Perera v. JenningsPerera v. Jennings
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
[Re: ECF No. 1]
In this case, Petitioner-Plaintiff Imesh Perera has filed a writ of habeas corpus and complaint for injunctive and declaratory
Now before the Court is adjudication of the full merits of Perera‘s petition. Respondents have filed a return (ECF No. 40 (“Ret.“)), and Perera has filed a traverse (ECF No. 40 (“Trav.“)) in which he asks the Court to “affirm that the bond hearing it previously ordered for [Perera] was required by due process.” Trav. at 13. The Court held a hearing on the petition on March 17, 2022. ECF No. 50. For the reasons discussed on the record and explained below, the Court GRANTS Perera‘s petition for a writ of habeas corpus.
I. BACKGROUND
A. Perera‘s Upbringing and Criminal Charges
Petitioner-Plaintiff Imesh Perera was born in Sri Lanka in 1990 to parents Marian and Prince Perera. Declaration of Judah Lakin, ECF No. 1-1 (“Lakin Decl.“), Ex. B (“Perera Decl.“) ¶ 1; Lakin Decl. Ex. C. Pursuant to his mother‘s H1-B visa, the family immigrated to the United States in 2002 just before Perera turned 12 years old. Id. ¶ 3; Declaration of Scott Mossman, ECF No. 18-1 (“Mossman Decl.“) ¶ 4. Perera is now a lawful permanent resident. Perera Decl. ¶ 4. Perera‘s parents became United States citizens in 2012. Lakin Decl. Ex. 3 (naturalization certificates for Perera‘s parents); Mossman Decl. ¶ 5. Perera describes his move to the United States as a “culture shock.” Perera Decl. ¶ 6. Perera felt singled out because of his cheaper clothes and shoes and his language barrier. Id. ¶ 7. When his family moved to the more affluent town of Lincoln, California, Perera felt that he did not fit in because he did not have the money and cars that other students had. Id. ¶ 8. Perera began spending time with the wrong crowd and getting into trouble. Id. ¶¶ 7, 9-11.
On May 21, 2010, Perera was convicted in Placer County Superior Court of transportation of a controlled substance in violation of
After Perera‘s release from custody, he turned his life around. While in custody, Perera made a promise to himself and God to not break the law again. Perera Decl. ¶¶ 13-14. He has no further criminal arrests or charges and successfully completed his term of supervised release without incident. Id. ¶ 15; Lakin Decl. Ex. F (letter from Probation Officer).
Perera enrolled at Sierra College in fall of 2015, obtaining enough credits for two associates degrees and nearly enough credits to transfer to a four-year college. Perera Decl. ¶ 16; Lakin Decl. Ex. K (Sierra College transcript). Shortly after his release, Perera began working as a deli clerk at Safeway. Perera Decl. ¶ 17. Since then, he earned five promotions and became the store director for Safeway in Rancho Cordova, California, supervising the work of approximately 130 employees. Id. In 2020, the Safeway district manager nominated him to interview for a food industry management program at the University of Southern California, a university-based leadership program for which Safeway selects one high-performing manager per year. Lakin Decl. Exs. G, H (letters from Safeway). Perera aspires to obtain a bachelor‘s degree in marketing or management and rise through the ranks at Safeway‘s parent company. Perera Decl. ¶¶ 16, 19.
Perera has also personally grown following his release from custody. Perera has committed himself to spiritual development and devotion to his church community. Lakin Decl. Ex. M (letter from Perera‘s priest). Perera met Chloe Enriquez, a U.S. citizen, to whom he became engaged prior to ICE detaining him. Perera Decl. ¶¶ 20-21; Lakin Decl. Ex. D (letter from Enriquez). Perera has supported Enriquez by helping her stay on top of school work, paying bills, and assisting her during her pregnancy. Perera Decl. ¶¶ 22-23; Lakin Decl. Ex. L (Enriquez medical letter). Perera also purchased a home so his family would have somewhere “safe and secure” to live. Perera Decl. ¶ 18. As Perera says, “I now know that time is the one thing you can‘t get back and I have lived my life every day since being released from federal custody with that understanding.” Id. ¶ 15.
C. ICE Detains Perera
ICE records indicate that it was aware of the criminal charges and Perera‘s potential deportability by 2010. ICE was aware by at least May 14, 2010 of Perera‘s state conviction. Mossman Decl. Ex. C (ICE Form I-213 dated April 21, 2021 confirming ICE‘s May 2010 knowledge). A Form I-213 dated December 9, 2010 indicates that ICE was aware of his incarceration at Sacramento County Jail. Id. Ex. A. Another Form I-213 dated October 10, 2017 indicates that ICE interviewed Perera while he was incarcerated there and that ICE‘s Office of Chief Counsel was evaluating Perera‘s deportability. Id. Ex. B.
