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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Carlos Villalobos Organista,

Petitioner, 

v. 

Jefferson B Sessions, III, et al., 

Respondents.

No. CV-18-00285-PHX-GMS (MHB)

ORDER 

Before the Court is Petitioner Carlos Villalobos Organista’s Motion for 

Preliminary Injunction (Doc. 3). The Court heard oral argument on the motion on 

February 8, 2018. After consideration of the parties’ briefs and their argument, the Court 

denies the Motion. Further, pursuant to Rule 65(a)(2), because the Petition presents a 

legal question that is fully briefed through the motion for injunctive relief, this Order 

operates as an adjudication on the merits of the Petition. 

I. Background 

Petitioner is a native and citizen of Mexico. On July 5, 2016, Petitioner entered 

the United States at the Nogales, Arizona port of entry as a nonimmigrant visa holder. 

Petitioner’s authorized period of stay expired on January 4, 2017. On April 4, 2017, 

Petitioner was taken into the custody of the United States Immigration and Customs 

Enforcement (Doc. 1 at 6). Petitioner has applied for asylum, withholding of removal, 

and protection under the Convention Against Torture. (Id. at 3.) 
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On November 22, 2017, Petitioner was afforded a custody redetermination hearing 

before an Immigration Judge (IJ). The IJ granted Petitioner release upon payment of a 

bond of $20,000. (Id. at 6.) Petitioner’s family attempted to post bond but was prevented 

from doing so because the Department of Homeland Security (DHS) invoked the 

automatic stay provision of 8 C.F.R. § 1003.19(i)(2), which allows the government to 

stay an IJ’s order of release on bond where DHS initially determined the alien should not 

be released and where the IJ later ordered a bond of $10,000 or more. (Id.) 

 Petitioner filed his first Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 

§ 2241 on December 20, 2017, challenging the automatic stay. The Court granted a 

preliminary injunction and directed the government to release Petitioner in accordance 

with IJ Phelps’s decision and order dated November 22, 2017. The government complied 

and Petitioner was released from custody on December 28, 2017. That same day, the 

government sought a discretionary stay from the BIA under § 1003.19(i)(1), and it was 

granted on December 29, 2017. Petitioner was redetained and he remains in custody. 

II. Motion for Preliminary Injunction

 A. Standard

 “‘[A] preliminary injunction is an extraordinary and drastic remedy, one that 

should not be granted unless the movant, by a clear showing, carries the burden of 

persuasion.’” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 

11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-

130 (2d ed. 1995)). To obtain a preliminary injunction, the moving party must show 

“that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in 

the absence of preliminary relief, that the balance of equities tips in his favor, and that an 

injunction is in the public interest.” Winter v. Natural Resources Def. Council, Inc., 555 

U.S. 7, 20 (2008); Am. Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 

(9th Cir. 2009). 

 The Ninth Circuit’s “serious questions” version of the sliding scale test for 

preliminary injunctions remains viable after the Supreme Court’s decision in Winter. 
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Alliance for the Wild Rockies v. Cottrell 632 F. 3d 1127, 1134 (9th Cir. 2011). Under 

that test, a preliminary injunction is appropriate when a plaintiff demonstrates that 

“‘serious questions going to the merits were raised and the balance of hardships tips 

sharply in the plaintiff’s favor.’” Id. at 1134-35 (quoting Lands Council v. McNair, 537 

F.3d 981, 987 (9th Cir. 2008) (en banc)). The movant must also satisfy the other two 

Winter factors—likelihood of irreparable harm and that an injunction is in the public 

interest. Id. With respect to the irreparable harm prong, Winter specifically rejected the 

Ninth Circuit’s “possibility of irreparable injury” standard. Stormans, Inc. v. Selecky, 

586 F.3d 1109, 1127 (9th Cir. 2009). Under Winter, a party seeking preliminary relief 

must “demonstrate that irreparable injury is likely in the absence of an injunction.” 

