Meza v. Bonnar et al

Filing 43

ORDER GRANTING 35 RESPONDENTS' MOTION TO DISMISS PETITION AS MOOT. Signed by Judge Beth Labson Freeman on 7/26/2022. (blflc1, COURT STAFF) (Filed on 7/26/2022)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

SAN JOSE DIVISION

7
8

BRENDA MEZA,
Petitioner,

9
10

United States District Court
Northern District of California

11
12

Case No. 18-cv-02708-BLF

v.
ERIK BONNAR, et al.,
Respondents.

ORDER GRANTING RESPONDENTS’
MOTION TO DISMISS PETITION AS
MOOT
[Re: ECF 35]

13
14
15
16

Petitioner Brenda Meza (“Meza”) was ordered removed from the United States to

17

Guatemala in 2007 as a result of her criminal convictions, but she was granted withholding of

18

removal. In 2016, the Department of Homeland Security (“DHS”) initiated new removal

19

proceedings, seeking to terminate Meza’s withholding of removal based on her additional criminal

20

convictions. DHS detained Meza for approximately thirteen months, until an Immigration Judge

21

(“IJ”) released her on bond pursuant to the Ninth Circuit’s decision Rodriguez III, which held that

22

applicable immigration statutes require periodic bond hearings for detained noncitizens. See

23

Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) (“Rodriguez III”), rev’d sub nom., Jennings

24

v. Rodriguez, 138 S. Ct. 830 (2018). While Meza was released on bond, the Supreme Court

25

reversed Rodriguez III in Jennings, holding that periodic bond hearings for noncitizens are not

26

required by statute. See Jennings v. Rodriguez, 138 S. Ct. 830, 851-52 (2018). Based on

27

Jennings, the Board of Immigration Appeals (“BIA”) vacated the IJ’s bond order, finding that it

28

had been issued in the absence of statutory or regulatory authority.

Meza filed this habeas petition against Respondents (collectively, “the Government”) the

1
2

following month, asserting a liberty interest in her “current conditional release” from DHS

3

custody under the Due Process Clause of the Fifth Amendment. Pet. ¶ 50. The petition points out

4

that even though the statutory basis for the IJ’s bond order was eliminated by Jennings, the

5

Jennings decision left open whether periodic bond hearings for noncitizens are required by the

6

Constitution.1 See id. ¶¶ 29-32. The petition also asserts that Jennings cannot be applied

7

retroactively to individuals like Meza, who previously have been granted bond under Rodriguez

8

III. See id. ¶¶ 43-47. In her petition, Meza asks this Court “to prevent the Department of

9

Homeland Security (‘DHS’) from returning her to an immigration jail pending resolution of her

10

removal case without a due process hearing.” Pet. ¶¶ 1, 50 ECF 1.
The Court granted a temporary restraining order (“TRO”) and, subsequently, a preliminary

United States District Court
Northern District of California

11
12

injunction prohibiting DHS from re-detaining Meza absent an administrative hearing. Meza has

13

not been re-detained by DHS, and her underlying removal proceedings have been terminated. The

14

Government now moves to dismiss the petition as moot. Meza opposes the motion.
For the reasons discussed below, the Government’s motion to dismiss is GRANTED and

15
16

the petition is DISMISSED AS MOOT.
I.

17

BACKGROUND

18

Removal Proceedings

19

Meza is a native and citizen of Guatemala. See Louie Decl. ¶ 3, ECF 11-1. She entered

20

the United States without inspection in or around 1984 and obtained Lawful Permanent Resident

21

status in 1992. See id. In 2005, Meza was convicted of grand theft, perjury, and welfare fraud,

22

and she was imprisoned until 2007. See id. ¶¶ 4-5. Upon Meza’s release from prison, the

23

Immigration and Customs Enforcement (“ICE”) division of DHS initiated removal proceedings

24

against her. See id. ¶ 5. On June 20, 2007, an IJ ordered Meza’s removal to Guatemala but

25

granted Meza’s application for withholding of removal. See id. ¶ 6.

