Delgado Cruz v. Miller

— 1 — — 2 — — 3 — — 4 — — 5 — UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE — 7 — CONSTANTINA DELGADO CRUZ, CASE NO. 2:24-cv-1502 — 8 — Petitioner, ORDER DENYING PETITIONER’S 9 MOTION FOR A TRO v. — 10 — TROY A. MILLER, United States 11 Customs and Border Protection Commissioner, JASON OWENS, 12 United States Border Patrol Chief, LLOYD EASTERLING, Chief Patrol 13 Agent, Spokane Sector for the United States Border Patrol, PAUL BUDROW, 14 Sheriff, Okanogan County Sheriff’s Office Corrections Division, and 15 PATRICK LECHLEITNER, United States Immigration and Customers 16 Enforcement Acting Director, 17 Respondents. — 18 — 1. INTRODUCTION — 19 — Petitioner Constantina Delgado Cruz is a foreign national currently detained — 20 — at the Northwest ICE Processing Center in Tacoma, Washington. She alleges — 21 — Customs and Border Protection (“CBP”) agents violated the Fourth Amendment and — 22 — 8 C.F.R. § 287.8 by stopping her without reasonable suspicion that she was engaged — 23 — 1 in unlawful activity. Before the Court is Delgado Cruz’s motion for a temporary 2 restraining order (“TRO”) seeking immediate release from detention because of 3 CBP’s alleged constitutional and regulatory violation. For the reasons stated below, 4 the Court DENIES her motion for a TRO. 5 2. FINDINGS OF FACT 6 Considering the parties’ briefing, supporting exhibits, oral argument, and the 7 record, the Court finds the following:1 8 Delgado Cruz is a native of Mexico. Dkt. No. 1 ¶ 4. She first entered the 9 United States in 2003. Dkt. No. 6 at 6 ¶ 2. She remained in this country until 2009, 10 when she traveled to Mexico to care for her dying mother. Id. ¶ 3 . Delgado Cruz 11 tried to return to the United States to reunite with her children after her mother’s 12 passing, but United States immigration officials and Federal Marshals apprehended 13 her at the border. Id. ¶¶ 4, 5 . “This encounter resulted in [Delgado Cruz’s] removal, 14 federal misdemeanor charges for illegal entry, and fraud . . . in connection with 15 identification documents, as well as a twenty-year bar from reentry into the United 16 States.” Id. ¶ 5 . 17 In October 2009, Delgado Cruz reentered the United States and has lived 18 here continuously for the last fifteen years. Id. ¶ 6 . Delgado Cruz resides in 19 Oroville, Washington, and has significant family ties in the United States, including 20 five children all of whom reside here under lawful status. Dkt. No. 1 ¶¶ 24, 28. — 21 — 1 Findings of fact and conclusions of law made in connection with a temporary 22 restraining order are not binding adjudications. Hordphag Rsch. Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). The Court may come to different, perhaps even 23 opposite, conclusions as the case advances. 1 Delgado Cruz also serves as the primary caregiver to her three young 2 grandchildren. Dkt. No. 6 at 6 ¶ 8. In the months to come, Delgado Cruz is 3 expecting the birth of her fourth grandchild. Id. For the last four years, Delgado 4 Cruz has been in a committed relationship with her boyfriend, who lawfully resides 5 in the United States under an H-2A visa. Id. ¶ 9. 6 On September 17, 2024, Allen Cherry, Border Patrol Agent-Intelligence, was 7 parked off Highway 97 near Oroville. Dkt. No. 10 at 1. At 3:45 p.m., Cherry saw a 8 black Dodge Charger drive north past him and turn into a nearby residential 9 neighborhood. Id. Cherry states that he recognized the Dodge Charger “as a vehicle 10 of interest from previous intelligence gathering operations” and identified the 11 license plate. Id. at 1-2. Cherry “conducted [a] records check” on his phone and 12 discovered the vehicle was registered to Delgado-Cruz. Id. Cherry then found “a 13 final order of removal from the United States” but “no records indicating that 14 [Delgado Cruz] has legal status in the United States.” Id. at 2. He also found 15 