Avilez v. Barr

Background

Lexis Hernandez Avilez was in the custody of Immigration and Customs Enforcement after completing a prison sentence. An immigration judge ordered her removed to Mexico, the Board of Immigration Appeals affirmed, and her petition for review remained pending before the Ninth Circuit. The Ninth Circuit had stayed her removal.

Avilez, who was assigned male at birth and identified as a transgender woman while in custody, had been diagnosed with gender dysphoria. The parties agreed that she required hormone treatment, but they described the treatment situation differently. Avilez said she had been denied hormone treatment and women’s undergarments and had been transferred without warning from Yuba County Jail to Prairieland Detention Center in Texas, away from her lawyer and support system. The government said Yuba could not provide the medically necessary treatment and that Prairieland was the only facility willing and able to provide it given Avilez’s gang affiliations and criminal history.

Temporary restraining order standard

A temporary restraining order is an extraordinary form of temporary relief. The court explained that the person requesting one must generally show a likelihood of success on the merits, likely irreparable harm without relief, that the balance of equities favors relief, and that an injunction would serve the public interest.

Right-to-counsel claim

Avilez argued that the transfer interfered with her Fifth Amendment right to counsel because her San Francisco-based lawyer no longer had the same telephone access and could not travel to Texas to meet with her. The court held that it lacked jurisdiction over this claim. Applying Ninth Circuit precedent, the court concluded that the claim arose from Avilez’s removal proceedings and therefore could be raised only through a petition for review in the court of appeals. The court did not reach the merits of the right-to-counsel argument.

The court also rejected Avilez’s separate argument that the transfer was unconstitutionally punitive. It accepted that providing needed medical care was a nonpunitive purpose and reasoned that, if Prairieland was the nearest facility capable of providing that care, the transfer was not excessive in relation to that purpose.

Medical-treatment claim

Avilez argued that the government had unconstitutionally denied her medically necessary care, including hormone treatment, and had kept her in an isolated cell, denied her female clothing, and referred to her as a man. The court distinguished Ninth Circuit precedent involving a complete denial of medically necessary treatment. Here, the court found that Immigration and Customs Enforcement had begun taking steps to provide hormone treatment and that the government had stated that her other complaints would be addressed.

Although the court recognized a factual dispute about the extent of the care being provided, it concluded that Avilez had not shown a likelihood of success on this claim. The court declined to supervise the details, timing, or location of the treatment. To monitor continued care, however, it ordered the government to file a status report by 5:00 p.m. Pacific time on February 10, 2020, describing the current state of Avilez’s treatment.

Bond-hearing issues

Avilez argued that she was entitled to a bond hearing before an immigration judge under 8 U.S.C. § 1226(a) or because prolonged detention without a hearing violated procedural due process. The court concluded that a temporary restraining order was not the proper device for addressing those arguments because they formed the basis of Avilez’s separate detention petition, which the parties had agreed to brief on a more relaxed schedule. The court directed the parties to file a revised proposed briefing schedule for that petition by 5:00 p.m. Pacific time on February 10, 2020.

Disposition

The court denied Avilez’s motion for a temporary restraining order. It did not decide the merits of her right-to-counsel claim or her entitlement to a bond hearing. It ordered the medical-treatment status report and a revised briefing schedule for the detention petition.