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Ortiz v. Sessions

United States District Court, D. Hawaii

May 22, 2017

ANDRES MAGANA ORTIZ, Plaintiff,
v.
JEFFERSON B. SESSIONS III, Attorney General, et al., Defendants.

          ORDER DENYING PETITIONER'S MOTION FOR TEMPORARY RESTRAINING ORDER

          Leslie E. Kobayashi United States District Judge

         Before the Court is Petitioner Andres Magana Ortiz's (“Magana Ortiz”) Petition for Writ of Habeas Corpus; Emergency Request for Stay of Deportation (“Petition”), filed May 10, 2017. [Dkt. no. 1.] This Court has construed the portion of the Petition requesting a stay of deportation as a motion seeking a temporary restraining order (“TRO”) and a preliminary injunction. The portion of the Petition seeking a TRO (“Motion”) came on for hearing on May 15, 2017. Respondents Jefferson Sessions, III, U.S. Attorney General, Department of Justice; John F. Kelley, Secretary, U.S. Department of Homeland Security (“DHS”); Erik Bonnar, Director, DHS, San Francisco Immigration and Customs Enforcement (“ICE”); Michael A. Samaniego, Assistant Field Director, Detention and Removal Operation, ICE (collectively “Respondents”) filed a response in opposition to the Motion (“Response”) on May 15, 2017, prior to the hearing. After careful consideration of the Motion, supporting and opposing memoranda, the arguments of counsel, and the relevant legal authority, Magana Ortiz's Motion is HEREBY DENIED for the reasons set forth below.

         BACKGROUND

         I. The Petition

         The following background is set forth in Magana Ortiz's verified Petition. See Petition at pg. 20 (Verification). Respondents apparently do not dispute his recitation of the factual background, although at the hearing Respondents' counsel pointed out some arguably relevant facts that are not included in the Petition.

         Magana Ortiz is a forty-three-year-old Mexican citizen who entered the United States twenty eight years ago without inspection. [Petition at pg. 2.] He is currently married to Brenda Josphine Cleveland-Reynolds, who he met in June 2012, began living with in August 2015, and married on January 16, 2016. [Id. at ¶ 9.] Magana Ortiz has three children who were born in the United States. The oldest of the three, Victoria Magana Ledesma, will turn twenty-one in August 2017. [Id. at ¶ 11.]

         DHS initiated removal proceedings against Magana Ortiz by filing a Notice to Appear (“NTA”) on March 22, 2011 with the Immigration Court in Honolulu. He was charged with being removable under § 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1182.[1] DHS alleged four factual grounds to support the charge of removal. Magana Ortiz's counsel admitted the four allegations, and the Immigration Court found, by clear and convincing evidence, that Magana Ortiz was removable. The Immigration Judge held a merits hearing and, on December 22, 2011, denied Magana Ortiz's applications for relief, including his request for voluntary departure in lieu of removal. [Petition at ¶¶ 12-15.] The Immigration Judge found that Magana Ortiz “failed to establish that his removal would result in exception and extremely unusual hardship to his qualifying relatives” - i.e. his three children. [Id. at ¶ 15.] Magana Ortiz contends that his counsel at the time failed to develop a sufficient record of hardship at the hearing before the Immigration Judge. [Id.]

         Magana Ortiz appealed the Immigration Judge's decision to the Board of Immigration Appeals (“BIA”), which affirmed the Immigration Judge's decision on February 7, 2014. Magana Ortiz filed a petition with the Ninth Circuit for review of the BIA decision. The Ninth Circuit granted his motion to stay his removal pending the resolution of his petition for review. However, the Ninth Circuit dismissed the petition on May 12, 2014 for lack of jurisdiction. [Id. at ¶¶ 16, 18.]

         While Magana Ortiz's appeals were pending, the United States Citizenship and Immigration Services (“USCIS”) granted Magana Ortiz an employment authorization from November 11, 2013 to November 19, 2014. [Id. at ¶ 17.] On September 9, 2014, Magana Ortiz filed a Form I-246 Application for a Stay of Deportation or Removal with DHS. It was granted on September 23, 2014 for one year. Magana Ortiz filed a second I-246 on September 2, 2015 (“9/2/15 I-246”), requesting a one-year extension, but no action was taken. [Id. at ¶ 19.] He filed a third I-246 on November 2, 2016, but that application was denied on March 21, 2017. [Id. at ¶ 21.]

