Rosas Rosas v. Becerra

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 OLIVER ROSAS ROSAS, Case No. 23-cv-04058-LB 12 Petitioner, ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS BASED 13 v. ON A VIOLATION OF PROCEDURAL DUE PROCESS 14 MOISES BECERRA, et al., Re: ECF No. 1 15 Respondents. [16] 17 INTRODUCTION 18 The petitioner is a Mexican national who has lived in the United States since he was three. In 19 May 2022, he completed a combined five-year state prison sentence based on two separate law20 enforcement encounters: (1) second-degree robbery and (2) carjacking and recklessly evading a 21 police officer. Since his release, he has been in the custody of U.S. Immigrations and Customs 22 Enforcement (ICE) at the privately owned Golden State Annex, which is the Eastern District of 23 California. He filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 on the ground that 24 his continued detention for over fifteen months violates his procedural and substantive due-process 25 rights. He asks for release or a bond hearing before an immigration judge. The government asks for 26 transfer to the Eastern District on the ground that a § 2241 petition lies against the custodian. It also 27 contends that continued detention is constitutionally permissible for persons (like the petitioner) 1 who committed aggravated felonies, have been ordered removed, and decide to contest their 2 removal through appeals. 3 The court grants the petition on the ground that the petitioner’s detention without an 4 individualized bond hearing violates his right to procedural due process. The court thus orders a 5 bond hearing before an immigration judge within ten days. [6] 7 STATEMENT 8 The petitioner, who is twenty-three, is a Mexican national who came to the United States when 9 he was three. Since then, he has lived in southern California with his family.1 He describes a 10 childhood marred by an abusive, alcoholic stepfather and relentless bullying at school, where he 11 was in special-education classes throughout most of elementary school because of his delayed 12 speech development. At age fourteen, he began associating with a gang, which made him feel safer. 13 His mother eventually applied for immigration relief under the Violence Against Women Act, and 14 the petitioner obtained Immigrant Juvenile Status.2 15 When he was eighteen, the petitioner and a friend fought with a fifteen-year-old boy at his 16 school and took his belongings. His school suspended him, and at a meeting with school officials 17 to discuss further discipline, the police arrested him. He was convicted on May 9, 2018, of second18 degree robbery, and the court ordered him to complete twenty days of community service. Less 19 than one month after his conviction, on June 5, 2018, the petitioner carjacked a car by brandishing 20 a kitchen knife that he carried for protection and threatening to kill the car’s sleeping inhabitant 21 unless he left the car. He took the car, the police pursued him, and he crashed the car into two 22 other parked cars after a chase that included speeds of up to eighty miles an hour and his running 23 two stop signs and a red light. He fled on foot until he was tackled by a police canine. Incident to 24 his arrest, the police found the knife and a vial of suspected methamphetamine. He was convicted [26] 1 Pet. – ECF No. 1 at 8 (¶ 25); Rosas Decl., Ex. A. to Sánchez Decl. – ECF No. 1-2 at 3 (¶ 1). Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page 27 numbers at the top of documents and sometimes also to the page numbers at the bottom of transcripts. 