Opinion
Case No. 21-cv-01434-JST
2021-04-14
JORGE M.F., Petitioner, v. David JENNINGS, et al., Respondents.
Amalia Margarete Wille, Judah Ben Lakin, Lakin & Wille LLP, Oakland, CA, for Petitioner. Michael Thomas Pyle, United States Attorney's Office, San Jose, CA, for Respondents.
Amalia Margarete Wille, Judah Ben Lakin, Lakin & Wille LLP, Oakland, CA, for Petitioner.
Michael Thomas Pyle, United States Attorney's Office, San Jose, CA, for Respondents.
ORDER GRANTING PRELIMINARY INJUNCTION
Re: ECF No. 3
JON S. TIGAR, United States District Judge
Before the Court is Petitioner's motion to enjoin Respondents and their agents from re-detaining Petitioner unless and until he is afforded a pre-deprivation hearing pending the final disposition of this action. ECF No. 3. The Court previously granted a temporary restraining order ("TRO") granting this relief. ECF No. 10. Having now provided Respondents with an opportunity to respond, and having carefully considered the papers and arguments of the parties, the Court GRANTS Petitioner's motion for a preliminary injunction.
I. BACKGROUND
The factual background of this case is described in detail in the Court's prior order. ECF No. 10 at 1-2. In sum, Petitioner is a native and citizen of Mexico who last entered the United States in 2009. ECF No. 3-1 at 40. Petitioner admits to "struggl[ing] with alcohol addiction for many years," and has four misdemeanor convictions for driving under the influence of alcohol – three from the period between 2003 and 2004, and one from May 2018 – and a domestic violence conviction for a 2016 incident involving his wife. ECF No. 3 at 8.
In November 2019, U.S. Immigration and Customs Enforcement ("ICE") arrested Petitioner and initiated removal proceedings against him. Id. at 9. On February 6, 2020, after approximately three months in detention, an immigration judge ("IJ") conducted a custody redetermination hearing for Petitioner and did not release him, finding that he presented a danger to the community. Id. On August 10, 2020, however, Petitioner received a second bond hearing. Id. at 11. The IJ there determined that Petitioner did "not pose a danger to the community or a flight risk," and ordered he be released from custody under a $3,000 bond. ECF No. 3-1 at 42. Petitioner was released on August 11, 2020. ECF No. 3 at 12. The Department of Homeland Security ("DHS") appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), which vacated the decision and ordered Petitioner "detained on no bond" in an order dated February 12, 2021. ECF No. 3-1 at 36-37. The parties agree that because Petitioner awaits the Ninth Circuit's review of his removal order, "his detention [is] governed by § 1226(a)." ECF No. 14 at 6; ECF No. 16 at 8.
Petitioner, "fear[ing] being arrested [and re-detained] at any moment," brought this action and filed an ex parte motion to enjoin Respondents "from re-detaining him unless and until he has had a hearing, as required by the Due Process clause of the Fifth Amendment, to determine whether his re-detention by [ICE] would be lawful." ECF No. 3 at 14, 6. On March 1, 2021, this Court granted Petitioner's motion for a TRO and ordered Respondents to show cause why they and their agents "should not be enjoined from taking any action to re-detain Petitioner[ ] – unless and until he is afforded a pre-deprivation hearing – pending the final disposition of this action." ECF No. 10 at 7. The parties stipulated to extending the TRO and continuing the preliminary injunction briefing schedule for 30 days, ECF No. 12, and on March 30, 2021, Respondents filed a response to the Court's order to show cause that also serves as their return to Petitioner's writ of habeas corpus, ECF No. 14. Petitioner replied, ECF No. 16, and the Court held a hearing on April 12, 2021.
II. LEGAL STANDARD
The Court applies a familiar four-factor test on both a motion for a temporary restraining order and a motion for a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co. , 240 F.3d 832, 839 n.7 (9th Cir. 2001). Preliminary relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving party in the absence of preliminary relief; (3) that the balance of equities tips in favor of the moving party; and (4) that an injunction is in the public interest. Id. at 20, 129 S.Ct. 365. "[S]erious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011) (quotation marks omitted).