26
27

1

The petition refers to the Supreme Court’s Jennings decision as “Rodriguez VI.”

28
2

United States District Court
Northern District of California

1

In February 2013, Meza was convicted of second degree robbery and sentenced to 368

2

days in jail. See Louie Decl. ¶ 7. While she was on probation for the robbery conviction, Meza

3

was convicted of corporal injury to a child and was sentenced to four years in prison. See id. ¶ 8.

4

On June 28, 2016, ICE initiated removal proceedings against Meza, seeking to terminate her

5

withholding of removal. See id. ¶ 9. ICE detained Meza for approximately thirteen months during

6

the pendency of those removal proceedings, until an IJ released her on a $2,000 bond in August

7

2017. See id. ¶ 12, Exh. J. ICE successfully appealed the IJ’s bond order, which was vacated by

8

the Board of Immigration Appeals (“BIA”) in April 2018. See id. ¶ 13, Exh. K. ICE did not take

9

Meza into custody following the BIA’s ruling. See id. ¶ 14.

10

Current Habeas Petition

11

Meza feared being re-detained by DHS at any time, including when she appeared for an

12

immigration hearing scheduled for May 16, 2018. See Pet. ¶ 4. She filed her current habeas

13

petition on May 8, 2018, asking the Court to enjoin ICE from re-detaining her during the

14

pendency of her removal proceedings, absent a due process hearing. See id. ¶ 1. The petition

15

asserts a single claim under the Due Process Clause of the Fifth Amendment, alleging in relevant

16

part that “Petitioner has a vested liberty interest in her current conditional release,” and “Due

17

Process does not permit the government to strip her of that liberty without a hearing before this

18

Court.” Id. ¶¶ 48-50. The petition’s prayer requests injunctive relief preventing ICE from re-

19

arresting Meza without a prior hearing, and declaratory relief in the form of a statement that Meza

20

cannot be re-arrested without a prior hearing. Pet., Prayer.

21

Temporary Restraining Order

22

On May 8, 2018, the same day she filed the habeas petition, Meza also filed an application

23

for a TRO. See Applic. for TRO, ECF 3. Meza expressed concern that she might be re-detained

24

by ICE when she appeared at an immigration hearing scheduled for May 16, 2018. See id. On

25

May 10, 2018, this Court issued an order granting the requested TRO for a period of fourteen

26

days, through May 24, 2018, and directing the Government to show cause why a preliminary

27

injunction should not issue. See Order Granting Applic. for TRO, ECF 9. The Government

28

agreed to an extension of the TRO for an additional fourteen days, through June 7, 2018, while the
3

1
2

Preliminary Injunction and Stay of Habeas Proceedings

3

On June 4, 2018, the Court granted a preliminary injunction. See Order Granting Prel. Inj.,

4

ECF 15. The Court’s preliminary injunction order discussed the circumstances giving rise to

5

Meza’s prolonged detention by ICE, the IJ’s bond order issued pursuant to Rodriguez III, the

6

Government’s appeal of the bond order, and the BIA’s decision to vacate the bond order based on

7

Jennings. See id. at 2-3. Against this backdrop, this Court considered whether Meza was entitled

8

to a preliminary injunction pending disposition of her habeas petition. See id. at 3.

9

United States District Court
Northern District of California

Court considered whether to grant a preliminary injunction. See Order Extending TRO, ECF 14.

The Court determined that Meza had not established a likelihood of success on the merits

10

of her Fifth Amendment due process claim, given the Supreme Court’s ruling in Jennings that

11

periodic bond hearings for detained noncitizens are not required by statute, and the uncertainty

12

whether such hearings are required by the Constitution. See Pet. at 3. However, the Court

13

concluded that Meza had established serious questions going to the merits of her habeas petition

14

and had satisfied the other requirements for preliminary injunctive relief under Winter v. Nat. Res.

