1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN DOE, Case No. 23-cv-01890-AMO

8 Petitioner, ORDER RE PETITION FOR WRIT OF 9 v. HABEAS CORPUS

10 MOISES BECERRA, et al., Re: Dkt. No. 1 Respondents. 11

12 13 On April 29, 2023, Petitioner John Doe (“Doe” or “Petitioner”) filed an immigration 14 habeas petition.1 ECF 1. He is currently being detained by Immigration and Customs 15 Enforcement (“ICE”). He has been in immigration detention for over 22 months without having 16 received an individualized determination of whether he poses a risk of flight or a danger to the 17 community. He brings this petition for habeas corpus, asking the Court to release him or order a 18 bond hearing at which the Government must demonstrate that further detention is warranted. 19 Respondents Merrick B. Garland, the United States Attorney General; Alejandro 20 Mayorkas, Secretary of the Department of Homeland Security; Tae Johnson, Acting Director of 21 ICE; and Moises Becerra, Field Office Director for ICE’s San Francisco Field Office (collectively 22 “Respondents” or “the Government”), oppose the Petition, arguing that the Court lacks 23 jurisdiction, and that Doe is not entitled to release or a bond hearing. 24 Having reviewed the arguments and records in this case, the Court GRANTS the Petition 25 in part. The Government must provide Petitioner Doe with a constitutionally sufficient bond 26

27 1 Petitioner also filed an administrative motion to proceed under pseudonym. ECF 10. 1 hearing before an Immigration Judge (“IJ”) on or before October 20, 2023, where the Government 2 will bear the burden of proving by clear and convincing evidence that Doe remains a flight risk or 3 danger to the community. If the IJ does not issue a decision within 14 days from the date of the 4 bond hearing, Doe SHALL be released from detention. 5 I. BACKGROUND 6 Doe was born in Oaxaca, Mexico, and he was brought to the United States as an adolescent 7 after several instances of violence in his family’s community.2 Petition (ECF 1) ¶ 29. Doe had 8 two interactions with law enforcement that resulted in convictions soon after he turned 18 years 9 old. Petition ¶ 35. At age 18, in 2016, he was convicted of carrying a concealed weapon within a 10 vehicle, and sentenced to six months in jail and probation, with credit for time served and good 11 conduct credits. Petition ¶ 36. In 2017, he was convicted of two misdemeanor counts of 12 California Penal Code § 422, criminal threats; and one count of California Penal Code § 245(a)(4), 13 assault likely to cause bodily injury. Petition ¶ 37. After serving his sentence for the 2017 14 convictions, Doe was transferred to ICE custody and placed in removal proceedings. Petition ¶ 15 40. He was denied relief under the Convention Against Torture (“CAT”) and deported to Mexico 16 on July 22, 2019. Petition ¶ 40. 17 Doe’s family continued to face violence, and Doe himself was kidnapped and beaten upon 18 his return to Mexico. Petition ¶¶ 41-45. He crossed back into the United States in early 2021. 19 Petition ¶ 46. In August 2021, he pleaded no contest to a charge of misdemeanor trespassing that 20 arose from a March 2021 incident, and he served 30 days in county jail starting in October 2021. 21 Petition ¶ 48. Petitioner Doe was transferred to federal custody on November 14, 2021, and has 22 remained so since. Petition ¶¶ 18, 48-49. 23 ICE determined that Doe was subject to “mandatory” no-bond detention under Title 8

(c) and ineligible for a bond hearing because of his 2017 assault conviction under 25 California Penal Code § 245(a)(4). Petition ¶ 50. Doe complains of generally inhumane 26

