1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 I.E.S., Case No. 23-cv-03783-BLF

8 Plaintiff,

ORDER GRANTING IN PART WRIT

9 v. OF HABEAS CORPUS

10 MOISES BECERRA, et al., [Re: ECF No. 17] 11 Defendants.

12 13 Petitioner I.E.S. filed a Petition for Writ of Habeas Corpus against Respondents U.S. 14 Immigration and Customs Enforcement (“ICE”) San Francisco Field Office Director Moises 15 Becerra, Secretary of the Department of Homeland Security (“DHS”) Alejandro Mayorkas, Acting 16 ICE Director Patrick Lechleitner, and Attorney General Merrick Garland (collectively 17 “Respondents”). ECF Nos. 1 (“Pet.”), 17 (“Am’d Pet.”). I.E.S. argues that his 16-month 18 detention in ICE custody violates his substantive and procedural due process rights under the Fifth 19 Amendment. ECF No. 17 ¶¶ 1–5. Respondents have filed a return, ECF No. 18 (“Ret.”), and 20 I.E.S. has filed a traverse, ECF No. 19 (“Traverse”). After careful consideration of the briefs and 21 evidence, the Court GRANTS I.E.S.’s petition for a writ of habeas corpus and ORDERS that an IJ 22 conduct a bond hearing within 10 days of this Order. 23 I. BACKGROUND 24 A. I.E.S.’s Upbringing and Criminal Charges 25 I.E.S. is a native and citizen of Mexico and was born in Cuernavaca, Mexico in 1981. ECF 26 Nos. 17-2 (“I.E.S. Decl.”) ¶ 1; 18-1 (“Abad Decl.”) ¶ 5. The son of a nurse and factory worker, 27 I.E.S. grew up in poverty. See I.E.S. Decl. ¶¶ 3–7. In January 2000, when I.E.S. was 18 years old, 1 by an immigration officer. Abad Decl. ¶ 5; ECF No. 18-2. 2 After arriving in the United States, I.E.S. went to live with his uncles in Chico, California. 3 I.E.S. Decl. ¶ 10. He worked several jobs, including on a farm and at a rice mill. Id. ¶¶ 11–12. 4 While he worked at a rice factory, I.E.S. became friends with the other factory workers, many of 5 whom where members of the Sureños gang. Id. ¶ 13. Although I.E.S. initially resisted his friends’ 6 efforts to recruit him into the Sureños, he eventually relented. Id. ¶ 14. I.E.S. got in several 7 physical fights with members of the rival Norteños gang, including several that involved firearms. 8 Id. ¶ 16. To protect himself, I.E.S. accepted a pistol from a friend. Id. During his membership in 9 the Sureños, I.E.S. also started using methamphetamine. Id. ¶ 17. I.E.S. has many tattoos, 10 including several that identify him as a member of the Sureños. Id. ¶¶ 16, 20, 30 11 In 2003, I.E.S. was arrested for possession of a controlled substance and driving under the 12 influence of alcohol and/or drugs, for which he served 2 days in jail and 36 months on probation. 13 ECF No. 18-2 at 8. In 2004, I.E.S. was arrested twice for possession of a controlled substance 14 (cocaine), and once for driving under the influence of alcohol. Id.; ECF No. 18-3. I.E.S. served 15 two consecutive 8 month sentences for his possession offenses. ECF No. 18-3. In 2005, I.E.S. 16 was convicted of transportation of a controlled substance (methamphetamine) and possession of a 17 firearm by a felon—I.E.S. was sentenced to 4 years and 8 months in prison. ECF No. 18-2 at 8. 18 In 2004, I.E.S. met his wife at a quinceañera party. I.E.S. Decl. ¶ 18. They married in 19 2005. Id. 20 B. Prison Rehabilitation and Removal to Mexico 21 While in prison in Soledad, I.E.S. decided to denounce his membership in the Sureños, and 22 was placed in protective custody. I.E.S. Decl. ¶ 22. I.E.S. was then transferred to Avenal State 23 Prison, where he took classes in electronics and passed a test to transfer to a prison with better 24 programming. Id. ¶ 23. After I.E.S. was transferred, he worked cleaning rooms and in a kitchen 25 as a dishwasher and lead cook. Id. 26 While I.E.S. was serving his prison sentence, ICE issued a Notice to Appear and initiated 27 removal proceedings against I.E.S. ECF No. 18-7. On April 2, 2008, I.E.S. entered into a 1 Abad Decl. ¶ 7; ECF No. 18-7. I.E.S. was removed to Mexico on June 10, 2008. Abad Decl. ¶ 8; 2 ECF No. 18-9. 3 Relocation in Mexico was dangerous for I.E.S. and his wife. His hometown of Cuernavaca 4 was now plagued by gang and cartel violence. I.E.S. Decl. ¶ 28. In 2009, I.E.S. was attacked by 5 gang members with his mother and sister present. Id. ¶¶ 35–37. One gang member pulled out a 6 knife and, after I.E.S. and his family retreated into their home, the gang members broke the 7 windows and continued to threaten them. Id. Although I.E.S. and his family called the police, the 8 police did not assist them. Id. ¶ 39. After this attack, I.E.S. and his family moved from house to 9 house, but gang members continued to attack and threaten him. Id. ¶¶ 44–57. 10 Around January 2009, I.E.S.’s wife returned to the United States to give birth to the 11 couple’s first daughter. Id. ¶ 34. In 2010, with a second daughter on the way, I.E.S. decided to 12 return to the United States. Id. ¶ 57. 