2 Pet. – ECF No. 1 at 8–9 (¶¶ 26–29); Rosas Decl., Ex. A. to Sánchez Decl. – ECF No. 1-2 at 4–5 1 on June 20, 2018, of felony carjacking and recklessly evading the police. His sentences were (1) 2 two years for second-degree robbery (because he could not complete the earlier-imposed twenty 3 days of community service) and (2) three years for the felony carjacking and reckless evasion.3 4 The petitioner finished his sentence on May 2, 2022. Because he had committed a crime of 5 moral turpitude, ICE detained him. On May 2 and 10, 2022, ICE reviewed his custody status and 6 determined that he would remain in custody as a risk to public safety. ICE housed him at the 7 privately owned Golden State Annex in McFarland, California, in the Eastern District of 8 California.4 9 On May 2, 2022, the Department of Homeland Security (DHS) placed the petitioner in 10 removal proceedings under § 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), 8 11 U.S.C. § 1182 (a)(1)(A) (making noncitizens inadmissible if they are present in the U.S. without 12 being admitted or parole into the country), and INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 13 1182(a)(2)(A)(i)(I) (making noncitizens removable if they commit a “crime of moral turpitude”).5 14 On May 12, 2022, the petitioner withdrew his request for a change in custody status.6 On 15 August 9, 2022, he submitted a release request to ICE. ICE denied release on August 11, 2022, on 16 the ground that the petitioner was subject to mandatory detention.7 17 The immigration judge set a July 19, 2022 hearing on the petitioner’s application for relief 18 from removal, which had not been filed yet, but then continued it to August 31, 2022, to allow the 19 petitioner to put on an expert witness.8 The judge continued it again to September 28, 2022, 20 apparently because the petitioner had not complied with the judge’s request to provide a statement [23] 3 Pet. – ECF No. 1 at 9 (¶¶ 30–31); Rosas Decl., Ex. A. to Sánchez Decl. – ECF No. 1-2 at 4–5 (¶¶ 14– 18); Martinez Decl. – ECF No. 14-1 at 3 (¶¶ 8–9); Certified Conviction Record, Ex. 1 to id. – ECF No. 24 14-1 at 9, 15, 26, 29–41). 4 Martinez Decl. – ECF No. 14-1 at 4 (¶¶ 14–15); Pet. – ECF No. 1 at 10 (¶ 34). [25] 5 Pet. – ECF No. 1 at 13 (¶ 47); Notice to Appear, Ex. B to Sánchez Decl. – ECF No. 1-2 at 20, 23. 26 6 Martinez Decl. – ECF No. 14-1 at 4 (¶ 16); IJ Order, Ex. 7 to Martinez Decl. – ECF No. 14-1 at 71. [27] 7 Martinez Decl. – ECF No. 14-1 at 5 (¶¶ 26–27). 8 Pet. – ECF No. 1 at 14 (¶ 51); Tr., Ex. D to Sánchez Decl. – ECF No. 1-2 at 33 (p. 6:3–22), 36–38 1 from the expert.9 On September 28, connection issues prevented the petitioner from joining the 2 hearing by video, and he did not agree to appear by telephone. As a result, the immigration judge 3 continued the hearing to October 12, 2022.10 The hearing resumed on October 12, 2022, the 4 petitioner asked to put on additional testimony, and the immigration judge continued the hearing 5 to December 6, 2022. The hearing concluded with closing arguments on December 7, 2022.11 On 6 December 23, 2022, the immigration judge ordered the petitioner removed from the United States 7 and denied his application for relief from removal.12 8 The petitioner appealed to the Board of Immigration Appeals on December 28, 2022. The Board 9 denied his appeal on May 10, 2023.13 Two days later, the petitioner petitioned for review in the 10 Ninth Circuit and moved to stay removal. That automatically stayed his removal to Mexico.14 11 The conditions of the petitioner’s confinement are difficult: limited visitation, inedible and 12 inadequate food, and lack of rehabilitative programming, among other issues.15 The petitioner, 13 among others, protested by engaging in labor and hunger strikes. ICE and GEO Group, the private 14 entity operating the prison, retaliated with disciplinary write-ups and restricted access to benefits, 15 including the commissary, library, recreation areas, religious services, and visitation. Officers 16 taunted the petitioner during his hunger strike and then denied him access to the nutritional 17 supplements he needed to recover.16 Throughout the process, the plaintiff advocated for change 18 and wants to continue advocacy outside of prison.17 [20] 9 Pet. – ECF No. 1 at 14 (¶ 51); Tr., Ex. D to Sánchez Decl. – ECF No. 1-2 at 33 (p. 6:3–22), 36–38 21 (pp. 88:1–90:7), 40 (p. 92:13–24). [10] Id. at 45–46 (pp. 96:17–97:24). [11] Id. at 49 (p. 99:1–25), 51 (p. 147:1–25), 53 (p. 184:1–25). [12] Id. at 55 (pp. 199:1–200:23). 