Singh v. McAleenan

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          HONORABLE ANDRÉ BIROTTE JR. UNITED STATES DISTRICT COURT JUDGE

         I. INTRODUCTION

         Before the Court is Petitioner Gurjit Singh's (“Petitioner”) petition for writ of habeas corpus. (Dkt. No. 1.) Respondents Kevin McAleenan, Matthew Albence, Thomas Giles, and William Barr, sued in their official capacities, (“Respondents”) have not yet filed a response to Petitioner's petition. For the reasons stated below, the Court DENIES the petition for writ of habeas corpus.

         II. BACKGROUND

         Petitioner is a thirty-year old Indian asylum seeker. (Dkt. No. 1 at 4.) According to the petition for writ of habeas corpus, ^[1] Petitioner fled India after being targeted and beaten by workers of the Congress Party due to his affiliation with the opposing Mann Party. Id.

         On or about October 6, 2018, Petitioner entered the United States near San Ysidro, California. Id. On November 1, 2018, Petitioner participated in a credible fear interview with an asylum officer, and Petitioner stated that he had been persecuted in India on two separate occasions. Id. Because of inconsistencies in Petitioner's testimony, the asylum officer found Petitioner's testimony not credible. Id.

         On November 9, 2018, Petitioner participated in a credible fear review hearing. Id. Petitioner states that he was able to retain counsel only a day before the hearing, but that his counsel was unable to submit additional corroborating documents on Petitioner's behalf because of his counsel's recent retainment. Id. The transcript of the credible fear review hearing, which has not been filed with this Court, is allegedly eleven pages long. Id. The IJ issued a final expedited removal order affirming the asylum officer's determinations on November 9, 2018. (Dkt. No. 1-1). Petitioner argues that he was never given an opportunity to explain the inconsistencies in his testimony before the asylum officer to the IJ. (Dkt. No. 1 at 4.)

         Petitioner has been detained at Adelanto U.S. Immigration and Customs Enforcement (“ICE”) Processing Center, located at 10400 Rancho Road Adelanto, California 92310 since November 9, 2018. (Dkt. No. 1 at 2.) Petitioner was scheduled to be removed from the United States to India on November 9, 2019. Id. One day before his scheduled removal, Petitioner filed this petition for writ of habeas corpus, seeking a stay of removal and an order releasing Petitioner from ICE custody. (Dkt. No. 1 at 5-6).

         III. LEGAL STANDARD

         Under 8 U.S.C. § 1225(b)(1)(B), if an asylum officer finds that an applicant does not have a credible fear of persecution, the applicant will be removed. “A supervisor reviews the asylum officer's credible fear determination . . . and a noncitizen may also request de novo review by an [IJ].” Thuraissigiam v. DHS, 917 F.3d 1097, 1100-01 (9th Cir. 2019) (citations omitted), petition for cert. filed, No. 19-161 (Aug. 2, 2019). Generally, the Court lacks jurisdiction to review challenges to credible fear determinations in expedited removal proceedings. See 8 U.S.C. § 1252(a)(2)(A) (“Notwithstanding any other provision of law (statutory or nonstatutory) . . . or any other habeas corpus provision . . . no court shall have jurisdiction to review-(i) except as provided in [8 U.S.C. § 1252(e)], any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) of this title.”) (internal citations omitted). Section 1252(e)(2) provides that “[j]udicial review of any determination made under section 1225(b)(1) of this title is available in habeas corpus proceedings, but shall be limited to determinations of-(A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee . . . or has been granted asylum . . . .” 8 U.S.C. § 1252(e)(2).

         To obtain a temporary restraining order (“TRO”), Petitioner must show (1) that he is likely to succeed on the merits of his claims, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. Stromans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).

         IV. DISCUSSION

         1. The Court has jurisdiction over Petitioner's petition for writ of habeas corpus

         First, the Court agrees with Petitioner that it has jurisdiction over his petition for writ of habeas corpus under the Suspension Clause of the U.S. Constitution. U.S. Const. art. 1, § 9, cl.2. The Suspension Clause states that “[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Id. “The Suspension Clause prevents Congress from passing a statute that effectively suspends the writ absent rebellion or invasion.” Thuraissigiam, 917 F.3d at 1106. ...