Doe v. Becerra

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 JOHN DOE, Case No. 23-cv-02382-DMR 8 Plaintiff, ORDER ON PETITION FOR WRIT OF 9 v. HABEAS CORPUS 10 MOISES BECERRA, et al., Re: Dkt. No. 1 11 Defendants. 12 Petitioner John Doe1 is a noncitizen from Mexico who is currently in Immigration and 13 Customs Enforcement (“ICE”) custody pending the conclusion of his removal proceedings. 14 Respondents are Moises Becerra, Field Office Director of ICE’s San Francisco Field Office; 15 Alejandro Mayorkas, Secretary of the Department of Homeland Security (“DHS”); Tae D. 16 Johnson, Acting Director of ICE; and Merrick B. Garland, the United States Attorney General. 17 On May 16, 2023, Petitioner filed a petition for writ of habeas corpus pursuant to 28 18 U.S.C. § 2241 in which he asks the court to order his release from custody within 14 days unless 19 the government schedules a bond hearing at which it “must establish by clear and convincing 20 evidence that [he] presents a risk of flight or danger” in order to continue his detention. [Docket 21 No. 1 (Petition) ¶ 2, Prayer.] The parties filed a stipulated briefing schedule on the petition which 22 the court entered on May 22, 2023. [Docket No. 12.] 23 This matter is fully briefed and is suitable for resolution without a hearing. Civ. L.R. 71(b). For the following reasons, the habeas petition is granted. [26] 1 Petitioner filed an unopposed administrative motion to proceed under a pseudonym in these proceedings, arguing that disclosure of confidential information related to his applications for [27] relief from removal will put him at increased risk of harm if he is deported to Mexico, worsen his I. BACKGROUND [1] Petitioner was born in Mexico in 1987. While he was a child living in Mexico, his cousin [2] Mauricio sexually abused him. Petitioner left for the United States in 1995 and joined his father in [3] Salinas, California. Petition ¶¶ 19-20. He became a lawful permanent resident in 2000. Id. at ¶ [4] 18. Petitioner experienced additional sexual abuse during his childhood after he came to the [5] United States. Id. at ¶ 20 . In 2010, Petitioner was recovering from a work-related injury and [6] began babysitting Mauricio’s three-year-old daughter. In June 2010, Petitioner was playing with [7] his own son and Mauricio’s daughter. While playing, Petitioner “pulled [the daughter’s] [8] underpants roughly for several seconds” and injured her. Id. at ¶¶ 22, 23 . Later that evening, the [9] mother of the victim noticed bleeding in the victim’s vagina and took her to the hospital. [10] Petitioner was eventually arrested and charged with multiple felony counts of sexual assault. He [11] pled guilty to two counts of violating California Penal Code section 288(a) (lewd or lascivious acts [12] upon a child) and one count of violating California Penal Code section 273a(a) (great bodily harm [13] to child) and was sentenced to over 11 years in prison. Id. at ¶ 24, 25 ; Ex. E. He was released on [14] parole in March 2020 after serving ten years of his sentence. Petition ¶ 27. After his release, [15] Petitioner “engaged in intensive rehabilitation, and was regularly tested for drugs, subjected to [16] monitoring, and required to attend weekly classes.” Id. at ¶ 28 . [17] Petitioner contends that Mauricio and his family have repeatedly threatened to kill [18] Petitioner since the assault on Mauricio’s daughter. Id. at ¶ 31 . He further contends that [19] “Mauricio’s family has the means to carry out their threats” because Mauricio’s father has ties to [20] organized crime in Mexico. Id. at ¶ 32 . [21] On June 1, 2021, DHS charged Petitioner as removable pursuant to 8 U.S.C. § 22 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony (violation of California Penal [23] Code section 288(a)) and issued a Notice to Appear. Id. at ¶ 35 , Ex. D (Notice to Appear, [24] “NTA”). DHS detained Petitioner the same day and transferred him to Golden State Annex. [25] Petition ¶ 34. According to DHS Deportation Officer Daniel Martinez, ICE conducted a custody [26] determination when Petitioner was taken into custody in light of the requirements imposed in [27] Fraihat v. U.S. Immigration & Customs Enforcement, 445 F. Supp. 3d 709 , 751 (C.D. Cal. 2020), 1 rev’d and remanded, 16 F.4th 613 (9th Cir. 2021), regarding custody determinations for 2 immigration detainees with risk factors for COVID-19. [Docket No. 13-2 (Martinez Decl. June 6, 3 2023) ¶ 8.] Martinez states that ICE determined that Petitioner would remain in custody “due to 4 public safety.” Id. According to Martinez, ICE again reviewed Petitioner’s custody status on June 5 9, 2021 and determined that he would remain in custody “[d]ue to public safety.” Id. at ¶ 10. 