Ortiz Vargas v. Jennings ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SIMON ORTIZ VARGAS, Case No. 20-cv-5785-PJH 8 Petitioner, 9 v. ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR 10 DAVID JENNINGS, et al., TEMPORARY RESTRAINING ORDER; ORDER TO SHOW CAUSE 11 Respondents. 12 13 14 Before the court is the represented motion for a temporary restraining order 15 (“TRO”) filed by petitioner Simon Ortiz Vargas in the above-captioned matter. Opposition 16 to the TRO motion was filed by respondents David Jennings, San Francisco Field Office 17 Director, U.S. Immigration and Customs Enforcement; Matthew T. Albence, Deputy 18 Director and Senior Official Performing the Duties of the Director, U.S. Immigration and 19 Customs Enforcement; Chad Wolf, Acting Secretary of the U.S. Department of Homeland 20 Security; and William P. Barr, Attorney General of the United States. Petitioner filed a 21 reply brief on August 21, 2020. The matter is fully briefed and the court determines that 22 the matter is suitable for decision without oral argument. For the reasons set forth below, 23 petitioner’s motion for temporary restraining order is GRANTED IN PART with respect to 24 enjoining respondents from re-detaining petitioner unless and until he is afforded a 25 hearing on the question of whether his re-detention would ultimately be lawful. To the 26 extent that petitioner’s TRO motion seeks a judicial pre-deprivation hearing, the motion 27 for TRO is DENIED IN PART. 1 I. BACKGROUND 2 The following factual summary is taken from the allegations of the habeas petition 3 and supporting declarations and from the papers filed in support of and in opposition to 4 the instant motion for TRO. 5 Petitioner is a 42-year-old non-citizen from Mexico who is married and the father of 6 four children. In 2010, he pled guilty to a misdemeanor violation of California Penal Code 7 Section 273.5(a) in Fresno County Superior Court case number F10500202. See dkt. 5- 8 2 (Kosmo Decl.) at 67 (Minute Order) ¶¶ 14-15. At that time, he signed a Misdemeanor 9 Plea Form indicating that he “inflicted injury on wife.” Id. at 64. The state court 10 suspended imposition of sentence and imposed three years of probation with the 11 condition that petitioner would serve 360 days in county jail, “all suspended except 40 12 days” time served. Id. at 67 ¶¶ 22-23. 13 On August 6, 2019, the state court found that petitioner had violated his probation 14 in connection with his California Penal Code § 273.5(a) conviction. Dkt. 5-2 at 71–72. 15 The court sentenced petitioner to “[s]erve 90 Days at Fresno County Jail as to count(s) – 16 1. Corporal Injury – on Spouse/Cohabitant.” Id. at 72. In late August 2019, Petitioner 17 was taken into immigration custody directly from the Fresno County Jail after serving his 18 sentence in case number F10500202. Dkt. 5-2 at 12. Petitioner was detained at the 19 Mesa Verde facility from late August 2019 to December 2019. Id. While in ICE custody 20 and awaiting a bond hearing, Mr. Ortiz fell gravely ill and was hospitalized with 21 hyperosmolar nonketotic hyperglycemia and diabetic ketoacidosis, life-threatening 22 conditions resulting from untreated and severely uncontrolled diabetes. Dkt. 5-3 (Kosmo 23 Decl.) at 3, 113, 119. He spent four days in an intensive care unit and was told that he 24 fell into a diabetic coma. 25 On December 6, 2019, the immigration judge (“IJ”) conducted a bond hearing and 26 ordered that petitioner be released if he paid a $10,000 bond. In doing so, she found that 27 petitioner was not subject to the INA’s mandatory detention provisions at Section 236(c), 1 had the authority to grant petitioner release on bond. On December 23, 2019, 2 Petitioner’s bond was posted, and he was released on bond. Dkt. 5-2 at 12, 46. On 3 January 29, 2020, the IJ issued, sua sponte, an order reconsidering the prior bond 4 decision and revoking bond based on the finding that petitioner’s conviction under Penal 5 Code § 273.5 constituted a crime involving moral turpitude and that he was therefore 6 subject to mandatory custody under INA § 236(c). Dkt. 5-3 at 198-203. On February 27, 7 2020, petitioner filed a notice of appeal to the Board of Immigration Appeals (“BIA”) from 8 the IJ’s January 29, 2020, decision. The appeal before the BIA remains pending. 9 II. LEGAL STANDARD 10 Federal Rule of Civil Procedure 65 provides federal courts with the authority to 11 issue temporary restraining orders and preliminary injunctions. Fed. R. Civ. P. 65(a), (b). 