Liborio Ramos v. Sessions et al
Filing
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ORDER GRANTING IN PART PETITION FOR HABEAS CORPUS by Judge Jon S. Tigar finding as moot 6 Motion for TRO. (wsn, COURT STAFF) (Filed on 2/15/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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FLORICEL LIBORIO RAMOS,
Plaintiff,
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JEFFERSON B. SESSIONS, et al.,
Re: ECF Nos. 1, 6
Defendants.
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United States District Court
Northern District of California
ORDER GRANTING IN PART
PETITION FOR HABEAS CORPUS
v.
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Case No. 18-cv-00413-JST
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Before the Court is Petitioner Floricel Liborio Ramos’s motion for a temporary restraining
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order and petition for a writ of habeas corpus. ECF Nos. 1, 6. Liborio Ramos is currently in
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detention while she awaits the conclusion of removal proceedings and the adjudication of her
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claim for withholding of removal. Liborio Ramos asks the Court to order her release before
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March 14, 2018, because the immigration judge (―IJ‖) who conducted her immigration detention
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hearing did not require the government to meet its burden of showing by clear and convincing
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evidence that she was either a danger to the community or a flight risk before refusing to release
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her on bond. ECF No. 7 at 6.
For the reasons stated below, the Court concludes that the bond proceedings denied
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Liborio Ramos her right to due process, and orders the government either to conduct a bond
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hearing that comports with due process, or to release her.
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I.
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BACKGROUND
Liborio Ramos is a 38-year-old woman who came to the United States when she was 18
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years old. She has three minor children, ages 11, 13, and 17, all of whom are United States
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citizens. Her youngest child, a daughter, has special needs. ECF No. 7 at 6-7. In 2012, her life
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partner and the father of her three children was deported, and Liborio Ramos became a single
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mother. She worked two full-time jobs while caring for her children, including making sure her
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daughter received the necessary special instruction at her school and taking her to speech therapy.
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Id. at 7.
The stress of her circumstances made it difficult for Liborio Ramos to sleep, and she began
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drinking beer at night to calm her nerves and help her sleep. Eventually she became addicted to
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alcohol. She also became depressed, blaming herself for her daughter’s difficulties and worrying
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about her finances. In November 2015, she pled guilty to misdemeanor driving under the
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influence and hit-and-run. She was sentenced to probation, community service, and a 9-month,
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video-based DUI education program.1 Approximately a year later, in November 2016, Liborio
Ramos again drove under the influence and pleaded guilty to misdemeanor DUI and driving with a
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United States District Court
Northern District of California
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suspended license. She was sentenced to community service and DUI education. Id. at 8; ECF
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No. 15-1 at 37.2 The DUI education program she was required to attend was significantly
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different from, and more effective than, her first set of video classes. The second program
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included individual counseling and group therapy. Liborio Ramos further committed to
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rehabilitation by regularly attending church and involving herself in the church community,
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quitting her restaurant job and finding a new job where she would not be around alcohol, and
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remaining sober. ECF No. 7 at 8-9.
On March 26, 2017, immigration authorities detained Liborio Ramos as she was leaving an
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International House of Pancakes after eating breakfast with her children. Id. at 9. When Liborio
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Ramos was detained, an asylum officer found that she had a reasonable fear of returning to
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Mexico where members of the Zetas gang had threatened to kill her and did kill members of her
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family on the basis of their indigenous identity. Id. at 10. When she was detained, Liborio Ramos
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was placed in withholding-only proceedings, due to a removal order she received at the border in
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The government states that Liborio Ramos was sentenced to 15 days in custody, but its own
exhibits show that she was sentenced to community service. ECF No. 15-1 at 13; see also
―2022620000-Sheriff-Work Programs, San Joaquin County,‖ located at www.sjgov.org/
WorkArea/DownloadAsset.aspx?id=9406 (In the San Joaquin County Sheriff’s Alternative Work
Program, ―[p]articipants serve two to five days per week in community service in lieu of serving
time in custody.‖).
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See note 1, supra.
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2003. See 8 U.S.C. § 1231(a)(5).3 At her merits hearing before an IJ currently scheduled for
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March 14, 2018, she will seek relief in the form of withholding of removal on the basis of this
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reasonable fear. Id.
The Government scheduled bond hearings for Liborio Ramos on October 24, 2017 and
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November 8, 2017, but only held full proceedings on November 29, 2017, more than eight months
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after she was detained. ECF No. 7 at 11. The IJ denied Liborio Ramos’s release on bond,
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concluding that she was such a flight risk and danger to the community that no amount of bond
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could secure her release. ECF No. 8-1 at 20.
