Hilario Pankim v. Barr

• Court: District Court, N.D. California
• Decided: May 19, 2020
• Docket: 3:20-cv-02941
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PASCUAL HILARIO PANKIM, Case No. 20-cv-02941-JSC

8 Petitioner, ORDER RE: PETITION FOR WRIT OF 9 v. HABEAS CORPUS

10 WILLIAM P. BARR, et al., Re: Dkt. No. 1 Respondents. 11

12 13 Petitioner Pascual Hilario Pankim (“Mr. Hilario”) is a citizen and national of Guatemala 14 who has been continuously residing in the United States for the past 6 years. The Department of 15 Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”) detained Mr. 16 Hilario in August 2019, and since then he has been held at the Yuba County Jail in Marysville, 17 California pursuant to 8 U.S.C. § 1231(a)(6).1 Now before the Court is Mr. Hilario’s petition for 18 writ of habeas corpus. (Dkt. No. 1.)2 After careful consideration of the parties’ briefing, the Court 19 DENIES the petition in part and STAYS the petition in part for the reasons set forth below.3 20 FACTUAL BACKGROUND 21 Mr. Hilario was born in Guatemala and is 32 years old. (Dkt. No. 1 at ¶¶ 20, 27, 29.) Prior 22 to his detention, Mr. Hilario lived in Hayward, California with his partner, their two infant 23 children (who are U.S. citizens), and his partner’s two teenage children (who are also U.S. 24

25 1 Mr. Hilario is subject to a reinstated removal order. See Aleman Gonzalez v. Barr, 955 F.3d 762, 767 (9th Cir. 2020) (“In this circuit, aliens with reinstated removal orders[ ] . . . are treated as 26 detained pursuant to § 1236(a)(6).”). 2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 27 ECF-generated page numbers at the top of the documents. 1 citizens). (Id. at ¶ 28.) 2 Mr. Hilario first entered the United States without lawful admission in 2004. (Id. at ¶ 29.) 3 On January 18, 2012, he was transferred to ICE custody shortly after being arrested by the 4 Hayward Police Department for misdemeanor trespassing.4 (Id.) The arrest stemmed from Mr. 5 Hilario entering his current partner’s apartment by breaking a glass door after she denied him 6 entry because he was intoxicated. (Dkt. No. 1-2 at 27.) 7 After ICE filed a Record of Deportable/Inadmissible Alien as to Mr. Hilario, (Id. at 132), 8 an Immigration Judge (“IJ”) ordered his removal to Guatemala on February 1, 2012, (Id. at 135). 9 He was deported two weeks later. (Id. at 120.) Mr. Hilario fled Guatemala sometime thereafter 10 due to continuous and escalating threats of violence from gang members, and entered the United 11 States without lawful admission in 2014. (Dkt. Nos. 1 at ¶ 30 & 1-2 at 140.) 12 In August 2015, Mr. Hilario was convicted of misdemeanor battery pursuant to California 13 Penal Code § 242. (Dkt. Nos. 1 at ¶ 32 & 1-2 at 195-96.) The conviction arose out of his arrest 14 following a physical altercation with another individual while Mr. Hilario was intoxicated. (Dkt. 15 No. 1 at ¶ 32.) Mr. Hilario was sentenced to 30 days in jail, 3 years of probation, and ordered to 16 pay a fine. (Dkt. No. 1-2 at 195-96.) He served part of his sentence through the Alameda County 17 Sheriff’s Department’s “Weekend Work Program.” (Id. at 195, 197.) 18 Mr. Hilario was arrested again on February 28, 2019 after the Hayward Police Department 19 responded to a domestic disturbance at his home. (Dkt. No. 1 at ¶ 33.) According to the arrest 20 report, Mr. Hilario “was extremely intoxicated” when he arrived home around 11:00 p.m. and 21 began fighting with his family. (Dkt. No. 1-2 at 124.) The report states that Mr. Hilario threw 2 22 beer bottles at his “step daughter,” struck someone over the head with a bottle, and punched 23 multiple family members and a family friend who tried to intervene and stop him. (Id. at 124-26.) 24 The report describes visible injuries to several people, including Mr. Hilario and his partner, and 25 notes that paramedics treated one victim for her injuries at the scene. (Id. at 126, 128.) The report 26

27 4 Mr. Hilario’s counsel attests that Mr. Hilario was transferred to ICE custody prior to the 1 states that “[a]ll victims involved in the incident declined prosecution against [Mr. Hilario].” (Id. 2 at 124.) 3 A March 2019 state court filing indicates that Mr. Hilario was charged with two felonies— 4 assault with a deadly weapon, “corporal injury to spouse/cohabitant/child’s parent”—and two 5 misdemeanor counts of battery stemming from the February 2019 incident. (Dkt. No. 1-2 at 198.) 6 Mr. Hilario pleaded “not guilty” to the charges. (Id.) The charges were subsequently dismissed in 7 April 2019 for “lack of complaining witness.” (Dkt. No. 1-3 at 3 (“People are not ready to 8 proceed. Several unsuccessful attempts made to serve complaining witness.”).) 9 On August 23, 2019, ICE arrested Mr. Hilario near his residence, detained him, and served 10 him with a Notice of Intent/Decision to Reinstate Prior Order based on the February 2012 removal 11 order.5 (Dkt. Nos. 1 at ¶ 34 & 1-2 at 117-121.) Mr. Hilario was subsequently interviewed by an 12 asylum officer, who determined that Mr. Hilario “had a reasonable fear of torture if removed to 13 Guatemala.” (Dkt. No. 1 at ¶ 35.) Thus, on September 12, 2019, “DHS filed a Notice of Referral 14 to an Immigration Judge [ ], initiating withholding-only proceedings before the San Francisco 15 Immigration Court,” pursuant to 8 C.F.R. § 208.31(e). (Id.) 16 Mr. Hilario attests that on four separate occasions between September 2019 and December 17 2019, he was “groped and touch . . . inappropriately” on the penis and testicles by a security guard 18 employed by ICE while the guard was conducting a pat down search. (Dkt. No. 1-2 at 53-55 19 (January 27, 2020 declaration); see also id. at 4, ¶¶ 13-14.) Mr. Hilario reported the incidents to 20 Yuba County Jail officials and submitted a declaration to the San Francisco Police Department 21 (“SFPD”). (Dkt. No. 1 at ¶ 39.) In connection with the SFPD investigation into the incidents, 22 SFPD signed a “Supplement B, U Nonimmigrant Status Certification,” stating that Mr. Hilario 23 was a victim of “Abusive Sexual Contact” and “Sexual Assault.”6 (Dkt. No. 1-2 at 48-52.) Mr. 24 5 Under 8 U.S.C. § 1231(a)(5), DHS may reinstate a prior order of removal if it determines that the 25 individual “has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal.” A reinstated removal order “is not subject to being 26 reopened or reviewed.” 