1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ADRIAN CABRERA ESPINOZA, Case No. 23-cv-05872-PCP
8 Petitioner, ORDER DENYING MOTION FOR 9 v. PRELIMINARY INJUNCTION
10 MOISES BECERRA, et al., Re: Dkt. No. 23 Respondents. 11
12 13 BACKGROUND 14 Petitioner Adrian Cabrera Espinoza has been detained by U.S. Immigration and Customs 15 Enforcement pursuant to 8 U.S.C. § 1226(c) since November 2022 while his ongoing removal 16 proceedings remain pending. After nearly eleven months of civil detention, he filed a petition for 17 writ of habeas corpus and a motion for a preliminary injunction requiring a bond hearing before a 18 neutral decisionmaker—something he had not previously been provided. On December 20, 2023, 19 this Court granted Mr. Cabrera Espinoza’s motion for a preliminary injunction and ordered 20 Respondents to provide him with “an individualized bond hearing before an immigration judge at 21 which the government shall bear the burden to prove by clear and convincing evidence that Mr. 22 Cabrera Espinoza’s continued detention remains warranted to protect the public or prevent Mr. 23 Cabrera Espinoza from fleeing.” Dkt. No. 22. On December 28, 2023, Immigration Judge Katie 24 Mullins presided over Mr. Cabrera Espinoza’s bond hearing and concluded that, while Mr. 25 Cabrera Espinoza does not pose a danger to the community, he poses a flight risk “that no amount 26 of bond conditions” can mitigate, thereby warranting his continued detention. Dkt. No. 26-2, at 25. 27 On December 29, 2023, Mr. Cabrera Espinoza moved this Court for a temporary 1 violation of his constitutional procedural due process rights, and requesting that this Court require 2 the immigration judge to consider those alternatives at a second bond hearing. Dkt. No. 23. The 3 Court thereafter converted the motion into one for a preliminary injunction and requested further 4 briefing on the issue. Dkt. No. 27. For the following reasons, the Court now denies the motion. 5 LEGAL STANDARDS 6 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 7 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 8 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. 9 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In the Ninth Circuit, “serious questions going to the 10 merits and a hardship balance that tips sharply toward the plaintiff can support issuance of an 11 injunction, assuming the other two elements of the Winter test are also met.” Alliance for the Wild 12 Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). 13 ANALYSIS 14 For the reasons set forth in this Court’s prior opinion, the second, third, and fourth 15 elements of the Winter test all favor preliminary relief here. Accordingly, the only question 16 remaining is whether Mr. Cabrera Espinoza can establish a likelihood of success or serious 17 question on the merits of his procedural due process claim. Under the circumstances presented, 18 that claim involves a narrow question: After being provided with a hearing before an immigration 19 judge to consider whether “continued detention remains warranted to protect the public or prevent 20 Mr. Cabrera Espinoza from fleeing”—a hearing at which the government bore the burden to 21 establish by clear and convincing evidence that continued detention was warranted; at which Mr. 22 Cabrera Espinoza was represented by counsel and had the opportunity to present evidence and 23 argument, including with respect to the sufficiency of alternatives to continued detention such as 24 location monitoring and reporting; and after which the immigration judge determined that “no 25 amount of bond conditions” could ensure Mr. Cabrera Espinoza would not flee—does procedural 26 due process require an additional hearing at which the immigration judge must specifically 27 consider whether the government has shown, by clear and convincing evidence, that alternatives to 1 In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court laid out the relevant test 2 for assessing alleged procedural due process violations. See Doe v. Becerra, No. 23-cv-04767, 3 2023 WL 8307557 (N.D. Cal. Dec. 1, 2023) (applying the Mathews test). Under this test, the 4 Court must balance the private interest at stake, the risk of erroneous deprivation and probable 5 value of additional safeguards, and the government’s interest. 424 U.S at 355. 6 Mr. Cabrera Espinoza’s private liberty interest in being free from detention is undoubtedly 7 substantial. The other Mathews factors, however, weigh against ordering a second hearing under 8 the circumstances presented here. 9 In its prior order requiring an individualized bond hearing before an immigration judge, the 10 Court directed that the government must prove by clear and convincing evidence “that Mr. 11 Cabrera Espinoza’s continued detention remains warranted.” Dkt. No 22. The consideration of 12 alternatives to detention is undoubtedly relevant to determining whether Mr. Cabrera Espinoza’s 13 continued detention is justified and was thus encompassed within the Court’s previous order.1 14 Indeed, the immigration judge expressly found that “no amount of bond conditions” could 15 mitigate Mr. Cabrera Espinoza’s flight risk. Dkt No. 26-2, at 25. The immigration judge’s 16 reference to bond conditions at least arguably includes conditions relating to location monitoring 17 and reporting. 