Franco-Gonzales v. Holder
767 F. Supp. 2d 1034
C.D. Cal.2011Background
- Khukhryanskiy and Martinez-Rivas, mentally incompetent detainees, seek preliminary relief to obtain counsel and custody hearings in removal proceedings.
- Court granted TRO and hearsay evidence shows lack of safeguards under 8 U.S.C. §1229a(b)(3) and 8 C.F.R. §1240.4.
- Immigration proceedings and appeals pending before BIA; Martinez denied representation pro se; Khukhryanskiy ordered removed with questioned service of NTA.
- Court finds risk of irreparable harm without representation and ongoing detention, justifying a venue-wide injunction.
- Defendants concede rehabilitation act applies; court analyzes whether paid appointed counsel or qualified representative is reasonable accommodation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under REAL ID Act and 1252(g) | Plaintiffs claim independent of final removal | Actions arise from adjudication/removal | Court has jurisdiction; 1252(g) does not bar |
| Exhaustion of administrative remedies | Exhaustion futile given mental incompetence | Exhaustion required before relief | Exhaustion not required; futility shown; court may proceed |
| Right to counsel and rehabilitation Act 504 | Should appoint paid counsel/Qualified Representative | Existing safeguards suffice; no appointment | Plaintiffs prima facie case; Rehabilitation Act requires reasonable accommodation |
| Custody hearings for prolonged detention | Detention beyond six months necessitates custody hearing | Detention allowed pending removal | Detention converted to discretionary; custody hearing required |
| Appropriateness of a mandatory injunction | Mandatory relief needed to ensure meaningful participation | Preliminary relief should be prohibitory | Mandatory injunction appropriate to appoint Qualified Representative |
Key Cases Cited
- Morales-Izquierdo v. Dept. of Homeland Security, 600 F.3d 1080 (9th Cir. 2010) (REAL ID Act jurisdiction and review of removal)
- Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) (Review limits under REAL ID Act; distinction final orders vs independent challenges)
- El Rescate Legal Services v. EOIR, 959 F.2d 742 (9th Cir. 1992) (Exhaustion not required where administrative remedy futile)
- Barahona-Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001) (Section 1252(g) not broad enough to bar due process relief in deportation proceedings)
- Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) (Due process rights and asylum-related proceedings; relief possible without merits review)
- Ortiz v. Meissner, 179 F.3d 718 (9th Cir. 1999) (Court jurisdiction to review interim relief till counsel is secured)
- Demore v. Kim, 538 U.S. 510 (2003) (Detention period implications for expedited removal)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (Detention beyond six months requires individualized hearing)
- Barnett v. US Airways, 535 U.S. 391 (2002) (Reasonable accommodations may entail preferential treatment to achieve equality)
- Perez-Lastor v. INS, 208 F.3d 773 (9th Cir. 2000) (Translation as due process safeguard in removal proceedings)