Perez v. Wolf

• Decision Date: 14 April 2020
• Docket Number: Case No. 5:19-cv-05191-EJD
• Court: U.S. District Court — Northern District of California
• Parties: Mario Alexander Ixchop PEREZ, Petitioner, v. Chad F. WOLF, et al., Respondents.

445 F.Supp.3d 275

Mario Alexander Ixchop PEREZ, Petitioner,

v.Chad F. WOLF, et al., Respondents.

Case No. 5:19-cv-05191-EJD

United States District Court, N.D. California, San Jose Division.

Signed April 14, 2020

Genna Ellis Beier, Jennifer Taylor Friedman, San Francisco Office of the Public Defender, San Francisco, CA, for Petitioner.

Pamela T. Johann, United States Attorney's Office, San Francisco, CA, for Respondents.

ORDER DENYING PETITIONER'S MOTION TO ENFORCE THE COURT'S EARLIER ORDER; GRANTING IN PART PETITIONER'S MOTION FOR A TEMPORARY RESTRAINING ORDER

Re: Dkt. No. 15

EDWARD J. DAVILA, United States District Judge

Petitioner Mario Alexander Ixchop Perez, a noncitizen, has been detained by the U.S. Government since January 23, 2018. On January 23, 2020, this Court granted Petitioner's petition for a writ of habeas corpus and ordered Respondents ("the Government") to (1) present Petitioner for an individual bond hearing and (2) at the hearing, prove by clear and convincing evidence that Petitioner's continued detention is justified. Petitioner received the ordered bond hearing. The Immigration Judge ("IJ") determined that Petitioner's continued detention is justified. Petitioner now argues that the IJ failed to comply with this Court's writ of habeas corpus. Accordingly, Petitioner has filed two motions: in one he seeks an order to enforce this Court's prior writ of habeas corpus and, in the other, he seeks a temporary restraining order ("TRO"). Having considered the Parties’ papers, the Court DENIES Petitioner's request to enforce the Court's earlier order but GRANTS in part Petitioner's request for a temporary restraining order.¹

I. BACKGROUND

A. Factual Background

Petitioner is a 38-year-old citizen of Guatemala. Order Granting Writ of Habeas Corpus ("Writ") at 1, Dkt. 13. He entered the United States without being inspected, admitted or paroled. Id. He has primarily lived in San Francisco since 1996. Id. In 2014, he married a U.S. citizen; they have three young children. Id. at 2.

Petitioner has a criminal record stemming from alcohol abuse. Between 2009 and 2015, he was arrested and convicted of driving under the influence ("DUI") five times. Id. ; see also Department's Submission of Evidence for Bond Hearing ("Govt. Record") at ECF 20–27, Dkt. 15-2. His first four DUI convictions were misdemeanor offenses; his final DUI conviction was a felony offense. Petitioner's criminal history is as follows:

• Petitioner was first convicted of DUI on September 9, 2009. See Govt. Record at ECF 22. According to the criminal complaint, on August 8, 2009, Petitioner was arrested for driving with a blood-alcohol content of .24%, which is three times the legal limit. Id. at ECF 29, 32. He was sentenced to 7 days in jail and 3 years of probation. Id. at ECF 29.

• Three months later, on December 17, 2009, Petitioner was again convicted of DUI. Id. at ECF 23. According to the criminal complaint, on September 7, 2009 (which was two days before his first conviction and less than a month after his first DUI arrest), Petitioner was arrested for driving with a blood-alcohol content of .08% or above. Id. at ECF 33. The traffic citation also indicates that he was going approximately 92 miles-per-hour in a 65 miles-per-hour zone. Id. at ECF 36. He was sentenced to 45 days in jail and 3 years of probation. Id. at ECF 23.

• Petitioner did a program for his first two DUIs at the Dry Zone at Mission Council. Declaration of Mario Ixchop Perez ("Perez Decl.") ¶ 10, Dkt. 15-5. There, he completed all but one of the 18 months of classes. Id.

• Even after completing the Dry Zone program, three years later, on June 5, 2012, Petitioner was convicted of his third DUI. Govt. Record at ECF 24. According to the criminal complaint, on April 22, 2012, Petitioner was arrested for driving with a blood-alcohol content of .08% or above. Id. at ECF 44. He was sentenced to 364 days in jail, all but 15 days suspended, and 3 years of probation. Id. at ECF 24.

• Two years later, on August 14, 2014, Petitioner was convicted of his fourth DUI. Id. at ECF 24–25. According to the criminal complaint, on December 29, 2013, Petitioner was arrested for driving with a blood-alcohol content of .08% or above. Id. at ECF 47. The police report indicates that Petitioner's wife, Ms. Alexandra Avila, was in the car. See Ex, C. at ECF 3, Dkt. 15-4. The report reflects that Petitioner's blood-alcohol content was .13%. Id. at ECF 11. Petitioner was sentenced to 20 days in jail and 3 years of probation. Govt. Record at ECF 25.

