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Yaide v. Wolf

United States District Court, N.D. California

December 18, 2019

ABDERAMAN OUMAR YAIDE, Plaintiff,
v.
CHAD WOLF, et al., Defendants.

          ORDER GRANTING TEMPORARY RESTRAINING ORDER

          CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

         Abderaman Oumar Yaide is a native and citizen of Chad who has resided in the United States without legal status since 2009. His application for asylum based on ethnicity and imputed political opinion was denied by an immigration judge in 2014. Since that time, Yaide has come out as gay and Chad has criminalized all same-sex relations. Given those developments, Yaide fears torture and death if he is returned to Chad. He has therefore filed a motion to reopen his applications for asylum, withholding of removal, and relief under the Convention Against Torture. But before that motion could be adjudicated, Immigration and Customs Enforcement (“ICE”) deported Yaide to Chad.

         Yaide now seeks a Temporary Restraining Order (“TRO”) directing the Government to return him to the United States. The Government does not argue that a TRO is unwarranted on the merits. Instead, it insists that this Court lacks jurisdiction over Yaide's habeas petition. But because Yaide was in ICE custody when his petition was filed and challenges his removal on constitutional grounds, the Government's jurisdictional arguments fail, and the Court will grant his request for a TRO.

         I. BACKGROUND

         Yaide is a native and citizen of Chad. Yaide Decl. ¶ 1 (dkt. 3-2). He arrived in the United States in 2009, seeking asylum on the basis of his membership in the Gorane ethnic group and imputed anti-government political opinions. Id. ¶¶ 3, 20. His application for asylum was denied by the immigration judge and Board of Immigration Appeals. Id. ¶ 20, 23.

         Yaide is gay, but did not come out publicly until 2019, after his case was adjudicated by the immigration judge. Id. ¶ 25. Since that time, Chad has criminalized all same-sex relations. Mot. to Reopen at 7 (dkt. 3-1). Yaide fears that if he remains in Chad he will be tortured and killed by his own family, clan, or the government. Yaide Decl. ¶ 28.

         On October 24, 2019, Yaide filed a motion to reopen his applications for asylum, withholding of removal, and relief under the Convention Against Torture based on changed circumstances, including his coming out as gay and the deteriorating conditions for LGBT individuals in Chad. Mot. to Reopen at 1, 14.

         While Yaide's motion to reopen was pending before the immigration court, Yaide was taken from Yuba County Jail to the Sacramento airport. Second McMahon Decl. ¶¶ 10-11 (dkt. 18-1). From Sacramento he was flown to Chicago, then to Addis Ababa, Ethiopia, and finally to N'Djamena, Chad. Id. ¶ 12. Yaide was accompanied by the same pair of ICE officers from Yuba County Jail to the N'Djamena airport, and remained in handcuffs until his arrival in Addis Ababa. Id.

         The instant habeas petition was filed while Yaide was en route from Chicago to Addis Ababa. Yaide Supp. Brief at 4 (dkt. 18); Yaide Itinerary (dkt. 14-2). Shortly thereafter, Judge Chen enjoined Yaide's removal until the Court had ruled on a fully-briefed motion for a TRO. EMC TRO (dkt. 10). At the time Judge Chen issued the emergency TRO, Yaide was in the air, on his way to Addis Ababa. Yaide Supp. Brief at 4; Yaide Itinerary.

         Yaide now seeks a TRO ordering his return to the United States. See Reply at 1 (dkt. 16). He asserts multiple causes of action, including a claim that his deportation violates his procedural due process right to pursue his motion to reopen.[1] Petition ¶¶ 34-36 (dkt. 1).

         II. LEGAL STANDARD

         A TRO is an “extraordinary remedy” that should only be awarded upon a clear showing that the plaintiff is entitled to such relief. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). The party seeking a TRO must establish: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm absent preliminary relief; (3) that the balance of equities tips in the plaintiff's favor; and (4) that an injunction is in the public interest. See id. at 20. Alternatively, the moving party must demonstrate that “serious questions going to the merits were raised and that the balance of hardships tips sharply in the plaintiff's favor, ” and that the other two Winter elements are met. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). The “[l]ikelihood of success on the merits ‘is the most important' Winter factor.” Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017).

         III. DISCUSSION

         The key dispute is whether or not this Court has subject matter jurisdiction ...


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