Riseepan v. Wolf

1 WO 2 MW — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — No. CV-20-00468-PHX-SPL (JFM) 9 Sachchithananthan Pakeerathan Riseepan, 10 Petitioner, ORDER v. — 11 — 12 Chad Wolf, et al., 13 Respondents. — 14 — 15 Petitioner Sachchithananthan Pakeerathan Riseepan (A# 213-357-784) has filed, 16 through counsel, a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) 17 and an Emergency Motion to Stay Removal (Doc. 2). The Court will enter a temporary 18 stay of removal and require Respondents to answer the Petition. 19 I. Background 20 Petitioner is a native and citizen of Sri Lanka. On November 20, 2019, he entered 21 the United States without inspection near Lukeville, Arizona, and was encountered and 22 taken into custody by the United States Department of Homeland Security (DHS). 23 (Doc. 1-2 at 34-38.) Petitioner was determined to be inadmissible to the United States and 24 placed in expedited removal proceedings pursuant to Immigration and Naturalization Act 25 (INA) § 235(b)(1), 8 U.S.C. § 1225 (b)(1). He expressed a fear of persecution or torture if 26 returned to Sri Lanka and was referred for a credible fear determination. (Id.) Petitioner 27 was then transferred to the Florence Service Processing Center (SPC) in Florence, Arizona, 28 where he is currently detained. (Docs. 1 ¶¶ 1-2, 6; 1-2 at 5, 10, 28.) 1 On or about December 2, 2019 and December 9, 2019, Petitioner received credible 2 fear interviews. (Doc. 1-2 at 5-30.) An asylum officer found Petitioner was credible but 3 determined that he had not established a credible or reasonable fear of persecution or torture 4 if removed to Sri Lanka. (Id. at 5-9, 31-33, 45.)1 The asylum officer reasoned in part that 5 Petitioner had “not established a reasonable fear of persecution . . . because . . . [t]here is 6 no reasonable possibility that the harm [he] experienced and/or the harm [he] fear[s] is on 7 account of [his] race, religion, nationality, political opinion, or membership in a particular 8 social group,” and had “not established a reasonable fear of torture . . . because [he had] 9 not established that there is a reasonable possibility that . . . [t]he harm [he] fear[s] would 10 be inflicted by or at the instigation of, or with the consent or acquiescence of, a public 11 official or other person acting in an official capacity.” (Id. at 45.) The determination was 12 approved by a supervisory asylum officer (id. at 9), and on December 31, 2019, Petitioner 13 was ordered removed from the United States (id. at 2-4, 45). Petitioner requested review 14 of the credible fear determination by an Immigration Judge (IJ) (id. at 45), and on January 15 6, 2020, the IJ affirmed the asylum officer’s credible fear determination.2 16 II. Petition 17 In his Petition, Petitioner names Acting DHS Secretary Chad Wolf, United States 18 Attorney General William Barr, Acting United States Immigration and Customs 19 Enforcement (ICE) Director Matthew T. Albence, Acting United States Immigration and 20 Citizenship Services (USCIS) Director Kenneth Cuccinelli, and former ICE Phoenix Field 21 Office Director Henry Lucero as Respondents.3 Petitioner asserts that this Court has 22 1 Petitioner was deemed ineligible for asylum pursuant 8 C.F.R. § 208.13 (c)(4) on the basis that he did not apply for protection from persecution or torture in at least one 23 country through which he transited en route to the United States, and therefore found to have “not established a significant possibility of establishing eligibility for asylum and [] 24 received a negative credible fear of persecution determination.” (Doc. 1-2 at 9.) Consequently, Petitioner was screened only “for potential entitlement to withholding under 25 INA [§] 241 or [Convention Against Torture] protection under a ‘reasonable possibility of persecution’ and ‘reasonable possibility of torture’ standard.” (Id.) — 26 — 2 See Executive Office for Immigration Review (EOIR) Telephonic Case Status 27 Information System (Ph. 1-800-898-7180) (last accessed Mar. 5, 2020). 28 3 Under the rationale articulated in Armentero, infra, and in the absence of authority 1 habeas corpus jurisdiction to review his challenges pursuant to the Ninth Circuit’s decision 2 in Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), cert. 3 granted, No. 19-161 (Oct. 18, 2019). 4 Petitioner brings five grounds for relief. In Grounds One through Four, Petitioner 5 claims that his credible fear proceedings denied him a fair and meaningful opportunity to 6 apply for relief in violation of the governing statute, the implementing regulations, and the 7 Due Process Clause of the Fifth Amendment. Petitioner alleges the asylum officer failed 8 to employ the required non-adversarial procedures when conducting his credible fear 9 interview, denied him his right to counsel, improperly allocated the burden of proof, and 10 misapplied the relevant regulations and binding case law when evaluating his credible fear 11 claim. In Ground Five, Petitioner requests attorney’s fees and costs under the Equal Access 12 to Justice Act. 13 In his demand for relief, Petitioner asks the Court to: (1) determine that his expedited 14 removal order violated his statutory, regulatory, and constitutional rights and, as a result, 15 he is being detained in violation of the law; (2) vacate the expedited removal order; and (3) 16 order that he “be provided a new, meaningful opportunity to apply for asylum and other 17 relief from removal.” (Doc. 1 at 22.) 