Bent v. Barr

• Court: District Court, N.D. California
• Decided: April 6, 2020
• Docket: 4:19-cv-06123
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CLAUDE BENT, Case No. 19-cv-06123-DMR

8 Plaintiff, ORDER ON PETITION FOR WRIT OF 9 v. HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER 10 WILLIAM P. BARR, et al., Re: Dkt. Nos. 1, 5 11 Defendants.

12 Petitioner Claude Bent is a noncitizen from Jamaica who is currently in Immigration and 13 Customs Enforcement (“ICE”) custody pending the conclusion of his removal proceedings. On 14 September 26, 2019, Bent filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in 15 which he asks the court to order his release from custody or to direct the United States Department 16 of Justice Executive Office for Immigration Review (“EOIR”) to provide him with an individualized 17 custody hearing. [Docket No. 1 (“Petition”).] He also filed a motion for a temporary restraining 18 order (“TRO”) seeking to enjoin his continued detention without a custody hearing until the court 19 decides his habeas petition. [Docket No. 1-1 (“Mot.”).] The court held a hearing on November 14, 20 2019. Following the hearing, the court ordered additional briefing on Bent’s due process claim, 21 (Docket No. 16), which the parties filed. [Docket Nos. 17 (“Pet. Supp. Br.”), 18 (“Resp. Supp. 22 Br.”).] 23 Upon reviewing the parties’ briefs and hearing oral argument, the court denies Bent’s 24 petition. The motion for a TRO is denied as moot. 25 I. BACKGROUND Bent was born in Jamaica and is 58 years old. Petition ¶ 6. He came to the United States as 26 a lawful permanent resident at age 18. Id. In 2006, Bent was convicted of voluntary manslaughter 27 1 conviction involved an adult victim. Bent was sentenced to just over thirteen years for both offenses. 2 Id. ¶ 14. Upon serving his term of imprisonment, Bent was immediately detained by ICE. Id. 3 A. Removal Proceedings 4 On July 20, 2016, the DHS commenced removal proceedings, asserting that Bent’s 5 attempted murder conviction constituted an aggravated felony as defined under 8 U.S.C. §§ 6 1101(a)(43)(A), (U), and therefore subjected him to deportation. Petition ¶ 15. See 8 U.S.C. § 7 1226(c)(1)(B) (stating that noncitizens convicted of an aggravated felony are deportable). The 8 Immigration Judge (“IJ”) concluded that Bent was removable for committing an aggravated felony. 9 Bent appealed to the Board of Immigration Appeals (“BIA”), where he argued that he was not 10 deportable for the attempted murder conviction because California construes that crime more 11 broadly than the analogous crime listed in the Immigration and Nationality Act (“INA”), 8 U.S.C. 12 § 1101(a)(43)(A). See Bent v. Barr, 775 Fed. App’x 281, 282-3 (2019). The BIA rejected Bent’s 13 argument and held that he was removable because “the full range of conduct punishable as ‘murder’ under section 187(a) of the California Penal Code corresponds categorically to generic ‘murder’ 14 under [8 U.S.C. § 1101(a)(43)(A)].” Id. Bent appealed to the Ninth Circuit. 15 On appeal, the Ninth Circuit examined the “categorical approach,” which is used to 16 determine whether a state offense is comparable to an aggravated felony as listed in the INA. The 17 categorical approach looks to whether “the state statute defining the crime of conviction 18 categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” 19 Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citations and internal quotation marks omitted). 20 Because the relevant offenses “must be viewed in the abstract” based on a purely statutory reading, 21 the facts underlying the noncitizen’s actual conviction are irrelevant to the analysis. See id. In 22 Bent’s case, the Ninth Circuit determined that the BIA “did not consider whether generic INA 23 murder encompasses feticide, which is punishable conduct under California’s murder statute.” Bent, 24 775 Fed. App’x at 283. It remanded the case to BIA to consider whether attempted murder under 25 the INA includes feticide. Id. BIA issued a decision on November 19, 2019. [Docket No. 19, Ex. 26 1.] It found that section 187(a) is more broad than general murder under the INA, but that the statute 27 1 6. It also found that “murder of a human being” is a categorical match to generic murder under the 2 INA, which may support that Bent is removable based on his conviction for the murder of an adult. 