Uc Encarnacion v. Kaiser

[4] 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA [7] 8 ERNESTO A. UC ENCARNACION, Case No. 22-cv-04369-CRB 9 Petitioner, ORDER DENYING HABEAS 10 v. PETITION 11 POLLY KAISER, et al., 12 Respondents. 13 Petitioner Ernesto Uc Encarnacion asks the Court to prevent Respondents from re14 detaining him based on a Board of Immigration Appeals (BIA) decision without first 15 returning him to an immigration judge (IJ) for a bond hearing. See Pet. (dkt. 1). The 16 Court’s view of this case has not changed since it denied Petitioner’s request for a 17 preliminary injunction. See Transcript (dkt. 21); Show Cause Hearing (dkt. 17); Order 18 Denying MPI (dkt. 18). Although Uc did an extraordinary job of turning his life around 19 while out on bond, and his re-detention may be both disruptive to his recovery and hurtful 20 to the people close to him, he is not entitled to a further bond hearing before an IJ. 21 I. BACKGROUND1 22 Petitioner was transferred to U.S. Immigration and Customs Enforcement (ICE) 23 custody in February 2020. Uc Decl. (dkt. 1-2) ¶ 14; Mahoney Decl. (dkt. 1-1) ¶ 12. His 24 2011 removal order was reinstated pursuant to 8 U.S.C. § 1231 (a)(5), and, after expressing 25 a fear of returning to Mexico, Uc was placed in proceedings in San Francisco Immigration 26 Court to pursue Withholding of Removal and relief under the Convention Against Torture. [27] 1 Id.; Ex. M (Notice of Referral to Immigration Judge). The reinstated removal order 2 subjected Uc to mandatory detention under 8 U.S.C. § 1231 (a)(6). 3 During his proceedings, Uc appeared before an IJ. Mahoney Decl. ¶ 14. The IJ 4 found Uc not credible, denied all relief, and ordered him removed. Id.; Ex. N (IJ Order in 5 Removal Proceedings). Uc timely appealed. Id. ¶ 15 , Ex. O (EOIR Case Status Printout). 6 Recently, the BIA dismissed Petitioner’s appeal. See Respondents’ Statement of Recent 7 Decision (dkt. 24). Uc has filed a Petition for Review of that decision to the Ninth Circuit, 8 as well as a Motion for Stay of Removal. See Petitioner’s Supplement to Respondents’ 9 Notice of Recent Decision (dkt. 25) at 2.2 10 While Uc’s withholding of removal efforts progressed, Uc was held in ICE custody 11 for six months pursuant to the mandatory detention provisions of 8 U.S.C. § 1231 (a)(6). 12 Mot. for TRO (dkt. 2) at 5. He then became eligible for a bond hearing pursuant to 13 Aleman Gonzalez v. Sessions, 325 F.R.D. 616 , 620–29 (N.D. Cal. 2018), aff’d Aleman 14 Gonzalez v. Barr, 955 F.3d 762 (9th Cir. 2020), rev’d Garland v. Aleman Gonzalez, 142 S. 15 Ct. 2057 (2022). 16 On August 4, 2020, a different IJ conducted a bond hearing. Mahoney Decl. ¶ 16, 17 Ex. U (Bond Order of the IJ). Under Aleman Gonzalez, ICE had the burden of proving by 18 clear and convincing evidence that Uc was either a danger to the community or a flight 19 risk. 325 F.R.D. at 628. The IJ found that ICE had not met its burden to show that Uc was 20 a continued danger or a flight risk, and granted him release on bond of $2,000. Mahoney 21 Decl. ¶ 26. 22 ICE did not move to stay the IJ’s decision. Id. ¶ 27. Uc posted bond and was 23 released on August 5, 2020. Id. ¶ 28. ICE appealed the IJ’s bond decision in August 2020. 24 Id. ¶ 29, Ex. R (BIA Order Revoking Bond). After ICE appealed, the IJ issued a 25 memorandum decision explaining her analysis. Ex. Q (Bond Memorandum of IJ, [27] 2 Even more recently, ICE sent Uc an Appointment Notice instructing him to appear on 1 9/2/2020). 