Opinion
No. CV-20-00055-PHX-JAT (JFM)
01-10-2020
Narinder Singh Heer, Petitioner, v. Chad Wolf, et al., Respondents.
ORDER
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.) The determination was approved by a supervisory asylum officer and Petitioner was ordered removed from the United States. (Id. at 49.)
The asylum officer also found there was not a significant possibility that Petitioner could establish eligibility for humanitarian asylum based on the severity of the past persecution. (Doc. 1-2 at 51.)
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.)
See Executive Office for Immigration Review (EOIR) Telephonic Case Status Information System (Ph. 1-800-898-7180) (last accessed Jan. 9, 2020).
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. 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).
Under the rationale articulated in Armentero, infra, and in the absence of authority addressing who is the proper respondent in immigration habeas corpus proceedings under § 2241, the Court will not dismiss Respondents or the Petition for failure to name a proper respondent at this stage of the proceedings. See Armentero v. INS, 340 F.3d 1058, 1071-73 (9th Cir. 2003) (finding the DHS Secretary and the Attorney General were proper respondents), withdrawn, 382 F.3d 1153 (9th Cir. 2004) (order); see also Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004) (declining to resolve whether the Attorney General is a proper respondent in an immigration habeas corpus petition).
In Thuraissigiam, the Ninth Circuit found that 8 U.S.C. § 1252(e)(2)'s statutory limitation on habeas corpus review "violate[d] the Suspension Clause as applied to Thuraissigiam," and held "[t]he district court ha[d] jurisdiction and, on remand, should exercise that jurisdiction to consider Thuraissigiam's legal challenges to the procedures leading to his expedited removal order." 917 F.3d at 1119.
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 before Respondents can be heard in opposition. Nor has Petitioner offered any discussion in support of his request to enjoin his transfer.
In its discretion, however, the Court will require that if Respondents intend to remove Petitioner from the United States prior to the conclusion of this matter, they must file and serve a notice of their intent to remove him in advance, so as to afford Petitioner a reasonable opportunity to file a motion for a stay of removal. Accordingly,
IT IS ORDERED:
(1) Petitioner's Emergency Motion for a Stay of Removal (Doc. 2) is denied without prejudice.
(2) If Respondents intend to remove Petitioner from the United States prior to the Court's disposition of this matter, Respondents must file a "Notice of Intent to Remove" with the Clerk of Court and serve a copy on Petitioner at least 10 days prior to the scheduled date of removal.
(3) The Clerk of Court shall email a copy of this Order to the Immigration TRO Distribution List.
(4) The Clerk of Court shall serve: (1) a copy of the Summons, (2) the Petition (Doc. 1), (3) the Emergency Motion for a Stay of Removal (Doc. 2), and (4) this Order upon the United States Attorney for the District of Arizona by certified mail addressed to the civil process clerk at the office of the United States Attorney pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. The Clerk of Court shall also send by certified mail a copy of the Summons, the Petition, the Emergency Motion for a Stay of Removal, and this Order to the United States Attorney General pursuant to Rule 4(i)(1)(B) and to Respondents Wolf, Barr, Albence, Cuccinelli, Lucero, and Keeton pursuant to Rule 4(i)(2) of the Federal Rules of Civil Procedure.
(5) Respondents shall have 30 days from the date of service to answer the Petition (Doc. 1). Respondents shall not file a dispositive motion in place of an answer absent leave of Court.
(6) Petitioner shall have 15 days from the filing of Respondents' Answer to the Petition to file a Reply. Failure to file a Reply may be deemed as consent to the denial of the Petition on the grounds presented in Respondents' Answer.
(7) Petitioner must file a "Notice of Change in Status" with the Clerk of Court within 5 days of any material change in Petitioner's immigration or custody status. Petitioner may not include a motion for other relief with the Notice.
(8) This matter is referred to Magistrate Judge James F. Metcalf pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation.
Dated this 10th day of January, 2020.
/s/ _________
James A. Teilborg
Senior United States District Judge