15

Def. Council, Inc., 555 U.S. 7 (2008). See id. at 4-7. The Court therefore granted Meza the

16

following preliminary injunctive relief: “ICE is enjoined from re-detaining Petitioner pending this

17

Court’s disposition of her petition for writ of habeas corpus absent an administrative hearing at

18

which an IJ, the BIA, or other neutral decision-maker determines that a material change in

19

circumstances, including but not limited to violation of her conditions of release, warrants re-

20

detention.” Id. at 7.

21

On October 3, 2018, this Court granted Meza’s motion for a stay of her habeas proceedings

22

pending a decision by the Ninth Circuit in Rodriguez v. Marin, Case No. 13-56706, which

23

presented the issue of whether the Constitution requires bond hearings for noncitizens subjected to

24

prolonged detention. See Order Granting Mot. for Stay, ECF 25.

25

Termination of Removal Proceedings

26

While the habeas case was stayed, Meza successfully moved to terminate the removal

27

proceedings that had been initiated in 2016. See Mehta Decl. ¶¶ 1-4, Exhs. 1-3. The Government

28

opposed Meza’s motion to terminate and requested that the removal proceedings against her go
4

United States District Court
Northern District of California

1

forward. See Mehta Decl. Exh. 2. The assigned IJ found that deficiencies in the Notice to Appear

2

issued to Meza deprived the Immigration Court of jurisdiction, and terminated Meza’s removal

3

proceedings on July 26, 2019. See Mehta Decl. Exh. 3.

4

Lifting of Stay and Government’s Motion to Dismiss

5

The parties did not immediately notify this Court when Meza’s removal proceedings were

6

terminated. On September 29, 2021, the Court issued an order requesting a status report. See

7

Order Requesting Status Report, ECF 27. The Court noted that the Ninth Circuit had issued its

8

decision in Rodriguez v. Marin, 909 F.3d 252 (9th Cir. 2018), without providing guidance on

9

whether the Constitution requires bond hearings for noncitizens subjected to prolonged detention.

10

See id. The Court requested information on the status of Meza’s removal proceedings and whether

11

Meza intended to continue litigating her habeas petition. See id.

12

The parties filed a joint status report advising that Meza’s removal proceedings had been

13

terminated. See Joint Status Report, ECF 28. The parties took conflicting positions on whether

14

termination of those removal proceedings moots Meza’s petition. See id. The Court lifted the stay

15

and approved the parties’ proposed schedule for briefing the Government’s motion to dismiss the

16

petition as moot. Briefing on the Government’s motion was completed in April 2022 and the

17

Court heard argument in May 2022.

18

II.

LEGAL STANDARD

19

“Federal courts are courts of limited jurisdiction,” and as such “[t]hey possess only that

20

power authorized by Constitution and statute, which is not to be expanded by judicial decree.”

21

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted).

22

“A federal court’s jurisdiction is limited to cases or controversies.” Am. Rivers v. Nat’l Marine

23

Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997), as amended (Sept. 16, 1997). “A claim is

24

moot if it has lost its character as a present, live controversy.” Id. “A case that becomes moot at

25

any point during the proceedings is no longer a ‘Case’ or ‘Controversy’ for purposes of Article III,

26

and is outside the jurisdiction of the federal courts.” United States v. Sanchez-Gomez, 138 S. Ct.

27

1532, 1537 (2018) (internal quotation marks and citation omitted). “There are, however, four

28

major exceptions to the mootness doctrine, for (1) collateral legal consequences; (2) wrongs
5

1

capable of repetition yet evading review; (3) voluntary cessation; and (4) class actions where the

2

named party ceases to represent the class.” In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005).

3

III.

The Government argues that termination of Meza’s removal proceedings renders her

4

United States District Court
Northern District of California

DISCUSSION

5

petition moot and that no exception to the mootness doctrine applies. Meza argues that her

6

petition is not moot or, alternatively, that the following exceptions to the mootness doctrine apply:

7

collateral consequences, voluntary cessation, and wrongs capable of repetition yet evading review.

