Yaide v. Wolf ( 2019 )

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 ABDERAMAN OUMAR YAIDE, Case No. 19-cv-07874-CRB 9 Plaintiff, ORDER GRANTING TEMPORARY 10 v. RESTRAINING ORDER 11 CHAD WOLF, et al., 12 Defendants. 13 Abderaman Oumar Yaide is a native and citizen of Chad who has resided in the United 14 States without legal status since 2009. His application for asylum based on ethnicity and imputed 15 political opinion was denied by an immigration judge in 2014. Since that time, Yaide has come 16 out as gay and Chad has criminalized all same-sex relations. Given those developments, Yaide 17 fears torture and death if he is returned to Chad. He has therefore filed a motion to reopen his 18 applications for asylum, withholding of removal, and relief under the Convention Against Torture. 19 But before that motion could be adjudicated, Immigration and Customs Enforcement (“ICE”) 20 deported Yaide to Chad. 21 Yaide now seeks a Temporary Restraining Order (“TRO”) directing the Government to 22 return him to the United States. The Government does not argue that a TRO is unwarranted on the 23 merits. Instead, it insists that this Court lacks jurisdiction over Yaide’s habeas petition. But 24 because Yaide was in ICE custody when his petition was filed and challenges his removal on 25 constitutional grounds, the Government’s jurisdictional arguments fail, and the Court will grant 26 his request for a TRO. 27 I. BACKGROUND 1 Yaide is a native and citizen of Chad. Yaide Decl. ¶ 1 (dkt. 3-2). He arrived in the United 2 States in 2009, seeking asylum on the basis of his membership in the Gorane ethnic group and 3 imputed anti-government political opinions. Id. ¶¶ 3, 20. His application for asylum was denied 4 by the immigration judge and Board of Immigration Appeals. Id. ¶ 20, 23. 5 Yaide is gay, but did not come out publicly until 2019, after his case was adjudicated by 6 the immigration judge. Id. ¶ 25. Since that time, Chad has criminalized all same-sex relations. 7 Mot. to Reopen at 7 (dkt. 3-1). Yaide fears that if he remains in Chad he will be tortured and 8 killed by his own family, clan, or the government. Yaide Decl. ¶ 28. 9 On October 24, 2019, Yaide filed a motion to reopen his applications for asylum, 10 withholding of removal, and relief under the Convention Against Torture based on changed 11 circumstances, including his coming out as gay and the deteriorating conditions for LGBT 12 individuals in Chad. Mot. to Reopen at 1, 14. 13 While Yaide’s motion to reopen was pending before the immigration court, Yaide was 14 taken from Yuba County Jail to the Sacramento airport. Second McMahon Decl. ¶¶ 10–11 15 (dkt. 18-1). From Sacramento he was flown to Chicago, then to Addis Ababa, Ethiopia, and 16 finally to N’Djamena, Chad. Id. ¶ 12. Yaide was accompanied by the same pair of ICE officers 17 from Yuba County Jail to the N’Djamena airport, and remained in handcuffs until his arrival in 18 Addis Ababa. Id. 19 The instant habeas petition was filed while Yaide was en route from Chicago to Addis 20 Ababa. Yaide Supp. Brief at 4 (dkt. 18); Yaide Itinerary (dkt. 14-2). Shortly thereafter, Judge 21 Chen enjoined Yaide’s removal until the Court had ruled on a fully-briefed motion for a TRO. 22 EMC TRO (dkt. 10). At the time Judge Chen issued the emergency TRO, Yaide was in the air, on 23 his way to Addis Ababa. Yaide Supp. Brief at 4; Yaide Itinerary. 24 Yaide now seeks a TRO ordering his return to the United States. See Reply at 1 (dkt. 16). 25 He asserts multiple causes of action, including a claim that his deportation violates his procedural 26 due process right to pursue his motion to reopen.1 Petition ¶¶ 34–36 (dkt. 1). 