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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 GURMEET SINGH, Case No. 1:23-cv-01043-EPG-HC

12 Petitioner, ORDER GRANTING IN PART

PETITIONER’S MOTION FOR

13 v. TEMPORARY RESTRAINING ORDER

14 MERRICK GARLAND, et al., (ECF No. 2) 15 Respondents.

16 17 Petitioner Gurmeet Singh, represented by counsel, is a federal immigration detainee 18 proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The parties 19 have consented to the jurisdiction of a United States magistrate judge. (ECF Nos. 9, 12.) For the 20 reasons set forth herein, the Court orders that Petitioner’s motion for temporary restraining order 21 is granted in part. 22 I. 23 BACKGROUND 24 Petitioner is from India and first entered the United States in May 1988 when he was 25 eight years old as a lawful permanent resident. (ECF No. 2-2 at 2; ECF No. 8 at 3; ECF No. 8-1 26 at 2; ECF No. 8-2 at 2.)1 Petitioner was convicted of conspiring to distribute and possessing with 27 intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (B)(1)(A), and 846. (ECF No. 1 8 at 3; ECF No. 8-2 at 43–44, 46.) Petitioner ultimately was sentenced to an imprisonment term 2 of 150 months. (ECF No. 8 at 3; ECF No. 8-2 at 52.) In June 2020, Petitioner was convicted of 3 assault with a semiautomatic firearm, in violation of California Penal Code section 245(b). 4 Petitioner was sentenced to an imprisonment term of three years. (ECF No. 8 at 3; ECF No. 8-2 5 at 7.) 6 Upon Petitioner’s release from prison on August 2, 2021, U.S. Immigration and Customs 7 Enforcement (“ICE”) detained Petitioner under 8 U.S.C. § 1226(c). (ECF No. 8 at 3.) Petitioner 8 is currently detained at the Golden State Annex facility in McFarland, California. (ECF No. 2-2 9 at 2; ECF No. 8 at 3.) ICE initiated removal proceedings against Petitioner pursuant to 8 U.S.C. 10 §§ 1227(a)(2)(A)(iii) and (B)(i). (ECF No. 8 at 3.) 11 At a hearing on September 23, 2021, the Immigration Judge (“IJ”) sustained the charge of 12 removability and Petitioner filed his application for relief. (ECF No. 8 at 3; ECF No. 8-1 at 3–4.) 13 On November 19, 2021, the IJ denied relief and ordered Petitioner be removed to India. (ECF 14 No. 8 at 4; ECF No. 8-1 at 4, ECF No. 8-2 at 72.) On December 23, 2021, Petitioner 15 administratively appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). (ECF 16 No. 8 at 4; ECF No. 8-1 at 4.) On February 2, 2023, the BIA dismissed Petitioner’s appeal. (ECF 17 No. 8 at 4; ECF No. 8-2 at 77–78.) On March 3, 2023, Petitioner filed a petition for review and 18 motion to stay removal in the United States Court of Appeal for the Ninth Circuit. (ECF No. 8 at 19 4.) A temporary stay of removal remains in effect. The government’s answering brief was due on 20 September 5, 2023, and Petitioner’s reply brief is due twenty-one days after service of the 21 answering brief. (Id.) 22 Upon entering Department of Homeland Security (“DHS”) custody, DHS conducted a 23 custody redetermination and concluded that detention was warranted because Petitioner 24 constituted a threat to public safety if released. (ECF No. 8-1 at 3–4; ECF No. 8-2 at 55–57.) On 25 June 28, 2023, the IJ denied Petitioner’s request for a custody redetermination because the IJ did 26 not have jurisdiction. (ECF No. 8-1 at 4; ECF No. 8-2 at 58–59.) 27 On July 12, 2023, Petitioner filed a petition for writ of habeas corpus and the instant 1 been detained since August 2, 2021, and has not been afforded a bond hearing. Petitioner asserts 2 that his prolonged detention violates his Fifth and Eighth Amendment rights and requests a 3 temporary restraining order that secures his immediate release, or in the alternative, a bond 4 hearing. (ECF No. 2 at 1–2.) Respondents filed an opposition to the motion for TRO, and 5 Petitioner filed a reply. (ECF Nos. 8, 9.) 6 II. 7 DISCUSSION 8 A. Temporary Restraining Order Legal Standard 9 “A preliminary injunction is an extraordinary remedy never awarded as of right.”2 Winter 10 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). A federal district court 11 may issue emergency injunctive relief only if it has personal jurisdiction over the parties and 12 subject matter jurisdiction over the lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, 13 Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party officially, and is required to 14 take action in that capacity, only upon service of summons or other authority-asserting measure 15 stating the time within which the party must appear to defend”). “A plaintiff seeking a 16 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 17 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 18 favor, and that an injunction is in the public interest.” Glossip v. Gross, 576 U.S. 863, 876 (2015) 19 (internal quotation marks omitted) (quoting Winter, 555 U.S. at 20). “Under Winter, plaintiffs 20 must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary 21 injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 