1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SALESH P., Case No. 22-cv-03018-DMR

8 Petitioner, ORDER ON PETITION FOR WRIT OF 9 v. HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER 10 POLLY KAISER, et al., Re: Dkt. Nos. 1, 11 11 Respondents.

12 Petitioner Salesh P. is a noncitizen from Fiji who is currently in Immigration and Customs 13 Enforcement (“ICE”) custody pending the conclusion of his removal proceedings. Respondents 14 are Polly Kaiser, Acting Field Office Director of ICE’s San Francisco Field Office; Tae D. 15 Johnson, Acting Director of ICE; Alejandro Mayorkas, Secretary of the Department of Homeland 16 Security (“DHS”); and Merrick B. Garland, the United States Attorney General. 17 On May 23, 2022, Petitioner filed a petition for writ of habeas corpus pursuant to 28

in which he asks the court to order his release from custody or to direct 19 Respondents to provide him with an individualized custody hearing at which “the government 20 must establish by clear and convincing evidence that [he] presents a risk of flight or danger, even 21 after consideration of alternatives to detention[.]”1 [Docket No. 1 ¶¶ 5, 6.] The parties filed a 22 stipulated briefing schedule on Respondents’ return and motion to dismiss, which the court 23 entered on June 2, 2022. [Docket No. 11.] On October 3, 2022, after the habeas petition and 24 motion to dismiss were fully briefed, Petitioner filed a motion for a temporary restraining order 25 (“TRO”) seeking to enjoin his continued detention without a custody hearing. [Docket No. 21.] 26 This matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). For the 27 1 following reasons, the motion to dismiss is denied. The habeas petition is granted in part and 2 denied in part, and Petitioner’s motion for a TRO is denied as moot. 3 I. BACKGROUND 4 Petitioner was born in Fiji in 1971. He came to the United States as a lawful permanent 5 resident in 1978, at the age of six. Petition ¶ 19. He is a queer, bisexual Indo-Fijian man.

6 During Petitioner’s childhood and adolescence, “he witnessed and experienced extreme violence.” 7 He began using drugs and alcohol and joined a gang, acquiring a number of gang tattoos.

at ¶¶ 8 20-21. In 1995, Petitioner was convicted of second-degree murder in California state court and 9 was sentenced to 15 years to life.

; Ex. A (Notice to Appear, “NTA”) at 1. While 10 in prison, Petitioner participated in therapy and was diagnosed with Post Traumatic Stress 11 Disorder (“PTSD”), depression, and anxiety. Petition ¶ 21. He also “ended all gang involvement” 12 and participated in drug and alcohol recovery groups.

13 The California Board of Parole Hearings ordered Petitioner’s release from prison in April 14 2021. The Governor of California allowed the decision to stand and Petitioner’s release date was 15 set for August 19, 2021.

. On August 16, 2021, DHS charged Petitioner as 16 removable pursuant to

(a)(2)(A)(iii) for having been convicted of an aggravated 17 felony and issued a Notice to Appear. NTA. On August 19, 2021, Petitioner was transferred to 18 ICE detention. He has been in ICE’s custody at the Golden State Annex in McFarland, California 19 since August 19, 2021.

; Petition Ex. B. At the time he filed the instant petition, he 20 had been detained for nine months. 21 A. Removal Proceedings 22 On December 20, 2021, Petitioner moved to terminate the removal proceedings. An 23 immigration judge (“IJ”) denied the motion on December 28, 2021. Petition ¶ 28. Petitioner also 24 applied for deferral of removal under the Convention Against Torture (“CAT”) based on his fears 25 that “he will be targeted and tortured in Fiji due to his sexual orientation, his criminal conviction, 26 his tattoos and former gang affiliation, his long absence from Fiji, and his potential for drug relapse in Fiji.”

. Petitioner and a country conditions expert testified at a hearing on the 27 1 under the CAT on May 13, 2022.

