Ramos v. Sessions, Case No. 18–cv–00413–JST

• Decision Date: 13 March 2018
• Docket Number: Case No. 18–cv–00413–JST
• Citation: 293 F.Supp.3d 1021
• Parties: Floricel Liborio RAMOS, Petitioner, v. Jefferson B. SESSIONS, et al., Respondents.
• Court: U.S. District Court — Northern District of California

293 F.Supp.3d 1021

Floricel Liborio RAMOS, Petitioner,

v.Jefferson B. SESSIONS, et al., Respondents.

Case No. 18–cv–00413–JST

United States District Court, N.D. California.

Signed March 13, 2018

Jehan Marie Laner, Pangea Legal Services, San Francisco, CA, for Petitioner.

Robin Michael Wall, United States Attorney's Office Northern District of California, San Francisco, CA, for Respondents.

JON S. TIGAR, United States District Judge

ORDER GRANTING MOTION TO ENFORCE PRIOR ORDER

Re: ECF Nos. 20, 22

Before the Court are Petitioner Floricel Liborio Ramos's motions for a temporary restraining order ("TRO") and to enforce this Court's prior judgment. ECF Nos. 20, 22. The court will grant the motion to enforce and order Respondents to release Liborio Ramos immediately under appropriate conditions of supervision.

I. BACKGROUND

Floricel Liborio Ramos came to the United States when she was 18 years old, and she has now been here for twenty years. She has three minor children, ages 11, 13, and 17, all of whom are United States citizens. ECF No. 7 at 6–7. Her youngest child has special needs. Id. In 2012, Liborio Ramos became a single mother, and worked two full-time jobs while caring for her children, including making sure her daughter received necessary special education and therapy. Id. at 7.

Liborio Ramos began drinking beer at night to deal with her stress, and she eventually became addicted to alcohol. In November 2015, she pleaded guilty to misdemeanor driving under the influence and hit-and-run. She was sentenced to probation, community service, and a nine month, video-based DUI education program. Approximately a year later, in November 2016, Liborio Ramos again drove under the influence and pleaded guilty to misdemeanor DUI and driving with a suspended license. She was sentenced to community service and DUI education. Id. at 8; ECF No. 15–1 at 37. The DUI education program she was required to attend was significantly more rigorous and effective than her first set of video classes. Unlike the first program, it included individual counseling and group therapy. Liborio Ramos further committed to rehabilitation by regularly attending church and involving herself in the church community, quitting her restaurant job and finding a new job where she would not be around alcohol, and remaining sober. ECF No. 7 at 8–9.

In March 2017, immigration authorities detained Liborio Ramos, and found that she had a reasonable fear of returning to Mexico where members of the Zetas gang had threatened to kill her and did kill members of her family on the basis of their indigenous identity. Id. at 9–10. She was placed in withholding-only proceedings, due to a removal order she received at the border in 2003. See 8 U.S.C. § 1231(a)(5). At her merits hearing before an IJ, currently scheduled for March 14, 2018, she will seek relief in the form of withholding of removal on the basis of this reasonable fear. Id.

An IJ held a bond hearing for Liborio Ramos on November 29, 2017, more than eight months after she was detained. ECF No. 7 at 11. The IJ denied Liborio Ramos's release on bond, concluding that she was a flight risk and a danger to the community, and that no amount of bond could secure her release. ECF No. 8–1 at 20. Liborio Ramos then petitioned this Court for habeas corpus relief and moved for a temporary restraining order. ECF Nos. 1, 6. The Court granted in part Liborio Ramos's habeas petition, reasoning that the IJ deprived Liborio Ramos of due process when she failed to hold the government to its burden to show by clear and convincing evidence that Liborio Ramos was a flight risk or a danger to society. ECF No. 19 ("February 15 Order"). The Court ordered the Government to release Liborio Ramos unless it held an additional bond hearing at which the Government demonstrated dangerousness or flight risk by clear and convincing evidence. Id.

On February 22, 2018, the IJ conducted a second bond hearing. The IJ incorporated the evidence she had already received by reference; considered two pieces of additional documentary "evidence", her first bond memorandum and the February 15 Order; and took approximately one additional hour of testimony by Liborio Ramos. ECF No. 20–2 at 4. On March 2, 2018, the IJ issued a second bond memorandum denying bond. Id. In her second memorandum, the IJ recounted the details of Liborio Ramos's two DUIs as well as her rehabilitation efforts.

