Ortiz Calderon v. Kaiser

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 CAROLINA ORTIZ CALDERON, Case No. 25-cv-06695 8 Petitioner, ORDER GRANTING TEMPORARY 9 v. RESTRAINING ORDER 10 POLLY KAISER, Acting Field Office Re: Dkt. No. 3 Director of the San Francisco Immigration 11 and Customs Enforcement Office; TODD LYONS, Acting Director of United States 12 I K m R m IS ig T r I a t N io O n E a M nd , S C e u c s r t e o t m ar s y E o n f f t o h r e c e U m n e it n e t d ; 13 States Department of Homeland Security, PAMELA BONDI, Attorney General of the 14 United States, acting in their official capacities, [15] Respondents. [16] 17 Before the Court is Petitioner’s Ex Parte Motion for Temporary Restraining Order. TRO 18 Mot., ECF No. 3. Petitioner simultaneously filed a Petition for Writ of Habeas Corpus and Ex 19 Parte Motion for Temporary Restraining Order against Respondents Acting Field Office Director 20 Polly Kaiser, Acting Director of Immigration and Customs Enforcement Todd M. Lyons, 21 Secretary of the Department of Homeland Security Kristi Noem, and United States Attorney 22 General Pamela Bondi on August 8, 2025. Petitioner asks this Court to (1) order her immediate 23 release from Respondents’ custody pending these proceedings, and (2) enjoin Respondents from 24 transferring her out of this District or deporting her during the pendency of the underlying 25 proceedings. See Notice of Mot., ECF No. 3. For the foregoing reasons, the TRO is GRANTED 26 as set forth below. [27] 1 I. BACKGROUND 2 According to the record before the Court, Petitioner is an asylum seeker who fled to the 3 United States from Colombia in 2024. Petition for Writ of Habeas Corpus ¶ 1, ECF No. 2. When 4 Petitioner arrived in the United States, “federal agents briefly detained her, determined that she 5 was not a flight risk or danger to the community, and released her on her own recognizance with a 6 notice to appear for removal proceedings in immigration court.” Id. “Since then, Petitioner has 7 done everything the government asked her to do: she has diligently attended every immigration 8 court hearing and filed an application for asylum within the one-year filing deadline.” Id. 9 Petitioner “has no criminal history anywhere in the world.” Id. 10 On August 7, 2025, Petitioner attended a hearing in San Francisco Immigration Court. Id. 11 ¶ 2. At the hearing, the government moved to dismiss its case seeking Petitioner’s removal. Id. 12 The presiding judge gave Petitioner time to respond to the motion and set a further hearing for 13 September 4, 2025. Id. Minutes after Petitioner exited the courtroom, three Department of 14 Homeland Security agents arrested Petitioner. Id. ¶¶ 3, 61. They did not present a warrant, and 15 incorrectly told Petitioner “that her case had been dismissed” by the immigration judge. Id. ¶ 3. 16 Petitioner is currently being detained at 630 Sansome Street in San Francisco, California. Id. ¶ 11. 17 On August 8, 2025, this Petition was filed. Petitioner contends that her arrest and 18 detention violate the Due Process Clause of the Fifth Amendment, both substantively (because 19 Respondents allegedly have no valid interest in detaining her) and procedurally (because she was 20 not provided with a pre-detention bond hearing). 21 II. LEGAL STANDARD 22 The standard for issuing a temporary restraining order is identical to the standard for 23 issuing a preliminary injunction. See Washington v. Trump, 847 F.3d 1151 , 1159 n.3 (9th Cir. 24 2017) (“[T]he legal standards applicable to TROs and preliminary injunctions are substantially 25 identical.” (internal quotation marks and citation omitted)). A plaintiff seeking preliminary 26 injunctive relief must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to 27 suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in 1 Council, Inc., 555 U.S. 7, 20 (2008). “[I]f a plaintiff can only show that there are serious 2 questions going to the merits – a lesser showing than likelihood of success on the merits – then a 3 preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff’s 4 favor, and the other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767 5 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks and citations omitted). “[W]hen the 6 Government is the opposing party,” the final two factors “merge.” Nken v. Holder, 556 U.S. 418 , 7 435 (2009). 