18 The Court will require Respondents Wolf, Barr, Albence, Cuccinelli, and Lucero to 19 answer the Petition. 20 III. Emergency Motion to Stay Removal 21 In his Motion, Petitioner moves the Court to stay his removal from the United States 22 while this action is pending. (Doc. 2 at 16.)4 In the Ninth Circuit, “a petitioner seeking a — 23 — 24 addressing who is the proper respondent in immigration habeas corpus proceedings under § 2241, the Court will not dismiss Respondents or the Petition for failure to name a proper 25 respondent at this stage of the proceedings. See Armentero v. INS, 340 F.3d 1058 , 107173 (9th Cir. 2003) (finding the DHS Secretary and the Attorney General were proper 26 respondents), withdrawn, 382 F.3d 1153 (9th Cir. 2004) (order); see also Rumsfeld v. Padilla, 542 U.S. 426 , 435 n.8 (2004) (declining to resolve whether the Attorney General 27 is a proper respondent in an immigration habeas corpus petition). 4 Petitioner also asks that he “not be relocated outside the state of Arizona.” (Id.) — 28 — Because the Motion does not contain any discussion to support this request, it is denied to the extent Petitioner seeks to enjoin his transfer. 1 stay of removal must show that irreparable harm is probable and either: (a) a strong 2 likelihood of success on the merits and that the public interest does not weigh heavily 3 against a stay; or (b) a substantial case on the merits and that the balance of hardships tips 4 sharply in the petitioner’s favor.” Leiva-Perez v. Holder, 640 F.3d 962, 970 (9th Cir. 2011) 5 (discussing application of Nken v. Holder, 556 U.S. 418, 444 (2009)). 6 In the interests of justice, the Court will issue a temporary stay of removal. 7 Petitioner is subject to a final order of expedited removal and states that “ICE requested 8 his travel documents in early December,” which indicates that his removal is “imminent.” 9 (Doc. 2 at 1.) Because removal would deprive him of the relief he seeks – asylum in the 10 United States – he has shown that it is probable that he would suffer irreparable harm absent 11 a stay. Petitioner has also shown that he has a substantial case on the merits, without 12 prejudice to Respondents demonstrating the contrary, by raising material legal issues in the 13 credible fear determination process. Lastly, the balance of hardships tips sharply in 14 Petitioner’s favor. A stay will maintain the status quo until Respondents have had an 15 opportunity to brief the Petition and will facilitate a considered review of the parties’ 16 arguments by the Court and a reasoned decision on the issues presented. 17 IT IS ORDERED: 18 (1) Petitioner’s Emergency Motion to Stay Removal (Doc. 2) is granted and a 19 temporary stay of removal is entered. Respondents are enjoined from removing Petitioner 20 Sachchithananthan Pakeerathan Riseepan (A# 213-357-784) from the United States 21 pending further order of this Court. 22 (2) The Clerk of Court shall email a copy of this Order to the Immigration TRO 23 Distribution List. 24 (3) The Clerk of Court shall serve: (1) a copy of the Summons, (2) the 25 Petition (Doc. 1), (3) the Emergency Motion to Stay Removal (Doc. 2), and (4) this Order 26 upon the United States Attorney for the District of Arizona by certified mail addressed to 27 the civil process clerk at the office of the United States Attorney pursuant to Rule 4(i)(1)(A) 28 of the Federal Rules of Civil Procedure. The Clerk of Court shall also send by certified mail a copy of the Summons, the Petition, the Emergency Motion to Stay Removal, and 2| this Order to the United States Attorney General pursuant to Rule 4(i)(1)(B) and to 3} Respondents Wolf, Barr, Albence, Cuccinelli, and Lucero pursuant to Rule 4(i)(2) of the 4| Federal Rules of Civil Procedure. 5 (4) | Respondents shall have 30 days from the date of service to answer the Petition (Doc. 1). Respondents shall not file a dispositive motion in place of an answer absent leave of Court. 8 (5) Petitioner shall have 15 days from the filing of Respondents’ Answer to the 9| Petition to file a Reply. Failure to file a Reply may be deemed as consent to the denial of 10 | the Petition on the grounds presented in Respondents’ Answer. 11 (6) Petitioner must file a “Notice of Change in Status” with the Clerk of Court within 5 days of any material change in Petitioner’s immigration or custody status. 13 | Petitioner may not include a motion for other relief with the Notice. 14 (7) | This matter is referred to Magistrate Judge James F. Metcalf pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. 17 Dated this 5th day of March, 2020. — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -5-