United States District Court, C.D. California
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE
MICHAEL W. FITZGERALD, UNITED STATES DISTRICT JUDGE
to 28 U.S.C. § 636, the Court has reviewed the Petition,
all the records and files herein, and the Amended Report and
Recommendation (“R&R”) of the United States
Magistrate Judge. After having made a de novo
determination of the portions of the Amended Report and
Recommendation to which Objections were directed, the Court
concurs with and ACCEPTS the findings and
conclusions of the Magistrate Judge.
R&R discussed, the Court has habeas jurisdiction in this
“true habeas” action under § 2241 to review
claims of constitutional and legal error including
“claims that the discretionary process itself was
constitutionally flawed[.]” (R&R at 19-20 (quoting
Singh, 638 F.3d at 1202)); see also Ramos,
293 F.Supp.3d at 1028 (“The Ninth Circuit has made
clear that a district court retains jurisdiction . . . to
review legal and constitutional challenges to bond
determinations, which are not challenges to discretionary
assert that the Court should conduct only a “cursory
review” to determine whether the Immigration Judge
(“IJ”) applied the correct legal standard.
According to Respondents, because the IJ in Petitioner's
case identified the proper burden of proof and discussed
various bond factors, Petitioner failed to raise a colorable
constitutional or legal challenge to the IJ's decision to
deny bond. (Objections at 6-16). The Court disagrees.
R&R explains, the IJ's mere recitation of the
applicable legal standard is not enough when the IJ's
decision makes it clear - as it does in this case - that the
IJ did not actually apply the standard in his reasoning and
decision. (R&R at 29-30); Natural Res. Def. Council,
Inc. v. Pritzker, 828 F.3d 1125, 1135 (9th Cir. 2016);
Calderon-Rodriguez v. Wilcox, 374 F.Supp.3d 1024,
__, 2019 WL 486409, *8 (W.D. Wash. 2019); Ramos v.
Sessions, 293 F.Supp.3d 1021, 1030 (N.D. Cal. 2018);
see also Hechavarria v. Whitaker, 358 F.Supp.3d 227,
241 (W.D. N.Y. 2019) (“[T]he mere utterance of the
correct standard of proof early in the IJ's decision is
insufficient to demonstrate that it was applied when the rest
of that decision demonstrates otherwise.”). It is the
application of the clear-and-convincing standard, not its
recitation, that matters. See Singh v. Holder, 638
F.3d 1196, 1203 (9th Cir. 2011); Diouf v.
Napolitano, 634 F.3d 1081, 1092 (9th Cir. 2011)
IJ's bond decision actually reflects that he failed to
place the burden on the government to establish by clear and
convincing evidence that Petitioner was a flight risk or
danger to the community. Instead, among other things, the IJ
improperly minimized the government's burden, wrongly
held Petitioner's prolonged detention against her, and
failed to adequately consider alternatives to detention.
(R&R at 28- 41 & n.22); see Zadvydas v.
Davis, 533 U.S. 678, 701 (2001); Diouf II, 634
F.3d at 1091; Ramos, 293 F.Supp.3d at 1027.
criticize the R&R's citations to Ramos and
argue that the Court is engaging in improper consideration of
the IJ's factual findings. (Objections at 9-11). The
Court disagrees. Like Petitioner, Ramos was detained pursuant
to 8 U.S.C. § 1231(a)(6), which permits the release of
an alien subject to terms of supervision. (R&R at 26
n.8); Ramos, 293 F.Supp.3d at 1025. As in the
current case, the Ramos decision addressed a due
process challenge to an IJ's bond determination, not the
IJ's discretionary factual determinations. See
Ramos, 293 F.Supp.3d at 1025-38.
disagree with the R&R's conclusion that “the
IJ's finding that the length of Petitioner's
prolonged detention weighed against her release . . . is
clearly in conflict with the established standard, ”
(R&R at 39), arguing that “there is . . . nothing
in the text of 8 U.S.C. § 1231(a)(6) that hints that the
length of detention prior to a post-order bond hearing must
specifically be considered.” (Objections at 14-15).
However, as the R&R notes, even if Respondents are
correct, this contention does not mean that the IJ could hold
the length of Petitioner's detention against her, which
he did in this case in contravention of relevant law.
(R&R at 36 n.18).
also complain the R&R reflects disagreement with the
IJ's weighing of the facts, and “[e]ven if the
Court disagrees with the agency's weighing of the
factors, it can and should still conclude that the agency
applied the correct legal standard. . . .” (Objections
at 12-13). However, as discussed above and as detailed in the
R&R, while the IJ might have cited the correct legal
standard, he failed to apply it, and this failure constitutes
remaining objections are without merit for the reasons set
forth in the R&R.
IS ORDERED that Judgment shall be entered granting
the Petition and ordering Respondents to release Petitioner
on bond unless the agency provides Petitioner with a new bond
hearing before an immigration judge who will apply the
correct standard pursuant to controlling legal authority
within 30 days of the date of entry of Judgment in this
IS FURTHER ORDERED that the Clerk serve copies of
this Order and the Judgment herein on counsel for Petitioner
and on counsel for Respondents.