13 C. Return to the United States, Detention, and Immigration Proceedings 14 In 2010, I.E.S. reentered the United States without being inspected, admitted, or paroled by 15 an immigration officer. I.E.S. Decl. ¶ 58; Abad Decl. ¶ 8. In 2021, I.E.S. and his wife opened a 16 smoke shop in Sonoma, California. I.E.S. Decl. ¶ 59. In August 2021, I.E.S. was arrested for 17 robbery and receipt of stolen property. The charges were dismissed on June 6, 2022. ECF No. 18 17-1 at 62–69. The arrest prompted DHS to take I.E.S. into ICE custody on or about May 3, 2022. 19 Abad Decl. ¶ 9. 20 Since his arrest, I.E.S. has been detained at Golden State Annex, a private immigration 21 detention facility operated by GEO Group, Inc. in McFarland, California. Am’d Pet. ¶ 34. I.E.S. 22 explains that the conditions at Golden State Annex are severe. An officer once “tried to enforce 23 sexually-motivated pat-downs.” I.E.S. Decl. ¶ 64. I.E.S. also participated in a month-long hunger 24 strike to protest mistreatment in the facility. I.E.S. was one of the last people striking. Id. ¶ 65. 25 After the strike, I.E.S. was taken into medical segregation, where he was mocked, force-fed, kept 26 in sweaty clothes in a freezing cold room, and was not given water. Id. ¶¶ 67–68. 27 On the day that I.E.S.’s detention began, he was placed in removal proceedings before the 1 which the IJ denied, finding that he is subject to mandatory detention under 8 U.S.C. § 1226(c). 2 ECF No. 18-11. I.E.S.’s individual calendar hearing was originally scheduled on August 9, 2022. 3 ECF No. 17-1 at 73. He was initially granted two continuances to allow his counsel time to 4 prepare. Id. At the continued hearing on October 6, 2022, I.E.S. was not able to complete his 5 testimony due to audio connection issues, which led to another continuance to October 28, 2022. 6 Id. At the further continued hearing, I.E.S.’s counsel moved for another continuance because the 7 expert’s son was hospitalized the day before. Id. The hearing was continued a final time to 8 November 16, 2022, where I.E.S. rested his case. Id. On December 21, 2022, the IJ denied 9 I.E.S.’s requests for withholding of removal and relief under the Convention Against Torture. 10 ECF No. 18-12. I.E.S. appealed to the Board of Immigration Appeals (“BIA”). On June 16, 2023, 11 the BIA sustained I.E.S.’s appeal and remanded the case back to the IJ for further proceedings. 12 ECF No. 18-14. 13 I.E.S. continues to be detained at Golden State Annex. On February 16, 2023, I.E.S. filed 14 a written administrative request to ICE seeking release from custody as a matter of prosecutorial 15 discretion. Am’d Pet. ¶ 38. On May 6, 2023, ICE verbally denied release due to I.E.S.’s past 16 crimes. Id. ¶ 40. 17 II. JURISDICTION 18 The Court first considers whether jurisdiction lies within the district. ICE is currently 19 detaining I.E.S. at the Golden State Annex facility in McFarland, California. Golden State Annex 20 is a private facility that falls within the area of responsibility of the San Francisco Filed Office of 21 ICE Enforcement and Removal Operations. Respondent Becerra is the Field Office Director of 22 ICE’s San Francisco Field office. Am’d Pet. ¶ 17. 23 In Rumsfeld v. Padilla, the Supreme Court applied the “immediate custodian rule” to a 24 habeas petition filed by a U.S. citizen detained in military custody in South Carolina. 542 U.S. 25 426, 430–32 (2004). The immediate custodian rule is the long held “default rule” that the proper 26 respondent to a habeas petition challenging present physical confinement “is the warden of the 27 facility where [a] prisoner is being held, not the Attorney General or some other remote 1 respondent is in the immigration detention context, id. at 436 n.8, and it did not address the proper 2 respondent when a detainee is confined in a facility run by an entity other than the federal 3 government. Following Padilla, courts in this district have followed the rule that Judge Chhabria 4 articulated in Saravia v. Sessions: “[A] petitioner held in federal detention in a non-federal facility 5 pursuant to a contract should sue the federal official most directly responsible for overseeing the 6 contract facility.” 280 F.Supp.3d 1168, 1185 (N.D. Cal. 2017), aff’d sub nom. Saravia for A.H. v. 7 Sessions, 905 F.3d 1137 (9th Cir. 2018); see also Pham v. Becerra, No. 23-CV-01288-CRB, 2023 8 WL 2744397, at *4 (N.D. Cal. Mar. 31, 2023) (following Saravia). 9 Respondents contend that jurisdiction does not lie within this district for four reasons. 10 First, Respondents contend that under established Supreme Court and Ninth Circuit precedent, 11 jurisdiction lies only in the district of confinement—in this case, the Eastern District of California. 