Ortega-Rangel v. Sessions

313 F.Supp.3d 993

Maria ORTEGA–RANGEL, Plaintiff,

v.Jefferson B. SESSIONS, et al., Defendants.

Case No.18–cv–01618–JSC

United States District Court, N.D. California.

Signed May 14, 2018

Raha Jorjani, Brendon DeWayne Woods, Alameda County Public Defender, Oakland, CA, for Plaintiff.

Neill Tai Tseng, United States Attorney's Office, San Francisco, CA, Abigail Dye, Contra Costa County Counsel, Martinez, CA, for Defendants.

ORDER RE PETITION FOR WRIT OF HABEAS CORPUS

Re: Dkt. No. 1

JACQUELINE SCOTT CORLEY, United States Magistrate Judge

Plaintiff Maria Ortega Rangel is a citizen of Mexico who has been residing in the United States for 18 years. In January 2018, Ms. Ortega had her first encounter with law enforcement after a valid search of her home resulted in the seizure of heroin. Ms. Ortega admitted she had knowledge of the controlled substance but stated it belonged to her partner who was not home at the time of the search. Upon release from state custody Ms. Ortega was detained by Immigration and Customs Enforcement ("ICE"). Now pending before the Court is Ms. Ortega's petition for writ of habeas corpus. Having carefully reviewed the parties' initial and supplemental briefing and having had the benefit of oral argument on April 17, 2018, the Court GRANTS Ms. Ortega's petition for the reasons set forth below.

FACTUAL BACKGROUND

Ms. Ortega is a 51–year old woman from Mexico. (Dkt. No. 6–1 at 5.) In 2000 she entered the United States without lawful admission near Nogales, Arizona. (Id. at 7.) She has a nine-year old daughter who is a U.S. citizen and two adult sons who were born in Mexico. (Dkt. No. 8–1 ¶ 3.; 6–1 at 7.) On January 23, 2018, Alameda County detectives executed a search warrant of Ms. Ortega's home. (Dkt. No. 1–2 at 32.) During the search "a large quantity of suspected heroin" was located "inside a paper bag inside the bottom [of] [a] dresser drawer." (Id. ) The dresser was "easily accessible and did not have any type of locking device attached to prohibit access inside it." (Id. ) According to the Alameda County Sheriff's Office, "the quantity of suspected heroin located inside of Ms. Ortega's residence exceed[ed] the amount commonly possessed for personal use drug users." (Id. )

Ms. Ortega admitted the bedroom was hers and provided "an admonished statement admitting to knowing about the suspected heroin and that it belonged to her husband who was not on scene at the time the search warrant was executed." (Id. ) Ms. Ortega's bedroom door had a deadlock but she admitted it was always left unlocked. (Id. ) Mr. Ortega was placed under arrest and transported to Santa Rita jail based on "the large quantity of suspected heroin" in the bedroom, "her admitted knowledge of the suspected heroin," and "the children who live at the residence and their ease of accessibility to the suspected heroin." (Id. )

On February 6, 2018, Ms. Ortega was charged with possession for sale of a controlled substance, willful cruelty to a child, and two sentencing enhancements due to the quantity of the controlled substance. (Id. at 36.) Ms. Ortega was then released from criminal custody on her own recognizance by order of an Alameda County Superior Court judge and ordered to reappear on February 8, 2018. (Id. at 34.) That same day, February 6, 2018, Ms. Ortega was arrested by ICE upon her release from Santa Rita County jail. (Dkt. No. 6–1 at 1 ¶ 2.) Ms. Ortega was "deemed to fall within ICE's enforcement priorities" due to her "pending felony criminal charges." (Id. at 2 ¶ 3.)

On February 7, 2018, "ICE initiated removal proceedings because [Ms. Ortega] is unlawfully present in the United States without being inspected, admitted or paroled in violation of section 212(a)(6)(A)(i) of the Immigration and Nationality Act." (Id. at 2 ¶ 4.) ICE determined Ms. Ortega should be detained pursuant to Section 236(a) of the INA "pending removal proceedings" and notified Ms. Ortega that she had "a right to request a review of that determination by an Immigration Judge (‘IJ’)." (Id. at 2 ¶ 5.) Ms. Ortega requested a review of the determination. (Id. ) The following day, February 8, 2018, Ms. Ortega was unable to appear for the preliminary hearing in her criminal case because she was in ICE custody. (Dkt. No. 1–2 at 39–40.) As a result, a bench warrant for her arrest was issued and held. (Id. at 40.)