Liborio Ramos then petitioned this Court for habeas corpus relief and moved for a
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temporary restraining order, ECF Nos. 1, 6, which request the Court now considers.
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United States District Court
Northern District of California
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II. JURISDICTION
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―[A] federal district court has habeas jurisdiction under 28 U.S.C. § 2241 to review [] bond
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hearing determinations for constitutional claims and legal error.‖ Singh v. Holder, 638 F.3d 1196,
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1200-01 (9th Cir. 2011). ―In addition, although the Attorney General’s discretionary judgment . . .
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shall not be subject to review, claims that the discretionary process itself was constitutionally
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flawed are cognizable in federal court on habeas. . . .‖ Id. at 1202 (citations omitted). In
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If an alien who was previously removed from the United States
pursuant to a removal order re-enters the United States and is
subsequently apprehended, 8 U.S.C. § 1231(a)(5) allows the
government to reinstate the alien's prior removal order, and the alien
cannot challenge his reinstated removal order either directly or
collaterally. 8 U.S.C. § 1231(a)(5) (―[T]he prior order of removal is
reinstated from its original date and is not subject to being reopened
or reviewed.‖).
However, if the alien expresses a fear of returning to the country of
removal, and if an asylum officer finds that the alien has a
―reasonable fear‖ of persecution, then the alien is placed in
―withholding-only‖ proceedings before an IJ through which the
alien may apply for withholding of removal. See 8 C.F.R. § 208.31.
These proceedings are known as ―withholding-only‖ proceedings
because the IJ's jurisdiction is limited to consideration of whether an
alien is entitled to withholding of removal only. See id.
§ 1202.2(c)(3)(i) (―The scope of review in [withholding-only]
proceedings ... shall be limited to a determination of whether the
alien is eligible for withholding or deferral of removal.‖).
Villalta v. Sessions, No. 17-CV-05390-LHK, 2017 WL 4355182, at *4 (N.D. Cal. Oct. 2, 2017).
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particular, a district court has jurisdiction to review an IJ’s discretionary bond denial where that
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bond denial is challenged as legally erroneous or unconstitutional. See Sales v. Johnson, No. 16-
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CV-01745-EDL, ECF No. 17 at 8 (N.D. Cal. April 27, 2017) (concluding that immigrant’s claims
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were reviewable by district court where challenged as constitutionally flawed); Obregon v.
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Sessions, No. 17-CV-01463-WHO, 2017 WL 1407889, at *4 (N.D. Cal. Apr. 20, 2017) (same);
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Castaneda v. Aitken, No. 15-CV-01635-MEJ, 2015 WL 3882755, at *7-8 (N.D. Cal. June 23,
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2015) (same); Espinoza v. Aitken, No. 5:13-CV-00512 EJD, 2013 WL 1087492, at *3 (N.D. Cal.
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Mar. 13, 2013) (same); see also, c.f., Saravia v. Sessions, No. 17-CV-03615-VC, 2017 WL
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5569838, at *2 (N.D. Cal. Nov. 20, 2017) (ordering bond hearings for unaccompanied minors
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previously determined not to be flight risks or dangerous but re-detained because of changed
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United States District Court
Northern District of California
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circumstances under procedural due process).
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The Government contends that the Court lacks jurisdiction to hear Liborio Ramos’ petition
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because she failed to exhaust her administrative remedies before the Bureau of Immigration
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Appeals (―BIA‖). First, the Government cites 8 U.S.C. § 1252(d)(1), which applies to ―final
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order[s] of removal.‖ The present case does not involve a final order of removal. Furthermore,
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the Ninth Circuit has held that 8 U.S.C. § 1252(a)(2)(B), which governs discretionary denials of
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relief, is not a jurisdictional bar. Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017).
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Rather, administrative exhaustion is a prudential, rather than jurisdictional, concern. Id. at 988–
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89. Where administrative remedies would be futile, a petitioner is not required to administratively
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exhaust. Id.
