598 F.Supp.3d 736
N.D. Cal.2022Background
- Imesh Perera, a lawful permanent resident, was convicted of state and federal drug offenses (state conviction 2010; federal guilty plea 2015) and released to supervised release; ICE was aware of his potential deportability as early as 2010 but did not detain him for nearly six years.
- After release he completed supervised release, pursued college courses, rose to store manager at Safeway, bought a home, became active in church, married a U.S. citizen, and had a child.
- On April 21, 2021 ICE arrested Perera under 8 U.S.C. § 1226(c) (mandatory detention) and initially denied him the opportunity to post bond; an IJ first declined to redetermine ICE’s denial.
- Perera filed a habeas petition; the district court granted a TRO ordering a bond hearing within seven days and placed on ICE the burden to justify detention by clear and convincing evidence; after that hearing Perera was released on $30,000 bond.
- On the merits the court held Perera’s as-applied due process challenge to detention under § 1226(c) succeeds: Mathews v. Eldridge factors favor him, and the court permanently enjoined ICE from detaining him under § 1226(c) based on convictions predating the order for more than seven days without a bond hearing at which the government must prove by clear and convincing evidence that detention is justified.
- The injunction is limited to detention under § 1226(c) based on pre-order convictions; the government may seek to detain on other independent grounds but must afford a bond hearing and meet the clear-and-convincing standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Perera has a protected liberty interest to bring an as-applied challenge to mandatory detention under § 1226(c) | Perera: Government’s long delay in detaining him after release and his multi-year reliance on freedom create a substantial liberty interest that supports an as-applied due process claim | Respondents: § 1226(c) is a constitutionally permissible part of removal proceedings and forecloses a liberty interest here | Held: Court finds Perera has a liberty interest in freedom from detention under these specific facts and may proceed with an as-applied challenge |
| Whether Mathews v. Eldridge requires a post-detention bond hearing when ICE re-detains Perera under § 1226(c) | Perera: Mathews factors (private interest, risk of error, and government burden) favor a bond hearing | Respondents: Mandatory detention under § 1226(c) is facially constitutional; Mathews inapplicable | Held: Mathews factors favor Perera; a neutral post-detainment bond hearing is required if ICE re-detains him |
| Who bears the burden of proof at the bond hearing and standard | Perera: Government must prove by clear and convincing evidence that he is a flight risk or danger (citing Singh) | Respondents: Perera should bear burden or government need not justify detention pending removal | Held: Government must prove by clear and convincing evidence that detention is necessary to deny bond |
| Scope of relief — limits on injunction | Perera: Relief should bar re-detention under § 1226(c) based on convictions predating the order; not broader | Respondents: Relief should be limited to detention authority tied to Perera’s March 2015 conviction and not prevent detention on other statutory bases | Held: Injunction bars re-detention under § 1226(c) based on criminal convictions predating the order for more than seven days without a bond hearing; government may detain on other independent grounds but must provide a bond hearing and meet the clear-and-convincing standard |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (recognizes fundamental liberty interest against indefinite detention of persons in the U.S.)
- Demore v. Kim, 538 U.S. 510 (upholds detention during removal proceedings but distinguishes facial from as-applied challenges)
- Mathews v. Eldridge, 424 U.S. 319 (framework for assessing what process due requires)
- Nielsen v. Preap, 139 S. Ct. 954 (rejects "immediate" detention limitation on § 1226(c) but preserves as-applied constitutional challenges)
- Singh v. Holder, 638 F.3d 1196 (9th Cir.) (government must prove by clear and convincing evidence that detention pending immigration proceedings is justified)
- Addington v. Texas, 441 U.S. 418 (sets clear-and-convincing evidentiary standard for certain liberty-depriving proceedings)
- Jennings v. Rodriguez, 138 S. Ct. 830 (addresses statutory scope of detention during removal)
- Hernandez v. Sessions, 872 F.3d 976 (discusses government’s interest and when detention is unjustified)