Milda Rodriguez Vasquez v. Chad Wolf ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILDA RODRIGUEZ VASQUEZ, on her No. 20-55142
own behalf, and on behalf of her minor son,
M.S.M.R., as his next friend, AKA Milda
Rodriguez Velasquez and M.S.M.R., minor D.C. No.
son 2:20-cv-01274-JAK-GJS
Petitioners-Appellants,
MEMORANDUM*
v.
CHAD F. WOLF, Secretary and WILLIAM
P. BARR, Attorney General,
Respondents-Appellee.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted November 20, 2020
Pasadena, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and PRESNELL,**
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
Milda Rodriguez Vasquez and her minor son, M.S.M.R. (together,
“Appellants”), appeal the district court’s denial of a temporary restraining order
(“TRO”). We have jurisdiction under 28 U.S.C. § 1292(a)(1) where, like here,
“the circumstances render the denial tantamount to the denial of a preliminary
injunction.” Religious Tech. Ctr., Church of Scientology Int’l, Inc. v. Scott, 869
F.2d 1306, 1308 (9th Cir. 1989). We vacate the district court’s denial and remand
with instructions to consider new evidence.
1. The Government asks us to deny this appeal as moot.1 We decline to
do so. “‘The test for mootness of an appeal is whether the appellate court can give
the appellant any effective relief in the event that it decides the matter on the merits
in his favor. If it can grant such relief, the matter is not moot.’” Serv. Emps. Int’l
Union v. Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1068 (9th Cir. 2010)
(quoting Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986)). The Government
urges us to focus on the fact that Appellants sought medical assessments which
have been obtained. But this does not fully address the broader context of the case.
Effective relief for the Appellants can be granted by, for example, enjoining the
Government from imposing removal conditions that are adverse to M.S.M.R.’s
medical conditions and recovery.
1
The Government also objects to venue in the Central District of California, but
the district court did not reach that issue.
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2. The Government also argues that 8 U.S.C. § 1252(g) bars us from
hearing this claim. That section prohibits courts from hearing any claim “arising
from the decision or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g). But this
prohibition is narrow. See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,
140 S. Ct. 1891, 1907 (2020). It precludes review of only the three actions listed
in the statute: deciding to commence proceedings, deciding to adjudicate cases, and
deciding to execute removal orders. Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 482 (1999). Because the Appellants here challenge the
manner of their removal, and not the discretionary decision to remove them,
§ 1252(g) does not bar this suit.
3. With these preliminary issues resolved, we recognize that this case
comes before us in an unusual posture. After the district court analyzed the
evidence presented to it and denied the TRO, orders from this Court’s motions
panel supplemented the record with additional information about M.S.M.R.’s
medical condition. This new information may alter that analysis. Additionally,
months have passed since the parties submitted this additional information. Given
this unique situation, we vacate the district court’s order denying the TRO and
remand for further proceedings. We instruct the district court to consider the new
evidence presented in this appeal and any other evidence that may come to light
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since we first expanded the record. We also instruct the district court to consider
whether venue in the Central District of California is proper. When considering
the issue of venue, the district court should determine whether the “core habeas”
venue rule under § 2241(a) applies, see Nettles v. Grounds, 830 F.3d 922, 935 (9th
Cir. 2016) (en banc), or whether traditional venue analysis is appropriate. It is
further ordered that this Court’s stay of removal, originally entered on February 26,
2020, shall remain in effect until the district court resolves Appellants’ application
for a TRO.
VACATED and REMANDED.
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