8

The Court finds that Meza’s petition is moot and that the three exceptions asserted by Meza do not

9

apply.
Meza’s Habeas Petition is Moot

10

A.

11

Meza filed her habeas petition pursuant to 28 U.S.C. § 2241, which permits a district court

12

to grant habeas relief to a petitioner who is “in custody” where such custody violates “the

13

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “A person need not

14

be physically imprisoned to be in custody under the statute; instead, habeas relief is available

15

where the individual is subject to ‘restraints not shared by the public generally.’” Ortega v.

16

Bonnar, 415 F. Supp. 3d 963, 968 (N.D. Cal. 2019) (quoting Jones v. Cunningham, 371 U.S. 236,

17

240 (1963)). Declaratory and injunctive relief are proper habeas remedies. See N.B. v. Barr, 2019

18

WL 4849175, at *7 (S.D. Cal. Oct. 1, 2019).

19

The petition alleges that Meza is in the custody of ICE pursuant to the conditions of the

20

IJ’s bond order, that she has a vested liberty interest in her current conditional release, and that her

21

Fifth Amendment due process rights would be violated if ICE were allowed to re-detain her

22

without a hearing. See Pet. ¶¶ 8, 50-52. The petition asks the Court “to prevent the Department of

23

Homeland Security (‘DHS’) from returning her to an immigration jail pending resolution of her

24

removal case without a due process hearing.” Id. ¶ 1. The petition seeks both an injunction

25

prohibiting her re-arrest without a hearing, and a declaration that she cannot be re-arrested without

26

a hearing. See Pet., Prayer.

27
28

Meza effectively has obtained all the relief sought in the petition. The removal
proceedings initiated in 2016 have been terminated and Meza was not returned to an immigration
6

1

jail pending resolution of those proceedings. Moreover, the Court no longer can grant the

2

requested relief. The petition asks the Court to provide Meza with certain due process protections

3

during the pendency of her removal proceedings, but her removal proceedings have been

4

terminated. The Court therefore concludes that Meza’s petition is moot.

United States District Court
Northern District of California

5

This ruling is consistent with the decisions of other district courts within the Ninth Circuit.

6

For example, in Lee, the petitioner claimed that ICE had subjected him to indefinite detention

7

pending removal proceedings, without a hearing, in violation of the Due Process Clause of the

8

Fifth Amendment. See Lee v. Hayes, No. CV 07-6389-TJH(E), 2008 WL 4447578, at *2 (C.D.

9

Cal. Oct. 2, 2008). The petitioner sought a hearing to determine whether his detention was

10

justified. See id. The petitioner thereafter was released from detention and his removal

11

proceedings were terminated. See id. The district court dismissed the petition as moot,

12

concluding that “the release of Petitioner from detention and the termination of his removal

13

proceedings have given Petitioner all the relief to which he conceivably could be entitled.” Id. at

14

*3. In Quang Dien La, the petitioner challenged the length of his detention in pre-removal

15

custody, seeking an order directing his immediate release. See Quang Dien La v. Holder, No. CIV

16

S-10-1757 DAD P, 2011 WL 6042798, at *1-2 (E.D. Cal. Dec. 5, 2011). Upon the petitioner’s

17

release from detention, the district court dismissed the petition as moot, observing that it “can no

18

longer provide the relief sought because petitioner has been released from custody.” Id. at *2. As

19

in Lee and Quang Dien La, the petition before the Court is moot because Meza effectively has

20

obtained all the relief sought and the Court no longer can grant the requested relief.