6 On April 14, 2023, Petitioner filed a request for release with ICE and supported his request 7 with a letter of support from the Assistant Facility Administrator at Golden State Annex 8 describing his “exemplary behavior.” Petition ¶ 44, Exs. R, S. ICE denied the request on May 24, 9 2023. Martinez Decl. ¶ 17. 10 At the time Respondent filed the instant petition, he had been detained for over 23 months. 11 A. Removal Proceedings 12 On September 2, 2023, an immigration judge (“IJ”) found Petitioner statutorily ineligible 13 for a custody redetermination based on his criminal conviction pursuant to 8 U.S.C. § 1226 (c). 14 Martinez Decl. ¶ 11, Ex. 2. Petitioner appealed the IJ’s decision to the Board of Immigration 15 Appeals (“BIA”), which denied the appeal on January 31, 2022. Petition ¶ 35, Ex. C (Ugarte 16 Decl. May 15, 2023) ¶ 10; Martinez Decl. ¶ 12, Ex. 3. 17 Petitioner filed an application for deferral of removal under the Convention Against 18 Torture (“CAT”) and sought re-adjustment of status with a waiver of inadmissibility. Petition ¶ 19 36, Ugarte Decl. ¶¶ 16, 17. Following evidentiary hearings in June and July 2022, an IJ denied his 20 applications for relief on September 7, 2022 and ordered him removed to Mexico. Petition ¶ 37, 21 38, Ex. M. Petitioner appealed the decision to the BIA, which affirmed the IJ decision and 22 dismissed the appeal on February 14, 2023. Petition ¶ 41, Ex. O. Petitioner filed a petition for 23 review of the BIA’s decision with the Ninth Circuit Court of Appeals and moved the court to stay 24 his removal. Petition ¶ 42, Exs. P, Q. The Ninth Circuit issued a temporary stay of removal on 25 February 23, 2023. Petition Ex. Q. The briefing on the appeal is due to be completed in mid26 September. Ugarte Decl. ¶ 31. 27 B. Details of Petitioner’s Confinement 1 McFarland, California. [Docket No. 13-1 (Gonzalez Decl. June 7, 2023) ¶ 4.] Golden State is 2 managed by The GEO Group, Inc. (“GEO”), an independent contractor. The warden, known as 3 the “Facility Administrator,” is a GEO employee based in McFarland. Id. McFarland is in Kern 4 County, which is in the Eastern District of California. [See Docket No. 13 (Return to Petition, 5 “Return”) 3.] 6 DHS Acting Assistant Field Office Director Nancy Gonzalez is based in Bakersfield, 7 California. She is assigned to the Bakersfield Sub-Office within ICE’s Enforcement and Removal 8 Operations, San Francisco Field Office. The Bakersfield Sub-Office is responsible for oversight 9 of noncitizens detained at Golden State. Gonzalez Decl. ¶ 1. Gonzalez states that she supports the 10 Deputy Field Office Director and Field Office Director “in managing operations and procedures of 11 enforcement and removal activity” throughout her area of responsibility, which includes 12 “providing oversight and supervision of Supervisory Detention and Deportation Officers and their 13 staff who maintain the docket management of ICE detainees at Golden State.” Id. According to 14 Gonzalez, she and her staff “directly liaise with the Golden State Facility Administrator and other 15 GEO personnel regarding the detainees at Golden State.” Id. at ¶ 5 . 16 Gonzalez’s direct line supervisor, Deputy Field Office Director Orestes Cruz, is based in 17 Bakersfield. Id. at ¶ 6 . Cruz is responsible for ICE immigration enforcement operations within 18 nine counties, including Kern County. Cruz directly reports to Respondent Moises Becerra, Field 19 Office Director (“FOD”) of the “San Francisco Area of Responsibility,” which encompasses 20 offices in seven cities in California, as well as Hawaii, Guam, and the Northern Mariana Islands. [21] Id. at ¶¶ 6-8 . Gonzalez states that Becerra is responsible for the management and direction of all 22 enforcement and removal operations and law enforcement operations within the boundaries of the 23 San Francisco Area of Responsibility. Id. at ¶ 8 . 