Doe v. BecerraDoe v. Becerra
ORDER RE PETITION FOR WRIT OF HABEAS CORPUS
On April 29, 2023, Petitioner John Doe (“Doe” or “Petitioner“) filed an immigration
Respondents Merrick B. Garland, the United States Attorney General; Alejandro Mayorkas, Secretary of the Department of Homeland Security; Tae Johnson, Acting Director of ICE; and Moises Becerra, Field Office Director for ICE‘s San Francisco Field Office (collectively “Respondents” or “the Government“), oppose the Petition, arguing that the Court lacks jurisdiction, and that Doe is not entitled to release or a bond hearing.
Having reviewed the arguments and records in this case, the Court GRANTS the Petition in part. The Government must provide Petitioner Doe with a constitutionally sufficient bond hearing before an Immigration Judge (“IJ“) on or before October 20, 2023, where the Government will bear the burden of proving by clear and convincing evidence that Doe remains a flight risk or danger to the community. If the IJ does not issue a decision within 14 days from the date of the bond hearing, Doe SHALL be released from detention.
I. BACKGROUND
Doe was born in Oaxaca, Mexico, and he was brought to the United States as an adolescent after several instances of violence in his family‘s community.2 Petition (ECF 1) ¶ 29. Doe had two interactions with law enforcement that resulted in convictions soon after he turned 18 years old. Petition ¶ 35. At age 18, in 2016, he was convicted of carrying a concealed weapon within a vehicle, and sentenced to six months in jail and probation, with credit for time served and good conduct credits. Petition ¶ 36. In 2017, he was convicted of two misdemeanor counts of
Doe‘s family continued to face violence, and Doe himself was kidnapped and beaten upon his return to Mexico. Petition ¶¶ 41-45. He crossed back into the United States in early 2021. Petition ¶ 46. In August 2021, he pleaded no contest to a charge of misdemeanor trespassing that arose from a March 2021 incident, and he served 30 days in county jail starting in October 2021. Petition ¶ 48. Petitioner Doe was transferred to federal custody on November 14, 2021, and has remained so since. Petition ¶¶ 18, 48-49.
ICE determined that Doe was subject to “mandatory” no-bond detention under
During his most recent ICE detention, new removal proceedings were initiated against Doe. Petition ¶ 69. He sought withholding of removal and relief under the CAT, which was initially denied by the Immigration Judge (“IJ“). Petition ¶¶ 71-72. Doe appealed the IJ‘s determination, and the Board of Immigration Appeals remanded Doe‘s case to the IJ after finding several errors in the IJ‘s assessment. Petition ¶¶ 73-74.
Doe submitted a release request to ICE on February 17, 2023. Petition ¶ 76. That request was denied without explanation. Id. Doe filed the instant petition for writ of habeas corpus on April 19, 2023. ECF 1. Following completion of briefing and before this Court acted on the petition, the IJ issued a new order. ECF 21-1. The IJ ordered Doe removed to Mexico but granted him withholding of removal under the CAT. Id. Both Doe and the Department of Homeland Security (“DHS“) waived appeal. Id. The IJ‘s order is final.
II. JURISDICTION
Doe filed this habeas petition pursuant to
Respondents’ argument runs squarely counter to Ninth Circuit precedent that “district courts retain jurisdiction under
Having found it has jurisdiction to consider the Petition, the Court turns to consider its merits.
III. ENTITLEMENT TO A BOND HEARING
Doe advances that his continued detention under the mandatory detention provisions of the Immigration and Nationality Act (“INA“) violates his
A. Statutory Basis for Detention
The Due Process Clause of the
Petitioner argues that constitutional due process entitles him to a bond hearing even though the INA provisions governing his civil detention do not articulate a right to a bond hearing. See generally ECF 1. At the time Doe filed this petition for writ of habeas corpus, he was detained under
As noted above, the IJ in Doe‘s immigration case entered a final order of removal that simultaneously granted relief under the CAT. ECF 21-1. Doe‘s continued detention is now governed by
title or deportable under
Respondents argue in part that Doe‘s petition is now moot in light of the change in the basis for his detention. ECF 24 at 3-5. The Court need not address this line of argument other than to acknowledge that a live controversy exists because Doe remains detained and to note that the Court‘s conclusion in this case is based on the length of Doe‘s detention without a hearing, not the statutory basis for his detention. In contrast to one of the orders cited by Respondents, Quezada v. Hendricks, 821 F. Supp. 2d 702, 704 (D.N.J. 2011), this Court does not find that the statutory basis for detention impacts the analysis, particularly where the Government has made clear that Doe‘s continued detention is not speculative. See ECF 24 at 5-6. The IJ‘s final order of removal may have started a new clock for the Government to take a different type of action, but it did not reset the clock as to the time Doe has been detained without a bond hearing. Doe‘s continued civil detention of more than 22 months without a hearing to consider the risks related to his potential release on bond supports his due process claim.