21

Meza’s arguments to the contrary are unpersuasive. Meza asserts that she remains in

22

custody because she is subject to the IJ’s August 2017 bond order, which released her from ICE

23

custody on a $2,000 bond and subject to certain conditions. As support for this assertion, Meza

24

submits her counsel’s declaration statement that DHS has not returned the $2,000 bond amount to

25

Meza’s son, who is the bond obligor. See Mullins Decl. ¶ 6, ECF 38-1. As noted above, the IJ’s

26

August 2017 bond order was vacated by the BIA in 2018. See Louis Decl. ¶ 13, Exh. K. It is

27

unfortunate that the $2,000 bond amount has not been returned to Meza’s son, but that fact does

28

not establish that Meza remains in custody pursuant to the vacated bond order.
7

United States District Court
Northern District of California

1

Whether the petition satisfies the in custody requirement is not the critical question

2

presented by the Government’s motion, however. The more substantial question is whether

3

termination of Meza’s removal proceedings causes the petition to be moot because it no longer

4

presents a case or controversy under Article III. Meza argues that the petition “did not tether her

5

liberty interest nor argue that her right to a pre-deprivation hearing is dependent on active removal

6

proceedings.” Opp. at 11. Meza emphasizes that she is subject to a final order of removal, and

7

that although she has been granted withholding of removal, DHS could re-arrest her at any time.

8

See id. at 1.

9

In the Court’s view, the relief requested in the petition is tethered to the removal

10

proceedings that were initiated in 2016. The petition alleges that the in custody requirement is

11

satisfied by Meza’s conditional release on bond in those removal proceedings, that Meza had a

12

constitutional right to the bond hearing, and that Meza has a liberty interest in her “current

13

conditional release” from ICE custody in those proceedings. Pet. ¶¶ 8, 36, 50. The first line of the

14

petition asks this Court to prevent DHS “from returning her to an immigration jail pending

15

resolution of her removal case without a due process hearing.” Pet. ¶ 1. Because those

16

proceedings have been terminated, this case is distinguishable from the cases on which Meza

17

relies, as discussed below.

18

In Ortega, the district court determined that a noncitizen who was released on bond

19

pending removal proceedings was entitled to a hearing before the bond was altered or revoked.

20

See Ortega v. Bonnar, 415 F. Supp. 3d 963 (N.D. Cal. 2019). The district court found that

21

“Ortega ha[d] a liberty interest in remaining on bond” and that injunctive relief was warranted

22

under the facts of the case. See id. at 966. In Jorge M.F., the district court determined that a

23

noncitizen who was released on bond pending removal proceedings, but whose bond was revoked,

24

was entitled to a hearing before an IJ before being re-detained. Jorge M.F. v. Jennings, 534 F.

25

Supp. 3d 1050, 1055-56 (N.D. Cal. 2021). In both Ortega and Jorge M.F., the district court found

26

that the noncitizen had a liberty interest in conditional release during the pendency of removal

27

proceedings. Meza had a similar liberty interest in her conditional release while the recent

28

removal proceedings were pending. However, those removal proceedings have been terminated,
8

1

and thus – unlike the noncitizens in Ortega and Jorge M.F. – Meza no longer has a liberty interest

2

in conditional release pending those proceedings.

United States District Court
Northern District of California

3

In Centeno-Ortiz, also cited by Meza, a noncitizen filed a habeas petition to challenge his

4

physical detention by ICE, and he was discretionarily released on parole while the petition was

5

pending. See Centeno-Ortiz v. Culley, No. 11-CV-1970-IEG POR, 2012 WL 170123 (S.D. Cal.

6

Jan. 19, 2012). The district court found that the petition was not moot, because the noncitizen

7

could still secure a nondiscretionary release while his immigration case proceeded. See id. at *4.

8

The district court ordered that in the event the noncitizen’s conditional parole was revoked, he

9

would be entitled to an individualized bond hearing before an immigration judge. See id. at *9.

10

Meza is not subject to conditional parole, or other conditional release, pending resolution of

11

immigration proceedings, because those proceedings have been terminated. Her case therefore is

12

distinguishable from that of the parolee in Centano-Ortiz.

13
14

The Court finds that Meza’s habeas petition is moot. The Court next turns to Meza’s
argument that three exceptions to the mootness doctrine apply.

15

B.

