Abhishek Abhishek v. Warden of Imperial Regional Detention Facility, et al.
- Proceeding
- original
- Outcome
- other — Therefore, the Court will order the 6 Turn
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
The court reviewed a habeas petition and an ex parte motion for a temporary restraining order filed by an immigration detainee. It ordered the government to respond to the petition and denied the ex parte TRO, instead scheduling briefing on the motion for injunctive relief under Rule 65(a) with notice of intent to consolidate the hearing.
| What the court decided | The model |
|---|---|
Ordering the Government to respond to the Petition for Writ of Habeas Corpus“Therefore, the Court will order the Government to respond to the Petition.” | agree with court The court applied the standard from Kourteva v. INS, finding the allegations were not vague, conclusory, or frivolous. This is a standard procedural step in habeas litigation when the petition has facial merit. |
Denying the Ex Parte Application for Temporary Restraining Order“Turning to the Motion for Injunctive Relief, the Court denies the ex parte request for a temporary restraining order.” | agree with court The court cited Rule 65(b) and Ninth Circuit precedent (Granny Goose Foods, Reno Air Racing) establishing that ex parte TROs are reserved for extraordinary circumstances. The court exercised its discretion to require notice and an opportunity to respond, which is the preferred procedure. |
Setting a briefing schedule for the Motion for Injunctive Relief under Rule 65(a)“Thus, the Court will instead consider the Motion for Injunctive Relief under Rule 65(a) and provide the Government with an opportunity to respond.” | agree with court This is a procedural order to allow the parties to brief the merits of the injunctive relief request after the ex parte request was denied. |
Providing notice of intent to consolidate the hearing on the Motion for Injunctive Relief with the merits determination under Rule 65(a)(2)“Finally, the Court provides notice to the parties that it intends to consolidate the Motion for Injunctive Relief with a determination on the merits under Rule 65(a)(2).” | agree with court The court cited Slidewaters LLC v. Wash. State Dep’t of Lab. & Indus. to support its authority to consolidate the preliminary injunction hearing with the merits trial upon providing clear notice. This is a permissible procedural mechanism. |
The order itself: sound — The order correctly applies the standard for summary dismissal of habeas petitions and the strict requirements for ex parte TROs under Rule 65(b). It appropriately cites binding Ninth Circuit and Supreme Court authority for the proposition that ex parte TROs are exceptional. The decision to proceed with notice and briefing under Rule 65(a) is procedurally sound and consistent with the court's stated preference for adversarial process. The notice regarding consolidation under Rule 65(a)(2) is also properly supported by recent Ninth Circuit precedent.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABHISHEK ABHISHEK, Case No. 26-cv-00713-BAS-VET 12 Petitioner, ORDER: 13 v. (1) REQUIRING THE 14 WARDEN OF IMPERIAL REGIONAL GOVERNMENT TO RESPOND DETENTION FACILITY, et al., 15 TO PETITION FOR WRIT OF Respondents. HABEAS CORPUS (ECF No. 1); 16 17 (2) SETTING BRIEFING SCHEDULE ON MOTION FOR 18 INJUNCTIVE 19 RELIEF (ECF No. 2); AND 20 (3) PROVIDING NOTICE UNDER 21 RULE 65(a)(2)
22 23 Petitioner Abhishek Abhishek filed a Petition for Writ of Habeas Corpus pursuant 24 to 28 U.S.C. § 2241. (ECF No. 1.) Petitioner alleges he is being detained by Immigration 25 and Customs Enforcement in violation of the Fifth Amendment. (Id.) 26 In addition, Petitioner filed an Ex Parte Application for Temporary Restraining 27 Order (“Motion for Injunctive Relief”). (ECF No. 2.) Petitioner asks the Court to prohibit 28 his removal and prohibit him from being transferred outside of the Southern District. (Id.) 1 Having reviewed the Petition, the Court finds that summary dismissal is unwarranted 2 at this time. See Kourteva v. INS, 151 F. Supp. 2d 1126, 1128 (N.D. Cal. 2001) (“Summary 3 dismissal is appropriate only where the allegations in the petition are vague or conclusory, 4 palpably incredible, or patently frivolous or false.”). Therefore, the Court will order the 5 Government to respond to the Petition. 6 Turning to the Motion for Injunctive Relief, the Court denies the ex parte request for 7 a temporary restraining order. See Fed. R. Civ. P. 65(b). “While temporary restraining 8 orders may be heard in true ex parte fashion (i.e., without notice to an opposing party), the 9 Court will do so only in extraordinary circumstances. The Court’s strong preference is for 10 the opposing party to be served and afforded a reasonable opportunity to file an 11 opposition.” Standing Order for Civil Cases § 9; see also Granny Goose Foods, Inc. v. 12 Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70 of Alameda Cnty., 415 U.S. 423, 438– 13 39 (1974) (discussing ex parte temporary restraining orders and their “stringent 14 restrictions”); accord Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th 15 Cir. 2006) (same). Thus, the Court will instead consider the Motion for Injunctive Relief 16 under Rule 65(a) and provide the Government with an opportunity to respond. 17 Finally, the Court provides notice to the parties that it intends to consolidate the 18 Motion for Injunctive Relief with a determination on the merits under Rule 65(a)(2). See 19 Fed. R. Civ. P. 65(a)(2); see also Slidewaters LLC v. Wash. State Dep’t of Lab. & Indus., 20 4 F.4th 747, 759 (9th Cir. 2021) (noting the court can invoke Rule 65(a)(2) by giving “clear 21 and unambiguous notice”). Accordingly, the Court ORDERS as follows: 22 1. The Government must file a response to the Petition and the Motion for 23 Injunctive Relief no later than February 12, 2026. The Government’s response must 24 address the allegations in the Petition and must include any documents relevant to the 25 determination of the issues raised in the Petition. 26 2. Petitioner may file a reply in support of his Petition and the Motion for 27 Injunctive Relief no later than February 19, 2026. 28 I 3. The Clerk of Court shall provide the Civil Division of the U.S. Attorney’s 2 || Office with a copy of the Petition (ECF No. 1), the Motion for Injunctive Relief (ECF No. 3 ||2), and this Order. 4 IT IS SO ORDERED. 5 6 || DATED: February 5, 2026 yatta Bahar 7 H@n. Cynthia Bashant, Chief Judge United States District Court 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 48