8 U.S.C. §1231(a)(5). However, individuals “with reinstated removal orders may pursue limited forms of relief from removal, including withholding of removal and 27 protection pursuant to the Convention Against Torture.” Aleman, 955 F.3d at 767. 1 Hilario’s counsel attests that the certification makes Mr. Hilario “eligible to apply for U 2 Nonimmigrant Status, which, if approved, provides him with an avenue to obtain permanent 3 residency and citizenship.” (Dkt. No. 1-2 at 4, ¶ 13.) As a result of the alleged incidents, Mr. 4 Hilario has sought mental health treatment at the Yuba County Jail and been diagnosed with post- 5 traumatic stress disorder (“PTSD”) and adjustment disorder with depressed mood. (Dkt. Nos. 1 at 6 ¶¶ 1, 39-40 & 1-3 at 24-41.) 7 In connection with the withholding-only proceedings, on December 10, 2019 Mr. Hilario 8 filed an application for asylum and for withholding of removal pursuant to section 241(b)(3) of the 9 Immigration and Nationality Act (“INA”); that application was argued before an IJ on December 10 12, 2019. (Dkt. No. 1-2 at 143.) On January 31, 2020, the IJ denied Mr. Hilario’s application for 11 withholding of removal and ordered that he be removed to Guatemala. (Id. at 152.) Mr. Hilario 12 filed a notice of appeal with the Board of Immigration Appeals (“BIA”) on February 14, 2020. 13 (Id. at 4, 56.) The BIA has yet to issue a briefing schedule regarding that appeal. (Id.) 14 The San Francisco Immigration Court scheduled Mr. Hilario for a custody redetermination 15 hearing (“Aleman bond hearing”)7 to occur on February 19, 2020. (Id. at 15.) Mr. Hilario’s 16 counsel was unavailable on that date, and on March 13, 2020, Mr. Hilario requested another bond 17 hearing. (Id.) The IJ granted the request on March 24, 2020. (Id. at 105.) 18 In connection with the hearing, Mr. Hilario’s partner submitted a declaration attesting to a 19 markedly different version of events than those described in the February 2019 police report, 20 characterizing the incident as “a big misunderstanding.” (Id. at 25-26, ¶¶ 4-5.) Mr. Hilario’s 21 partner’s daughter and son, and several of Mr. Hilario’s friends also submitted statements in 22 support of his release. (Id. at 35, 37-47, 159-64.) Further, Mr. Hilario submitted several 23 documents indicating his plans if released, including mental health treatment, Alcoholics 24 Anonymous, and English classes. (Id. at 57-72). Mr. Hilario also submitted the birth certificates 25 normal pat down and that no charges will be filed.” (Dkt. No. 1-3 at 17.) 26 7 An Aleman bond hearing is required for individuals detained pursuant to 8 U.S.C. § 1231(a)(6) for longer than 180 days; the government has the burden of justifying continued detention on the 27 basis that the detainee is either a flight risk or a danger to the community. Aleman Gonzalez v. 1 of his two U.S.-born children, his residential lease, and copies of his tax returns. (Id. at 33-34, 73- 2 81.) 3 On April 10, 2020, an IJ conducted the Aleman bond hearing and issued an order that Mr. 4 Hilario remain detained without bond. (Dkt. No. 1-3 at 7.) During the hearing, Mr. Hilario’s 5 counsel objected to certain evidence submitted by DHS; specifically, counsel objected to the 6 inclusion of Mr. Hilario’s rap sheet because it contained outdated information and did not specify 7 that the charges stemming from Mr. Hilario’s February 2019 arrest were ultimately dismissed, 8 another document erroneously listed several charges as pending when they had been dismissed, 9 and the police report of the February 2019 arrest “contain[ed] multiple levels of hearsay” and was 10 “in conflict with other evidence.” (Id. at 10-11.) The IJ stated that he would “apply the 11 appropriate weight based on counsel’s comments” and objections. (Id.) After hearing argument 12 from both parties, the IJ determined on the record that Mr. Hilario was “a danger to the 13 community in consideration of the criminal history documents” and “a flight risk in consideration 14 of his immigration history,” and ordered that he be held without bond. (Id. at 18.) 15 On April 13, 2020, Mr. Hilario filed an appeal with the BIA regarding the IJ’s custody 16 determination. (Id. at 22.) That appeal is pending. Mr. Hilario’s counsel attests that, in her 17 experience, “BIA appeals of bond proceeding[s] take anywhere from four to six months.” (Dkt. 18 No. 1-2 at 5, ¶ 17.) 19 On May 1, 2020, the IJ issued a memorandum decision regarding his bond determination. 