The Collateral Consequences Exception Does Not Apply

16

Meza first argues that the collateral consequences exception applies to her petition. “For a

17

habeas petition to continue to present a live controversy after the petitioner’s release or deportation

18

. . . there must be some remaining ‘collateral consequence’ that may be redressed by success on

19

the petition.” Abdala v. I.N.S., 488 F.3d 1061, 1064 (9th Cir. 2007). “For a collateral

20

consequence to present a continuing live case or controversy, it must be a concrete legal

21

disadvantage, and not merely a speculative or contingent injury.” Perez v. Murray, No. 18-CV-

22

01437-JSC, 2018 WL 2724241, at *2 (N.D. Cal. June 6, 2018).

23

Meza asserts that there are three collateral consequences that may be redressed by success

24

on her petition. First, she contends that if the Court were to dismiss the petition, she would lose

25

the benefit of the $2,000 bond posted by her son. Meza states that after a bond is revoked or

26

cancelled, it can take months or years for the money to be returned. She suggests that if DHS

27

decides to arrest and detain her in the future, she would be unable to post bond because she would

28

not have access to the original $2,000 used to post her first bond. This argument is without merit.
9

United States District Court
Northern District of California

1

Meza is not currently released on bond. The IJ’s bond order was vacated in April 2018. See Louis

2

Decl. ¶ 13, Exh. K. The removal proceedings in which the bond order issued were terminated on

3

July 26, 2019. See Mehta Decl. Exh. 3. On this record, Meza presents no basis to conclude that

4

she would forfeit the $2,000 if she were arrested in the future. Nor does she explain how the

5

current petition could redress DHS’s failure to return the bond amount to her son.

6

Second, Meza contends that DHS could choose to arrest and detain her at some future date,

7

in which case she could face another period of prolonged confinement in an immigration jail. The

8

possibility that Meza could be subject to future immigration proceedings does not present a

9

concrete legal disadvantage sufficient to implicate the collateral consequences exception. See

10

Spencer v. Kemna, 523 U.S. 1, 14 (1998) (possibility that parole revocation could be used to

11

petitioner’s detriment in a future parole proceeding too speculative to constitute a collateral

12

consequence sufficient to confer Article III standing). Moreover, any such legal disadvantage

13

could not be redressed by success on the present petition, which asserts a liberty interest in Meza’s

14

conditional release pending resolution of the removal proceedings that she was in when she filed

15

the petition. Vindication that liberty interest, either by injunctive relief or by declaratory relief,

16

would not speak to Meza’s constitutional rights in future immigration proceedings. Meza has not

17

been subject to detention for nearly five years, and she has not been in removal proceedings for

18

three years. The Court has no way to know what factual circumstances may have changed since

19

Meza’s release on bond and subsequent termination of her removal proceedings. See Guido v.

20

Sepulveda, No. C 07-3873 CW, 2008 WL 2021751, at *2 (N.D. Cal. May 8, 2008) (finding no

21

collateral consequences based on possible future detention because “the Court cannot address the

22

legality of Petitioner’s potential future detention when the factual and legal bases for that detention

23

are not yet known”).

24

Third, Meza argues that re-imprisonment at a detention center would harm not only her,

25

but also her family. For the reasons discussed above, the possibility of future immigration

26

proceedings is too speculative to implicate the collateral consequences exception. Moreover, that

27

asserted consequence could not be redressed by success on the present petition, for the reasons

28

also discussed above.
10

1

In conclusion, the collateral consequences exception does not apply.

2

C.

3

Meza next invokes the voluntary cessation exception. Under that exception, a district court

4

may retain jurisdiction even though no remaining controversy remains before it, on the ground that

5

the party asserting mootness voluntarily ceased illegal conduct but is “free to return to his old

6

ways.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)

7

(internal quotation marks and citation omitted). Where the challenged conduct was ceased

8

voluntarily, the party asserting mootness must show that the challenged conduct could not

9

reasonably be expected to recur. See id.

