Jenifer Orozco Acosta v. Sergio Albarran et al.

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 JENIFER OROZCO ACOSTA 3:25-cv-09601 8 Plaintiff, ORDER GRANTING TEMPORARY 9 v. RESTRAINING ORDER 10 SERGIO ALBARRAN et al. Defendants. [12] 13 Jenifer Orozco Acosta (“petitioner”) move the Court ex parte for a temporary restraining 14 order that would, among other things, require her immediate release from ongoing detention by 15 agents of Immigration and Customs Enforcement (“ICE”) and prohibit ICE from re-arresting her 16 without notice and a pre-detention bond hearing.1 For the reasons set forth below, the Court grants 17 the requested order. The Court orders defendants to release Ms. Orozco Acosta from her ongoing 18 detention and prohibits defendants from re-arresting or otherwise re-detaining her without first 19 providing her with a pre-detention bond hearing before an immigration judge at which the 20 government establishes by clear and convincing evidence that her detention is necessary to prevent 21 her flight or to protect the public. 22 BACKGROUND 23 The evidence before the Court establishes that Ms. Orozco Acosta fled her home country [24] 1 Petitioners ask the Court to order that they remain within the Northern District of California in [25] order to preserve this Court’s jurisdiction over their petition. But it is well-established that “when the Government moves a habeas petitioner after she properly files a petition naming her immediate [26] custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner’s release.” Rumsfeld v. Padilla, [27] 542 U.S. 426, 441 (2004). Petitioners also request that the Court prohibit their deportation during 1 and entered the United States in 2023. Immigration officials apprehended and released her on her 2 own recognizance under 8 U.S.C. § 1226 (a), concluding that she posed little if any flight risk or 3 danger to the community. Ms. Orozco Acosta filed an application for asylum, withholding of 4 removal, and protection under the Convention Against Torture, and has complied with her ICE 5 and immigration court requirements. Ms. Orozco Acosta has not been convicted of a crime. 6 On November 6, 2025, Ms. Orozco Acosta appeared at the immigration court in San 7 Francisco for a master hearing. During the hearing, the government moved to dismiss her pending 8 case. The immigration judge continued the hearing to allow Ms. Orozco Acosta to respond to the 9 motion. 10 As Ms. Orozco Acosta exited the courtroom, ICE agents arrested her. She is currently 11 being held at the San Francisco Immigration Court at 630 Sansome Street, San Francisco, 12 California. 13 Ms. Orozco Acosta, with representation of counsel, filed a petition for a writ of habeas 14 corpus and an ex parte motion for a temporary restraining order on November 6, 2025. Among 15 other claims, she contends that her arrest and detention violates the Due Process Clause of the 16 Fifth Amendment, both substantively (because defendants allegedly have no valid interest in 17 detaining her) and procedurally (because defendants have not or would not provide a pre-detention 18 bond hearing). The defendants are Sergio Albarran, Field Office Director of the San Francisco 19 Immigration and Customs Enforcement Office; Todd Lyons, Acting Director of United States 20 Immigration and Customs Enforcement; Kristi Noem, Secretary of the United States Department 21 of Homeland Security; and Pamela Bondi, Attorney General of the United States. 22 LEGAL STANDARDS 23 The standard for issuing a temporary restraining order is largely identical to the standard 24 for issuing a preliminary injunction. See Washington v. Trump, 847 F.3d 1151 , 1159 n.3 (9th Cir. 25 2017). Petitioners seeking such relief must establish that (1) they are “likely to succeed on the 26 merits”; (2) they are “likely to suffer irreparable harm in the absence of preliminary relief”; (3) 27 “the balance of equities tips in [their] favor”; and (4) “an injunction is in the public interest.” 1 there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on 2 the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply 3 in the plaintiff’s favor and the other two Winter factors are satisfied.’” All. for the Wild Rockies v. 4 Peña, 865 F.3d 1211, 1217 (9th Cir. 2017) (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 5 F.3d 1281, 1291 (9th Cir. 2013)). “Where, as here, the party opposing injunctive relief is a 6 government entity, the third and fourth factors—the balance of equities and the public interest— 7 merge.” Hubbard v. City of San Diego, 139 F.4th 843 , 854 (9th Cir. 2025) (citation modified). 