Hung Phi Pham v. Becerra
| Decision Date | 31 March 2023 |
| Docket Number | 23-cv-01288-CRB |
| Parties | HUNG PHI PHAM, Plaintiff, v. MOISES BECERRA, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
ORDER GRANTING TEMPORARY RESTRAINING ORDER
Seven years after Petitioner Hung Phi Pham (“Pham”) was released from jail following his first (and only) conviction-after he started a family, maintained a steady job, and applied for U.S. citizenship-the government has finally decided to detain and deport him. Respondents argue that, under the federal mandatory detention statute, 8 U.S.C § 1226(c), the government must detain Pham without a bond hearing until his removal. Pham brings a petition for a writ of habeas corpus and this motion for a temporary restraining order, arguing that due process entitles him to a bond hearing.
Because the Court has jurisdiction over Pham's petition and Pham is likely to succeed on the merits of his due process challenge, the Court GRANTS a temporary restraining order. The government is ordered to provide Pham with a bond hearing, at which the government will bear the burden of proof, within five days.
Pham was born in Vietnam and came to the United States on a nonimmigrant student visa in 2008. Pham Decl. (dkt. 1-1) ¶¶ 1-3. In 2010, Pham became a lawful permanent resident. Id. ¶ 5.
In February 2013, while a student at UC Santa Cruz, he went out with other students from the UC Santa Cruz Vietnamese Student Association in San Jose. Id. ¶ 8. After drinking and going to a nightclub, the group returned to a friend's house, where several individuals, including Pham, slept in the same bed. Id. During that night, Pham groped and digitally penetrated another member of the group without her consent. Id.; Palakiko Decl. Ex. D at DHS 23. When the victim confronted Pham about his actions, he confessed and apologized. Palakiko Decl. Ex. D at DHS 23. In March 2015, Pham was convicted in Santa Clara County Superior Court for violation of California Penal Code § 289(e) () and sentenced to 364 days in county jail. Id. at DHS 7. Pham served six months in jail and was released in August 2015. Id. ¶¶ 14-15.
Following his release, Pham completed three years of probation and registered as a sex offender in California. Id. ¶¶ 21-22. Due to his conviction, he was not able to work as a pharmacist, the career he had been going to school for; instead, he became a handyman and a construction worker. Id. ¶¶ 23, 29. He completed rehabilitation and alcohol abuse programs. Id. ¶¶ 18-19; Wille Decl. (dkt. 1-4) Exs. CC, DD, FF. In 2018, he met Han Nguyen Khanh Duong, a U.S. citizen, at her grandmother's birthday party. Pham Decl. ¶ 24; Duong Decl. (dkt. 1-2) ¶ 3. They married in January 2020, and in August 2020, they had their first child together. Pham Decl. ¶ 26.
In June 2021, Pham applied for U.S. citizenship. Pham Decl. ¶ 27. On his naturalization application, he disclosed his current address and his conviction. Id. ¶ 28; Wille Decl. Ex. A. In April 2022, Pham appeared at the USCIS office in Santa Clara for an interview in support of his naturalization application. Pham Decl. ¶ 28; Wille Decl. Ex. C. The USCIS officer informed Pham that a decision was still pending on his naturalization application. Pham Decl. ¶ 28.
On January 19, 2023, nine months after Pham's interview, more than a year and a half after he submitted his naturalization application, and seven years after his release from criminal custody, ICE officers arrived at Pham's home and detained him. Id. ¶ 30; Palakiko Decl. ¶ 10. Duong, who answered the door, was nine months pregnant. Pham Decl. ¶ 30; Duong Decl. ¶ 10. Pham and Duong's second child was born while Pham remained in ICE detention, and Pham has yet to meet him. Duong Decl. ¶ 11.
Pham was processed in San Jose and eventually moved to Golden State Annex, a private detention facility in McFarland, California, where he continues to be held. Pham Decl. ¶ 30; Ballout Decl. (dkt. 1-3) ¶ 5. Pham was denied the opportunity to post bond pending removal. Ballout Decl. ¶ 5. Soon thereafter, ICE served Pham with a Notice to Appear for Removal Proceedings. Palakiko Decl. ¶ 10. The Notice to Appear charges that Pham is deportable because his conviction under Cal. Penal Code § 289(e) is an aggravated felony under the INA. See 8 U.S.C. § 1101(a)(43)(A); see also 8 U.S.C. § 1227(a)(2)(A)(iii).
