Leiva v. Becerra

1

CRUZ LEANDRO MARTINEZ LEIVA, Plaintiff, v. MOISES BECERRA, et al., Defendants.

No. 23-cv-02027-CRB

United States District Court, N.D. California

May 26, 2023

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS DENYING MOTION TO DISMISS

CHARLES R. BREYER United States District Judge

Petitioner Cruz Leandro Martinez Leiva (“Martinez Leiva”), a 23-year-old artist, has been in immigration detention for 20 months pursuant to 8 U.S.C. § 1126(c), without ever having had an individualized determination of whether he poses a risk of flight or a danger. He brings this petition for habeas corpus, asking the Court to release him outright or order an evidentiary hearing at which the government must demonstrate that further detention is warranted. See Petition (dkt. 1); Traverse (dkt. 14). The government opposes the petition and seeks dismissal of the case. See MTD/Return (dkt. 13). Because the Court is persuaded that the government has violated Martinez Leiva's constitutional right to procedural due process, it GRANTS the petition and DENIES the motion to dismiss.

I. BACKGROUND

A. Fleeing El Salvador and Early Struggles in the United States

Martinez Leiva was born in El Salvador in 2000. CLML Decl. (dkt. 1-1) ¶ 2. His father was a soldier in the Salvadoran Armed Forces and was tasked with arresting gang members, including members of MS-13. Id. ¶ 5. One day after school, members of MS-13 confronted Martinez Leiva; they told him that they knew that he was the son of a military soldier, asked where his father was, and threatened to hurt and kill his family if they stayed in MS-13's territory. Id. ¶ 6. Martinez Leiva stopped going to school because he was afraid. Id. A week later, his father was attacked by members of MS-13, and only got away because other soldiers intervened. Id. His family fled El Salvador the next week. Id. They arrived at the Mexico-United States border on October 16, 2015. Id. ¶¶ 2-3.

United States Customs and Border Protection immediately apprehended Martinez Leiva and issued a Notice to Appear, charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen present in the United States who has not been admitted or paroled. McKee Decl. (dkt. 1-3) ¶ 4. Shortly thereafter, the family settled in Houston, Texas, where Martinez Leiva enrolled in high school. CLML Decl. ¶¶ 2, 8. Martinez Leiva, who had been a strong student in El Salvador, struggled in high school because he did not speak English. Yolanda Decl. (dkt. 1-2) ¶ 5; CLML Decl. ¶ 8 (“It was difficult for me to feel good about myself in school. I knew I could do well in school, but I got discouraged not speaking any English, which was sad for me because I had loved school back in El Salvador.”). Martinez Leiva's father then abandoned the family after three months in the United States. Yolanda Decl. ¶ 4. Martinez Leiva “lost [his] way.” CLML Decl. ¶¶ 7, 8 (“I felt so abandoned and lost”); Yolanda Decl. ¶¶ 4-6.

B. Criminal Conviction

In January 2017, when Martinez Leiva was 16, he and a group of friends were approached after school by two former students, Brian and Christian, who were over the age of 18. CLML Decl. ¶ 10. Brian invited them to go on an adventure with him to Los Angeles. Id. Martinez Leiva did not know where Los Angeles was in relation to Houston or how long a drive it would be. Id. After a few days in Los Angeles, the brakes stopped working on Brian's car, and Martinez Leiva and his friends became anxious about how they would get home. Id. ¶ 11. Brian and Christian told them that that would need to rob people to get money for the car repair-that no one would get hurt, and that this would be the fastest way to get home. Id. ¶ 12. Brian and Christian also told them that minors could not be convicted of crimes in the United States, so that if they got caught, Martinez Leiva and his friends should tell the police that they were minors and then the police would let them go. Id.

On January 31, 2017, they (primarily Brian and Christian) carjacked a woman in a residential area, and then crashed the car on the side of the road. Id. ¶ 13. Martinez Leiva was arrested the next day. Id. In reliance on Brian and Christian's advice, he waived his right to remain silent, waived his right to an attorney, and claimed responsibility for the crimes. Id. ¶ 14. He was placed in pretrial detention in a juvenile facility but charged as an adult in Los Angeles Superior Court. Id. ¶¶ 14-15. He pled no contest to California Penal Code § 215(a) for carjacking and § 211 for robbery in the second degree. Id. ¶ 15. He was sentenced to five years at Soledad State Prison. Id.