12 Ret. at 4 (first citing Padilla, 542 U.S. at 443, 447; then citing Lopez-Marroquin v. Barr, 955 F.3d 13 759 (9th Cir. 2020)). I.E.S. responds that Respondents overread Padilla and Ninth Circuit 14 precedent and that the consensus of courts in this district have found jurisdiction over petitions 15 filed by petitioners at Golden State Annex. Trav. at 1–3. Second, Respondents contend that the 16 proper respondent need not be a federal official. Ret. at 7 (citing Brittingham v. United States, 982 17 F.2d 378, 379 (9th Cir. 1992)). I.E.S. responds that Brittingham is inapposite because it is a pre- 18 Padilla, non-immigration appeal that did not address the particular factual situation in this case. 19 Trav. at 3. Third, Respondents contend that, even if the proper respondent is a federal official, 20 Acting Assistant Field Office Director Nancy Gonzalez and Deputy Field Office Director Orestes 21 Cruz—who are located in the Eastern District of California—are the “immediate custodian[s]” for 22 purposes of jurisdiction. Ret. at 8. I.E.S. responds that Becerra, rather than Gonzalez or Cruz, 23 controls the custody decisions related to I.E.S. Trav. at 4. Finally, Respondents contend that 24 questions of the proper respondent and jurisdiction are separate questions, and the district of 25 confinement rule still applies. Ret. at 8. I.E.S. responds that this reading of the law conflicts with 26 Padilla. Trav. at 4. 27 The Court will first address Respondents’ first, second, and fourth arguments—all of 1 Court to find that jurisdiction does not lie in this district. This Court and other courts in this 2 district have repeatedly and consistently rejected Respondents’ arguments. See, e.g., Pham, 2023 3 WL 2744397, at *3 (collecting cases); Perera v. Jennings, No. 21-CV-04136-BLF, 2021 WL 4 2400981, at *2 (N.D. Cal. June 11, 2021) (collecting cases). 5 Contrary to Respondents’ suggestions, there is no controlling authority on the 6 jurisdictional question presented in this case. Respondents rely on Padilla’s invocation of the 7 district of confinement rule to argue that jurisdiction lies in the Eastern District of California, but it 8 is not clear that Padilla requires that the district of confinement rule apply to this case. Padilla 9 acknowledged that jurisdiction requires “nothing more than the court issuing the writ [to] have 10 jurisdiction over the custodian.” 542 U.S. at 442 (quoting Braden v. 30th Jud. Cir. Ct. of 11 Kentucky, 410 U.S. 484, 495 (1973)). But Padilla explicitly refused to decide the proper 12 respondent in the immigration context. Id. at 436 n.8. Moreover, to the extent that Padilla 13 invoked the district of confinement rule, it did so based on the assumption that “[i]n habeas 14 challenges to present physical confinement, . . . the district of confinement is synonymous with the 15 district court that has territorial jurisdiction over the proper respondent. This is because, as we 16 have held, the immediate custodian rule applies to core habeas challenges to present physical 17 custody.” Id. at 444. Thus, not only did Padilla decline to apply the district of confinement rule 18 to the immigration detention context, but it plainly does not address this case, where the district of 19 confinement is not synonymous with the district that has territorial jurisdiction over the proper 20 respondent. 21 The Ninth Circuit cases cited by Respondent as applying the district of confinement rule to 22 immigration detention cases also do not address this question. Respondents primarily rely on 23 Lopez-Marroquin v. Barr, in which the Ninth Circuit construed an emergency motion to remand 24 pursuant to the All Writs Act as a petition for a writ of habeas corpus, which it transferred to the 25 district court where the petitioner was being detained. 955 F.3d 759 (9th Cir. 2020). However, 26 the Ninth Circuit did not analyze or expressly address the jurisdictional issue raised in this case. 27 “Courts in this district repeatedly have held, both before and since Lopez-Marroquin, that Padilla 1 over the immigrant detainee.” Domingo v. Barr, No. 20-CV-06089-YGR, 2020 WL 5798238, at 2 *2 (N.D. Cal. Sept. 29, 2020). Similarly, the unpublished Ninth Circuit decisions cited by 3 Respondents do not address why the designated jurisdiction was appropriate, let alone which 4 jurisdiction is appropriate when an immigration detainee is confined in a private facility operated 5 under a government contract. See, e.g., Chavez v. Barr, No. 20-70461, 2020 WL 13017244, at *1 6 (9th Cir. Apr. 30, 2020) (“[W]e construe petitioner’s motion for release from detention as a 7 petition for a writ of habeas corpus and transfer it to the Eastern District of California, where 8 petitioner is being held at the Yuba County Jail.”); Birru v. Barr, No. 19-72758, 2020 WL 9 12182460, at *1 (9th Cir. Apr. 30, 2020) (same). 10 Finally, the rule in Saravia is not contrary to Brittingham. The Ninth Circuit in 11 Brittingham considered only two possible respondents: a U.S. Marshal and the warden of a state 12 detention facility. 