3 Id. However, the BIA remanded the issue to the IJ because there were outstanding evidentiary 4 issues. Id. The final outcome of Bent’s removability proceedings therefore remains pending. 5 B. Requests for Bond Hearings 6 On February 1, 2017, Bent was denied bond. Maldonado Decl. ¶ 9. He requested a new 7 bond hearing, which was held on November 29, 2017. Id. ¶ 16. He was again denied bond. In a 8 written opinion dated January 5, 2018, the IJ found that “based on the evidence submitted, the 9 Department has demonstrated by clear and convincing evidence that [Bent] poses a danger to the 10 community and a flight risk.” Id. at ¶ 17, Ex. 1. In addition, the IJ found that, based in part on 11 Petitioner’s final administrative order of removal to Jamaica, “the Department has met its burden to 12 prove [Petitioner] would pose a flight risk if released.” Id. 13 Bent requested another bond hearing on June 26, 2019 based on materially changed circumstances. Petition ¶ 19. On June 27, 2019, the IJ denied the request. The IJ issued a 14 memorandum decision on August 14, 2019, which explained that Bent’s request for a bond hearing 15 was denied for two reasons. Mot., Ex. C. The IJ held that Bent was no longer eligible for a bond 16 hearing after the Supreme Court’s decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), because 17 Bent had failed to demonstrate that “the Court has jurisdiction over a subsequent custody 18 redetermination hearing.” See id. The IJ also found that Bent “failed to show materially changed 19 circumstances that would alter the Court’s previous findings,” and specifically stated that “the 20 change in the case’s posture [based on the Ninth Circuit remand] is not a circumstance that would 21 materially change the Court’s previous findings that [Petitioner] would pose a danger to society if 22 released.” Id. 23 At this time, Bent remains detained at the Mesa Verde ICE Processing Center. Maldonado 24 Decl. ¶ 27. 25 II. PETITION FOR WRIT OF HABEAS CORPUS 26 A. Administrative Exhaustion 27 1 exhausted his remedies before the BIA. Under 28 U.S.C. § 2241(c)(3), a federal district court is 2 authorized to grant a writ of habeas corpus when a petitioner is “in custody in violation of the 3 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The Ninth Circuit 4 “require[s], as a prudential matter, that habeas petitioners exhaust available judicial and 5 administrative remedies before seeking relief under § 2241.” Castro-Cortez v. I.N.S., 239 F.3d 6 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 7 U.S. 30 (2006); see also Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003) (holding that 8 a “petitioner must exhaust administrative remedies before raising the constitutional claims in a 9 habeas petition when those claims are reviewable by the BIA on appeal”). Courts may require 10 prudential exhaustion when: 11 (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement 12 would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own 13 mistakes and to preclude the need for judicial review. 14 Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (quoting Puga v. Chertoff, 488 F.3d 812, 15 815 (9th Cir. 2007) (citations omitted)). However, “even if the three Puga factors weigh in favor 16 of prudential exhaustion, a court may waive the prudential exhaustion requirement if ‘administrative 17 remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile 18 gesture, irreparable injury will result, or the administrative proceedings would be 19 void.’” Hernandez, 872 F.3d at 988 (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) 20 (citation and quotation marks omitted)). 21 In this case, Bent requested another bond hearing on June 26, 2019. The IJ denied the request 22 on June 27, 2019 and issued a memorandum decision on August 14, 2019. Petition ¶¶ 19-20; Mot., 23 Ex. C. Bent appealed that decision to the BIA in early July 2019.1 Bent represents that BIA appeals 24 “often take four months or more,” id. ¶ 20, and the associated delays will prevent efficacious relief. 