415 F.Supp.3d 963
N.D. Cal.2019Background
- Ortega, a lawful permanent resident from El Salvador, served a lengthy juvenile/criminal sentence (sentenced in 1995 after convictions as a juvenile) and was released to ICE custody in April 2017 after completing his sentence.
- Removal proceedings followed; his CAT claim and later BIA appeal were denied, and he filed a petition for review with the Ninth Circuit.
- After more than 180 days in ICE custody, an IJ granted Ortega release on a $35,000 bond in January 2018; his wife posted the bond and he was released.
- ICE sought reconsideration and the IJ briefly vacated and then ultimately reinstated the bond; Ortega filed a habeas petition and obtained a preliminary injunction preventing re-arrest without an IJ hearing.
- Since release Ortega has complied with ISAP and parole conditions, worked, attended counseling, and developed family and community ties.
- The district court grants permanent habeas relief, permanently enjoining DHS/ICE from re-arresting Ortega unless and until an Immigration Court hearing with adequate notice determines whether his bond should be revoked or altered.
Issues
| Issue | Ortega's Argument | Government's Argument | Held |
|---|---|---|---|
| Jurisdiction to review DHS re-arrest decisions | Ortega: §2241 habeas review is available for constitutional claims; §1226(e) does not bar review of due process claims | Government: discretionary re-arrest authority under INA and §1226(e) removes district court jurisdiction; claim not ripe because Ortega is not detained now | Court: Retains habeas jurisdiction; §1226(e) does not preclude constitutional habeas review and claim is ripe because government refused to assure Ortega he will not be re-arrested |
| Liberty interest / whether due process attaches | Ortega: Has a protected liberty interest in remaining on bond; pre-deprivation IJ hearing required before re-arrest | Government: No liberty interest because release is discretionary and because of his criminal conviction and noncitizen status | Court: Ortega has a protected liberty interest in freedom from physical restraint on bond; due process attaches (analogous to parole/probation/prepareole contexts) |
| What process is due (Mathews balancing) | Ortega: Pre-deprivation hearing before a neutral IJ with adequate notice is necessary to avoid erroneous deprivation | Government: Post-arrest immigration procedures are adequate; pre-arrest hearing unnecessary and burdensome | Court: Mathews factors favor Ortega—private interest substantial; risk of erroneous deprivation high; government interest in re-arresting without a hearing is low—so pre-deprivation IJ hearing required before re-arrest |
Key Cases Cited
- Jones v. Cunningham, 371 U.S. 236 (establishes custody concept for habeas review)
- Zadvydas v. Davis, 533 U.S. 678 (Due Process Clause protects liberty of all persons in US)
- Mathews v. Eldridge, 424 U.S. 319 (three-factor test for what process is due)
- Morrissey v. Brewer, 408 U.S. 471 (liberty interest protections for parolees)
- Gagnon v. Scarpelli, 411 U.S. 778 (due process in probation revocation)
- Young v. Harper, 520 U.S. 143 (discretion does not eliminate protected liberty interests)
- Singh v. Holder, 638 F.3d 1196 (9th Cir. rule that §1226(e) does not bar habeas review of constitutional claims)
- Hernandez v. Sessions, 872 F.3d 976 (9th Cir.: government detention discretion constrained by due process)
- Saravia v. Sessions, 280 F. Supp. 3d 1168 (N.D. Cal. discussion of DHS re-arrest practice after IJ bond)
- Ortega-Rangel v. Sessions, 313 F. Supp. 3d 993 (N.D. Cal. habeas due process analysis in immigration release context)
- Jennings v. Rodriguez, 138 S. Ct. 830 (Supreme Court decision prompting ICE reconsideration practice)