27 2 The Court only briefly summarizes the conditions faced by Doe and his family in Mexico in the 1 conditions during the course of his detention as well as abusive treatment unique to him. Petition 2 ¶¶ 52-58. 3 During his most recent ICE detention, new removal proceedings were initiated against 4 Doe. Petition ¶ 69. He sought withholding of removal and relief under the CAT, which was 5 initially denied by the Immigration Judge (“IJ”). Petition ¶¶ 71-72. Doe appealed the IJ’s 6 determination, and the Board of Immigration Appeals remanded Doe’s case to the IJ after finding 7 several errors in the IJ’s assessment. Petition ¶¶ 73-74. 8 Doe submitted a release request to ICE on February 17, 2023. Petition ¶ 76. That request 9 was denied without explanation. Id. Doe filed the instant petition for writ of habeas corpus on 10 April 19, 2023. ECF 1. Following completion of briefing and before this Court acted on the 11 petition, the IJ issued a new order. ECF 21-1. The IJ ordered Doe removed to Mexico but granted 12 him withholding of removal under the CAT. Id. Both Doe and the Department of Homeland 13 Security (“DHS”) waived appeal. Id. The IJ’s order is final.

. Doe remains in 14 detention, and as made clear by his counsel at the hearing, nothing has changed regarding his 15 detention. 16 II. JURISDICTION 17 Doe filed this habeas petition pursuant to Title

, which allows district 18 courts to grant writs of habeas corpus “within their respective jurisdictions.”

(a). 19 Doe asserts that his continued detention violates his due process rights under the Fifth Amendment 20 of the United States Constitution, naming the Director of the San Francisco Field Office as one of 21 the respondents. Petition ¶¶ 8, 19. Respondents argue that jurisdiction and venue are proper in the 22 Eastern District of California where Doe was detained at the time of filing, citing Rumsfeld v. 23 Padilla,

(2004). Return at 6-7 (ECF 14 at 12-13). 24 Respondents’ argument runs squarely counter to Ninth Circuit precedent that “district 25 courts retain jurisdiction under

to consider habeas challenges to immigration 26 detention that are sufficiently independent of the merits of the removal order.” Lopez-Marroquin 27 v. Barr,

(9th Cir. 2020) (citing Singh v. Holder,

(9th Cir. 1 and falls within this Court’s jurisdiction, it is of little consequence where Petitioner is detained so 2 long as he remains in the Director’s custody. Saravia v. Sessions,

, 1187 3 (N.D. Cal. 2017), aff’d sub nom. Saravia for A.H. v. Sessions,

(9th Cir. 2018) 4 (citing Padilla,

); see, e.g., Pham v. Becerra, No. 23-CV-01288-CRB, 2023

, at *4 (N.D. Cal. Mar. 31, 2023); see also Salesh P. v. Kaiser, No. 22-CV-03018- 6 DMR,

, at *5 (N.D. Cal. Nov. 18, 2022) (collecting cases in the Northern 7 District finding jurisdiction over immigration habeas petitions filed by persons detained by the San 8 Francisco Field Office Director within the Eastern District). 9 Having found it has jurisdiction to consider the Petition, the Court turns to consider its 10 merits. 11 III. ENTITLEMENT TO A BOND HEARING 12 Doe advances that his continued detention under the mandatory detention provisions of the 13 Immigration and Nationality Act (“INA”) violates his Fifth Amendment right to due process and 14 seeks either release or, alternatively, a bond hearing on whether his continued detention is 15 justified. The Government argues against both forms of relief on the basis that the applicable 16 provisions of the INA require Doe’s continued detention. 17 A. Statutory Basis for Detention 18 The Due Process Clause of the Fifth Amendment to the United States Constitution forbids 19 the Government from depriving a person of life, liberty, or property without due process of law. 20 U.S. Const. Amend. V. “The fundamental requirement of due process is the opportunity to be 21 heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge,

, 333 22 (1976) (internal quotation marks and citation omitted). Civil detention violates due process 23 outside of “certain special and narrow nonpunitive circumstances.” Zadvydas v. Davis,

678, 690 (2001) (internal quotation marks and citation omitted). 25 Petitioner argues that constitutional due process entitles him to a bond hearing even though 26 the INA provisions governing his civil detention do not articulate a right to a bond hearing. See 27 generally ECF 1. At the time Doe filed this petition for writ of habeas corpus, he was detained 1 detain deportable aliens pursuant to § 1226(c),” Demore v. Kim,

(2003), district 2 courts frequently review constitutional challenges to such detention. See Perera v. Jennings, No. 3 21-CV-04136-BLF,

