. 2539, of whether to accept Castaneda's bond motion. When the Court considers the "practical and legal effects of the agency action," Oregon Nat. Desert Ass'n , 465 F.3d at 982, the decision-making process was completed when Defendants turned away Castaneda's counsel. Defendants completed their decision-making process with respect to rejecting that bond motion. The practical and legal effect of the rejection of Castaneda's bond motion, coupled with Suhr keeping Prasad waiting throughout the day, was that the decision-making process was completed. At oral argument, Defendants’ counsel conceded that if, hypothetically, an official at NLA had rejected a bond motion because ICE had not yet filed a Notice to Appear, "[t]hat may well have been a final agency decision."
Id. at 39:10-14.
There are similarities between this case and Benitez Bautista v. Cuccinelli , 2021 WL 2206836 (N.D. Tex. 2021). The court in Benitez Bautista held that a decision by defendant U.S. Citizenship and Immigration Services ("USCIS" )—to reject the plaintiff's application for "purely administrative reasons" related to filing fees—was a final agency action. Id. at *4. USCIS made arguments similar to those that Defendants make here, asserting that the "decision ‘does not mark the consummation of the agency's decisionmaking’ because ‘it expressly anticipates the necessity of further agency action before the application[s] [are] approved or denied.’ " Id. The Benitez Bautista court rejected this argument, holding instead that:
the decision to reject Plaintiffs’ applications does mark the consummation of USCIS's decisionmaking process, as Plaintiffs’ applications were outright rejected. Regardless of USCIS's argument that Plaintiffs "may simply refile the application[s] with the correct payment," those applications are no longer pending and USCIS will not make further decisions regarding those applications .
Id. (internal citations omitted) (emphasis added). Here, Castaneda's bond motion was rejected for the improper administrative reason that ICE had not filed a Notice to Appear. While Defendants argue that Castaneda can file a new bond motion in Georgia, she can no longer file this application , nor can she obtain the apparent benefits of Ninth Circuit law in an immigration court in Georgia.
For those reasons, the Court concludes that Castaneda satisfies the first prong of the Bennett test.
b. Bennett Test—Determination of the Parties’ Rights and Obligations
The second question under the Bennett test is whether the decision determined Castaneda's " ‘rights and obligations’ ... from which ‘legal consequences will flow.’ " Rattlesnake Coalition , 509 F.3d at 1103 (citing Bennett , 520 U.S. at 177-8, 117 S.Ct. 1154 ). This Bennett factor may be satisfied by "several avenues," including where administrative orders "impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process." Oregon Nat. Desert Ass'n , 465 F.3d at 986–87 (quotation marks and citations omitted) (emphasis in original). An agency action may be final if it has a "direct and immediate" effect on "the day-to-day business" of the subject party. Id. at 987 (quotation marks and citations omitted). Courts consider whether the action has the "status of law or comparable legal force, and whether immediate compliance with its terms is expected." Id. at 987 (quotation marks and citations omitted). Courts should "focus on the practical and legal effects of the agency action" and interpret finality "in a pragmatic and flexible manner." Id. at 982 (citations and quotation marks omitted).
Defendants contend in their Opposition that the rejection of Castaneda's bond motion at LOS did not have a direct and immediate effect on her because (1) her counsel could have filed her motion at another immigration court location; and (2) the decision did not foreclose Castaneda from seeking a bond hearing in Georgia. The Court is not convinced.
Opposition 8:9-16.
Defendants rejected Castaneda's bond motion, which foreclosed the possibility of Castaneda obtaining a bond hearing in an immigration court in the Ninth Circuit. The main point of contention is whether Defendants rejected Castaneda's motion because ICE had not filed a Notice to Appear or because Castaneda's counsel tried to file her motion at the wrong court location. But Defendants have not submitted evidence challenging Prasad's and Barba's declarations, so the Court accepts Castaneda's version of events as true and finds that Defendants rejected Castaneda's bond motion because ICE had not filed a Notice to Appear. Castaneda's counsel therefore had no reason to believe that the rejection was anything but final; submitting the bond motion at another court location would not have resolved the alleged infirmity that Defendants identified: ICE had not filed a Notice to Appear.
