Ortega v. Kaiser

Background

Giovanny Hernan Ortega sued Polly Kaiser, Todd Lyons, Kristi Noem, and Pamela Bondi in their identified government roles. He sought to prevent the government from detaining him while his claims proceeded. The court considered Ortega’s amended motion for a temporary restraining order, an emergency order intended to preserve a person’s position until the court can hold a fuller hearing.

Ortega was born in El Salvador and entered the United States in 1990 as a derivative asylee through his mother’s approved asylum application. As a teenager, he participated in a drive-by shooting and later pleaded guilty to seven counts of attempted murder. He completed his criminal sentence in 2017 and was transferred to Immigration and Customs Enforcement custody. After nine months, an immigration judge released him on bond in January 2018 after finding that he was neither a danger to the community nor a flight risk.

The immigration judge also ordered that Ortega’s removal to El Salvador be deferred under the Convention Against Torture. The final removal order and deferral remained in effect. Since his release, Ortega had lived in Arcata, California, complied with parole and immigration-supervision requirements, avoided new arrests or convictions, worked at an outdoor store, and volunteered teaching young people to maintain bicycles. Immigration and Customs Enforcement cancelled his bond in March 2023 and required annual reporting. His next in-person reporting date was rescheduled to July 9, 2025.

Claims and legal standard

Ortega presented two claims. First, he argued that the Fifth Amendment’s protection against deprivation of liberty without due process, the Immigration and Nationality Act, the Foreign Affairs Reform and Restructuring Act, and the Administrative Procedure Act required the government to give him meaningful notice and an opportunity to present a fear-based claim before removing him to a third country. Second, he argued that the Fifth Amendment and the Immigration and Nationality Act barred his detention until removal became reasonably foreseeable, meaning after he received notice and an opportunity to challenge removal.

For a temporary restraining order, the court applied the four-factor test used for preliminary injunctions: likelihood of success on the merits, likely irreparable harm without relief, the balance of hardships, and the public interest. The court used the standard allowing relief when serious questions exist about the merits, the balance of hardships sharply favors the plaintiff, irreparable injury is likely, and the public interest supports an order.

Court’s analysis

The court found serious questions about both of Ortega’s claims. Regarding removal, the court noted that no country other than El Salvador had been designated during Ortega’s removal proceedings and that removal to El Salvador had been deferred under the Convention Against Torture. The court concluded that there were no countries to which Ortega could then be removed without first receiving notice and an opportunity to present a fear-based claim concerning that country.

Regarding detention, the court applied the factors from Mathews v. Eldridge, which require consideration of the person’s private interest, the risk of an erroneous deprivation and value of additional safeguards, and the government’s interests and administrative burdens. The court found that Ortega had a substantial interest in remaining out of custody, that detention without a prior hearing presented a significant risk of error, and that the government’s interest in detaining him without a hearing appeared limited given his family ties, employment, and years of compliance with supervision requirements.

The court also considered whether Ortega’s removal was reasonably foreseeable. It cited the rule that detention is no longer authorized when removal is not reasonably foreseeable or detention lasts longer than reasonably necessary to secure removal, while recognizing that flight risk or danger to the community may justify detention. The court found that Ortega’s release in 2018 and his conduct during the following seven years supported the conclusion that his detention was not reasonably necessary at that point.

The court found likely irreparable harm because detention could deprive Ortega of constitutional rights, separate him from his wife during her treatment for recurrent breast cancer, and impose serious financial and other burdens on him and his family. It found that the balance of equities and the public interest sharply favored Ortega because the public has an interest in procedural protections against unlawful detention, while delaying detention would impose comparatively little harm on the government if detention were later shown to be intended and warranted.

Procedural requirements and ruling

The court found that Ortega satisfied the notice requirements for an emergency restraining order because his counsel had emailed the motion to the Chief of the Civil Division of the United States Attorney’s Office and submitted a declaration addressing immediate and irreparable harm. The court also found that no security was required because it saw no legally cognizable harm to the government from being restrained from constitutional violations.

Judge Jon S. Tigar granted Ortega’s motion for a temporary restraining order pending further briefing and a hearing. The respondents were enjoined and restrained from arresting, detaining, or removing Ortega without notice and a hearing. The order was to remain in effect until July 10, 2025, at 9:00 a.m., unless the court extended it for a similar period or the opposing party consented to a longer extension. The court ordered Ortega to serve the order, set briefing deadlines, and scheduled a hearing for July 7, 2025, at 2:00 p.m. by video conference.