Respondents cite to Judge Freeman‘s similarly-titled case, Doe v. Becerra, for her denial of a temporary restraining order to an immigration detainee held under
In sum, the Court finds that the shift in the statutory basis governing Doe‘s detention does not negate his constitutional rights nor substantively change the applicable due process analysis. While statutory justification for Doe‘s detention has shifted, nothing has changed as a practical matter – his time behind bars continues to increase without any showing by Respondents that his civil detention is necessary to achieve the Government‘s non-punitive ends. As the Ninth Circuit has explained, that is a constitutional problem regardless of which statute currently applies. See Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018) (“We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government‘s arbitrary deprivation of liberty would have thought so.“). The Court therefore proceeds to assess the merits of Doe‘s due process claim.
B. Due Process and Doe‘s Continued Detention
Doe argues that he is entitled to a bond hearing on two bases. First, he argues that immigration detention lasting longer than six months becomes unconstitutionally prolonged. Petition ¶ 127. Second, he argues that the balance of factors under Mathews v. Eldridge, 424 U.S. 319 (1976), require a bond hearing in his case. Petition ¶¶ 128-135. Respondents argue that no binding precedent supports a “bright-line” six-month rule. Return at 12-14 (ECF 14 at 18-20). Respondents also argue that Mathews does not apply to mandatory detention under
Although Doe additionally argues that his nearly two-year civil detention violates substantive due process because it is excessive and unnecessary in relation to its purpose, the Court declines to reach that inquiry because it ultimately grants relief based on Doe‘s procedural due process challenge to his continued civil detention under the test set forth in Mathews, 424 U.S. at 335. Due process requires “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.‘” Mathews, 424 U.S. at 333 (citation omitted). Under Mathews, courts consider (1) the individual‘s private interest that will be impacted by the official action, (2) the risk of erroneous deprivation of that interest and the probable value of additional procedural safeguards, and (3) the government‘s interest. Id. at 334-35. The Court addresses these considerations in turn.
1. Individual‘s Interest
The “main private interest at stake” here is Doe‘s interest in “[f]reedom from imprisonment – from government custody, detention, or other forms of physical restraint.” Perera, 2021 WL 2400981, at *4 (quoting Zadvydas v. Davis, 533 U.S. 678, 690 (2001)); see also De Paz Sales v. Barr, No. 19-cv-04148-KAW, 2019 WL 4751894, at *7 (N.D. Cal. Sept. 30, 2019) (finding a strong private interest where the petitioner “risks continued detention absent a bond hearing“). “[L]iberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Rodriguez v. Marin, 909 F.3d 252, 256-57 (9th Cir. 2018) (quoting United States v. Salerno, 481 U.S. 739, 755 (1987)).
In this case, Doe has been detained for over 22 months without a bond hearing, and there is no reasonably certain end to his detention. Although the clock has started to run on his 90-day detention period under
being free from detention, the Court finds that the first Mathews factor weighs in Doe‘s favor.
2. Risk of Erroneous Deprivation of Private Interest
The Court next examines the value of additional safeguards given the risk of erroneous deprivation of Doe‘s rights. See Mathews, 424 U.S. at 335. Respondents argue that there is no risk of erroneous deprivation of rights because Petitioner has already received all the procedural protections necessary – he has been found guilty of original charges in state court, and those convictions render him removable. See Return at 17 (ECF 14 at 23). The Government misconstrues the second factor. In the over 22 months that Doe has been deprived of his liberty, he has never had a bond hearing to evaluate the necessity of his ongoing civil detention. In these circumstances, the value of additional procedural safeguards in the form of a bond hearing is substantial given the risk of erroneous deprivation of Doe‘s rights. See Rajnish, 2020 WL 7626414, at *9 (holding that “the value added by another hearing is great” where petitioner had been held for nine months since an “unconstitutional” initial bond hearing that “assigned the risk of error to him, not to the government” and there had been “important developments” in the proceedings); see also Pham, 2023 WL 2744397, at *6 n.9 (citing Preap, 139 S. Ct. at 972) (finding a risk of erroneous deprivation even though petitioner was subject to mandatory detention as “successful due process challenges to mandatory detention would require additional process” such as a bond hearing). At the hearing, moreover, the Government reiterated its position that Doe must remain in detention, demonstrating that it will not provide Doe with a bond hearing unless ordered to do so. Given the lack of particularized fact-finding related to Doe‘s flight risk and/or danger to the community, the Court finds that second Mathews factor also weighs in Doe‘s favor.