Winter, 555 U.S. at 22. The Court explained that “[i]ssuing a preliminary injunction 

based only on a possibility of irreparable harm is inconsistent with our characterization of 

injunctive relief as an extraordinary remedy that may only be awarded upon a clear 

showing that the plaintiff is entitled to such relief.” Id. 

B. Likelihood of Success on the Merits 

Petitioner remains detained under 8 U.S.C. § 1226(a). His now nine month 

detention has thus been prolonged as that term is defined by the precedents in this Circuit 

and in the United States Supreme Court. In November 2017, Petitioner sought and 

received a custody redetermination hearing before an IJ pursuant to Rodriguez v. Robbins

(Rodriguez III), 804 F.3d 1060, 1087 (9th Cir. 2015), which requires that after an 

individual has been detained under 8 U.S.C. § 1226(a) for more than six months, the 

government must produce “clear and convincing evidence that the non-citizen is a flight 

risk or a danger to the community.” Id. Further, after a detention has become prolonged, 

continuing detention determinations must be made by a neutral decsionmaker. Rodriguez 

III, 804 F.3d at 1069 (quoting Diouf v. Napolitano (Diouf II), 634 F.3d 1081, 1091-92 

(9th Cir. 2011)). At Petitioner’s hearing, the IJ heard the evidence, and set bond at 

$20,000, but the government invoked an automatic stay of that decision pending appeal 

to the BIA. The constitutional defect addressed in Petitioner’s first § 2241 Petition was 
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that the government’s invocation of an automatic stay of the IJ’s bond determination 

deprived Petitioner of a hearing before a neutral decisionmaker. As a result, in its Order 

on Petitioner’s motion for preliminary injunction, the Court noted the existence of 

§ 1003.19(i)(1), pursuant to which the government could seek a discretionary stay from 

the BIA—a neutral decisionmaker—of the IJ’s bond determination (2:17cv4719, Doc. 13 

at 5). 

The government sought and received that discretionary stay. The problem 

Petitioner alleges in the instant petition, is that he did not receive notice and an 

opportunity to be heard prior to the request for emergency stay being granted. Thus, in 

this case, the Court must answer a different question: whether the BIA’s ex parte issuance 

of a discretionary stay pursuant to § 1003.19(i)(1) violates due process. The Court notes 

the dearth of authority on this provision and observes that the only case to evaluate a due 

process challenge to the discretionary stay provision involves a situation where the 

petitioner was given the opportunity to be heard; as a result, the court determined that due 

process was not offended. See, e.g., El-Dessouki v. Cangemi, 2006 WL 2727191, at *2 

(D. Minn. Sept. 22, 2006). 

 As a general matter, the Court must evaluate the discretionary stay process under 

the factors set forth in Mathews v. Eldridge, 424 U.S. 319, 333 (1976), to determine 

“whether a pre-deprivation hearing is required and what specific procedures must be 

employed at that hearing given the particularities of the deprivation.” Shinault v. Hawks, 

782 F.3d 1053, 1057 (9th Cir. 2015). The factors are: “(1) the private interest affected; 

(2) the risk of erroneous deprivation through the procedures used, and the value of 

additional procedural safeguards; and (3) the government’s interest, including the 

burdens of additional procedural requirements.” Id. “By weighing these concerns, courts 

can determine whether a State has met the fundamental requirement of due process—the 

opportunity to be heard at a meaningful time and in a meaningful manner.” City of Los 

Angeles v. David, 538 U.S. 715, 717 (2003) (internal quotations omitted). 

 With respect to the first factor, there is no meaningful dispute that Petitioner has a 
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liberty interest in being heard before the BIA can prolong his detention. 

 As for the second factor, the risk of an erroneous deprivation, the record is clear 

that there are no formal procedures that establish the framework for responding to a 

discretionary stay request (Doc. 13 at 12). And here, Petitioner alleges that the 

information presented to the BIA was misleading and inaccurate and contributed to the 

BIA’s decision to enter the discretionary stay. But it is not contested that DHS informed 

Petitioner’s counsel of its stay request and provided them with a copy of that request. 