The Court must evaluate finality in "a pragmatic and flexible manner." Oregon Nat. Desert Ass'n , 465 F.3d at 982. Pragmatically, the rejection was a final agency decision. Moreover, the rejection might ultimately determine whether Castaneda is removed from the United States. It is difficult to imagine an agency decision more clearly having a "direct and immediate" effect on "the day-to-day business" of a subject party. Id. at 987.
Because the decision to reject Castaneda's bond motion represented the consummation of an agency decision-making process and determined Castaneda's rights and obligations from which legal consequences will flow, the Court finds that the decision was final with respect to the APA. Thus, the Court concludes that it has jurisdiction to hear Castaneda's APA claim.
2. The Channeling Provisions of the INA
Defendants argue that Castaneda's claims fall within the jurisdiction channeling provisions of the INA. See 8 U.S.C. §§ 1252(a)(5) & (b)(9). The federal courts with jurisdiction to hear claims falling within those provisions are the circuit courts of appeal, not district courts. See id.
Id. at 8:19-11:19.
To support their position, Defendants rely on J.E.F.M. v. Lynch , 837 F.3d 1026 (9th Cir. 2016). Defendants quote a line from that opinion that notes that 8 U.S.C. § 1252(b)(9) "is ‘breathtaking’ in scope and ‘vice-like’ in grip and therefore swallows up virtually all claims that are tied to removal proceedings." J.E.F.M. , 837 F.3d at 1031 (quoting Aguilar v. ICE , 510 F.3d 1, 9 (1st Cir. 2007) ). Under the precedent that Defendants cite, "[ 8 U.S.C.] § 1252(a)(5) and § 1252(b)(9) mean that any issue—whether legal or factual—arising from any removal-related activity can be reviewed only through the [petition for review] process." Id. (citing Viloria v. Lynch , 808 F.3d 764, 767 (9th Cir. 2015) ). Thus, according to Defendants, only "claims that are independent of or collateral to the removal process" fall outside the scope of these jurisdictional-channeling provisions. Id. at 1032."
Defendants ignore that the Ninth Circuit has since held that the "Supreme Court has ... instructed that [ 8 U.S.C.] § 1252(b)(9) is a ‘targeted’ and ‘narrow’ provision that ‘is certainly not a bar where, as here, the parties are not challenging any removal proceedings.’ " Gonzalez v. United States Immigr. & Customs Enf't , 975 F.3d 788, 810 (9th Cir. 2020) (quoting Dep't of Homeland Sec. v. Regents of the Univ. of Cal. , ––– U.S. ––––, 140 S. Ct. 1891, 1907, 207 L.Ed.2d 353 (2020) ).
That statute bars review of claims arising from "action[s]" or "proceeding[s] brought to remove an alien." 66 Stat. 209, as amended, 8 U.S.C. § 1252(b)(9). That targeted language is not aimed at this sort of case. The statute "does not present a jurisdictional bar" when those seeking redress "are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal; and they are not even challenging any part of the process by which their removability will be determined." Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 841, 200 L.Ed.2d 122 (2018).
Here, Castaneda is "not asking for review of an order of removal," "challenging the decision to detain [her] in the first place or to seek removal," nor "challenging any part of the process by which [her] removability will be determined." Jennings , 138 S. Ct. at 841. Castaneda's claim presents a narrow question: whether Defendants violated the law by rejecting her bond motion at the Los Angeles Immigration Court. She does not ask this Court to review an order of removal or to make any determination regarding her removal proceedings, which are "separate and apart from" bond proceedings. 8 C.F.R. § 1003.19(d). Castaneda does not challenge the decision to detain her for removal proceedings, and she has not sued ICE, the agency detaining her. Her claims are "collateral to the removal process." E. Bay Sanctuary Covenant v. Biden , 993 F.3d 640, 666 (9th Cir. 2021) (denial of rehearing en banc ) (quoting J.E.F.M. , 837 F.3d at 1032 ).