Approximately one month later, on March 2, 2018, an IJ conducted Ms. Ortega's bond hearing. (Dkt. No. 6–1 at 2 ¶ 7.) Ms. Ortega was "advised by her criminal attorney not to testify about the facts of her pending criminal case outside of the presence of her criminal defense attorney." (Dkt. No. 1–2 at 6 ¶ 12.) While Ms. Ortega was not able to testify about the criminal matter she was prepared to testify about other facts regarding her life in the United States. (Id. ¶ 13.) Ms. Ortega's daughter was also present and prepared to testify and be cross-examined. (Id. ) Understanding that Ms. Ortega could not testify due to her pending criminal matter, the IJ stated "instead of testimony let us ... get some of the saline facts." (Dkt. No. 2 at 7:79–80.) Ms. Ortega's counsel represented that Ms. Ortega (1) has never been arrested and has no criminal convictions, (2) has been in the country 18 years, (3) entered the United States without inspection, (4) has been living in Oakland, CA over the last 9 years, (5) is a widow and has not remarried, (6) has been living with her partner who is a co-defendant in the criminal matter, the father of the nine-year old, and "verbally abusive and mistreats her," (7) has two sons who have no status, but one son is married to a U.S. citizen and they have started the process of legalization, (8) participated in a program that provides microloans to women in poor communities to help them start businesses, (9) sells tamales, (10) has had no contact with immigration authorities since her entry, and (11) has never failed to appear for any civil or criminal proceeding. (Dkt. No. 2 at 7–10.)

Ms. Ortega intended to seek cancellation of removal given she had a qualifying relative, her U.S. citizen daughter, and has been in the United States for over 10 years continuously. (Id. at 10:185–188.) Ms. Ortega's counsel further represented that Ms. Ortega is the primary caretaker of her daughter and her removal would result in "an exceptional and unusual hardship." (Id. at 10:191–192.) In regards to the child endangerment charges, Ms. Ortega submitted a probable cause declaration which showed "no allegation of physical or verbal abuse against any child and the charges simply arose from the fact the child lived in a house where controlled substances were allegedly found." (Dkt. No. 1–2 ¶ 15.) Ms. Ortega's counsel also informed the IJ that pursuant to California Government Code 7282.5, the Alameda County Sherriff's Office was prohibited from handing custody of Ms. Ortega over to ICE and that it violated this law when it cooperated with ICE. (Dkt. No. 2 at 10:194–197.)

Ms. Ortega asked to be released on her own recognizance in light of the fact she had already been granted this relief by the Superior Court, or alternatively sought a $2000 bond, which would cause a substantial hardship on Ms. Ortega's family but given a recent tax return was an amount she was prepared to pay. (Id. at 10:191–212.) Ms. Ortega does not drive, does not own a car, and does not own any other property. (Id. at 10:213–215.) The primary way Ms. Ortega spends her time is taking care of her daughter and staying at home making tamales to sell to her friends' co-workers and her son's boss. (Id. at 10:215–218.)

The IJ determined at the hearing that Ms. Ortega was not a flight risk but requested that counsel provide oral argument on whether Ms. Ortega was a danger to the community. (Id. at 10:224–11:231.) Ms. Ortega's counsel stated that "we considered ... putting [Ms. Ortega's daughter] on the stand to talk about how much time she spends with her mother ... that her mother is there when she wakes up ... and when she goes to sleep ..." but that Ms. Ortega's counsel did not "want to particularly traumatize her any more than she's been traumatized." (Id. at 11:234–239.) To that, the IJ responded "tell us ... what was in the declaration." (Id. at 11:240–242.) Ms. Ortega's counsel stated there is a concern regarding the child's safety since her mother is not there to care for and protect her, particularly in regards to the child's healthcare and schooling. (Id. at 11:247–250.) The daughter was kept away from school because of a concern that her father may try to take her out of school. (Id. at 11:252–257.) Further, the locks were changed after the child's father disappeared, displacing the child from her home. (Id. at 11:191–192.) One week after Ms. Ortega's bond hearing, her partner was arrested and taken into criminal custody in Alameda County. (Dkt. No. 1–2 at 8 ¶ 19.) The child is now is living with Ms. Ortega's older son and wife. (Dkt. No. 1–2 ¶ 20.)

The IJ issued a written order on March 5, 2018. (Dkt. No. 6–1 at 21–22.) The IJ held that Ms. Ortega "carries the burden of demonstrating: (1) she is not a danger to the community, and (2) she is not a flight risk." (Id. at 21.) Citing Matter of Guerra , 24 I. & N. Dec. 37, 40 (BIA 2006), the IJ further held that "there is no limitation on the discretionary factors that an Immigration Judge may consider when ruling on custody and bond issues." (Id. at 21–22.) Thereafter the IJ concluded:

Based on the totality of evidence of record, the court finds the respondent a danger to the community. She has been recently arrested for possession for sale of a controlled substance. The dangers that selling controlled substances cause a community, and society in general, cannot be easily overstated. The Board has long recognized the dangers associated with the sale and distribution of drugs. See Matter of Melo , 21 I. & N. Dec. 883, 886 (BIA 1997) (noting that the scourge on society of illegal drug trafficking and the associated criminal activity it

...