United States District Court, C.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS
HONORABLE ANDRÉ BIROTTE JR. UNITED STATES DISTRICT
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.
is a thirty-year old Indian asylum seeker. (Dkt. No. 1 at 4.)
According to the petition for writ of habeas corpus,
Petitioner fled India after being targeted and beaten by
workers of the Congress Party due to his affiliation with the
opposing Mann Party. Id.
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.
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.)
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).
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).
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).
The Court has jurisdiction over Petitioner's petition for
writ of habeas corpus
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.