Ortiz Vargas v. Jennings et al

Filing 18

ORDER ISSUING PRELIMINARY INJUNCTION. Signed by Judge Phyllis J. Hamilton on 9/14/2020. (pjhlc3S, COURT STAFF) (Filed on 9/14/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SIMON ORTIZ VARGAS,

v.

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ORDER ISSUING PRELIMINARY
INJUNCTION

DAVID JENNINGS, et al.,
Respondents.

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United States District Court
Northern District of California

Case No. 20-cv-5785-PJH

Petitioner,

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On August 23, 2020, the court entered an order granting in part petitioner’s motion

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for a temporary restraining order to enjoin respondents from re-detaining petitioner unless

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and until he is afforded a pre-deprivation administrative hearing on the question of

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whether his re-detention would ultimately be lawful. Dkt. 15. The court denied the TRO

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motion in part with respect to petitioner’s request that re-arrest or re-detention would

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require a pre-deprivation judicial hearing. The court further ordered respondents to show

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cause why a preliminary injunction should not issue enjoining respondents from re-

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detaining petitioner without a pre-deprivation administrative hearing. Having reviewed

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the OSC response (“Resp.”) and petitioner’s reply (“Reply”), the court determines that the

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matter is suitable for decision without a hearing and issues a preliminary injunction for the

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reasons set forth in the order granting the motion for a TRO and as further discussed

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below.

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Respondents filed a response to the OSC re: issuance of a preliminary injunction

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that purports to serve also as respondents’ return to the petition for writ of habeas corpus.

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Resp. at 1. While the OSC response addresses the various claims asserted in the

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habeas petition, respondents do not squarely address the grounds articulated by the

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court in issuing the TRO under the sliding scale test, i.e., that petitioner has sufficiently

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demonstrated that serious questions have been raised going to the merits of his

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procedural due process claim that, having been released on bond, his re-detention

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without a pre-deprivation hearing would violate the due process clause of the Fifth

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Amendment; that the balance of hardships tips sharply in his favor; and that the Winter

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factors of likelihood of irreparable injury and public interest are satisfied. Dkt. 15 at 4–8.

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See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Alliance for the Wild

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Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

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Repeating arguments made in opposition to the TRO motion, respondents contend

United States District Court
Northern District of California

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that a preliminary injunction is not warranted because if petitioner were re-arrested,

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existing procedural processes would be sufficient to satisfy his due process rights. This

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conclusory assertion begs the question whether a non-citizen granted release on bond

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has a protectable liberty interest, see Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (“the

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liberty of a parolee, although indeterminate, includes many of the core values of

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unqualified liberty and its termination inflicts a ‘grievous loss' on the parolee and often on

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others”), and what process is due under the circumstances presented here, where a non-

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citizen conditionally released on bond seeks procedural protections if immigration officials

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seek to re-arrest him after the immigration judge subsequently issues a sua sponte order

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revoking the bond and finding the non-citizen subject to mandatory detention under

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§ 1226(c). The authorities cited by respondents apply the well-established principle that

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detention during immigration proceedings is “a constitutionally valid aspect” of the

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removal process, see Demore v. Kim, 538 U.S. 510, 523 (2003), but do not weigh in on

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the questions whether non-citizens have a protected liberty interest against re-detention

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after initially being released on bond and whether due process requires a pre-deprivation

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hearing if respondents seek to re-arrest or re-detain him. See Hernandez v. Sessions,

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872 F.3d 976, 983 (9th Cir. 2017) (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

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Respondents also point out that “there is no statutory or regulatory requirement
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that entitles Petitioner to a ‘pre-arrest’ hearing,” Resp. at 14, but petitioner asserts a

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procedural due process claim, not a statutory or regulatory right, to a pre-deprivation

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hearing. Respondents further cite Nielsen v. Preap, 139 S. Ct. 954, 967 (2019), as

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authority to support their contention that petitioner is not entitled to continued release on

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bond because the IJ determined that her initial assessment was incorrect and issued a

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second order revoking the bond, but in Preap, the Supreme Court did not consider a

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claim that release on bond may give rise to a protectable liberty interest, much less, as

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respondents suggest, reject an argument that a non-citizen should be entitled to a

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“windfall” from an erroneous decision to grant a request for release on bond. Resp. at
14. Rather, the Court in Preap held that mandatory detention under § 1226(c) is not

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United States District Court
Northern District of California

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limited to situations where covered aliens are taken into immigration custody immediately

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upon release from criminal custody, and the Court expressly narrowed the holding as a

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matter of statutory interpretation that “does not foreclose as-applied challenges—that is,

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constitutional challenges to applications of the statute as we have now read it.” 139 S.