Delgado Cruz was convicted of illegal entry under 8 U.S.C. § 1325 . Id. 16 Cherry followed Delgado Cruz as she parked in a back alley of the 17 neighborhood. Id. Cherry states he was able to positively identify the driver as 18 Delgado Cruz when she exited the car to grab bags from her trunk. Id. He then 19 contacted Aaron Steffen, Border Patrol Agent. Id. 20 Cherry watched Delgado Cruz reenter her car, leave the back alley, and 21 continue south on Highway 97. Id. Cherry followed Delgado Cruz in his unmarked 22 vehicle. Id. Once Steffen caught up to Cherry, Cherry pulled over onto the shoulder 23 and entered Steffen’s marked patrol car. Id. Steffen and Cherry pulled Delgado 1 Cruz over near Dwinell Cut Off road on Highway 97 at around 4:02 p.m. Id. at 3 ; 2 Dkt. No. 11 at 2. 3 Steffen says he spoke to Delgado Cruz and asked her whether “she was 4 illegally present in the United States.” Dkt. No. 11 at 2. Steffen says that she 5 responded “yes,” after which he placed Delgado Cruz under arrest and transported 6 her to the Oroville CBP Station. Id.; Dkt. No. 6 at 6 ¶ 15. 7 Delgado Cruz describes their encounter differently. She says CBP agents 8 requested her driver’s license and informed her they had a warrant for her arrest. 9 Dkt. No. 6 at 7 ¶ 13. When Delgado Cruz asked why they stopped her, CBP officers 10 told her it was due to “family ties and connections.” Id. ¶ 14 . After being 11 fingerprinted and questioned, CBP held Delgado Cruz at the station until midnight 12 on September 18, 2024. Id. ¶¶ 15-16 . CBP transferred Delgado Cruz to the 13 Okanogan County Corrections Center where she remained until her transfer to the 14 Northwest ICE Processing Center in Tacoma, Washington on September 19, 2024. — 15 — Id. ¶ 16 . 16 Delgado Cruz remains detained at the Northwest ICE Processing Center, 17 under Immigration and Nationality ACT (INA) § 241(a)(5), Dkt. No. 9 ¶ 4, which 18 provides: “If . . . [an individual] has reentered the United States illegally after 19 having been removed . . . , the prior order of removal is reinstated from its original 20 date and is not subject to being reopened or reviewed, . . . and the alien shall be 21 removed under the prior order at any time after the reentry.” 8 U.S.C. § 1231 . 22 Delgado Cruz expressed fear about returning to Mexico because of her siblings’ 23 involvement with the local cartel. Dkt. No. 6 at 7 ¶ 15. On October 1, 2024, Delgado 1 Cruz had a “credible fear interview” with U.S. Citizenship and Immigration 2 Services under 8 C.F.R. § 208.31 . Neither party has informed the Court of the 3 outcome of that interview. 4 3. CONCLUSIONS OF LAW 5 3.1 Legal standard. Preliminary injunctions and TROs are “extraordinary remed[ies] that may — 6 — only be awarded upon a clear showing that the plaintiff is entitled to such relief.” — 7 — Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis added). “The — 8 — default rule is that a plaintiff seeking a preliminary injunction must make a clear — 9 — showing that ‘[they are] likely to succeed on the merits, that [they are] likely to — 10 — suffer irreparable harm in the absence of preliminary relief, that the balance of — 11 — equities tips in [their] favor, and that an injunction is in the public interest.’” — 12 — Starbucks Corp. v. McKinney, 144 S. Ct. 1570 , 1576 (2024) (quoting Winter, 555 U.S. 13 at 20 ). This four-part test—the Winter factors—applies whenever preliminary — 14 — injunctive relief is sought. Winter, 555 U.S. at 20 . — 15 — Injunctive relief can take two forms: prohibitory and mandatory. “A — 16 — prohibitory injunction prohibits a party from taking action” while “[a] mandatory — 17 — injunction orders a responsible party to take action.” Marlyn Nutraceuticals, Inc. v. — 18 — Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79 (9th Cir. 2009) (internal — 19 — quotation marks omitted). The parties agree Delgado Cruz seeks a mandatory — 20 — injunction, and therefore, “she must establish that the law and facts clearly favor — 21 — her position, not simply that she is likely to succeed.” Garcia v. Google, Inc., 786 22 F.3d 733, 740 (9th Cir. 2015) (emphasis in original); see also Hernandez v. Sessions, — 23 — — 1 — 872 F.3d 976, 999 (9th Cir. 2017) (quoting Marlyn Nutraceuticals, 571 F.3d at 879 ) 2 (“Mandatory injunctions, while subject to a higher standard than prohibitory 3 injunctions, are permissible when ‘extreme or very serious damage will result’ that 4 is not ‘capable of compensation in damages,’ and the merits of the case are not 5 ‘doubtful.’”). 6 The first Winter factor, “[l]ikelihood of success on the merits[,] is the most 7 important factor[.]” Edge v. City of Everett, 929 F.3d 657, 663 (9th Cir. 2019). In the 8 Ninth Circuit, courts apply a “sliding scale approach” under which “a stronger 9 showing of irreparable harm to plaintiff might offset a lesser showing of likelihood 10 of success on the merits.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 , 1131 11 (9th Cir. 2011) (citation omitted). Under what is sometimes called the “serious 12 questions” test, “[an] injunction could issue where the likelihood of success is such 13 that serious questions going to the merits were raised and the balance of hardships 14 tips sharply in [plaintiff's] favor.” Id. (internal quotation marks omitted). “Serious 15 questions are substantial, difficult and doubtful,” requiring further deliberation and 16 investigation, but that cannot be resolved at the time an injunction is sought. Gilder 17 v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991). In those cases, a TRO may 18 issue to preserve the status quo or to order other injunctive relief. See id.; see also 19 Xuyue Zhang v. Barr, 612 F. Supp. 3d 1005 , 1012 (C.D. Cal. 2020); Bent v. Barr, 445 20 F. Supp. 3d 408 , 416 (N.D. Cal. 2020). — 21 — — 22 — — 23 — 1 3.2 Delgado Cruz has not made a clear showing of a likelihood of success on the merits. — 2 — Delgado Cruz alleges CBP violated the Fourth Amendment and 8 C.F.R. — 3 — § 287.8 by stopping her without a reasonable suspicion that she was engaged in — 4 — criminal wrongdoing.2 “‘The Fourth Amendment prohibits ‘unreasonable searches — 5 — and seizures’ by the Government, and its protections extend to brief investigatory — 6 — stops of persons or vehicles that fall short of traditional arrest.’” United States v. — 7 — Willis, 431 F.3d 709, 714 (9th Cir. 2005) (quoting United States v. Arvizu, 534 U.S. 8 266, 273 (2002)). “Such investigatory stops are justified by ‘reasonable suspicion’ — 9 — that criminal activity may be afoot.” Id. Reasonable suspicion is formed by “specific, — 10 — articulable facts which, together with objective and reasonable inferences, form the — 11 — basis for suspecting that the particular person detained is engaged in criminal — 12 — activity.” United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000). 8 C.F.R. — 13 — § 287.8(b) offers “at least as much protection as the Fourth Amendment” in that it — 14 — requires immigration officials to have a “reasonable suspicion” before a detention. — 15 — Perez Cruz v. Barr, 926 F.3d 1128, 1137 (9th Cir. 2019). The government has the — 16 — burden of production of coming forward with “specific and articulable facts” to — 17 — support reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 21 (1968); Willis, 431 F.3d 18 at 715 n.5 (“the officer has satisfied the government’s burden of production by — 19 — — 20 — — 21 — 2 Delgado Cruz conceded at oral argument that once stopped, the officers had 22 probable cause to arrest her once she was positively identified and admitted that she was in the country unlawfully. Thus, the only governing law that guides the 23 Court’s merits inquiry relates to “reasonable suspicion.” 1 coming forward with ‘specific and articulable facts,’ … to support his suspicion of 2 illegal activity.”). 