Perera v. Jennings

598 F.Supp.3d 736

Imesh PERERA, Petitioner–Plaintiff,

v.David W. JENNINGS, et al., Respondents–Defendants.

Case No. 21-cv-04136-BLF

United States District Court, N.D. California, San Jose Division.

Signed April 15, 2022

Judah Ben Lakin, Amalia Margarete Wille, Lakin & Wille LLP, Scott A. Mossman, Law Office of Scott A. Mossman, Oakland, CA, Jingni (Jenny) Zhao, Monica George Ramsy, Asian Americans Advancing Justice - Asian Law Caucus, San Francisco, CA, for Petitioner–Plaintiff.

Courtney Elizabeth Moran, U.S. Department of Justice, Civil Division, Christina Parascandola, U.S. Department of Justice Office of Immigration Litigation District Court Section, Washington, DC, John Wesley Samples, Shiwon Choe, The United States Attorney's Office Northern District of California, San Francisco, CA, for Respondents–Defendants.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

[Re: ECF No. 1]

BETH LABSON FREEMAN, United States District Judge

In this case, Petitioner–Plaintiff Imesh Perera has filed a writ of habeas corpus and complaint for injunctive and declaratory relief seeking to require Defendants David W. Jennings, Tae D. Johnson, Alejandro Mayorkas, and Merrick B. Garland to provide him with a bond hearing before a neutral decisionmaker after being taken into custody by Immigration and Customs Enforcement. ECF No. 18-2 ("Pet.").¹ After ICE detained Perera on April 21, 2021—nearly six years after he was released from federal custody—and denied him a bond hearing, this Court granted Perera's motion for a temporary restraining order and enjoined ICE from detaining him for more than seven additional days without a bond hearing at which ICE was required to justify Perera's detention by clear and convincing evidence. ECF No. 40 ("TRO"). After that bond hearing occurred, Perera was released on bond with conditions.

Now before the Court is adjudication of the full merits of Perera's petition. Respondents have filed a return (ECF No. 40 ("Ret.")), and Perera has filed a traverse (ECF No. 40 ("Trav.")) in which he asks the Court to "affirm that the bond hearing it previously ordered for [Perera] was required by due process." Trav. at 13. The Court held a hearing on the petition on March 17, 2022. ECF No. 50. For the reasons discussed on the record and explained below, the Court GRANTS Perera's petition for a writ of habeas corpus.

I. BACKGROUND

A. Perera's Upbringing and Criminal Charges

Petitioner–Plaintiff Imesh Perera was born in Sri Lanka in 1990 to parents Marian and Prince Perera. Declaration of Judah Lakin, ECF No. 1-1 ("Lakin Decl."), Ex. B ("Perera Decl.") ¶ 1; Lakin Decl. Ex. C. Pursuant to his mother's H1-B visa, the family immigrated to the United States in 2002 just before Perera turned 12 years old. Id. ¶ 3; Declaration of Scott Mossman, ECF No. 18-1 ("Mossman Decl.") ¶ 4. Perera is now a lawful permanent resident. Perera Decl. ¶ 4. Perera's parents became United States citizens in 2012. Lakin Decl. Ex. 3 (naturalization certificates for Perera's parents); Mossman Decl. ¶ 5. Perera describes his move to the United States as a "culture shock." Perera Decl. ¶ 6. Perera felt singled out because of his cheaper clothes and shoes and his language barrier. Id. ¶ 7. When his family moved to the more affluent town of Lincoln, California, Perera felt that he did not fit in because he did not have the money and cars that other students had. Id. ¶ 8. Perera began spending time with the wrong crowd and getting into trouble. Id. ¶¶ 7, 9–11.

On May 21, 2010, Perera was convicted in Placer County Superior Court of transportation of a controlled substance in violation of California Health & Safety Code § 11379(a). Perera Decl. ¶ 12; Mossman Decl. ¶ 6. On August 18, 2010, Perera and ten co-defendants were indicted on federal controlled substances charges in the Eastern District of California. Perera Decl. ¶ 12; Mossman Decl. ¶ 6; see United States v. Perera , No. 2:10-cr-347-MCE (E.D. Cal., indictment ret. Aug. 18, 2010). On March 20, 2015, he pleaded guilty to a single count of conspiracy to distribute and possess with intent to distribute MDMA and BZP in violation of 21 U.S.C. §§ 846 and 841(a)(1). Perera Decl. ¶ 12; Mossman Decl. ¶ 7. The court sentenced to Perera to 50 months in prison with credit for time served and a term of 36 months of supervised release. Perera Decl. ¶ 12; Mossman Decl. ¶ 7. Because Perera had already served 50 months, he was released from custody and began his term of supervised release. Perera Decl. ¶ 12.