C. State Sentence

While in state prison, Martinez Leiva took responsibility for his life. Id. ¶ 18. He became fluent in English, completed high school and made progress toward a college degree at Palo Verde Community College, and held down a job, working as a painter five days a week. Id. ¶ 19. Martinez Leiva completed at least eleven continuing education courses, was never written up for any fights or riots, and got credit for good behavior, reducing his sentence by 11.5 months. Id. ¶ 20. He worked through his trauma around his father's leaving the family, committed himself to his faith, and recommitted himself to his lifelong passion for art-drawing and painting portraits, and picking up new textile skills. Id. Martinez Leiva also maintained a loving relationship with his family, speaking with his mother nearly every day, and speaking multiple times a week with his sister, brother, and 7-year-old son. Id. ¶¶ 24-25. He hoped to return to live with his family in Houston, work as an industrial painter, and enroll in college upon his release. Id. ¶¶ 28-30.

D. Immigration Detention and Proceedings

An immigration court hearing took place on July 31, 2017; Martinez Leiva did not appear because he was in state custody, and so he was ordered removed in absentia. McKee Decl. ¶ 5. At the completion of his state criminal sentence, on September 2, 2021, DHS detained Martinez Leiva pursuant to 8 U.S.C. § 1226(c); he is housed at Golden State Annex, an immigration detention center run for profit by GEO Group, Inc. that was previously used as a correctional facility. CLML ¶ 3, Petition at 8-9 n.2.

1. Detention at Golden State Annex

Martinez Leiva's time at Golden State Annex has been very difficult:

The conditions at Golden State Annex are unlivable and unsanitary. There are often flies in our food, the milk we are served is often spoiled, the walls of our bathrooms are covered in mold and the plumbing is broken, with leaking toilets that leak blackwater all over the floors. We often have outbreaks of illness from eating contaminated food and Golden State Annex has been under investigation for having inadequate medical care and abhorrent conditions for some time now.

CLML ¶ 27.^[1] Martinez Leiva participated in a hunger strike with 81 other detainees as a form of peaceful protest against their perceived mistreatment at Golden State Annex. Id. He believes that he was retaliated against for that hunger strike. Id.

Martinez Leiva participated in a class action lawsuit against ICE and GEO, alleging retaliation in violation of the First-Amendment-protected right to engage in a peaceful collective hunger strike. See Mendez v. ICS, No. 3:23-cv-829-TLT, Dkt. 1 (N.D. Cal. Feb. 23, 2023). He also filed a civil rights complaint with the DHS Office for Civil Rights and Civil Liberties about the violence, retaliation, and medical neglect at Golden State Annex. McKee Decl. ¶ 31, Ex. A.

2. Immigration Proceedings

While Martinez Leiva has been detained at Golden State Annex, he has participated in immigration proceedings to avoid removal. On September 23, 2021, the immigration judge (“IJ”) granted DHS's motion to reopen and rescind the in absentia removal order. McKee Decl. ¶ 7. The IJ changed the venue of Martinez Leiva's removal proceedings from Houston, Texas, to Van Nuys, California, the immigration court that hears removal proceedings for individuals at Golden State Annex. Id.

A number of hearings took place over the next few months:

• On October 5, 2021, Martinez Leiva appeared in immigration court pro se and was granted a continuance to seek representation. Id. ¶ 8.

• On October 21, 2021 and November 16, 2021, the IJ granted Martinez Leiva continuances because he was making efforts to find counsel. Id. ¶ 9.

• On December 7, 2021, Martinez Leiva appeared at his Master Calendar hearing with attorney Xavier Chavez, and was granted a one-week continuance to request the documents DHS had filed in support of Martinez Leiva's removal. Id. ¶ 10. Chavez received those documents at the December 14, 2021 Master calendar hearing. Id.

• On January 7, 2022, Martinez Leiva, through counsel, filed an I-589 Application for Asylum, Withholding of Removal, and Protection under the Convention Against Torture, and documents in support thereof. Id. ¶ 11.

• On January 13, 2022, an individual hearing was set for March 22, 2022. Id. ¶ 12.

• On March 22, 2022, the IJ heard Martinez Leiva's testimony. Id. ¶ 13. Martinez Leiva testified about the gang threats his family had received in connection with his father's job. Id. The IJ found the testimony credible but found that the death threats did not constitute past torture or demonstrate a sufficient likelihood of future torture. Id. ¶ 14. The IJ denied relief and ordered Martinez Leiva's removal to El Salvador. Id.

Martinez Leiva timely filed a pro se appeal of that decision to the BIA. Id. ¶ 15. He had trouble finding new counsel while in detention and got a single 21-day extension for his briefing. Id. ¶ 16. He then proceeded pro se on appeal. Id. ¶ 18.

On August 17, 2022, the BIA adopted and affirmed the IJ's decision. Id. ¶ 19. Martinez Leiva filed a timely ...