The IJ noted that Liborio Ramos first completed a nine month DUI program, then committed a second DUI, and then began a more effective DUI program which "involved hearing people share their stories in group discussion setting." Id. at 5. However, Liborio Ramos completed only two hours and thirty minutes of her second DUI program, which the IJ found to be "meager in comparison to [Liborio Ramos's] conduct particularly in light of the fact that she had scarcely completed an entire 9–month–long DUI offender program before reoffending." Id. at 7. She acknowledged that Liborio Ramos was picked up by ICE only a month into her second DUI program, but nonetheless held Liborio Ramos's lack of continued participation against her. Id. The IJ concluded that Liborio Ramos's "testimony that she has changed and will never drink again is not worthy of belief" given the short term of her second DUI counseling and the "evidence of dangerous, recidivist drunk driving." Id. at 8. The IJ noted that Liborio Ramos presented only one witness, her DUI counselor Elizabeth Diaz, who "was unavailable for testimony when phoned by the Court," and "declined to present testimony from any other witnesses or individuals." Id. at 7. After "thoroughly consider[ing the] documentary evidence and testimony" the IJ concluded that the Government "met its burden of demonstrating by clear and convincing evidence that [Liborio Ramos] poses a danger to the community." Id. Finally, the IJ "considered whether there is any condition of release that would ensure the public safety," but concluded there was not because Liborio Ramos "has little regard for the law," given that she was on probation at the time of her second DUI. Id. at 9.

Unlike in her first order, the IJ did not analyze whether Liborio Ramos was a flight risk, id., and the Government no longer justifies Liborio Ramos's detention on this ground.

II. JURISDICTION

The Court earlier concluded that it had jurisdiction over Liborio Ramos's habeas petition, ECF No. 19, and now reaches the same conclusion. This Court "has habeas jurisdiction under 28 U.S.C. § 2241 to review [ ] bond hearing determinations for constitutional claims and legal error." Singh v. Holder, 638 F.3d 1196, 1200–01 (9th Cir. 2011). "[A]lthough the Attorney General's discretionary judgment...shall not be subject to review, claims that the discretionary process itself was constitutionally flawed are cognizable...." Id. at 1202 (citations omitted). This Court therefore has jurisdiction to review Liborio Ramos's claim that her bond hearing, to which she was entitled under Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) as an immigrant detained for over six months under 8 U.S.C. § 1231(a)(6), was legally erroneous and unconstitutional. See Sales v. Johnson, No. 16–CV–01745–EDL, ECF No. 17 at 8 (N.D. Cal. April 27, 2017); Obregon v. Sessions, No. 17-CV-01463-WHO, 2017 WL 1407889, at *4 (N.D. Cal. Apr. 20, 2017) ; Castaneda v. Aitken, No. 15-CV-01635-MEJ, 2015 WL 3882755, at *7–8 (N.D. Cal. June 23, 2015) ; Espinoza v. Aitken, No. 5:13-CV-00512 EJD, 2013 WL 1087492, at *3 (N.D. Cal. Mar. 13, 2013).

The Government calls the Court's jurisdiction into question. It notes that shortly after the Court issued its prior order, but before the IJ issued her second bond memorandum, the Supreme Court ruled that immigrants detained under different statutory provisions, 8 U.S.C. §§ 1225(b)(1), 1225(b)(2), and 1226(c), are not entitled to bond hearings at six month intervals.

Jennings v. Rodriguez, ––– U.S. ––––, 138 S.Ct. 830, 836, 200 L.Ed.2d 122 (2018). In her second bond memorandum, the IJ looked to Jennings in concluding that she "no longer has jurisdiction to conduct custody redetermination hearings for individuals...who are...detained pursuant to INA § 241(a) [ 8 U.S.C. § 1231(a) ]." ECF No. 20–2 at 6. The IJ reasoned that Rodriguez v. Robbins, 804 F.3d 1060, 1139 (9th Cir. 2015), which provided bond hearings for individuals detained under sections 1225(b)(1), 1225(b)(2), 1226(c), and Diouf, 634 F.3d at 1085, which provides bond hearings for individuals like Liborio Ramos detained under section 1231(a)(6), both applied the canon of constitutional avoidance. Id. Because the Supreme Court reversed Rodriguez"on the grounds that the Ninth Circuit misapplied the canon of constitutional avoidance," the IJ reasoned that Diouf"too is no longer a reliable source of jurisdiction." Id. ¹

Contrary to the Government's assertion and the IJ's conclusion, Jennings neither prevents an IJ from conducting a bond hearing for immigrants detained under section 1231(a)(6) nor deprives this Court of jurisdiction to review the constitutionality of that bond determination. First, Jennings affirmed that 8 U.S.C. § 1252(b)(9) is not a jurisdictional bar to this Court hearing habeas cases challenging the denial of bond. Section 1252(b)(9) bars judicial review of final orders of removal. 8 U.S.C. § 1252(b)(9). However, Jennings confirmed that habeas bond petitions are "not challenging the decision to detain [immigrants] in the first place or to seek removal," and accordingly the Court has jurisdiction to review this case. Jennings, 138 S.Ct. at 841.

Second, Jennings reversed the Ninth Circuit's holding in Rodriguez that immigrants detained under sections 1225(b)(1), 1225(b)(2), and 1226(c) were entitled to a bond hearing every six months, but left untouched the Ninth Circuit's requirement of such hearings for immigrants detained under section 1231(a)(6). 138 S.Ct. at 836. An immigrant's detention is authorized under two different...