12 Generally, the purpose of a preliminary injunction is to preserve the status quo and the 13 rights of the parties until a final judgment on the merits can be rendered, see U.S. Philips 14 Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010), while the purpose of a 15 temporary restraining order is to preserve the status quo before a preliminary injunction 16 hearing may be held. See Granny Goose Foods, Inc. v. Bhd. of Teamsters and Auto 17 Truck Drivers, 415 U.S. 423, 439 (1974). Requests for temporary restraining orders are 18 governed by the same general legal standards that govern the issuance of a preliminary 19 injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 20 (1977); Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 21 (9th Cir. 2001). 22 A petitioner seeking a temporary restraining order must establish that (i) he is 23 likely to succeed on the merits, (ii) that he is likely to suffer irreparable harm in the 24 absence of preliminary relief, (iii) that the balance of equities tips in his favor, and (iv) that 25 an injunction is in the public interest. Winter, 555 U.S. at 20. Alternatively, the petitioner 26 may demonstrate that the likelihood of success is such that “serious questions going to 27 the merits were raised and that the balance of hardships tips sharply in the plaintiff's 1 Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011). 2 III. DISCUSSION 3 A. Winter Factors and Sliding Scale Test 4 Having been released on bond before the immigration judge reconsidered her 5 bond decision and revoked the bond on January 29, 2020, petitioner seeks narrow relief 6 on the present TRO motion, limited to the question whether he is entitled to a judicial 7 hearing before re-arrest or re-detention by ICE, not the substantive question whether he 8 is subject to mandatory detention. Because this procedural due process question is not 9 before the BIA on petitioner’s bond appeal, the government’s prudential exhaustion 10 arguments in opposition to the TRO motion are inapposite. 11 Looking to the Winter factors, the court first considers whether petitioner has 12 demonstrated likelihood of success on the merits of his claims. In the absence of 13 controlling authority recognizing a due process right to a judicial hearing before re-arrest 14 or re-detention by immigration authorities, petitioner fails to show a strong likelihood of 15 success under Winter. However, under the Ninth Circuit’s alternative sliding scale 16 approach, petitioner has certainly raised “serious questions going to the merits” of his 17 procedural due process claim. Alliance for the Wild Rockies, 632 F.3d at 1131–32. 18 The due process issue arising from re-arrest following release on bond in the 19 immigration context is likely to come before the Ninth Circuit on the government’s appeal 20 in Ortega v. Bonnar, No. 3:18-cv-03228-WHO, 415 F. Supp. 3d 963, 968 (N.D. Cal. 21 2019), notice of appeal filed, No. 20-15754 (9th Cir. Apr. 22, 2020) (opening brief due 22 Sept. 30, 2020 per Aug. 5, 2020 clerk’s order). In Ortega, the court granted the habeas 23 petition by a lawful permanent resident from El Salvador who had been released on bond 24 from immigration detention and asserted an as-applied due process challenge to the 25 DHS’s ability to re-arrest him without a hearing before an IJ to determine whether there 26 had been a material change of circumstance. In granting the habeas petition, the court in 27 Ortega recognized that “the DHS has authority to revoke a noncitizen’s bond or parole ‘at 1 (citing 8 U.S.C. § 1226(b)). See also 8 C.F.R. § 236.1(c)(9) (“When an alien who, having 2 been arrested and taken into custody, has been released, such release may be revoked 3 at any time in the discretion of the district director, acting district director, deputy district 4 director, assistant district director for investigations, assistant district director for detention 5 and deportation, or officer in charge (except foreign), in which event the alien may be 6 taken into physical custody and detained.”). However, as the court stated in Ortega, the 7 BIA has limited this authority such that, in practice, the DHS re-arrests non-citizens only 8 after a “material” change in circumstances: “‘where a previous bond determination has 9 been made by an immigration judge, no change should be made by [the DHS] absent a 10 change of circumstance.’” Id. (quoting Matter of Sugay, 17 I. & N. Dec. 637, 640 (BIA 11 1981)). 12 The court in Ortega also recognized the principle that “‘the government’s discretion 13 to incarcerate non-citizens is always constrained by the requirements of due process.’” 