Orduno Hernandez v. Lyons

— 1 — 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Jun 09, 2025 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON — 6 — GUSTAVO ORDUNO HERNANDEZ, 7 MARIA MAGDALENA CASE NO: 1:25-cv-03081-RLP CASTANADA ROSALES, 8 VALENTINA ORDUNO CASTANEDA, RAFAEL ORDUNO 9 CASTANEDA ORDER DENYING MOTION FOR TEMPORARY RESTRAINING 10 Plaintiffs, ORDER 11 vs. — 12 — TODD LYONS, Acting Director, U.S. 13 Immigration and Customs Enforcement, in his official capacity as 14 well as successors and assigns, KRISTI NOEM, Secretary for the U.S. 15 Department of Homeland, in her official capacity as well as successors 16 and assigns, 17 Defendants. — 18 — 19 BEFORE THE COURT is Plaintiff Gustavo Orduno Hernandez’s Motion for 20 Temporary Restraining Order. ECF No. 4. The matter was considered without oral argument on an emergency basis. According to the motion, Mr. Hernandez is 1 currently in custody of Immigration and Customs Enforcement (ICE) in Yakima, 2 Washington, and faces imminent transfer to Tacoma, Washington and removal from 3 the United States pursuant to a removal order which is pending appeal. Mr. 4 Hernandez seeks a temporary restraining order preventing Defendants from 5 effectuating or requiring his removal from the United States while appeal of his 6 removal order is pending. For the reasons set forth below, the emergency motion for 7 a temporary restraining order, ECF No. 4, is DENIED. 8 BACKGROUND 9 According to the Complaint, Mr. Hernandez, his partner, Maria Magdalena 10 Castanada Rosales, and their two children filed I-89 applications for Asylum and For 11 Withholding of Removal with the Immigration Court in Seattle, Washington. ECF 12 No. 1. On April 10, 2025, the Plaintiffs’ I-589 applications were denied and they 13 were ordered removed from the United States. Id. Plaintiffs’ May 19, 2025 appeal 14 of the removal order was accepted for review by the Board of Immigration Appeals 15 (BIA). Id. The appeal is currently pending. Id. 16 On June 4, 2025, Mr. Hernandez reported as scheduled to his local ICE center 17 in Yakima, Washington. Although Mr. Hernandez provided documentation of his 18 pending BIA appeal, according to the Complaint he was detained for processing for 19 “immediate” removal from the United States. Id. Ms. Rosales and the other Plaintiffs 20 were not detained. Id. 1 On the same date, the Plaintiffs filed a petition for writ of habeas corpus and 2 for declaratory and injunctive relief. They ask the Court to assume jurisdiction over 3 this matter pursuant to 28 U.S.C. §§ 1331 and 2241 and seek an order directing 4 Defendants to show cause why the writ of habeas corpus should not be granted; a 5 declaration that Mr. Herndandez is being unlawfully detained in violation of federal 6 law and the Due Process Clause of the Fifth Amendment; declaration that their 7 removal orders are not final for purposes of enforcement while their appeal is 8 pending before the BIA; preliminary and permanent injunctive relief enjoining the 9 Defendants from removing the Plaintiffs from the United States while their BIA 10 appeal is pending; and reasonable attorney’s fees and costs pursuant to the Equal 11 Access to Justice Act, 28 U.S.C. § 2412 . 12 Mr. Hernandez now requests an emergency temporary restraining order 13 preventing Defendants from removing him from the United States while his removal 14 order appeal is pending before the BIA. ECF No. 4. 15 LEGAL STANDARD 16 “The court may issue a temporary restraining order without written or oral 17 notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or 18 a verified complaint clearly show that immediate and irreparable injury, loss, or 19 damage will result to the movant before the adverse party can be heard in 20 opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1). 