Emails to Petitioner’s removal proceedings counsel reflect that he was notified and 

provided a copy of the motion for discretionary stay on December 28, 2017 at 3:13 p.m., 

and responded confirming receipt of the motion at 3:27 p.m. (Doc. 14-28 at 5-6). There 

is nothing in the record suggesting that Petitioner’s counsel attempted to contact the BIA 

request an opportunity to file a response before the BIA issued the discretionary stay on 

December 29. Nor at any time thereafter has Petitioner filed a request for reconsideration 

or pointed out to the BIA that it should have the opportunity to be heard either prior to or 

within close temporal proximity to DHS’s request for the emergency stay. Therefore, 

while Court has little difficulty concluding that the risk of prolonged detention is 

heightened when a petitioner is not provided an opportunity to respond to the 

government’s submission, it is not clear that is what happened here. 

 Finally, in considering the third factor, the government alleges that exigency 

justifies a rapid decision on its request for discretionary stay because this detainee is 

wealthy and is the subject of Mexican and Interpol arrest warrants. The government thus 

claims, he was likely to abscond soon after he had been freed on bond and while a 

discretionary stay request was pending. Petitioner hotly contests these assertions of the 

government and even whether the likelihood of appearance is an appropriate basis on 

which to base a stay request. Petitioner does not dispute, however, that the BIA is the 

appropriate party to make these initial determinations on the merits. 

 What Petitioner does dispute, of course, is that he has been afforded no 

opportunity by the BIA to be heard in conjunction with the decision. That, however, is 
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far from clear. It is true that the BIA has no codified procedures in place providing set 

times for responses to requests for emergency discretionary stays. But, Petitioner’s 

removal counsel was provided advance notice by the DHS of its request for discretionary 

stay. He could have then, and he still could now, file a motion to reopen or a motion for 

reconsideration of the BIA’s discretionary stay. Yet, Petitioner made no attempt to 

contact the BIA to facilitate filing a response to the government’s motion prior to the 

issuance of the stay. 

 Nor has he availed himself of any possible post-deprivation remedy, which under 

the circumstances may have been sufficient to provide Petitioner an opportunity to make 

the record clear regarding any misstatements presented in the government’s request for a 

discretionary stay. While a pre-deprivation opportunity to respond to a request for a 

discretionary stay would be the best method of ensuring due process, the inquiry does not 

end there. Due process “is a flexible concept that varies with the particular situation.” 

Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015) (internal quotations omitted). 

The Court must therefore consider whether a post-deprivation remedy—like a motion for 

reconsideration or a motion to reopen—would nevertheless satisfy due process. Most 

cases finding due process satisfied by post-deprivation remedies are property loss cases 

based on the impracticability of a pre-deprivation hearing in instances of random and 

unauthorized official behavior in which, by definition, no pre-deprivation hearing can be 

provided. There are cases, however, extending post-deprivation remedies to cases 

involving liberty interests. See Ellis v. Hamilton, 669 F.2d 510, 515 (7th Cir. 1982) 

(seizure by county officials of adopted children not a due process violation in view of 

availability of various post-seizure remedies). 

 Based on the totality of the circumstances, and the recognition that the touchstone 

of due process is the “opportunity to be heard at a meaningful time and in a meaningful 

manner,” City of Los Angeles, 538 U.S. at 717, the Court finds Petitioner has not 

established a likelihood of success on the merits of his due process claim his motion for 

injunctive relief is therefore denied. 
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 Pursuant to Federal Rule of Civil Procedure 65(a)(2), because the Petition presents 

a legal question that is fully briefed though the motion for injunctive relief, this Order 

operates as an adjudication on the merits of the Petition. 

IT IS THEREFORE ORDERED that Petitioner’s Motion for Preliminary 

Injunction (Doc. 3) is denied. 

IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas 

Corpus (Doc. 1) is denied. 

IT IS FURTHER ORDERED that this action is dismissed and the Clerk of Court 

must enter judgment accordingly. 

 Dated this 8th day of February, 2018. 

Honorable G. Murray Snow

United States District Judge