24 C. The Habeas Petition 25 On May 16, 2023, Petitioner filed a petition for writ of habeas corpus in which he asks the 26 court to order his release from custody within 14 days unless Respondents schedule a bond 27 hearing before an IJ at which the government must “justify his continued detention by clear and 1 prolonged detention without a hearing violates the Fifth Amendment’s Due Process Clause. 2 II. JURISDICTION OVER THE PETITION 3 Petitioner filed his habeas petition pursuant to 28 U.S.C. § 2241 , which allows “the 4 Supreme Court, any justice thereof, the district courts and any circuit judge” to grant writs of 5 habeas corpus “within their respective jurisdictions.” 28 U.S.C. § 2241 (a). A district court may 6 grant a writ of habeas corpus when the petitioner “is in custody in violation of the Constitution or 7 laws or treaties of the United States.” 28 U.S.C. § 2241 (c)(3). Here, Petitioner asserts that his 8 continued detention violates his due process rights under the Fifth Amendment of the United 9 States Constitution and does not ask this court to defer removal. See Petition ¶¶ 2, 4, 46-60; 10 Petition 20-22. The Ninth Circuit has held that “district courts retain jurisdiction under 28 U.S.C. 11 § 2241 to consider habeas challenges to immigration detention that are sufficiently independent of 12 the merits of [a] removal order[.]” Lopez-Marroquin v. Barr, 955 F.3d 759 (9th Cir. 2020) (citing 13 Singh v. Holder, 638 F.3d 1196, 1211-12 (9th Cir. 2011)). Therefore, the court has subject matter 14 jurisdiction pursuant to Section 2241. See, e.g., Hilario Pankim, No. 20-cv-02941-JSC, 2020 WL 15 2542022, at *4 (N.D. Cal. May 19, 2020) (concluding that court had subject matter jurisdiction 16 over Section 2241 petition where noncitizen detainee argued his continued detention violated his 17 constitutional rights). 18 Nonetheless, Respondents contend that the court lacks jurisdiction over the habeas petition 19 because “jurisdiction lies in only one district: the district of confinement,” which is the United 20 States District Court for the Eastern District of California. Return 1, 3-5. Respondents make a 21 related argument that the warden of GSA, whom they do not identify, or the Assistant Field Office 22 Director (presumably, Acting Assistant Field Office Director Nancy Gonzalez) are proper 23 respondents for Petitioner’s habeas petition, not FOD Becerra. Id. at 5 n.1. As an alternative to 24 dismissal, Respondents argue that the court should transfer the petition to the Eastern District. Id. at 5 . Respondents primarily rely on Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004), and Lopez25 Marroquin, 955 F.3d at 759 in support of their jurisdiction and venue arguments. Id. at 4-5. [26] This court rejected the government’s nearly identical arguments in Salesh P. v. Kaiser, No. [27] 1 Aug. 21, 2023, and concluded that the FOD of the San Francisco office with “ultimate control over 2 [Golden State]” was the proper respondent in a Section 2241 petition filed by a noncitizen 3 detained at Golden State, which is located in the Eastern District. See id. (collecting cases). 4 Respondents offer no facts or argument that support a different outcome here. Accordingly, the 5 court concludes that the Northern District is the proper forum for this petition. 6 III. MERITS OF THE PETITION 7 A. Legal Framework for Entitlement to a Bond Hearing 8 The INA provides a “complex statutory framework of detention authority” codified at 8 9 U.S.C. §§ 1226 and 1231. Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). Where a 10 noncitizen falls within the statutory scheme “can affect whether his detention is mandatory or 11 discretionary, as well as the kind of review process available to him if he wishes to contest the 12 necessity of his detention.” Id. In general, section 1226(a) governs detention during the pendency 13 of a noncitizen’s removal decision, and section 1231 governs detention following the issuance of a 14 final removal order. 