18 Moreover, Mr. Cabrera Espinoza appeared at the hearing with representation by counsel, 19 and he was provided with a full opportunity to introduce argument and evidence in support of his 20 release. To the extent he or his counsel believed that alternatives to detention would be sufficient 21 to ensure his availability for removal, they were entitled to urge that position before the 22 immigration judge. In this respect, the facts relevant to Mr. Cabrera Espinoza’s current motion 23 differ in crucial respects from prior cases involving bond hearings at which the consideration of 24 1 Petitioner’s counsel had included language in their proposed order attached to Mr. Cabrera 25 Espinoza’s initial preliminary injunction motion specifically requiring the immigration judge to “consider alternatives to detention.” Dkt. No. 3-1, at 2. Although the Court did not adopt this 26 express language, that question of alternatives was nonetheless encompassed within the broader question of whether detention remains warranted that the Court ordered the immigration judge to 27 consider. Dkt. No. 22. The parties did not seek clarification of any ambiguities in the Court’s 1 alternatives to detention was expressly prohibited. See, e.g., Hernandez v. Sessions, 872 F.3d 976, 2 991 (9th Cir. 2017) (finding likely procedural due process violation where government “refuse[d] 3 to consider” alternatives to detention for immigrants who posed no threat to the community or risk 4 of flight but were unable to afford the bond amount set by the immigration judge). 5 In short, the issue of alternatives with respect to which Mr. Cabrera Espinoza seeks an 6 additional hearing was encompassed in this Court’s prior order and arguably addressed by the 7 immigration judge, and Mr. Cabrera Espinoza had a full opportunity to argue that issue with the 8 assistance of counsel.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ADRIAN CABRERA ESPINOZA, Case No. 23-cv-05872-PCP
8 Petitioner, ORDER DENYING MOTION FOR 9 v. PRELIMINARY INJUNCTION
10 MOISES BECERRA, et al., Re: Dkt. No. 23 Respondents. 11
12 13 BACKGROUND 14 Petitioner Adrian Cabrera Espinoza has been detained by U.S. Immigration and Customs 15 Enforcement pursuant to 8 U.S.C. § 1226(c) since November 2022 while his ongoing removal 16 proceedings remain pending. After nearly eleven months of civil detention, he filed a petition for 17 writ of habeas corpus and a motion for a preliminary injunction requiring a bond hearing before a 18 neutral decisionmaker—something he had not previously been provided. On December 20, 2023, 19 this Court granted Mr. Cabrera Espinoza’s motion for a preliminary injunction and ordered 20 Respondents to provide him with “an individualized bond hearing before an immigration judge at 21 which the government shall bear the burden to prove by clear and convincing evidence that Mr. 22 Cabrera Espinoza’s continued detention remains warranted to protect the public or prevent Mr. 23 Cabrera Espinoza from fleeing.” Dkt. No. 22. On December 28, 2023, Immigration Judge Katie 24 Mullins presided over Mr. Cabrera Espinoza’s bond hearing and concluded that, while Mr. 25 Cabrera Espinoza does not pose a danger to the community, he poses a flight risk “that no amount 26 of bond conditions” can mitigate, thereby warranting his continued detention. Dkt. No. 26-2, at 25. 27 On December 29, 2023, Mr. Cabrera Espinoza moved this Court for a temporary 1 violation of his constitutional procedural due process rights, and requesting that this Court require 2 the immigration judge to consider those alternatives at a second bond hearing. Dkt. No. 23. The 3 Court thereafter converted the motion into one for a preliminary injunction and requested further 4 briefing on the issue. Dkt. No. 27. For the following reasons, the Court now denies the motion. 5 LEGAL STANDARDS 6 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 7 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 8 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. 9 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In the Ninth Circuit, “serious questions going to the 10 merits and a hardship balance that tips sharply toward the plaintiff can support issuance of an 11 injunction, assuming the other two elements of the Winter test are also met.” Alliance for the Wild 12 Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). 13 ANALYSIS 14 For the reasons set forth in this Court’s prior opinion, the second, third, and fourth 15 elements of the Winter test all favor preliminary relief here. Accordingly, the only question 16 remaining is whether Mr. Cabrera Espinoza can establish a likelihood of success or serious 17 question on the merits of his procedural due process claim. Under the circumstances presented, 18 that claim involves a narrow question: After being provided with a hearing before an immigration 19 judge to consider whether “continued detention remains warranted to protect the public or prevent 20 Mr. Cabrera Espinoza from fleeing”—a hearing at which the government bore the burden to 21 establish by clear and convincing evidence that continued detention was warranted; at which Mr. 22 Cabrera Espinoza was represented by counsel and had the opportunity to present evidence and 23 argument, including with respect to the sufficiency of alternatives to continued detention such as 24 location monitoring and reporting; and after which the immigration judge determined that “no 25 amount of bond conditions” could ensure Mr. Cabrera Espinoza would not flee—does procedural 26 due process require an additional hearing at which the immigration judge must specifically 27 consider whether the government has shown, by clear and convincing evidence, that alternatives to 1 In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court laid out the relevant test 2 for assessing alleged procedural due process violations. See Doe v. Becerra, No. 23-cv-04767, 3 2023 WL 8307557 (N.D. Cal. Dec. 1, 2023) (applying the Mathews test). Under this test, the 4 Court must balance the private interest at stake, the risk of erroneous deprivation and probable 5 value of additional safeguards, and the government’s interest. 