. Petitioner appealed the decision to the Board of 2 Immigration Appeals (“BIA”). On October 28, 2022, the BIA dismissed the appeal in part and 3 remanded the request for deferral of removal to the IJ “to reconsider [Petitioner’s] aggregate risk 4 of future torture.” [Docket No. 25-1 (Boyd Decl. Nov. 3, 2022) ¶ 6, Ex. A (BIA Decision) at 2.] 5 B. Requests for Release 6 Petitioner has made four release requests. First, on September 26, 2021, he filed a request 7 for release in part due to his mother’s sickness with COVID-19. ICE denied the request on 8 September 28, 2021. Petitioner’s mother died the same day. Petition ¶ 32. 9 Petitioner filed a second request for release on December 1, 2021 with additional evidence. 10 ICE denied the request on December 10, 2021.

. 11 Petitioner filed his third request for release on January 27, 2022 in part due to an ongoing 12 outbreak of COVID-19 at the detention facility. ICE denied the request on February 7, 2022.

13 at ¶ 34. 14 On February 16, 2022, Petitioner filed his fourth request for release and included 15 “additional details about his release plan and community support,” including reentry assistance. 16 The request was denied on March 15, 2022.

. 17 C. Relevant Details of Petitioner’s Confinement 18 As noted, Petitioner is confined at Golden State Annex (“GSA”), which is in McFarland, 19 California. [Docket No. 14 (Gonzalez Decl. Jun. 13, 2022) ¶¶ 4, 6.] GSA is managed by The 20 GEO Group, Inc. (“GEO”), an independent contractor. The warden, known as the “Facility 21 Administrator,” is a GEO employee based in McFarland.

. McFarland is in Kern County, 22 which is in the Eastern District of California. MTD 3. 23 DHS Acting Assistant Field Office Director Nancy Gonzalez is based in Bakersfield, 24 California. She is assigned to the Bakersfield Sub-Office within ICE’s Enforcement and Removal 25 Operations, San Francisco Field Office. Gonzalez Decl. ¶ 1. The Bakersfield Sub-Office is 26 responsible for oversight of noncitizens detained at two facilities, including GSA. Gonzalez states 27 that she supports the Deputy Field Office Director and Field Office Director “in managing 1 responsibility, which includes “providing oversight and supervision of Supervisory Detention and 2 Deportation Officers and their staff who maintain the docket management of ICE detainees” at 3 GSA.

According to Gonzalez, she and her staff “directly liaise with the GSA Facility 4 Administrator and other GEO personnel regarding the detainees at GSA.”

. Her direct 5 line supervisor, Acting Deputy Field Office Director Moises Becerra, is based in Fresno. He is 6 responsible for ICE immigration enforcement operations within nine counties, including Kern 7 County. Becerra directly reports to Respondent Polly Kaiser, Acting Field Office Director 8 (“FOD”) of the San Francisco Field Office.

. Gonzalez states that Kaiser is responsible 9 for the management and direction of all enforcement and removal operations and law enforcement 10 operations within the boundaries of the “San Francisco Area of Responsibility,” which 11 encompasses offices in seven cities in California, as well as Hawaii, Guam, and the Northern 12 Mariana Islands.

. 13 D. The Habeas Petition 14 On May 23, 2022, Petitioner filed a petition for writ of habeas corpus in which he asks the 15 court to order his release from custody or to direct Respondents to provide him with an 16 individualized custody hearing. He asserts a single claim for relief: that his prolonged detention 17 without a hearing violates the Fifth Amendment’s Due Process Clause. 18 II. JURISDICTION OVER THE PETITION 19 Petitioner filed his habeas petition pursuant to

, which allows “the 20 Supreme Court, any justice thereof, the district courts and any circuit judge” to grant writs of 21 habeas corpus “within their respective jurisdictions.”

(a). A district court may 22 grant a writ of habeas corpus when the petitioner “is in custody in violation of the Constitution or 23 laws or treaties of the United States.”