15 Section 1226(a) provides the Attorney General with discretionary authority to arrest and 16 detain a noncitizen “pending a decision on whether the alien is to be removed from the United 17 States.” 8 U.S.C. § 1226 (a); Prieto-Romero, 534 F.3d at 1057 . A noncitizen detained pursuant 18 to section 1226(a) can appeal ICE’s initial custody determination to an immigration judge, who is 19 authorized to “release the alien, and determine the amount of bond, if any, under which the 20 respondent may be released.” 8 C.F.R. § 1236.1 (d)(1); see also 8 C.F.R. § 1003.19 (a) (granting 21 immigration judges jurisdiction to review custody and bond determinations). By contrast, section 22 1226(c) mandates detention for noncitizens who have committed certain criminal offenses. 8 23 U.S.C. § 1226 (c). A noncitizen subject to mandatory detention under section 1226(c) can only be 24 released for witness protection purposes and if the noncitizen “will not pose a danger to the safety 25 of other persons or of property and is likely to appear for any scheduled proceeding.” 8 U.S.C. § 26 1226(c)(2). 27 The Supreme Court and the Ninth Circuit have long “grappled in piece-meal fashion with 1 detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez v. 2 Hayes (“Rodriguez I”), 591 F.3d 1105, 1114 (9th Cir. 2010). In 2015, the Ninth Circuit 3 considered the procedural protections available to noncitizens detained under 8 U.S.C. §§ 1225 (b) 4 and 1226(c). See Rodriguez v. Robbins (“Rodriguez III”), 804 F.3d 1060 (9th Cir. 2015), reversed 5 by Jennings v. Rodriguez, 138 S. Ct. 830 (2018). In Rodriguez III, a certified class of noncitizens 6 challenged their prolonged detentions pursuant to 8 U.S.C. §§ 1225 (b), 1226(a), 1226(c), and 7 1231(a) without the provision of individualized bond hearings.2 804 F.3d at 1065 . Following the 8 entry of a preliminary injunction, which was affirmed on appeal, see Rodriguez v. Robbins 9 (“Rodriguez II”), 715 F.3d 1127 (9th Cir. 2013), the district court granted summary judgment to 10 the class and entered a permanent injunction requiring the government to provide a bond hearing 11 to any class member subject to detention longer than six months. 804 F.3d at 1065 . The 12 government was ordered to provide each detainee with a bond hearing by his or her 195th day of 13 detention, with such hearings occurring automatically after notice. Id. at 1072 . The district court 14 also required the government to prove by clear and convincing evidence that the detainee was a 15 flight risk or a danger to the community in order to justify the denial of bond. Id. at 1071 . The 16 government appealed from the entry of the permanent injunction, and the class cross-appealed the 17 district court’s denial of certain procedural requirements for bond hearings. Id. at 1072-73 . [18] 2 Section 1225(b) “applies to ‘applicants for admission’ who are stopped at the border or a port of [19] entry, or who are ‘present in the United States’ but ‘ha[ve] not been admitted.’” Rodriguez III, 804 F.3d at 1081 (quoting 8 U.S.C. § 1225 (a)(1)). “The statute provides that asylum seekers ‘shall [20] be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.’” Id. (quoting 8 U.S.C. § 1225 (b)(1)(B)(iii)(IV)). As to all other such [21] applicants for admission, the statute provides for mandatory detention “if the examining immigration officer determines that [the individuals] seeking admission [are] not clearly and [22] beyond a doubt entitled to be admitted.” 