14 Id. (quoting Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017)). The court found 15 that Ortega had a protectable liberty interest in remaining out of custody on bond, similar 16 to the liberty interests of people on pre-parole, parole and probation as recognized under 17 Supreme Court authority. Id. at 969–70 (citing Young v. Harper, 520 U.S. 143, 150 18 (1997) (pre-parole); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (probation); Morrissey 19 v. Brewer, 408 U.S. 471, 482 (1972) (parole)). 20 The government argues that even assuming that petitioner has a liberty interest in 21 continued release on bond, the existing procedures provided to petitioner if re-arrested 22 are constitutionally adequate and no additional process is required. Opp. at 16–19. 23 When evaluating a procedural due process claim, the court considers the following 24 factors under the Mathews framework: (1) “the private interest that will be affected by the 25 official action;” (2) “the risk of an erroneous deprivation of such interest through the 26 procedures used, and the probable value, if any, of additional or substitute procedural 27 safeguards;” and (3) “the Government’s interest, including the function involved and the 1 would entail.” Hernandez, 872 F.3d at 993 (quoting Mathews v. Eldridge, 424 U.S. 319, 2 335 (1976)). Applying the Mathews framework to evaluate the procedural due process 3 claim in Ortega, the court found that the relevant factors weighed in favor of a pre- 4 deprivation hearing if ICE decided to re-arrest him after being released on bond. Ortega, 5 415 F. Supp. 3d at 970. Similarly, petitioner here has shown that all three factors under 6 the Mathews framework support a pre-deprivation administrative hearing: (1) a 7 substantial private interest in remaining on bond to continue to provide care and financial 8 support for his family; (2) the high risk of erroneous deprivation given the government’s 9 position that re-detention is warranted and the substantial value of the safeguard 10 proposed by petitioner—that is, a pre-deprivation hearing on whether re-detention would 11 be lawful; and (3) the low level of the government’s interest in re-arresting petitioner 12 without a hearing before an IJ, where the government’s concern that delay in scheduling 13 a hearing could exacerbate flight risk or danger is unsubstantiated in light of petitioner’s 14 strong family ties and his continued employment during the pandemic as an essential 15 agricultural worker. Mot. at 24–25. 16 In light of the persuasive reasoning of Ortega, and the ongoing litigation over the 17 procedural due process claim granted by the court there, the court finds that petitioner 18 has raised serious questions on the merits of his claim that he is entitled to a pre- 19 deprivation hearing before an immigration judge if he is re-arrested. Petitioner offers no 20 authority, however, expressly recognizing a due process right in the immigration context 21 to a judicial hearing, rather than an administrative hearing, prior to re-arrest or re- 22 detention, and fails to show that serious questions have been raised as to that part of his 23 due process claim. 24 The government seeks to distinguish Ortega on the ground that it arose in the 25 context of bond revocation pursuant to 8 U.S.C. § 1226(b), which applies to bonds 26 authorized under § 1226(a), rather than bond revocation upon a finding that petitioner is 27 subject to mandatory detention under § 1226(c) as the IJ ruled on reconsideration of her 1 presented in Ortega arising from the re-arrest or re-detention of a non-citizen after 2 release on bond is similar to the procedural due process claim brought by petitioner here, 3 and demonstrates that there are serious questions on the merits of his claim. 4 Petitioner has also demonstrated that the balance of hardships tips sharply in his 5 favor because absent injunctive relief, petitioner could be taken into ICE custody at any 6 time, subjecting his family to economic hardship and the loss of their caretaker. 7 Petitioner raises a particular concern that he could be arrested when he appears in state 8 court on August 24, 2020. Mot. at 8. Petitioner has demonstrated through several 9 affidavits that other non-citizens in his community have been detained without notice in 10 their neighborhoods or when appearing for court hearings. Dkt. 14-1 (Suppl. Patel Decl.), 11 Exs. A, B, E. Petitioner has also demonstrated that if he is re-arrested, his $10,000 bond 12 will be automatically revoked and the funds would not be available for several weeks or 13 months to post another bond if a bond is re-granted. Id. ¶ 7 and Ex. D. The Ninth Circuit 14 has recognized “the irreparable harms imposed on anyone subject to immigration 