On April 21, 2021, ICE detained Perera at 5:30 a.m. while he was on his way to work. Perera Decl. ¶ 24; Mossman Decl. ¶ 8. ICE served Perera with a Notice to Appear for Removal Proceedings alleging that he is deportable due to his conviction for an aggravated felony. Mossman Decl. ¶ 9. ICE detained Perera at a private detention facility in McFarland, California and denied him the opportunity to post bond for his release. Id. ¶ 8. On May 25, 2021, an immigration judge conducted a hearing to determine Perera‘s eligibility for bond. Id. ¶ 15. The IJ accepted ICE‘s argument that he did not have the authority to redetermine ICE‘s denial of bond because Perera was subject to mandatory detention under
D. Petition and Temporary Restraining Order
One week after ICE denied his release request, Perera filed this Petition and a motion for a temporary restraining order seeking to require ICE to afford him a bond hearing before a neutral adjudicator at which ICE would bear the burden to justify his continued detention pending removal by clear and convincing evidence. See Pet.; ECF No. 4. Respondents opposed the motion for a temporary restraining order. See ECF No. 20.
On June 11, 2021, this Court granted the motion for a temporary restraining order. See TRO. This Court first found that it had jurisdiction over the Petition because Perera had sued the Director of the ICE Field Office that had actual authority over Perera‘s detention. Id. at 3-4. The Court found that Perera showed a likelihood of success on the merits of his as-applied constitutional challenge to his detention under
The parties stipulated to continue the TRO through the Court‘s hearing on the merits of the Petition. ECF No. 29.
E. Developments Since the TRO
Perera received his bond hearing on June 16, 2021. ECF No. 50-1 (“Perera Supp. Decl.“) ¶ 2. The IJ ordered Perera‘s release on $30,000 bond with conditions; Perera posted the bond and was released. Id. Perera has returned to his position as a store manager at Safeway. Id. ¶¶ 3, 6. Perera and Enriquez were married on July 29, 2021. Id. ¶ 4. They welcomed a son on August 29, 2021, and Perera has been able to spend time with his loved ones, support his family, and volunteer in his community. Id. ¶¶ 4-7. Perera has reenrolled at Sierra College where he intends to finish his transfer credits in fall 2022. Id. ¶ 8.
Perera says that if the charge of removability is ultimately sustained, he intends to apply for withholding of removal to Sri Lanka pursuant to
II. LEGAL STANDARD2
III. DISCUSSION
The basis of Perera‘s petition is that the statute under which he is detained,
The Court now conducts the due process inquiry to determine if Perera has a liberty interest and, if so, if the Mathews factors favor him such that a post-deprivation bond hearing is required should ICE ever re-detain him pending his removal.
A. Liberty Interest
The government may not deprive a person of life, liberty, or property without due process of law.
Federal immigration law authorizes the Attorney General to arrest and initially detain a non-citizen who has entered the United States and is believed to be removable.
In their Return to Perera‘s petition, Respondents contend that because
But this misses the distinction between a facial challenge to
type of challenge that Perera brings in his Petition: that
The Court finds that in his specific factual circumstances, Perera has a liberty interest at stake. Perera‘s reliance on his freedom is compelling and goes far beyond that present in a typical detention situation under
In the alternative, Respondents further argue that Perera is not being deprived of any liberty interest now because he “is not in ICE custody” and has already received a bond hearing pursuant to the Court‘s temporary restraining order, after which he was released on bond with conditions. Ret. at 18 n.5. But as the next sentence of Respondents’ argument recognizes, “ICE
Accordingly, the Court finds that Perera‘s as-applied challenge to his detention without a bond hearing may proceed because Perera has a liberty interest at stake.
B. Mathews Factors
Because the Court has identified a liberty interest at stake, the question becomes what process Perera is due. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotations omitted). Mathews lays out three factors courts must consider in determining the extent of the process due: (1) “the private interest that will be affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;” and (3) “the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.” Id. at 335. The Court finds, as it did in granting the temporary restraining order, that these factors clearly favor Perera.4
Private Interest. As the Court has already identified, Perera has a significant private interest in “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint.” Zadvydas, 533 U.S. at 690. Contrary to Respondents’ argument otherwise (implicit in their discussion of whether a liberty interest exists at all), this interest is not reduced because Perera spent only a small amount of time actually in custody prior to his previous bond hearing. Ret. at 10 n.3. “[A]ny length of detention implicates the same” fundamental liberty interest in remaining free from imprisonment. Rejnish v. Jennings, 2020 WL 7626414, at *6 (N.D. Cal. Dec. 22, 2020). Additionally, the liberty interest the Court has identified does not derive from Perera‘s time in custody; rather, it derives from the Government‘s awareness that Perera was eligible for detention while on supervised release, their failure to apprehend him despite knowledge of where he was for over six years, Perera‘s clean record and success in the multi-year interim period, and his significant reliance on freedom from detention.