20 (Dkt. No. 9-13, Ex. L.) The decision notes that DHS “is required to establish, by clear and 21 convincing evidence that [Mr. Hilario’s] continued detention is justified because [he] is a danger 22 to the community or a flight risk,” and the IJ concludes that DHS met that burden. (Id. at 3 (citing 23 Aleman, 325 F.R.D. at 619).) The IJ’s findings discuss Mr. Hilario’s contacts with law 24 enforcement, the February 2019 police report detailing arrests “for felony assault and felony 25 domestic violence,” Mr. Hilario’s partner’s declaration, his “strong family ties to the United 26 States,” and his rehabilitation plan. (Id. at 4.) The IJ acknowledged Mr. Hilario’s “mental-health 27 and alcohol-abuse issues,” but determined that ‘the extensiveness, nature, and recency of [Mr. 1 IJ further concluded that DHS has met its burden of demonstrating by clear and convincing 2 evidence that Mr. Hilario is a flight risk based on his “demonstrated . . . willingness to violate 3 immigration laws” by twice entering the United States without lawful admission, use of “two 4 different names and two different dates of birth,” and the January 2020 order of removal. (Id. at 5 5.) 6 PROCEDURAL HISTORY 7 On April 29, 2020, Mr. Hilario filed this petition for writ of habeas corpus pursuant to 28 8 U.S.C. § 2241. (Dkt. No. 1.) Thereafter the Court issued an order to show cause as to why the 9 petition should not be granted. (Dkt. No. 8.) The Government (“Respondents”) responded on 10 May 11, 2020. (Dkt. No. 9.) Mr. Hilario filed a traverse on May 13, 2020. (Dkt. No. 10.) 11 JURISDICTION 12 A district court may grant a writ of habeas corpus when a petitioner is “in custody in 13 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). 14 “[T]he Fifth Amendment entitles aliens to due process of law in deportation proceedings.” 15 Denmore v. Kim, 538 U.S. 510, 523 (2003). Here, Mr. Hilario argues that his continued detention 16 violates his due process rights. Thus, the Court has subject-matter jurisdiction pursuant to section 17 2241. 18 Respondents challenge the Court’s jurisdiction over this matter on the grounds that 19 “Petitioner is confined in the Eastern District of California and [his] immediate custodians are in 20 the Eastern District of California.” (Dkt. No. 9 at 7.) Thus, Respondents assert that venue in the 21 Northern District of California is improper, and “only the U.S. District Court for the Eastern 22 District of California has jurisdiction over Petitioner’s challenge to his detention.” (Dkt. No. 9 at 23 18.) Respondents are wrong. 24 ICE’s website identifies the “San Francisco Field Office” as the federal entity that oversees 25 immigration detainees at the Yuba County Jail, and specifically directs “Feedback or Complaints” 26 to the “Field Office Director, Enforcement and Removal Operations” located in San Francisco, 27 California. See https://www.ice.gov/detention-facility/yuba-county-jail. Thus, Mr. Hilario 1 action. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1183 (N.D. Cal. 2017) (“[A] petitioner 2 held in federal detention in a non-federal facility pursuant to a contract should sue the federal 3 official most directly responsible for overseeing that contract facility when seeking a habeas 4 writ.”). The San Francisco Field Office is located within this Court’s territorial jurisdiction. 5 Accordingly, the Northern District is the proper forum to hear this habeas petition. See id. at 1187 6 (“So long as the proper respondent falls within this Court’s territorial jurisdiction, habeas 7 jurisdiction exists.”) (citing Rumsfield v. Padilla, 542 U.S. 426, 442-44 (2004)). 8 Respondents submit the declaration of Dana L. Fishburn, who is an Assistant Field Office 9 Director with the DHS, ICE, Enforcement and Removal Operations in the San Francisco Field 10 Office. (Dkt. No. 9-5, Ex. D at ¶ 1.) Ms. Fishburn attests that she is “currently assigned to the 11 Sacramento Sub-Office within the San Francisco Field Office which is responsible for oversight of 12 the ICE Detainees held at Yuba County Jail in Marysville, California.” (Id.) Respondents argue 13 that Ms. Fishburn is “the ICE official most directly responsible for overseeing” the Yuba County 14 Jail, and because she is assigned to the Sacramento Sub-Office, which is located in the Eastern 15 District of California, venue is improper in the Northern District. (Dkt. No. 9 at 18 (citing 16 Saravia, 280 F. Supp. at 1183 (N.D. Cal. 2017)). 17 Respondents’ argument is not well taken. Ms. Fishburn’s assignment to a “sub-office” that 18 is physically located in the Eastern District of California does not mean that San Francisco Field 19 Office is not the controlling entity for the Yuba County Jail. As the Assistant Field Office 20 Director of the San Francisco Field Office, Ms. Fishburn takes orders from the Director of the San 21 Francisco Field Office, Mr. Jennings. Thus, Mr. Jennings is the federal official most directly 22 responsible for overseeing the Yuba County Jail. Accordingly, the Northern District is the proper 23 forum to hear this action and the Court has jurisdiction. See, e.g., Ortuno v. Jennings, No. 20-cv- 24 02064-MMC, 2020 WL 2218965, at *2 (N.D. Cal. May 7, 2020) (finding Northern District proper 25 forum in immigration habeas case involving Yuba County Jail detainees and naming Mr. Jennings 26 as respondent); Zepeda-Rivas v. Jennings, No. 20-cv-02731-VC, 2020 WL 2059848, at *2 (N.D. 27 Cal. Apr. 29, 2020) (same); Doe v. Barr, No. 20-cv-02263, 2020 WL 1984266, at *5 (N.D. Cal. 1 Respondents’ reliance on a recent Ninth Circuit order does not counsel a different result. 2 Respondents assert that the Ninth Circuit issued an order on April 30, 2020, “indicating the 3 Eastern District of California has jurisdiction over immigration habeas cases filed by detainees 4 held at [Yuba County Jail].” (Dkt. No. 9 at 17 (citing Birru v. Barr, No. 19-72758, Dkt. No. 14-1 5 (9th Cir. 2020)).) However, the cited order merely states, in pertinent part: 6 [W]e construe petitioner’s motion for release from detention as a petition for a writ of habeas corpus and transfer it to the Eastern 7 District of California, where petitioner is being held at the Yuba County Jail, to be considered under 28 U.S.C. § 2241. See id. § 8 2241(b) (a circuit court may “transfer the application [for a writ of habeas corpus] for hearing and determination to the district court 9 having jurisdiction to entertain it”). 