Par-Rosales v. Barr ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRENDA CAROLINA PAR- Case No.: 19cv1844-LAB (JLB) ROSALES, and ETHAN JAFETH 12 PAR, minor child, ORDER CONSOLIDATING 13 CASES; AND Petitioners, 14 v. ORDER DENYING RENEWED 15 EX PARTE MOTION FOR WILLIAM P. BARR, et al., TEMPORARY RESTRAINING 16 Respondents. ORDER 17 18 Consolidation 19 When this case was originally filed, the initiating document consisted of a 20 motion for a temporary restraining order (TRO). Through a docketing error, the 21 accompanying petition for writ of habeas corpus was erroneously filed under case 22 number 19cv1848. The two cases were then deemed related and assigned to the 23 undersigned judge. The Court now ORDERS the two cases consolidated. All future 24 filings should be in the docket for this case. The Clerk is directed to file the initiating 25 petition in case 19cv1848 (docket no. 1 in that case) in the docket of this case. 26 Renewed TRO Motion 27 The Court denied an emergency TRO, pointing out that Petitioners had 28 waited until literally the day of their hearing before the immigration judge (IJ) to file 1 their motion. This left the government with no time to respond. While there might 2 be good reasons for waiting so long and filing the petition and TRO motion only at 3 the last moment, Petitioners had not explained what those were. After denying the 4 motion without prejudice, the Court required additional briefing, as well as a status 5 update that was intended to make clear the need and appropriateness of 6 immediate relief. 7 The status update represented that the government would not return 8 Petitioners to Mexico until further notice. Then on October 16, the government filed 9 a notice stating that it intended to return Petitioners to Mexico to await the outcome 10 of their asylum application. Petitioners have now filed their second emergency 11 TRO motion (the “Motion”). 12 Background 13 Petitioners are a mother and minor child who are Guatemalan nationals who 14 on June 28, 2019 entered the United States without inspection in Arizona, where 15 they were apprehended and immediately requested asylum. They were put into 16 the Migrant Protection Protocols (MPP) program and sent back into Mexico. They 17 were paroled back into the United States and eventually on August 12, 2019 18 appeared before Immigration Judge Lee O’Connor, who continued their case until 19 September 26 in order to allow their newly-retained counsel to become familiar 20 with the case. (Pet., ¶ 15.) 21 Petitioners assert that Judge O’Connor’s practice is to illegally and 22 improperly terminate proceedings, sending asylum-seekers back to Mexico where 23 they must begin the process anew. According to Petitioners, Judge O’Connor has 24 said no other relief is available to them, and he cannot fix the problem. Therefore, 25 they conclude, this Court is the only entity with the power to fix the problem. 26 Petitioners’ response does not explain their lengthy delay in filing their first 27 TRO motion. All it says is that “the delayed filing of the TRO [motion] was due to 28 the fact that Petitioners[‘’] counsel did not receive this case until Monday, 1 September 23, 2019.” (Pet’r Response (Docket no. 7.) at 4:1–2.) Bearing in mind 2 that Judge O’Connor on August 12 gave Petitioners over six weeks to allow their 3 then newly-retained counsel time to become familiar with the case, this explanation 4 raises more questions than it answers. But what it does not do is to show any 5 adequate reason for the lengthy delay and last-minute filing. 6 The Response addresses the factors set forth in Winter v. Nat’l Res. Def. 7 council, Inc., 555 U.S. 7, 20 (2008), but falls short. In particular, they have not 8 shown any likelihood of success on the merits, and have not shown a likelihood of 9 irreparable harm. 10 Petitioners make the unsupported contention that Mexico’s high crime rate 11 means they are likely to be attacked, kidnapped, or killed. While Mexico’s border 12 regions are known for high crime, Petitioners have not shown they are any more 13 likely to be harmed than any of the millions of people who voluntarily live in or visit 14 Mexico’s border regions. Nor have they shown that Mexican authorities are likely 15 to return them to Guatemala while they are in the process of seeking asylum. They 16 also assert, with no support or explanation, that while they are in Mexico they are 17 prevented from preparing and working on their cases. 18 Respondents on October 7 filed their opposition to the original TRO motion. 19 (Docket no. 8.) Among other things, the response included a substantial section 20 addressing lack of jurisdiction, including jurisdictional bars under 8 U.S.C. 21 §§ 1252(a)(2)(B)(ii) and (g), and an argument that as parolees who are in the U.S. 22 at their own request, Petitioners are not “in custody” for habeas purposes. The 23 “likelihood of success” analysis also argues that this Court lacks jurisdiction to hear 24 claims arising under the consent decree in Reno v. Flores, 507 U.S. 292, 306 25 (1993), which Petitioners rely on. See Hernandez Culajay v. McAleenan, ___ F. 26 Supp. 3d ___, 2019 WL 3889737, at *6 (E.D. Pa., Aug. 19, 2019) (holding that the 27 only district court with jurisdiction to enforce the Flores consent decree is the U.S. 28 District Court for the Central District of California). 1 Although the Court’s order did not provide for a reply brief, Petitioners could 2 have sought leave to file one to address jurisdiction, or they could have amended 3 their petition. In its current state, the Petition merely agues that the Court has 4 jurisdiction because a federal question is present. It does not address the 5 jurisdictional bars, and its assertion that Petitioners are in custody is wholly 6 conclusory. Nor does it suggest any reason why the Court has authority to enforce 7 the Flores consent decree. Bearing in mind that jurisdiction is presumed to be 8 lacking, see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), 9 Petitioners should have addressed jurisdictional questions as soon as they 10 became apparent. 11 More generally, both the Petition and Motion rely heavily on unsupported or 12 only thinly-explained conclusions. Although some of the arguments may be valid, 13 separating the genuine from the hypothetical can be difficult. Petitioners’ counsel 14 are in the best position to explain the bases for their claims, and future filings 15 should do so. 16 Finally, while Petitioners’ counsel are understandably concerned for their 17 clients’ welfare, they must avoid making unauthorized ex parte contact with 18 chambers. On October 17, for example, they emailed a proposed order to 19 chambers without copying opposing counsel as required,1 and included a request 20 for expedited consideration. They also called chambers without opposing counsel 21 on the line, to inform the Court that the motion was urgent. The Court has 22 / / / 23 / / / 24 / / / 25 / / / 26 27 1 See Electronic Case Filing Administrative Policies and Procedures Manual, 28 1 ||admonished counsel already that it is unwilling in this case to entertain one side’s 2 ||request without giving the other side notice and an opportunity to be heard. 3 The Motion is DENIED WITHOUT PREJUDICE. 4 5 IT IS SO ORDERED. 6 ||Dated: October 18, 2019 8 Hon. Larry Alan Burns 9 Chief United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28