3 Here, the Government has proffered declarations with specific and 4 articulable facts that show at least a minimal level of objective justification for 5 stopping Delgado Cruz. Thus, setting aside matters of credibility, there is evidence 6 from which to conclude that the CBP officers had a reasonable suspicion that 7 Delgado Cruz was in the United States unlawfully and to stop her.3 Delgado Cruz 8 tries to poke holes in the officers’ factual account, arguing that Cherry’s claim of 9 recognizing “a vehicle of interest from previous intelligence gathering operations” 10 “is so vague as to be completely meaningless” and “[t]here are reasons to doubt that 11 a ‘positive identification’ from an unknown distance and presumably using a 12 photograph taken approximately 15 years prior constitute reasonable suspicion[.]” 13 Dkt. No. 12 at 9-10. She also argues that the Government’s supporting declarations 14 make no mention of the “family ties and connections” justification an officer told 15 Delgado Cruz, nor do they explain why “[t]he mere existence of [Delgado Cruz’s] 16 prior removal order” establishes articulable evidence of unlawful activity. Id. 17 Delgado Cruz also questions the ability of the agents to perform a thorough records 18 check within 17 minutes while driving behind her. Id. at 8 . 19 To be sure, these are legitimate questions about the legality of the stop, and 20 they call for further exploration and scrutiny. But they are not so substantial, — 21 — 3 It does not matter whether Delgado Cruz’s detention is considered under 8 C.F.R. 22 § 287.8 or under the Fourth Amendment, because the regulatory standards are at least as stringent as those imposed by the Fourth Amendment. Perez Cruz, 926 F.3d 23 at 1137. 1 difficult, and doubtful as to raise “serious questions” going to the merits of her 2 Fourth Amendment claim or to tip the scales in favor of her immediate release from 3 detention. And with no contrary evidence showing, for example, that CBP’s so-called 4 “intelligence gathering operation” was ill-investigated, uninformed, contrary-to5 statute, or that her arrest was somehow retaliatory, Delgado relies on skepticism 6 and speculation to carry the day. If that’s all it took, however, to merit injunctive 7 relief, courts would be rendered more “spectator[s] than … referee[s] when it comes 8 to matters of equity.” Starbucks, 144 S.Ct. at 1578. To the extent there are factual 9 conflicts between Delgado Cruz’s and the CBP officers’ declaration, they only create 10 more doubt about the probability of her success. See id. (citing 11A C. Wright, A. 11 Miller, & M. Kane, Fed. Prac. & Proc. § 2948.3 (3d ed. 2013)). 12 Accordingly, the Court finds that Delgado Cruz has not satisfied the 13 “threshold inquiry” of likely success on the merits.4 Because she has failed to meet 14 the first Winter factor, the Court need not consider the remaining factors. Baird v. 15 Bonta, 81 F.4th 1036 , 1040 (9th Cir. 2023) (quoting Disney Enters., Inc. v. VidAngel, 16 Inc., 869 F.3d 848, 856 (9th Cir. 2017)). — 17 — — 18 — 19 4 Delgado Cruz confirmed during oral argument that she does not presently allege that CBP racially profiled her or that CBP’s stated reasons for stopping her are a 20 pretext for discrimination. This is significant because the Fourth Amendment outlaws the pernicious practice of stopping and questioning people about their 21 citizenship and immigration status when the only ground for suspicion is racial profiling. See United States v. Brignoni-Ponce, 422 U.S. 873, 884-887 (1975); see also 22 United States v. Rodriguez, 976 F.2d 592, 596 (9th Cir. 1992). This type of racebased policing is “repugnant under any circumstances” and an “egregious” violation 23 of the Constitution and 8 C.F.R. § 287.8 (b)(2). Sanchez, 904 F.3d at 656. 