(c)(3). Here, Petitioner asserts that his 24 continued detention violates his due process rights under the Fifth Amendment of the United 25 States Constitution. He does not ask this court to defer removal. See Petition ¶¶ 1-6, 8. The 26 Ninth Circuit has held that “district courts retain jurisdiction under

to consider 27 habeas challenges to immigration detention that are sufficiently independent of the merits of [a] 1

(9th Cir. 2011)). Therefore, the court has subject matter jurisdiction 2 pursuant to Section 2241. See, e.g., Hilario Pankim, No. 20-cv-02941-JSC,

, at 3 *4 (N.D. Cal. May 19, 2020) (concluding that court had subject matter jurisdiction over Section 4 2241 petition where noncitizen detainee argued his continued detention violated his constitutional 5 rights). 6 Nonetheless, Respondents argue that the habeas petition should be dismissed because 7 “jurisdiction lies in only one district: the district of confinement,” which is the United States 8 District Court for the Eastern District of California. [Docket No. 13 (Mot. to Dism. and Return to 9 Petition, “MTD/Return”) 2, 7 (quoting Lopez-Marroquin, 955 F.3d at 759).] Relatedly, 10 Respondents argue that the warden of GSA, whom they do not identify, is the proper respondent 11 for Petitioner’s habeas petition, not FOD Kaiser. As an alternative to dismissal, Respondents 12 argue that the court should transfer the petition to the Eastern District. They primarily rely on 13 Rumsfeld v. Padilla,

(2004), and Lopez Marroquin, 955 F.3d at 759. 14 MTD/Return 5-7, 17. 15 In Padilla, the Supreme Court examined whether Jose Padilla, a United States citizen 16 detained by the Department of Defense at a military brig in South Carolina, properly filed a 17 Section 2241 habeas petition in the Southern District of New York.

. Padilla was 18 originally taken into custody in Chicago and transported to New York, where he was held in 19 federal criminal custody pursuant to a material witness warrant issued by the Southern District of 20 New York. After then-Secretary of Defense Donald H. Rumsfeld designated Padilla as an “enemy 21 combatant,” he was taken into military custody and moved to South Carolina.

. 22 Shortly thereafter, Padilla filed a Section 2241 habeas petition in the Southern District of New 23 York naming former President George Bush; Rumsfeld; and Melanie A. Marr, the commander of 24 the military brig, as respondents.

. 25 The government moved to dismiss, arguing in part that Marr was the only proper 26 respondent and that the court lacked jurisdiction over her because she was located outside the 27 Southern District of New York. The district court denied the motion to dismiss, holding that 1 merits of the petition. The Second Circuit agreed that Rumsfeld was properly named as a 2 respondent and reversed on the merits, ordering Rumsfeld to release Padilla from military custody. 3

. 4 At the outset of its analysis, the Supreme Court clarified that the term “jurisdiction” as 5 used in Section 2241(a) and in its opinion was “not in the sense of subject-matter jurisdiction of 6 the District Court.”

at 434 n.7; see also

(“the question of the proper location for a 7 habeas petition is best understood as a question of personal jurisdiction or venue . . . objections to 8 the filing of petitions based on those grounds can be waived by the Government.”) (Kennedy, J., 9 concurring). The Court then used a two-step analysis to determine whether the Southern District 10 of New York had jurisdiction over Padilla’s habeas petition. First, the Court noted that pursuant 11 to statute, “the proper respondent to a habeas petition is ‘the person who has custody over [the 12 petitioner].’”

at 434 (quoting

). The Court discussed the longstanding 13 “immediate custodian rule,” which is that “in habeas challenges to present physical confinement— 14 ‘core challenges’—the default rule is that the proper respondent is the warden of the facility where 15 the prisoner is being held, not the Attorney General or some other remote supervisory official.” 16

. It then applied the immediate custodian rule to Padilla’s habeas petition and concluded 17 that the only proper respondent was Marr, who was “the equivalent of the warden” at the military 18 brig where he was being held.

. The Court expressly declined to resolve the question 19 of the proper respondent “to a habeas petition filed by [a noncitizen] detained pending 20 deportation,” an issue that had divided lower courts.

at 435 n.8. 21 The Court next examined whether the Southern District of New York had jurisdiction over 22 Marr and concluded that it did not.

. It held that “for core habeas petitions challenging 23 present physical confinement, jurisdiction lies in only one district: the district of confinement.”