10 (Dkt. No. 10-1, Ex. L at 7.) Unlike here, the petitioner in Birru named only United States 11 Attorney General William Barr as a respondent, and the court did not address whether jurisdiction 12 was proper in any other District. Instead, the court transferred the petition to the Eastern District 13 of California solely on the basis that the petitioner was detained in that District. Thus, Birru offers 14 no insight into whether the Northern District is the proper forum to hear this petition.8 As 15 previously discussed, the Court is satisfied that it has subject-matter jurisdiction over this action 16 pursuant to section 2241 and that the Northern District is the proper forum because the Director of 17 the San Francisco Field Office is appropriately named as a respondent. 18 DISCUSSION 19 Mr. Hilario sets forth two claims challenging the constitutionality of his detention: (1) 20 violation of his Fifth Amendment due process rights based on the Government’s failure to 21 establish that he is a danger to the community or flight risk; and (2) violation of his Fifth 22 Amendment due process rights based on his continued detention during the COVID-19 pandemic. 23 Mr. Hilario seeks immediate release under both claims; in the alternative, Mr. Hilario requests 24 release within 7 days of the Court’s order unless he is provided with a bond hearing that comports 25

26 8 Prior to the Ninth Circuit’s April 30 order, the petitioner in Birru filed a habeas petition in a related action in this District. See Birru v. Barr, et al., No. 20-cv-01285-LHK, 2020 WL 1905581, 27 at *1 (N.D. Cal. Apr. 17, 2020). There is no indication that respondents in that action argued that 1 with due process. (See Dkt. No. 1 at 47.) 2 Respondents assert that Mr. Hilario’s first claim fails because: (1) he has not exhausted his 3 administrative remedies; (2) the Court lacks jurisdiction to review the IJ’s discretionary decision 4 to deny bond; and (3) even if the Court reaches the merits, the petition fails to state a due process 5 violation. As for Mr. Hilario’s COVID-19 claim, Respondents argue that the claim should be 6 stayed because it “arise[s] out of the same facts, turn[s] on the same cause of action, and request[s] 7 the same relief” at issue in the pending class action Zepeda-Rivas v. Jennings, No. 20-cv-02731- 8 VC (N.D. Cal.) (“Zepeda-Rivas”), which was filed before this action and involves a provisionally 9 certified class of Yuba County Jail detainees. (Dkt. No. 9 at 29.) 10 The Court addresses Mr. Hilario’s claims in turn. 11 I. Due Process Claim Based on IJ’s April 2020 Bond Determination 12 A. Exhaustion of Administrative Remedies 13 “Exhaustion can be either statutorily or judicially required.” Acevedo-Carranza v. 14 Ashcroft, 371 F.3d 539, 541 (9th Cir. 2004). Statutory exhaustion “may be a mandatory 15 requirement that is jurisdictional.” Id. “If, however, exhaustion is a prudential requirement, a 16 court has discretion to waive the requirement.” Id. 17 As previously discussed, “[d]istrict courts are authorized by 28 U.S.C § 2241 to consider 18 petitions for habeas corpus.” Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), 19 abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). Section 2241 20 “does not specifically require petitioners to exhaust direct appeals before filing petitions for 21 habeas corpus.” Id. However, the Ninth Circuit “require[s], as a prudential matter, that habeas 22 petitioners exhaust available judicial and administrative remedies before seeking relief under § 23 2241.” Id. 24 Once a detainee receives a bond hearing before an IJ he may appeal the IJ’s decision to the 25 BIA. Leonardo v. Crawford, 646 F.3d 1157, 1159 (9th Cir. 2011). If the detainee disagrees with 26 the BIA’s decision on appeal he may “file a habeas petition in the district court” to challenge his 27 continued detention. Id. Thereafter, “the district court’s decision on the habeas petition may be 1 determination before the BIA has issued its decision on appeal is improper. Id. at 1160. “When a 2 petitioner does not exhaust administrative remedies, a district court ordinarily should either 3 dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted 4 remedies, unless exhaustion is excused.” Id. 5 “[C]ourts may require prudential exhaustion if (1) agency expertise makes agency 6 consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of 7 the requirement would encourage the deliberate bypass of the administrative scheme; and (3) 8 administrative review is likely to allow the agency to correct its own mistakes and to preclude the 9 need for judicial review.” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (internal quotation 10 marks and citation omitted). However, “even if the three Puga factors weigh in favor of 11 prudential exhaustion, a court may waive the prudential exhaustion requirement if administrative 12 remedies are inadequate or not efficacious, pursuit of the administrative remedies would be a futile 13 gesture, irreparable injury will result, or the administrative proceedings would be void.” 14 Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (internal quotation marks and citation 15 omitted). 