25 Respondent represents that the appeal is “likely to be decided within a couple of months” and could 26 grant the same relief that Bent is requesting here. Opp. at 6. At the hearing, counsel for both parties 27 1 represented that the BIA decision on Bent’s bond request would likely be decided within six months; 2 however, they agreed that there were a “lot of variables” that may shorten or extend that time. 3 Currently, it has been approximately nine months since Bent filed an appeal regarding the 4 denial of his bail. Given that the BIA proceeding has already exceeded both parties’ estimation of 5 when a decision could be expected, and that there is nothing before the court that indicates a decision 6 will be shortly forthcoming, the court finds that Bent’s administrative remedies have been 7 inadequate. Therefore, waiver of prudential exhaustion is appropriate in this case. 8 B. Entitlement to a Bond Hearing 9 1. Legal Framework 10 The INA provides a “complex statutory framework of detention authority” codified at 8 11 U.S.C. §§ 1226 and 1231. Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). Where a 12 noncitizen falls within the statutory scheme “can affect whether his detention is mandatory or 13 discretionary, as well as the kind of review process available to him if he wishes to contest the necessity of his detention.” Id. Section 1226(a) provides the Attorney General with discretionary 14 authority to arrest and detain a noncitizen “pending a decision on whether the alien is to be removed 15 from the United States.” 8 U.S.C. § 1226(a); Prieto-Romero, 534 F.3d at 1057. A noncitizen 16 detained pursuant to section 1226(a) can appeal ICE’s initial custody determination to an 17 immigration judge, who is authorized to “release the alien, and determine the amount of bond, if 18 any, under which the respondent may be released.” 8 C.F.R. § 1236.1(d)(1); see also 8 C.F.R. § 19 1003.19(a) (granting immigration judges jurisdiction to review custody and bond determinations). 20 By contrast, section 1226(c) mandates detention for noncitizens who have committed certain 21 criminal offenses. 8 U.S.C. § 1226(c). A noncitizen subject to mandatory detention under section 22 1226(c) can only be released for witness protection purposes and if the noncitizen “will not pose a 23 danger to the safety of other persons or of property and is likely to appear for any scheduled 24 proceeding.” 8 U.S.C. § 1226(c)(2). 25 Since 2001, the Supreme Court and the Ninth Circuit have “grappled in piece-meal fashion 26 with whether the various immigration detention statutes may authorize indefinite or prolonged 27 1 Hayes (“Rodriguez I”), 591 F.3d 1105, 1114 (9th Cir. 2010). In Zadvydas v. Davis, 533 U.S. 678 2 (2001), the Supreme Court considered challenges to the prolonged detention of two noncitizens who 3 were being held in the post-90-day removal period pursuant to section 1231(a)(6). The government 4 had been unable to effectuate their removal because none of the available countries of removal were 5 willing to accept them. Id. at 684-86. The Court held that section 1231(a)(6), “read in light of the 6 Constitution’s demands, limits an alien’s post-removal period detention to a period reasonably 7 necessary to bring about that alien’s removal from the United States,” and “does not permit 8 indefinite detention.” Id. at 689. The Court found that “[a] statute permitting indefinite detention 9 of an alien would raise a serious constitutional problem,” given the Fifth Amendment’s Due Process 10 Clause, which “forbids the Government to depriv[e] any person . . . of . . . liberty . . . without due 11 process of law.” Id. at 690 (quotation omitted). Relying on the canon of constitutional avoidance, 12 the Court held that “once removal is no longer reasonably foreseeable, continued detention is no 13 longer authorized by statute.” Id. at 690, 699. Therefore, after a presumptively reasonable six- month period of post-removal period detention under section 1231(a)(6), a noncitizen is entitled to 14 release if he or she “provides good reason to believe that there is no significant likelihood of removal 15 in the reasonably foreseeable future.” Id. at 701, 121 S.Ct. 2491. 16 In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court held that mandatory detention 17 under section 1226(c) for the “brief period necessary” to complete removal proceedings is 18 “constitutionally permissible” under the Fifth Amendment. The Supreme Court cautioned, 19 however, that such detention has “a definite termination point” and typically “lasts roughly a month 20 and a half in the vast majority of cases in which it is invoked, and about five months in the minority 21 of cases in which the alien chooses to appeal.” Id. at 529–30. Demore accordingly concluded that 22 the six-month detention at issue constituted reasonable “temporary” confinement. Id. at 530–31. 