Accordingly, the channeling provisions of the INA do not apply here. This Court has jurisdiction to hear this case.
B. Preliminary Injunction
"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter , 555 U.S. at 20, 129 S.Ct. 365. The Court will address each factor in turn.
1. Likelihood of Success on the Merits
Castaneda must show that she is likely to prevail on her APA and Mandamus Act Claims.
a. APA
"Under the APA, a ‘reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ " Singh v. Clinton , 618 F.3d 1085, 1088 (9th Cir. 2010) (quoting 5 U.S.C. § 706(2)(A) ). The issue here is whether Castaneda is likely to succeed with her claim that the immigration court's rejection of her bond motion was arbitrary, capricious, an abuse of discretion, or not in accordance with law.
As a "general rule," detained noncitizens "may seek review of [their] detention by an officer at the Department of Homeland Security and then by an immigration judge." Nielsen v. Preap , ––– U.S. ––––, 139 S. Ct. 954, 959-960, 203 L.Ed.2d 333 (2019). "Federal regulations provide that aliens detained under [ 8 U.S.C. §] 1226(a) receive bond hearings at the outset of detention." Jennings , 138 S. Ct. at 847 (citing 8 C.F.R. §§ 236.1(d)(1) & 1236(d)(1)).
The exception to the general rule is set out in 8 U.S.C. § 1226(c). See Preap , 139 S. Ct. at 960. That statute "carves out a statutory category of aliens who may not be released under [ 8 U.S.C.] § 1226(a)" based on their involvement with certain criminal and terrorist activities. Jennings , 138 S. Ct. at 837. While an immigration judge lacks jurisdiction to conduct a bond hearing for a noncitizen detained under 8 U.S.C. § 1226(c), the regulations allow the immigration judge to determine whether a noncitizen is properly included within a mandatory detention category. See 8 C.F.R. § 1003.19(h)(2)(ii) ; see also Imm. Court Practice Manual § 9.3(b) ("[A]n immigration judge has jurisdiction to rule on whether he or she has jurisdiction to conduct a bond hearing.").
To request a bond hearing, the detained noncitizen must first file a motion with "the Immigration Court having jurisdiction over the place of detention." 8 U.S.C. § 1003.19(c). An immigration judge does not lose jurisdiction over a bond motion when ICE transfers the noncitizen to another region after the bond motion is filed. Matter of Cerda Reyes , 26 I. & N. Dec. 528 (BIA 2015). "Generally, a bond hearing is held at the Immigration Court where the request for bond redetermination is filed." Imm. Court Practice Manual § 9.3(e)(1). Both bond and removal hearings can take place over videoconference or telephone. 8 U.S.C. § 1229a(b)(2)(A).
Defendants argue that the decision to reject the bond motion was not arbitrary and capricious for three reasons. First, Defendants argue that Castaneda cannot show an APA violation because her counsel attempted to file the motion at the wrong immigration court. This is an "impermissible post hoc rationalization" that the Court will not consider when evaluating an agency decision on the APA. Regents of the Univ. of Cal. , 140 S. Ct. at 1908 ("An agency must defend its actions based on the reasons it gave when it acted."). It is a "foundational principle of administrative law that a court may uphold agency action only on the grounds that the agency invoked when it took the action." Michigan v. EPA , 576 U.S. 743, 758, 135 S.Ct. 2699, 192 L.Ed.2d 674 (2015) (quoting SEC v. Chenery Corp. , 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ). Defendants told Castaneda's counsel that the bond motion was rejected because ICE had not filed a Notice to Appear; that is the basis upon which this Court will review the agency decision.
Id. at 13:10-14:24.
See Complaint ¶ 43; Prasad Declaration ¶ 10; Supplemental Prasad Declaration ¶ 5.