16 There is no dispute that Mr. Hilario has failed to exhaust his administrative remedies; 17 indeed, he has two BIA appeals pending. Respondents assert that allowing Mr. Hilario “to seek 18 direct habeas review of the IJ’s decision without first appealing to the BIA would prevent the BIA 19 from correcting any mistake that might exist and also ‘encourage the deliberate bypass of the 20 administrative scheme.’” (Dkt. No. 9 at 20 (quoting Puga, 488 F.3d at 815).) The Court agrees 21 that the Puga factors, primarily the second and third factors, weigh in favor of requiring prudential 22 exhaustion. 23 Mr. Hilario argues that the Court should waive prudential exhaustion on the grounds that 24 “he is suffering irreparable harm by his continued unlawful detention”; specifically, Mr. Hilario 25 asserts that he “has been detained for over eight months without a constitutionally compliant bond 26 hearing before a neutral adjudicator.” (Dkt. No. 1 at ¶¶ 63-64.) The Court rejects that argument 27 because it “begs the constitutional questions presented in his petition by assuming that petitioner 1 2019 WL 1508458, at *3 (N.D. Cal. Apr. 5, 2019) (rejecting irreparable harm argument premised 2 on allegedly unconstitutional bond hearing at issue in underlying habeas petition). 3 Mr. Hilario further argues that waiting for the BIA to adjudicate the IJ’s bond 4 determination may take up to six months and his continued detention during that time will 5 irreparably harm his mental health because his detention exacerbates his PTSD symptoms. (Dkt. 6 Nos. 1 at ¶¶ 66-67 & 1-3 at 24-41.) The Court agrees that in the unique circumstances of this case 7 at this particular time, Mr. Hilario’s mental health condition warrants a waiver of the exhaustion 8 requirement. Since being detained Mr. Hilario has sought mental health treatment at the Yuba 9 County Jail and been diagnosed with PTSD stemming from his alleged sexual assault and 10 continued detention. Such “significant psychological effects from his detention” demonstrate a 11 likelihood of irreparable harm sufficient to excuse prudential exhaustion. See De Paz Sales v. 12 Barr, No. 19-cv-07221-KAW, 2020 WL 353465, at *4 (N.D. Cal. Jan. 21, 2020). 13 Accordingly, Mr. Hilario is excused from exhaustion. 14 B. Judicial Review of IJ’s April 2020 Bond Determination 15 Respondents next assert that the Court lacks jurisdiction to review the IJ’s discretionary 16 decision to deny bond because it is not subject to judicial review. Respondents rely on 8 U.S.C. § 17 1226(e), which addresses “Judicial review”: 18 The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court 19 may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, 20 revocation, or denial of bond or parole. 21 8 U.S.C. § 1226(e) (emphasis added). The initial problem with Respondents’ argument is that Mr. 22 Hilario is not detained pursuit to section 1226; instead, it is undisputed that he is detained under 23 section 1231(a)(6). Thus, it is unclear whether section 1226(e) is even applicable here. Further, 24 even if section 1226(e) did apply, “[t]he Ninth Circuit has made clear that a district court retains 25 jurisdiction, notwithstanding section 1226(e), to review legal and constitutional challenges to bond 26 determinations, which are not challenges to discretionary determinations.” Ramos v. Sessions, 293 27 F. Supp. 3d 1021, 1028 (N.D. Cal. 2018) (rejecting jurisdictional argument premised on section 1 constitutional and legal challenge to the IJ’s bond determination, arguing that it failed to comply 2 with due process”) (citing Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (noting that 3 “although the Attorney General’s discretionary judgment . . . shall not be subject to review, claims 4 that the discretionary process itself was constitutionally flawed are cognizable in federal court”)). 5 Respondents assert that Mr. Hilario’s claims, “although dressed in constitutional garb, 6 simply reflect a disagreement with how the IJ weighed the evidence.” (Dkt. No. 9 at 21.) Not so. 7 As Mr. Hilario’s traverse makes clear, his petition attacks the discretionary process itself by 8 asserting that the Government failed to meet its evidentiary burden of showing by clear and 9 convincing evidence that he was a danger to the community or a flight risk, and the IJ’s decision 10 that the Government did meet its burden thus reflects legal error. (See Dkt. No. 10 at 10-11.) 11 Accordingly, the Court joins other courts in this district that have exercised jurisdiction over 12 petitions challenging IJ bond determinations on constitutional grounds where, as here, the 13 petitioner challenged the quantum of evidence supporting the IJ’s determination that the 14 Government met its evidentiary burden by clear and convincing evidence. See, e.g., Perez v. Wolf, 15 No. 5:19-cv-05191-EJD, 2020 WL 1865303, at *4 (N.D. Cal. Apr. 14, 2020); Jimenez v. Wolf, No. 16 19-cv-07996-NC, 2020 WL 1082648, at *2 (N.D. Cal. Mar. 5, 2020); Ramos, 293 F. Supp. 3d at 17 1028; Obregon v. Sessions, No. 17-cv-01463-WHO, 2017 WL 1407889, at *4-5 (N.D. Cal. Apr. 18 20, 2017). 