8 An injunction is a matter of equitable discretion and is “an extraordinary remedy that may 9 only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 10 U.S. at 22. A “TRO ‘should be restricted to . . . preserving the status quo and preventing 11 irreparable harm just so long as is necessary to hold a [preliminary injunction] hearing and no 12 longer.’” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (quoting 13 Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, 415 14 U.S. 423, 439 (1974)). 15 III. DISCUSSION 16 As a preliminary matter, the Court finds that the requirements for issuing a temporary 17 restraining order without notice set out in Federal Rule of Civil Procedure 65(b)(1) are met in this 18 case. Petitioner’s counsel has set out specific facts in a declaration showing that immediate and 19 irreparable injury, loss, or damage may result before the adverse party can be heard in opposition. 20 See Fed. R. Civ. P. 65(b)(1)(A). Additionally, counsel states that he attempted to contact the Civil 21 Division Chief at the U.S. Attorney’s Office for the Northern District of California on August 7, 22 2025, and provided a copy of Petitioner’s habeas petition by email on August 8, 2025. See De 23 Bremaeker Decl. ¶¶ 7-8, ECF No. 3-3; see also Fed. R. Civ. Pro. 65(b)(1)(B). 24 Petitioner has demonstrated a likelihood of success on the merits of her claim that her 25 ongoing detention violates her procedural due process rights under the Fifth Amendment. The 26 Due Process Clause entitles Petitioner to a bond hearing before an immigration judge prior to any 27 arrest or detention. See, e.g., Pablo Sequen v. Kaiser, No. 25-cv-06487-PCP, 2025 WL 2203419 , 1 Petitioner has also demonstrated a likelihood of irreparable injury in the absence of 2 temporary relief. The likely unconstitutional deprivation of liberty that Petitioner faces is an 3 immediate and irreparable harm. “It is well established that the deprivation of constitutional rights 4 ‘unquestionably constitutes irreparable injury.’ ” Hernandez v. Sessions, 872 F.3d 976, 994 (9th 5 Cir. 2017) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). “When an alleged 6 deprivation of a constitutional right is involved, most courts hold that no further showing of 7 irreparable injury is necessary.” Warsoldier v. Woodford, 418 F.3d 989 , 1001-02 (9th Cir. 2005) 8 (cleaned up). “[I]t follows inexorably from [the] conclusion” that Petitioner’s detention without a 9 pre-detention hearing is “likely unconstitutional,” that she has “also carried [her] burden as to 10 irreparable harm.” Hernandez, 872 F.3d at 995 . 11 The final two Winter factors, the balance of the equities and public interest, also weigh 12 heavily in favor of granting temporary relief. “[T]he public has a strong interest in upholding 13 procedural protections against unlawful detention, and the Ninth Circuit has recognized that the 14 costs to the public of immigration detention are staggering.” Jorge M. F. v. Wilkinson, No. 21-cv15 01434-JST, 2021 WL 783561 , at *3 (N.D. Cal. Mar. 1, 2021) (cleaned up); see Melendres, 695 16 F.3d at 1002 (“[I]t is always in the public interest to prevent the violation of a party’s 17 constitutional rights.” (quotation omitted)); Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 18 2005) (“Generally, public interest concerns are implicated when a constitutional right has been 19 violated, because all citizens have a stake in upholding the Constitution.”). As other courts in this 20 district and others have concluded under similar circumstances, “the potential harm to [Petitioner] 21 is significant, while the potential harm to the government is minimal.” Pablo Sequen, 2025 WL 22 2203419, at *3. At most, the government faces a short delay in detaining Petitioner if it ultimately 23 demonstrates, by clear and convincing evidence, that her detention is necessary to prevent danger 24 to the community or flight. See Jorge M. F., 2021 WL 783561 , at *3; Diaz v. Kaiser, No. 3:25-cv25 05071, 2025 WL 1676854 (N.D. Cal. June 14, 2025). The government is not “harmed in any 26 legally cognizable sense by being enjoined from constitutional violations.” Zepeda v. U.S. 27 Immigr. & Nat. Serv., 753 F.2d 719, 727 (9th Cir. 1983). “Faced with . . . a conflict between 1 concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” Singh v. Andrews, 2 No. 25-cv-00801, 2025 WL 1918679 , at *9 (E.D. Cal. July 11, 2025) (quoting Hernandez, 872 3 F.3d at 996) (cleaned up). 