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The Court concludes that Liborio Ramos has adequately demonstrated futility. She has
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been detained since March 2017. She finally received a bond hearing in December 2017, at which
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bond was denied. She contends that she was denied due process of law at that hearing. She
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appealed that denial to the BIA two weeks after her bond denial, but no hearing date, or even
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briefing schedule, has been set for her appeal. That process is expected to take four months. ECF
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Nos. 7 at 13, 8-1 at 9. Liborio Ramos is entitled to a bond hearing every six months; she will have
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been in custody for well more than a year by the time her appeal is heard; and even a successful
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appeal will not allow her to be out of custody in time to assist her counsel at her March 14 merits
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hearing. Another court in this district held in a similar case that ―the potential for irreparable harm
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to Petitioner, in the form of continued unlawful denial of [bond] hearings for potentially four
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months or more,‖ was so great that ―waiver of the exhaustion requirement is appropriate.‖ Villalta
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v. Sessions, No. 17-CV-05390-LHK, 2017 WL 4355182, at *3 (N.D. Cal. Oct. 2, 2017) (citations
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omitted); see c.f., Resendiz v. Holder, No. C 12-04850 WHA, 2012 WL 5451162, at *4 (N.D. Cal.
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Nov. 7, 2012) (finding no exception to prudential exhaustion requirement because immigrant did
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not timely file appeal with BIA nor habeas petition, for three months); Carmona v. Aitken, No. 14-
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CV-05321-JSC, 2015 WL 1737839, at *8 (N.D. Cal. Apr. 10, 2015) (same, as to nine months).
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The Court reaches the same conclusion here, and finds that Liborio Ramos’s claim falls under the
prudential exception of futility and that administrative exhaustion is not required.
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United States District Court
Northern District of California
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III. DISCUSSION
Petitioner’s Entitlement to a Bond Hearing
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A.
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The first question is whether Liborio Ramos is entitled to a bond hearing at all. The
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Government argues that she is not, given that she is in withholding proceedings under 8 U.S.C.
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§ 1231(a)(5). ECF No. 15 at 8. As another court in this district has noted, however, ―because
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only two provisions of § 1231(a) authorize detention—§ 1231(a)(2) (which authorizes detention
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during the 90-day removal period) and § 1231(a)(6) (which authorizes detention beyond the 90-
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day removal period) . . . an alien who is detained while in ―withholding-only‖ proceedings must be
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detained pursuant to either § 1231(a)(2) or § 1231(a)(6).‖ Villalta, 2017 WL 4355182, at *5. And
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the Ninth Circuit has made clear that immigrants detained under § 1231(a)(6) are entitled to bond
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hearings every six months. Diouf v. Napolitano, 634 F.3d 1081, 1082 (9th Cir. 2011). The Court
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likewise concludes that Liborio Ramos was entitled to a bond hearing because she was in
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withholding proceedings under § 1231(a)(5) and detained pursuant to § 1231(a)(6).4
Whether Petitioner’s Bond Violated Due Process
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B.
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In order to continue detention, due process requires the Government to show by clear and
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The Court also notes that the IJ concluded that Liborio Ramos was entitled to a bond hearing
under the specific precedent cited above, and Liborio Ramos did in fact receive a bond hearing.
ECF No. 9-1 at 19-20.
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convincing evidence that an immigrant is a flight risk or a danger to the community at the time of
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the bond hearing. Singh, 638 F.3d at 1208; see also Diouf 6314 F.3d 1081 (extending Singh to
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bond hearings for immigrants detained under § 1231(a)). To determine whether an immigrant is a
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flight risk or poses a danger to the community, an IJ must consider factors including: (1) whether
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the immigrant has a fixed address in the United States; (2) the immigrant’s length of residence in
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the United States; (3) the immigrant’s family ties in the United States, (4) the immigrant’s
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employment history, (5) the immigrant’s record of appearance in court, (6) the immigrant’s
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criminal record, including the extensiveness of criminal activity, the recency of such activity, and
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the seriousness of the offenses, (7) the immigrant’s history of immigration violations; (8) any
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attempts by the immigrant to flee prosecution or otherwise escape from authorities; and (9) the
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United States District Court
Northern District of California
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alien’s manner of entry to the United States. Matter of Guerra, 20 I&N Dec. 37, 40 (BIA 2006).
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The clear and convincing evidence standard ―is a high burden and must be demonstrated in
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fact.‖ Obregon, 2017 WL 1407889, at *7; see also id. at 6 (looking to criminal bond hearings for
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guidance in assessing whether the government met its burden, and at the criminal court which
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made the underlying determination to release the immigrant). ―[A]lthough an alien’s criminal
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record is surely relevant to a bond assessment, . . . criminal history alone will not always be
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sufficient to justify denial of bond on the basis of dangerousness.‖ Singh, 638 F.3d at 1206. The
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IJ must consider not only the seriousness of any prior criminal conduct, but whether the
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immigrant’s circumstances have changed such that criminal conduct is now less likely. Id. at 1205
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(―[T]he BIA focused on Singh’s prior convictions for petty theft, receiving stolen property and
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substance abuse. Under a clear and convincing evidence standard, the BIA might conclude that
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Singh’s largely nonviolent prior bad acts do not demonstrate a propensity for future
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dangerousness, in view of evidence showing that his drug use, which was the impetus for his
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previous offenses, has ceased.‖). To determine whether the IJ’s determination complied with
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these standards, the Court looks closely at the information before the IJ and whether the IJ
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adequately considered that evidence. See Obregon, 2017 WL 1407889, at *7 (―[T]he IJ may not
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have adequately considered all of the available evidence in assessing petitioner’s present
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dangerousness.‖).
