de la Cruz v. United States

Opinion

3 Elsa Victoria De La Cruz, Case No.: 2:20-cv-01712-APG-NJK

4 Petitioner, Order (1) Lifting Stay and (2) Requiring 5 v. USA to Show Cause

6 The United States of America, et al.,

7 Respondents.

9 Petitioner Elsa Victoria De La Cruz filed this habeas corpus proceeding under 28 U.S.C. 10 § 2241 seeking relief from her continued detention by Immigration and Customs Enforcement 11 (ICE). ECF No. 1. On October 26, 2020, I denied the respondents’ motion to dismiss without 12 prejudice and stayed the proceedings until Ms. De La Cruz exhausted her administrative 13 remedies with respect to the bond determination challenged by her habeas petition. Ms. De La 14 Cruz now moves because the Board of Immigration Appeals has denied her relief. ECF No. 15. 15 The respondents do not oppose the motion. ECF No. 16. Accordingly, I will grant he motion. 16 Ms. De La Cruz is currently detained pending removal under 8 U.S.C. § 1226(a). The 17 issue presented by her petition is whether she has been deprived of a constitutionally sufficient 18 bond proceeding. She claims the immigration judge (IJ) improperly placed the burden of proof 19 on her to demonstrate that she was not a flight risk or a danger to the community instead of 20 requiring the Department of Homeland Security (DHS) to make the reverse showing by clear and 21 convincing evidence. 22 In a recent case, this court determined an immigration detainee being held under similar 23 circumstances and raising a similar issue was entitled to a new bond hearing before an IJ at 1} which the government must prove, by clear and convincing evidence, that the petitioner is a 2\| flight risk or danger to the community to justify continued detention. See Vargas v. Wolf, Case No. 2:19-cv-02135-KJD-DJA, 2020 WL 1929842, (D. Nev. Apr. 21, 2020). The court acknowledged the absence of controlling authority on the burden of proof issue but cited to numerous district court cases in this circuit that imposed the burden on the government. /d. at *6. I am inclined to reach a similar conclusion here. Before doing so, however, I will allow the 7\|respondents to show cause why Ms. De La Cruz’s circumstances are distinguishable from those 8|| of the petitioner in Vargas or why I should not follow Vargas. 9 I THEREFORE ORDER that Ms. De La Cruz’s motion to lift stay (ECF No. 15) is GRANTED. The stay is lifted, and the Clerk will administratively reopen this case. 11 I FURTHER ORDER that the respondents have until December 8, 2020 to show cause 12|| why Ms. De La Cruz is not entitled to habeas relief as discussed above. Ms. De La Cruz will have 10 days to file a reply to the respondents’ response. 14 Dated: November 20, 2020 15 U.S. District Judge Andrew P. Gordon 16 17 18 19 20 21 22 23