8 U.S.C. § 1225 (b)(2)(A). [23] As discussed above, 8 U.S.C. § 1226 (c) “requires that the Attorney General detain any non-citizen who is inadmissible or deportable because of his criminal history upon that person’s [24] release from imprisonment, pending proceedings to remove him from the United States.” Rodriguez III, 804 F.3d at 1078, n.8 . Detention under section 1226(c) is mandatory and [25] individuals detained under that section may be released only if the government deems it “necessary” for witness protection purposes. Id. at 1078 (citing 8 U.S.C. § 1226 (c)(2)). [26] Section 1226(a) provides that a noncitizen “may be arrested and detained pending a [27] decision on whether the alien is to be removed from the United States.” Section 1231(a) governs 1 In relevant part, the Ninth Circuit court affirmed summary judgment and the entry of the 2 permanent injunction as to the section 1226(c), 1225(b), and 1226(a) subclasses. Relying on the 3 canon of constitutional avoidance, the court construed sections 1225(b) and 1226(c) as imposing a 4 six-month time limit on detention, after which the government may continue detention only under 5 the authority of section 1226(a). Id. at 1079, 1082 . The court re-affirmed its decision in Casas 6 that a noncitizen “subjected to prolonged detention under § 1226(a) is entitled to a hearing to 7 establish whether continued detention is necessary because he would pose a danger to the 8 community or a flight risk upon release.” Id. at 1085 (citing Casas, 535 F.3d at 949-52). The 9 court thereby affirmed the district court’s permanent injunction requiring the government to hold 10 bond hearings every six months for noncitizens detained pursuant to sections 1226(c), 1225(b), 11 and 1226(a). Id. at 1090. The court also affirmed the requirement that the government “prove by 12 clear and convincing evidence that an alien is a flight risk or a danger to the community to justify 13 denial of bond at a Casas hearing.” Id. at 1087 (quoting Rodriguez II, 715 F.3d at 1135 (quoting 14 Singh, 638 F.3d at 1203 )). 15 The Supreme Court reversed Rodriguez III in Jennings. The Court found that the Ninth 16 Circuit had misapplied the canon of constitutional avoidance as to sections 1225(b), 1226(c), and 17 1226(a), and determined that “its interpretations of the three provisions at issue . . . are 18 implausible.” 138 S. Ct. at 842 . As to section 1225(b), which “applies primarily to aliens seeking 19 entry into the United States,” the Court noted that the statute divides applicants into two 20 categories: section 1225(b)(1) provides that certain noncitizens claiming a credible fear of 21 persecution “shall be detained for further consideration of the application for asylum,” while 22 section 1225(b)(2) provides that noncitizens who fall within the scope of that provision “shall be 23 detained for a [removal] proceeding.” Id. (emphasis added) (quoting 8 U.S.C. §§ 24 1225(b)(1)(B)(ii), 1225(b)(2)(A)). The Court found that “[r]ead most naturally, §§ 1225(b)(1) and 25 (b)(2) mandate detention of applicants for admission until certain proceedings have concluded.” 26 Id. The Court rejected the argument that those provisions contain an implicit six-month limit on 27 the length of detention, observing that “nothing in the statutory text imposes any limit on the 1 842, 843. As to the canon of constitutional avoidance, the Court held that “[s]potting a 2 constitutional issue does not give a court the authority to rewrite a statute as it pleases . . . 3 [i]nstead, the canon permits a court to ‘choos[e] between competing plausible interpretations of a 4 statutory text.’” Id. at 843. The Court concluded that sections 1225(b)(1) are 1225(b)(1) are not 5 ambiguous, and that “neither provision can reasonably be read to limit detention to six months.” 6 Id. at 843-844 (contrasting section 1225(b), which provides that noncitizens “shall be detained” 7 for further proceedings, with section 1231(a)(6), which provides that noncitizens “may be 8 detained” after the completion of the removal period). 9 Similarly, the Court held that section 1226(c), which applies to noncitizens already present 10 in the United States, could not plausibly be construed to include an implicit six-month time limit 11 on the length of mandatory detention. Id. at 846-47. As to section 1226(a), the Court noted that 12 “[f]ederal regulations provide that [noncitizens] detained under § 1226(a) receive bond hearings at 13 the outset of detention.” Id. at 847. The Court held that “[n]othing in § 1226(a)’s text . . . 