982 F.2d at 379. But the court in Brittingham had no occasion to consider who 13 the proper respondent is between the warden of a contract facility and the federal official 14 overseeing the contract facility. Moreover, the Court finds the analysis of Saravia persuasive— 15 federal officials are best situated not only to “produce the body of [the petitioner] before the 16 court,” but to “defend federal interests.” Saravia, 280 F.Supp.3d at 1186 (alteration in original) 17 (quoting Padilla, 543 U.S. at 435). 18 Turning to Respondents’ third argument, the Court finds that Gonzalez and Cruz, who are 19 federal officials, are nonetheless improper respondents for purposes of jurisdiction. The Court 20 concurs with the approach of other courts in this district, which have repeatedly held that lower- 21 level ICE officials are not appropriate respondents. See, e.g., Pham, 2023 WL 2744397, at *4 22 (holding that Becerra, not Gonzalez or Cruz, is the proper respondent); Ameen v. Jennings, No. 22- 23 CV-00140-WHO, 2022 WL 1157900, at *4 (N.D. Cal. Apr. 19, 2022) (rejecting the argument that 24 lower-level ICE officers are not appropriate respondents and finding jurisdiction lies in the 25 Northern District). Gonzalez and Cruz work for the San Francisco Field Office and report to 26 Becerra. ECF No. 18-15 (“Gonzalez Decl.”) ¶ 7. It is Becerra, not Gonzalez or Cruz, that has 27 ultimate authority over I.E.S.’s physical custody. See 8 C.F.R. § 236.1(d)(1); 8 C.F.R. § 241.4(a). 1 Because Becerra is the proper respondent and he is based in the Northern District, the 2 Court has jurisdiction over I.E.S.’s petition and may grant relief pursuant to 28 U.S.C. § 2241. 3 III. LEGAL STANDARD 4 28 U.S.C. § 2241 grants federal courts the authority to issue writs of habeas corpus to 5 individuals in custody if that custody is a “violation of the Constitution or laws or treaties of the 6 United States.” 28 U.S.C. § 2241(c)(3). Section 2241 is the proper vehicle through which to 7 challenge the constitutionality of a non-citizen’s detention without bail. Demore v. Kim, 538 U.S. 8 510, 516–17 (2003). “A person need not be physically imprisoned to be in custody under the 9 statute; instead, habeas relief is available where the individual is subject to ‘restraints not shared 10 by the public generally.’” Ortega v. Bonnar, 415 F.Supp.3d 963, 967–68 (N.D. Cal. 2019) 11 (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1963)). Declaratory and injunctive relief are 12 proper habeas remedies. See id. at 970 (enjoining ICE from re-arresting petitioner without a bond 13 hearing); see also N.B. v. Barr, 2019 WL 4849175, at *7 (S.D. Cal. Oct. 1, 2019) (citing cases). 14 IV. DISCUSSION 15 The government may not deprive a person of life, liberty, or property without due process 16 of law. U.S. Const. amend. V. “Freedom from imprisonment—from government custody, 17 detention, or other forms of physical restraint—lies at the heart of the liberty that the Clause 18 protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This protection applies to “all ‘persons’ 19 within the United States, including aliens, whether their presence here is lawful, unlawful 20 temporary, or permanent.” Id. at 693. Detention, including that of a non-citizen, violates due 21 process if there are not “adequate procedural protections” or “special justification[s]” sufficient to 22 outweigh one’s “‘constitutionally protected interest in avoiding physical restraint.’” Id. at 690 23 (quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)); Demore, 538 U.S. at 516–17. 24 Federal immigration law authorizes the Attorney General to arrest and initially detain a 25 non-citizen who has entered the United States and is believed to be removable. 8 U.S.C. 26 § 1226(a). Certain subsets of non-citizens are subject to mandatory detention. See id. § 1226(c) 27 (“The Attorney General shall take into custody any alien who [falls into one of several categories] 1 release, or probation . . . .”); see also Jennings v. Rodriguez, 138 S. Ct. 830, 837–38 (2018). The 2 Attorney General may not release a non-citizen detained under § 1226(c) pending the outcome of 3 their deportation proceedings unless release is necessary for witness protection, which is not at 4 issue in this case. See id. § 1226(c)(2). 5 I.E.S. argues that his prolonged detention under 8 U.S.C. § 1226(c) violates his substantive 6 and procedural due process rights. Am’d Pet. ¶¶ 44–48. He requests that the Court order his 7 immediate release or that the Court, rather than an IJ, hold a hearing in which the government has 8 the burden to show by clear and convincing evidence that I.E.S. is a flight risk and/or danger to the 9 community. Id. ¶¶ 79–82, 98–105. Respondents argue that mandatory detention under § 1226(c) 10 is constitutional, and I.E.S.’s mandatory detention does not violate his substantive or procedural 11 due process rights. Ret. at 4–21. Should the Court order a bond hearing, Respondents argue that 12 the hearing should be before an IJ with the burden of proof on the petitioner. Id. at 21–23. 