United States District Court
Northern District of California

10

The Voluntary Cessation Exception Does Not Apply

In the present case, the alleged infringement of Meza’s due process rights during the

11

pendency of her removal proceedings ceased not because of any voluntary conduct on the part of

12

DHS, but because Meza successfully moved to terminate the removal proceedings. Accordingly,

13

the voluntary cessation exception does not apply. See Oregon Nat. Res. Council, Inc. v.

14

Grossarth, 979 F.2d 1377, 1379 (9th Cir. 1992) (rejecting plaintiffs’ assertion of the voluntary

15

cessation exception where the defendants’ cancellation of a challenged sale was the result of the

16

plaintiffs’ successful administrative appeal). Meza argues that the voluntary cessation exception

17

nonetheless applies, because DHS elected not to appeal the termination of her removal

18

proceedings. Meza relies on Diouf to support her position, but that reliance is misplaced, as

19

discussed below.

20

In Diouf, the petitioner alleged that ICE had subjected him to prolonged detention pending

21

removal proceedings. See Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). The district court

22

granted a preliminary injunction requiring a bond hearing before an IJ, and the IJ released the

23

petitioner on bond. See id. at 1083-84. On appeal from that order, the Ninth Circuit vacated the

24

preliminary injunction because the district court had applied the wrong statute in determining

25

whether the petitioner was entitled to a bond hearing; the Ninth Circuit remanded for the district

26

court to determine whether the applicable statute requires bond hearings for detained noncitizens.

27

See id. at 1084. On remand, the district court concluded that the applicable statute does not

28

require bond hearings and it denied the petitioner’s motion for a preliminary injunction on that
11

1

basis. See id. On appeal, the Ninth Circuit questioned whether the petitioner’s claims had become

2

moot given that the petitioner had been free on bond for several years and the government had not

3

elected to re-detain him. See id. at 1084 n.3. The Ninth Circuit found that the voluntary cessation

4

exception applied, because absent court action the government could re-detain the petitioner at any

5

time without a bond hearing. See id.

United States District Court
Northern District of California

6

Diouf does not speak to the applicability of the voluntary cessation exception where, as

7

here, the petitioner takes action that moots the controversy and the government does not appeal.

8

Meza argues that, like the petitioner in Diouf, she is subject to re-detention by DHS at any time.

9

However, Meza is not subject to re-detention in connection with the removal proceedings initiated

10

in 2016, because those proceedings have been terminated. Meza’s petition requests relief only

11

pending resolution of those proceedings. Her case thus is factually distinguishable from Diouf, in

12

which immigration proceedings were ongoing but the government chose not to re-detain the

13

petitioner.

14

Consequently, the Court finds that the voluntary cessation exception does not apply.

15

D.

16

Finally, Meza argues that her petition is not moot because it alleges wrongs that are

The Capable of Repetition Yet Evading Review Exception Does Not Apply

17

capable of repetition yet evading review. This exception “is limited to extraordinary cases in

18

which: (1) the duration of the challenged action is too short to be fully litigated before it ceases;

19

and (2) there is a reasonable expectation that the plaintiffs will be subjected to the same action

20

again.” Am. Rivers, 126 F.3d at 1124. This case does not satisfy either component.

21

“The duration component of the repetition/evasion analysis is present where the underlying

22

action is almost certain to run its course before either [the appellate] court or the Supreme Court

23

can give the case full consideration.” Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1173

24

(9th Cir. 2002). Courts have found this requirement to be met by a regulation in effect for less

25

than a year, because a year is not enough time for judicial review, see Greenpeace Action v.

26

Franklin, 14 F.3d 1324, 1329 (9th Cir. 1992); by litigation regarding one-year and two-year

27

permits that likely would expire before appellate review could be completed, see Alaska Ctr. For

28

Env’t v. U.S. Forest Serv., 189 F.3d 851, 856 (9th Cir. 1999); and in the election context where
12

United States District Court
Northern District of California

1

“the period of time between legislative authorization of the proposal and its submission to the

2

voters was approximately 18 months,” First Nat. Bank of Bos. v. Bellotti, 435 U.S. 765, 774

3

(1978).