14 supports the imposition” of the procedural protections ordered by the Ninth Circuit—“namely, 15 periodic bond hearings every six months in which the Attorney General must prove by clear and 16 convincing evidence that the alien’s continued detention is necessary.” Id. 17 Jennings only entertained statutory challenges to the INA’s detention scheme and 18 remanded the question of whether prolonged detention without an individualized bond hearing 19 violates the due process clause of the Fifth Amendment. Upon remand, the Ninth Circuit stated its 20 “grave doubts that any statute that allows for arbitrary prolonged detention without any process is 21 constitutional” and remanded the issue to the district court to consider it in the first 22 instance. Rodriguez v. Marin (“Rodriguez IV”), 909 F.3d 252, 256 (9th Cir. 2018). 23 B. Discussion 24 The parties do not dispute that Petitioner is detained pursuant to the government’s 25 mandatory detention authority under section 1226(c). It is also undisputed that Petitioner has been 26 in custody for over two years without having been afforded a bond hearing. Petitioner argues that 27 his continued detention without such a hearing violates his Fifth Amendment due process rights. 1 balancing test of Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Petition ¶¶ 51-60. In the 2 alternative, Petitioner asks the court to find his detention without a bond hearing unconstitutional 3 because it has lasted for more than six months. See id. at ¶¶ 61-63. 4 In response, Respondents argue that mandatory detention under 8 U.S.C. § 1226 (c) is 5 constitutional as long as “it continues to ‘serve its purported immigration purposes,’” including 6 “ensuring a noncitizen’s appearance for removal proceedings and preventing the noncitizen from 7 committing further offenses.” Return 7 (citing Demore v. Kim, 538 U.S. 510, 527 (2003)). 8 Respondents contend that these purposes are served here. Id. at 7-8. They also argue that 9 “assuming, without conceding, that Mathews might apply, Petitioner’s detention is not 10 unconstitutional under that test.” Id. at 13. They also ask the court to reject a bright-line six 11 month rule. Id. at 11. 12 Demore provides little support for Respondents’ position. In Demore, the Supreme Court 13 held that mandatory detention under section 1226(c) for the “brief period necessary” to complete 14 removal proceedings is “constitutionally permissible” under the Fifth Amendment. 538 U.S. at 15 513, 531. The Supreme Court cautioned, however, that such detention has “a definite termination 16 point” and typically “lasts roughly a month and a half in the vast majority of cases in which it is 17 invoked, and about five months in the minority of cases in which the alien chooses to 18 appeal.” Id. at 529-30 . The Court accordingly concluded that the six-month detention at issue 19 constituted reasonable “temporary” confinement. Id. at 530-31 . Here, Petitioner has been 20 detained for over two years—a considerably longer period of time than the detention at issue in 21 Demore. See, e.g., Gonzalez v. Bonnar, No. 18-CV-05321-JSC, 2019 WL 330906 , at *4 (N.D. 22 Cal. Jan. 25, 2019) (noting that “[i]n contrast to the situation at the time Demore was decided, case 23 processing times today are considerably longer” and concluding that petitioner’s detention for over 24 one year without a bond hearing violated his due process rights). 25 As this court has previously observed, since Jennings, “there remains ‘a dearth of guidance 26 regarding the point at which an individual’s continued mandatory detention under Section 1226(c) 27 becomes unconstitutional.’” Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL 1677332 , at *7 1 authority establishing a bright-line rule for a due process right to receive periodic bond hearings, 2 the court finds that it is appropriate to conduct an individualized due process analysis under 3 Mathews, in which the Supreme Court held that “[t]he fundamental requirement of due process is 4 the opportunity to be heard at a meaningful time and in a meaningful manner.” 