27 II. LEGAL STANDARD 1 A TRO is an “extraordinary remedy” that should only be awarded upon a clear 2 showing that the plaintiff is entitled to such relief. See Winter v. Natural Res. Def. 3 Council, Inc., 555 U.S. 7, 22 (2008). The party seeking a TRO must establish: (1) a 4 likelihood of success on the merits; (2) a likelihood of irreparable harm absent preliminary 5 relief; (3) that the balance of equities tips in the plaintiff’s favor; and (4) that an injunction 6 is in the public interest. See id. at 20. Alternatively, the moving party must demonstrate 7 that “serious questions going to the merits were raised and that the balance of hardships 8 tips sharply in the plaintiff’s favor,” and that the other two Winter elements are met. 9 Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011). The 10 “[l]ikelihood of success on the merits ‘is the most important’ Winter factor.” Disney 11 Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017). 12 III. DISCUSSION 13 The key dispute is whether or not this Court has subject matter jurisdiction over Yaide’s 14 habeas petition. 15 A. Jurisdiction 16 The Government advances two theories for the non-existence of subject matter jurisdiction. 17 First, that Yaide had already been removed when his habeas petiton was filed and was therefore no 18 longer “in custody” as required for this Court to have jurisdiction. Opp’n at 4 (dkt. 14) (citing 28. 19 U.S.C. § 2241(c)). Second, that 8 U.S.C. § 1252(g) divests this Court of jurisdiction, because 20 Yaide’s habeas petition challenges his removal order. Gov’s Supp. Brief at 2. 21 1. Custody 22 28 U.S.C. § 2241(c) provides for jurisdiction over a habeas petition only if the petitioner is 23 “in custody” at the time his habeas petition is filed. Maleng v. Cook, 490 U.S. 488, 490–91 24 (1989). This requirement is satisfied by either “physical imprisonment” or “other restraints on . . . 25 liberty . . . not shared by the public generally.” Jones v. Cunningham, 371 U.S. 236, 240 (1963). 26 27 1 The Ninth Circuit has held that “[i]mmigrants who have already been removed . . . do not 2 satisfy the ‘in custody’ requirement of habeas corpus jurisdiction” because they are “subject to no 3 greater restraint than any other non-citizen living outside American borders.” Miranda v. Reno, 4 238 F.3d 1156, 1159 (9th Cir. 2001). At oral argument, the Government argued that this rule 5 applies here, because 8 U.S.C. § 1101(g) states that a non-citizen “ordered deported or removed” 6 “shall be considered to have been deported or removed” if he “has left the United States.” The 7 Government reasons that under § 1101(g) Yaide was removed once he left the United States, and 8 that under Ninth Circuit precedent Yaide was no longer in custody once he was removed. 9 Therefore, Yaide was no longer in custody after leaving American airspace. 10 The Government’s cases are distinguishable because they dealt with petitioners who had 11 already arrived in the country to which they were removed when their habeas petitions were filed. 12 Id. at 1158; Veltmann-Barragan v. Holder, 717 F.3d 1086, 1087 (9th Cir. 2013). In contrast, 13 Yaide was en route to Ethiopia when his petition was filed. See Yaide Itinerary. At the time, he 14 was handcuffed, escorted by two ICE agents, and trapped on an airplane he had been placed on 15 against his will. Second McMahon Decl. ¶ 12. He was subject to both physical detention and 16 greater restraints than other non-citizens outside American borders. See Jones, 371 U.S. at 240. 17 The facts of Yaide’s removal—not to mention common sense—demonstrate the inapplicability of 18 the logic of Ninth Circuit cases dealing with habeas petitions filed after the petitioner’s removal 19 was complete. 20 Section 1101(g) does not require a different result. This provision does not purport to 21 define “removal” for purposes of § 2241’s “in custody” requirement, and neither of the Ninth 22 Circuit cases the Government cites discusses § 1101(g). It would be formalistic to the point of 23 absurdity to import § 1101(g)’s definition of removal to the habeas context, such that a man in 24 shackles, trapped on a plane thousands of feet in the air, and in the company of two ICE agents, 25 would not be considered “in custody.” 26 2. 8 U.S.C. § 1252(g) 27 8 U.S.C. § 1252(g) strips courts of jurisdiction “to hear any cause or claim by or on behalf 1 adjudicate cases, or execute removal orders against any alien.” The Government contends that 2 § 1252(g) applies to Yaide’s habeas petition, because it challenges the execution of his removal 3 order.2 See generally Gov’s Supp. Brief. 