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Ct. at 972. In the absence of controlling authority on the issues whether non-citizens who

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have been granted release on bond have a liberty interest in maintaining release to which

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due process protections attach, the parties have raised serious questions going to the

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merits of petitioner’s procedural due process claim.

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A preliminary injunction will serve to preserve the status quo by providing

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procedural protections for petitioner’s conditional release until a final judgment on the

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merits can be rendered, particularly in light of respondents’ contention that the IJ’s

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mandatory detention “ruling would be controlling at any pre-deprivation hearing, absent a

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BIA decision to the contrary,” which suggests that without the issuance of a preliminary

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injunction, petitioner would not have a fair opportunity to maintain his conditional release

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by challenging mandatory detention and revocation of his bond if he were re-arrested.

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Resp. at 6. Respondents’ suggestion that petitioner’s pending appeal with the BIA “could

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provide him the remedy he seeks,” id. at 23, fails to acknowledge that petitioner seeks

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not only review of the IJ’s bond revocation decision, but also procedural protections for
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his claimed liberty interest in conditional release to prevent irreparable harm that would

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result if he were re-detained without an opportunity to challenge mandatory detention

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under § 1226(c). While the government argues that petitioner’s hearing date in state

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court has passed and he no longer faces the threat of being arrested at state court, Resp.

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at 22, petitioner has sufficiently demonstrated the necessity to make future state court

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appearances, with the next hearing set for September 30, and other non-speculative

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concerns that he faces the risk of re-arrest, which would cause him and his family

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economic hardship and loss of their primary caregiver. Reply at 11–12 (citations

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omitted).

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Petitioner suggests that if respondents seek to re-arrest him, a preliminary

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Northern District of California

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injunction would require the IJ to consider all of petitioner’s challenges to re-detention,

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including his constitutional challenges presented in the habeas petition, Reply at 9. Such

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expansive inquiry is not required of a pre-deprivation administrative hearing to protect his

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claimed liberty interest. Under the circumstances presented here, where petitioner was

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conditionally released from detention and currently challenges the validity of the IJ’s sua

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sponte bond revocation order on appeal to the BIA, due process only requires an

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administrative hearing limited to the issue whether petitioner is subject to mandatory

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detention under § 1226(c), which is the ground for seeking his re-detention that

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respondents assert here. Resp. at 17.

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On the present record, and for the reasons underlying issuance of the TRO, the

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court determines that petitioner has sufficiently demonstrated that there are serious

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questions going to the merits of his claim that he has a protectable liberty interest in his

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conditional release under Morrissey and that he must be afforded a pre-deprivation

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hearing if respondents seek to re-arrest him; that the balance of hardships tips sharply in

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his favor; that irreparable injury is likely; and that the public interest is served by providing

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due process safeguards for deprivation of liberty, to support the issuance of a preliminary

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injunction. See Ortega v. Bonnar, 415 F. Supp. 3d 963, 969–70 (N.D. Cal. 2019), notice

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of appeal filed, No. 20-15754 (9th Cir. Apr. 22, 2020); Meza v. Bonnar, 2018 WL
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2554572, at *3 (N.D. Cal. June 4, 2018) (finding “serious questions going to the merits of

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Petitioner’s claim that she has a vested liberty interest in her conditional release such that

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she may not be re-detained absent due process”).

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Having considered the parties’ papers, the evidence in the record, and the
applicable legal authority, the court issues a PRELIMINARY INJUNCTION as follows:

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The court hereby ORDERS that respondents David Jennings, San

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Francisco Field Office Director, U.S. Immigration and Customs

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Enforcement, Matthew T. Albence, Deputy Director and Senior

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Official Performing the Duties of the Director, U.S. Immigration and
Customs Enforcement, Chad Wolf, Acting Secretary of the U.S.

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United States District Court
Northern District of California

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Department of Homeland Security, and William P. Barr, Attorney

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General of the United States, are ENJOINED from re-arresting or re-

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detaining petitioner Simon Ortiz Vargas unless and until an

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administrative hearing, with adequate notice, is held to determine

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whether petitioner is subject to mandatory detention under § 1226(c).

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The court will set a case management conference in this matter by issuance of a
separate clerk’s notice.
IT IS SO ORDERED.
Dated: September 14, 2020
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

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