4 A TRO immediately releasing Petitioner is appropriate here to return her to the status quo. 5 E. Bay Sanctuary Covenant, 932 F.3d at 779 . The status quo refers to “the last uncontested status 6 which preceded the pending controversy.” Doe v. Noem, No. 25-cv-00633, 2025 WL 1141279 , at 7 *9 (W.D. Wash. Apr. 17, 2025) (citing GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199 , 1210 8 (9th Cir. 2000)). That is the moment prior to her likely illegal detention. See Kuzmenko v. 9 Phillips, No. 25-cv-00663, 2025 WL 779743 , at *2 (E.D. Cal. Mar. 10, 2025) (granting a 10 temporary restraining order requiring immediate release of the petitioner back to home 11 confinement from custody, as a restoration of the status quo). 12 Because Petitioner satisfies all requirements for temporary injunctive relief and such relief 13 is necessary to restore the status quo, the TRO Motion is granted as detailed below. This Order 14 accords with many other recent grants of temporary relief in similar circumstances. See, e.g., 15 Garro Pinchi v. Noem, No. 25-cv-05632, 2025 WL 1853763 , at *4 (N.D. Cal. July 4, 2025) 16 (granting temporary restraining order requiring release of asylum seeker and a pre-detention bond 17 hearing before re-arrest), converted to preliminary injunction at __ F. Supp. 3d __, 2025 WL 18 2084921 (N.D. Cal. July 24, 2025); Singh, 2025 WL 1918679 , at *10 (granting preliminary 19 injunction); Doe v. Becerra, No. 2:25-cv-647-DJC-DMC, 2025 WL 691664 , at *8 (E.D. Cal. Mar. 20 3, 2025) (granting temporary restraining order); see also Diaz, 2025 WL 1676854 (granting 21 temporary restraining order requiring pre-detention hearing before re-detention of noncitizen out 22 of custody five years); Garcia v. Bondi, No. 25-cv-5070, 2025 WL 1676855 , at *3 (N.D. Cal. June 23 14, 2025) (granting temporary restraining order requiring pre-detention hearing before re24 detention of noncitizen out of custody six years ); Enamorado v. Kaiser, No. 25-cv-4072-NW, [25] 2025 WL 1382859 , at *3 (N.D. Cal. May 12, 2025). 26 Because “there is no realistic likelihood of harm to the [Respondents] from enjoining 27 [their] conduct,” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003), no security is needed 1 been wrongfully enjoined or restrained,” Fed. R. Civ. P. 65(c). The Court exercises its discretion 2 || under Rule 65(c) to dispense with the filing of bond. Jorgensen, 320 F.3d at 919 . 3 || IV. ORDER 4 For the foregoing reasons, IT IS HEREBY ORDERED that Petitioner’s Ex Parte Motion 5 for Temporary Restraining Order is GRANTED to preserve the status quo pending further 6 || briefing and a hearing on this matter. Respondents are ORDERED to immediately release 7 || Petitioner from Respondents’ custody and ENJOINED AND RESTRAINED from re-detaining 8 Petitioner without notice and a pre-deprivation hearing before a neutral decisionmaker, and from 9 || removing her from the United States.! This Order shall remain in effect until Friday, August 22, 10 2025, at 5:00 p.m. 11 The Petition for Writ of Habeas Corpus, Motion for Temporary Restraining Order, and this a 12 Order SHALL be served on Respondents such that they receive actual notice as soon as 13 practicable, and Petitioner shall file proof of such service by no later than Saturday, August 9, v 14 || 2025. Respondents shall provide a status report confirming Petitioner’s release by Sunday, 15 || August 10, 2025. Q 16 Respondents are ORDERED TO SHOW CAUSE in-person on Friday, August 22, 2025, = 17 at 1:00 p.m. why a preliminary injunction should not issue. Respondents shall file a response to 18 Petitioner’s motion by no later than Friday, August 15, 2025. Any reply shall be filed by 19 Tuesday, August 19, 2025. 20 IT IS SO ORDERED. 21 Dated: August 8, 2025 Weck = 22 cok 74 ARACELI MARTINEZ-OLGUIN United States District Judge [25] 26 ' Petitioner also asks the Court to order that she remain within the Northern District of California in order to preserve this Court’s jurisdiction, but it is well-established that “when the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the 27 vo . District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction 2g || who has legal authority to effectuate the prisoner’s release.” Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004).