2 Uc’s conduct while on bond was beyond reproach. See Order Granting TRO at 4– 3 5. Nearly two years passed. Then, on June 23, 2022, the BIA sustained ICE’s appeal, 4 vacating the IJ’s bond order, and ordered Uc detained without bond. Ex. R (BIA Order 5 Revoking Bond). The BIA concluded that “the [IJ] clearly erred in granting the 6 respondent bond because [ICE] met its burden of establishing that the respondent is a 7 danger to the community.” Id. 8 On July 15, 2022, Uc was notified that his bond obligor had received a notice from 9 ICE ordering that the obligor produce Uc for an appointment at the San Francisco ICE 10 ERO Field Office on August 2, 2022 at 10:00 A.M. Mahoney Decl. ¶ 6, Ex. A (Notice to 11 Obligor). Uc filed a habeas petition on July 28, 2022, see Pet. (dkt. 1) and an ex parte 12 Motion for a temporary restraining order (TRO), see Mot. for TRO. He asked the Court to 13 “enjoin Respondents from re-detaining him unless and until he has had a hearing, as 14 required by the Due Process clause of the Fifth Amendment, to determine whether his re15 detention by [ICE] would be lawful.” Mot. for TRO at 1; see also Pet. at 30. The Court 16 granted a TRO on July 29, 2022, and set a hearing for a motion for preliminary injunction. 17 See Order Granting TRO at 11. 18 The Court then held a hearing on Uc’s motion for preliminary injunction, see Show 19 Cause Hearing; Transcript, and, upon further review, concluded that Uc was not likely to 20 succeed on the merits, see Order Denying MPI. The Court directed the parties to complete 21 their briefing on Uc’s habeas petition. Id. That briefing is now complete. 22 II. LEGAL STANDARD 23 Federal district courts may grant writs of habeas corpus if the petitioner is “in 24 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 25 § 2241(c)(3). In immigration cases, federal district courts lack jurisdiction to review 26 “decision[s]” for which the statute grants “discretion” to the Attorney General. 8 U.S.C. § 27 1252(a)(2)(B). Federal district courts do have jurisdiction over “constitutional claims or III. DISCUSSION [1] Uc’s habeas petition includes three counts. In Count One, he argues that he has a [2] right to, and is being deprived, a pre-deprivation bond hearing with an IJ. Pet. at 13–22. [3] In Count Two, he argues that the BIA’s order revoking bond was legally infirm and [4] violates due process. Pet. at 23–28. In Count Three, he argues that the BIA’s order [5] violates the Administrative Procedure Act (APA). Id. at 29 . The Court is not persuaded [6] on any of the three. [7] A. Count One: Due Process Right to Second Bond Hearing [8] Uc maintains that due process requires a second bond hearing following the BIA’s [9] reversal of the original IJ bond determination. The Court evaluates this claim using the [10] balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976). Mathews directs a court to [11] consider (1) “the private interest that will be affected by the official action,” (2) “the risk [12] of an erroneous deprivation of such interest through the procedures used, and the probable [13] value, if any, of additional or substitute procedural safeguards” and (3) “the Government’s [14] interest, including the function involved and the fiscal and administrative burdens that the [15] additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335 . [16] 1. Liberty Interest [17] As to the first Mathews factor, Uc argues that he has a protected liberty interest in [18] his conditional release. Pet. at 13. At the TRO stage of this case, the Court accepted Uc’s [19] argument. See Order Granting TRO at 7 (noting that “[n]umerous courts in this district [20] agree” that an individual like Uc “retains a weighty liberty interest under the Due Process [21] Clause of the Fifth Amendment in avoiding re-incarceration.”); see also Transcript at 2:25 [22] (“you know, he does have a protectable liberty interest now under the case law.”). [23] However, the Court notes that Uc’s release on bond “was always subject to direct [24] review and, therefore, the possibility of reversal.” Ret. (dkt. 22) at 