Romero Romero v. Kaiser

Background

Nectali Ulises Romero Romero, whom the opinion calls Romero, filed a petition challenging his immigration detention and later amended it to challenge an October 11, 2022 detention order. The Board of Immigration Appeals had vacated an immigration judge’s earlier bond order and ordered Romero detained without bond. After this Court previously prohibited the government from detaining Romero again without adequate notice and a hearing, the government arranged a hearing before an immigration judge. The immigration judge found clear and convincing evidence that Romero was a danger to the community and ordered him detained without bond. Immigration and Customs Enforcement detained Romero when he appeared for a check-in appointment.

Romero then moved for a temporary restraining order, which is emergency short-term relief, and asked the Court to enforce its earlier preliminary injunction, which is an order providing temporary relief during a case.

Motion to Enforce the Preliminary Injunction

The Court denied the motion to enforce. The earlier injunction prohibited the government from re-detaining Romero without adequate notice and a hearing. The Court found that the government complied because it gave Romero notice and held a hearing before detaining him. The Court rejected Romero’s argument that the injunction required a fundamentally fair and constitutionally adequate hearing that would permit the Court to review every alleged error in the immigration judge’s decision. The Court explained that an injunction must provide clear notice of what the restrained parties may not do, and this injunction required only notice and a hearing.

Temporary Restraining Order

The Court applied the same standard used for a preliminary injunction. Romero had to show either a likelihood of success on the merits or serious legal questions, along with the required showing concerning irreparable harm, the balance of hardships, and the public interest.

The Court found serious questions about whether Romero could proceed directly in district court without first completing his administrative appeal. But it concluded that Romero had not shown a likelihood of success or serious questions on his principal challenges to the detention order.

The Court relied on Martinez v. Clark, which held that federal courts may not review an immigration authority’s discretionary determination that a noncitizen poses a danger to the community. The Court concluded that Romero’s arguments about the age of his convictions, his rehabilitation, his conduct while released, an expert’s opinion, and the evidence supporting dangerousness sought to have the Court reweigh the evidence. The Court held that those arguments were barred because they challenged a discretionary dangerousness determination, even though Romero presented them as constitutional claims.

The Court separately considered Romero’s procedural arguments, including claims that the immigration judge failed to assess current dangerousness, failed to consider alternatives to detention, discounted expert testimony, and mischaracterized evidence. The Court found no warning signs suggesting that the immigration judge failed to apply the clear-and-convincing-evidence standard. It concluded that the immigration judge addressed current dangerousness, was not required to consider alternatives to detention under Martinez, and gave an adequate explanation for discounting the expert’s opinion. The Court therefore found that Martinez foreclosed Romero’s substantive challenge and that his procedural challenges lacked the required warning signs.

Disposition

Because Romero had not shown a likelihood of success or serious questions supporting emergency relief, the Court denied his application for a temporary restraining order. The Court also denied his motion to enforce the preliminary injunction. The order did not finally adjudicate all of Romero’s detention-related claims.