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Here, the IJ declined to release Liborio Ramos on any amount of bond because: (1) Liborio
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Ramos’s two misdemeanor DUI convictions and failed efforts at rehabilitation after her first
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conviction endangered the community, and (2) Liborio Ramos was a flight risk because she told
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the IJ she would pursue all available legal relief if she were ordered deported. The IJ’s written
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decision included details from police reports about Liborio Ramos’s DUIs in 2015 and 2016,
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which indicate that she was driving unsafely. ECF No. 8-1 at 18-19. Also before the IJ was
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information about Liborio Ramos’s 19-year history in the United States, three minor daughters,
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and substantial community support – as evidenced by 80 community letters and 30 attendees at her
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hearing, including the Bishop of San Francisco. Id. at 7. Liborio Ramos also submitted to the IJ a
large amount of information evidencing her rehabilitation and continued prospects for sobriety,
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United States District Court
Northern District of California
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particularly after her second conviction. Id. This evidence showed that she would continue to
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receive treatment and support towards her rehabilitation, and that she has a U.S. citizen sponsor
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who would support her financially and emotionally upon release. Id. at 39.
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While the IJ noted Liborio Ramos’s testimony that she had participated in rehabilitation
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and intended to avoid alcohol in the future, the IJ appeared to rely largely on Liborio Ramos’s
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convictions instead of her changed, post-conviction circumstances. Id. at 18-19. Moreover, the IJ
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considered Liborio Ramos to be a flight risk because she stated she would take all available legal
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steps to remain in the United States if she were ordered deported. Id. at 19. While the IJ took this
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as an indication that Liborio Ramos would evade arrest, her counsel understood that she was
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explaining her intent to appeal. ECF Nos. 7 at 22, 8-1 at 9. The IJ did note that Liborio Ramos has
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―long resided in the US and has 3 citizen children.‖ ECF No. 8-1 at 20.
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One court in this district granted habeas relief after an IJ denied bond for an immigrant
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with a significantly more severe criminal history and significantly fewer ties to the United States.
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Sales, No. 16-CV-01745-EDL, ECF No. 17. The immigrant had been convicted of second degree
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murder, and had family in the United States but no property or business here, and no evidence of
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community support like Liborio Ramos. Id. at 12. Nonetheless, the court reasoned that there was
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no evidence that he was a flight risk and the immigrant’s criminal history was not extensive, so
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granted relief. Id. In a case analogous to the case at hand, another court in this district expressed
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substantial doubt that there had been clear and convincing evidence to detain an immigrant.
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Obregon, 2017 WL 1407889, at *4. The petitioner had been convicted of two misdemeanor DUIs,
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one felony DUI, and four convictions for driving without a license. Id. The court concluded that
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the IJ did not rely exclusively on the immigrant’s past convictions, but also on their recency, her
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past failure to rehabilitate, her positive change in relationship status, and her past failure to comply
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with bond by violating U.S law while on release. Id. at *7. But the court noted that the IJ failed to
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consider evidence that the immigrant had been somewhat successful in rehabilitation, intended to
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return to treatment, and was in meaningfully different rehabilitation treatment after her latest DUI.
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Id. The petitioner wanted to, but had not been able to, testify about her rehabilitation plan if she
were released. Id. at *8. Finally, the court noted that ―it was worth considering . . . that the
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United States District Court
Northern District of California
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criminal courts clearly believed that petitioner was entitled to bail before she was detained
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fourteen months ago.‖ Id. (emphasis in original). The court found it ―extremely doubtful that any
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Magistrate Judge on this court would have remanded her to custody based on this record.‖ The
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court was ―skeptical‖ that the Government could show by clear and convincing evidence that the
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immigrant was a flight risk or dangerous. Id. Given that the immigrant was entitled to a six
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month hearing in 25 days, the court simply ordered that the bond hearing occur within that time
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frame, rather than grant habeas relief. Id.