9. It is therefore [25] meaningfully different from the interest at issue in Morrissey v. Brewer, 408 U.S. 471 26 (1972). Morrissey involved subsequent revocation of post-release parole for alleged [27] violation of parole conditions, not appellate review of the original decision to parole the 1 petitioner. The court observed that implicit in the parole system is the “notion that the 2 parolee is entitled to retain his liberty as long as he substantially abides by the conditions 3 of his parole.” Id. at 479 . Here, though, Uc always knew that his release was subject to 4 appellate review. He cannot reasonably “claim that the government promised him ongoing 5 freedom or that he reasonably believed he would remain at liberty even after the BIA’s 6 decision so long as he complied with the terms of his conditional release.” Ret. at 123; cf. 7 Reyes v. King, No. 19 Civ. 8674 (KPF), 2021 WL 3727614 , at *11 (S.D.N.Y. Aug. 20, 8 2021) (no “due process right to a pre-detention hearing where a noncitizen, subject to 9 pending removal proceedings and in the midst of litigating a dispute over the BIA’s 10 decision to revoke his bond, is at risk of being re-detained after being at liberty for more 11 than two years.”). 12 That Uc is seeking a bond hearing following the BIA’s routine and foreseeable 13 appellate review4 distinguishes Uc’s case from some of the other cases in this district upon 14 which he relies. For example, in Ortega v. Bonnar, 415 F. Supp. 3d 963 , 969–70 (N.D. 15 Cal. 2019 ), Judge Orrick was considering a petitioner’s liberty interest in remaining out on 16 bond where the IJ initially granted bond but then reconsidered and vacated the bond order 17 in light of the Supreme Court’s opinion in Jennings v. Rodriguez, 415 F. Supp. 3d 963 , 18 966 (N.D. Cal. 2019). Ortega explicitly did not involve a challenge to the initial detention 19 or bond decision. Id. at 969 ; see also Vargas v. Jennings, No. 20-cv-5785-PJH, 2020 WL 20 5074312, at *1 (N.D. Cal. Aug. 23, 2020) (IJ sua sponte reconsidered release on bond; 21 appeal to BIA remained pending). [23] 3 Uc does not agree that reliance is relevant to whether or not he has a liberty interest. See Traverse at 6–7. Even so, he argues, ICE’s conduct, chiefly its decision not to seek a stay 24 of the IJ’s decision, led him to “reasonably believe he would not be re-detained without some process.” Id. at 7 . But that belief was not reasonable. ICE is not the BIA. However 25 else ICE chose to proceed, it appealed the IJ’s order to the BIA, arguing that Uc was a danger to the community. See Ex R at 82 of 192. The BIA was inevitably going to rule on 26 the appeal. There was no implicit promise to Uc about the outcome of that ruling. Uc’s release on bond pending appeal is not equivalent to the situation in Morrissey. See 27 Morrissey, 408 U.S. at 479 . 4 The Court means only that, following ICE’s appeal of the IJ’s order, it was no surprise 1 Uc’s position also differs from the petitioner in Jorge M.F. v. Jennings, 534 F. Supp 2 3d 1050 (N.D. Cal. 2021). The petitioner there was detained pending removal proceedings 3 pursuant to 8 U.S.C. § 1226 (a), a statute that provides a mechanism for a custody 4 determination by an IJ. The government there acknowledged that if the petitioner was 5 taken into custody, “ICE would be required to give [him] the option of requesting a review 6 of his custody determination,’” and so Judge Tigar commented that “[t]he only difference 7 in the parties’ positions is . . . whether a hearing to review Petitioner’s custody 8 determination would occur before or after detention.” 