1 The purpose of a temporary restraining order is to preserve the status quo and 2 prevent irreparable harm until a hearing may be held on the propriety of a 3 preliminary injunction. Reno Air Racing Assoc., Inc. v. McCord, 452 F.3d 1126 , 4 1131 (9th Cir. 2006). The standard for issuing a temporary restraining order is the 5 same as the standard for issuing a preliminary injunction. See New Motor Vehicle 6 Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 , 1347 n.2 (1977). A TRO is “an 7 extraordinary remedy that may only be awarded upon a clear showing that the 8 plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 , 9 24 (2008). 10 The proper legal standard for preliminary injunctive relief requires a party to 11 demonstrate: (1) that he is likely to succeed on the merits, (2) that he is likely to 12 suffer irreparable harm in the absence of preliminary relief, (3) that the balance of 13 equities tips in his favor, and (4) that an injunction is in the public interest. 14 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 555 15 U.S. at 20). These four factors apply whenever a preliminary injunction is sought. 16 Winter, 555 U.S. at 20 ; see All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 , 1135 17 (9th Cir. 2011) (“a showing on all four prongs” is required). 18 ANALYSIS 19 Mr. Hernandez contends all four factors are present and support granting of a 20 temporary restraining order. ECF No. 4. Defendants argue there is no risk of irreparable harm and therefore the TRO should not be granted. ECF No. 10 at 4. 1 Mr. Hernandez contends he faces irreparable harm through deprivation of 2 constitutional rights and “immediate, unlawful, deportation.” ECF No. 4 at 5. He 3 argues he is entitled to due process in the form of BIA review of his appeal of his 4 removal order. According to Mr. Hernandez, unlawful removal would violate his 5 due process rights, which is an immediate, irreparable injury. Id. Additionally, Ms. 6 Rosales alleges immediate and irreparable harm will occur to the family emotionally 7 and financially. ECF No. 6 at 8. 8 In response, the Government contends there is no immediate risk of 9 irreparable harm because Defendants have notified Plaintiffs that “they will provide 10 the exact relief that the motion for TRO requests.” ECF No. 10 at 2. Attached to the 11 Government’s response is the Declaration of Chris Hubbard, a deportation officer 12 employed by the United States Immigration and Customs Enforcement, Office of 13 Enforcement and Removal Operations (ERO), at the Northwest ICE Processing 14 Center in Tacoma, Washington. ECF No. 10-1. Mr. Hubbard indicates that he is 15 familiar with Mr. Hernandez’s case and that after Mr. Hernandez was detained on 16 June 4, 2025, he was transferred to the ICE processing center in Tacoma on the same 17 day. Id. Mr. Hubbard asserts that “ERO will not remove [Mr. Hernandez] while the 18 appeal with the Board is pending.” Id. at 2. Mr. Hubbard further states that Mr. 19 Hernandez would only be removed if he exhausts his remedies and does not obtain 20 relief. Id. According to the government, because Mr. Hernandez does not face an immediate risk of removal, he is not facing the type of irreparable injury required for an emergency temporary restraining order. 3 The Court concludes that based on Mr. Hubbard’s Declaration, there is no risk 4|| of irreparable harm from violation of due process in the form of deportation while Mr. Hernandez’s BIA appeal of his removal order is pending. Mr. Hernandez 6|| contends this “does not provide the necessary legal assurance to render the Motion 7\| for TRO moot.” ECF No. 9 at 4. However, the Court notes that Mr. Hernandez’s 8 || attorney’s Amended Certificate in support of filing the TRO indicates that counsel 9|| for ICE also confirmed that Mr. Hernandez would not be removed while his appeal 10|| was pending. ECF No. 9 at 3. As to any alleged irreparable harm caused by Mr. 11 |} Hernandez’s detention, the matter of his detention is not before this Court on this motion for emergency TRO. See ECF No. 4. Accordingly, 13 IT IS ORDERED that Mr. Hernandez’s Motion for Temporary Restraining 14}} Order, ECF No. 4, is DENIED. 15 IT IS SO ORDERED. The District Court Executive shall enter this order and provide copies to counsel. 17 DATED June 9, 2025. 18 xe C ; 19 REBECCA [I NELL United States District Judge — 20 — ORDER DENYING MOTION FOR