24 at 443 (discussing

(a) and rejecting the claim that “jurisdiction will lie in any 25 district in which the respondent is amenable to service of process”); see also

(“[i]n 26 habeas challenges to present physical confinement . . . the district of confinement is synonymous 27 with the district court that has territorial jurisdiction over the proper respondent”). 1 “conclusively confirmed in a published, precedential decision” that the district-of-confinement 2 rule discussed in Padilla applies “to challenges to immigration detention.” MTD/Return 7. Not 3 so. Lopez-Marroquin is a three-paragraph opinion that construed a noncitizen’s emergency 4 motion to remand pursuant to the All Writs Act as a petition for a writ of habeas corpus. Citing 5 Padilla, the court transferred the matter to the Southern District of California.

at 760 (citing 6 Padilla,

(“[t]he plain language of the habeas statute . . . confirms the general rule 7 that for core habeas petitions challenging present physical confinement, jurisdiction lies in only 8 one district: the district of confinement.”)). The opinion does not address the question the 9 Supreme Court left open in Padilla; i.e., who is the proper respondent in a habeas petition filed by 10 a detained noncitizen pending deportation, and does not analyze the Section 2241 jurisdiction 11 question at issue in this case (i.e., where is the proper venue for such a petition). 12 “Courts in this district repeatedly have held, both before and since Lopez-Marroquin, that 13 Padilla does not extend to cases such as this one where the immediate custodian lacks any actual 14 authority over the immigrant detainee.” Domingo v. Barr, No. 20-cv-06089-YGR,

5798238, at *2 (N.D. Cal. Sept. 29, 2020) (collecting cases); accord Perera v. Jennings, No. 21- 16 cv-04136-BLF,

, at *2 (N.D. Cal. June 11, 2021) (finding Field Office Director 17 of ICE’s San Francisco Field Office was the proper respondent where petitioner was detained at 18 GSA; collecting cases). See also Meneses v. Jennings, No. 21-CV-07193-JD,

, 19 at *2 (N.D. Cal. Oct. 14, 2021) (“The government construes Lopez-Marroquin v. Barr,

759 (9th Cir. 2020), as confirming the ostensible bright-line [district of confinement] rule in 21 Padilla, but Padilla said no such thing. Lopez-Marroquin simply cited Padilla without any 22 gesture at resolving the question the Supreme Court left open, and so does not advance the 23 government’s argument in any way . . . any habeas relief ordered by the Court would necessarily 24 be directed to the San Francisco [Field] [O]ffice, which is within the Northern District.”); Ameen 25 v. Jennings, No. 22-cv-00140-WHO,

, at *4 (N.D. Cal. Apr. 19, 2022) (holding 26 that Polly Kaiser, “ICE Acting Field Director Officer of the regional office that controls the 27 independent contractor GSA, is the ultimate ‘custodian’ of Ameen, making San Francisco the 1 Supp. 3d 1168, 1185 (N.D. Cal. 2017), aff’d sub nom. Saravia for A.H. v. Sessions,

(9th Cir. 2018), the court held that “a petitioner held in federal detention in a non-federal facility 3 pursuant to a contract should sue the federal official most directly responsible for overseeing that 4 contract facility when seeking a habeas writ.” Numerous cases in this district have cited Saravia 5 in holding that the FOD of the San Francisco Field Office is the proper respondent in Section 2241 6 habeas petitions filed by noncitizens detained in facilities located in the Eastern District. See, e.g., 7 Hilario Pankim,

, at *4-5; Domingo,

, at *2; Montoya 8 Echeverria v. Barr, No. 20-CV-02917-JSC,

, at *3 (N.D. Cal. May 27, 2020); 9 Singh v. Barr, No. 20-CV-02346-VKD,

, at *4 (N.D. Cal. May 15, 2020); 10 Ortuno v. Jennings, No. 20-CV-02064-MMC,

, at *2 (N.D. Cal. May 7, 2020), 11 appeal dismissed sub nom. Lavrus v. Jennings, No. 20-16302,