19 C. Whether the IJ’s April 2020 Bond Determination Violated Due Process 20 Due process required DHS to show by clear and convincing evidence that Mr. Hilario was 21 a danger to the community or a flight risk at the time of the April 2020 bond hearing. See Diouf v. 22 Napolitano, 634 F.3d 1081, 1092 (9th Cir. 2011) (holding “that an alien facing prolonged 23 detention under § 1231(a)(6) is entitled to a bond hearing before an immigration judge and is 24 entitled to be released from detention unless the government establishes that the alien poses a risk 25 of flight or a danger to the community”). An IJ’s determination that an individual is a flight risk 26 or poses a danger to the community is guided by the following factors: 27 1) whether the alien has a fixed address in the United States; (2) the reside permanently in the United States in the future; (4) the alien’s 1 employment history; (5) the alien’s record of appearance in court; (6) the alien’s criminal record, including the extensiveness of criminal 2 activity, the recency of such activity, and the seriousness of the offenses; (7) the alien’s history of immigration violations; (8) any 3 attempts by the alien to flee prosecution or otherwise escape from authorities; and (9) the alien’s manner of entry to the United States. 4 5 Singh, 638 F.3d at 1206 n.5 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006)). 6 “Although an alien’s criminal record is surely relevant to a bond assessment . . . criminal history 7 alone will not always be sufficient to justify denial of bond on the basis of dangerousness. Rather, 8 the recency and severity of the offenses must be considered.” Id. at 1206. An IJ need not 9 mechanically address every Guerra factor in making a bond determination. See Guerra, 24 I. & 10 N. Dec. at 40 (noting that the IJ’s consideration “may include any or all” of the Guerra factors and 11 the IJ “may choose to give greater weight to one factor over others, as long as the decision is 12 reasonable”). 13 “Case law demonstrates that establishing dangerousness by ‘clear and convincing 14 evidence’ is a high burden and must be demonstrated in fact, not ‘in theory.’” Obregon, 2017 WL 15 1407889, at *7. It is not sufficient for the IJ to merely state the clear and convincing standard 16 correctly; the IJ’s determination must apply the standard correctly. Ramos, 293 F. Supp. 3d at 17 1030 (collecting cases). In reviewing the IJ’s determination, district courts “may not second-guess 18 the [IJ’s] weighing of the evidence.” Calmo v. Sessions, No. C 17-07124-WHA, 2018 WL 19 2938628, at *4 (N.D. Cal. June 12, 2018). A court’s review is instead limited to whether the IJ’s 20 decision reflects “clear legal error” or is unsupported by sufficient evidence. See id. at 4-5. 21 1. Danger to the Community 22 The IJ’s decision discusses Mr. Hilario’s criminal history, including his sole conviction for 23 misdemeanor battery in 2015, but the majority of the decision details the February 2019 incident 24 as described in the arrest report. After reviewing that evidence, the IJ concluded:

25 [T]he respondent has been arrested for serious offenses relating to persons and property. . . . . The respondent seeks to return to his home 26 where he previously assaulted his partner, her child, and a family friend. The Court is cognizant of the respondent’s mental-health and 27 alcohol-abuse issues, but the Court simply cannot find that his extensiveness, nature, and recency of the respondent’s criminal record 1 prevents his release during the pendency of his proceedings. 2 (Dkt. No. 9-13, Ex. L at 4.) 3 The gravamen of Mr. Hilario’s petition is that the IJ erred in relying on the February 2019 4 arrest report because Mr. Hilario pleaded not guilty to the charges stemming from that arrest, the 5 charges were subsequently dismissed, and Mr. Hilario’s partner attested to a different version of 6 events. Without citing any law, Mr. Hilario argues that “[a]n unsubstantiated police report 7 outlining past conduct, which was never relied on by the criminal court to make a single finding, 8 in a case where the charges were dismissed and no conviction resulted cannot constitute probative 9 and specific evidence sufficient to meet the government’s heavy burden of proof as to future 10 dangerousness.” (Dkt. No. 10 at 12-13; see also Dkt. No. 1 at ¶¶ 79-80 (suggesting that the IJ 11 erred in even considering the February 2019 arrest report because such evidence has “no 12 evidentiary value” under the Federal Rules of Evidence).) Mr. Hilario is wrong. See, e.g., Singh, 13 638 F.3d at 1209-10 (rejecting argument that petitioner’s due process rights were violated when IJ 14 admitted unauthenticated rap sheet into evidence and noting that “[t]he Federal Rules of Evidence 15 do not apply strictly in immigration removal proceedings”) (internal quotation marks and citation 16 omitted); Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir. 1983) (noting that immigration proceedings 17 are not “bound by strict rules of evidence,”). 18 An IJ may rely “upon any information that is available . . . or that is presented to him or 19 her” by either party. 8 C.F.R. § 1003.19(d); see also Guerra, 24 I. & N. Dec. at 39 (“In the 20 context of custody redeterminations, [IJs] are not limited to considering only criminal convictions 21 in assessing whether an alien is a danger to the community. Any evidence in the record that is 22 probative and specific can be considered.”) (emphasis and footnote omitted). The February 2019 23 arrest report was detailed, specific, and probative. Thus, the IJ did not err in considering it. 24 Mr. Hilario further argues that notwithstanding the February 2019 arrest report, the 25 Government failed to produce enough evidence that clearly and convincingly showed that he is a 26 danger given that the charges stemming from the arrest report were dismissed, his partner attested 27 that he is not violent person and the February 2019 incident was a “misunderstanding,” and he 1 error. The IJ noted that the alleged victims of the February 2019 incident did not want to 2 prosecute, and even considered that Mr. Hilario might never have been formally charged. The IJ 3 also considered Mr. Hilario’s partner’s declaration and the “letters of support from family and 4 friends,” his “strong family ties to the United States,” and his “rehabilitation plan if released.” 