Doe v. Becerra
| Docket Number | 23-cv-02382-DMR |
| Decision Date | 01 September 2023 |
| Parties | JOHN DOE, Plaintiff, v. MOISES BECERRA, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Petitioner John Doe[1] is a noncitizen from Mexico who is currently in Immigration and Customs Enforcement (“ICE”) custody pending the conclusion of his removal proceedings. Respondents are Moises Becerra, Field Office Director of ICE's San Francisco Field Office Alejandro Mayorkas, Secretary of the Department of Homeland Security (“DHS”); Tae D. Johnson, Acting Director of ICE; and Merrick B. Garland, the United States Attorney General.
On May 16, 2023, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in which he asks the court to order his release from custody within 14 days unless the government schedules a bond hearing at which it “must establish by clear and convincing evidence that [he] presents a risk of flight or danger” in order to continue his detention. [Docket No. 1 (Petition) ¶ 2 Prayer.] The parties filed a stipulated briefing schedule on the petition which the court entered on May 22, 2023. [Docket No. 12.]
This matter is fully briefed and is suitable for resolution without a hearing. Civ. L.R. 7-1(b). For the following reasons, the habeas petition is granted.
Petitioner was born in Mexico in 1987. While he was a child living in Mexico, his cousin Mauricio sexually abused him. Petitioner left for the United States in 1995 and joined his father in Salinas, California. Petition ¶¶ 19-20. He became a lawful permanent resident in 2000. Id. at ¶ 18. Petitioner experienced additional sexual abuse during his childhood after he came to the United States. Id. at ¶ 20. In 2010, Petitioner was recovering from a work-related injury and began babysitting Mauricio's three-year-old daughter. In June 2010, Petitioner was playing with his own son and Mauricio's daughter. While playing, Petitioner “pulled [the daughter's] underpants roughly for several seconds” and injured her. Id. at ¶¶ 22, 23. Later that evening, the mother of the victim noticed bleeding in the victim's vagina and took her to the hospital.
Petitioner was eventually arrested and charged with multiple felony counts of sexual assault. He pled guilty to two counts of violating California Penal Code section 288(a) () and one count of violating California Penal Code section 273a(a) () and was sentenced to over 11 years in prison. Id. at ¶ 24, 25; Ex. E. He was released on parole in March 2020 after serving ten years of his sentence. Petition ¶ 27. After his release, Petitioner “engaged in intensive rehabilitation, and was regularly tested for drugs, subjected to monitoring, and required to attend weekly classes.” Id. at ¶ 28.
Petitioner contends that Mauricio and his family have repeatedly threatened to kill Petitioner since the assault on Mauricio's daughter. Id. at ¶ 31. He further contends that “Mauricio's family has the means to carry out their threats” because Mauricio's father has ties to organized crime in Mexico. Id. at ¶ 32.
On June 1, 2021, DHS charged Petitioner as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony (violation of California Penal Code section 288(a)) and issued a Notice to Appear. Id. at ¶ 35, Ex. D (Notice to Appear, “NTA”). DHS detained Petitioner the same day and transferred him to Golden State Annex. Petition ¶ 34. According to DHS Deportation Officer Daniel Martinez, ICE conducted a custody determination when Petitioner was taken into custody in light of the requirements imposed in Fraihat v. U.S. Immigration & Customs Enforcement, 445 F.Supp.3d 709, 751 (C.D. Cal. 2020), rev'd and , 16 F.4th 613 (9th Cir. 2021), regarding custody determinations for immigration detainees with risk factors for COVID-19. [Docket No. 13-2 (Martinez Decl. June 6, 2023) ¶ 8.] Martinez states that ICE determined that Petitioner would remain in custody “due to public safety.” Id. According to Martinez, ICE again reviewed Petitioner's custody status on June 9, 2021 and determined that he would remain in custody “[d]ue to public safety.” Id. at ¶ 10.
On April 14, 2023, Petitioner filed a request for release with ICE and supported his request with a letter of support from the Assistant Facility Administrator at Golden State Annex describing his “exemplary behavior.” Petition ¶ 44, Exs. R, S. ICE denied the request on May 24, 2023. Martinez Decl. ¶ 17.
At the time Respondent filed the instant petition, he had been detained for over 23 months.
On September 2, 2023, an immigration judge (“IJ”) found Petitioner statutorily ineligible for a custody redetermination based on his criminal conviction pursuant to 8 U.S.C. § 1226(c). Martinez Decl. ¶ 11, Ex. 2. Petitioner appealed the IJ's decision to the Board of Immigration Appeals (“BIA”), which denied the appeal on January 31, 2022. Petition ¶ 35, Ex. C (Ugarte Decl. May 15, 2023) ¶ 10; Martinez Decl. ¶ 12, Ex. 3.