534 F. Supp. 3d at 1055. Here, Uc 9 was detained pursuant to 8 U.S.C. § 1231 (a), and the Supreme Court recently clarified that 10 noncitizens detained pursuant to § 1231 do not have a statutory right to a bond hearing 11 after six months. See Johnson v. Arteaga-Martinez, 142 S. Ct. 1827, 1830 (2022); see also 12 Diouf v. Napolitano, 634 F.3d 1081 , 1086–87 (9th Cir. 2011) (“at the margin, § 1231(a)(6) 13 detainees have a lesser liberty interest in freedom from detention” than § 1226(a) detainees 14 where prolonged detention is not at issue). 15 While the Court continues to believe that Uc has a liberty interest, that interest is 16 not as weighty as some. 17 2. Bond Hearing 18 The second Mathews factor is “the risk of an erroneous deprivation of such interest 19 through the procedures used, and the probable value, if any, of additional or substitute 20 procedural safeguards.” 424 U.S. at 335 . Uc argues that he risks an erroneous deprivation 21 of his liberty interest without an additional bond hearing. But Uc had a bond hearing 22 before an IJ and an appeal. He was represented by counsel at both, submitted evidence, 23 and received decisions on the merits. There is little risk of erroneous deprivation given 24 such procedures. Moreover, a party who contends that the BIA requires further factfinding 25 may file a motion for remand, see 8 C.F.R. § 1003.1 (d)(3)(iv), something Uc did not do.5 [27] 5 Uc argues that it is “absurd” for the government to argue that it was Uc’s duty to seek a remand for additional factfinding, particularly as Uc had prevailed before the IJ. See 1 While additional procedural safeguards such as a post-appeal bond hearing—at which an IJ 2 could consider Uc’s entire history up until the date of that hearing—would have probative 3 value, such procedures would also be problematic, as described below. Moreover, Uc has 4 additional process available to him should he be re-detained: he can submit a re-evaluation 5 request to ICE, see 8 C.F.R. §§ 241.13 (d)(1) & (j), and he can file a petition for habeas 6 corpus if he believes his detention is unconstitutional. 7 The third Mathews factor is “the Government’s interest, including the function 8 involved and the fiscal and administrative burdens that the additional or substitute 9 procedural requirement would entail.” 424 U.S. at 335 . Uc contends that the government 10 interest is “de minimis and far outweighed by Mr. Uc’s interest in his freedom.” Traverse 11 at 11. But the government’s interest in being able to “meaningfully appeal an IJ’s bond 12 determination to the BIA,”6 Ret. at 17 (citing 8 C.F.R. § 1003.1 (b), (d)), would be 13 seriously undermined should this Court order that whenever the BIA reverses an IJ’s bond 14 order, a petitioner cannot be re-detained unless there is another IJ bond hearing. 15 Such a holding would be problematic for at least two reasons. First, it would thwart 16 the Congressional design. Congress decided to entrust final review of bond decisions to 17 the BIA. The government is permitted by law to appeal an IJ’s bond decisions to the BIA, 18 see 8 C.F.R. § 1003.1 (b), and the BIA is to “function as an appellate body charged with the 19 review of those administrative adjudications,” see 8 C.F.R. § 1003.1 (d). Second, such a 20 holding makes little practical sense. It would mean that all that the BIA could do would be 21 to effectively remand the case to the IJ for further proceedings, and if the IJ again ordered 22 Uc released, and ICE appealed, BIA could again only effectively remand for further 23 proceedings. The BIA’s decision would never be final. See Transcript at 7:5–8:2 (“this [25] 6 The Court previously characterized the government interest by quoting from Ortega. Order Granting TRO at 8–9 (quoting Ortega, 415 F. Supp. 3d at 970) (“the government’s 26 interest in re-arresting Ortega without a hearing before an IJ is low.”). But as discussed above, Ortega did not involve a petitioner’s request for a bond hearing following the BIA’s 27 on-the-merits reversal of an IJ’s bond order. See 415 F. Supp. 3d at 969–70. While the government’s interest in re-arresting Ortega following an IJ’s reconsideration and vacation 1 thing just bounces back. There is no logic behind it because the statutory scheme actually 2 envisions that the BIA decision is a final decision.”). 