22 B. Immigration Detention Statutes and Bond Hearings 23 Congress has enacted a complex statutory scheme governing the detention of noncitizens 24 during removal proceedings and following the issuance of a final order of removal. “Where an 25 alien falls within this statutory scheme can affect whether his detention is mandatory or 26 discretionary, as well as the kind of review process available to him if he wishes to contest the 27 2 “The standard for a [temporary restraining order] is the same as for a preliminary injunction.” Rovio Entm’t Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 1086, 1092 (N.D. Cal. 2012) (citing Stuhlbarg Int’l Sales Co. v. John D. 1 necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). Here, 2 Petitioner is detained pursuant to 8 U.S.C. § 1226(c),3 which provides: 3 (c) Detention of criminal aliens

4 (1) Custody

5 The Attorney General shall take into custody any alien who--

6 (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, 7 (B) is deportable by reason of having committed any 8 offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, 9 (C) is deportable under section 1227(a)(2)(A)(i) of this title 10 on the basis of an offense for which the alien has been sentence1 to a term of imprisonment of at least 1 year, or 11 (D) is inadmissible under section 1182(a)(3)(B) of this title 12 or deportable under section 1227(a)(4)(B) of this title,

13 when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, 14 and without regard to whether the alien may be arrested or imprisoned again for the same offense. 15 (2) Release 16 The Attorney General may release an alien described in 17 paragraph (1) only if the Attorney General decides pursuant to section 3521 of Title 18 that release of the alien from custody 18 is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major 19 criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating 20 with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of 21 other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall 22 take place in accordance with a procedure that considers the severity of the offense committed by the alien. 23 24 8 U.S.C. § 1226(c). 25 In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court addressed a challenge to 26 prolonged detention under § 1231(a)(6) by noncitizens who “had been ordered removed by the 27 3 The Ninth Circuit has “conclude[d] that Subsection C applies throughout the administrative and judicial phases of 1 government and all administrative and judicial review was exhausted, but their removal could 2 not be effectuated because their designated countries either refused to accept them or the United 3 States lacked a repatriation treaty with the receiving country.” Prieto–Romero, 534 F.3d at 1062 4 (citing Zadvydas, 533 U.S. at 684–86). The Supreme Court held that § 1231(a)(6) does not 5 authorize indefinite detention and “limits an alien’s post-removal-period detention to a period 6 reasonably necessary to bring about that alien’s removal from the United States.” Zadvydas, 533 7 U.S. at 689. Thus, after a presumptively reasonable detention period of six months, a noncitizen 8 was entitled to release if “it has been determined that there is no significant likelihood of removal 9 in the reasonably foreseeable future.” Id. at 701. 10 In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court rejected a facial challenge to 11 mandatory detention under 8 U.S.C. § 1226(c). The Supreme Court upheld its “longstanding 12 view that the Government may constitutionally detain deportable aliens during the limited period 13 necessary for their removal proceedings.” Id. at 526. The Supreme Court distinguished Zadvydas 14 by emphasizing that mandatory detention under § 1226(c) has “a definite termination point” and 15 “in the majority of cases it lasts for less than the 90 days . . . considered presumptively valid in 16 Zadvydas.” Id. at 529. However, Justice Kennedy specifically noted that “a lawful permanent 17 resident alien such as respondent could be entitled to an individualized determination as to his 18 risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” 19 Demore, 538 U.S. at 532 (Kennedy, J., concurring). 20 “In a series of decisions, the [Ninth Circuit] . . . grappled in piece-meal fashion with 21 whether the various immigration detention statutes may authorize indefinite or prolonged 22 detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez v. 23 Hayes (Rodriguez I), 591 F.3d 1105, 1114 (9th Cir. 2010). This culminated in Rodriguez v. 24 Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015), in which the Ninth Circuit held that for 25 noncitizens detained under 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), “the government must 26 provide periodic bond hearings every six months so that noncitizens may challenge their 27 continued detention as ‘the period of . . . confinement grows.’” 