Petitioner filed an application for deferral of removal under the Convention Against Torture (“CAT”) and sought re-adjustment of status with a waiver of inadmissibility. Petition ¶ 36, Ugarte Decl. ¶¶ 16, 17. Following evidentiary hearings in June and July 2022, an IJ denied his applications for relief on September 7, 2022 and ordered him removed to Mexico. Petition ¶ 37, 38, Ex. M. Petitioner appealed the decision to the BIA, which affirmed the IJ decision and dismissed the appeal on February 14, 2023. Petition ¶ 41, Ex. O. Petitioner filed a petition for review of the BIA's decision with the Ninth Circuit Court of Appeals and moved the court to stay his removal. Petition ¶ 42, Exs. P, Q. The Ninth Circuit issued a temporary stay of removal on February 23, 2023. Petition Ex. Q. The briefing on the appeal is due to be completed in midSeptember. Ugarte Decl. ¶ 31.
As noted, Petitioner is confined at Golden State Annex (“Golden State”), which is in McFarland, California. [Docket No. 13-1 (Gonzalez Decl. June 7, 2023) ¶ 4.] Golden State is managed by The GEO Group, Inc. (“GEO”), an independent contractor. The warden, known as the “Facility Administrator,” is a GEO employee based in McFarland. Id. McFarland is in Kern County, which is in the Eastern District of California. [See Docket No. 13 (Return to Petition, “Return”) 3.]
DHS Acting Assistant Field Office Director Nancy Gonzalez is based in Bakersfield, California. She is assigned to the Bakersfield Sub-Office within ICE's Enforcement and Removal Operations, San Francisco Field Office. The Bakersfield Sub-Office is responsible for oversight of noncitizens detained at Golden State. Gonzalez Decl. ¶ 1. Gonzalez states that she supports the Deputy Field Office Director and Field Office Director “in managing operations and procedures of enforcement and removal activity” throughout her area of responsibility, which includes “providing oversight and supervision of Supervisory Detention and Deportation Officers and their staff who maintain the docket management of ICE detainees at Golden State.” Id. According to Gonzalez, she and her staff “directly liaise with the Golden State Facility Administrator and other GEO personnel regarding the detainees at Golden State.” Id. at ¶ 5.
Gonzalez's direct line supervisor, Deputy Field Office Director Orestes Cruz, is based in Bakersfield. Id. at ¶ 6. Cruz is responsible for ICE immigration enforcement operations within nine counties, including Kern County. Cruz directly reports to Respondent Moises Becerra, Field Office Director (“FOD”) of the “San Francisco Area of Responsibility,” which encompasses offices in seven cities in California, as well as Hawaii, Guam, and the Northern Mariana Islands. Id. at ¶¶ 6-8. Gonzalez states that Becerra is responsible for the management and direction of all enforcement and removal operations and law enforcement operations within the boundaries of the San Francisco Area of Responsibility. Id. at ¶ 8.
On May 16, 2023, Petitioner filed a petition for writ of habeas corpus in which he asks the court to order his release from custody within 14 days unless Respondents schedule a bond hearing before an IJ at which the government must “justify his continued detention by clear and convincing evidence.” Petition ¶ 2. The petition asserts a single claim for relief: that his prolonged detention without a hearing violates the Fifth Amendment's Due Process Clause.
Petitioner filed his habeas petition pursuant to 28 U.S.C. § 2241 which allows “the Supreme Court, any justice thereof, the district courts and any circuit judge” to grant writs of habeas corpus “within their respective jurisdictions.” 28 U.S.C. § 2241(a). A district court may grant a writ of habeas corpus when the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Here, Petitioner asserts that his continued detention violates his due process rights under the Fifth Amendment of the United States Constitution and does not ask this court to defer removal. See Petition ¶¶ 2, 4, 46-60; Petition 20-22. The Ninth Circuit has held that “district courts retain jurisdiction under 28 U.S.C. § 2241 to consider habeas challenges to immigration detention that are sufficiently independent of the merits of [a] removal order[.]” Lopez-Marroquin v. Barr, 955 F.3d 759 (9th Cir. 2020) (citing Singh v. Holder, 638 F.3d 1196, 1211-12 (9th Cir. 2011)). Therefore, the court has subject matter jurisdiction pursuant to Section 2241. ...
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