23 Five years after Demore, the Ninth Circuit held that the “prolonged detention” of a 24 noncitizen under section 1226(a) “without adequate procedural protections,” such as access to a 25 bond hearing before an immigration judge, “would raise serious constitutional concerns.” Casas- 26 Castrillon v. Department of Homeland Security, 535 F.3d 942, 950 (9th Cir. 2008) (“Casas”). 27 1 1226(c) and 1226(a) sought habeas relief while his petition for review of his removal order was 2 pending. Id. at 945-48. Given the constitutional concerns, the Ninth Circuit construed section 3 1226(a) to require the government to provide a lawful permanent resident with “a neutral forum in 4 which to contest the necessity of his continued detention,” at which the government must establish 5 that the individual poses a flight risk or a danger to the community in order to justify continued 6 detention. Id. at 949, 951. In Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), the Ninth Circuit 7 clarified that, in bond hearings held under Casas (“Casas hearings”), “the government must prove 8 by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify 9 denial of bond.” Id. at 1203. 10 In 2015, the Ninth Circuit considered the procedural protections available to noncitizens 11 detained under 8 U.S.C. §§ 1225(b) and 1226(c). See Rodriguez v. Robbins (“Rodriguez III”), 804 12 F.3d 1060 (9th Cir. 2015), reversed by Jennings v. Rodriguez, 138 S.Ct. 830 (2018). In Rodriguez 13 III, a certified class of noncitizens challenged their prolonged detentions pursuant to 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a) without the provision of individualized bond hearings.2 804 14 F.3d at 1065. Following the entry of a preliminary injunction, which was affirmed on appeal, see 15 Rodriguez v. Robbins (“Rodriguez II”), 715 F.3d 1127 (9th Cir. 2013), the district court granted 16 summary judgment to the class and entered a permanent injunction requiring the government to 17 18 2 Section 1225(b) “applies to ‘applicants for admission’ who are stopped at the border or a port of 19 entry, or who are ‘present in the United States’ but ‘ha[ve] not been admitted.’” Rodriguez III, 804 F.3d at 1081 (quoting 8 U.S.C. § 1225(a)(1)). “The statute provides that asylum seekers ‘shall be 20 detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.’” Id. (quoting 8 U.S.C. § 1225(b)(1)(B)(iii)(IV)). As to all other such 21 applicants for admission, the statute provides for mandatory detention “if the examining immigration officer determines that [the individuals] seeking admission [are] not clearly and beyond 22 a doubt entitled to be admitted.” 8 U.S.C. § 1225(b)(2)(A).

23 As discussed above, 8 U.S.C. § 1226(c) “requires that the Attorney General detain any non-citizen who is inadmissible or deportable because of his criminal history upon that person’s release from 24 imprisonment, pending proceedings to remove him from the United States.” Rodriguez III, 804 F.3d at 1078, n.8. Detention under section 1226(c) is mandatory and individuals detained under that 25 section may be released only if the government deems it “necessary” for witness protection purposes. Id. at 1078 (citing 8 U.S.C. § 1226(c)(2)). 26

Section 1226(a) provides that a noncitizen “may be arrested and detained pending a decision on 27 whether the alien is to be removed from the United States.” Section 1231(a) governs detention of 1 provide a bond hearing to any class member subject to detention longer than six months. 804 F.3d 2 at 1065. The government was ordered to provide each detainee with a bond hearing by his or her 3 195th day of detention, with such hearings occurring automatically after notice. Id. at 1072. The 4 district court also required the government to prove by clear and convincing evidence that the 5 detainee was a flight risk or a danger to the community in order to justify the denial of bond. Id. at 6 1071. The district court declined to order other procedural requirements requested by the class. Id. 7 The government appealed from the entry of the permanent injunction, and the class cross-appealed 8 the district court’s order as to the procedural requirements for bond hearings. Id. at 1072-73. 