424 U.S. at 333 ; 5 see Salesh P., 2022 WL 17082375 , at *8 (collecting cases applying Mathews and applying its 6 test). See also Rodriguez Diaz v. Garland, 53 F.4th 1189 , 1206-07 (9th Cir. 2022) (noting the 7 common use of the Mathews test and assuming without deciding that it applies to due process 8 claims in the immigration detention context; observing, “Mathews remains a flexible test that can 9 and must account for the heightened governmental interest in the immigration detention context.”). 10 The three-part Mathews test requires courts to consider three factors: “First, the private 11 interest that will be affected by the official action; second, the risk of an erroneous deprivation of 12 such interest through the procedures used, and the probable value, if any, of additional or 13 substitute procedural safeguards; and finally, the Government’s interest, including the function 14 involved and the fiscal and administrative burdens that the additional or substitute procedural 15 requirement would entail.” Rodriguez Diaz, 53 F.4th at 1207 (emphasis in original) (quoting 16 Mathews, 424 U.S. at 335 ). 17 The first factor is Petitioner’s interest. Courts have held that there is a strong private 18 interest based on the duration of the detention. See De Paz Sales v. Barr, No. 19-cv-04148-KAW, [19] 2019 WL 4751894 , at *7 (N.D. Cal. Sept. 30, 2019) (finding a strong private interest where the 20 petitioner “risks continued detention absent a bond hearing”). “[L]iberty is the norm, and 21 detention prior to trial or without trial is the carefully limited exception.” Rodriguez IV, 909 F.3d 22 at 256-57 (quoting United States v. Salerno, 481 U.S. 739, 755 (1987)). Here, Petitioner has been 23 detained for over two years without a bond hearing, and there is no reasonably certain end to his 24 detention. This period of detention leans heavily toward finding a strong private interest at stake. 25 Lopez Reyes v. Bonnar, 362 F. Supp. 3d 762, 776 (N.D. Cal. 2019) (finding a strong private 26 interest where the petitioner had been detained 22 months and received his last bond hearing 16 27 months prior); Jimenez v. Wolf, No. 19-cv-07996-NC, 2020 WL 510347 , at *3 (N.D. Cal. Jan. 30, 1 unreasonable imprisonment” where he had been detained for one year without a bond hearing); 2 Doe v. Garland, No. 3:22-CV-03759-JD, 2023 WL 1934509 , at *2 (N.D. Cal. Jan. 10, 2023) 3 (finding “substantial” private interest where petitioner had been detained for 18 months without a 4 bond hearing; noting “[t]he government has not said why a delay of this magnitude is reasonable 5 under the circumstances, and did not proffer evidence that ‘there is [a] reasonably certain end to 6 his custody in sight.’” (citation omitted)). 7 Respondents do not meaningfully dispute that Petitioner has a strong private interest. They 8 assert that he “has made the decision to seek judicial review (and thus remain in custody in the 9 United States), which . . . diminishes his interest” and that his time in detention “is in large part 10 due to his own litigation choices in pursuing appeals to both the BIA and the Ninth Circuit.” 11 Return 14. Respondents’ argument is not persuasive. Petitioner’s exercise of his appeal rights “do 12 not diminish his significant liberty interest in his release or his irreparable injury of continued 13 detention without a bond hearing.” See Hernandez Gomez v. Becerra, No. 23-CV-01330-WHO, [14] 2023 WL 2802230 , at *4 (N.D. Cal. Apr. 4, 2023); Masood v. Barr, No. 19-cv-07623-JD, 2020 15 WL 95633 , at *3 (N.D. Cal. Jan. 8, 2020) (“it ill suits the United States to suggest that [petitioner] 16 could shorten his detention by giving up [his appeal] rights and abandoning his asylum 17 application.”). Accordingly, the court finds that the first Mathews factor weighs in Petitioner’s 18 favor. 