Romero Romero v. Kaiser

Background

The court had granted Romero Romero’s motion for a temporary restraining order on May 6, 2022, and ordered the respondents to show why a preliminary injunction should not issue. After receiving the respondents’ response and Romero Romero’s reply, the court decided the matter without oral argument. The court incorporated the factual background from its earlier temporary-restraining-order order.

Romero Romero’s claim concerned whether due process required a hearing before an immigration judge before he could be re-detained. The court noted that he had been released on bond, was employed, and financially supported his family. It also noted that he challenged the legal validity of a Board of Immigration Appeals order.

Legal standard

A preliminary injunction is temporary court-ordered relief issued before the case is finally decided. The moving party generally must show a likelihood of success on the merits, likely irreparable harm without relief, that the balance of hardships favors relief, and that an injunction serves the public interest. The court applied a sliding-scale approach under which serious questions about the merits may suffice when the hardship balance sharply favors the moving party and the other requirements are met.

Court’s analysis

The court found that Romero Romero had raised serious questions about whether due process required a hearing before re-detention. Applying the due-process factors concerning the private interest, the risk of an erroneous deprivation, the value of additional procedures, and the government’s interest, the court found:

- Romero Romero had a private interest in remaining free on bond because he was employed and financially supported his family. - There was a risk of erroneous deprivation and value in additional procedures because he had a liberty interest in conditional release and challenged the legal validity of the Board of Immigration Appeals order. - The government’s interest in re-detaining him without another hearing was low on the record described by the court, given his family ties, continued employment, posting of bond, and compliance with release conditions.

The respondents argued that a prior case involved a different detention statute, that Romero Romero had already received due-process safeguards at his first immigration-judge hearing, and that the cited precedent did not establish a liberty interest. The court rejected those arguments, relying on reasoning from similar cases and finding that the respondents had not addressed what safeguards would apply if Romero Romero were detained while the Board of Immigration Appeals order was pending.

The court also found likely irreparable harm without an injunction. It considered Romero Romero’s three-month delay in seeking emergency relief reasonable in light of delays related to the COVID-19 pandemic. The court found that detention could imminently separate him from his mother and children and cause other family-related harms.

Finally, because the government was a party, the court considered the balance of hardships and public-interest factors together. It found that the risk of violating Romero Romero’s due-process rights outweighed the minimal impact on the respondents.

Disposition

The court granted a preliminary injunction. It enjoined the respondents, and their agents and employees, from re-detaining Nectali Ulises Romero Romero without adequate notice and a hearing pending final disposition of the action. The order did not finally resolve the underlying due-process claim.