24 13 Pet. – ECF No. 1 at 15 (¶¶ 52–53); Rosas Decl. – ECF No. 1-2 at 16 (¶ 51). [25] 14 Pet. – ECF No. 1 at 15 (¶ 53); Ninth Circuit Case Summary, No. 23-916, Ex. H to Sánchez Decl. – ECF No. 1-3 at 24–27; see Resp. – ECF No. 14 at 10 (describing procedural history). 26 15 Pet. – ECF No. 1 at 10–11 (¶¶ 36–38); Rosas Decl., Ex. A. to Sánchez Decl. – ECF No. 1-2 at 12–15 (¶¶ 37–49). [27] 16 Rosas Decl. – ECF No. 1-2 at 14 (¶¶ 42–44), 15 (¶¶ 46–49). 1 According to the government, while detained at Golden State Annex, the petitioner “punched 2 another detainee in the face with a closed fist without provocation, resulting in severe injuries to the 3 victim’s face,” an incident that was captured on video and that resulted in thirty days of disciplinary 4 segregation and fifteen days of commissary restriction. On another occasion, also captured on 5 video, the petitioner “refused to return property bins to the detention facility’s officers and engaged 6 in a physical struggle over” the bins. As a result, he received nine days in disciplinary segregation.18 7 If released, the petitioner will participate in a reentry program, thereafter will live with his 8 mother, and has the support of his family and a mentor. He has spent years reflecting on his actions 9 and has committed to making better choices.19 His pro bono attorney is working on post-conviction 10 relief for his robbery conviction, which may help his entitlement to relief in his immigration case.20 11 The court held a hearing on October 5, 2023. All parties consented to magistrate-judge 12 jurisdiction under 28 U.S.C. § 636.21 13 ANALYSIS 14 The three issues are (1) whether jurisdiction lies in the Northern District of California or 15 instead is only in the Eastern District, where the petitioner is housed in a privately owned facility, 16 (2) whether the petitioner’s continued detention violates his right to substantive due process, and 17 (3) whether the continued detention violates his right to procedural due process. There is 18 jurisdiction in the Northern District. The continued detention is a violation of the petitioner’s right 19 to procedural due process. The remedy is a bond hearing before an immigration judge. [20] 21 1. Jurisdiction 22 Citing Rumsfeld v. Padilla, 542 U.S. 426 , 446–47 (2004), and Lopez-Marroquin v. Barr, 955 23 F.3d 759 , 759–60 (9th Cir. 2020), the government contends that jurisdiction is in the Eastern [25] 18 Martinez Decl. – ECF No. 14-1 at 4–5 (¶¶ 20, 25); Incident of Prohibited Acts and Notice of Charges, 26 Ex. 10 to id. at 100, 102; Disciplinary Charge Packet Routing Form, Ex. 14 to id. at 122–23, 129. 19 Rosas Decl. – ECF No. 1-2 at 9–11 (¶¶ 26–32), 16–18 (¶¶ 53–60). [27] 20 Id. at 16 (¶ 52). His attorneys elaborated on this point at the hearing. 1 District of California, where the petitioner is housed.22 Generally, the proper respondent in a 2 habeas petition is the warden of the facility. Perera v. Jennings, No. 21–cv-04136-BLF, 2021 WL 3 2400981, at *2 (N.D. Cal. June 11, 2021). But “[c]ourts in this district repeatedly have held, both 4 before and since Lopez-Marroquin, that Padilla does not extend to cases such as this one where 5 the immediate custodian lacks any actual authority over the immigrant detainee.” Domingo v. 6 Barr, No. 20-cv-06089-YGR, 2020 WL 5798238 , at *2 (N.D. Cal. Sept. 29, 2020) (collecting 7 cases); accord Perera, 2021 WL 2400981 , at *2 (collecting cases); Martinez Leiva v. Becerra, No. 8 23-cv-02027-CRB, 2023 WL 3688097 , at *4 (N.D. Cal. May 26, 2023). The court follows that 9 weight of authority as persuasive. Jurisdiction lies in this district. [10] 