3 Accordingly, Uc’s liberty interest does not entitle him to an additional bond hearing 4 with an IJ before he can be re-detained following the BIA’s order reversing his release on 5 bond.7 6 B. Count Two: BIA Order Itself 7 Uc next argues that the BIA order of June 23, 2022, which reversed the IJ’s bond 8 order, is legally infirm and independently violates due process. Congress precludes 9 judicial review of BIA discretionary decisions in post-removal proceedings, see 8 U.S.C. § 10 1252(a)(2)(B), 8 U.S.C. § 1226 (e), but the Court retains jurisdiction where there are 11 constitutional claims or questions of law, see Singh, 638 F.3d at 1202. Even so, “a 12 petitioner may not create the jurisdiction that Congress chose to remove simply by 13 cloaking an abuse of discretion argument in constitutional garb.” Torres-Aguilar v. INS, [14] 246 F.3d 1267, 1271 (9th Cir. 2001). “A decision by the BIA . . . violates due process if 15 the proceeding was so fundamentally unfair that the alien was prevented from reasonably [17] 7 The Court recognizes that this result may appear especially unfortunate because nearly two years passed between the IJ’s bond decision and the BIA’s reversal of that bond 18 decision on appeal, and because Uc did so well during that time. But the Court has no reason to believe that a twenty-two month delay is especially unusual. See Ret. at 12 19 (asserting that it is not) (citing Cong. Res. Serv., U.S. Immigration Courts and the Pending Cases Backlog 1, 17–18 (Apr. 25, 2022), available at 20 https://crsreports.congress.gov/product/pdf/R/R47077; U.S. Dep’t of Justice, Office of the Inspector General, Management of Immigration Cases and Appeals by the Executive 21 Office of Immigration Review iii (Oct. 2012), available at https://oig.justice.gov/reports/2012/e1301.pdf); but see Traverse at 10 n.3 (“Appeals 22 involving detention issues are an agency priority and tend to resolve much more quickly”). Nor does the Court find it unconstitutional. There will always be some period of time 23 between the IJ’s decision and the BIA’s decision, during which a petitioner out on bond will live his or her life. Uc made the most of his time. But his argument that “[t]he 24 regulations allowed ICE to seek an automatic stay of release pending appeal . . . which would have prevented Mr. Uc’s release from the start,” see Traverse at 12, cannot really 25 have been his preference. Indeed, the government notes that “[b]ecause the BIA prioritizes appeals involving detained noncitizens, and because Petitioner was initially 26 released on bond, the appeal of Petitioner’s bond decision likely took more than one year longer than it would have if Petitioner had been in custody.” Ret. at 13 n.6. As the Court 27 noted at the motion hearing, a holding that “two years is too long,” could also lead to consequences unintended by Uc, in which people in Uc’s position are deported much more 1 presenting his case.” Id. at 1270 . 2 Uc argues that the BIA order violates his due process rights because (1) it failed to 3 apply clear error review, (2) it failed to consider the passage of time, and (3) it has a 4 “policy” of disregarding evidence of a petitioner’s rehabilitation while incarcerated. Pet. at 5 24–28. 