9 The Ninth Circuit affirmed in part and reversed in part. In relevant part, the court affirmed 10 summary judgment and the entry of the permanent injunction as to the section 1226(c), 1225(b), and 11 1226(a) subclasses. Relying on the canon of constitutional avoidance, the court construed sections 12 1225(b) and 1226(c) as imposing a six-month time limit on detention, after which the government 13 may continue detention only under the authority of section 1226(a). Id. at 1079, 1082. The court re-affirmed its decision in Casas that a noncitizen “subjected to prolonged detention under § 1226(a) 14 is entitled to a hearing to establish whether continued detention is necessary because he would pose 15 a danger to the community or a flight risk upon release.” Id. at 1085 (citing Casas, 535 F.3d at 949- 16 52). The court thereby affirmed the district court’s permanent injunction requiring the government 17 to hold bond hearings every six months for noncitizens detained pursuant to sections 1226(c), 18 1225(b), and 1226(a). Id. at 1090. The court also affirmed the requirement that the government 19 “prove by clear and convincing evidence that an alien is a flight risk or a danger to the community 20 to justify denial of bond at a Casas hearing.” Id. at 1087 (quoting Rodriguez II, 715 F.3d at 1135 21 (quoting Singh, 638 F.3d at 1203)). 22 The Supreme Court reversed Rodriguez III in Jennings. The Court found that the Ninth 23 Circuit had misapplied the canon of constitutional avoidance as to sections 1225(b), 1226(c), and 24 1226(a), and determined that “its interpretations of the three provisions at issue . . . are implausible.” 25 138 S.Ct. at 842. As to section 1225(b), which “applies primarily to aliens seeking entry into the 26 United States,” the Court noted that the statute divides applicants into two categories: section 27 1 detained for further consideration of the application for asylum,” while section 1225(b)(2) provides 2 that noncitizens who fall within the scope of that provision “shall be detained for a [removal] 3 proceeding.” Id. (emphasis added) (quoting 8 U.S.C. §§ 1225(b)(1)(B)(ii), 1225(b)(2)(A)). The 4 Court found that “[r]ead most naturally, §§ 1225(b)(1) and (b)(2) mandate detention of applicants 5 for admission until certain proceedings have concluded.” Id. The Court rejected the argument that 6 those provisions contain an implicit six-month limit on the length of detention, observing that 7 “nothing in the statutory text imposes any limit on the length of detention” or “even hints that those 8 provisions restrict detention after six months.” Id. at 842, 843. As to the canon of constitutional 9 avoidance, the Court held that “[s]potting a constitutional issue does not give a court the authority 10 to rewrite a statute as it pleases . . . [i]nstead, the canon permits a court to ‘choos[e] between 11 competing plausible interpretations of a statutory text.’” Id. at 843. The Court concluded that 12 sections 1225(b)(1) are 1225(b)(1) are not ambiguous, and that “neither provision can reasonably 13 be read to limit detention to six months.” Id. at 843-844 (contrasting section 1225(b), which provides that noncitizens “shall be detained” for further proceedings, with section 1231(a)(6), which 14 provides that noncitizens “may be detained” after the completion of the removal period). 15 Similarly, the Court held that section 1226(c), which applies to noncitizens already present 16 in the United States, could not plausibly be construed to include an implicit six-month time limit on 17 the length of mandatory detention. Id. at 846-47. As to section 1226(a), the Court noted that 18 “[f]ederal regulations provide that aliens detained under § 1226(a) receive bond hearings at the 19 outset of detention.” Id. at 847. The Court held that “[n]othing in § 1226(a)’s text . . . supports the 20 imposition” of the procedural protections ordered by the Ninth Circuit—“namely, periodic bond 21 hearings every six months in which the Attorney General must prove by clear and convincing 22 evidence that the alien’s continued detention is necessary.” Id. 23 2. Discussion 24 Bent argues that he is eligible for a third bond hearing on three grounds: (1) that he is not 25 subject to mandatory detention under section 1226(c) because he has raised a “substantial argument” 26 against his removability; (2) that he is not subject to mandatory detention under Casas; and (3) that 27 1 hearing to challenge his prolonged detention.” Mot. at 15. The first two arguments are statutory 2 while the third is constitutional. 