(9th Cir. Nov. 12 18, 2020); Perera v. Jennings, No. 21-CV-04136-BLF,

, at *2 (N.D. Cal. June 13 11, 2021). 14 The court agrees with the reasoning of the foregoing cases. Respondents submit evidence 15 that FOD Kaiser is responsible for the management and direction of all enforcement and removal 16 operations within the boundaries of the “San Francisco Area of Responsibility” and that she has 17 ultimate control over GSA, where Petitioner is detained. As Kaiser has the legal authority to 18 provide the relief Petitioner seeks, she is a proper respondent. Given her presence in this district, 19 the Northern District is the proper forum for the petition. Respondents’ motion to dismiss is 20 denied. 21 III. MERITS OF THE PETITION 22 A. Legal Framework for Entitlement to a Bond Hearing 23 The INA provides a “complex statutory framework of detention authority” codified at 8

and 1231. Prieto-Romero v. Clark,

(9th Cir. 2008). Where a 25 noncitizen falls within the statutory scheme “can affect whether his detention is mandatory or 26 discretionary, as well as the kind of review process available to him if he wishes to contest the 27 necessity of his detention.”

In general, section 1226(a) governs detention during the pendency 1 final removal order. 2 Section 1226(a) provides the Attorney General with discretionary authority to arrest and 3 detain a noncitizen “pending a decision on whether the alien is to be removed from the United 4 States.”

(a); Prieto-Romero,

. A noncitizen detained pursuant 5 to section 1226(a) can appeal ICE’s initial custody determination to an immigration judge, who is 6 authorized to “release the alien, and determine the amount of bond, if any, under which the 7 respondent may be released.”

(d)(1); see also

(a) (granting 8 immigration judges jurisdiction to review custody and bond determinations). By contrast, section 9 1226(c) mandates detention for noncitizens who have committed certain criminal offenses. 8

(c). A noncitizen subject to mandatory detention under section 1226(c) can only be 11 released for witness protection purposes and if the noncitizen “will not pose a danger to the safety 12 of other persons or of property and is likely to appear for any scheduled proceeding.”

1226(c)(2). 14 The Supreme Court and the Ninth Circuit have long “grappled in piece-meal fashion with 15 whether the various immigration detention statutes may authorize indefinite or prolonged 16 detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez v. 17 Hayes (“Rodriguez I”),

(9th Cir. 2010). In 2015, the Ninth Circuit 18 considered the procedural protections available to noncitizens detained under

(b) 19 and 1226(c). See Rodriguez v. Robbins (“Rodriguez III”),

(9th Cir. 2015), reversed 20 by Jennings v. Rodriguez,

(2018). In Rodriguez III, a certified class of noncitizens 21 challenged their prolonged detentions pursuant to

(b), 1226(a), 1226(c), and 22 1231(a) without the provision of individualized bond hearings.2

. Following the 23 2 Section 1225(b) “applies to ‘applicants for admission’ who are stopped at the border or a port of 24 entry, or who are ‘present in the United States’ but ‘ha[ve] not been admitted.’” Rodriguez III,

(quoting

(a)(1)). “The statute provides that asylum seekers ‘shall be 25 detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.’”

(quoting

(b)(1)(B)(iii)(IV)). As to all other such 26 applicants for admission, the statute provides for mandatory detention “if the examining immigration officer determines that [the individuals] seeking admission [are] not clearly and beyond 27 a doubt entitled to be admitted.”

(b)(2)(A). 1 entry of a preliminary injunction, which was affirmed on appeal, see Rodriguez v. Robbins 2 (“Rodriguez II”),

(9th Cir. 2013), the district court granted summary judgment to 3 the class and entered a permanent injunction requiring the government to provide a bond hearing 4 to any class member subject to detention longer than six months.

. The 5 government was ordered to provide each detainee with a bond hearing by his or her 195th day of 6 detention, with such hearings occurring automatically after notice.

. The district court 7 also required the government to prove by clear and convincing evidence that the detainee was a 8 flight risk or a danger to the community in order to justify the denial of bond.

. The 9 government appealed from the entry of the permanent injunction, and the class cross-appealed the 10 district court’s denial of certain procedural requirements for bond hearings.

. 11 In relevant part, the Ninth Circuit court affirmed summary judgment and the entry of the 12 permanent injunction as to the section 1226(c), 1225(b), and 1226(a) subclasses. Relying on the 13 canon of constitutional avoidance, the court construed sections 1225(b) and 1226(c) as imposing a 14 six-month time limit on detention, after which the government may continue detention only under 15 the authority of section 1226(a).

