Jose Bello-Reyes v. Peter Gaynor

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE OMAR BELLO-REYES, No. 19-16441
Petitioner-Appellant,
D.C. No.
v. 3:19-cv-03630-
SK
PETER T. GAYNOR, Acting Secretary
of Homeland Security; JONATHAN
FAHEY, Senior Official Performing OPINION
the Duties of the Director; ERIK
BONNAR, Field Office Director, San
Francisco Field Office; JEFFREY A.
ROSEN, Acting Attorney General,
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of California
Sallie Kim, Magistrate Judge, Presiding
Argued and Submitted November 17, 2020
San Francisco, California
Filed January 14, 2021
Before: Sidney R. Thomas, Chief Judge, and Mary M.
Schroeder and Marsha S. Berzon, Circuit Judges.
Opinion by Chief Judge Thomas
2 BELLO-REYES V. GAYNOR
SUMMARY*
Immigration
In a case in which Jose Omar Bello-Reyes filed a petition
for a writ of habeas corpus under 8 U.S.C. § 2241, arguing
that his immigration arrest and re-detention was retaliation
for his protected speech, the panel reversed the district court’s
denial of the petition and remanded for application of the
standard from Mt. Healthy City Bd. of Educ. v. Doyle, 429
U.S. 274 (1977).
In 2018, Bello was detained by Immigration and Customs
Enforcement (“ICE”) and released on bond and, in April
2019, he was convicted of driving under the influence. On
May 13, 2019, Bello spoke publicly at a rally and read his
poem, entitled “Dear America,” in which he criticized ICE
practices. Less than thirty-six hours later, ICE revoked his
bond and re-arrested him. In denying Bello’s habeas petition,
the magistrate judge relied on Nieves v. Bartlett, 139 S. Ct.
1715 (2019), in which the Supreme Court held that the
presence of probable cause generally defeats a retaliatory
criminal arrest claim under 42 U.S.C. § 1983.
The panel concluded that Nieves did not control here.
First, the panel explained that problems of causation that may
counsel for a no probable cause standard are less acute in the
habeas context. Specifically, in § 1983 suits, the plaintiff
must identify the official or officials who violated his
constitutional rights, but that is not so in habeas. Second, the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BELLO-REYES V. GAYNOR 3
panel explained that Nieves arose out of the criminal context,
where evidence of probable cause for arrest will be available
in virtually every retaliatory arrest case, but that this
reasoning does not translate to the immigration bond
revocation context, where probable cause is not necessary,
and the decision is completely discretionary.
The panel remanded to the district court to apply the Mt.
Healthy standard, the default rule for First Amendment
retaliation claims. Under Mt. Healthy, once a petitioner has
made a showing of a retaliation claim, the burden shifts to the
government to show that it would have taken the same action
even in the absence of the protected conduct. The panel
explained that the district court applied this standard
incorrectly, but that it correctly remarked that the timing of
ICE’s decision to re-arrest Bello was highly suggestive of
retaliatory intent.
COUNSEL
Jordan Wells (argued), Ahilan Arulanantham, Stephanie
Padilla, and Michael Kaufman, American Civil Liberties
Union Foundation of Southern California, Los Angeles,
California; Angélica H. Salceda and Vasudha Talla,
American Civil Liberties Union Foundation of Northern
California, San Francisco, California; for Petitioner-
Appellant.
Michael A. Celone (argued), Senior Litigation Counsel;
William C. Silvis, Assistant Director; William C. Peachey,
Director; Joseph H. Hunt, Assistant Attorney General; Office
of Immigration Litigation, Civil Division, United States
4 BELLO-REYES V. GAYNOR
Department of Justice, Washington, D.C.; for Respondents-
Appellees.
Michael Risher, Law Office of Michael T. Risher, Berkeley,
California; Alina Das, Washington Square Legal Services,
New York, New York; Nora Benavidez, Director, U.S. Free
Expression Programs, PEN America, New York, New York;
for Amicus Curiae PEN America.
OPINION
THOMAS, Chief Judge:
This case requires us to consider whether the Supreme
Court’s recent decision in Nieves v. Bartlett, 139 S. Ct. 1715(2019), applies to a noncitizen’s claim that Immigration and
Customs Enforcement (“ICE”) unconstitutionally retaliated
against him for his speech when revoking his bond and re-
arresting him. Jose Bello-Reyes (“Bello”) had been detained
by ICE and released on bond in 2018. On May 13, 2019,
Bello spoke at a rally and read a poem of his own writing,
entitled “Dear America.” In this poem, he publicly criticized
ICE enforcement and detention practices. Less than thirty-six
hours later, ICE revoked his bond and re-arrested him. The
Government contends that ICE had probable cause to arrest
Bello, and thus his retaliatory arrest argument fails under
Nieves. See 139 S. Ct. at 1727. We agree with Bello,
however, that the distinctions between Nieves and Bello’s
habeas petition indicate that Nieves should not control in this
case. We reverse and remand for the application of the
standard from Mt. Healthy City Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977).