III. DISCUSSION
Without the benefit of full briefing, the Court held on March 1, 2021 that Petitioner had "raised serious questions on the merits of his claim that he is entitled to a pre-deprivation hearing before an immigration judge if he is re-arrested," that Petitioner was "likely to suffer immediate and irreparable harm" without a TRO, and that "the balance of the equities and the public interest sharply favor[ed] granting a TRO." ECF No. 10 at 5-6 (quotation marks and citation omitted). Respondents have now had an opportunity to respond to Petitioner's motion and the Court's prior order, and they argue that Petitioner is not entitled to a pre-deprivation hearing. See ECF No. 14. Respondents do not respond to the merits of Petitioner's alternative argument that his due process rights were also violated by the BIA applying the incorrect legal standard and placing the burden on Petitioner to prove that he was not a danger or a flight risk. The Court concludes that Petitioner is entitled to injunctive relief based on the merits of his procedural due process claim to a pre-detention hearing. In the alternative, the Court finds that Petitioner is also entitled to injunctive relief based on his claim that he must be afforded a pre-detention hearing because the BIA violated due process by applying an incorrect legal standard in reviewing the IJ's bond determination.
Respondents also argue that the Court cannot override the BIA's discretionary weighing of evidence, that the BIA did not err in its consideration of Petitioner's criminal history, and that Petitioner does not have a viable Administrative Procedure Act claim. ECF No. 14 at 17-21, 23-24. Because the Court's preliminary injunction is based on Petitioner's procedural due process claims, it does not reach these arguments.
A. Right to a Pre-Detention Hearing
In responding to Petitioner's motion and the Court's order granting Petitioner a TRO, Respondents contend that (1) Petitioner has no due process right to a pre-detention hearing and that to find such a right would permit an IJ to preemptively reverse an order of the BIA, id. at 12-17; (2) Petitioner's claim is speculative and premature, id. at 21-23; (3) Petitioner cannot show that he will suffer irreparable harm absent injunctive relief, id. at 24-25; and (4) the equities and public interest do not favor Petitioner, id. at 25-26.
First, Respondents attempt to distinguish the cases discussed in the Court's prior order and aver that all factors of the Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), due process test favor the government. Id. at 12-17. The Court has considered these arguments carefully, but continues to find that Petitioner has at least satisfied the Ninth Circuit's sliding scale approach to preliminary injunctions by raising "serious questions going to the merits" of his procedural due process claim.
The Court considers Respondents’ arguments regarding the case law in the Court's prior order to be unpersuasive. Respondents assert that Morrissey v. Brewer , 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and its progeny are irrelevant here because they were not decided in the immigration context. However, as discussed in the Court's order granting a TRO, the court in Ortega v. Bonnar held that a noncitizen's liberty interest in remaining out of custody on bond was similar to the liberty interests of people on pre-parole, parole, and probation, and that "[g]iven the civil context, a [noncitizen's] liberty interest is arguably greater than the interest of parolees in Morrissey. " 415 F. Supp. 3d 963, 969-70 (N.D. Cal. 2019). The Court finds this reasoning to be persuasive and declines to ignore the due process principles articulated in Morrissey on the basis that it was not decided in the immigration context.
Respondents’ attempts to distinguish Ortega and Ortiz Vargas v. Jennings , No. 20-CV-5785-PJH, 2020 WL 5517277 (N.D. Cal. Sept. 14, 2020), are equally unavailing. Respondents explain that Ortega involved an attempt by ICE "to unilaterally cancel a valid IJ bond" and that Ortiz Vargas prevented "an IJ from canceling its own bond order without a hearing." ECF No. 14 at 13. The Court finds these characterizations to be misleading. Although ICE filed a motion to reconsider the bond decision in Ortega , it was the IJ's decision to vacate its bond order. 415 F. Supp. 3d at 966. And there was no need for the IJ to hold a hearing in Ortiz Vargas because the IJ revoked bond on the legal basis that the petitioner's conviction constituted a crime involving moral turpitude and the petitioner was therefore subject to mandatory custody. 2020 WL 5517277, at *1. Finally, although Respondents emphasize that Ortega involved § 1226(b) and Ortiz Vargas concerned § 1226(c), whereas § 1226(a) is at issue here, Ortiz Vargas rejected the same argument. The Ortiz Vargas court held that "the procedural due process inquiry presented in Ortega arising from the re-arrest or re-detention of a non-citizen after release on bond [was] similar to the procedural due process claim" in that case. Id. at *3. Ortiz Vargas concluded that serious questions went to the merits of petitioner's procedural due process claim – even in the face of an IJ's determination that the petitioner was subject to mandatory detention – after evaluating the claim through the framework articulated in Mathews v. Eldridge. Id.