804 F.3d at 1089 (quoting Diouf 1 applied the canon of constitutional avoidance to interpret these immigration detention provisions 2 as providing a statutory right to a bond hearing once detention become prolonged. See Rodriguez 3 Diaz v. Garland, 53 F.4th 1189, 1195 (9th Cir. 2022). 4 In Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the Supreme Court found the Ninth 5 Circuit’s interpretation that § 1226(c) included “an implicit 6–month time limit on the length of 6 mandatory detention” fell “far short of a ‘plausible statutory construction,’” and held that the 7 Ninth Circuit misapplied the constitutional avoidance canon to find a statutory right under 8 8 U.S.C. § 1226(a) to “periodic bond hearings every six months in which the Attorney General 9 must prove by clear and convincing evidence that the alien’s continued detention is necessary.” 10 Jennings, 138 S. Ct. at 846, 842, 847–48. The case was remanded to the Ninth Circuit “to 11 consider [the] constitutional arguments on their merits.” Id. at 851. The Ninth Circuit likewise 12 remanded the case to the district court to consider the constitutional arguments in the first 13 instance but observed that it had “grave doubts that any statute that allows for arbitrary 14 prolonged detention without any process is constitutional or that those who founded our 15 democracy precisely to protect against the arbitrary deprivation of liberty would have thought 16 so.” Rodriguez v. Marin, 909 F.3d 252, 255, 256 (9th Cir. 2018). 17 There has been “a dearth of guidance regarding the point at which an individual’s 18 continued mandatory detention under Section 1226(c) becomes unconstitutional.” Gonzalez v. 19 Bonnar, No. 18-cv-05321-JSC, 2019 WL 330906, at *3 (N.D. Cal. Jan. 25, 2019). See Rodriguez 20 Diaz, 53 F.4th at 1201, 1203 (observing that “it remains undetermined whether the Due Process 21 Clause requires additional bond procedures under any immigration detention statute,” and noting 22 that both the Ninth Circuit “and the Supreme Court have repeatedly declined to decide 23 constitutional challenges to bond hearing procedures in the immigration detention context”). The 24 Ninth Circuit has yet to take a position on whether due process requires a bond hearing for 25 noncitizens detained under 8 U.S.C. § 1226(c), but it has recognized that “district courts 26 throughout this circuit have ordered immigration courts to conduct bond hearings for noncitizens 27 held for prolonged periods under § 1226(c)” based on due process and noted that “[a]ccording to 1 a bond hearing, will—at some point—violate the right to due process.’” Martinez v. Clark, 36 2 F.4th 1219, 1223 (9th Cir. 2022) (citation omitted). 3 C. Likelihood of Succeeding on the Merits 4 As Petitioner is seeking a temporary restraining order, he must establish “that he is likely 5 to succeed on the merits” of his due process claim. Winter, 555 U.S. at 20. Petitioner contends 6 that “[d]etention without a bond hearing is unconstitutional when it exceeds six months,” and 7 “[e]ven if a bond hearing is not required after six months in every case, at a minimum, due 8 process requires a bond hearing after detention has become unreasonably prolonged.” (ECF No. 9 2-2 at 6, 7.) Petitioner notes that “[c]ourts that apply a reasonableness test have considered three 10 main factors in determining whether detention is reasonable”: (1) “whether the noncitizen has 11 raised a ‘good faith challenge to removal’”; (2) the length of detention, “with detention 12 presumptively unreasonable if it lasts six months to a year”; and (3) “the likelihood that 13 detention will continue pending future proceedings.” (ECF No. 2-2 at 7–8.) In the opposition, 14 “Respondents submit that the appropriate test is similar to that which this Court previously 15 applied in Lopez, 631 F. Supp. 3d at 879,” which “considers three factors: (1) the total length of 16 detention to date, (2) the likely duration of future detention, and (3) the delays in the proceedings 17 caused by the petitioner and the government.” (ECF No. 8 at 10.) In the reply, Petitioner argues 18 that even under the three-part Lopez test, “Petitioner’s detention has become so unreasonably 19 prolonged that an initial bond hearing is required.” (ECF No. 9 at 7.) 20 Courts in the Ninth circuit have taken a variety of approaches to determine whether due 21 process requires a bond hearing in a particular case. See, e.g., Rodriguez v. Nielsen, No. 18-cv- 22 04187-TSH, 2019 WL 7491555, at *6 (N.D. Cal. Jan. 7, 2019) (applying a bright-line rule 23 “detention becomes prolonged after six months and entitles [the petitioner] to a bond hearing”); 24 Banda v. McAleenan, 385 F. Supp. 3d 1099, 1117 (W.D. Wash. 2019) (considering six factors, 25 which include: “(1) the total length of detention to date; (2) the likely duration of future 26 detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the 27 detainee; (5) delays in the removal proceedings caused by the government; and (6) the likelihood 1 1660-RJB-MLP, 2021 WL 2323436, at *4 (W.D. Wash. May 5, 2021) (considering, in addition 2 to six factors set forth above, “whether the detention will exceed the time the petitioner spent in 3 prison for the crime that made him [or her] removable” and “the nature of the crimes the 4 petitioner committed”), report and recommendation adopted, 2021 WL 2322823 (W.D. Wash. 5 June 7, 2021). 