3 a. Statutory Arguments 4 Bent’s first two arguments address whether he is properly classified as subject to mandatory 5 detention under section 1226(c). If he is subject to mandatory detention, then he is not statutorily 6 eligible for a bond hearing because detention under that section may end prior to the conclusion of 7 removal proceedings only under certain conditions that are not at issue in this case. See Jennings, 8 138 S. Ct. at 847. If Bent is instead subject to discretionary detention under section 1226(a), then 9 he may request a subsequent bond hearing but must show “that [his] circumstances have changed 10 materially since the prior bond redetermination.” 8 C.F.R. § 1003.19(e). The court need not reach 11 the question of whether Bent is subject to discretionary rather than mandatory detention. This is 12 because even assuming (without deciding) that Bent is subject to discretionary detention under 13 section 1226(a), he has not shown that the IJ erred in denying him a new bond hearing. See Kharis v. Sessions, 2018 WL 5809432, *4 (N.D. Cal. November 6, 2018) (stating that a district court has 14 jurisdiction to review an IJ’s discretionary bond denial only “where that bond denial is challenged 15 as legally erroneous or unconstitutional”). 16 The record does not contain a written opinion from Bent’s initial bond hearing in February 17 2017. In the opinion following Bent’s second bond hearing in November 2017, the IJ denied bond 18 on two grounds: that Bent was a danger to society and that he was a flight risk. See Maldonado 19 Decl., Ex. 1 at 3-4. The majority of that opinion is dedicated to examining Bent’s criminal history. 20 See id. The IJ also found that Bent would pose a flight risk if he were released, given that he was 21 (1) under a final administrative order of removal; (2) he did not have a stable address, residence, or 22 ties to the community; and (3) he would not be motivated to report to immigration authorities. See 23 id. at 4. Bent does not argue that the IJ erred in denying his second bond request. In June 2019, 24 Bent requested a third bond hearing solely on the basis that his merits case had been remanded from 25 the Ninth Circuit to the BIA. In denying the request, the IJ concluded that Bent is not eligible for a 26 bond hearing after Jennings. Mot., Ex. C, at 1. She further concluded that he did not show a material 27 1 change in the case’s posture is not a circumstance that would materially change the Court’s previous 2 findings that the respondent would pose a danger to society if released.” Id. at 1. 3 Bent argues that IJ erred in finding that he was not eligible for a new bond hearing because 4 the Ninth Circuit remand of his merits case constitutes a change in material circumstance.3 He 5 argues that the remand is material to the IJ’s previous finding that he is a flight risk because that 6 determination rested in part on the basis that he was under a final order of removal. Reply at 12. 7 According to Bent, the change in the case’s procedural posture renders him a lower flight risk since 8 he is now more likely to succeed in his removal case and therefore less likely to avoid adjudication. 9 See id. However, even if Bent is correct that the remand of his merits case makes him a lower flight 10 risk, his argument does not address the IJ’s prior finding that he is a danger to society. Although an 11 IJ may weigh a “number of factors in determining whether a [detainee] merits release from bond,” 12 In Re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006), the IJ must “first determine[] that the [detainee] 13 does not present a danger to the community.” Matter of Urena, 25 I. & N. Dec. 140, 141 (BIA 2009). “Only if a [detainee] demonstrates that he does not pose a danger to the community should 14 an Immigration Judge continue to a determination regarding the extent of flight risk posed by the 15 alien.” Id. It follows that, where an IJ finds that a detainee is a danger to the community, the 16 detainee must show a change in material circumstance that is relevant to the danger assessment. See 17 Diaz Ortiz v. Smith, 384 F. Supp. 3d 140, 144 (D. Mass. 2019) (holding that an IJ’s “finding of 18 dangerousness renders irrelevant any complaints [the petitioner] raises about the immigration 19 judge’s consideration of his flight risk”). Bent has not articulated any reasons why the status of his 20 merits case is material to whether he is a danger to society. 