Dolores De Gomez v. Loretta E. Lynch ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DOLORES SANCHEZ DE GOMEZ, as No. 10-56542
next friend of Guillermo Gomez-Sanchez,
D.C. No. 3:10-cv-00652-JM-JMA
Petitioner - Appellant,
v. MEMORANDUM*
ROBIN BAKER, Field Office Director,
San Diego District, United States Bureau
of Immigration and Customs Enforcement
(ICE); et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted October 12, 2011
Pasadena, California
Before: PREGERSON and D.W. NELSON, Circuit Judges and LYNN,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for the Northern District of Texas, sitting by designation.
Guillermo Gomez-Sanchez (“Gomez”), by and through his mother and next
friend Dolores Sanchez De Gomez, appeals the district court’s order dismissing as
moot Gomez’s petition for writ of habeas corpus. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
Gomez is no longer in immigration detention and the government has
offered assurances through a supplemental declaration from San Diego ICE
Assistant Field Office Director Scott C. Hamelin (“Hamelin Declaration”) that
Gomez will not be re-detained. Release from custody does not necessarily render a
habeas petition moot. See Rodriguez v. Hayes, 591 F.3d 1105, 1117-18 (9th Cir.
2010). Here, however, the government may terminate Gomez’s release only in the
three narrow circumstances identified in the Hamelin Declaration: (1) Gomez
violates the terms of his release; (2) a final order of removal is issued against him;
or (3) ICE is required by law to re-detain him. Pursuant to the Hamelin
Declaration, the government “is not free to avoid the boundaries of its commitment
by invoking section [8 U.S.C. §] 1226(c) in this case.”
We are satisfied with the government’s assurances that it will not, under any
other circumstance, re-detain Gomez—including the government’s concession that
the third circumstance “does not mean that ICE can re-detain [Gomez] if its view
of the applicable law changes,” rather it means only that the government
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“preserv[es] the possibility that Congress could amend the Immigration and
Nationality Act or [DHS] could engage in a rulemaking that would modify the
current legal landscape.” We are also convinced that this declaration ensures that
Gomez, should he ever be re-detained under one of the three circumstances listed
in the Hamelin Declaration, will be given the right to a bond hearing before a
neutral decision-maker where the government has the burden of establishing that
he is a flight risk or a danger to the community. See id. at 1117.
Based on the Hamelin Declaration, we also find that the voluntary cessation
doctrine does not apply because the “allegedly wrongful behavior could not
reasonably be expected to recur.” Rosemere Neighborhood Ass’n v. EPA, 581 F.3d
1169, 1173 (9th Cir. 2009) (internal quotation marks omitted); see also Picrin-
Peron v. Rison, 930 F.2d 773, 775-76 (9th Cir. 1991) (noting that none of the
voluntary cessation cases have arisen in the context of a habeas petition).
Finally, Gomez did not challenge the reasonableness of the electronic
monitoring as a condition for release before the district court, and he did not seek
to ameliorate the conditions of his release by seeking a redetermination before the
Immigration Judge as required under 8 C.F.R. § 236.1(d)(1). Thus, Gomez did not
exhaust his administrative remedies as to this issue and it is not properly before
this court.
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AFFIRMED.
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