6 Respondents argue that the appropriate test is one previously applied by a judge in this 7 district, which looks to “the total length of detention to date, the likely duration of future 8 detention, and the delays in the removal proceedings caused by the petitioner and the 9 government” to determine whether detention pursuant to 8 U.S.C. § 1226(c) has become 10 unreasonable. Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022), appeal dismissed 11 per stipulation, No. 22-16831, 2023 WL 2240474 (9th Cir. Jan. 17, 2023). 12 There are also some courts that apply the three-part test set forth in Mathews v. Eldridge, 13 424 U.S. 319 (1976). See Zagal-Alcaraz v. ICE Field Off., No. 3:19-cv-01358-SB, 2020 WL 14 1862254, at *3–4 (D. Or. Mar. 25, 2020) (collecting cases), report and recommendation adopted, 15 2020 WL 1855189 (D. Or. Apr. 13, 2020). In Rodriguez Diaz,4 which concerned a noncitizen 16 detained pursuant to 8 U.S.C. § 1226(a) and whether “continued detention was unconstitutional 17 because under the Due Process Clause of the Fifth Amendment, he is entitled to a second bond 18 hearing at which the government bears the burden of proof by clear and convincing evidence,” 19 the panel majority “assume[d] without deciding” that the Mathews test applied, noting that the 20 Ninth Circuit has “regularly applied Mathews to due process challenges to removal 21 proceedings,” and finding “Mathews remains a flexible test that can and must account for the 22 heightened governmental interest in the immigration detention context.” Rodriguez Diaz, 53 23 F.4th at 1193, 1206. Similarly, the dissent “agree[d] that the test developed in Mathews v. 24 Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), is the appropriate legal framework 25 to determine whether there was a due process violation.” Rodriguez Diaz, 53 F.4th at 1219 26 (Wardlaw, J., dissenting). Some courts look to whether the petitioner is requesting an initial bond 27 4 The Court notes that a petition for panel rehearing and rehearing en banc has been filed. See Petition for Panel Rehearing and Petition for Rehearing En Banc, Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022) (No. 20- 1 hearing or a second bond hearing in deciding whether to apply the Mathews test because 2 “[w]hile the Mathews factors may be well-suited to determining whether due process requires a 3 second bond hearing, they are not particularly dispositive of whether prolonged mandatory 4 detention has become unreasonable in a particular case.” Djelassi v. ICE Field Office Dir., No. 5 C19-491-RSM, 2020 WL 263670, at *2 (W.D. Wash. Jan. 17, 2000) (quoting Banda, 385 F. 6 Supp. 3d at 1118). 7 Here, Petitioner is detained pursuant to §1226(c) and is requesting an initial bond 8 hearing. Given the uncertainty regarding the appropriate test, in an abundance of caution the 9 Court will apply the Mathews test, the Lopez test, and the three factors set forth by Petitioner in 10 the motion for TRO. 11 1. Mathews Test 12 In Mathews, the Supreme Court held that “identification of the specific dictates of due 13 process generally requires consideration of three distinct factors”: 14 First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through 15 the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s 16 interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 17 requirements would entail. 18 Mathews, 424 U.S. at 334. 19 With respect to the first factor, the Court finds that the private interest at issue is 20 fundamental. “Freedom from imprisonment—from government custody, detention, or other 21 forms of physical restraint—lies at the heart of the liberty [the Due Process] Clause 22 protects.” Zadvydas, 533 U.S. at 690. The Ninth Circuit has held that it “is beyond dispute” an 23 immigration detainee’s “private interest at issue here is ‘fundamental’: freedom from 24 imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’” Hernandez v. 25 Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 26 (1992)). See Rodriguez Diaz, 53 F.4th at 1207 (“We have also held, more generally, that an 27 individual’s private interest in ‘freedom from prolonged detention’ is ‘unquestionably 1 under Mathews.” (quoting Singh, 638 F.3d at 1208)). Accordingly, the first Mathews factor 2 weighs in favor of Petitioner. 