. The court re-affirmed its decision in Casas 16 that a noncitizen “subjected to prolonged detention under § 1226(a) is entitled to a hearing to 17 establish whether continued detention is necessary because he would pose a danger to the 18 community or a flight risk upon release.” Id. at 1085 (citing Casas, 535 F.3d at 949-52). The 19 court thereby affirmed the district court’s permanent injunction requiring the government to hold 20 bond hearings every six months for noncitizens detained pursuant to sections 1226(c), 1225(b), 21 and 1226(a). Id. at 1090. The court also affirmed the requirement that the government “prove by 22 clear and convincing evidence that an alien is a flight risk or a danger to the community to justify 23 citizen who is inadmissible or deportable because of his criminal history upon that person’s release 24 from imprisonment, pending proceedings to remove him from the United States.” Rodriguez III,

. Detention under section 1226(c) is mandatory and individuals detained under 25 that section may be released only if the government deems it “necessary” for witness protection purposes.

at 1078 (citing

(c)(2)). 26

Section 1226(a) provides that a noncitizen “may be arrested and detained pending a decision 27 on whether the alien is to be removed from the United States.” Section 1231(a) governs detention 1 denial of bond at a Casas hearing.”

at 1087 (quoting Rodriguez II,

(quoting 2 Singh,

)). 3 The Supreme Court reversed Rodriguez III in Jennings. The Court found that the Ninth 4 Circuit had misapplied the canon of constitutional avoidance as to sections 1225(b), 1226(c), and 5 1226(a), and determined that “its interpretations of the three provisions at issue . . . are 6 implausible.”

. As to section 1225(b), which “applies primarily to aliens seeking 7 entry into the United States,” the Court noted that the statute divides applicants into two 8 categories: section 1225(b)(1) provides that certain noncitizens claiming a credible fear of 9 persecution “shall be detained for further consideration of the application for asylum,” while 10 section 1225(b)(2) provides that noncitizens who fall within the scope of that provision “shall be 11 detained for a [removal] proceeding.”

(emphasis added) (quoting

1225(b)(1)(B)(ii), 1225(b)(2)(A)). The Court found that “[r]ead most naturally, §§ 1225(b)(1) and 13 (b)(2) mandate detention of applicants for admission until certain proceedings have concluded.” 14 Id. The Court rejected the argument that those provisions contain an implicit six-month limit on 15 the length of detention, observing that “nothing in the statutory text imposes any limit on the 16 length of detention” or “even hints that those provisions restrict detention after six months.” Id. at 17 842, 843. As to the canon of constitutional avoidance, the Court held that “[s]potting a 18 constitutional issue does not give a court the authority to rewrite a statute as it pleases . . . 19 [i]nstead, the canon permits a court to ‘choos[e] between competing plausible interpretations of a 20 statutory text.’” Id. at 843. The Court concluded that sections 1225(b)(1) are 1225(b)(1) are not 21 ambiguous, and that “neither provision can reasonably be read to limit detention to six months.” 22 Id. at 843-844 (contrasting section 1225(b), which provides that noncitizens “shall be detained” 23 for further proceedings, with section 1231(a)(6), which provides that noncitizens “may be 24 detained” after the completion of the removal period). 25 Similarly, the Court held that section 1226(c), which applies to noncitizens already present 26 in the United States, could not plausibly be construed to include an implicit six-month time limit 27 on the length of mandatory detention. Id. at 846-47. As to section 1226(a), the Court noted that 1 the outset of detention.” Id. at 847. The Court held that “[n]othing in § 1226(a)’s text . . . 2 supports the imposition” of the procedural protections ordered by the Ninth Circuit—“namely, 3 periodic bond hearings every six months in which the Attorney General must prove by clear and 4 convincing evidence that the alien’s continued detention is necessary.” Id. 5 Jennings only entertained statutory challenges to the INA’s detention scheme and 6 remanded the question of whether prolonged detention without an individualized bond hearing 7 violates the due process clause of the Fifth Amendment. Upon remand, the Ninth Circuit stated its 8 “grave doubts that any statute that allows for arbitrary prolonged detention without any process is 9 constitutional” and remanded the issue to the district court to consider it in the first 10 instance. Rodriguez v. Marin (“Rodriguez IV”),

