Jorge M. F. v. Jennings

Background

Jorge M. F., whom the court identifies as a native and citizen of Mexico, last entered the United States in 2009. The Department of Homeland Security took him into custody on November 5, 2019, and Immigration and Customs Enforcement initiated removal proceedings. An immigration judge declined to release him in February 2020 after finding that he presented a danger to the community.

At a later bond hearing on August 10, 2020, an immigration judge found that Jorge M. F. did not pose a danger to the community or a flight risk and ordered his release on a $3,000 bond. He posted the bond and was released the next day. The Board of Immigration Appeals later vacated that decision and ordered him detained without bond. Jorge M. F. feared that he could be arrested and detained again at any time.

He filed an ex parte motion for a temporary restraining order, asking the court to prevent re-detention unless and until he received a hearing to decide whether re-detention would be lawful. An ex parte motion is one decided before the opposing parties have responded.

Legal standard

The court applied the same standard used for a temporary restraining order and a preliminary injunction. The moving party must show a likelihood of success on the merits, likely irreparable harm without relief, a balance of equities favoring relief, and that an injunction serves the public interest. For an emergency order issued without notice, Federal Rule of Civil Procedure 65(b) also requires specific facts showing that immediate and irreparable harm will occur before the opposing party can be heard.

Court’s reasoning

The court found that Jorge M. F. had raised serious questions about his procedural due process claim. Relying on decisions from the Northern District of California, the court concluded that the three factors used to evaluate due process—the person’s private interest, the risk of an incorrect deprivation and the value of additional procedures, and the government’s interest—supported a hearing before detention.

The court found that Jorge M. F. had a substantial interest in remaining released on bond because he was living with his wife and children, working as a driller, and spending time with his family. It found a risk of an incorrect deprivation if he were re-detained without a hearing. The court also said that the government’s interest in re-arresting him without a hearing was low, particularly because an immigration judge had found that he posed no danger or flight risk and because he had posted bond and complied with the release conditions.

The court further found that Jorge M. F. was likely to suffer immediate and irreparable harm from detention, including harms associated with immigration detention and additional economic and psychological harm to his family. It concluded that the balance of equities and the public interest sharply favored granting temporary relief. The court did not decide the separate arguments that the Board of Immigration Appeals had used the wrong burden of proof or had inadequately considered the evidence and criminal history.

Disposition

The court GRANTED the motion for a temporary restraining order. It ENJOINED the respondents, their agents, and employees from re-detaining Jorge M. F. without notice and a hearing. The order took effect immediately and remained in effect until March 15, 2021, or further order of the court. The court declined to require security because Jorge M. F. had already posted a $3,000 bond in immigration court.

The court also ordered the respondents to show cause at a March 11 hearing why they should not be barred from re-detaining Jorge M. F. unless and until he received a pre-deprivation hearing while the case was pending. The opinion does not state the result of that later proceeding.