3 With respect to the second factor, the Court finds that the risk of erroneous deprivation of 4 Petitioner’s liberty interest and the probable value of additional procedural safeguards is high 5 given that Petitioner has not received any bond hearing during his two-year detention. See 6 Jimenez v. Wolf, No. 19-cv-07996-NC, 2020 WL 510347, at *3 (N.D. Cal. Jan. 30, 2020) 7 (“[T]he risk of an erroneous deprivation of Landeros Jimenez’s liberty interest is high. He has 8 not received any bond or custody redetermination hearing during his one-year detention. Thus, 9 the probable value of additional procedural safeguards—a bond hearing—is high, because 10 Respondents have provided virtually no procedural safeguards at all.”). Accordingly, the second 11 Mathews factor weighs in favor of Petitioner. 12 With respect to the third and final factor, the Court recognizes that “the government 13 clearly has a strong interest in preventing aliens from ‘remain[ing] in the United States in 14 violation of our law’” and “has an obvious interest in ‘protecting the public from dangerous 15 criminal aliens.’” Rodriguez Diaz, 53 F.4th at 1208 (quoting Demore, 538 U.S. at 518, 515). 16 However, it is important to stress that the “government interest at stake here is not the continued 17 detention of Petitioner, but the government’s ability to detain him without a bond hearing.” 18 Zagal-Alcaraz, 2020 WL 1862254, at *7. See Henriquez v. Garland, No. 5:22-cv-00869-EJD, 19 2022 WL 2132919, at *5 (N.D. Cal. June 14, 2022) (“Although the Government has a strong 20 interest in enforcing the immigration laws and in ensuring that lawfully issued removal orders 21 are promptly executed, the Government’s interest in detaining Petitioner without providing an 22 individualized bond hearing is low.”). Courts generally have found that the cost of providing a 23 bond hearing is relatively minimal, and there is nothing in the record before this Court 24 demonstrating that providing Petitioner with a bond hearing would be fiscally or administratively 25 burdensome. See Marroquin Ambriz v. Barr, 420 F. Supp. 3d 953, 964 (N.D. Cal. 2019) (noting 26 in context of a § 1226(a) detention, the parties did not contest “that the cost of conducting a bond 27 hearing, to determine whether the continued detention of Petitioner is justified, is minimal”); 1 detention that “[t]he government has not offered any indication that a [ ] bond hearing would 2 have outside effects on its coffers”). Accordingly, the third Mathews factor weighs in favor of 3 Petitioner. 4 Based on the foregoing, the Court finds that each of the factors weighs in favor of 5 Petitioner. Petitioner is therefore likely to succeed on the merits of his due process claim under 6 the Mathews test. 7 2. Lopez Test 8 Under Lopez, the Court looks to “the total length of detention to date, the likely duration 9 of future detention, and the delays in the removal proceedings caused by the petitioner and the 10 government” to determine whether detention pursuant to 8 U.S.C. § 1226(c) has become 11 unreasonable. Lopez, 631 F. Supp. 3d at 879. 12 a. Total Length of Detention to Date 13 Respondent contends that while Lopez “simply counted the number of months of 14 detention and declined to give any consideration to the history or procedural posture of the 15 removal litigation,” this Court should not follow suit given Rodriguez Diaz, which noted that 16 “turning such a blind eye to the history and procedural posture of the removal litigation 17 necessarily taints a prolonged detention analysis, as simply counting up time would illogically 18 result in rendering the statutory detention scheme ‘unconstitutional as to most any alien who 19 elects to challenge a removal order, given the amount of time such a typical[] challenge takes.’” 20 (ECF No. 8 at 11 (alteration in original) (quoting Rodriguez Diaz, 53 F.4th at 1207).) Lopez 21 rejected a similar argument, noting that 22 [i]n upholding the constitutionality of mandatory detention under 8 U.S.C. § 1226(c), Demore relied on the “brief” and “very limited 23 time of the detention,” repeatedly referring to the brevity of § 1226(c) detention throughout the opinion and observing that “the 24 detention at stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked,” which is “less 25 than the 90 days we considered presumptively valid in Zadvydas,” and “about five months in the minority of cases in which the alien 26 chooses to appeal.” Demore, 538 U.S. at 513, 529 & n.12, 530, 123 S.Ct. 1708. See Muse v. Sessions, 409 F. Supp. 3d 707, 714–15 27 (D. Minn. 2018) (rejecting the government’s contention “that the Due Process Clause permits detention of an alien for the entire 1 good faith and does not engage in dilatory conduct”); Martinez, 2019 WL 5968089, at *8 (declining to adopt the government’s 2 argument “that regardless of the length of detention without a bond hearing, detention remains constitutional so long as there is no 3 unreasonable delay by the Government”) (collecting cases). 