In January 2023, Pham asked the immigration judge (“IJ”) to release him from custody while he pursued relief from removal, based on his marriage to Duong, a U.S. citizen. Ballout Decl. ¶ 6. In February, the IJ determined that under 8 U.S.C. § 1226(c), Pham was not entitled to a bond hearing. Palakiko Decl. Ex. G. Pham appealed this determination. Id. ¶ 9. In February, Pham also denied the substantive charge of removability. Id. ¶ 11. On March 16, the IJ sustained the charge of removability against Pham, and Pham brought this petition and motion shortly thereafter. Id.
A TRO is an “extraordinary remedy” that should be awarded only upon a clear showing that the plaintiff (or in this case, the petitioner) is entitled to such relief. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). The party seeking a TRO must establish: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm absent preliminary relief; (3) that the balance of equities tips in the petitioner's favor; and (4) that an injunction is in the public interest. See id. at 20. Alternatively, the moving party must demonstrate that “serious questions going to the merits were raised,” that “the balance of hardships tips sharply in the [petitioner's] favor,” and that the other two Winter elements are satisfied. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). The “likelihood of success on the merits ‘is the most important' Winter factor.” Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)).
Pham brings an as-applied constitutional challenge to his continued detention under § 1226(c) without a bond hearing. Pet. (dkt. 1); Mot. (dkt. 4). The government makes two main arguments in response: First, that the Court does not have jurisdiction over Pham's petition, which should have been brought in the Eastern District; and second, that Pham is nonetheless not demonstrated a likelihood of success on the merits on his due process claim.
The government relies on Rumsfeld v. Padilla, 542 U.S. 426 (2004), and Ninth Circuit cases citing it with approval in the immigration context, see, e.g., Lopez-Marroquin v. Barr, 955 F.3d 759 (9th Cir. 2020), to argue that Pham should have followed the default “district-of-confinement” rule and filed his action in the Eastern District, and thus the Court lacks jurisdiction over his petition. Opp'n (dkt. 15) at 5-15. In line with the consensus of courts in this district that have addressed this precise issue,[1] the Court has jurisdiction and may grant relief pursuant to 28 U.S.C. § 2241.
In Padilla, the Supreme Court addressed whether the Southern District of New York had jurisdiction over a habeas petition brought by an enemy combatant detained on a naval brig in South Carolina. 542 U.S. at 432. Padilla named as respondents the president, the secretary of defense, and the commander of the naval brig where Padilla was being held. Id. The Court held that “in habeas challenges to present physical confinement-‘core challenges'-the default rule is that the proper respondent is the warden of the facility where the prisoner is being held.” Id. at 435.[2] Because “[d]istrict courts are limited to granting habeas relief ‘within their respective jurisdictions,' . . . jurisdiction over Padilla's habeas petition lies in the Southern District only if it has jurisdiction over” the commander of the naval brig where Padilla was being held, who “exercises day-to-day control over Padilla's physical custody.” Id. at 439, 442 (quoting 28 U.S.C. § 2241(a)). Because the proper respondent was in South Carolina, the Southern District of New York did not have jurisdiction over Padilla's petition. Id. at 446.
Critically, Padilla did not address the question, raised in this case, of which court has jurisdiction when the detainee is confined “in a facility run by an entity other than the federal government,” Saravia, 280 F.Supp.3d at 1185, and it is not at all clear that Padilla requires that the default district-of-confinement rule applies. The Ninth Circuit cases citing Padilla with approval in the immigration context also do not address this question. See, e.g., Lopez-Marroquin v. Barr, 955 F.3d 759, 759-60 (9th Cir. 2020) (); see also Ameen, 2022 WL 1157900, at *3 ().[3] Thus, there is no controlling authority on the jurisdictional question presented here.
Pham is being held at Golden State Annex, a private detention facility located in McFarland, California, which is in the Eastern District. The question of who is the “warden” of such a facility-and thus the correct respondent und...
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