, at *3 (N.D. Cal. June 11, 2021) (collecting cases); see 4 also Nielsen v. Preap,

(2019) (“Our decision today on the meaning of 5 [§ 1226(c)] does not foreclose as-applied challenges – that is, constitutional challenges to 6 applications of the statute as we have now read it.”). A person detained under § 1226(c) “could be 7 entitled to an individualized determination as to his risk of flight and dangerousness if the 8 continued detention became unreasonable or unjustified” – such as if there were “an unreasonable 9 delay by the [Government] in pursuing and completing deportation proceedings.” Demore, 538 10 U.S. at 532 (Kennedy, J., concurring) (citations omitted). 11 As noted above, the IJ in Doe’s immigration case entered a final order of removal that 12 simultaneously granted relief under the CAT. ECF 21-1. Doe’s continued detention is now 13 governed by Title

(a), which provides that Doe “shall” be detained during the 90- 14 day period in which the Attorney General must remove him.3 Though the Government contends 15 that Doe’s continued detention is mandatory under Section 1231(a), it made the same argument 16 that Doe’s detention was mandatory when the statutory basis for detention was Section 1226(c). 17 Return at 8-10 (ECF 14 at 14-16). Both Section 1231(a) and Section 1226(c) provide that the 18 Attorney General “shall” detain an alien, but just as the “shall” in Section 1226 gives way to as- 19 applied due process challenges, so too must the “shall” in Section 1231(a). See, e.g., Demore, 538 20 U.S. at 526; Preap,

; Hernandez Gomez v. Becerra, No. 23-CV-01330-WHO, 21

, at *3 (N.D. Cal. Apr. 4, 2023). To the extent that Respondents aver that Doe 22 cannot be released under any circumstance during the removal period pursuant to Section 23 1231(a)(2), the clause they reference only applies to aliens convicted of certain crimes, not Doe. 24

§ 1231(a)(2) (“Under no circumstance during the removal period shall the Attorney General 25 release an alien who has been found inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this 26 3 If the detainee is held beyond the 90-day period, however, “§ 1231(a)(6) provides only that 27 certain aliens ‘may be detained’ while efforts to complete removal continue.” Jennings v. 1 title or deportable under section 1227(a)(2) or 1227(a)(4)(B) of this title.”). 2 Respondents argue in part that Doe’s petition is now moot in light of the change in the 3 basis for his detention. ECF 24 at 3-5. The Court need not address this line of argument other 4 than to acknowledge that a live controversy exists because Doe remains detained and to note that 5 the Court’s conclusion in this case is based on the length of Doe’s detention without a hearing, not 6 the statutory basis for his detention. In contrast to one of the orders cited by Respondents, 7 Quezada v. Hendricks,

(D.N.J. 2011), this Court does not find that the 8 statutory basis for detention impacts the analysis, particularly where the Government has made 9 clear that Doe’s continued detention is not speculative. See ECF 24 at 5-6. The IJ’s final order of 10 removal may have started a new clock for the Government to take a different type of action, but it 11 did not reset the clock as to the time Doe has been detained without a bond hearing. Doe’s 12 continued civil detention of more than 22 months without a hearing to consider the risks related to 13 his potential release on bond supports his due process claim. 14 Respondents cite to Judge Freeman’s similarly-titled case, Doe v. Becerra, for her denial of 15 a temporary restraining order to an immigration detainee held under Section 1231(a) who sought 16 habeas relief.

No. 23-CV-00072-BLF,

(N.D. Cal. Jan. 17, 2023). The 17 detainee in that case was similarly situated to the Petitioner in this case in that he had a final order 18 of removal that simultaneously granted relief under the CAT.

. However, that case is 19 inapposite to the circumstances here because the detainee in Judge Freeman’s case argued that 20 Section 1231(a) was unconstitutional as applied to him based exclusively on the unlikelihood that 21 DHS would be able to identify a third country that would accept him.

Judge Freeman 22 determined that the Doe petitioner could not challenge the constitutionality of his detention on that 23 basis within the 90-day period granted to the government by statute to identify a third country.