4 Lopez, 631 F. Supp. 3d at 880. Like Lopez, the Court does not find Respondent’s argument 5 persuasive and will look to the total length of detention to date. 6 Here, Petitioner has been in immigration detention since August 2, 2021, approximately 7 twenty-five months. District courts have found significantly shorter lengths of detention pursuant 8 to § 1226(c) to be unreasonable. See Lopez, 631 F. Supp. 3d at 879 (granting habeas relief and 9 ordering individualized bond hearing for petitioner detained approximately one year and citing 10 cases where detentions of two months, eight months, and eleven months were found 11 unreasonable). In Rodriguez Diaz, the Ninth Circuit “assume[d]” that fourteen months of 12 detention without a bond hearing “qualifies as ‘prolonged’ in a general sense.” 53 F.4th at 1207. 13 “In general, ‘[a]s detention continues past a year, courts become extremely wary of permitting 14 continued custody absent a bond hearing.’” Gonzalez, 2019 WL 330906, at *3 (alteration in 15 original) (quoting Muse, 409 F. Supp. 3d at 716). Here, Petitioner has been detained for two 16 years. Accordingly, the Court finds that the first Lopez factor weighs in favor of Petitioner. 17 b. Likely Duration of Future Detention 18 Respondents contend that “[j]udicial review of [Petitioner’s] removal order in the circuit 19 court is proceeding promptly and the parties’ remaining briefs will be filed within the next few 20 months,” the “circuit court will likely issue a decision shortly thereafter, which will end the 21 litigation over Petitioner’s removal order,” and thus, “this factor also weighs in favor of 22 Respondents.” (ECF No. 8 at 12, 13.) Although the Court recognizes, as noted by Respondents, 23 that Petitioner’s detention under § 1226(c) has “a definite termination point,” Demore, 538 U.S. 24 at 529, the Court finds that judicial review by the Ninth Circuit will be sufficiently lengthy such 25 that this factor weighs in favor of Petitioner.5 See Sanchez-Rivera v. Matuszewski, No. 22-cv-

26 5 The Ninth Circuit’s public website provides that oral argument in a civil case takes place approximately six to twelve months from the notice of appeal or approximately four months from completion of briefing. Additionally, 27 the Ninth Circuit may take three months to a year to decide the case after oral argument. See U.S. Court of Appeals for the Ninth Circuit, Frequently Asked Questions, www.ca9.uscourts.gov/content/faq.php (last visited Sept. 7, 1 1357-MMA (JLB), 2023 WL 139801, at *6 (S.D. Cal. Jan. 9, 2023) (finding that “Petitioner’s 2 appeal of his removal order to the Ninth Circuit will likely be ‘sufficiently lengthy such that this 3 factor weighs in favor of Petitioner’” (citation omitted)); Zagal-Alcaraz, 2020 WL 1862254, at 4 *4 (finding that “Petitioner will remain in custody for a sufficiently lengthy period of time to 5 justify a bond hearing” when Petitioner intended to file a petition for reconsideration with the 6 Ninth Circuit). Accordingly, the Court finds that the second Lopez factor weighs in favor of 7 Petitioner. 8 c. Delays Caused by Petitioner and the Government 9 On August 24, 2021, Petitioner appeared for a removal hearing before an IJ and requested 10 that his case be reset to allow him time to consult with his attorney. On August 26, 2021, 11 Petitioner appeared for a removal hearing and requested a continuance to allow him time to file 12 an application for relief. (ECF No. 8-1 at 3.) In his administrative appeal with the BIA, Petitioner 13 requested an extension of time to file a brief in support of his appeal. (Id. at 4.) There is no 14 indication that these delays were made in bad faith and Respondents acknowledge that any delay 15 was “modest[].” (ECF No. 8 at 13.) Accordingly, the Court finds that the third Lopez factor 16 weighs in favor of Respondents. 17 In sum, both the length of detention to date, “which is the most important factor,” Banda, 18 385 F. Supp. 3d at 1118, and the likely duration of future detention weigh in favor of finding 19 continued detention unreasonable. Although the delay factor weighs in favor of Respondents, 20 “Petitioner is entitled to raise legitimate defenses to removal . . . and such challenges to his 21 removal cannot undermine his claim that detention has become unreasonable.” Liban M.J. v. 22 Sec’y of Dep’t of Homeland Sec., 367 F. Supp. 3d 959, 965 (D. Minn. 2019) (citing Hernandez 23 v. Decker, No. 18-CV-5026 (ALC), 2018 WL 3579108, at *9 (S.D.N.Y. July 25, 2018) (“the 24 mere fact that a noncitizen opposes his removal is insufficient to defeat a finding of unreasonably 25 prolonged detention, especially where the Government fails to distinguish between bona fide and 26 frivolous arguments in opposition”)). “[T]he fact that Petitioner chose to pursue [an application 27 for relief] and requested continuances to further that application does not deprive him of a 1 foregoing, Petitioner is likely to succeed on the merits of his due process claim under the Lopez 2 test. 3 3. Petitioner’s Three Factors 4 In the motion for TRO, Petitioner submits that “[c]ourts that apply a reasonableness test 5 have considered three main factors in determining whether detention is reasonable”: (1) “whether 6 the noncitizen has raised a ‘good faith challenge to removal’”; (2) the length of detention, “with 7 detention presumptively unreasonable if it lasts six months to a year”; and (3) “the likelihood 8 that detention will continue pending future proceedings.” (ECF No. 2-2 at 7–8.) 