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Obregon v. Sessions

United States District Court, N.D. California

April 20, 2017

YAZMIN LILIANA ELIAS OBREGON, Petitioner,
v.
JEFFERSON B. SESSIONS, et al., Respondents.

          ORDER REGARDING TEMPORARY RESTRAINING ORDER

          William H. Orrick United States District Judge

         INTRODUCTION

         This 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.

         PROCEDURAL BACKGROUND

         Petitioner 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.

         The 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.

         FACTUAL BACKGROUND

         Petitioner 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. Id.

         Petitioner 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. Id.

         Although 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.

         Petitioner 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.

         In 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. at 66-72.

         Following 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.

         In 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.

         When 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.

         As a 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. ¶25.

         As a 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 was granted.

         The new 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 ...


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