8 Although the substantive standards for both motions are similar, the timeframe for a 9 temporary restraining order is different. While a preliminary injunction remains in effect pending 10 final resolution of the litigation, “a TRO ‘should be restricted to … preserving the status quo and 11 preventing irreparable harm just so long as is necessary to hold a [preliminary injunction] hearing 12 and no 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 Federal Rule of Civil Procedure 65(b)(1) allows a temporary restraining order to be issued 16 without notice to the opposing party—i.e., ex parte—only if “specific facts in an affidavit or a 17 verified complaint clearly show that immediate and irreparable injury, loss, or damage will result 18 to the movant before the adverse party can be heard in opposition” and “the movant’s attorney 19 certifies in writing any efforts made to give notice and the reasons why it should not be required.” 20 ANALYSIS 21 As an initial matter, Ms. Orozco Acosta has satisfied the requirements for issuance of an ex 22 parte order. The affidavit of petitioner’s counsel demonstrates that Ms. Orozco Acosta will suffer 23 immediate and irreparable injury, loss, or damage by virtue of her continued detention before 24 respondents can be heard in opposition, and that counsel attempted to contact Civil Division chief 25 Pamela Johann of the United States Attorney’s Office for the Northern District of California on 26 November 6, 2025, at 2:11 p.m.. 27 With respect to the showing required to justify Ms. Orozco Acosta’s requested relief, she 1 violates her procedural due process rights under the Due Process Clause of the Fifth Amendment. 2 The Court recently considered that issue under virtually indistinguishable circumstances in Pablo 3 Sequen v. Albarran, No. 25-CV-06487-PCP, __ F. Supp. 3d __, 2025 WL 2935630 (N.D. Cal. 4 Oct. 15, 2025). For the reasons explained in far greater detail therein, a noncitizen like Ms. Orozco 5 Acosta who was conditionally released into the United States has a significant liberty interest in 6 remaining out of immigration custody. Id. at *5 . Because Ms. Orozco Acosta has resided in the 7 United States for well more than a year—certainly long enough to “begin[] to develop … ties” and 8 become “a part of our population”—the Fifth Amendment entitles her to due process protections 9 for that liberty interest. Id. at *5 (first quoting Landon v. Plasencia, 459 U.S. 21 , 32–33 (1982); 10 and then quoting Yamataya v. Fisher, 189 U.S. 86 , 100–01 (1903)). The statutory procedures 11 potentially available to Ms. Orozco Acosta do not satisfy that constitutional mandate. Even 12 assuming that she will receive a post-arrest bond hearing before an immigration judge, there 13 remains a substantial risk that the government is erroneously depriving Ms. Orozco Acosta of her 14 liberty in the meantime, as the available record suggests that she is neither a flight risk nor a 15 danger to the public See id. at *8; Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Given the 16 apparent lack of a valid basis on which to detain Ms. Orozco Acosta and the limited cost of 17 providing a custody hearing in immigration court, the government has at most a minimal 18 countervailing interest in her continued detention. See Pablo Sequen, __ F. Supp. 3d __, 2025 WL 19 2935630 at *12; Garro Pinchi v. Noem, No. 5:25-cv-05632, __ F.Supp.3d __, 2025 WL 2084921 , 20 at *6 (N.D. Cal. July 24, 2025). Taken together, the strength of Ms. Orozco Acosta’s liberty 21 interest, the high likelihood of erroneous deprivation, and the government’s minimal 22 countervailing interest demonstrate that she is likely to succeed on the merits of her procedural 23 due-process claim. See Pablo Sequen, __ F. Supp. 3d. __, 2025 WL 2650637 at *12; Mathews v. 24 Eldridge, 424 U.S. 319, 335 (1976). 25 Ms. Orozco Acosta has also demonstrated a likelihood of irreparable injury in the absence 26 of temporary relief due to her ongoing and likely unconstitutional deprivation of liberty. “The loss 27 or threatened infringement upon [constitutional] rights for even minimal periods of time 1 Cir. 2019) (citation modified). “When an alleged deprivation of a constitutional right is involved, 2 most courts hold that no further showing of irreparable injury is necessary.” Baird v. Bonta, 81 3 F.4th 1036 , 1042 (9th Cir. 2023) (citation modified). “[I]t follows inexorably from [the Court's] 4 conclusion” that Ms. Orozco Acosta “will likely be deprived of [her] physical liberty 5 unconstitutionally in the absence of the injunction ... that [she] ha[s] also carried [her] burden as to 6 irreparable harm.” Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017). 7 The final two Winter factors, the balance of the equities and public interest, merge because 8 the government is the opposing party. These factors also weigh heavily in favor of granting a 9 temporary restraining order. “Because public interest concerns are implicated when a 10 constitutional right has been violated, all citizens have a stake in upholding the Constitution, 11 meaning it is always in the public interest to prevent the violation of a party's constitutional 12 rights.” Baird, 81 F.4th at 1042 (citation modified). Further, “the Ninth Circuit has recognized that 13 ‘the costs to the public of immigration detention are staggering.’” Jorge M. F. v. Wilkinson, No. 14 21-CV-01434, 2021 WL 783561 , at *3 (N.D. Cal. Mar. 1, 2021) (citation modified) (quoting 15 Hernandez, 872 F.3d at 996 ). And where Ms. Orozco Acosta is suffering irreparable harm while in 16 detention, the potential harm to the government—at worst, a short delay in detaining her until it 17 makes the requisite showing of necessity before a neutral decisionmaker—is minimal. See id. at 18 *3; Diaz v. Kaiser, No. 3:25-CV-05071, 2025 WL 1676854 , at *3 (N.D. Cal. June 14, 2025). In 19 any case, enjoining the government from constitutional violations does not impose harm “in any 20 legally cognizable sense.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983). 21 Finally, Ms. Orozco Acosta’s immediate release is required to return her to the status quo. 22 The “status quo” refers to the state of the parties’ relationship “before the action challenged in the 23 complaint occurred.” Youth 71Five Ministries v. Williams, No. 24-101, __ F.4th __, 2025 WL 24 2385151, at *5 (Aug. 18, 2025). Here, that is the moment prior to Ms. Orozco Acosta’s likely 25 illegal detention. See Pablo Sequen, __ F. Supp. 3d __, 2025 WL 2650637 , at *4 n.2; Kuzmenko v. 26 Phillips, No. 25-CV-00663, 2025 WL 779743 , at *2 (E.D. Cal. Mar. 10, 2025) (granting a 27 temporary restraining order requiring immediate release of the petitioner back to home 1 Because Ms. Orozco Acosta satisfies all of the requirements for temporary injunctive relief 2 and such relief is necessary to restore the status quo, her motion for a temporary restraining order 3 is granted. See Pablo Sequen v. Kaiser, No. 25-CV-06487-PCP, 2025 WL 2203419 , at *3 (N.D. 4 Cal. Aug. 1, 2025) (collecting similar cases). And because “there is no realistic likelihood of harm 5 to the [respondents] from enjoining [their] conduct.” Jorgensen v. Cassiday, 320 F.3d 906 , 919 6 (9th Cir. 2003), no security is needed to ensure that respondents will be reimbursed for “costs and 7 damages sustained by … hav[ing] been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). 8 The Court exercises its discretion under Rule 65(c) to dispense with the filing of bond. Jorgensen, [9] 320 F.3d at 919 . 10 CONCLUSION 11 For the foregoing reasons, it is hereby ORDERED that petitioners’ motion for a temporary 12 restraining order as to Ms. Orozco Acosta is GRANTED to preserve the status quo pending 13 further briefing and a hearing on this matter. Defendants are ORDERED to immediately release 14 Ms. Orozco Acosta from custody and are ENJOINED AND RESTRAINED from re-detaining 15 her without providing her with a pre-deprivation hearing before a neutral decisionmaker at which 16 the government establishes by clear and convincing evidence that her detention is necessary to 17 prevent her flight or to protect the public. Should defendants choose to conduct such a hearing, 18 defendants are ORDERED to provide Ms. Orozco Acosta with reasonable advance notice of the 19 time and place of the hearing. 20 This Order shall remain in effect until November 20, 2025. The Petition for Writ of Habeas 21 Corpus, Dkt. No. 1, Motion for Temporary Restraining Order, Dkt. No. 2, and this Order SHALL 22 be served on defendants such that they receive actual notice as soon as possible. Petitioners shall 23 file proof of service or a status report by no later than November 7, 2025, at 5:00 p.m. Defendants 24 shall provide a status report confirming the release of Ms. Orozco Acosta by no later than 25 November 7, 2025, at 5:00 p.m. 26 Defendants are ORDERED TO SHOW CAUSE why a preliminary injunction should not 27 issue in favor of Ms. Orozco Acosta. The hearing will be held in the courtroom of the assigned ] file a response to petitioners’ motion by no later than November 10, 2025. Any reply shall be filed 2 || by November 14, 2025. [3] 4 IT IS SO ORDERED. 6 Dated: November 6, 2025 P. Casey#itts 7 United States District Judge [11] a 12 [17] Z 18