B. Post-Release Transformation

After Perera's release from custody, he turned his life around. While in custody, Perera made a promise to himself and God to not break the law again. Perera Decl. ¶¶ 13–14. He has no further criminal arrests or charges and successfully completed his term of supervised release without incident. Id. ¶ 15; Lakin Decl. Ex. F (letter from Probation Officer).

Perera enrolled at Sierra College in fall of 2015, obtaining enough credits for two associates degrees and nearly enough credits to transfer to a four-year college. Perera Decl. ¶ 16; Lakin Decl. Ex. K (Sierra College transcript). Shortly after his release, Perera began working as a deli clerk at Safeway. Perera Decl. ¶ 17. Since then, he earned five promotions and became the store director for Safeway in Rancho Cordova, California, supervising the work of approximately 130 employees. Id. In 2020, the Safeway district manager nominated him to interview for a food industry management program at the University of Southern California, a university-based leadership program for which Safeway selects one high-performing manager per year. Lakin Decl. Exs. G, H (letters from Safeway). Perera aspires to obtain a bachelor's degree in marketing or management and rise through the ranks at Safeway's parent company. Perera Decl. ¶¶ 16, 19.

Perera has also personally grown following his release from custody. Perera has committed himself to spiritual development and devotion to his church community. Lakin Decl. Ex. M (letter from Perera's priest). Perera met Chloe Enriquez, a U.S. citizen, to whom he became engaged prior to ICE detaining him. Perera Decl. ¶¶ 20–21; Lakin Decl. Ex. D (letter from Enriquez). Perera has supported Enriquez by helping her stay on top of school work, paying bills, and assisting her during her pregnancy. Perera Decl. ¶¶ 22–23; Lakin Decl. Ex. L (Enriquez medical letter). Perera also purchased a home so his family would have somewhere "safe and secure" to live. Perera Decl. ¶ 18. As Perera says, "I now know that time is the one thing you can't get back and I have lived my life every day since being released from federal custody with that understanding." Id. ¶ 15.

C. ICE Detains Perera

ICE records indicate that it was aware of the criminal charges and Perera's potential deportability by 2010. ICE was aware by at least May 14, 2010 of Perera's state conviction. Mossman Decl. Ex. C (ICE Form I-213 dated April 21, 2021 confirming ICE's May 2010 knowledge). A Form I-213 dated December 9, 2010 indicates that ICE was aware of his incarceration at Sacramento County Jail. Id. Ex. A. Another Form I-213 dated October 10, 2017 indicates that ICE interviewed Perera while he was incarcerated there and that ICE's Office of Chief Counsel was evaluating Perera's deportability. Id. Ex. B.

On April 21, 2021, ICE detained Perera at 5:30 a.m. while he was on his way to work. Perera Decl. ¶ 24; Mossman Decl. ¶ 8. ICE served Perera with a Notice to Appear for Removal Proceedings alleging that he is deportable due to his conviction for an aggravated felony. Mossman Decl. ¶ 9. ICE detained Perera at a private detention facility in McFarland, California and denied him the opportunity to post bond for his release. Id. ¶ 8. On May 25, 2021, an immigration judge conducted a hearing to determine Perera's eligibility for bond. Id. ¶ 15. The IJ accepted ICE's argument that he did not have the authority to redetermine ICE's denial of bond because Perera was subject to mandatory detention under 8 U.S.C. § 1226(c). Id. ¶ 16. Perera submitted a release request to the San Francisco Office of ICE Enforcement and Removal Operations that day. Lakin Decl. ¶ 5. ICE denied the request three days later. Id. ¶ 7.

D. Petition and Temporary Restraining Order

One week after ICE denied his release request, Perera filed this Petition and a motion for a temporary restraining order seeking to require ICE to afford him a bond hearing before a neutral adjudicator at which ICE would bear the burden to justify his continued detention pending removal by clear and convincing evidence. See Pet.; ECF No. 4. Respondents opposed the motion for a temporary restraining order. See ECF No. 20.

On June 11, 2021, this Court granted the motion for a temporary restraining order. See TRO. This Court first found that it had jurisdiction over the Petition because Perera had sued the Director of the ICE Field Office that had actual authority over Perera's detention. Id. at 3–4. The Court found that Perera showed a likelihood of success on the merits of his as-applied constitutional challenge to his detention under § 1226(c). The Court balanced the factors enumerated in Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and found that they favored Perera's entitlement to an individualized bond hearing. Id. at 5–10. The Court further found that Perera would suffer irreparable harm and that the balance of equities and the public interest were in his favor. Id. at 10–11. The Court finally held that the Government would bear the burden at the bond hearing of proving by clear and convincing evidence that Perera posed a danger or flight risk to justify his continued detention. Id. at 11–12.

The parties stipulated to continue the TRO through the Court's hearing on the merits of the Petition. ECF No. 29.

E. Developments Since the TRO

Perera received his bond hearing on June 16, 2021. ECF No. 50-1 ("Perera Supp. Decl.") ¶ 2. The IJ ordered Perera's release on $30,000 bond with...