24 at 4. Petitioner here does not challenge his continued detention on the basis that the government 25 will not be able to identify a third country to which to remove him. Rather, Petitioner here asserts 26 that his continued detention violates his due process rights because he had already been detained 27 for 21 months without a bail hearing prior to the shift of the statutory basis for his detention to 1 similarly distinguishes the facts here from the Ninth Circuit’s determination in Khotesouvan that 2 habeas petitions filed during the 90-day period set forth in Section 1231(a)(2) do not contravene 3 due process principles. Khotesouvan v. Morones,

(9th Cir. 2004). 4 In sum, the Court finds that the shift in the statutory basis governing Doe’s detention does 5 not negate his constitutional rights nor substantively change the applicable due process analysis. 6 While statutory justification for Doe’s detention has shifted, nothing has changed as a practical 7 matter – his time behind bars continues to increase without any showing by Respondents that his 8 civil detention is necessary to achieve the Government’s non-punitive ends. As the Ninth Circuit 9 has explained, that is a constitutional problem regardless of which statute currently applies. See 10 Rodriguez v. Marin,

(9th Cir. 2018) (“We have grave doubts that any statute 11 that allows for arbitrary prolonged detention without any process is constitutional or that those 12 who founded our democracy precisely to protect against the government’s arbitrary deprivation of 13 liberty would have thought so.”). The Court therefore proceeds to assess the merits of Doe’s due 14 process claim. 15 B. Due Process and Doe’s Continued Detention 16 Doe argues that he is entitled to a bond hearing on two bases. First, he argues that 17 immigration detention lasting longer than six months becomes unconstitutionally prolonged. 18 Petition ¶ 127. Second, he argues that the balance of factors under Mathews v. Eldridge,

(1976), require a bond hearing in his case. Petition ¶¶ 128-135. Respondents argue that no 20 binding precedent supports a “bright-line” six-month rule. Return at 12-14 (ECF 14 at 18-20). 21 Respondents also argue that Mathews does not apply to mandatory detention under § 1226(c), and, 22 in the alternative, the Mathews factors do not require an additional hearing in this case. Return at 23 14-19 (ECF 14 at 20-25). 24 Although Doe additionally argues that his nearly two-year civil detention violates 25 substantive due process because it is excessive and unnecessary in relation to its purpose, the 26 Court declines to reach that inquiry because it ultimately grants relief based on Doe’s procedural 27 due process challenge to his continued civil detention under the test set forth in Mathews,

meaningful manner.’” Mathews,

(citation omitted). Under Mathews, courts 2 consider (1) the individual’s private interest that will be impacted by the official action, (2) the 3 risk of erroneous deprivation of that interest and the probable value of additional procedural 4 safeguards, and (3) the government’s interest.

. The Court addresses these 5 considerations in turn. 6 1. Individual’s Interest 7 The “main private interest at stake” here is Doe’s interest in “[f]reedom from 8 imprisonment – from government custody, detention, or other forms of physical restraint.” 9 Perera,

, at *4 (quoting Zadvydas v. Davis,

(2001)); see also 10 De Paz Sales v. Barr, No. 19-cv-04148-KAW,

, at *7 (N.D. Cal. Sept. 30, 11 2019) (finding a strong private interest where the petitioner “risks continued detention absent a 12 bond hearing”). “[L]iberty is the norm, and detention prior to trial or without trial is the carefully 13 limited exception.” Rodriguez v. Marin,

(9th Cir. 2018) (quoting United 14 States v. Salerno,

(1987)). 15 In this case, Doe has been detained for over 22 months without a bond hearing, and there is 16 no reasonably certain end to his detention. Although the clock has started to run on his 90-day 17 detention period under Section 1231(a), Respondents fail to provide any certainty regarding the 18 timing of Doe’s removal. Such uncertainty is only exacerbated by the IJ’s grant of relief under the 19 CAT because the Government cannot simply remove him to Mexico, his country of origin. See 20 Zadvydas,