4

In the present case, the durational component is not satisfied, because nothing in this

5

record suggests that a future detention by ICE would be of such short duration as to preclude Meza

6

from obtaining judicial review. Her concern is that her Fifth Amendment rights may be violated

7

by future prolonged detention without a bond hearing. A prolonged detention would afford the

8

opportunity for litigation. Indeed, in the present case, Meza filed her petition on May 8, 2018, and

9

this Court granted a TRO on May 10, 2018. Meza’s argument that she could not obtain judicial

10

review “before suffering irreparable injury” is not the standard for application of this exception to

11

mootness, and she cites no case applying that standard. She relies on Domingo-Jimenez for the

12

proposition that “[i]t is abundantly clear that any re-arrest and re-incarceration will have already

13

occurred before any district court ‘can give the action full consideration.’” Opp. at 25. However,

14

in Domingo-Jimenez the district court found that the capable of repetition exception did not apply,

15

because the potential future controversy would be reviewable. See Domingo-Jimenez v. Lynch,

16

No. C 16-05431 WHA, 2017 WL 235194, at *5 (N.D. Cal. Jan. 19, 2017).

17

The reasonable expectation component is not satisfied either. In order to satisfy this

18

component, Meza “must establish a demonstrated probability that the same controversy will recur

19

involving the same litigants.” Lee v. Schmidt-Wenzel, 766 F.2d 1387, 1390 (9th Cir. 1985).

20

“Speculative contingencies afford no basis for finding the existence of a continuing controversy

21

between the litigants as required by article III.” Id. Meza has not made this showing, because

22

whether ICE will re-arrest and detain her in future immigration proceedings is entirely speculative.

23

See Dellaguardia v. Gonzales, No. C06-1378-MJP, 2007 WL 2155719, at *3 n.4 (W.D. Wash.

24

July 23, 2007) (declining to apply exception because “petitioner’s contention that he may be

25

detained and subject to removal proceedings again is based on a mere theoretical possibility, not a

26

‘reasonable expectation’ or ‘demonstrated probability’”).

27

The Court finds that this exception does not apply.

28
13

United States District Court
Northern District of California

1

E.

Dismissal of Petition and Entry of Judgment is Appropriate

2

In a footnote on the last page of her opposition brief, Meza requests leave to amend her

3

petition in the event the Court determines it is moot. See Opp. at 25 n.6. She has not submitted a

4

proposed petition or provided any detail as to her proposed amendment. Meza’s counsel fleshed

5

out the request for leave to amend substantially at the hearing. The Court indicated that it would

6

consider those arguments in ruling on the Government’s motion. Having considered them, the

7

Court concludes that leave to amend would not be appropriate. Meza’s petition asserts a distinct

8

due process claim arising out of removal proceedings that since have been terminated on her

9

motion. It has been nearly five years since Meza was detained and three years since she had been

10

in removal proceedings. Under those circumstances, any constitutional claims arising out of

11

future immigration proceedings – which necessarily would be based on new and as-yet unknown

12

facts – should be brought in a separate petition.
In the same footnote, Meza asks the Court to keep this action open so that she may file a

13
14

motion for attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. That motion

15

may be filed after judgment. The statute provides that “[a] party seeking an award of fees and

16

other expenses shall, within thirty days of final judgment in the action, submit to the court an

17

application for fees and other expenses which shows that the party is a prevailing party and is

18

eligible to receive an award under this subsection. . . .” 28 U.S.C.A. § 2412(d)(1)(B) (emphasis

19

added).
Accordingly, the Court finds it appropriate to grant the Government’s motion to dismiss

20
21
22

the petition and to enter judgment in this case.
IV.

ORDER

23

(1)

The Government’s motion to dismiss the petition as moot is GRANTED;

24

(2)

A separate judgment will be entered; and

25

(3)

This order terminates ECF 35.

26
27
28

Dated: July 26, 2022

_____________________________________
BETH LABSON FREEMAN
United States District Judge
14