BELLO-REYES V. GAYNOR 5
I
In May 2018, Bello was initially arrested by ICE,
detained, and issued with a notice to appear (“NTA”)
charging him as being “present in the United States without
admission or parole” and initiating removal proceedings.
Bello had been living in California for most of his life after
arriving in the United States without documentation in 2000,
at age three. He was released from detention on a $10,000
bond secured by community groups in August 2018. After
his release, Bello became an outspoken activist, publicly
decrying ICE’s policy’s and practices. His removal
proceedings continued, and he applied for cancellation of
removal and relief in the form of a U visa.1
Bello was arrested for driving under the influence
(“DUI”) in January 2019. He pleaded nolo contendere and
was convicted on April 11, 2019. He was sentenced to five
days in jail, which was stayed until May 13, 2019, although
he requested it be further delayed due to a work program he
was planning on attending.
On May 13, 2019, Bello spoke at a rally protesting Kern
County law enforcement’s involvement with ICE, a
“videotaped, livestreamed, and widely publicized event,” and
read a poem of his own writing entitled “Dear America.” In
this poem, he criticized ICE enforcement and immigration
1
U visas are available to victims of certain crimes who assist law
enforcement officials “investigating or prosecuting criminal activity,” as
described in 8 U.S.C. § 1101(a)(15)(U). Bello is awaiting a response to
his U visa application; if deemed eligible, he would be granted deferred
action and placed on a waiting list, as U visas are capped at 10,000 a year.
8 C.F.R. § 214.14(d)(1).
6 BELLO-REYES V. GAYNOR
detention policies, calling on young people to unite against
these practices. Less than thirty-six hours later, at 6:30 AM
on May 15, 2019, ICE officers arrived at Bello’s home and
arrested him. ICE had revoked his previous bond, ordered
him re-detained, and increased his bond to $50,000.2 ICE
possessed a warrant dated May 15, 2019 stating that it had
“probable cause to believe that [Bello] is removable from the
United States.” ICE agents detained Bello in a holding cell
at ICE’s processing center for several hours prior to his
transfer to the detention facility. Agents refused to let him
use the bathroom, and he urinated in his clothes while
handcuffed. Bello alleges that one agent told him, “We’ll see
if you can get your friends to raise the bond money again.”
Once he was transferred to the detention center, a guard
approached Bello, asking, “You think you’re famous and
you’re going to get special treatment?”
Bello filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241, and the parties consented to proceed
before a magistrate judge. Bello argued that his arrest and re-
detention was an unconstitutional violation of the First
Amendment, since it was retaliation for his protected speech.
He argued that the court should apply the Mt. Healthy
standard to this claim. The Government countered that it had
probable cause to arrest Bello, as evidenced by the warrant,
and therefore his petition was foreclosed by Nieves, in which
the Supreme Court held that the presence of probable cause
generally defeats a retaliatory criminal arrest claim for
damages under 42 U.S.C. § 1983.
2
In his habeas petition, Bello argued that the increase of the bond
amount violated his due process rights. The district court ruled this claim
unexhausted, and Bello has not appealed that determination.
BELLO-REYES V. GAYNOR 7
The magistrate judge denied the petition on the ground
that Nieves controlled and, since ICE had “an objectively
reasonable justification for re-arresting . . . and detaining”
Bello, his retaliatory arrest claim was unavailing.3 His claim
would fail even under the alternate standard from Mt.
Healthy, the magistrate judge reasoned, because Bello had not
“demonstrated definitively that ICE would not have re-
arrested him absent his speech.”
This timely appeal followed. We review the district
court’s decision to deny a petition for a writ of habeas corpus
de novo. See Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir.
2011). We review the district court’s findings of fact for
clear error. See id. at 1203.
II
Bello argues that his re-arrest and detention constitute an
unconstitutional retaliation against his protected speech.
“Official reprisal for protected speech ‘offends the
Constitution [because] it threatens to inhibit exercise of the
protected right,’ and the law is settled that as a general matter
the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions . . . for speaking
out.” Hartman v. Moore, 547 U.S. 250, 256 (2006)
(alteration in original) (quoting Crawford-El v. Britton,
3
Bello was released from detention on August 12, 2019 on a bond
secured by community groups, to which he contributed. Bello’s release
on bond does not moot his habeas petition. He remains subject to
electronic surveillance and other conditions of release that constitute
“strict limitations on [his] freedom,” Rodriguez v. Hayes, 591 F.3d 1105,
1118 (9th Cir. 2010), and can be re-detained at any time. See Diouf v.