(petitioners had final removal orders but no countries willing to 21 accept them).4 As Petitioner cites, an extremely limited number of persons granted withholding of 22 removal were deported to a third country. See ECF 23 at 5 n.2 (citing American Immigration 23 Council, The Difference Between Asylum and Withholding of Removal, at 7, available at: 24 https://perma.cc/6U37-WZ7C). Doe is now in a similar situation, and the IJ’s order in his case 25 therefore contributes to the possibility of his indefinite detention. In light of Doe’s interests in 26 4 Doe is only a citizen of Mexico. See ECF 16, at 8. Even if DHS found another country willing 27 to accept Doe, they would have to provide him with notice and opportunity to apply for 1 being free from detention, the Court finds that the first Mathews factor weighs in Doe’s favor. 2 2. Risk of Erroneous Deprivation of Private Interest 3 The Court next examines the value of additional safeguards given the risk of erroneous 4 deprivation of Doe’s rights. See Mathews,

. Respondents argue that there is no 5 risk of erroneous deprivation of rights because Petitioner has already received all the procedural 6 protections necessary – he has been found guilty of original charges in state court, and those 7 convictions render him removable. See Return at 17 (ECF 14 at 23). The Government 8 misconstrues the second factor. In the over 22 months that Doe has been deprived of his liberty, 9 he has never had a bond hearing to evaluate the necessity of his ongoing civil detention. In these 10 circumstances, the value of additional procedural safeguards in the form of a bond hearing is 11 substantial given the risk of erroneous deprivation of Doe’s rights. See Rajnish,

7626414, at *9 (holding that “the value added by another hearing is great” where petitioner had 13 been held for nine months since an “unconstitutional” initial bond hearing that “assigned the risk 14 of error to him, not to the government” and there had been “important developments” in the 15 proceedings); see also Pham,

, at *6 n.9 (citing Preap,

) 16 (finding a risk of erroneous deprivation even though petitioner was subject to mandatory detention 17 as “successful due process challenges to mandatory detention would require additional process” 18 such as a bond hearing). At the hearing, moreover, the Government reiterated its position that Doe 19 must remain in detention, demonstrating that it will not provide Doe with a bond hearing unless 20 ordered to do so. Given the lack of particularized fact-finding related to Doe’s flight risk and/or 21 danger to the community, the Court finds that second Mathews factor also weighs in Doe’s favor. 22 3. Government Interest 23 Respondents argue that there is a “legitimate government purpose” in detaining noncitizens 24 during the pendency of their removal proceedings. Return at 18 (ECF 14 at 24) (quoting Prieto- 25 Romero v. Clark,

(9th Cir. 2008) (citation omitted)). However, the 26 government’s interest at issue here is “the ability to detain [Doe] without providing him with [a] 27 bond hearing, not whether the government may continue to detain him.” Lopez Reyes,

v. United States Citizenship & Immigr. Servs.,

, 810 (9th Cir. 2020) (citing Mathews, 2 424 U.S. at 335) (noting that the third factor considers the “burden that the additional or substitute 3 procedural requirement would entail,” not the government’s substantial interest in immigration 4 enforcement “in general”). 5 Respondents focus their argument on how detaining Doe facilitates his removal upon 6 completion of the removal proceedings. Yet Respondents do not explain how providing Doe with 7 a bond hearing after more than 22 months of detention would undermine their interest in detaining 8 individuals who are a flight risk or dangerous to the community, the more specific question 9 presented by Doe’s petition. See Perera,

at *5 (“Requiring the government to 10 provide Perera with a bond hearing does not meaningfully undermine the government’s interest in 11 detaining non-citizens who pose a danger to the community or are a flight risk”); see also Diaz v. 12 Becerra, No. 22-CV-09126-DMR,

, at *8 (N.D. Cal. May 2, 2023) (same); 13 Hernandez Gomez,

at *4 (same). Accordingly, the Government’s interest here 14 is minimal compared to Doe’s interest in being free from detention. 15 Having weighed the Mathews factors, the Court concludes that Doe’s continued detention 16 without an individualized bond hearing violates his due process rights under the Fifth 17 Amendment. Because the Court grants Doe’s habeas petition on this basis, it need not consider 18 whether to adopt a “bright-line” rule that individuals detained under Section 1226(c) are entitled to 19 a bond hearing after six months.5 20 C. Burden of Proof 21 The parties also dispute whether the Government bears the burden of proof should the 22 Court order a bond hearing. Doe argues that under Singh v. Holder,