5 (See Dkt. No. 9-13, Ex. L at 4.) After considering the evidence, the IJ found that Mr. Hilario 6 “seeks to return to his home where he previously assaulted his partner, her child, and a family 7 friend.” (See id.) That finding did not violate due process and was instead supported by the 8 detailed facts set forth in the February 2019 arrest report. 9 The arrest report recounted that one female victim had “a contusion and redness below her 10 right eye, and a contusion to her right hand.” Another “had a contusion to the top of her head and 11 a complaint of pain to her head” and “also sustained a laceration to her left hand middle finger, 12 scratches to her neck, and redness to her face.” Yet another was not injured after Mr. Hilario hit 13 her in the head and “pulled her hair.” (Dkt. No. 1-2 at 124.) Nothing in Mr. Hilario’s partner’s 14 declaration suggests that these statements in the arrest report are false; to the contrary, she states 15 that she had to hold him down. (See id. at 26, ¶ 4.) Further, the arrest report includes statements 16 from Mr. Hilario’s step-daughter regarding Mr. Hilario’s assault on her—nothing in the record 17 contradicts her statement. It did not violate due process for the IJ to decline to release Mr. Hilario 18 to return to live with the very persons the record suggests he assaulted just last year while 19 intoxicated. 20 Mr. Hilario’s reliance on this Court’s decision in Ortega-Rangel v. Sessions, 313 F. Supp. 21 3d 993 (N.D. Cal. 2018) is unpersuasive because that case is easily distinguishable. First, the IJ in 22 Ortega-Rangel purportedly based his determination that the petitioner was a danger to the 23 community “on the totality of evidence of record,” but cited only a single arrest for possession for 24 sale of a controlled substance. See 313 F. Supp. 3d at 999, 1004. Putting aside that the possession 25 of drugs for sale poses a very different danger than returning someone to the same home where 26 there is reason to believe the person engaged in domestic violence, in Ortega-Rangel there were 27 no details in the police report or declaration supporting the petitioner’s arrest to suggest that she 1 involved in the incident described in the February 2019 arrest report—domestic violence that 2 resulted in injuries to family members and a friend. Second, other facts before the IJ in Ortega- 3 Rangel showed that the petitioner: (1) had no criminal record outside of the arrest at issue; (2) had 4 lived in the United States continuously for 18 years; and (3) had no other contact with immigration 5 authorities since her entry. Id. at 998. Here, the facts before the IJ showed: (1) multiple arrests; 6 (2) a conviction for battery; and (3) a previous instance of unlawful entry that resulted in Mr. 7 Hilario’s deportation. Simply put, Ortega-Rangel does not help Mr. Hilario. 8 Mr. Hilario’s reliance on Obregon v. Sessions is similarly unpersuasive. There the IJ 9 found that the petitioner was a danger to the community based primarily on her past DUI 10 convictions and four convictions for driving with a suspended license. 2017 WL 1407889, at *7. 11 In reviewing the IJ’s determination, the court found that it was “a close question whether [the] 12 petitioner received the due process that was due her” in light of the nature and remoteness of the 13 offenses and the petitioner’s history of treatment for alcohol abuse. See id. at *7-8. The court 14 concluded that a new bond hearing was warranted, but in doing so found “the timing of 15 [petitioner’s] motion” significant; specifically, petitioner had already been detained for 14 months 16 at that point and the bond hearing at issue had occurred over 4 months prior. See id. at *8 (“But 17 the timing of her motion is such that the remedy is at hand: it is time for a new . . . bond hearing 18 that assesses her present dangerousness based on all the relevant evidence and determines whether 19 the government has demonstrated, by clear and convincing evidence, that there are no less 20 restrictive alternatives to detention.”). 21 Here, the record presents no such “close question.” The IJ’s decision reflects consideration 22 of Mr. Hilario’s contacts with law enforcement for crimes against persons and property—with 23 special attention to his most recent arrest for an incident of domestic violence resulting in injury— 24 and concluded that the evidence in support of Mr. Hilario’s release did not mitigate the danger to 25 the community; specifically, the same community injured as a result of the February 2019 26 incident. Further, unlike in Obregon, the length of Mr. Hilario’s detention and remoteness of his 27 April 2020 bond hearing do not factor into the analysis of whether a new bond hearing is 1 In sum, the IJ’s April 2020 bond determination does not reflect a constitutional violation. 2 Because the Government needed to prove by clear and convincing evidence that Mr. Hilario is 3 either a danger to the community or a flight risk to warrant continued detention, the Court need 4 not address the IJ’s determination as to the latter. Accordingly, the Court denies in part Mr. 5 Hilario’s petition. 