13 A. Substantive Due Process 14 I.E.S. argues that his prolonged civil immigration detention violates his substantive due 15 process and that this violation requires his release from physical custody. Am’d Pet. ¶¶ 50–55. 16 I.E.S. argues that because he is not a flight risk or danger to the community, the length of his 17 detention is excessive in relation to its non-punitive purpose. Id. ¶¶ 64–71. I.E.S. also argues that 18 less restrictive alternatives exist to serve any governmental interest and the conditions at Golden 19 State Annex are worse than criminal custody. Id. ¶¶ 72–74. Respondents argue that mandatory 20 detention under § 1226(c) is facially constitutional and serves the government’s legitimate interest 21 in ensuring a noncitizen’s appearance for removal proceedings and preventing the noncitizen from 22 committing further offenses. Ret. at 9–10. Respondents further argue that, to the extent that 23 I.E.S.’s detention has been “prolonged,” the delay has been due to his own litigation decisions. Id. 24 at 11. 25 Respondents are correct that in Demore v. Kim, the Supreme Court upheld the facial 26 constitutionality of mandatory detention under § 1226(c), recognizing that “detention during 27 deportation proceedings [i]s a constitutionally valid aspect of the deportation process” that serves 1 proceedings would constitute a flight risk or a threat to the community. 538 U.S. at 521–23. 2 Demore stands for the proposition that detention pursuant to § 1226(c) is generally not punitive 3 because it serves a valid governmental purpose. However, Demore does not directly address the 4 issue in this case: Whether § 1226(c) as applied to I.E.S. is punitive and thus unconstitutional. 5 Indeed, the Supreme Court has explicitly left open the possibility that a noncitizen may bring an 6 as-applied challenge to their detention under § 1226(c). See Nielsen v. Preap, 139 S. Ct. 954, 972 7 (2019) (“Our decision today on the meaning of that statutory provision does not foreclose as- 8 applied challenges.”). 9 Thus, the Court must consider whether the circumstances of I.E.S.’s detention violate his 10 substantive due process rights. Substantive due process prohibits civil detention that is punitive in 11 purpose or effect. See Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004) (requiring that “the 12 nature and duration of commitment bear some reasonable relation to the purpose for which the 13 individual is committed” (quotation marks omitted) (quoting Jackson v. Indiana, 406 U.S. 715, 14 738 (1972))). Detention that is excessively or unreasonably prolonged may be punitive. See 15 United States v. Salerno, 481 U.S. 739, 748 (1987) (noting that there is a “point at which detention 16 in a particular case might become excessively prolonged, and therefore punitive”). 17 The Court finds Martinez Leiva v. Becerra instructive. In that case, Judge Breyer 18 addressed an argument substantially similar to I.E.S.’s argument—Martinez Leiva, who had been 19 detained at Golden State Annex for 21 months, argued that “his detention ha[d] become punitive 20 because he d[id] not pose a risk of flight or a danger.” Martinez Leiva v. Becerra, No. 23-CV- 21 02027-CRB, 2023 WL 3688097, at *5 (N.D. Cal. May 26, 2023). Similarly, Martinez Leiva 22 argued that “continued detention [wa]s excessive in relation to the government’s interest, given 23 alternatives like ICE’s Intensive Supervision Appearance Program.” Id. Judge Breyer rejected 24 these arguments, acknowledging that Martinez Leiva “might be correct. But that is what bond 25 hearings are for. . . . It is correct only if he is correct that he poses no risk (or a manageable risk) of 26 flight or danger, something that he has not yet had the opportunity to prove.” Id. Judge Breyer 27 further declined to conclude that “the duration of Martinez Leiva’s detention, in and of itself, 1 F.3d 695, 709–10 (9th Cir. 2021)). Like Martinez Leiva, I.E.S. argues that his 16-month detention 2 has become punitive because he does not pose a flight risk or a danger to the community— 3 pointing to his family ties, his financial ties to California, the strong possibility that he will 4 succeed in his petition for review, the fact that his criminal history is of nonviolent offenses, and 5 his rehabilitation. Am’d Pet. ¶¶ 65–71. Although I.E.S. might be correct that he does not pose a 6 flight risk or danger to the community, he has not yet had the opportunity to have a neutral 7 arbitrator evaluate whether the government could prove that he poses such a risk. Similarly, 8 I.E.S.’s argument that his prolonged detention is excessive in light of alternatives like the 9 Intensive Supervision Appearance Program (“ISAP”) and the conditions at Golden State Annex, 10 id. ¶¶ 72–73, is an argument that I.E.S. should have an opportunity to prove at a bond hearing. 