21 Accordingly, even assuming without deciding that Bent is subject to discretionary detention 22 under section 1226(a), the IJ did not err in denying Bent’s request for a bond hearing because he 23 24 25 3 Bent also argues that the IJ incorrectly determined that he is ineligible for a bond hearing under 26 Jennings. According to Bent, that decision was based on the erroneous assumption that he is under mandatory detention pursuant to section 1226(c). Since the court assumes for the purposes of this 27 order that Bent is subject to discretionary detention under 1226(a), Bent’s argument on that point is 1 failed to show a material change in circumstance.4 2 b. Due Process Arguments 3 Jennings only entertained statutory challenges to the INA’s detention scheme and remanded 4 the question of whether prolonged detention without an individualized bond hearing violates the due 5 process clause of the Fifth Amendment. After Jennings, the Ninth Circuit stated its “grave doubts 6 that any statute that allows for arbitrary prolonged detention without any process is constitutional,” 7 but remanded the issue to the district court. Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018). 8 Accordingly, there remains “a dearth of guidance regarding the point at which an individual’s 9 continued mandatory detention under Section 1226(c) becomes unconstitutional.” Gonzalez v. 10 Bonnar, No. 18-cv-05321-JSC, 2019 WL 330906, at *3 (N.D. Cal. Jan. 25, 2019); see also 11 Rodriguez v. Nielsen, No. 18-cv-04187-TSH, 2019 U.S. Dist. LEXIS 4228, at *17 (N.D. Cal. Jan. 12 7, 2019) (“[A]s matters stand now, there is no controlling precedent for this Court to follow.”). 13 One court in this district has held that detainees are constitutionally entitled to individualized bond hearings after six months, at which point their detention has become prolonged. Rodriguez, 14 2019 U.S. Dist. LEXIS 4228, at *18. That decision noted that this Circuit’s primary decisions on 15 prolonged detention, including Casas, Tijani, and Diouf, “invoked the doctrine of constitutional 16 avoidance to imply a statutory right to a bond hearing—a statutory right that does not survive the 17 Supreme Court’s holding in Jennings—but their reasoning was constitutional in nature.” Id. 18 Rodriguez found that a bright-line six-month rule aligned with the reasoning of these cases as well 19 as the Supreme Court’s decisions in Zadvydas and Demore. See id. at *18-19. Other courts have 20 held that there is no bright-line rule for the duration at which detention becomes constitutionally 21 impermissible. See, e.g., Gonzalez, 2019 WL 330906, at *2. 22 Absent controlling authority establishing a bright-line rule for a due process right to receive 23 periodic bond hearings, the court finds that it is appropriate to conduct an individualized due process 24 analysis under Mathews v. Eldridge, 424 U.S. 319 (1976). See Soto v. Sessions, No. 18-cv-02891- 25 26 4 Bent argues that the IJ erred by addressing the ultimate merits of a bond hearing rather than merely 27 considering whether Bent had demonstrated a change in material circumstance. Mot. at 28-29. The 1 EMC, 2018 WL 3619727, at *3 (N.D. Cal. July 30, 2018) (applying Mathews factors to a habeas 2 petitioner’s due process claims); Lopez Reyes v. Bonnar, 362 F. Supp. 3d 762, 775 (N.D. Cal. 2019) 3 (same); De Paz Sales, No. 19-cv-04148-KAW, 2019 WL 4751894, at *7 (N.D. Cal. Sept. 30, 2019) 4 (same); Jimenez, 2020 WL 510347, at *2 (same).5 Under Mathews, “[d]ue process is flexible and 5 calls for such procedural protections as the particular situation demands.” 424 U.S. at 334. The 6 three-part Mathews test requires courts to consider “(1) the private interest affected, (2) the 7 government’s interest, and (3) the value added by alternative procedural safeguards to what has 8 already been provided in the particular situation before the court.” Soto, 2018 WL 3619727, at *3 9 (citing Mathews, 424 U.S. at 334-35). 