Napolitano, 634 F.3d 1081, 1084 n.3 (9th Cir. 2011). A “live controversy”
remains. Rodriguez, 591 F.3d at 1118.
8 BELLO-REYES V. GAYNOR
523 U.S. 574, 588 n.10 (1998)). A plaintiff making a First
Amendment retaliation claim must allege “that (1) he was
engaged in a constitutionally protected activity, (2) the
defendant’s actions would chill a person of ordinary firmness
from continuing to engage in the protected activity and (3) the
protected activity was a substantial or motivating factor in the
defendant’s conduct.” Capp v. Cty. of San Diego, 940 F.3d
1046, 1053 (9th Cir. 2019) (quoting O’Brien v. Welty,
818 F.3d 920, 932 (9th Cir. 2016)). The question of what
standard to apply to determine whether Bello’s speech was a
substantial or motivating factor in ICE’s decision to revoke
his bond forms the crux of our review.4
A
We first address whether the Supreme Court’s 2019
decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019),
controls in Bello’s case. We conclude that Nieves, a suit for
damages brought under 42 U.S.C. § 1983 and arising out of
a criminal arrest, should not be extended to Bello’s habeas
challenge to his bond revocation.
4
The Government’s argument that Bello’s claim fails under Reno v.
Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471, 487
(1999), is inapposite. AADC forecloses selective prosecution claims only
as to the three actions listed in 8 U.S.C. § 1252(g): the commencement of
proceedings, adjudication of cases, or execution of removal orders. See
Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1105 (9th Cir. 2000) (en
banc) (construing AADC to limit § 1252(g)’s scope to “the three specific
discretionary actions mentioned in its text, not to all claims relating in any
way to deportation proceedings”). Bello challenges none of these actions.
To the contrary, he is continuing to participate in his removal proceedings
and seeking relief in the form of a U visa. AADC does not counsel for a
different result. Moreover, to the extent that the government argues that
we lack jurisdiction over Bello’s claim under 8 U.S.C. § 1252(g), this
argument fails for the same reason.
BELLO-REYES V. GAYNOR 9
Nieves arose out of a § 1983 suit for damages against
individual arresting officers. 139 S. Ct. at 1721. The Court
had previously held in Hartman v. Moore, 547 U.S. 250(2006), that a plaintiff claiming retaliatory prosecution is
required to plead and prove the absence of probable cause
supporting the underlying criminal charges. Id. at 255–56.
In Nieves, the Court “adopt[ed] Hartman’s no-probable-cause
rule in [the] closely related context” of retaliatory arrest.
139 S. Ct. at 1725; see also Hartman, 547 U.S. at 265–66.
The same rationales for the Hartman rule applied in the
retaliatory arrest context, the Court reasoned, since both
situations involve “causal complexities,” Nieves, 139 S. Ct.
at 1723, and evidence of probable cause would nearly always
be available, id. at 1724. The Supreme Court rejected the
plaintiff’s proffered subjective test, concerned that it ran
counter to Fourth Amendment principles, id. at 1724–25,
would set off “broad ranging discovery,” and would chill
officers’ speech because of individual defendants’ litigation
risk, id. at 1725. The Court further noted that common law
tort principles confirmed this rule. Id. at 1726. Thus, Nieves
established an objective test in which the presence of
probable cause generally defeats a retaliatory criminal arrest
claim for damages.
For at least these reasons, in combination, Nieves is not
applicable here. First, problems of causation that may
counsel for a no probable cause standard are less acute in the
habeas context. In § 1983 suits, it is necessary to identify the
particular state official or officials who violated the plaintiff’s
constitutional rights. See 42 U.S.C. § 1983 (referring to
“every person who, under color of [law]” violates an
individual’s rights (emphasis added)). Not so in habeas: the
petitioner need not identify a particular violator, only that his
confinement is unconstitutional. See 28 U.S.C. § 2241(c).
10 BELLO-REYES V. GAYNOR
Second, Nieves does not apply here because it arose out of the
criminal arrest context, where “evidence of the presence or
absence of probable cause for the arrest will be available in
virtually every retaliatory arrest case.” 139 S. Ct. at 1724(quoting Reichle v. Howards, 566 U.S. 658, 668 (2012)).
This reasoning does not translate to the immigration bond
revocation context. While a probable cause requirement
exists for initial immigration arrests, see 8 U.S.C. § 1357(requiring “reasonable grounds to believe” that an individual
is present in the United States in violation of the immigration
laws for a warrantless arrest); see also Tejeda-Mata v. INS,
626 F.2d 721, 725 (9th Cir. 1980) (observing that the
reasonable belief standard is equivalent to probable cause), no
equivalent benchmark exists where ICE is revoking bond
rather than arresting in the first instance. Instead, the
decision is completely discretionary. See 8 C.F.R.
