Doe v. Becerra

Background

John Doe filed an immigration detention petition and a motion for a temporary restraining order. He was detained by Immigration and Customs Enforcement at Golden State Annex while removal proceedings were pending. The immigration judge ordered him removed to Mexico but granted protection under the Convention Against Torture because he was likely to be tortured if removed there. The removal order and protection became final on December 13, 2022.

Afterward, the government said it would continue detaining Doe while trying to remove him to a third country. Doe declined to designate three countries for removal. He asserted that he had no ties to, lawful immigration status in, or known path to lawful status in any country other than Mexico or the United States. The opinion states that the government had not identified a specific third country.

Parties’ positions

Doe argued that mandatory detention under 8 U.S.C. § 1231(a)(2), as applied to him, violated the Due Process Clause. He sought an order requiring the Department of Homeland Security to make an evidence-based determination that removal to a specific third country was viable and, if necessary, provide timely review before an immigration judge.

The government argued that the court lacked authority to decide the challenge because it was not yet ready for review: the 90-day removal period had not expired, and no third country had been identified. It also argued that Doe’s detention was required by statute and therefore was legally reasonable.

Court’s analysis

A temporary restraining order requires a showing of likely success on the merits, likely irreparable harm, a favorable balance of hardships, and consistency with the public interest. The court may also issue relief when there are serious questions about the merits, if the other requirements are met and the balance of hardships strongly favors the plaintiff.

The court held that Doe had not shown a likelihood of success or serious questions on his constitutional challenge. It relied on Zadvydas v. Davis, which interpreted the detention statute to include a constitutional limit on detention that lasts beyond the period reasonably necessary to secure removal, and Khotesouvan v. Morones, which held that a person ordered removed generally cannot bring a due-process claim for release based on unforeseeable removal until at least 90 days of detention have passed.

The court found no reason to depart from the statutory framework. It explained that Congress authorized a 90-day removal period and that the Supreme Court had treated that period, together with an additional period of up to six months, as presumptively reasonable. Doe had provided no evidence that the search for a third country was futile or that his detention was solely punitive or arbitrary.

The court separately stated that any claim concerning removal to a third country was not ripe because the government had not identified such a country. A claim is not ripe when it depends on future events that may not occur as anticipated. The court added that, if the government identifies a third country, it must give Doe an opportunity to challenge removal there.

Disposition

Because Doe failed to show a likelihood of success on the merits or serious questions going to the merits, the court did not address the other requirements for a temporary restraining order. The court ordered that Doe’s motion for a temporary restraining order is DENIED.