15 detention (or other forms of imprisonment).” Hernandez v. Sessions, 872 F.3d 976, 995 16 (9th Cir. 2017). Particularly in the midst of the current COVID-19 pandemic, petitioner’s 17 history of diabetes complications requiring hospitalization while in ICE custody last year 18 combined with the risk of exposure to COVID-19 in ICE detention support a likelihood of 19 irreparable harm upon re-detention. By contrast, any impact on respondents would be 20 minimal. The IJ previously found as a factual matter that petitioner did not pose a risk of 21 danger or flight that could not be mitigated by a sufficient bond. Under these 22 circumstances, the balance of hardships tips sharply in petitioner’s favor, and the Winter 23 factor of likelihood of irreparable harm is satisfied. 24 As the sliding scale test for injunctive relief also requires consideration of the 25 public interest factor under Winter, the balance of harms and public interest factors 26 merge when the government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 27 (2009). Just as the public has an interest in “the orderly and efficient administration of 1 procedural protections against unlawful detention. Petitioner has demonstrated that 2 avoiding collateral hardship to his family, benefiting from his continued employment in 3 essential agricultural services, and reducing his risk of severe medical complications from 4 exposure to COVID-19 in ICE detention would serve the public interest. Further, “the 5 general public’s interest in the efficient allocation of the government’s fiscal resources” 6 favors granting the TRO. Hernandez, 872 F.3d at 996. The Ninth Circuit has recognized 7 that “[t]he costs to the public of immigration detention are ‘staggering.’” Meza v. Bonnar, 8 2018 WL 2554572, at *4 (N.D. Cal. June 4, 2018) (quoting Hernandez, 872 F.3d at 996). 9 Given the low risk that petitioner would cause harm to others or flee, in light of his strong 10 family ties, financial responsibilities and work commitments, such government 11 expenditure in this case would not greatly serve the interests of the general public. 12 Under the sliding scale test, petitioner has sufficiently demonstrated serious 13 questions going to the merits and the balance of hardships tipping sharply in his favor, as 14 well as the Winter factors of likelihood of irreparable injury and public interest, to support 15 issuance of a temporary restraining order. Alliance for the Wild Rockies, 632 F.3d at 16 1135. 17 B. Security 18 A temporary restraining order may be issued “only if the movant gives security in 19 an amount that the court considers proper to pay the costs and damages sustained by 20 any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). 21 The Ninth Circuit has “recognized that Rule 65(c) invests the district court with discretion 22 as to the amount of security required, if any.” Jorgensen v. Cassiday, 320 F.3d 906, 919 23 (9th Cir. 2003) (internal quotation marks and citation omitted). “The district court may 24 dispense with the filing of a bond when it concludes there is no realistic likelihood of harm 25 to the defendant from enjoining his or her conduct.” Id. Because respondents have not 26 demonstrated actual prejudice that would result from the TRO, and petitioner has already 27 posted a $10,000 bond before the immigration court, the court finds it appropriate to 1 IV. CONCLUSION 2 For the reasons set forth above, the court GRANTS IN PART petitioner’s motion 3 for a temporary restraining order for a period of 21 days, through September 14, 2020, to 4 allow sufficient time for the parties to file responses to an order to show cause why a 5 preliminary injunction should not issue, during which time respondents are enjoined from 6 re-detaining petitioner unless and until he is afforded a pre-deprivation administrative 7 hearing on the question of whether his re-detention would ultimately be lawful. 8 Petitioner’s TRO motion is DENIED IN PART with respect to his request that re-arrest or 9 re-detention would require a pre-deprivation judicial hearing. 10 Accordingly, respondents are hereby ORDERED TO SHOW CAUSE why a 11 preliminary injunction should not issue enjoining respondents from re-detaining petitioner 12 as ordered herein. Respondents must file any response to the order to show cause on or 13 before August 31, 2020, and petitioner may file a reply on or before September 7, 2020. 14 The matter will thereafter be decided on the papers. 15 IT IS SO ORDERED. 16 Dated: August 23, 2020 17 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 18 United States District Judge 19 20 21 22 23 24 25 26 27