9 With respect to the first factor, Petitioner contends that he “has raised a good faith 10 challenge to his removal” and “is pursuing a petition for review before the Ninth Circuit Court of 11 Appeals.” (ECF No. 2-2 at 8.) Respondents have not addressed this factor. As there is nothing 12 before the Court indicating that Petitioner is acting in bad faith in challenging his removal, the 13 Court finds this factor weighs in favor of Petitioner. As set forth in section II(C)(2), supra, the 14 Court has found that the total length of detention and likely duration of future detention factors 15 both weigh in favor of Petitioner. Petitioner is therefore likely to succeed on the merits of his due 16 process claim under the factors set forth by Petitioner in the motion for TRO. 17 Based on the foregoing, the Court finds that Petitioner is likely to succeed on the merits 18 of his due process claim regardless of whether the Court applies the Mathew test, the Lopez test, 19 or the three factors set forth in the motion for TRO. 20 D. Likelihood of Suffering Irreparable Harm 21 “In addition to a likelihood of success on the merits, ‘[a] plaintiff seeking a preliminary 22 injunction must establish . . . that he is likely to suffer irreparable harm in the absence of 23 preliminary relief.’” Hernandez, 872 F.3d at 994 (quoting Winter, 555 U.S. at 20). In Hernandez, 24 the Ninth Circuit found the district court did not abuse its discretion in entering an injunction that 25 required immigration officials to consider financial circumstances and alternative conditions of 26 release at the bond hearings of a class of noncitizens in removal proceedings who were detained 27 pursuant to 8 U.S.C. § 1226(a). Hernandez, 872 F.3d at 981–82. With respect to the second 1 Here, Plaintiffs have established a likelihood of irreparable harm by virtue of the fact that they are likely to be unconstitutionally 2 detained for an indeterminate period of time.

3 “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” Melendres v. 4 Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). 5 Thus, it follows inexorably from our conclusion that the government’s current policies are likely unconstitutional—and thus 6 that members of the plaintiff class will likely be deprived of their physical liberty unconstitutionally in the absence of the 7 injunction—that Plaintiffs have also carried their burden as to irreparable harm. 8 9 Hernandez, 872 F.3d at 994–95. Similarly, here, the Court has concluded that Petitioner is likely 10 to succeed on the merits of his due process claim, and thus, Petitioner has “established a 11 likelihood of irreparable harm by virtue of the fact that [he is] likely to be unconstitutionally 12 detained for an indeterminate period of time” in the absence of preliminary relief. Id. at 994. See 13 Baird v. Bonta, No. 23-15016, --- F.4th ----, 2023 WL 5763345, at *3 (9th Cir. Sept. 7, 2023) 14 (“It is well-established that the first factor is especially important when a plaintiff alleges a 15 constitutional violation and injury. If a plaintiff in such a case shows he is likely to prevail on the 16 merits, that showing usually demonstrates he is suffering irreparable harm no matter how brief 17 the violation.”); 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 18 § 2948.1 (3d ed. 1998) (“When an alleged deprivation of a constitutional right is involved, . . . 19 most courts hold that no further showing of irreparable injury is necessary.”). 20 E. Balance of Equities and the Public Interest 21 To obtain a temporary restraining order, Petitioner must also demonstrate that “the 22 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 23 U.S. at 20. “A plaintiff’s likelihood of success on the merits of a constitutional claim also tips the 24 merged third and fourth factors decisively in his favor.” Baird, 2023 WL 5763345, at *4. 25 “Because ‘public interest concerns are implicated when a constitutional right has been violated, 26 . . . all citizens have a stake in upholding the Constitution,’ meaning ‘it is always in the public 27 interest to prevent the violation of a party's constitutional rights.’” Id. (first quoting Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005); then quoting Riley’s American Heritage Farms v. 1 Elsasser, 32 F.4th 707, 731 (9th Cir. 2022)). “The government also ‘cannot reasonably assert 2 that it is harmed in any legally cognizable sense by being enjoined from constitutional 3 violations.’” Baird, 2023 WL 5763345, at *4 (quoting Zepeda v. INS, 753 F.2d 719, 727 (9th 4 Cir. 1983)) (citing Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (holding that the 5 government “cannot suffer harm from an injunction that merely ends an unlawful practice” 6 implicating “constitutional concerns”)). Accordingly, the Court finds that the balance of equities 7 tips in Petitioner’s favor and that a TRO is in the public interest. 