Par-Rosales v. Barr

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRENDA CAROLINA PAR- Case No.: 19cv1844-LAB (JLB) ROSALES, and ETHAN JAFETH 12 PAR, minor child, ORDER REQUIRING 13 SUPPLEMENTAL BRIEFING Petitioners, AND STATUS UPDATE 14 v. 15 WILLIAM P. BARR, et al., 16 Respondents. 17 18 Petitioners, who are represented by counsel, today filed a motion for a 19 temporary restraining order (TRO),1 asking the Court to enjoin Respondents from 20 removing them following proceedings that were scheduled to take place today. 21 Petitioners are Guatemalan nationals who entered the United States through 22 Mexico, seeking asylum here. The TRO motion says Petitioners were first 23 scheduled to appear before an Immigration Judge on August 12, but after they 24 25 26 1 Petitioners submitted a habeas petition and motion for temporary restraining 27 order (TRO). Due to a docketing error, the two were filed under separate case numbers; the petition is filed in case 19cv1844. The Court will treat both as part 28 1 retained counsel, their hearing was continued to today. The motion says 2 Petitioners fear being sent back to Mexico and required to restart the asylum 3 process there. Petitioners’ predictions about what is likely to happen following their 4 hearing is based on information they have known about, or could have learned 5 about earlier. There may be a reason why Petitioners waited until literally the last 6 moment to file their petition and seek a TRO, but the motion does not explain it. 7 Without giving any dates or times, the motion says Petitioners’ counsel 8 attempted to contact a DHS attorney but could not reach him because he was in 9 court at the time. It says she then mailed him, and perhaps also the local U.S. 10 Attorney’s office, giving information about this petition. As of the time the motion 11 was filed, Petitioner’s counsel had not received a reply. The U.S. Attorney has, 12 however, filed a notice saying the motion will be opposed as soon as Respondents’ 13 counsel can obtain the necessary records. 14 Only in the rarest of circumstances is it appropriate to issue a TRO without 15 affording opposing parties a chance to be heard. Granny Goose Foods, Inc. v. 16 Brotherhood of Teamsters, 415 U.S. 423, 438–39 (1974). Although Fed. R. Civ. P. 17 65(b)(1) deals with situations where the opponent has no notice, the notice 18 requirement is intended to give opponents a meaningful opportunity to be heard. 19 See id. at 432 n.7 (“The notice required by Rule 65(a) before a preliminary 20 injunction can issue implies a hearing in which the defendant is given a fair 21 opportunity to oppose the application and to prepare for such opposition.”). Here, 22 Respondents would be unable to even formulate a response on the very short 23 notice they were given. The last-minute filing also makes it unnecessarily difficult 24 for the Court to conduct a meaningful review of the voluminous filings before 25 having to make a decision. 26 While there may be legitimate reasons Petitioners waited until the last 27 moment to seek relief, the motion does not explain what those are. The same 28 rationale for requiring notice and a meaningful opportunity to be heard also argue 1 ||against allowing parties to benefit by their own unexplained delay in seeking a 2 || TRO. 3 The Court’s brief initial review of the TRO motion shows that factors set forth 4 ||in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) are inadequately 5 ||addressed, and requirements of Fed. R. Civ. P. 65 are not fully met. If the Court 6 || were to rule on the motion today, it would be denied. The Court will defer a decision 7 |{on the TRO motion until the government has an opportunity to respond. 8 Petitioners’ counsel shall supplement the TRO motion by filing a brief not 9 longer than ten pages (not counting any attached or lodged materials), addressing 10 |/in greater detail the factors set forth in Winter v. Natural Res. Def. Council, Inc., 11 U.S. 7 (2008), and providing anything required under Fed. R. Civ. P. 65 that 12 ||the initial TRO motion left out. The brief must clearly show that the Court has 13 ||jurisdiction to grant the relief requested. They should do so as promptly as they 14 15 After Petitioners’ counsel files their supplemental brief, Respondents may file 16 || their opposition within three court days. Besides anything else Respondents wish 17 ||to include, the opposition must address jurisdiction. No reply brief is to be filed 18 without leave, and the Court will set a hearing, if appropriate. 19 The parties must also file a notice explaining the outcome of today’s hearing, 20 its effect on the availability of or need for immediate relief. If possible they 21 ||should file a joint notice not longer than ten pages. But if they cannot, each side 22 ||should file a notice not longer than five pages. The notice or notices should be filed 23 ||as promptly as possible, but in any event no later than September 30. 24 IT IS SO ORDERED. 25 ||Dated: September 26, 2019 26 hit 4. (byw 27 Hon. Lafry Alan Burns 28 Chief United States District Judge