3. Government Interest
Respondents argue that there is a “legitimate government purpose” in detaining noncitizens during the pendency of their removal proceedings. Return at 18 (ECF 14 at 24) (quoting Prieto-Romero v. Clark, 534 F.3d 1053, 1062-65 (9th Cir. 2008) (citation omitted)). However, the government‘s interest at issue here is “the ability to detain [Doe] without providing him with [a] bond hearing, not whether the government may continue to detain him.” Lopez Reyes, 362 F. Supp. 3d at 777 (emphasis in original); see also Perera, 2021 WL 2400981 at *5 (same); Zerezghi v. United States Citizenship & Immigr. Servs., 955 F.3d 802, 810 (9th Cir. 2020) (citing Mathews, 424 U.S. at 335) (noting that the third factor considers the “burden that the additional or substitute procedural requirement would entail,” not the government‘s substantial interest in immigration enforcement “in general“).
Having weighed the Mathews factors, the Court concludes that Doe‘s continued detention without an individualized bond hearing violates his due process rights under the
C. Burden of Proof
The parties also dispute whether the Government bears the burden of proof should the Court order a bond hearing. Doe argues that under Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), the government bears the burden of proving by clear and convincing evidence that further detention is warranted. Petition ¶ 152. Respondents argue that Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022), called into question the holding of Singh, and based on Fourth Circuit authority, Petitioner should bear the burden of proof to support his release. See Return at 22 (ECF 14 at 28) (citing Miranda v. Garland, 34 F.4th 338, 363 (4th Cir. 2022)).
The Court agrees with Doe that the Government bears the burden of proof. In Singh, the Ninth Circuit held that “the government must prove by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond,” because “civil commitment for any purpose constitutes a significant deprivation of liberty.” 638 F.3d at 1203-04 (emphasis in original) (citation omitted). Rodriguez-Diaz considered whether a second bond hearing was constitutionally required in the Section 1226(a) context, and specifically declined to decide whether Singh remains good law in Section 1226(c) cases. See Rodriguez-Diaz, 53 F.4th at 1202 & n.4. Thus, “[a]bsent controlling authority to the contrary, the reasoning of Singh and its holding remain applicable to § 1226(c) cases, like this one, where there is a ‘substantial liberty interest at stake.‘” Pham, 2023 WL 2744397 at *7 (citation omitted).
The Court follows Singh‘s reasoning and holds that the Government bears the burden of proving by clear and convincing evidence that further detention is warranted. See, e.g., Doe v. Garland, No. 3:22-CV-03759-JD, 2023 WL 1934509, at *2 (N.D. Cal. Jan. 10, 2023) (holding that the government
The Court additionally finds that the bond hearing should be conducted by an IJ, not the Court. See Mansoor v. Figueroa, No. 17-cv-01695-GPC (NLS), 2018 WL 840253, at *4 (S.D. Cal. Feb. 13, 2018) (“The Court finds the IJ is uniquely qualified and situated to make neutral administrative determinations about Petitioner‘s eligibility for release on bond and/or placement in a supervised release program.“). Although both sides acknowledged at the hearing that an IJ may doubt his or her authority to conduct such a bond hearing, courts in this Circuit have regularly found that the IJ is the proper authority to conduct bond hearings and determine a detainee‘s risk of flight or dangerousness to the community. See, e.g., Martinez v. Clark, 36 F.4th 1219, 1223 (9th Cir. 2022) (“district courts throughout this circuit have ordered immigration courts to conduct bond hearings for noncitizens held for prolonged periods“).
CONCLUSION
The Court GRANTS Doe‘s Petition in part, and ORDERS that the Government provide him with a constitutionally compliant bond hearing before an immigration judge within 14 days from the date of this Order. The Government shall bear the burden of proving by clear and convincing evidence that Doe is a flight risk or a danger to the community. If the immigration judge does not issue a decision within 14 days of the bond hearing, Doe SHALL be released from detention. The Court ORDERS Respondents to file on the docket (and under seal, if necessary) copies of any orders issued by the immigration judge.
IT IS SO ORDERED.
Dated: October 6, 2023
ARACELI MARTÍNEZ-OLGUÍN
United States District Judge