8 Based on the foregoing, Petitioner has shown that he is likely to succeed on the merits of 9 his due process claim, that he will suffer irreparable harm in the absence of a TRO, that the 10 balance of equities tips in his favor, and that a TRO is in the public interest. Therefore, the Court 11 will grant Petitioner’s motion for TRO in part. 12 F. Remedy 13 Here, Petitioner “requests a temporary restraining order that secures his immediate 14 release or in the alternative, a bond hearing” before a neutral decisionmaker. (ECF No. 10 at 13.) 15 Respondents contend that “the only appropriate relief is a bond hearing, not release from 16 detention.” (ECF No. 8 at 14.) Petitioner has not provided authority to support his contention that 17 he is entitled to immediate release. “The Court finds, consistent with other post-Jennings cases, 18 that the appropriate remedy is a bond hearing before an immigration judge rather than immediate 19 release.” Lopez, 631 F. Supp. 3d at 882 (collecting cases). 20 The Court now turns to the burden of proof at the bond hearing and which party should 21 bear such burden. Petitioner argues that the government must bear the burden of proof by clear 22 and convincing evidence that the noncitizen is a danger or flight risk, citing to Singh v. Holder, 23 638 F.3d 1196, 1203 (9th Cir. 2011). (ECF No. 10 at 9.) Respondents contend that “the burden at 24 any such bond hearing is properly placed on Petitioner,” noting that Rodriguez Diaz questioned 25 whether placing the burden of proof on the government was constitutionally required. (ECF No. 26 8 at 15.) 27 Having “previously applied the canon of constitutional avoidance to interpret . . . 1 right to a bond hearing once detention becomes prolonged,” the Ninth Circuit in Singh 2 “concluded that for these hearings to comply with due process, the government had to bear the 3 burden of proving by clear and convincing evidence that the alien poses a flight risk or a danger 4 to the community.” Rodriguez Diaz, 53 F.4th at 1196 (citing Singh, 638 F.3d at 1203–05). 5 Although Rodriguez Diaz may have declined to impose the standard articulated in Singh, 6 Rodriguez Diaz is distinguishable because it considered whether the Due Process Clause entitled 7 a petitioner to a second bond hearing at which the government bears the burden of proof by clear 8 and convincing evidence in the § 1226(a) context. Rodriguez Diaz, 53 F.4th at 1203. Further, the 9 panel majority specifically stated that it was not “decid[ing] whether Singh remains good law in 10 any respect following Jennings” and even recognized that Singh was based “on general 11 principles of procedural due process, reasoning that a detained person’s liberty interest is 12 substantial.” Rodriguez Diaz, 53 F.4th at 1202 n.4, 1199. Additionally, the Ninth Circuit has 13 suggested post-Jennings that Singh remains good law in Martinez v. Clark, which took “no 14 position” on “[w]hether due process requires a bond hearing for aliens detained under 15 § 1226(c),” but did address “the scope of federal court review of those bond determinations” and 16 found with respect to a bond hearing for a noncitizen detained under § 1226(c) that “the BIA 17 properly noted that the government bore the burden to establish by clear and convincing 18 evidence that Martinez is a danger to the community.” Martinez, 36 F.4th at 1223, 1231. 19 The Court will follow the “overwhelming majority of courts that have held that the 20 government must justify the continued confinement of a non-citizen detainee under § 1226(c) by 21 clear and convincing evidence that the non-citizen is a flight risk or a danger to the community,” 22 Sanchez-Rivera, 2023 WL 139801, at *7, even post-Rodriguez Diaz. See, e.g., Rodriguez Picazo 23 v. Garland, No. 23-cv-02529-AMO, 2023 WL 5352897, at *6–7 (N.D. Cal. Aug. 21, 2023); J.P. 24 v. Garland, No. 23-cv-00612-AMO, 2023 WL 5059524, at *5 (N.D. Cal. Aug. 7, 2023); Pham v. 25 Becerra, No. 23-cv-01288-CRB, 2023 WL 2744397, at *7 (N.D. Cal. Mar. 31, 2023); Doe v. 26 Garland, No. 3:22-cv-03759-JD, 2023 WL 1934509, at *2 (N.D. Cal. Jan. 10, 2023). 27 /// 1 Il. 2 ORDER 3 Accordingly, the Court HEREBY ORDERS that: 4 1. Petitioner’s motion for temporary restraining order (ECF No. 2) is GRANTED in part; 5 2. Within thirty (30) days of the date of service of this order, Respondents shall provide 6 Petitioner with an individualized bond hearing before an immigration judge that complies 7 with the requirements set forth in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), and 8 where “the government must prove by clear and convincing evidence that [Petitioner] is a 9 flight risk or a danger to the community to justify denial of bond,” id. at 1203. 10 i IT IS SO ORDERED. 12} Dated: _ September 8, 2023 [see ey —— 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28