Vargas v. Jennings

SIMON ORTIZ VARGAS, Petitioner, v. DAVID JENNINGS, et al., Respondents.

Case No. 20-cv-5785-PJH

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

August 23, 2020

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR TEMPORARY RESTRAINING ORDER; ORDER TO SHOW CAUSE

Before the court is the represented motion for a temporary restraining order ("TRO") filed by petitioner Simon Ortiz Vargas in the above-captioned matter. Opposition to the TRO motion was filed by respondents David Jennings, San Francisco Field Office Director, U.S. Immigration and Customs Enforcement; Matthew T. Albence, Deputy Director and Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; and William P. Barr, Attorney General of the United States. Petitioner filed a reply brief on August 21, 2020. The matter is fully briefed and the court determines that the matter is suitable for decision without oral argument. For the reasons set forth below, petitioner's motion for temporary restraining order is GRANTED IN PART with respect to enjoining respondents from re-detaining petitioner unless and until he is afforded a hearing on the question of whether his re-detention would ultimately be lawful. To the extent that petitioner's TRO motion seeks a judicial pre-deprivation hearing, the motion for TRO is DENIED IN PART.

I. BACKGROUND

The following factual summary is taken from the allegations of the habeas petition and supporting declarations and from the papers filed in support of and in opposition to the instant motion for TRO.

Petitioner is a 42-year-old non-citizen from Mexico who is married and the father of four children. In 2010, he pled guilty to a misdemeanor violation of California Penal Code Section 273.5(a) in Fresno County Superior Court case number F10500202. See dkt. 5-2 (Kosmo Decl.) at 67 (Minute Order) ¶¶ 14-15. At that time, he signed a Misdemeanor Plea Form indicating that he "inflicted injury on wife." Id. at 64. The state court suspended imposition of sentence and imposed three years of probation with the condition that petitioner would serve 360 days in county jail, "all suspended except 40 days" time served. Id. at 67 ¶¶ 22-23.

On August 6, 2019, the state court found that petitioner had violated his probation in connection with his California Penal Code § 273.5(a) conviction. Dkt. 5-2 at 71-72. The court sentenced petitioner to "[s]erve 90 Days at Fresno County Jail as to count(s) - 1. Corporal Injury - on Spouse/Cohabitant." Id. at 72. In late August 2019, Petitioner was taken into immigration custody directly from the Fresno County Jail after serving his sentence in case number F10500202. Dkt. 5-2 at 12. Petitioner was detained at the Mesa Verde facility from late August 2019 to December 2019. Id. While in ICE custody and awaiting a bond hearing, Mr. Ortiz fell gravely ill and was hospitalized with hyperosmolar nonketotic hyperglycemia and diabetic ketoacidosis, life-threatening conditions resulting from untreated and severely uncontrolled diabetes. Dkt. 5-3 (Kosmo Decl.) at 3, 113, 119. He spent four days in an intensive care unit and was told that he fell into a diabetic coma.

On December 6, 2019, the immigration judge ("IJ") conducted a bond hearing and ordered that petitioner be released if he paid a $10,000 bond. In doing so, she found that petitioner was not subject to the INA's mandatory detention provisions at Section 236(c), 8 U.S.C. § 1226(c), but rather Section 236(a), 8 U.S.C. § 1226(a), and that she thereforehad the authority to grant petitioner release on bond. On December 23, 2019, Petitioner's bond was posted, and he was released on bond. Dkt. 5-2 at 12, 46. On January 29, 2020, the IJ issued, sua sponte, an order reconsidering the prior bond decision and revoking bond based on the finding that petitioner's conviction under Penal Code § 273.5 constituted a crime involving moral turpitude and that he was therefore subject to mandatory custody under INA § 236(c). Dkt. 5-3 at 198-203. On February 27, 2020, petitioner filed a notice of appeal to the Board of Immigration Appeals ("BIA") from the IJ's January 29, 2020, decision. The appeal before the BIA remains pending.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 65 provides federal courts with the authority to issue temporary restraining orders and preliminary injunctions. Fed. R. Civ. P. 65(a), (b). Generally, the purpose of a preliminary injunction is to preserve the status quo and the rights of the parties until a final judgment on the merits can be rendered, see U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010), while the purpose of a temporary restraining order is to preserve the status quo before a preliminary injunction hearing may be held. See Granny Goose Foods, Inc. v. Bhd. of Teamsters and Auto Truck Drivers, 415 U.S. 423, 439 (1974). Requests for temporary restraining orders are governed by the same general legal 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).