4 The Ninth Circuit has rejected § 1252(g)’s application to habeas petitions brought under 5 § 2241, noting “the Supreme Court’s narrow construction of 8 U.S.C. § 1252(g)” and that “neither 6 AEDPA nor IIRIRA expressly repealed statutory habeas corpus relief pursuant to 28 U.S.C. 7 § 2241.” Magana-Pizano v. I.N.S., 200 F.3d 603, 609 (9th Cir. 1999). As such, “[a]liens may file 8 § 2241 habeas petitions that allege constitutional or statutory error in the removal process.” 9 Gutierrez-Chaves v. I.N.S., 298 F.3d 824, 829–30 (9th Cir. 2002). On the other hand, “[h]abeas 10 petitions that . . . do not allege such error but simply seek to change the discretionary result 11 reached by the INS are not within the scope of § 2241 and should be denied.” Id. at 830. 12 Because Yaide’s due process claim alleges “constitutional or statutory error in the removal 13 process,” and is not an attempt “to change the discretionary result reached by the INS,” it is not 14 subject to jurisdiction stripping under § 1252(g). Yaide contends that if he is removed to Chad, he 15 will be deprived of his right to have his motion to reopen adjudicated, violating his right to 16 procedural due process. Petition ¶ 34–36. Yaide credibly contends that he will be imprisoned, 17 harmed, or killed in Chad on account of his sexual orientation. Petition ¶ 36. Obviously, 18 imprisonment or death would foreclose Yaide’s ability to pursue his motion to reopen. Notably, 19 the danger Yaide faces based on his sexual orientation was not presented to the immigration court 20 during the earlier proceedings, so evaluating the possibility that removal will prevent Yaide from 21 pursuing his motion to reopen does not require this Court to re-litigate the merits of his original 22 order of removal. Mot. to Reopen at 2. 23 This conclusion accords with an earlier Northern District of California decision, Sied v. 24 Nielsen. Sied argued that if he were deported to Eritrea, he might “face detention, interrogation, 25 26 2 The Government does not argue that other jurisdiction-stripping provisions in § 1252, such as §§ 1252(a)(5), (b)(9), or (d)(1), divest this Court of jurisdiction over Yaide’s petition. See 27 generally Opp’n, Gov’s Supp. Brief. In any event, other Northern District of California decisions 1 torture, and death,” which “would effectively deprive him of his due-process right to have his 2 motion to reopen heard.” Id. at *6. Judge Beeler concluded that § 1252(g) did not divest the court 3 of jurisdiction over Sied’s habeas petition, because the petition asserted “claims of due-process 4 violations” rather than a “challenge [to] the Attorney General’s discretionary authority.” Id. at *21 5 (quoting United States v. Hovespian, 359 F.3d 1144, 1155 (9th Cir. 2004). Sied is directly on- 6 point and confirms that a due process claim like Yaide’s removes his petition from § 1252(g)’s 7 reach. 8 It is true that some Northern District of California decisions have reached the opposite 9 conclusion on similar facts, holding that § 1252(g) strips courts of jurisdiction over habeas 10 petitions seeking to enjoin removal during the pendency of a motion to reopen. Ma v. Holder, 860 11 F. Supp. 2d 1048, 1056–60 (N.D. Cal. 2012) Arce v. Holder, No. C 12-04063 WHA, 2012 WL 12 3276994, *2–3 (N.D. Cal. Aug. 9, 2012). And at least one other court has reached a similar result 13 on comparable facts, rejecting what it characterized as the petitioner’s “attempts to frame his 14 arguments as ‘constitutional challenges,’” when in reality “the petition [was] wholly intertwined 15 with the merits of his removal order.” Flores v. Johnson, No. CV 15-7167 AG (JPRx), 2015 WL 16 12656240, at *3 (C.D. Cal. Sept. 30, 2015). These cases appear to be distinguishable because they 17 did not involve due process claims comparable to those asserted by Yaide and Sied. 18 To the extent the Government’s cases and Sied are irreconcilable, the Court finds Sied 19 more persuasive. Sied’s holding and result are more easily reconciled with the Ninth Circuit’s 20 recognition that “[a]liens may file § 2241 habeas petitions that allege constitutional or statutory 21 error in the removal process,” Gutierrez-Chaves, 298 F.3d at 829–30, and the Supreme Court’s 22 “narrow” construction of § 1252(g), Reno v. American-Arab Anti-Discrimination Comm., 525 23 U.S. 471, 487 (1999). 