(9th Cir. 2018). 11 B. Discussion 12 The parties do not dispute that Petitioner is detained pursuant to the government’s 13 mandatory detention authority under section 1226(c). It is also undisputed that Petitioner has been 14 in custody for over fourteen months without having been afforded a bond hearing. Petitioner 15 argues that his continued detention without such a hearing violates his Fifth Amendment due 16 process rights. He contends that due process requires that he be given an individualized bond 17 hearing at which the government bears the burden of establishing by clear and convincing 18 evidence that he presents a risk of flight or danger to justify his continued detention. 19 Respondents reply by arguing that Petitioner’s detention “falls within the scope of the 20 detention that the Supreme Court has upheld as constitutional.” MTD/Return 31. 21 This court has previously observed that since Jennings, “there remains ‘a dearth of 22 guidance regarding the point at which an individual’s continued mandatory detention under 23 Section 1226(c) becomes unconstitutional.’” Bent v. Barr, No. 19-CV-06123-DMR,

1677332, at *7 (N.D. Cal. Apr. 6, 2020) (quoting Gonzalez v. Bonnar, No. 18-cv-05321-JSC, 25

, at *3 (N.D. Cal. Jan. 25, 2019)). One court in this district has held that 26 detainees are constitutionally entitled to individualized bond hearings after six months, at which 27 point their detention has become prolonged. Rodriguez v. Nielsen, No. 18-CV-04187-TSH, 2019 1 rule for the duration at which detention becomes constitutionally impermissible. See, e.g., 2 Gonzalez,

, at *2; Ramirez v. Sessions, No. 18-CV-05188-SVK,

11005487, at *6 (N.D. Cal. Jan. 30, 2019). 4 Absent controlling authority establishing a bright-line rule for a due process right to 5 receive periodic bond hearings, the court finds that it is appropriate to conduct an individualized 6 due process analysis under Mathews v. Eldridge,

(1976), in which the Supreme 7 Court held that “[t]he fundamental requirement of due process is the opportunity to be heard at a 8 meaningful time and in a meaningful manner.” See Soto v. Sessions, No. 18-cv-02891-EMC, 2018

, at *3 (N.D. Cal. July 30, 2018) (applying Mathews factors to a habeas petitioner’s 10 due process claims); Lopez Reyes v. Bonnar,

(N.D. Cal. 2019) (same); 11 De Paz Sales v. Barr, No. 19-cv-04148-KAW,

, at *7 (N.D. Cal. Sept. 30, 12 2019) (same); Jimenez v. Wolf, No. 19-CV-07996-NC,

, at *3 (N.D. Cal. Jan. 30, 13 2020) (same), appeal dismissed, No. 20-15533,

(9th Cir. Oct. 20, 2020).3 14 Under Mathews, “[d]ue process is flexible and calls for such procedural protections as the 15 particular situation demands.”

. The three-part Mathews test requires courts to 16 consider “(1) the private interest affected, (2) the government’s interest, and (3) the value added 17 by alternative procedural safeguards to what has already been provided in the particular situation 18 before the court.” Soto,

, at *3 (citing Mathews,

). 19 The first factor, Petitioner’s interest, is straightforward. Courts have held that there is a 20 strong private interest based on the duration of the detention. De Paz Sales,

, at 21 *7 (finding a strong private interest where the petitioner “risks continued detention absent a bond 22 hearing”). “[L]iberty is the norm, and detention prior to trial or without trial is the carefully 23 limited exception.” Rodriguez IV,

-57 (quoting United States v. Salerno,

739, 755 (1987)). In this case, Petitioner has been detained for over fourteen months without a 25 bond hearing, and there is no reasonably certain end to his detention. This period of detention 26 leans heavily toward finding a strong private interest at stake. Lopez Reyes,

1 776 (finding a strong private interest where the petitioner had been detained 22 months and 2 received his last bond hearing 16 months prior); Jimenez,