A petitioner seeking a temporary restraining order must establish that (i) he is likely to succeed on the merits, (ii) that he is likely to suffer irreparable harm in the absence of preliminary relief, (iii) that the balance of equities tips in his favor, and (iv) that an injunction is in the public interest. Winter, 555 U.S. at 20. Alternatively, the petitioner may demonstrate that the likelihood of success is such that "serious questions going to the merits were raised and that the balance of hardships tips sharply in the plaintiff's favor," so long as the other two elements of the Winter test are met. Alliance for the WildRockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011).

III. DISCUSSION

A. Winter Factors and Sliding Scale Test

Having been released on bond before the immigration judge reconsidered her bond decision and revoked the bond on January 29, 2020, petitioner seeks narrow relief on the present TRO motion, limited to the question whether he is entitled to a judicial hearing before re-arrest or re-detention by ICE, not the substantive question whether he is subject to mandatory detention. Because this procedural due process question is not before the BIA on petitioner's bond appeal, the government's prudential exhaustion arguments in opposition to the TRO motion are inapposite.

Looking to the Winter factors, the court first considers whether petitioner has demonstrated likelihood of success on the merits of his claims. In the absence of controlling authority recognizing a due process right to a judicial hearing before re-arrest or re-detention by immigration authorities, petitioner fails to show a strong likelihood of success under Winter. However, under the Ninth Circuit's alternative sliding scale approach, petitioner has certainly raised "serious questions going to the merits" of his procedural due process claim. Alliance for the Wild Rockies, 632 F.3d at 1131-32.

The due process issue arising from re-arrest following release on bond in the immigration context is likely to come before the Ninth Circuit on the government's appeal in Ortega v. Bonnar, No. 3:18-cv-03228-WHO, 415 F. Supp. 3d 963, 968 (N.D. Cal. 2019), notice of appeal filed, No. 20-15754 (9th Cir. Apr. 22, 2020) (opening brief due Sept. 30, 2020 per Aug. 5, 2020 clerk's order). In Ortega, the court granted the habeas petition by a lawful permanent resident from El Salvador who had been released on bond from immigration detention and asserted an as-applied due process challenge to the DHS's ability to re-arrest him without a hearing before an IJ to determine whether there had been a material change of circumstance. In granting the habeas petition, the court in Ortega recognized that "the DHS has authority to revoke a noncitizen's bond or parole 'at any time,' even if that individual has previously been released." 415 F. Supp. 3d at 968(citing 8 U.S.C. § 1226(b)). See also 8 C.F.R. § 236.1(c)(9) ("When an alien who, having been arrested and taken into custody, has been released, such release may be revoked at any time in the discretion of the district director, acting district director, deputy district director, assistant district director for investigations, assistant district director for detention and deportation, or officer in charge (except foreign), in which event the alien may be taken into physical custody and detained."). However, as the court stated in Ortega, the BIA has limited this authority such that, in practice, the DHS re-arrests non-citizens only after a "material" change in circumstances: "'where a previous bond determination has been made by an immigration judge, no change should be made by [the DHS] absent a change of circumstance.'" Id. (quoting Matter of Sugay, 17 I. & N. Dec. 637, 640 (BIA 1981)).

The court in Ortega also recognized the principle that "'the government's discretion to incarcerate non-citizens is always constrained by the requirements of due process.'" Id. (quoting Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017)). The court found that Ortega had a protectable liberty interest in remaining out of custody on bond, similar to the liberty interests of people on pre-parole, parole and probation as recognized under Supreme Court authority. Id. at 969-70 (citing Young v. Harper, 520 U.S. 143, 150 (1997) (pre-parole); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (probation); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (parole)).

The government argues that even assuming that petitioner has a liberty interest in continued release on bond, the existing procedures provided to petitioner if re-arrested are constitutionally adequate and no additional process is required. Opp. at 16-19. When evaluating a procedural due process...