19 The second factor looks at the value of additional safeguards given the risk of erroneous 20 deprivation of Petitioner’s rights. See Soto v. Sessions, No. 18-cv-02891-EMC, 2018 WL 21 3619727, at *3 (N.D. Cal. July 30, 2018); Rajnish v. Jennings, No. 3:20-CV-07819-WHO, 2020 22 WL 7626414 , at *9 (N.D. Cal. Dec. 22, 2020). Here, ICE last reviewed Petitioner’s detention on 23 June 9, 2021, over two years ago, see Martinez Decl. ¶ 10, but he has never received a bond 24 hearing to evaluate the necessity of his ongoing detention. The denial of his April 2023 request 25 for release is “not a substitute for an individualized bond hearing.” Rodriguez Picazo v. Garland, 26 No. 23-CV-02529-AMO, 2023 WL 5352897 , at *5 (N.D. Cal. Aug. 21, 2023) (citing Rajnish, [27] 2020 WL 7626414 , at *9). In these circumstances, the value of additional procedural 1 rights. See Rajnish, 2020 WL 7626414 , at *9 (holding that “the value added by another hearing is 2 great” where petitioner had been held for nine months since an initial bond hearing that “was 3 unconstitutional and assigned the risk of error to him, not to the government” and there had been 4 “important developments” in the proceedings since then). 5 The final factor addresses the government’s interest. Respondents argue that detention 6 serves the government’s interest in protecting the public from noncitizens who have been 7 convicted of crimes and preventing them from fleeing prior to or during their removal 8 proceedings. Return 16-17. However, “the governmental issue at stake in [these proceedings] is 9 the ability to detain Petitioner without providing him with [a] bond hearing, not whether the 10 government may continue to detain him” at all. Lopez Reyes, 362 F. Supp. 3d at 777 (emphasis in 11 original). Respondents do not explain how providing Petitioner with a bond hearing after more 12 than two years of detention would undermine its interest in enforcing immigration laws and 13 effecting removal. See Martinez Leiva v. Becerra, No. 23-CV-02027-CRB, 2023 WL 3688097 , at 14 *8 (N.D. Cal. May 26, 2023) (“Requiring the government to provide [Martinez Leiva] with a bond 15 hearing does not meaningfully undermine the government’s interest in detaining non-citizens who 16 pose a danger to the community or are a flight risk.” (quotation marks and citation omitted)). 17 “After all, the purpose of a bond hearing is to inquire whether the [noncitizen] represents a flight 18 risk or danger to the community.” Jimenez, 2020 WL 510347 , at *3 (observing that argument that 19 petitioner’s “continued detention remains constitutional because it serves an immigration purpose: 20 to assure his presence at removal . . . loses sight of what is at stake. [Petitioner] seeks a bond 21 hearing, not unqualified release.”). The court concludes that “[r]equiring the government to 22 provide [Petitioner] with a bond hearing does not meaningfully undermine the government’s 23 interest in detaining non-citizens who pose a danger to the community or are a flight risk.” Perera 24 v. Jennings, No. 21-CV-04136-BLF, 2021 WL 2400981 , at *5 (N.D. Cal. June 11, 2021). 25 Therefore, this factor is neutral at best. 26 Having considered and weighed the Mathews factors, the court concludes that Petitioner’s 27 continued detention without a bond hearing violates his due process rights under the Fifth 1 hearing, the government must justify his continued detention by establishing by clear and 2 || convincing evidence that he is a flight risk or a danger to the community pursuant to Singh, 638 3 || F.3d 1203. See id. at 1204 (observing that the “Supreme Court has repeatedly reaffirmed the 4 || principle that ‘due process places a heightened burden of proof on the State in civil proceedings in 5 || which the ‘individual interests at stake . . . are both particularly important and more substantial 6 than mere loss of money.’” (quoting Cooper v. Oklahoma, 517 U.S. 348, 363 (1996)). 7 || IV. CONCLUSION 8 For the foregoing reasons, the petition for a writ of habeas corpus under 28 U.S.C. § 2241 9 || is granted. Petitioner must be provided with a bond hearing before an immigration judge by 14 10 || days from the date of this order. At that hearing, DHS must establish by clear and convincing 11 evidence that Petitioner is a flight risk or a danger to the community in order to continue his 12 || detention. KS DISTR IG> > <0 IT IS SO ORDERED ey 14 . S & S sO ORDERED □ 15 Dated: September 1, 2023 ih □ 2 / > 16 lAfyeu aa & 7 boat □ A \ edition SY ibe od Key », □□ Z 18 OS □□ VORTICES