Risk of Erroneous Deprivation. The Court also finds that the risk of an erroneous deprivation of the liberty interest is significant. In granting Perera‘s motion for a temporary restraining order, the Court found that, while it was not the Court that would decide whether release on bond was warranted, the record was “abound with evidence” that would support such a finding by an immigration judge. TRO at 7-8. The immigration judge evidently agreed when he released Perera on $30,000 bond
Government‘s Interest. The Government interest in Perera‘s detention pending removal without a bond hearing is low. While the Government‘s interest in enforcing the nation‘s immigration laws is significant, that interest is not at stake here; instead, it is the much lower interest in detaining Perera pending removal without a bond hearing. See Lopez Reyes v. Bonnar, 362 F. Supp. 3d 765, 777 (N.D. Cal. 2019); contra Ret. at 15 (arguing that Perera is a flight risk because he is a removable and has an “incentive to abscond“). At any bond hearing, Respondents are free to argue that Perera should not be released from custody because he is a flight risk or a danger to the community. If at a bond hearing the immigration judge were to determine that Perera was not a danger to the community and that his appearance at any future proceedings could be secure by bond or conditions, then the government would have “no legitimate interest in detaining” him. Hernandez v. Sessions, 872 F.3d 976, 994 (9th Cir. 2017). Additionally, the Government would not face any significant additional administrative burdens because it may already release other types of non-citizens on bond. See
* * *
Thus, the Court finds that in this specific as-applied challenge, the Mathews factors favor Perera and that he is entitled to a post-deprivation bond hearing should ICE re-detain him pending removal.
C. Burden of Proof at Bond Hearing
The only remaining issue is who bears what burden of proof at any potential bond hearing. Perera argues that Respondents should bear the burden of proof to show flight risk or dangerousness by clear and convincing evidence to justify denial of bond. Trav. at 11-12 (citing Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011)). Respondents argue that Perera should bear the burden of showing that he “is neither a danger to the community nor a flight risk,” and Respondents “need not show anything to justify incarceration for the pendency of removal proceedings, no matter the length of those proceedings.” See Ret. at 19-20 (quoting Velasco Lopez v. Decker, 978 F.3d 842, 849 (2d Cir. 2020)).
The Court agrees with Perera and finds Singh instructive. In Singh, the Ninth Circuit
D. Scope of Relief
At the hearing, the Court requested that Perera submit a proposed order granting the relief he seeks through his writ. Perera has done so, ECF Nos. 54, 58, and the Government has responded, ECF No. 55. Perera seeks an order with the following language:
This Court finds based on the pleadings, evidence, and arguments presented in this matter that Petitioner-Plaintiff‘s detention without a bond hearing pursuant to
8 U.S.C. § 1226(c) based on criminal convictions that pre-date this Order violates the Due Process Clause of the Fifth Amendment.Accordingly, the petition for writ of habeas corpus is GRANTED and Respondents-Defendants are permanently ENJOINED from detaining Petitioner-Plaintiff, pursuant to
8 U.S.C. § 1226(c) based on criminal convictions that pre-date this Order, for more than 7 days without a bond hearing at which the government bears the burden of justifying Petitioner-Plaintiff‘s detention, by clear and convincing evidence.
ECF No. 58 at 2. While much of the Government‘s response focuses on the merits of the petition for writ of habeas corpus, the Government also says that any relief the Court grants should be limited to the Government‘s detention authority under
The Court agrees with Perera. The focus of Perera‘s Petition has been his detention without a bond hearing under
As has been clear throughout these proceedings, the Court‘s orders have not required (and will not require) the Government to afford Perera a pre-detention bond hearing or to release Perera when they do detain him. The Orders only require that the Government afford Perera a post-detention bond hearing at which the Government bears the burden of justifying Perera‘s detention by clear and convincing evidence. If the Government believes there is an independent ground under which it may detain Perera pursuant to
IV. ORDER
The Court finds based on the pleadings, evidence, and arguments presented in this matter that Petitioner-Plaintiff‘s detention without a bond hearing pursuant to
Accordingly, IT IS HEREBY ORDERED that the petition for writ of habeas corpus is GRANTED and Respondents-Defendants are permanently ENJOINED from detaining Petitioner-Plaintiff, pursuant to
Dated: April 15, 2022
BETH LABSON FREEMAN
United States District Judge