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Garcia-Gonzalez v. Rosas-Carranza

June 17, 2008

BERTA GARCIA-GONZALEZ, PETITIONER,
v.
ADRIANA ROSAS-CARRANZA, IN HER OFFICIAL CAPACITY, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Ex Parte Request for Temporary Restraining Order (Doc. # 2).

Background

On June 16, 2008, Petitioner Berta Garcia-Gonzalez initiated this action by filing the "Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief" ("Complaint") (Doc. # 1). The Complaint alleges that "Petitioner was taken into custody, paroled into the United States under 8 U.S.C. 1182 . . . and then released by the Department of Homeland Security's United States Customs and Border division on or around May 9, 2008. Petitioner's parole was valid until June 8, 2008." Complaint, ¶ 2. The Complaint alleges that on June 6, 2008, Petitioner filed an application for political asylum pursuant to section 208 of the Immigration and Nationality Act, codified at 8 U.S.C. 1158. Id., ¶ 3. The Complaint alleges that on June 13, 2008, Respondent Adriana RosasCarranza "issued a Warrant for Arrest of Alien directing any officer of the Immigration and Naturalization Service to take Petitioner into custody." Id., ¶ 5. The Complaint alleges that,

"[a]ccording to Officer Rosas-Carranza, Petitioner would be detained for an unknown period of time, but would be given a 'credible fear' interview regarding her request for asylum, however Petitioner would not be allowed to have the presence of counsel during the interview." Id., ¶ 21. The Complaint alleges that "[t]he process by which Officer Rosas-Carranza wants Petitioner to request political asylum is under INA § 235," even though Petitioner filed for political asylum under section 208. Id., ¶ 22. The Complaint alleges that "Petitioner is not afforded the right to have counsel present" at the credible fear interview if her asylum application were processed under section 235 "as she would if her asylum application were processed under INA § 208." Id. The Complaint alleges causes of action for violations of Petitioner's rights to substantive and procedural due process. In support of both causes of action, the Complaint alleges that the "detention and forcing of Petitioner to undergo the asylum process under INA § 235 rather than INA § 208 violates Petitioner's right to substantive and procedural due process by preventing her from having counsel present during her application for asylum, and affording her time to prepare to present her case." Id., ¶¶ 25, 28. The Complaint requests that the Court "Grant the writ of habeas corpus;" issue an order "enjoining Respondents from detaining Petitioner until her immigration matters are resolved," "enjoining Respondents from not rescinding any and all outstanding warrants for arrest of Petitioner until her immigration matters are resolved," and "enjoining Respondents from interfering with petitioner's request for political asylum under INA § 208;" and award Petitioner reasonable costs and attorneys' fees. Complaint, p. 6.

On June 16, 2008, Petitioner filed the Ex Parte Request for Temporary Restraining Order ("Request for TRO"). Petitioner contends that "[s]uch a request is made on the grounds that the United States Customs and Border Protection . . . has indicated that it intends to take Petitioner into custody, detain her, and undergo a 'credible fear' interview outside the presence of counsel, rather than letting her continue with her application for asylum under the procedure allowed through § 208 [o]f the INA." Ex Parte Request for TRO, p. 2. Petitioner contends that she has asserted her right to apply for political asylum under section 208, that "Respondents want to take her back into custody and have § 235 apply," and that "[s]uch a detention and application interferes with her due process rights to apply for political asylum under § 208." Id. at 4. Petitioner requests that the Court issue a TRO preventing Respondents from "detaining [Petitioner] and forcing her to apply for political asylum under § 23[5]." Id. at 1, 4.

In support of the Request for TRO, Petitioner submitted the affidavit of her attorney Christian M. Ramorino. Ramorino attests that on June 9, 2008, "I spoke with Officer Rosas-Carranza after I faxed her proof that the asylum application had been received at the regional immigration processing office," and that Rosas-Carranza "informed me that she wanted to take Petitioner into custody and have her placed with a credible fear interview." Ramorino Affidavit, ¶¶ 5, 6. Ramorino attests that on June 11, 2008, he spoke with Rosas-Carranza and informed her that if she still intended to take Petitioner into custody and require Petitioner to appear at a credible fear interview without counsel present, "that I would be seeking a habeas corpus and requesting a restraining order the next day." Id., ¶¶ 7, 8. Ramorino attests that on June 13, 2008, "I received a fax that was a Warrant for Arrest of Alien from Officer Rosas-Carranza directing any officer of the Immigration and Naturalization Service to take [Petitioner] into custody." Id., ¶ 9. Petitioner requests that the Court issue a Temporary Restraining Order to prevent Respondents from taking Petitioner into custody and from "forcing [Petitioner] to apply for political asylum under § 23[5]." Request for TRO, p. 1, 4.

Applicable Law

Rule 65 of the Federal Rules of Civil Procedure governs the issuance of a Temporary Restraining Order. FED. R. CIV. P. 65(b). Rule 65(b) states:

(1) The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A)specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Id.

Section 235 of the Immigration and Nationality Act governs the inspection by immigration officers of aliens at ports-of-entry into the United States. 8 U.S.C. § 1225. Section 235(b) provides that if an immigration officer determines that an alien who is arriving in the United States "indicates either an intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer." 8 U.S.C. § 1225(b)(1)(A). Section 208 provides that "[a]ny alien who is physically present in the United States or who arrives in the United ...


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