This Court considered the three-factor balancing test set forth in Mathews v. Eldridge in its order granting Petitioner's motion for a TRO and held that the test supports a pre-detention hearing for Petitioner for the reasons discussed in Ortega , 415 F. Supp. 3d at 970, and Ortiz Vargas , 2020 WL 5074312, at *3. See ECF No. 10 at 5. Nothing in Respondents’ discussion of the Mathews v. Eldridge factors changes the Court's prior conclusions. The Court therefore incorporates its prior analysis of Mathews v. Eldridge by reference and emphasizes that Petitioner's challenges to the legal validity of the BIA's order – including his allegation that the BIA applied the incorrect legal standard in considering DHS's appeal of the IJ's bond order – support the Court's conclusion that there is a risk of an erroneous deprivation of Petitioner's liberty absent a pre-deprivation hearing. Id. In addition, the government repeatedly asserts that "if Petitioner were to be re-arrested and taken into custody, ICE would be required to give the Petitioner the option of requesting a review of his custody determination." ECF No. 14 at 15; see also id. at 14. The only difference in the parties’ positions is therefore whether a hearing to review Petitioner's custody determination would occur before or after detention. Having acknowledged that Petitioner is entitled to a hearing, the government's interest in delaying that hearing does not weigh heavily in the Mathews analysis. Nor is the Court persuaded by the government's emphasis, both in its briefing and at oral argument, on the process available to Petitioner after he is detained. These arguments misapprehend the purpose of a pre-detention hearing: if Petitioner is detained, he will already have suffered the injury he is now seeking to avoid.
The Court also notes that affording Petitioner a pre-deprivation hearing would not have the practical effect of overruling the BIA's decision in this case because an IJ presiding over a pre-detention hearing would consider evidence that was not before the BIA. In overturning the IJ's decision to grant Petitioner bond, the BIA considered only the evidence that had been presented to the IJ at the August 10, 2020 hearing. See ECF No. 3-1 at 36-37. In any pre-detention hearing, the IJ would be required to consider any additional evidence from the eight-plus months since Petitioner was released. See, e.g., id. at 6-9, 11-14, 23.
Second, the Court rejects Respondents’ contention that Petitioner's claim is premature. The Ortega court rejected an identical ripeness argument on the grounds that (1) the government "refused to provide any assurance that Ortega [would] not be re-arrested" and (2) Ortega could only enforce his right to a pre-deprivation hearing by "bringing a challenge now, prior to being re-arrested." 415 F. Supp. 3d at 969. Petitioner's claim is ripe for adjudication for the same reasons. Respondents maintain that Petitioner may be lawfully re-detained pursuant to the BIA's order and have continued to pursue this litigation, even after taking 30 days to consider "the impact of new immigration policies, procedures and priorities of the new Administration with regard to Petitioner." ECF No. 13 at 2. This implies that the government may act on its presumed authority to re-arrest Petitioner at any moment. And Petitioner, like the petitioner in Ortega , seeks a pre-deprivation hearing. That right that can only be protected through a challenge brought prior to his re-detention.
Third, the Court declines to revisit its conclusion that Petitioner is likely to suffer irreparable harm absent injunctive relief. Respondents argue that the " ‘possibility’ of injury is ‘too remote and speculative to constitute an irreparable injury meriting preliminary injunctive relief.’ " ECF No. 14 at 25 (quoting Caribbean Marine Servs. Co. v. Baldrige , 844 F.2d 668, 675 (9th Cir. 1988) ). As described above, Respondents’ actions in this litigation demonstrate that the possibility that Petitioner would be re-detained without a preliminary injunction is far from "remote." And as explained in the Court's prior order, in addition to "the irreparable harms imposed on anyone subject to immigration detention" that Petitioner would suffer if taken into ICE custody, Hernandez v. Sessions , 872 F.3d 976, 995 (9th Cir. 2017), his family faces the additional harms of severe economic hardship and psychological harm if Petitioner is re-detained, ECF No. 3 at 20-21. See also ECF No. 3-1 at 46-52 (psychological evaluation of Petitioner's oldest child during Petitioner's prior detention).
Finally, the Court again concludes that the balance of the equities and the public interest sharply favor granting injunctive relief. ECF No. 10 at 6. "When the government is a party, these last two [ Winter ] factors merge." Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir. 2014). The Court incorporates by reference its prior analysis of the last two Winter factors except that it no longer places any weight on the fact that an IJ found as a factual matter that Petitioner posed no risk of danger or flight considering the BIA overturned that decision. See ECF No. 10 at 6. However, the Court continues to conclude that there is a "low risk that Petitioner[ ] would cause harm to others or flee[ ] in light of his strong family ties, financial responsibilities, and work commitments." Id. (quoting Ortiz Vargas , 2020 WL 5074312, at *4 ).