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In the present case, the Court concludes that the Government did not show by clear and
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convincing evidence that Liborio Ramos was a danger to the community or a flight risk such that
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no amount of bond, or alternative supervision, could secure her release. The IJ did not appear to
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consider alternatives to detention such as residential treatment or alcohol monitoring, or whether
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any amount of bond could mitigate flight risk or dangerousness. Matter of Sanjeev Kumar
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Narayan, 2009 WL 2981790 (BIA, Aug. 31, 2009). Also, while Liborio Ramos was convicted of
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two DUIs, relatively recently in 2015 and 2016, see Castaneda, 2015 WL 3882755, at *7-8
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(finding clear and convincing evidence of dangerousness from two serious DUIs), she has also
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demonstrated significant changed circumstances in the form of meaningful rehabilitation as
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evidenced by letters from community members, her own testimony about her dedication to
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sobriety, and her concrete steps like changing jobs and remaining in treatment, see Obregon, 2017
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WL 1407889, at *7-8 (finding efforts towards meaningful rehabilitation to significantly weigh
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against clear and convincing evidence of present dangerousness). As in Obregon, the state
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criminal court concluded that petitioner was neither a flight risk nor a danger to the community.
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And unlike in Obregon, Liborio Ramos testified as to her rehabilitation plan on release including
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through letters from her rehabilitation counselors. ECF No. 8-1 at 61, 64. The Court also notes
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that the rehabilitation Liborio Ramos attended since her 2016 DUI differed meaningfully from her
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rehabilitation after her 2015 DUI in that it offered personal therapy, and Liborio Ramos made
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other significant changes like increased involvement in church, reduced access to alcohol, and
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actual sobriety, Id. at 20-21, which the IJ did not appear to consider, ECF No. 8-1 at 20.
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Moreover, the IJ appears to have based her conclusion that petitioner was a flight risk on
United States District Court
Northern District of California
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petitioner’s statement that would pursue her legal remedies if she were ordered deported. The
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pursuit of legal remedies is simply not consistent with a risk of flight. Even assuming that it were,
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however, that evidence is outweighed by significant evidence that she is not a flight risk. Id. at 9.
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Liborio Ramos has lived in the country for nearly two decades, has deep family ties and
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significant employment history, and no record of missing court dates or evading court orders.
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Matter of Guerra, 20 I&N Dec. at 40. In sum, ―[i]t violates due process to keep someone in
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immigration detention for [nearly a] year on the basis of dangerousness where the overriding
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reason is that a non-violent crime was committed as a result of that person’s addiction and the
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individual has a viable plan for rehabilitation and compliance with pertinent conditions of release.‖
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Obregon, 2017 WL 1407889, at *8.
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C.
What Relief is Due
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Having concluded that Liborio Ramos did not receive due process at her prior bond
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hearing, the question is what relief is now due. As have other courts in this district and circuit, the
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Court concludes that the appropriate remedy is to order that she be released unless the
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Government provides a new bond hearing which complies with due process within a certain
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amount of time. Sales, No. 16-CV-01745-EDL, ECF No. 17 at 14; Chen v. Aitken, 917 F. Supp.
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2d 1013, 1018 (N.D. Cal. 2013) (granting habeas in form of bond hearing); Espinoza, 2013 WL
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1087492, at *3 (same); Franco-Gonzales v. Holder, 828 F. Supp. 2d 1133, 1149 (C.D. Cal. 2011)
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(same). But see Borjas-Calix v. Sessions, No. CV-16-685-TUC-DCB, 2017 WL 1491629, at *4
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(D. Ariz. Apr. 26, 2017) (enjoining ICE from re-detaining immigrant where IJ ordered him
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released on bond, but BIA held he was not entitled to bond). Liborio Ramos is ordered released
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unless the Government holds a bond hearing which comports with due process within fifteen days
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of the issuance of this order.
CONCLUSION
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For the aforementioned reasons, Liborio Ramos’s petition for habeas corpus is granted in
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part. The Government is enjoined from detaining Liborio Ramos unless they hold a bond hearing
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which comports with due process, where the Government shows by clear and convincing evidence
that she is a flight risk or danger to the community, within fifteen days from the issuance of this
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United States District Court
Northern District of California
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order. Because the Court grants alternative relief under Liborio Ramos’s petition for habeas
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corpus, Liborio Ramos’s motion for a temporary restraining order is terminated as moot. Chen,
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917 F. Supp. 2d at 1019 (terminating as moot motion for preliminary relief when court granted
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petition).
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IT IS SO ORDERED.
Dated: February 15, 2018
______________________________________
JON S. TIGAR
United States District Judge
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