6 First, the BIA did not apply the incorrect standard of review. It stated as an initial 7 matter that it reviewed “findings of fact determined by an Immigration Judge, including 8 credibility findings, under a ‘clearly erroneous’ standard,” and questions of law de novo. 9 Pet. Ex. R (dkt. 1-2) at 82 of 192. Although the order made a somewhat confusing 10 reference to de novo review, it did so in the same breath that it said that the IJ had “clearly 11 erred,” id. at 82 of 192 (“Upon de novo review, we agree with DHS that the Immigration 12 Judge clearly erred in granting the respondent bond because it met its burden of 13 establishing that the respondent is a danger to the community.”), and before it went on to 14 conclude that “her assessment of the respondent’s future dangerousness is clearly 15 erroneous,” citing to a case that it characterized as holding that “an Immigration Judge’s 16 factual findings in bond proceedings are subject to clear error review,” id. at 83 of 192. 17 That is adequate. See Martinez v. Clark, 36 F.4th 1219 , 1230–31 (9th Cir. 2022) (“we 18 accept that the BIA ‘applied the correct legal standard’ if the BIA ‘expressly cited and 19 applied [the relevant caselaw] in rendering its decision.’”). 20 Second, Uc is correct that the BIA’s order did not consider the passage of nearly 21 two years’ time when evaluating Uc’s dangerousness. See Ex. R. But Uc cites to no 22 authority holding that the BIA was required to do so. See Pet. at 25–26 (collecting cases 23 holding that an IJ should do so). Singh, 638 F.3d at 1206, which Uc cites, Mot. for TRO at 24 20; Pet. at 25; Traverse at 14, only holds that “immigration judges [should] consider . . . 25 the recency” of criminal activity—it says nothing of the BIA. In re Guerra, 24 I&N Dec. 26 37 at *3 (2006), which Uc also cites, see Mot. for TRO at 20; Pet. at 25; Traverse at 14, 27 also lists “the recency of” criminal activity as a factor that “[i]mmigration judges may look 1 || Supp. 3d 1024, 1036 (W.D. Wash. 2019), which Uc cites as support for his assertion that 2 || “the BIA committed .. . legal error that deprived Mr. Uc of due process,” see Traverse at 3 || 14, also involves an IJ’s erroneous recency analysis. The BIA is an appellate body and is 4 || not permitted to engage in factfinding. See 8 C.F.R. § 1003.1 (d)(1). While it apparently 5 || could have remanded to an IJ for more factfinding, see 8 C.F.R. § 1003.1 (d)(3)(iv); Centro 6 || Legal de la Raza, et al. v. Exec. Off. for Immigration Review, 524 F. Supp. 3d 919 □□□□□ 7 || Cal. 2021), Uc cites to no authority requiring it to do so.® 8 Third, there is no evidence that the BIA has a blanket policy of dismissing evidence 9 || of rehabilitation in custody out of hand. The BIA stated in Uc’s order that “it is difficult to 10 credit this length of sobriety due to the respondent’s incarceration,” and cited to previous 11 || BIA decisions giving diminished weight to sobriety or good behavior while in custody. 12 || See Ex. R at 33 of 192 to 84 of 192. That statement is not unconstitutional. 13 Accordingly, the BIA’s order was not “so fundamentally unfair that [Uc] was 14 || prevented from reasonably presenting his case.” See Torres-Aguilar, 246 F.3d at 1270 . 215 C. Count Three: APA Claim 16 Finally, Uc argues that “[flor the same reasons the BIA’s decision violated due 5 17 || process, it was arbitrary and capricious under the APA.” Traverse at 15. The government 18 |] responds that Uc’s APA claim fails under 5 U.S.C. § 704 , which provides that an APA 19 |} claim is only viable where “there is no other adequate remedy.” Ret. at 22-23. Even 20 || assuming that an APA claim could be viable, this one is not. For the same reasons the 21 || BIA’s decision did not violate due process, it also did not violate the APA. 22 || IV. CONCLUSION 23 For the foregoing reasons, the Court DENIES the habeas petition. 24 IT IS SO ORDERED. 25 Dated: October 14, 2022 xo CHARLES R. BREYER 26 United States District Judge [27] 28 ll 8 Nor did Uc do so.