Romero Romero v. Kaiser

Background

Nectali Ulises Romero Romero was born in El Salvador, was brought to the United States as an infant, and became a lawful permanent resident in 1989. He has two children and supports his mother. In 2016, he was convicted of two counts of lewd and lascivious acts with a child under California Penal Code section 288(a) and received a six-year prison sentence.

After his release on parole in 2019, Immigration and Customs Enforcement detained him under 8 U.S.C. § 1226(c). In an earlier round of this case, the court ordered his release unless the government obtained a custody hearing before an immigration judge and justified his continued detention with clear and convincing evidence. An immigration judge then released him on a $2,500 bond and found that he was neither a danger to the community nor a flight risk.

The government appealed that decision. On January 13, 2022, the Board of Immigration Appeals vacated the bond order and ordered Romero Romero detained without bond. His removal proceedings remained pending. He was scheduled to report in person to Immigration and Customs Enforcement on May 16, 2022, and feared that he would be detained. He filed a petition asking for release from unlawful custody and moved for a temporary restraining order.

Parties’ positions

Romero Romero argued that he had a protected liberty interest in his conditional release and that the Fifth Amendment’s Due Process Clause likely required a hearing before an immigration judge before he could be detained again. The respondents argued that due process did not require a second bond hearing and that the court lacked authority to review the Board of Immigration Appeals’ order.

Court’s analysis

A temporary restraining order uses the same standard as a preliminary injunction. The person seeking relief must generally show a likely success on the merits, likely irreparable harm without relief, favorable balancing of the hardships, and that the order serves the public interest. Under an alternative “sliding scale” approach, serious questions about the merits can be enough if the other requirements are met and the hardships sharply favor the person seeking relief.

The court concluded that Romero Romero had raised serious questions about whether due process required a hearing before an immigration judge before re-detention. The court relied in part on precedent recognizing federal court authority to review immigration bond-hearing decisions for constitutional claims and legal error, as well as similar decisions from the Northern District of California. The court did not finally decide whether Romero Romero would prevail on that claim.

The court found that possible immigration detention could cause irreparable harm, including separation from Romero Romero’s children and mother. It also found that the balance of equities and the public interest sharply favored an order because Romero Romero faced a possible violation of his liberty and due-process rights, while the effect on the respondents would be minimal. The court noted the immigration judge’s findings that Romero Romero was not a danger to society or a flight risk and considered the public costs of immigration detention.

Ruling

Judge Thomas S. Hixson granted Romero Romero’s motion for a temporary restraining order. The order enjoined the respondents, and their agents and employees, from re-detaining him without notice and a hearing. It took effect immediately and remained in effect for 14 days, through May 20, 2022, or until further order of the court. The court also ordered the respondents to show cause why a preliminary injunction should not issue. Their response was due May 13, 2022, and Romero Romero’s reply was due May 17, 2022.