24 B. The Winter Factors 25 The Government does not argue that a TRO is inappropriate on the merits. See generally 26 Opp’n, Gov’s Supp. Brief. In any event, the Court concludes Yaide has satisfied the standard for a 27 TRO. 1. Success on the Merits 1 Yaide has a constitutional right to procedural due process. Wong v. United States, 373 2 F.3d 952, 971 (9th Cir. 2004). He also enjoys a statutory right to file a motion to reopen his 3 removal proceedings. Mata v. Lynch, 135 S. Ct. 2150, 2153 (2015). The Ninth Circuit has 4 recognized that it would be “absurd” to “allow motions to reopen to be filed but not heard.” 5 Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir. 2005), overruled on other grounds by Dada v. 6 Mukasey, 554 U.S. 1 (2008). If Yaide is imprisoned or killed in Chad, the Government will have 7 denied him any chance to have his motion to reopen adjudicated. Sied, 2018 WL 1142202, at *26. 8 Yaide has at least raised serious going to the merits. Cottrell, 632 F.3d at 1131–32. 9 2. Irreparable Harm 10 Yaide faces irreparable harm, both because “the deprivation of constitutional rights 11 unquestionably constitutes irreparable injury,” Hernandez v. Sessions, 872 F.3d 976, 994 (9th Cir. 12 2018) (internal quotation marks and citations omitted), and because “[t]orture and death are 13 irreparable harm,” Sied, 2018 WL 1142202, at *27. 14 3. Balance of Equities 15 The balance of equities tips sharply in Yaide’s avor. He faces the loss of his right to have 16 his motion to reopen adjudicated, torture, imprisonment, and death. For its part, the Government 17 identifies no hardship it will undergo if a TRO is issued. 18 4. Public Interest 19 The public does have an interest “in prompt execution of removal orders.” Nken v. 20 Holder, 556 U.S. 418, 436 (2009). However, in this case that interest is outweighed by the 21 public’s interest in the preservation of Yaide’s constitutional rights. Preminger v. Principi, 422 22 F.3d 815, 826 (9th Cir. 2005) (“Generally, public interest concerns are implicated when a 23 constitutional right has been violated, because all citizens have a stake in upholding the 24 Constitution.”). 25 IV. CONCLUSION 26 For the foregoing reasons, Yaide’s motion for a TRO is granted. This order will be 27 stayed until 5:00 PM on Friday, December 20, 2019, so that the Government may seek 1 || relief from the Ninth Circuit. Once the order goes into effect, the Government is ordered 2 || to 1) buy Yaide an airline ticket that will return him to the United States within two weeks 3 || and two days of the filing of this order, 2) coordinate with the American embassy in 4 || N’Djamena, Chad and Chad’s immigration and airport authorities to facilitate Yaide’s 5 || departure to the United States, 3) work with the relevant airlines to pre-clear Yaide for his 6 || flight and address any issues that may arise regarding his flights, 4) work with any third- 7 || country immigration and airport authorities to facilitate Yaide’s transit through those 8 || countries during his return to the United States, 5) provide Yaide with all documentation 9 || necessary for entry into the United States upon his arrival, 7) work with the authorities at 10 || the airport where he will enter the United States to facilitate his entry, 6) allow Yaide to 11 || enter the United States, and 7) allow Yaide’s attorneys to meet him upon arrival and || accompany him through immigration and customs processing. The Government shall 13 || coordinate with Yaide’s counsel to facilitate his prompt return, and keep Yaide’s counsel 14 |} informed of its efforts and Yaide’s travel itinerary. The parties are to inform the Court 3 15 || immediately if it proves impossible to return Yaide to the United States within the timeline a 16 || contemplated above. = 17 IT ISSO ORDERED. iE Z 18 Dated: December 18, 2019 CHARLES R. BREYER 19 United States District Judge 20 21 22 23 24 25 26 27 28