11 2. Substantive Due Process 12 The petitioner contends that his prolonged detention under 8 U.S.C. § 1226 (c) is excessive, is 13 unjustified because he is not a flight risk or a danger to the community, and thus violates his right to 14 substantive due process. He asks for release from custody.23 The government counters that 15 mandatory detention under § 1226(c) is facially constitutional, see Denmore v. Kim, 538 U.S. 510 , 16 521–23 (2003), and in any event does not violate substantive due process because the delay results 17 from the petitioner’s pursuit of his immigration case.24 18 Denmore upheld the facial constitutionality of mandatory detention under § 1226(c): “detention 19 during deportation proceedings [is] a constitutionally valid aspect of the deportation process” that 20 serves the valid government interest of mitigating the risks that someone in immigration custody is 21 a flight risk or a threat to the community. 538 U.S. at 521–23 (cleaned up). But the Court did not 22 address whether § 1226(c) is unconstitutional as applied to a particular petitioner. As other courts in 23 this district have held, the Court left open the possibility that non-citizens can challenge their 24 detention under § 1226(c) as applied to their particular detention. Nielsen v. Preap, 139 S. Ct. 954 , [26] 22 Resp. – ECF No. 14 at 11–19. [27] 23 Pet. – ECF No. 1 at 2–3 (¶¶ 2–5); Traverse – ECF No. 16 at 8, 21. 1 972 (2019) (“Our decision today on the meaning of that statutory provision does not foreclose as2 applied challenges[.]”); Martinez Leiva, 2023 WL 3688097 , at *5; I.E.S. v. Becerra, No. 23-cv3 03783-BLF, 2023 WL 6317617 , at *6 (N.D. Cal. Sept. 27, 2023). Following other courts in this 4 district, the court considers the petitioner’s as-applied challenge. Martinez Leiva, 2023 WL 5 3688097, at *5; I.E.S., 2023 WL 6317617 , at *6. 6 A federal district court can grant a writ of habeas corpus if the petitioner “is in custody in 7 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241 ; accord 8 Gonzalez v. Bonnar, No. 18–cv–05321–JSC, 2019 WL 330906 , at *2 (N.D. Cal. Jan. 25, 2019). 9 “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation 10 proceedings.” Demore, 538 U.S. at 523 (cleaned up). 11 A civil detainee’s confinement is unconstitutional under the Fifth Amendment if his conditions 12 of confinement “amount to punishment.” Bell v. Wolfish, 441 U.S. 520, 535 (1979); Jones v. 13 Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (quoting Bell, 441 U.S. at 535 ); accord Bent v. Barr, 14 No. 4:19-cv-06123-DMR, 2020 WL 1812850 , at *4 (N.D. Cal. Apr. 9, 2020); Ortuño v. Jennings, 15 No. 3:20-cv-02064-MMC (N.D. Cal.), Order – ECF No. 38 at 4; Castillo v. Barr, 449 F. Supp. 3d 16 915, 919–20 (C.D. Cal. 2020). “[P]unitive conditions may be shown (1) where the challenged 17 restrictions are expressly intended to punish, or (2) where the challenged restrictions serve an 18 alternative, non-punitive purpose but are nonetheless excessive in relation to the alternative 19 purpose, or are employed to achieve objectives that could be accomplished in so many alternative 20 and less harsh methods.” Jones, 393 F.3d at 932 (cleaned up). The government’s legitimate, non21 punitive interests include ensuring a detainee’s presence at immigration proceedings. Id. (ensuring 22 a detainee’s presence at trial); Ortuño, No. 3:20-cv-02064-MMC (N.D. Cal.), Order – ECF No. 38 23 at 4 (immigration proceedings). 24 Two courts in this district recently addressed whether an immigration detainee’s confinement 25 at Golden State Annex is punitive and thus violates the detainee’s right to substantive due process. 