Bello-Reyes v. Gaynor

• Decision Date: 14 January 2021
• Docket Number: No. 19-16441,19-16441
• Citation: 985 F.3d 696
• Parties: Jose Omar BELLO-REYES, Petitioner-Appellant, v. Peter T. GAYNOR, Acting Secretary of Homeland Security; Jonathan Fahey, Senior Official Performing the Duties of the Director; Erik Bonnar, Field Office Director, San Francisco Field Office; Jeffrey A. Rosen, Acting Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

985 F.3d 696

Jose Omar BELLO-REYES, Petitioner-Appellant,

v.Peter T. GAYNOR, Acting Secretary of Homeland Security; Jonathan Fahey, Senior Official Performing the Duties of the Director; Erik Bonnar, Field Office Director, San Francisco Field Office; Jeffrey A. Rosen, Acting Attorney General, Respondents-Appellees.

No. 19-16441

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2020 San Francisco, California

Filed January 14, 2021

Jordan Wells (argued), Ahilan Arulanantham, Stephanie Padilla, and Michael Kaufman, American Civil Liberties Union Foundation of Southern California, Los Angeles, California; Angélica H. Salceda and Vasudha Talla, American Civil Liberties Union Foundation of Northern California, San Francisco, California; for Petitioner-Appellant.

Michael A. Celone (argued), Senior Litigation Counsel; William C. Silvis, Assistant Director; William C. Peachey, Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondents-Appellees.

Michael Risher, Law Office of Michael T. Risher, Berkeley, California; Alina Das, Washington Square Legal Services, New York, New York; Nora Benavidez, Director, U.S. Free Expression Programs, PEN America, New York, New York; for Amicus Curiae PEN America.

Before: Sidney R. Thomas, Chief Judge, and Mary M. Schroeder and Marsha S. Berzon, Circuit Judges.

THOMAS, Chief Judge:

This case requires us to consider whether the Supreme Court's recent decision in Nieves v. Bartlett , ––– U.S. ––––, 139 S. Ct. 1715, 204 L.Ed.2d 1 (2019), applies to a noncitizen's claim that Immigration and Customs Enforcement ("ICE") unconstitutionally retaliated against him for his speech when revoking his bond and re-arresting him. Jose Bello-Reyes ("Bello") had been detained by ICE and released on bond in 2018. On May 13, 2019, Bello spoke at a rally and read a poem of his own writing, entitled "Dear America." In this poem, he publicly criticized ICE enforcement and detention practices. Less than thirty-six hours later, ICE revoked his bond and re-arrested him. The Government contends that ICE had probable cause to arrest Bello, and thus his retaliatory arrest argument fails under Nieves . See 139 S. Ct. at 1727. We agree with Bello, however, that the distinctions between Nieves and Bello's habeas petition indicate that Nieves should not control in this case. We reverse and remand for the application of the standard from Mt. Healthy City Bd. of Educ. v. Doyle , 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

I

In May 2018, Bello was initially arrested by ICE, detained, and issued with a notice to appear ("NTA") charging him as being "present in the United States without admission or parole" and initiating removal proceedings. Bello had been living in California for most of his life after arriving in the United States without documentation in 2000, at age three. He was released from detention on a $10,000 bond secured by community groups in August 2018. After his release, Bello became an outspoken activist, publicly decrying ICE's policy's and practices. His removal proceedings continued, and he applied for cancellation of removal and relief in the form of a U visa.¹

Bello was arrested for driving under the influence ("DUI") in January 2019. He pleaded nolo contendere and was convicted on April 11, 2019. He was sentenced to five days in jail, which was stayed until May 13, 2019, although he requested it be further delayed due to a work program he was planning on attending.

On May 13, 2019, Bello spoke at a rally protesting Kern County law enforcement's involvement with ICE, a "videotaped, livestreamed, and widely publicized event," and read a poem of his own writing entitled "Dear America." In this poem, he criticized ICE enforcement and immigration detention policies, calling on young people to unite against these practices. Less than thirty-six hours later, at 6:30 AM on May 15, 2019, ICE officers arrived at Bello's home and arrested him. ICE had revoked his previous bond, ordered him re-detained, and increased his bond to $50,000.² ICE possessed a warrant dated May 15, 2019 stating that it had "probable cause to believe that [Bello] is removable from the United States." ICE agents detained Bello in a holding cell at ICE's processing center for several hours prior to his transfer to the detention facility. Agents refused to let him use the bathroom, and he urinated in his clothes while handcuffed. Bello alleges that one agent told him, "We'll see if you can get your friends to raise the bond money again." Once he was transferred to the detention center, a guard approached Bello, asking, "You think you're famous and you're going to get special treatment?"