(9th Cir. 23 2011), the government bears the burden of proving by clear and convincing evidence that further 24 detention is warranted. Petition ¶ 152. Respondents argue that Rodriguez Diaz v. Garland, 53 25 5 Courts in this district have declined to adopt a “bright-line” rule, pointing to the “dearth of 26 guidance regarding the point at which an individual’s continued mandatory detention under Section 1226(c) becomes unconstitutional.” Bent v. Barr, No. 19-CV-06123-DMR,

1677332, at *7 (N.D. Cal. Apr. 6, 2020) (citations omitted); see, e.g., Diaz v. Becerra, No. 22-CV-

(9th Cir. 2022), called into question the holding of Singh, and based on Fourth Circuit 2 authority, Petitioner should bear the burden of proof to support his release. See Return at 22 (ECF 3 14 at 28) (citing Miranda v.Garland,

(4th Cir. 2022)). 4 The Court agrees with Doe that the Government bears the burden of proof. In Singh, the 5 Ninth Circuit held that “the government must prove by clear and convincing evidence that an alien 6 is a flight risk or a danger to the community to justify denial of bond,” because “civil commitment 7 for any purpose constitutes a significant deprivation of liberty.”

(emphasis in 8 original) (citation omitted). Rodriguez-Diaz considered whether a second bond hearing was 9 constitutionally required in the Section 1226(a) context, and specifically declined to decide 10 whether Singh remains good law in Section 1226(c) cases. See Rodriguez-Diaz, 53 F.4th at 1202 11 & n.4. Thus, “[a]bsent controlling authority to the contrary, the reasoning of Singh and its holding 12 remain applicable to § 1226(c) cases, like this one, where there is a ‘substantial liberty interest at 13 stake.’” Pham,

at *7 (citation omitted). 14 The Court follows Singh’s reasoning and holds that the Government bears the burden of 15 proving by clear and convincing evidence that further detention is warranted. See, e.g., Doe v. 16 Garland, No. 3:22-CV-03759-JD,

, at *2 (N.D. Cal. Jan. 10, 2023) (holding 17 that the government bears the burden in a constitutionally required bond hearing in the Section 18 1226(c) context post-Rodriguez-Diaz); Salesh P.,

, at *9 (“At the hearing, the 19 government must justify his continued detention [under § 1226(c)] by establishing by clear and 20 convincing evidence that he is a flight risk or a danger to the community”); see also Hernandez 21 Gomez,

at *4 (collecting cases that the government bears the burden of proof). 22 The Court additionally finds that the bond hearing should be conducted by an IJ, not the 23 Court. See Mansoor v. Figueroa, No. 17-cv-01695-GPC (NLS),

, at *4 (S.D. 24 Cal. Feb. 13, 2018) (“The Court finds the IJ is uniquely qualified and situated to make neutral 25 administrative determinations about Petitioner’s eligibility for release on bond and/or placement in 26 a supervised release program.”). Although both sides acknowledged at the hearing that an IJ may 27 doubt his or her authority to conduct such a bond hearing, courts in this Circuit have regularly 1 of flight or dangerousness to the community. See, e.g., Martinez v. Clark,

, 1223 2 (9th Cir. 2022) (“district courts throughout this circuit have ordered immigration courts to conduct 3 bond hearings for noncitizens held for prolonged periods”). 4 CONCLUSION 5 The Court GRANTS Doe’s Petition in part, and ORDERS that the Government provide 6 || him with a constitutionally compliant bond hearing before an immigration judge within 14 7 || days from the date of this Order. The Government shall bear the burden of proving by clear and 8 convincing evidence that Doe is a flight risk or a danger to the community. If the immigration 9 || judge does not issue a decision within 14 days of the bond hearing, Doe SHALL be released from 10 detention. The Court ORDERS Respondents to file on the docket (and under seal, if necessary) 11 copies of any orders issued by the immigration judge. 12 IT IS SO ORDERED. 13 Dated: October 6, 2023

| □ 3 15 coh: J ARACELI MARTINEZ-OLGUIN = 16 United States District Judge 17

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