, at *3 (finding 3 petitioner “undoubtedly has a strong liberty interest to be free from arbitrary or unreasonable 4 imprisonment” where he had been detained for one year without a bond hearing). Respondents do 5 not meaningfully dispute that Petitioner has a strong private interest. Instead, they assert that 6 Petitioner has extended the length of his removal proceedings by requesting three continuances 7 and moving unsuccessfully to terminate proceedings. [See Docket No. 15 (Gilbert Decl., Jun. 13, 8 2022) ¶¶ 11-13, 15.] The court declines to fault Petitioner for these delays, which counsel argues 9 were outside of his control. Traverse 21. See Masood v. Barr, No. 19-cv-07623-JD,

95633, at *3 (N.D. Cal. Jan. 8, 2020) (“it ill suits the United States to suggest that [petitioner] 11 could shorten his detention by giving up [his appeal] rights and abandoning his asylum 12 application.”). Accordingly, the court finds that the first Mathews factor weighs in Petitioner’s 13 favor. 14 The second factor addresses the government’s interest. Respondents argue that “the 15 government has a strong interest in enforcing the immigration laws as enacted by Congress and in 16 ensuring that lawfully issued removal orders are promptly executed.” MTD/Return 35. Here, 17 Petitioner is not currently subject to a final removal order that the government could “promptly 18 execute[ ].” Respondents also appear to suggest that the government has a strong interest in 19 ensuring Petitioner’s presence during the pendency of the removal proceedings. See

However, 20 “the governmental issue at stake in [these proceedings] is the ability to detain Petitioner without 21 providing him with [a] bond hearing, not whether the government may continue to detain him.” 22 Lopez Reyes,

(emphasis in original). Respondents do not explain how 23 providing Petitioner with a bond hearing after fourteen months of detention would undermine its 24 interest in enforcing immigration laws and effecting removal. “After all, the purpose of a bond 25 hearing is to inquire whether the [noncitizen] represents a flight risk or danger to the community.” 26 Jimenez,

, at *3 (observing that argument that petitioner’s “continued detention remains constitutional because it serves an immigration purpose: to assure his presence at removal 27 1 Respondents do not argue that there are any costs associated with providing a bond hearing. 2 Therefore, this factor is neutral at best. 3 The final factor looks at the value of additional safeguards. See Soto,

, 4 at *3. In this case, Petitioner has not received any bond hearing during his fourteen-month 5 detention. Accordingly, the value of additional procedural safeguards—i.e., a bond hearing—is 6 high, because “Respondents have provided virtually no procedural safeguards at all.” Jimenez, 7

, at *3. 8 Having considered and weighed the Mathews factors, the court concludes that Petitioner’s 9 continued detention without a bond hearing violates his due process rights under the Fifth 10 Amendment. Due process requires Respondents to provide Petitioner with a bond hearing. At the 11 hearing, the government must justify his continued detention by establishing by clear and 12 convincing evidence that he is a flight risk or a danger to the community pursuant to Singh, 638 13 F.3d at 1203. See id. at 1204 (observing that the “Supreme Court has repeatedly reaffirmed the principle that ‘due process places a heightened burden of proof on the State in civil proceedings in 14 which the ‘individual interests at stake . . . are both particularly important and more substantial 15 than mere loss of money.’” (quoting Cooper v. Oklahoma,

(1996)). As the 16 court does not have an adequate basis to evaluate whether Petitioner is a flight risk or a danger to 17 the community, he is not entitled to immediate release from ICE custody. That portion of his 18 petition is denied. 19 20 IV. TRO In his motion for a TRO, Petitioner seeks the same relief that he requests in his petition; 21 namely, an order requiring the government to provide him with a bond hearing or immediate 22 release from custody. His motion for a TRO is therefore denied as moot. 23 24 V. CONCLUSION For the foregoing reasons, the petition for a writ of habeas corpus under

25 is granted in part and denied in part. By December 5, 2022, Petitioner must be provided with a 26 bond hearing before an immigration judge. At that hearing, DHS must establish by clear and 27 1 |} continue his detention. KD CS 2 IT IS SO ORDERED. KS) & O ORDERED 3 || Dated: November 18, 2022 1S S 4 LAyyse- \2\ ieee we □□ Ase oN CY 7 ep oS DISTRICS 8 9 10 11 a 12

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