26 Both determined that similar periods of confinement should be evaluated as procedural due27 process challenges, not substantive due-process challenges. Martinez Leiva, 2023 WL 3688097 , at 1 almost seventeen months). The court follows those opinions as persuasive and considers whether 2 the detention here violates the petitioner’s right to procedural due process. [3] 4 3. Procedural Due Process 5 The plaintiff contends that his detention without an individualized bond hearing is 6 presumptively unconstitutional because it exceeds six months and in any event violates his right to 7 procedural due process.25 Courts in this district have rejected arguments that a detention without 8 an individualized bond hearing that exceeds six month is presumptively unconstitutional and 9 instead apply the three-part balancing test in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), to 10 evaluate whether the detention violated the petitioner’s right to procedural due process. Martinez 11 Leiva, 2023 WL 3688097 , at *7–9 (collecting cases); I.E.S., 2023 WL 6317617 , at *7–10. The 12 court applies the Mathews balancing test and concludes that the petitioner’s fifteen-month 13 detention without an individualized bond hearing violates his right to procedural due process. 14 “The fundamental requirement of due process is the opportunity to be heard at a meaningful 15 time and in a meaningful manner.” Mathews, 424 U.S. at 333 . Mathews set forth three factors that 16 a court must consider in determining the process due: (1) the private interest affected by the 17 government action, (2) “the risk of an erroneous deprivation of such interest through the 18 procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” 19 and (3) “the Government’s interest, including the function involved and the fiscal and 20 administrative burdens that the additional or substitute procedural requirements would entail.” Id. 21 at 335. 22 The three factors require a bond hearing. 23 First, the petitioner has a significant private interest in freedom from custody. I.E.S., 2023 WL 24 6317617, at *8 (collecting and applying cases and rejecting the government’s argument that the 25 length of confinement resulted from his choice to contest removal proceedings). [27] ] Second, the risk of an erroneous deprivation of the liberty interest is significant. While the 2 || court does not decide the ultimate question of whether a bond is appropriate, the petitioner has 3 established that he is not a risk of flight (as discussed at the hearing). He also submitted substantial 4 || evidence of his rehabilitation, and he has a robust reentry plan to address any concern about 5 danger to the community. Given this context, the risk of an erroneous deprivation is high unless a 6 neutral decisionmaker considers and weighs his evidence. /.E.S., 2023 WL 6317617 , at *9; 7 Martinez Leiva, 2023 WL 3688097 , at *8. 8 Third, the government’s interest in continued detention without a bond hearing is low. .E.S., 9 || 2023 WL 6317617 , at *9; Martinez Leiva, 2023 WL 3688097 , at *8. 10 In sum, the petitioner’s prolonged confinement without a bond hearing violates his right to 11 procedural due process. Like other courts in this district, the court concludes that an immigration 12 || judge should conduct the hearing. .E.S., 2023 WL 6317617 , at *9; Martinez Leiva, 2023 WL 13 3688097, at *8. At the hearing, the government must prove by clear and convincing evidence that 14 || continued detention is justified. 7 E.S., 2023 WL 6317617 , at *10 (collecting cases and conducting 3 15 || robust analysis of the issue). A 16 CONCLUSION i 17 The court grants the petition on the ground that the petitioner’s prolonged detention without an Z 18 individualized bond hearing violates his right to procedural due process. An immigration judge 19 || must conduct the bond hearing within ten days of the date of this order. At the bond hearing, the 20 || government must either prove by clear and convincing evidence that continued detention is 21 || justified or release the petitioner. 22 This resolves ECF No. 1. 23 IT IS SO ORDERED. LAE 24 Dated: October 6, 2023 LAUREL BEELER 25 United States Magistrate Judge