B. Incorrect Legal Standard
In the alternative, the Court also finds that Petitioner has raised serious questions going to the merits of his claim that he is entitled to a pre-detention hearing on the basis that the BIA's order revoking bond cannot justify Petitioner's re-detention. Petitioner asserts that his due process rights were violated by the BIA applying the incorrect legal standard and placing the burden on Petitioner to prove that he was not a danger or a flight risk. See ECF No. 3 at 21-23. Respondents’ only argument in response to this claim is that Petitioner's invitation to the Court "to preemptively determine the burden and standard of proof that should be applied to Petitioner in the highly-speculative event that Petitioner should be again subject to detention" is premature. ECF No. 14 at 7, 21-23. In addition to the reasons stated above, the Court rejects Respondents’ argument that this issue is somehow premature because Petitioner objects to the standard of proof that was applied by the BIA in its February order.
In sustaining the DHS's appeal of the IJ's decision to release Petitioner on bond, the BIA held that Petitioner "did not meet his burden of proof to demonstrate that he was not a danger to the community at the time of his bond hearing ... [g]iven the [Petitioner's] serious and lengthy criminal record." ECF No. 3-1 at 36-37. Petitioner argues that this holding was unconstitutional because "[t]he Due Process Clause of the Fifth Amendment requires that the government bear the burden of proof by clear and convincing evidence at an immigration bond hearing." ECF No. 3 at 21. Another court in this district recently considered this issue at length. See Rajnish v. Jennings , No. 3:20-CV-07819-WHO, 2020 WL 7626414, at *4-8 (N.D. Cal. Dec. 22, 2020).
The Rajnish court joined the "strong majority of courts" in holding that, "at bond hearings for noncitizens in removal proceedings, the government must bear the burden of proof by clear and convincing evidence." Id. at *6-7. The court noted that Singh v. Holder , 638 F.3d 1196 (9th Cir. 2011), "directly leads" to this conclusion, and that out-of-circuit cases holding that the burden of proof in a bond hearing could constitutionally be placed on a noncitizen were "unpersuasive." Id. The Ninth Circuit explained in Singh that "it is improper to ask the individual to share equally with society the risk of error when the possible injury to the individual – deprivation of liberty – is so significant," and that "a clear and convincing evidence standard of proof provides the appropriate level of procedural protection." 638 F.3d at 1203-04 (quotation marks and citation omitted). This Court is bound by the Ninth Circuit's holding in Singh. This Court thus joins the growing chorus of courts that have held that due process requires the government to prove that a noncitizen is a danger to the community or a flight risk by clear and convincing evidence to justify a noncitizen's detention. See, e.g., Velasco Lopez v. Decker , 978 F.3d 842, 855-56 (2d Cir. 2020) ; Ixchop Perez v. McAleenan , 436 F. Supp. 3d 1055, 1062 (N.D. Cal. 2020) (collecting cases).
At oral argument, Respondents offered Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018) as the government's only authority to support its contrary position that a noncitizen in a bond hearing must bear the burden of showing that they are not a danger or flight risk. As the government acknowledged in its argument, a number of courts in this district have held that Jennings "does not touch, let alone decide [the] issue" of what burden of proof is constitutionally required at a bond hearing. Rajnish , 2020 WL 7626414, at *6. As those courts did, this Court holds that Jennings is not relevant here because it concerns statutory interpretation rather than constitutional due process.
Considering Singh and the reasoning of the many courts that have held that the due process clause requires the government to prove that a noncitizen is a danger to the community or a flight risk by clear and convincing evidence to justify a noncitizen's detention, the Court holds that Petitioner has raised "serious questions going to the merits" of his claim that "the framework used to adjudicate [his] bond redetermination hearing contravened what Due Process demands." ECF No. 3 at 22 (quotation marks and alterations omitted). The Court also holds that any constitutional violation was prejudicial because it "potentially ... affect[ed] the outcome of the proceedings." Walters v. Reno , 145 F.3d 1032, 1044 (9th Cir. 1998) (citation and quotation marks omitted). Had the BIA applied the correct burden of proof, there is a "plausible scenario[ ]" in which the BIA would have found that the government did not meet its burden, in which case "the outcome of the proceedings would have been different." Id.
C. Security
Rule 65(c) of the Federal Rules of Civil Procedure provides that a district court may grant a preliminary injunction "only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." Fed. R. Civ. P. 65(c). The district court retains discretion "as to the amount of security required, if any. " Johnson v. Couturier , 572 F.3d 1067, 1086 (9th Cir. 2009) (quotation marks and citations omitted) (emphasis in original). In this case, the government has not requested the posting of security and the Court declines to order it.
CONCLUSION
For the foregoing reasons, the Court GRANTS Petitioner's motion for a preliminary injunction. The Court hereby ENJOINS Respondents, and their agents and employees, from re-detaining Petitioner without notice and a hearing pending the final disposition of this action.