Diaz v. Barr

AROLDO ALBERTO RODRIGUEZ DIAZ, Petitioner, v. WILLIAM P. BARR, ET AL., Respondents.

Case No. 4:20-cv-01806-YGR

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

April 27, 2020

*NOT FOR PUBLICATION*

ORDER GRANTING IN PART AND DENYING IN PART PETITION AND TEMPORARY RESTRAINING ORDER

Re: Dkt. Nos. 1, 1-1,

Petitioner Aroldo Alberto Rodriguez Diaz filed this petition for writ of habeas corpus and temporary restraining order against respondents William P. Barr, Chad Wolf, David Jennings, and Wendell Anderson. (Dkt. Nos. 1, 1-1.) Rodriguez Diaz requests that the Court: (1) declare his detention without a custody hearing by respondents as unconstitutional and in violation of the Immigration and Nationality Act ("INA"); (2) order his immediate release from Immigration and Customs Enforcement ("ICE"); or, alternatively; (3) order respondents to provide immediately a custody hearing at which the government is required to justify continued detention by clear and convincing evidence that Rodriguez Diaz is a danger or flight risk.

Having carefully reviewed the record, the papers submitted, and for the reasons set forth more fully below, the Court HEREBY ORDERS as follows: (1) the petition is GRANTED IN PART and DENIED IN PART; and (2) the temporary restraining order is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

In order to expedite the issuance of this order, the Court assumes familiarity with the details of this matter and only summarizes the background relevant to this Order. Thus:

Rodriguez Diaz is a citizen of El Salvador who came to the United States on an unknown date, at an unknown location and without being admitted.

After his release from state custody, on November 2, 2011, Rodriguez Diaz was transferred to ICE custody and ICE placed him into removal proceedings. He was charged as an alien present in the United States without being inspected, admitted, or paroled. On January 20, 2012, Rodriguez Diaz was released from the custody of the Office of Refugee Resettlement. Rodriguez Diaz's removal proceedings continued while he was not in detention.

After being released, Rodriguez Diaz was involved in several criminal incidents, including: (1) arrested and later charged for battery on a person on school, park, or other property and battery on a person resulting in serious bodily injury; (2) arrested for and charged with possession of burglary tools; and (3) charged with possession of a controlled substance.

On August 3, 2018, Rodriguez Diaz was arrested for a domestic dispute incident with his wife. On December 18, 2018, Rodriguez Diaz was convicted of battery on a spouse and intimidating or dissuading a witness, for which he was sentenced to 18 months' probation and 276 days' jail and months' probation, respectively. After his release from criminal custody, ICE took Rodriguez Diaz into custody on December 18, 2018.

On February 27, 2019, Rodriguez Diaz appeared before the Immigration Judge ("IJ") for a custody redetermination. During the hearing, Rodriguez Diaz's counsel and the attorney for ICE asked Rodriguez Diaz questions regarding his alleged gang affiliation. After being placed under oath, Rodriguez Diaz testified that he was never in a gang and that he was never jumped into a gang. He also testified that his tattoo of "C.L." stood for "California Life" and did not stand for "Carnales Locos." Rodriguez Diaz's counsel also made an offer of proof regarding the circumstance surrounding his conviction for battery on a spouse and intimidating a witness. At the conclusion of the hearing, the IJ stated that it appeared that Rodriguez Diaz was a gang member, and denied bond, finding that Rodriguez Diaz was a danger to the community. Rodriguez Diaz did not appeal that determination.

On May 13, 2019, the IJ denied Rodriguez Diaz's applications for relief and ordered him removed from the United States. Rodriguez Diaz appealed the IJ's ruling to the Board ofImmigration Appeals ("BIA"), and on October 17, 2019, the BIA dismissed Rodriguez Diaz's appeal. On October 17, 2019, Rodriguez Diaz filed a petition for review with the Ninth Circuit and requested a stay of removal. See Rodriguez Diaz v. Barr, 19-72634 (9th Cir.).

Rodriguez Diaz's conviction for possession of a controlled substance was vacated on September 16, 2019. On February 5, 2020, Rodriguez Diaz filed a motion with for a new custody redetermination pursuant to 8 U.S.C. § 1003.19(e).¹ In the motion, Rodriguez Diaz asserts that there has been a material change in circumstances because his conviction for possession of a controlled substance had been vacated and because he has made significant efforts at rehabilitation. In the declaration in support of his motion, Rodriguez Diaz now admits that he was jumped into a gang and that his tattoos stand for Carnales Locos, but that he has since disclaimed any membership in such gang.