• Finally, on June 15, 2016, Petitioner was convicted of his fifth DUI. Id. at ECF 25. According to the criminal complaint, on October 18, 2015, Petitioner was arrested for driving with a blood-alcohol content of .08% or above. Id. at ECF 49. He was sentenced to 1 year in jail, all but 196 days suspended, and 5 years of probation. Id. at ECF 26.

Petitioner contends that he has been sober since his 2015 arrest. Writ at 2; see also Perez Decl. ¶ 17. On May 17, 2016,² Petitioner was released from jail following his felony-DUI conviction. Perez Decl. ¶ 17. Following his release, Petitioner again enrolled in the Dry Zone DUI Program at the Mission Council on Alcohol Abuse. Id. ¶ 18. The director of the program represented in a letter dated February 20, 2018, that Petitioner's progress and prognosis were both "good" and that he had a tentative discharge date of January 23, 2019. Writ Order at 2.

Following Petitioner's fourth DUI, in April 2014, Immigration and Customs Enforcement ("ICE") arrested Petitioner and began removal proceedings. Id. Petitioner was released that same day on a $1,500 bond. Id. Following his fifth DUI, on January 23, 2018, ICE officers arrested Petitioner after they determined that he had violated the conditions of his release on bond and that he posed a danger to the public. Id. Pursuant to 8 U.S.C. § 1226(a), Petitioner has remained in custody. He was initially detained at the West Contra Costa County Jail in Richmond, California. While there, he graduated from Phases I & II of the Deciding, Educating, Understanding, Counseling, and Evaluation ("DEUCE") substance abuse program. Perez Decl. ¶ 27. He also participated in the Men and Woman of Purpose self-help rehabilitation service. Writ Order at 2. Subsequently, he was transferred to Denver Contract Detention Facility in Aurora, Colorado. Before the transfer, he was only one class session short of graduating from the third and final phase of DEUCE. Writ Order at 2; Perez Decl. ¶ 27.

B. Procedural History

On January 29, 2018, Petitioner appeared for a bond hearing pursuant to 8 U.S.C. § 1226(a). The IJ issued an order that, in relevant part, placed the burden on Petitioner to show that he is neither a danger to the community nor a flight risk.³ On January 23, 2020, the Court held that this violated Due Process and granted Petitioner's habeas corpus petition. See Writ at 7–10. The Court ordered the Government to present Petitioner for another individual bond hearing and instructed the Government that at this bond hearing, it would bear the burden of proving by clear and convincing evidence that Petitioner's continued detention is justified. Id. at 11.

On January 31, 2020, the Immigration Court held a custody redetermination hearing. See Decision of the Immigration Judge ("IJ Decision") at ECF 2, Dkt. 15-7. The Government submitted evidence about Petitioner's past five DUI's, his arrest records, and prior bond-hearing history. It also submitted several studies relating to driving under the influence, which indicate that less than 1% of DUI offenses are even detected and that persons who drive under the influence have a high rate of reoffending.

Petitioner submitted evidence supporting his release on bond. He filed documents that included a declaration from himself, a declaration from his wife, their marriage certificate, his children's birth certificates, proof of residence and financial hardship to his wife, additional letters of support from friends and family, a Criminal History Chart, a Notice to Obligor to Deliver Alien, a Psychological evaluation by Dr. Salvador-Moses, a letter from Mission Council on Alcohol Abuse, a Letter from Petitioner's probation officer, proof of participation in DEUCE, proof of participation in Men and Women of Purpose, proof of participation in educational programing in ICE detention, and letter of acceptance for Secure Continuous Remote Alcohol Monitor ("SCRAM") and related materials. The psychological evaluation by Dr. Salvador-Moses indicates that Petitioner has a low possibility of reoffending. Ex. I ("Salvador-Moses Report"), Dkt. 15-5. Petitioner also submitted a letter of acceptance to an outpatient program, family photos, additional letters of support, and a Bond Release Plan. The Release Plan was developed by licensed social worker Edith Castellon and concludes that outpatient treatment is appropriate and that Petitioner's strong commitment to sobriety shows that he is very likely to maintain his sobriety. See Ex. A, ("Castellon Letter"), Dkt. 15-6.

Subsequently, on February 2, 2020, the IJ issued a written decision denying Petitioner's request to be released on bond. See IJ Decision at 3. The IJ concluded, based on Petitioner's arrest record, that the Government has demonstrated by clear and convincing evidence that Petitioner poses a danger to the community. Id. Petitioner appealed to the Board of Immigration Appeals ("BIA"). Along with appealing to the BIA, Petitioner filed this action on the grounds that the IJ's order violates this Court's earlier writ of habeas corpus. Specifically, in Petitioner’ view, because a bond appeal takes "months to resolve," this Court should grant him equitable relief and either order the Government to (1) release him from ICE custody or (2) provide him another bond hearing. See Memorandum of Points and Authorities in Support of Motion to Enforce Prior Order and Motion for Temporary Restraining Order ("TRO Mot."), Dkt. 16....