         While the 9/2/15 I-246 was pending, Mrs. Cleveland-Reynolds filed an I-130 Relative Petition for Alien Relative (“Cleveland-Reynolds I-130”). DHS received the Cleveland-Reynolds I-130 on March 29, 2016. The Cleveland-Reynolds I-130 seeks to have Magana Ortiz classified as Mrs. Cleveland-Reynolds's immediate relative pursuant to INA § 201(b), 8 U.S.C. § 1151(b). [Petition at ¶ 10.] Magana Ortiz alleges that the Cleveland-Reynolds I-130 has been pending “beyond normal processing times.” [Id.]

         On March 22, 2017, Magana Ortiz received a Notice to Removable Alien, which required him to report to DHS for removal to Mexico on April 18, 2017. On April 4, 2017, Magana Ortiz filed a fourth I-246, and he filed a supplement on April 17, 2017 (collectively “4/4/17 I-246”). Respondent Bonnar denied the 4/4/17 I-246 on April 18, 2017. [Id. at ¶¶ 22-23.] In the 4/4/17 I-246, Magana Ortiz acknowledged that he has to return to Mexico to obtain an immigrant visa, but he requested a nine-month stay because: the Cleveland-Reynolds I-130 is still pending; and, when Ms. Magana Ledesma turns twenty-one in August 2017, she can file her own I-130 petition for Magana Ortiz. [Id. at ¶ 30.] According to the Petition, if either the Cleveland-Reynolds I-130 or Ms. Magana Ledesma's anticipated I-130 is granted, Magana Ortiz, “will be able to file an I-601 provisional waiver [application] which upon adjudication by USCIS will enable him to return to Mexico with a waiver of the 10 year bar for unlawful presence.”[2] [Id.]

         Also on April 18, 2017, Magana Ortiz appeared before DHS for departure, but Ms. Magana Ledesma posted a bond on his behalf, and he agreed to leave the United States by May 16, 2017. But for the posting of the immigration bond, Magana Ortiz would have been held at the Federal Detention Center pending removal to Mexico. [Id. at ¶¶ 22, 24.] Magana Ortiz therefore alleges that he “is in ‘custody' or ‘constructive custody'.” [Id. at ¶ 31.] He therefore brings his arguments in a petition for habeas corpus relief, and he states that he has not filed any other petition for habeas relief regarding the other decisions described in the Petition. [Id. at pg. 18, ¶ VI.]

         The Petition alleges that Magana Ortiz's three children “will suffer immediate and irreparable financial and emotional hardship and instability” if he is removed at this time. [Id. at ¶ 25.] It also alleges that the coffee farmers who hire Magana Ortiz to maintain their farms “will also suffer great hardship” if he is removed at this time. [Id. at ¶ 28.] Further, his removal “will have a devastating economic and psychological effect” on him and “his United States citizen family.” [Id. at pg. 18, ¶ VII.] Magana Ortiz represents that “[h]e is not a threat to the community and has always reported to USDHS when requested.” [Id.]

         The Petition asks this Court to:

1) stay his removal for nine months;
2) find that Ortiz and his family have been denied their right to due process under the Fifth Amendment to the United States Constitution because of the failure to process the Cleveland-Reynolds I-130 within the normal processing time;
3) order Respondents to adjudicate the Cleveland-Reynolds I-130 on an expedited basis;
4) find that Respondents abused their discretion and denied Magana Ortiz due process when they denied his 4/4/17 I-246;
5) find that Magana Ortiz, his three children, and Mrs. Cleveland-Reynolds are being denied substantive and procedural due process because Respondents previously granted Magana Ortiz stays of removal, and his removal at this time based on the improper denial of the 4/4/17 I-246 would cause them immediate and irreparable harm;
6) stay Magana Ortiz's removal for the period of time requested in the 4/4/17 I-246 and enjoin Respondents from cancelling or otherwise voiding Magana Ortiz's immigration bond;
7) issue a writ of habeas corpus requiring Respondents to show cause why Magana Ortiz should not be discharged from the custody that he is currently under and why he should not be allowed to remain in the United States while the Petition is pending;
8) if Respondents do not show cause, issue a stay of his removal and an injunction prohibiting his removal until this Court rules on the Petition and Ortiz exhausts any ...

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