United States District Court, N.D. California
ORDER REGARDING TEMPORARY RESTRAINING ORDER
William H. Orrick United States District Judge
case presents an important issue for the periodic bond
hearings required by Rodriguez v. Robbins, 804 F.3d
1060 (9th Cir. 2015) for immigration detainees-under what
circumstances does an Immigration Judge commit constitutional
error by continuing to detain a non-citizen an additional six
months for “dangerousness?” I cannot reach that
decision here because the record is incomplete: petitioner
Yazmin Liliana Elias Obregon chose to cut short her November
10, 2016 Rodriguez hearing and not to emphasize
prior to the hearing's termination that she has a release
plan that addresses her alcoholism and rebuts the
government's showing that she is currently dangerous
because of her previous convictions for DUI and driving
without a license. The motion for a temporary restraining
order is DENIED. In light of the significant liberty interest
at stake and the reason periodic bond hearings are required
by the Constitution, I write to emphasize the burden ICE has
to keep a non-citizen for prolonged periods and the potential
strength of this petitioner's case.
is currently in the custody of the Department of Homeland
Security (“DHS”) pending civil removal
proceedings against her in San Francisco Immigration Court.
She seeks a writ of habeas corpus to secure her release,
arguing that at a November, 2016 bond hearing DHS failed to
present clear and convincing evidence that she poses a
present danger to justify her continued detention, in
violation of Singh v. Holder, 638 F.3d 1196 (9th
Cir. 2008), Rodriguez, and the Fifth Amendment's
Due Process Clause. First Amended Petition
(“FAP”) (Dkt. No. 14). She contends that, as a
matter of law, DHS failed to show by clear and convincing
evidence that she poses a danger to the community and that
the Immigration Judge's (“IJ”) decision that
she poses a present danger was legally erroneous. She also
argues that the Immigration Court denied her due process by
making her choose between postponing her bond hearing by a
month before she could finish presenting evidence in her
favor and receiving an immediate bond determination from the
court. She has moved for a temporary restraining order to
secure her immediate release. Dkt. No. 9.
government opposes the motion, arguing that petitioner cannot
demonstrate that the IJ's decision was legally erroneous
and that this court does not otherwise have jurisdiction to
review the IJ's discretionary decision. It further
contends that the IJ did not deny petitioner due process by
giving her the option to receive an immediate bond
determination or to continue her bond hearing by a month at
which time she would be able to finish presenting evidence in
support of her release. Finally, it argues that even if
petitioner is entitled to some relief, she should not be
released, as the proper relief for an inadequate
Rodriguez hearing is a new hearing. I heard argument
on petitioner's motion for a temporary restraining order
on April 3, 2017.
is a 34-year old Mexican national who was brought to the
United States at the age of four. FAP ¶15. She has lived
in the United States for over 30 years and has three U.S.
citizen children, whose ages are 17, 14, and 13 years old.
is a victim of significant domestic abuse. She developed
substance abuse problems as a result. Id. ¶16.
The father of her three children, Mr. Garcia, raped her, beat
her, and forced her to take methamphetamine in the hopes of
causing a miscarriage. Id. As a result of this
abuse, she developed an addiction to meth and was eventually
arrested and convicted of possession of methamphetamine in
2005. Id. Following this conviction, she completed a
100-day residential drug treatment program and was able to
overcome her addiction. Id. She has had no further
problems with methamphetamine since completing the program.
petitioner was able eventually to escape the abusive
relationship with Mr. Garcia, she entered a second abusive
relationship with Mr. De Leon. Id. ¶17. Mr. De
Leon was an alcoholic and was also physically violent with
her. Id. She coped with Mr. De Leon's abuse by
self-medicating with alcohol. Id. And she drove
under the influence as a result. Id.
received her first DUI in 2006: she was pulled over by police
for making a wrong turn and was cited, but not arrested, for
a DUI. Id. ¶18. She was pulled over again in
2009: on this occasion she was cited with a DUI, arrested,
and spent two days in jail. Id. Following her 2009
arrest she was ordered to attend DUI classes, which cost $300
per month. Id. ¶19. While she was still
attending the DUI classes, petitioner suffered a serious
beating from Mr. De Leon. Id. As a result of this
beating, petitioner was bedridden for a week - she missed her
DUI class, lost her job, making her unable to continue paying
for the classes, and stopped going. Id. In 2011
petitioner was arrested for violating her probation by
failing to complete her DUI classes. Id. ¶20.
She was placed in ICE custody and remained in detention for a
week before being released on $7, 000 bond.
addition to petitioner's DUI convictions, between 2006
and 2011 she also received approximately four convictions for
driving without a license. See Pet. Ex. X at 66.
Despite getting a driver's permit at the age of 17, she
never took the driver test and never acquired a valid
license. Id. She was cited for driving with a
suspended license in 2006, 2009, 2010, and 2011. Id.
her release from custody in 2011, petitioner left Mr. De
Leon, stopped drinking alcohol for a year and focused on
providing for her children. Id. In 2014 she began a
relationship with her current partner, Mr. Aguilar.
Id. ¶21. Mr. Aguilar does not drink and is not
physically or emotionally abusive toward her. Id.
October of 2015, petitioner went to a birthday party for her
sister. She had a few drinks. Id. ¶22. Mr.
Aguilar drove her to and from the birthday party.
Id. But after they got home, instead of parking Mr.
Aguilar left the car double-parked and walked down the street
to get tacos. Id. Petitioner became impatient, slid
into the driver's seat, and honked the horn to get Mr.
Aguilar's attention. Id. This got the attention
of police officers instead, who came by to investigate the
excessive honking. Id.
the police arrived, petitioner attempted to park the car so
that it was not in the middle of the road. Id. The
police cited her for a DUI and for driving without a license,
but did not arrest her. Id. A criminal judge
determined that petitioner was not a danger to the community
and allowed her to enter a rehabilitation program designed
for survivors of domestic abuse at Athena House. Id.
¶23. Petitioner completed the 3-month program in
February, 2016 and then returned home to live with Mr.
Aguilar. Id. ¶24.
condition of her probation, petitioner was required to take
daily drug and alcohol tests. Id. A week after her
release from the Athena House, petitioner's daily test
came back inconclusive because she had consumed too much
water beforehand. Id. This inconclusive test
constituted a violation of her probation and she was arrested
for two days. Id. She went before a criminal judge
on February 26, 2016, who indicated she would be released to
continue her outpatient rehabilitation. But instead, she was
taken into ICE custody, where she remains today. Id.
result of the Ninth Circuit's decision in
Rodriguez, individuals in extended civil immigration
detention are entitled to receive a bond hearing every six
months at which DHS has the burden to show by clear and
convincing evidence that continued detention is appropriate
either because the individual is a flight risk or poses a
danger to the community. Petitioner received her
Rodriguez bond hearing on September 8, 2016. Bond
was denied. Pet. Ex. X. She moved for a new bond hearing on
the basis that her counsel at her initial bond hearing and
first Rodriguez hearing was incompetent. Her motion
hearing occurred on November 10, 2016. Id. It began
with DHS cross-examining petitioner to establish her
continuing dangerousness by proving her past convictions.
After the government rested, petitioner's testimony
started with the circumstances that led to her meth addiction
in 2005. It never reached the present or the reasons why less
restrictive alternatives are available and sufficient to
support of her release. While she planned to demonstrate her
rehabilitation and that she was no longer facing the abuse
that had contributed to her substance abuse problems, the
hearing was cut short. The IJ indicated that he ...