11 Finally, I.E.S.’s petition suggests that courts have found shorter periods of confinement 12 violate substantive due process. Id. ¶¶ 76–78. But I.E.S. has not pointed to any case law finding 13 so in this context. Indeed, the overwhelming majority of cases challenging prolonged detention 14 under 8 U.S.C. § 1226(c) assert procedural, rather than substantive, due process challenges. See, 15 e.g., Pham, 2023 WL 2744397, at *4; Perera, 2021 WL 2400981, at *3. Moreover, to the extent 16 that I.E.S. relies on the Ninth Circuit’s decision in United States v. Torres, 995 F.3d 695 (9th Cir. 17 2021), that decision not only analyzed the question in a different context, but the Ninth Circuit 18 ultimately concluded that detention for 21 months did not violate due process. See id. at 709–10. 19 As such, the Court DENIES I.E.S.’s petition to the extent that it argues that I.E.S.’s 20 prolonged detention violates his substantive due process rights. 21 B. Procedural Due Process 22 I.E.S. argues that he is entitled to a bond hearing on two bases. First, he argues that any 23 detention exceeding 6 months is presumptively unconstitutional without an individualized bond 24 hearing. Am’d Pet. ¶¶ 56–60, 84–85. Second, he argues that the balance of factors under 25 Mathews v. Eldridge, 424 U.S. 319 (1976), require a bond hearing in his case. Am’d Pet. ¶¶ 61– 26 62, 86–97. Respondents argue that no binding precedent supports a bright-line 6-month rule. Ret. 27 at 14–16. Respondents also argue that Mathews does not apply to mandatory detention under 1 case. Id. at 21. 2 The Court first addresses whether it should adopt a bright-line rule that detention 3 exceeding 6-months is “presumptively unconstitutional without an individualized bond hearing.” 4 Am’d Pet. ¶ 57. I.E.S. does not cite to any controlling authority for the proposition that detention 5 exceeding 6 months is presumptively unconstitutional. Indeed, the cases on which I.E.S. primarily 6 relies raised “serious constitutional” concerns but applied the canon of constitutional avoidance to 7 construe 8 U.S.C. § 1231(a)(6) as conferring a statutory right to a bond hearing. See Zadvydas, 8 533 U.S. at 699; Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). In the absence of controlling 9 precedent, the Court will follow the majority of courts in this district and decline to adopt a bright- 10 line 6-month rule. See, e.g., Martinez Leiva, 2023, WL 3688097, at *7 (collecting cases); Bent v. 11 Barr, No. 19-CV-06123-DMR, 2020 WL 1677332, at *7 (N.D. Cal. Apr. 6, 2020) (declining to 12 adopt a 6-month rule); Ramirez v. Sessions, No. 18-CV-05188-SVK, 2019 WL 11005487, at *6 13 (N.D. Cal. Jan. 30, 2019) (same); Gonzalez v. Bonnar, No. 18-CV-05321-JSC, 2018 WL 4849684, 14 at *3 (N.D. Cal. Oct. 4, 2018) (“Petitioner has thus not show a likelihood of success on his claim 15 that detention under 1226(c) beyond six months without a bond hearing is per se unreasonably 16 prolonged.”); but see Rodriguez v. Nielsen, No. 18-CV-04187-TSH, 2019 WL 7491555, at *6 17 (N.D. Cal. Jan. 7, 2019) (acknowledging that “there is not controlling precedent for this Court to 18 follow,” but adopting a 6-month rule). 19 The Court next addresses whether the Mathews factors apply here. Respondents argue that 20 because the Supreme Court and the Ninth Circuit have suggested that Mathews does not apply to 21 all procedural due process claims, Mathews should not apply to claims that prolonged detention 22 under § 1226(c) violates procedural due process. Ret. at 16–17. However, this argument simply 23 acknowledges that there is no controlling authority on this issue. In the absence of controlling 24 authority, the Court finds persuasive that the Ninth Circuit and its sister circuits have applied the 25 Mathews test in the immigration context. See Rodriguez Diaz v. Garland, 53 F.4th 1189, 1206 26 (9th Cir. 2022) (collecting cases). Moreover, other courts in this district have applied the Mathews 27 factors to habeas petitions challenging prolonged detention under § 1226(c). See, e.g., Martinez 1 Bent, 2020 WL 1677332, at *7. The Court will follow the weight of authority and apply from 2 Mathews to determine what the “specific dictates of due process” require in this case. 3 “The fundamental requirement of due process is the opportunity to be heard at a 4 meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333 (quotations omitted). 5 Mathews lays out three factors courts must consider in determining the extent of the process due: 6 (1) “the private interest that will be affected by the official action;” (2) “the risk of an erroneous 7 deprivation of such interest through the procedures used, and the probable value, if any, of 8 additional or substitute procedural safeguards;” and (3) “the Government’s interest, including the 9 function involved and the fiscal and administrative burdens that the additional or substitute 10 procedural requirements would entail.” 