6 II. Due Process Claim Based on COVID-19 Pandemic 7 As previously discussed, Mr. Hilario has sought mental health treatment since being 8 detained and has been diagnosed with post-traumatic stress disorder (“PTSD”) and adjustment 9 disorder with depressed mood attributed to four instances of alleged “sexual groping” by an ICE 10 employee. (Dkt. Nos. 1 at ¶ 1 & 1-3 at 24-41.) Mr. Hilario asserts that his mental condition puts 11 him at a heightened risk for infection during the COVID-19 pandemic, and that the conditions of 12 confinement at the Yuba County Jail violate his due process rights under the Fifth Amendment to 13 be detained in a safe, humane manner due to the risk of a widespread outbreak of COVID-19 at 14 the jail. Mr. Hilario’s COVID-19 claim seeks immediate release from custody. Respondents 15 counter that the Court should stay Mr. Hilario’s COVID-19 claim because he is member of the 16 Zepeda-Rivas class and his second claim in this action seeks the same relief as sought in that case. 17 The Court agrees that a stay is warranted. 18 The background of the COVID-19 pandemic in general and the conditions at the Yuba 19 County Jail in particular have been detailed in recent cases and the Court incorporates that 20 background here. See, e.g., Zepeda-Rivas, 2020 WL 2059848, at *2; Doe, 2020 WL 1984266, at 21 *3; Ortuno, 2020 WL 1701724, at *1-4 (N.D. Cal. Apr. 8, 2020). It suffices to say that COVID- 22 19 is a highly infectious disease and the conditions of confinement at the Yuba County Jail make it 23 impossible for detainees to practice social distancing as ordered by the State of California on 24 March 19, 2020 to curb the spread of the disease. See Cal. Executive Order N-33-20, available at 25 https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf; see also 26 www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/get-ready.html. 27 On April 29, 2020, Judge Chhabria issued a temporary restraining order (“TRO”) in 1 2020 WL 2059848, at * 1-4. Judge Chhabria’s order requires “ICE to provide information and 2 access to detainees to facilitate a process of considering bail requests” and provides, in pertinent 3 part, that each class member will receive an individual determination regarding release on bail 4 during the pendency of that action: 5 IThe purpose of this order is to enable the Court to implement a system for considering individual bail applications, modeled after a 6 system created and successfully implemented by Judge Young in the District of Massachusetts to release detainees on bail while their 7 habeas cases are pending. In extraordinary cases like this, federal judges have the authority to release detainees on bail while their 8 habeas cases are pending. 9 Id. at *3. Thus, Judge Chhabria’s order provides for expedited, individual bail determinations for 10 class members in light of the COVID-19 pandemic and the conditions of confinement at the Yuba 11 County Jail. 12 It is undisputed that as a current Yuba County Jail detainee Mr. Hilario is a member of the 13 Zepeda-Rivas class. Further, class counsel in Zepeda-Rivas will submit a bail application for Mr. 14 Hilario in that action. (See Dkt. No. 10 at 17 & 10-1 at 2, ¶ 4.) The potential relief available to 15 Mr. Hilario in Zepedas-Rivas—immediate release due to the COVID-19 pandemic, the conditions 16 of confinement at the Yuba County, and his medical vulnerabilities —is the same substantive 17 relief sought in this action and is based on the same underlying facts. Accordingly, a stay pending 18 adjudication of Zepedas-Rivas is warranted. See Leyva v. Certified Grocers of California, Ltd., 19 593 F.2d 857, 863-64 (9th Cir. 1979) (“A trial court may, with propriety, find it is efficient for its 20 own docket and the fairest course for the parties to enter a stay of an action before it, pending 21 resolution of independent proceedings which bear upon the case.”); see also Calderon v. Barr, No. 22 2:20-cv-00891 KJM GGH, 2020 WL 2394287, at *4-5 (E.D. Cal. May 12, 2020) (staying Yuba 23 County jail detainee’s habeas petition seeking release due to COVID-19 pending adjudication in 24 Zepedas-Rivas). 25 Mr. Hilario’s arguments against a stay are unavailing. First, he argues that Zepedas-Rivas 26 concerns “systemic reform” at the Yuba County Jail, while his COVID-19 claim in this action 27 seeks “his own release on account of his medical vulnerabilities.” (Dkt. No. 10 at 16 (emphasis 1 whether any particular person should be released” and 1s instead “about the conditions of 2 || confinement at the facilities,” in granting the requested TRO the order expressly states that “[t]he 3 || purpose of this order is to enable the Court to implement a system for considering individual bail 4 applications.” See Zepedas-Rivas, 2020 WL 2059848, at *3 (emphasis added). In other words, 5 the order provides for the type of individual determination regarding release that Mr. Hilario seeks 6 here. Second, Mr. Hilario asserts that adjudicating his COVID-19 claim in this action “does not 7 involve any duplicative labor.” (Dkt. No. 10 at 17.) Again, the Court disagrees. Because Mr. 8 Hilario asks the undersigned to engage in the same analysis, based on the same facts, and in order 9 to provide the same relief as Judge Chhabria will undertake in considering Mr. Hilario’s bail 10 application in the first-filed action, there is of course a duplication of effort. 11 CONCLUSION 12 For the reasons set forth above, the Court DENIES in part Mr. Hilario’s petition because 5 13 || the IJ’s April 2020 bond determination did not violate due process. The Court STAYS Mr. 14 || Hilario’s COVID-19 claim pending adjudication in Zepedas-Rivas. The parties shall jointly 3 15 provide the Court with a status update on Mr. Hilario and Zepadas-Rivas within 30 days of this a 16 || Order.

17 IT IS SO ORDERED. || Datea: May 19, 2020

20 ne JAGQUELINE SCOTT CORL 21 United States Magistrate Judge 22 23 24 25 26 27 28