Bello filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and the parties consented to proceed before a magistrate judge. Bello argued that his arrest and re-detention was an unconstitutional violation of the First Amendment, since it was retaliation for his protected speech. He argued that the court should apply the Mt. Healthy standard to this claim. The Government countered that it had probable cause to arrest Bello, as evidenced by the warrant, and therefore his petition was foreclosed by Nieves , in which the Supreme Court held that the presence of probable cause generally defeats a retaliatory criminal arrest claim for damages under 42 U.S.C. § 1983.

The magistrate judge denied the petition on the ground that Nieves controlled and, since ICE had "an objectively reasonable justification for re-arresting ... and detaining" Bello, his retaliatory arrest claim was unavailing.³ His claim would fail even under the alternate standard from Mt. Healthy , the magistrate judge reasoned, because Bello had not "demonstrated definitively that ICE would not have re-arrested him absent his speech."

This timely appeal followed. We review the district court's decision to deny a petition for a writ of habeas corpus de novo. See Singh v. Holder , 638 F.3d 1196, 1202 (9th Cir. 2011). We review the district court's findings of fact for clear error. See id. at 1203.

II

Bello argues that his re-arrest and detention constitute an unconstitutional retaliation against his protected speech. "Official reprisal for protected speech ‘offends the Constitution [because] it threatens to inhibit exercise of the protected right,’ and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions ... for speaking out." Hartman v. Moore , 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (alteration in original) (quoting Crawford-El v. Britton , 523 U.S. 574, 588 n.10, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) ). A plaintiff making a First Amendment retaliation claim must allege "that (1) he was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity and (3) the protected activity was a substantial or motivating factor in the defendant's conduct." Capp v. Cty. of San Diego , 940 F.3d 1046, 1053 (9th Cir. 2019) (quoting O'Brien v. Welty , 818 F.3d 920, 932 (9th Cir. 2016) ). The question of what standard to apply to determine whether Bello's speech was a substantial or motivating factor in ICE's decision to revoke his bond forms the crux of our review.⁴

A

We first address whether the Supreme Court's 2019 decision in Nieves v. Bartlett , ––– U.S. ––––, 139 S. Ct. 1715, 204 L.Ed.2d 1 (2019), controls in Bello's case. We conclude that Nieves , a suit for damages brought under 42 U.S.C. § 1983 and arising out of a criminal arrest, should not be extended to Bello's habeas challenge to his bond revocation.

Nieves arose out of a § 1983 suit for damages against individual arresting officers. 139 S. Ct. at 1721. The Court had previously held in Hartman v. Moore , 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), that a plaintiff claiming retaliatory prosecution is required to plead and prove the absence of probable cause supporting the underlying criminal charges. Id. at 255–56, 126 S.Ct. 1695. In Nieves , the Court "adopt[ed] Hartman ’s no-probable-cause rule in [the] closely related context" of retaliatory arrest. 139 S. Ct. at 1725 ; see also Hartman , 547 U.S. at 265–66, 126 S.Ct. 1695. The same rationales for the Hartman rule applied in the retaliatory arrest context, the Court reasoned, since both situations involve "causal complexities," Nieves , 139 S. Ct. at 1723, and evidence of probable cause would nearly always be available, id. at 1724. The Supreme Court rejected the plaintiff's proffered subjective test, concerned that it ran counter to Fourth Amendment principles, id. at 1724–25, would set off "broad ranging discovery," and would chill officers’ speech because of individual defendants’ litigation risk, id. at 1725. The Court further noted that common law tort principles confirmed this rule. Id. at 1726. Thus, Nieves established an objective test in which the presence of probable cause generally defeats a retaliatory criminal arrest claim for damages.

For at least these reasons, in combination, Nieves is not applicable here. First, problems of causation that may counsel for a no probable cause standard are less acute in the habeas context. In § 1983 suits, it is necessary to identify the particular state official or officials who violated the plaintiff's constitutional rights. See 42 U.S.C. § 1983 (referring to "every person who, under color of [law]" violates an individual's rights (emphasis added)). Not so in habeas: the petitioner need not identify a particular violator, only that his confinement is unconstitutional. See 28 U.S.C. § 2241(c). Second, Nieves does not apply here because it arose out of the criminal arrest context, where "evidence of the presence or absence of probable cause for the...