424 U.S. at 335. 11 i. Private Interest 12 The Court finds that I.E.S. has a significant private interest in “[f]reedom from 13 imprisonment—from government custody, detention, or other forms of physical restraint.” 14 Zadvydas, 533 U.S. at 690. “The private interest here—freedom from prolonged detention—is 15 unquestionably substantial.” Singh v. Holder, 638 F.3d 1196, 1208 (9th Cir. 2011). This 16 “overwhelming interest” persists “because ‘any length of detention implicates the same’ 17 fundamental rights.” Perera, 2021 WL 2400981, at *4 (quoting Rajnish v. Jennings, No. 3:20-cv- 18 07819-WHO, 2020 WL 7626414, at *6 (N.D. Cal. Dec. 22, 2020)). In fact, I.E.S.’s private 19 interest is heightened in light of the significant length of time (16 months) he has been detained 20 and his strong desire to return to his family.1 Am’d Pet. ¶ 92; Martinez Leiva, 2023 WL 3688097, 21 at *7 (noting that a petitioner’s private interest was heightened by the length of confinement and 22 his desire to rejoin his family). 23 The government argues that I.E.S.’s private interest is minimized because “Petitioner’s 24 time in detention is in large part due to his own litigation choices.” Ret. at 19. However, “[t]he 25 1 Although I.E.S. also argues that his conditions of confinement heighten the private interest at 26 stake, Am’d Pet. ¶¶ 90–91, he fails to point to any authority finding that conditions of confinement heighten the private interest for purposes of the Mathews test. Cf. Lopez v. Garland, 631 27 F.Supp.3d 870, 879 (E.D. Cal. 2022) (noting that conditions of confinement “are not particularly 1 duration and frequency of these requests do not diminish his significant liberty interest in his 2 release or his irreparable injury of continued detention without a bond hearing.” Hernandez 3 Gomez v. Becerra, No. 23-CV-01330-WHO, 2023 WL 2802230, at *4 (N.D. Cal. Apr. 4, 2023) 4 (citing Masood v. Barr, No. 19-CV-07623-JD, 2020 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020)). 5 ii. Risk of Erroneous Deprivation 6 The Court also finds that the risk of an erroneous deprivation of the liberty interest is 7 significant. Although the Court will not decide the ultimate question of whether I.E.S. should be 8 granted bond, the Court is persuaded that I.E.S. has at least established that he will likely not be 9 found to be a flight risk or a danger to the community at a bond hearing. For example, I.E.S. has a 10 wife and two daughters in California, I.E.S. Decl. ¶¶ 57–58; he owns a business in California, id. 11 ¶ 59; it has been 18 years since his last criminal offense, ECF No. 18-3 at 2; and he has denounced 12 his gang membership, I.E.S. Decl. ¶ 22. However, to date, no neutral decisionmaker has 13 considered and weighed this evidence. The IJ denied I.E.S.’s custody redetermination, finding 14 that he is subject to mandatory detention under § 1226(c). ECF No. 18-11. When I.E.S. filed a 15 written administrative request with ICE seeking release as a matter of prosecutorial discretion, it 16 was denied without written explanation. Am’d Pet. ¶¶ 38, 40. Thus, the risk of erroneous 17 deprivation is high without a neutral decisionmaker reviewing I.E.S.’s evidence to determine if 18 release on bond pending removal is warranted. 19 Respondents argue only that there is no risk of erroneous deprivation because I.E.S. is 20 subject to mandatory detention under 8 U.S.C. § 1226(c). Ret. at 19 (citing Demore, 538 U.S. at 21 518). But Respondents’ citations to Demore are inapposite because, as the Court noted above, 22 Demore did not address the issue in this case. 23 iii. Government’s Interest 24 The government interest in I.E.S.’s detention pending removal without a bond hearing is 25 low. Respondents argue that the government has an interest in effectuating the removal of 26 noncitizens. Ret. at 20. Contrary to Respondents’ argument, that interest, although significant, is 27 not at stake here—instead, it is the much lower interest in detaining I.E.S. pending removal 1 in ensuring that I.E.S. does not flee removal or pose a danger to the community, whether I.E.S. 2 actually poses such a risk is an argument that Respondents may make at the bond hearing. 3 “Requiring the government to provide [I.E.S.] with a bond hearing does not meaningfully 4 undermine the government’s interest in detaining non-citizens who pose a danger to the 5 community or are a flight risk.” Perera, 2021 WL 2400981, at *5. Indeed, “the government has 6 no legitimate interest in detaining individuals who have been determined not to be a danger to the 7 community and whose appearance at future immigration proceedings can be reasonably ensured 8 by a lesser bond or alternative conditions.” Hernandez v. Sessions, 872 F.3d 976, 994 (9th Cir. 9 2017). Finally, the government will not face any significant additional administrative burdens to 10 hold an individualized bond hearing. 