Because the Court will evaluate the rejection based on the Notice to Appear explanation, it will not rule on whether LOS was an appropriate venue to file the motion. The parties disagree on this issue. Compare Reply 7:7-9:8 with Opposition 13:10-14:24.
Second, Defendants contend that even if LOS had accepted the motion, the court could have declined to hear the motion after ICE transferred Castaneda to Georgia. Defendants’ argument is a red herring. Castaneda asks this Court to compel Defendants to conduct a hearing; she is not asking for this Court to dictate the outcome of such a hearing. The issue is not how an immigration judge might rule on Castaneda's bond motion; the issue is that Castaneda never had a chance to have the matter heard by an immigration judge at the Los Angeles Immigration Court.
Opposition 15:1-17:18.
Reply 9:12-13.
Defendants’ third argument—that Castaneda is removable under Ninth Circuit law —is irrelevant at this stage. Whether Castaneda is removable is not the issue. The issue is whether the rejection of the bond motion was arbitrary and capricious.
See Opposition 17:19-20:13.
Defendants do not dispute that the absence of a Notice to Appear is not a lawful basis for rejecting a bond motion. See 8 C.F.R. § 1003.14(a) ("no charging document is required to be filed ... to commence bond proceedings"); Imm. Court Practice Manual § 9.3(b). Thus, the Court finds that Castaneda is likely to prevail on her argument that the decision to reject her bond motion due to the absence of a Notice to Appear was arbitrary and capricious.
b. The Mandamus Act
The Mandamus Act grants district courts mandamus authority "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. Courts may grant mandamus relief where "(1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available." Patel v. Reno , 134 F.3d 929, 931 (9th Cir. 1997). Where, as here, a plaintiff seeks identical relief under the APA and the Mandamus Act, the court may construe the mandamus claim, " ‘in essence,’ as one for relief under § 706 of the APA." Indep. Min. Co. v. Babbitt , 105 F.3d 502, 507 (9th Cir. 1997) (quoting Japan Whaling Ass'n v. American Cetacean Soc'y , 478 U.S. 221, 230 n.4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) ).
Here, all three conditions are met. As explained above, Castaneda's claim that she is entitled to a hearing is clear and certain. Defendants are required to accept Castaneda's bond motion—regardless of how the immigration judge ultimately rules on it. And there is no adequate remedy other than a writ of mandamus because seeking a bond hearing in the Stewart Immigration Court in Georgia would subject Castaneda to Eleventh Circuit law. It is therefore likely that Castaneda will succeed in seeking a writ of mandamus.
Because Castaneda is likely to succeed on her APA and Mandamus Act claims, this factor weighs in favor of granting a preliminary injunction.
2. Irreparable Harm Absent Preliminary Relief
Castaneda "suffers potentially irreparable harm every day that [she] remains in custody without a hearing, which could ultimately result in [her] release from detention." Cortez v. Sessions , 318 F. Supp. 3d 1134, 1139 (N.D. Cal. 2018). The Ninth Circuit has recognized "the irreparable harms imposed on anyone subject to immigration detention." Hernandez v. Sessions , 872 F.3d 976, 995 (9th Cir. 2017). Defendants’ attempts to distinguish Cortez and Hernandez from the instant action fail. Both the Ninth Circuit and the Northern District of California found that a person suffers potentially irreparable harm while in immigration detention. Here, Castaneda suffers potentially irreparable harm from her continued detention, and Defendants are denying her a hearing that could result in her release. This factor weighs strongly in favor of a preliminary injunction.
Opposition 21:10-22:8.
3. Balance of Equities
The balance of the equities tips sharply in Castaneda's favor. On one hand, Castaneda has been deprived of her physical liberty and of the opportunity to rejoin her family and community after years of incarceration. On the other hand, any harm to Defendants—if the preliminary injunction is granted improperly—is negligible. First, because the statute and BIA precedent expressly provide for video and telephonic hearings, Castaneda need not be transferred to California for the Los Angeles Immigration Court to conduct bond proceedings. See 8 U.S.C. § 1229a(b)(2)(A) ; Matter of Chirinos , 16 I. & N. Dec. 276, 277 (BIA 1977). Second, the fiscal costs associated with providing a bond hearing are "minimal." Lopez Reyes v. Bonnar , 362 F. Supp. 3d 762, 777 (N.D. Cal. 2019). Third, the relief sought here would result in Castaneda's release from custody only if an immigration judge determines that she poses neither a danger nor a flight risk. This factor weighs heavily in favor of a preliminary injunction.