1 3.3 Questions about the Court’s continued jurisdiction also weigh against an injunction. — 2 — Having found that Delgado Cruz has failed to show a likelihood of success on — 3 — the merits, the Court turns to a separate issue that weighs against an injunction — 4 — and that may eventually divest the Court of jurisdiction. — 5 — Delgado Cruz requests her immediate release from detention, arguing that a — 6 — stop that violates the Fourth Amendment “can completely invalidate removal — 7 — proceedings, requiring termination.” Dkt. No. 12 at 6 (citing Sanchez, 904 F.3d 643 , — 8 — 655 (9th Cir. 2018)). But it’s not clear, and Delgado Cruz does not clarify, what — 9 — “invalidating removal proceedings” means in this context. — 10 — If Delgado Cruz is challenging a reinstated removal order, the Court may not — 11 — have jurisdiction over this matter. “The REAL ID Act ‘expressly eliminated habeas — 12 — review over all final orders of removal,’ A. Singh v. Gonzales, 499 F.3d 969, 977 (9th — 13 — Cir.2007), and provided that a petition for review in the court of appeals is the ‘sole — 14 — and exclusive means for judicial review of an order of removal,’ 8 U.S.C. § 15 1252(a)(5).” Singh v. Holder, 638 F.3d 1196, 1210 (9th Cir. 2011), abrogated on other — 16 — grounds by Rodriguez Diaz v. Garland, 53 F.4th 1189 , 1196 (9th Cir. 2022). — 17 — That said, Congress did not intend the REAL ID Act to “preclude habeas — 18 — review over challenges to detention that are independent of challenges to removal — 19 — orders.” Id. at 1211 . Without observing this limit to the REAL ID Act, federal courts — 20 — would be barred from considering any constitutional claims arising during a stop or — 21 — arrest simply because they are “tangentially related to the [government’s] decision — 22 — — 23 — 1 to commence removal proceedings.” Gupta v. McGahey, 737 F.3d 694, 699 (11th Cir. 2 2013). 3 Neither party addresses this point in their briefing. Given the Court’s 4 continuing obligation to affirm its own jurisdiction, Delgado Cruz fails to assure her 5 petition stands alone even if, as a technical point, it does not directly challenge the 6 validity of her reinstated removal order. — 7 — 3.4 Delgado Cruz is not yet under immediate threat of removal. — 8 — Delgado Cruz argues that, absent a TRO, she may be removed “long before — 9 — the merits of this case are otherwise reached, subjecting her to irreparable harm.” — 10 — Dkt. No. 12 at 11. But Delgado Cruz is seeking withholding of removal based on her — 11 — fear of returning to Mexico. The Government has assured the Court that Delgado — 12 — Cruz will not be removed while her claims are being considered. The Court orders — 13 — the Government to provide Delgado Cruz and the Court at least 14 days’ notice — 14 — before the date set for Delgado Cruz’s deportation so that she may seek further — 15 — relief from this Court or the Ninth Circuit, if appropriate. — 16 — 3.5 The Court grants Delgado Cruz leave to amend her petition. — 17 — The Government argues the Court should dismiss Delgado Cruz’s habeas — 18 — petition because she names the wrong defendant. In response, Delgado Cruz argues — 19 — that her counsel could not identify her location at the time they filed her petition. — 20 — As a result, the Court should grant Delgado Cruz leave to amend now that her — 21 — location is settled. The Court agrees with Delgado Cruz and grants her leave to — 22 — amend within 10 days of the date of this Order. — 23 — 1 4. CONCLUSION 2 In sum, the Court DENIES Delgado’s petition for a TRO and GRANTS her 3 leave to amend her petition within 10 days of the date of this Order. The Court also 4 ORDERS the Government to provide Delgado Cruz and the Court 14 days’ notice 5 before the date set for Delgado Cruz’s deportation from this country. 6 Dated this 7th day of October, 2024. 7 A Jamal N. Whitehead — 8 — United States District Judge — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 —