On February 24, 2020, the IJ denied Rodriguez Diaz's motion. On March 26, 2020, the IJ issued its memorandum explaining the reasoning for the denial concluding as follows:

The Court finds that the evidence submitted by Respondent does not establish any material change in circumstance that would warrant another custody hearing. Importantly, Respondent, while under oath before the Court, denied ever being a part of a gang and only associating or hanging out with gang members and denied that the C & L tattoo stood for Camales Locos.

However, his sworn declaration he admits to being in a gang and that the C & L tattoo stood for Camales Locos. Respondent in his custody hearing attempted to either minimize or completely deny his involvement with any gang activity in order to obtain release from custody. Respondent's previous testimony is contradicted by his declaration and the Court can give little weight to the statements he makes in his declaration that he is no longer active in the gang and thathecompletelycuttieswiththegangin2017. Though the Court applauds Respondent in taking classes to attempt to better himself and acknowledges his conviction for CHSC § 11350 being vacated and repled to CPC § 32, the Court found Respondent to be a danger to the community based on his gang membership and the evidence submitted does nothing to materially alter the Court's conclusion.

(Dkt. No. 9-2 at 2-3.)

Rodriguez Diaz appealed to the BIA and filed the instant petition and temporary restraining order on March 13, 2020. On March 16, 2020, the Court ordered respondents to respond by noon on March 20, 2020. (Dkt. No. 6.) Based on that response in opposition and return to petition, the Court issued another order permitting Rodriguez Diaz a reply and traverse to the government's briefing, stating that it had serious concerns as to the merits of the petition and the temporary restraining order. (Dkt. No. 8.) Following the filing of the reply and traverse, the parties requested permission to file supplemental briefing on the issue of the ongoing coronavirus disease (COVID 19) pandemic (Dkt. No. 10), which the Court later granted (Dkt. No. 12).

During the pendency of this matter and his immigration action, Rodriguez Diaz is being detained at Yuba County Jail, which, as of the filing of the government's supplemental brief on April 23, 2020, had no suspected or confirmed COVID-19 cases.

II. LEGAL STANDARD

A. Habeas Petitions Regarding Custody Redetermination

The parties agree that, under Ninth Circuit law, Rodriguez Diaz is detained pursuant to 8 U.S.C. § 1226(a) because he has a currently pending petition for review in the Ninth Circuit and has an associated temporary stay of removal. See Prieto-Romero v. Clark, 534 F.3d 1053, 1065 (9th Cir. 2008). "After an alien is detained, the DHS [Department of Homeland Security] district director makes an initial custody determination and may allow the alien's release on bond. If the alien objects to the director's bond determination, he may request a bond redetermination hearing before an IJ at any time before the issuance of an administratively final order of removal." Id. at 1058 (citing 8 C.F.R. § 236.1(d); 8 C.F.R. § 1003.19(c)).

In making a bond determination, the IJ should consider "any or all" of the following factors:

(1) whether the alien has a fixed address in the United States; (2) the alien's length of residence in the United States; (3) the alien's family ties in the United States, and whether they may entitle the alien to reside permanently in the United States in the future; (4) the alien's employment history; (5) the alien's record of appearance in court; (6) the alien's criminal record, including the *960 extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien's history of immigration violations; (8) any attempts by the alien to flee prosecution or otherwise escape from authorities; and (9) the alien's manner of entry to the United States.

Matter of Guerra, 24 I & N Dec. 37, 40 (BIA 2006); see also Singh v. Holder, 638 F.3d 1196, 1206 (9th Cir. 2011) (applying Matter of Guerra to § 1226(a)). The IJ has "broad discretion in deciding the factors that he or she may consider" and "may choose to give greater weight to one factor over others, as long as the decision is reasonable." Matter of Guerra, 24 I & N Dec. at 40.

A detainee may appeal the IJ's determination to the BIA. 8 C.F.R. § 1003.19(f). A detainee may also request a subsequent bond redetermination from the IJ, but the request "shall be considered only upon a showing that the alien's circumstances have changed materially since the prior bond redetermination." Id. § 1003.19(e).

B. Temporary Restraining Order

Requests for temporary restraining orders are governed by the same general standards that govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). Preliminary injunctive relief, whether in the form of a temporary...