10 1. Petitioner’s Interest 11 The first factor is straightforward. Courts have held that there is a strong private interest 12 based on the duration of the detention. De Paz Sales, 2019 WL 4751894, at *7 (N.D. Cal. Sept. 30, 13 2019) (finding a strong private interest where the petitioner “risks continued detention absent a bond hearing”). In this case, Bent has been detained for over three years and has not received a bond 14 hearing since November 2017. This period of detention leans heavily toward finding a strong 15 private interest at stake. Lopez Reyes, 362 F. Supp. 3d at 776 (finding a strong private interest where 16 the petitioner had been detained 22 months and received his last bond hearing 16 months prior); cf. 17 Soto, 2018 WL 3619727, at *3 (finding that the private interest is “not at its apex in these 18 circumstances” because the petitioner had been detained for just over 6 months and had received a 19 bond hearing 3 months prior). Respondents do not dispute that Bent has a strong private interest. 20 Accordingly, the court finds that the first Mathews factor weighs in Bent’s favor. 21 2. Government’s Interest 22 The second factor addresses the government’s interest. Respondents argue that the statutory 23 detention framework grants it “broad discretion” to effect removal proceedings, and that this 24 authority would be undermined by imposing procedures in excess of those authorized by Congress. 25 Resp. Supp. Br. at 3 (“The government’s interest in maintaining the existing procedures for bond 26 27 1 hearings to ensure that removal orders can be promptly executed is . . . legitimate and significant.”) 2 (citing Demore, 538 U.S. at 519). The court recognizes that additional court-ordered procedures 3 may disrupt the government’s ability to conduct orderly and timely removal proceedings. See H.R. 4 REP. 104-469(I) at 122 (noting procedural barriers that frustrate the removal process). The 5 government has therefore articulated an interest in retaining discretion over the grant and denial of 6 bond hearings.6 This factor weighs in favor of Respondents. 7 3. Additional Procedural Safeguards 8 Bent seeks additional procedural safeguards in the form of a new bond hearing. Pet. Supp. 9 Br. at 3. He argues that the value of additional safeguards is high because “a material change in 10 circumstances coupled with the passage of time” may entitle a detainee to an additional bond hearing 11 as a matter of due process. See Lopez Reyes, 362 F. Supp. 3d at 777. As explained above, the IJ 12 did not err in determining that Bent failed to show a change in material circumstance. Bent does 13 not argue that the “passage of time” alone requires a third bond hearing, nor does he identify any authority to that effect. See id. (“The Court notes that it is not making a finding that the mere passage 14 of time requires a second bond hearing.”). 15 In sum, Bent has already received two prior bond hearings and has not argued that either 16 hearing was statutorily or constitutionally inadequate. He has failed to show a change in 17 circumstances that was material to the considerations underlying the initial bond determination. 18 Under these circumstances, the added value of a third bond hearing is minimal because there is 19 nothing to suggest that he would “benefit as a practical matter in the circumstances of [his] case.” 20 Soto, 2018 WL 3619727, at *4. 21 The court finds that the Mathews factors weigh in favor of Respondents and that Bent is not 22 entitled to a third bond hearing as a matter of due process. 23 // 24

25 6 The government also asserts that it has a strong interest in detaining noncitizens who have been convicted of serious crimes. This reason is less compelling. The interest at stake is “the ability to 26 detain Petitioner without providing him with another bond hearing, not whether the government may continue to detain him.” Lopez Reyes, 362 F. Supp. 3d at 777; see also Jimenez, 2020 WL 27 510347, at *3 (“Providing a bond hearing would not undercut the government’s asserted interest in 1 TEMPORARY RESTRAINING ORDER 2 In his motion for a TRO, Bent seeks the same relief that he requests in his petition; namely, 3 an order requiring the government to provide him with a bond hearing or a release from custody. 4 His motion for a TRO is therefore denied as moot. 5 || IV. CONCLUSION 6 For the reasons state above, Bent’s petition for writ of habeas corpus under 28 U.S.C. § 2241 7 || is denied. 8 9 10 IT IS SO ORDERED. 11 Dated: April 6, 2020 (12 Dm onna M. Ryu 13 United States Magistrate Judge

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