236.1(c)(9) (“[R]elease may be revoked at any time in the
discretion of the district director . . . .”). Since the Nieves rule
depended on this objective benchmark of a reasonable arrest,
extending it to this situation would effectively eliminate
almost any prospect of obtaining release on habeas for
actually retaliatory, unconstitutional immigration bond
revocation. As long as those authorizing the bond revocation
exercised discretion (as opposed to acting automatically or
arbitrarily) there could ordinarily be no release on habeas. 5
5
Bello also challenges whether Nieves is applicable to this case for
other reasons related to the nature of a §1983 claim. Given this meaningful
distinction between Nieves and Bello’s case, we need not decide on this
ground. However, we note that liability under § 1983 is often limited by
competing considerations such as questions of immunity, whereas in
habeas confinement that violates the constitution warrants the remedy of
release. See 28 U.S.C. § 2241(c); Felker v. Turpin, 518 U.S. 651, 59 &
n.2 (describing the “direct ancestor” of 28 U.S.C. § 2241(c), which
“authoriz[ed] federal courts to grant the writ . . . ‘in all cases where any
BELLO-REYES V. GAYNOR 11
We need not define the precise extent of Nieves’s
applicability in the immigration context here.6 However, we
decline to extend a rule this closely dependent on § 1983 case
law and the particularities of criminal arrests to Bello’s
habeas petition. We conclude that Nieves does not control in
this case.7
B
Because Nieves does not control, we remand to the district
court to apply the Mt. Healthy standard, the default rule for
First Amendment retaliation claims. See Nieves, 139 S. Ct.
at 1725 (“[I]f the plaintiff establishes the absence of probable
cause, ‘then the Mt. Healthy test governs . . . .’” (quoting
Lozman v City of Riviera Beach, 138 S. Ct. 1945, 1952–53
(2018))).
person may be restrained of his or her liberty in violation of the
[C]onstitution’”). Additionally, no individual officer will be held liable
for damages in Bello’s habeas case, whereas such litigation risk was a
motivating factor for establishing an objective no-probable-cause rule in
Nieves.
6
We also express doubt as to the extent to which a case motivated by
Fourth Amendment concerns in the criminal arrest context should apply
to Bello’s civil immigration bond revocation. However, given the other
meaningful distinctions between Nieves and Bello’s case, we need not
decide on this ground.
7
Because Nieves does not control, the presence of probable cause for
ICE’s revocation of Bello’s bond is not dispositive. However, even if
Nieves did apply, we doubt that it would foreclose Bello’s claim. The
warrant that the Government alleges establishes probable cause only
establishes probable cause for his initial immigration arrest. See 8 U.S.C.
§ 1226(b) (when revoking bond, ICE re-arrests “under the original
warrant”). There was no need for ICE to have independent probable cause
to revoke Bello’s bond. See 8 C.F.R. 236.1(c)(9).
12 BELLO-REYES V. GAYNOR
Under Mt. Healthy, once a petitioner has made a showing
of a First Amendment retaliation claim, “the burden shifts to
the government to show that it ‘would have taken the same
action even in the absence of the protected conduct.’”
O’Brien, 818 F.3d at 932 (quoting Pinard v. Clatskanie Sch.
Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006)) (citing Mt.
Healthy, 429 U.S. at 287). The Government “must show
more than that they ‘could have’ punished the plaintiffs in the
absence of the protected speech; instead, ‘the burden is on the
defendants to show’ through evidence that they ‘would have’
punished the plaintiffs under those circumstances.” Pinard,
467 F.3d at 770 (quoting Settlegoode v. Portland Pub. Schs.,
371 F.3d 503, 512 (9th Cir. 2004)).
The district court applied this standard incorrectly, ruling
that, because Bello had not “demonstrated definitively that
ICE would not have re-arrested him absent his speech,” his
claim failed under Mt. Healthy. The correct application of
Mt. Healthy, by contrast, would first determine whether Bello
demonstrated that retaliation for his speech was a motive for
revocation of his bond and, if so, then shift the burden to the
Government to demonstrate that it “would have taken the
same action even in the absence of the protected conduct” and
revoked Bello’s bond even if he had not publicly decried
ICE’s practices. O’Brien, 818 F.3d at 932 (quoting Pinard,
467 F.3d at 770) (citing Mt. Healthy, 429 U.S. at 287). We
note as to the initial showing that the district court was
correct to remark that the “timing of ICE’s decision to re-
arrest [Bello] is highly suggestive of retaliatory intent.” See
also Thomas v. City of Beaverton, 379 F.3d 802, 812 (9th Cir.
2004) (“The causal link between a protected activity and the
alleged retaliatory action can be inferred from timing alone
when there is a close proximity between the two.” (internal
quotation marks omitted) (citations omitted)). We remand to
BELLO-REYES V. GAYNOR 13
the district court to apply this burden-shifting standard in the
first instance.
REVERSED AND REMANDED.