11 * * * 12 Balancing the Mathews factors, the Court finds that I.E.S.’s prolonged detention without a 13 bond hearing violates his right to procedural due process and on this basis, GRANTS I.E.S.’s 14 petition. The two questions that remain for the Court to consider are whether the Court or an IJ 15 should hold the hearing and who bears the burden of proof. 16 C. Whether the Bond Hearing Should Be Held by the Court or an IJ 17 I.E.S. argues that the Court, rather than an IJ, should hold the bond hearing. Am’d Pet. 18 ¶¶ 98–104. He argues that because the habeas statute permits district courts to hear and determine 19 facts and precedents requiring a hearing before an IJ were based on statutory requirements, 20 “[n]othing requires the Court to leave determination of the constitutional propriety of I.E.S.’s 21 detention to [an IJ].” Id. ¶ 101. Respondents argue that the weight of authority requires that an IJ 22 hold the bond hearing. Ret. at 21–22. 23 The Court agrees with Respondents. Even if I.E.S. is correct that the Court has the 24 authority to hold a bond hearing, the more prudent course is to allow an IJ to make determinations 25 about I.E.S.’s risk of flight or danger to the community and eligibility for ISAP. See Mansoor v. 26 Figueroa, No. 317CV01695GPCNLS, 2018 WL 840253, at *4 (S.D. Cal. Feb. 13, 2018) (“The 27 Court finds the IJ is uniquely qualified and situated to make neutral administrative determinations 1 such as ISAP.”); Lopez, 631 F.Supp.3d at 882 (declining to order immediate release and instead 2 ordering a bond hearing before an IJ). Thus, the Court will order an IJ to conduct the bond 3 hearing. 4 D. Burden of Proof at the Bond Hearing 5 I.E.S. argues that at the bond hearing, DHS should bear the burden of justifying continued 6 confinement by clear and convincing evidence. Am’d Pet. ¶ 105 (citing Singh, 638 F.3d at 1203). 7 Respondents argue that I.E.S. should bear the burden of proof at the bond hearing because similar 8 statutory provisions place the burden on the government and the Supreme Court has never 9 required the government to bear the burden of proof. Ret. at 22–23. To the extent that I.E.S. 10 relies on Singh, Respondents argue that Singh has always required the detainee to bear the burden 11 of proof and the portions of Singh’s holding that place the burden on the government have been 12 called into question. Id. at 23 (citing Rodriguez-Diaz, 53 F.4th at 1196). 13 The Court finds that the government should bear the burden of proof by clear and 14 convincing evidence. In Singh, the Ninth Circuit held that “the government must prove by clear 15 and convincing evidence that an alien is a flight risk or a danger to the community to justify denial 16 of bond.” 638 F.3d at 1203. While the Ninth Circuit was considering the burden of proof in the 17 context of a Casas hearing—held after a non-citizen has faced “prolonged detention while their 18 petitions for review of their removal orders are pending”—the Court finds that the Ninth Circuit’s 19 reasoning applies equally here, contrary to Respondents’ arguments. It would be “improper to ask 20 [I.E.S.] to ‘share equally with society the risk of error when the possible injury to the 21 individual’—deprivation of liberty—is so significant.” Id. at 1203–04 (quoting Addington v. 22 Texas, 441 U.S. 418, 427 (1979)). To the extent that Rodriguez Diaz might have called into 23 question Singh’s holding as it applies to § 1226(c), Rodriguez Diaz was limited to § 1226(a) cases 24 and specifically declined to consider whether Singh remains good law in § 1226(c) cases. See 25 Rodriguez-Diaz, 53 F.4th at 1202 & n.4. Finally, courts in this district confronted with similar 26 issues have continued to place the burden of proof on the government even after Rodriguez Diaz. 27 See, e.g., Martinez Leiva, 2023 WL 3688097, at *9; Pham, 2023 WL 2744397, at *7; Perera, 598

V. ORDER

For the foregoing reasons, IT IS HEREBY ORDERED that: 2 1. Petitioner I.E.S.’s Petition for Writ of Habeas Corpus is DENIED with respect to 3 his argument that his prolonged detention violates his substantive due process rights. 4 2. Petitioner I.E.S.’s Petition for Writ of Habeas Corpus is GRANTED with respect to 5 his argument that his prolonged detention without an individualized hearing violates his 6 procedural due process rights. The Court ORDERS an IJ to conduct a bond hearing within 10 4 days of the date of this Order. At the bond hearing, the government must prove by clear and 8 convincing evidence that continued detention is warranted or release LE.S. 9 10 Dated: September 27, 2023

12 BETH LABSON FREEMAN United States District Judge

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