4. Public Interest
The public interest favors granting a preliminary injunction. "The public interest is served by compliance with the APA." E. Bay Sanctuary Covenant , 993 F.3d at 678 ; Lopez v. Heckler , 713 F.2d 1432, 1437 (9th Cir. 1983) ("Society's interest lies on the side of affording fair procedures to all persons, even though the expenditure of governmental funds is required."); Medina v. U.S. Dep't of Homeland Sec. , 313 F. Supp. 3d 1237, 1252 (W.D. Wash. 2018) ("[P]ublic interest exists in ensuring that the government complies with its obligations under the law and follows its own procedures."). This factor weighs in favor of a preliminary injunction.
C. Security
Rule 65(c) of the Federal Rules of Civil Procedure provides that a district court may grant a preliminary injunction "only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." Fed. R. Civ. P. 65(c). The district court retains discretion "as to the amount of security required, if any. " Johnson v. Couturier , 572 F.3d 1067, 1086 (9th Cir. 2009) (quotation marks and citations omitted) (emphasis in original). The government has not requested the posting of security, and the Court declines to order it.
D. Objections
Both parties filed evidentiary objections. In ruling on a motion for a preliminary injunction, "the Court may accept as true ‘well-pleaded allegations [in the complaint] and uncontroverted affidavits.’ " Umuoji Improvement Union (North America), Inc. v. Umuoji Improvement Union (North America), Inc. , 537 F.Supp.3d 79, 84 (D. Mass. 2021). "The Court may also rely on otherwise inadmissible evidence, including hearsay." Id.
See Defs.’ Obj. to Pl.’s Evid. ("Defendants’ Objections") [ECF No. 15-1]; and Pl.’s Evidentiary Obj. [ECF No. 16-2].
The Court OVERRULES Defendants’ objections to the paragraphs of the Complaint that discuss the technical capabilities of LOS and the Stewart Detention Center. The Court took judicial notice of the government websites, rather than accept Plaintiffs’ description of the websites, so there are no hearsay concerns. In addition, the information is relevant, despite Defendants’ assertions, since it affects the evaluations of the balance of equities and public interest.
See Defendants’ Objections 2:14-17.
The Court did not rely on any other material that elicited objections from any party. Accordingly, the Court need not rule on those objections. See Pakootas v. Teck Cominco Metals, Ltd. , 2012 WL 370105, at *5 (E.D. Wash. Feb. 3, 2012) (holding that objections were moot because the court did not consider the alleged facts that elicited the objections).
V. CONCLUSION
For the foregoing reasons, the Court hereby ORDERS as follows:
1. Defendants are DIRECTED :
a. forthwith to accept Castaneda's motion for a bond hearing nunc pro tunc ; and
b. reasonably promptly to conduct one of the following:
i. a Joseph hearing (pursuant to Matter of Joseph , 22 I. & N. Dec. 799 (BIA 1999) ); or
ii. a bond hearing; or
iii. both a Joseph hearing and a bond hearing.
2. At their discretion, Defendants may conduct that hearing at LOS, NLA, or other appropriate Los Angeles Immigration Court location, telephonically or by videoconference.
3. No security shall be required.
4. The parties are DIRECTED to meet and confer and to file, no later than 12:00 noon on October 29, 2021, a Joint Status Report that:
a. advises the Court regarding the parties’ compliance with this Order; and
b. provides the Court with each party's suggested case schedule or other proposed resolution of this action
5. The parties are also DIRECTED to appear at a video Status Conference on November 5, 2021, at 11:00 a.m.