424 U.S at 355. 6 Mr. Cabrera Espinoza’s private liberty interest in being free from detention is undoubtedly 7 substantial. The other Mathews factors, however, weigh against ordering a second hearing under 8 the circumstances presented here. 9 In its prior order requiring an individualized bond hearing before an immigration judge, the 10 Court directed that the government must prove by clear and convincing evidence “that Mr. 11 Cabrera Espinoza’s continued detention remains warranted.” Dkt. No 22. The consideration of 12 alternatives to detention is undoubtedly relevant to determining whether Mr. Cabrera Espinoza’s 13 continued detention is justified and was thus encompassed within the Court’s previous order.1 14 Indeed, the immigration judge expressly found that “no amount of bond conditions” could 15 mitigate Mr. Cabrera Espinoza’s flight risk. Dkt No. 26-2, at 25. The immigration judge’s 16 reference to bond conditions at least arguably includes conditions relating to location monitoring 17 and reporting. 18 Moreover, Mr. Cabrera Espinoza appeared at the hearing with representation by counsel, 19 and he was provided with a full opportunity to introduce argument and evidence in support of his 20 release. To the extent he or his counsel believed that alternatives to detention would be sufficient 21 to ensure his availability for removal, they were entitled to urge that position before the 22 immigration judge. In this respect, the facts relevant to Mr. Cabrera Espinoza’s current motion 23 differ in crucial respects from prior cases involving bond hearings at which the consideration of 24 1 Petitioner’s counsel had included language in their proposed order attached to Mr. Cabrera 25 Espinoza’s initial preliminary injunction motion specifically requiring the immigration judge to “consider alternatives to detention.” Dkt. No. 3-1, at 2. Although the Court did not adopt this 26 express language, that question of alternatives was nonetheless encompassed within the broader question of whether detention remains warranted that the Court ordered the immigration judge to 27 consider. Dkt. No. 22. The parties did not seek clarification of any ambiguities in the Court’s 1 alternatives to detention was expressly prohibited. See, e.g., Hernandez v. Sessions, 872 F.3d 976, 2 991 (9th Cir. 2017) (finding likely procedural due process violation where government “refuse[d] 3 to consider” alternatives to detention for immigrants who posed no threat to the community or risk 4 of flight but were unable to afford the bond amount set by the immigration judge). 5 In short, the issue of alternatives with respect to which Mr. Cabrera Espinoza seeks an 6 additional hearing was encompassed in this Court’s prior order and arguably addressed by the 7 immigration judge, and Mr. Cabrera Espinoza had a full opportunity to argue that issue with the 8 assistance of counsel. Under these circumstances, the probable value of an additional hearing and 9 the risk of erroneous deprivation are minimal. 10 The government’s interest here is also substantial. Beyond the additional expense of 11 holding and preparing for another hearing before an immigration judge, including by preparing 12 additional evidence relating to the inadequacy of alternatives to detention, the government and the 13 judiciary have an interest in ensuring that all arguments relevant to the need for continued 14 detention be addressed at a single hearing rather than through piecemeal litigation of that issue. As 15 noted above, the record does not show that Mr. Cabrera Espinoza was prevented at his first 16 hearing from arguing for his proposed alternatives to continued detention. 17 After balancing the relevant Mathews factors, the Court concludes that Mr. Cabrera 18 Espinoza is unlikely to establish a procedural due process right to another hearing wherein the 19 immigration judge would more expressly consider whether alternatives to detention are sufficient 20 to prevent his flight. For the same reason, he has not presented a serious question on the merits of 21 that issue. Given this conclusion, the Court need not consider the government’s argument that the 22 Ninth Circuit has already rejected Mr. Cabrera Espinoza’s position.2 23 Because Mr. Cabrera Espinoza has not established a likelihood of success or serious 24 question on the merits of his procedural due process claim, he does not satisfy the Winter test and 25 2 The government cites Martinez v. Clark, in which the Ninth Circuit held that “[d]ue process does 26 not require immigration courts to consider conditional release when determining whether to continue to detain an alien under § 1226(c) as a danger to the community.” 36 F.4th 1219, 1231 27 (9th Cir. 2022). As Mr. Cabrera Espinoza notes, however, Martinez did not expressly consider 1 his motion for a preliminary injunction is therefore denied. 2 CONCLUSION 3 For the foregoing reasons, the Court denies Mr. Cabrera Espinoza’s motion for a second 4 || preliminary injunction. Mr. Cabrera Espinoza’s underlying habeas petition, to which the 5 || government filed its return on December 5, 2023, remains pending. Mr. Cabrera Espinoza shall 6 || file his traverse to the government’s return within 30 days of the filing of this Order. 7 8 IT IS SO ORDERED. 9 Dated: March 11, 2024 10 Za, 11 P. Casey Pitts 12 United States District Judge
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