Javier De Santiago Perez v. William Barr

• Court: District Court, C.D. California
• Decided: August 26, 2020
• Docket: 5:19-cv-02262
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JAVIER DE SANTIAGO-PEREZ, ) Case No. EDCV 19-2262-CJC (JPR) 11 ) Petitioner, ) ORDER ACCEPTING FINDINGS AND 12 ) RECOMMENDATIONS OF U.S. v. ) MAGISTRATE JUDGE 13 ) WILLIAM BARR, Attorney ) 14 General, et al., ) ) 15 Respondents. ) ) 16 17 The Court has reviewed the Petition, records on file, and 18 Report and Recommendation of U.S. Magistrate Judge, which 19 recommends that the Petition (as narrowed in the Reply) be 20 granted and Respondents be ordered to give Petitioner a bond 21 hearing within 30 days and each six months thereafter until his 22 ICE custody ends or the injunction modified in Rodriguez v. 23 Robbins, 804 F.3d 1060 (9th Cir. 2015) (“Rodriguez III”), rev’d & 24 remanded sub nom. by Jennings v. Rodriguez, 138 S. Ct. 830 25 (2018), is vacated. See 28 U.S.C. § 636(b)(1). On August 6, 26 2020, Respondents filed objections to the R. & R.; on August 20, 27 Petitioner filed a response. 28 Respondents concede that the permanent injunction issued in 1 1 Rodriguez v. Holder, No. CV 07-3239 TJH(RNBx), 2013 WL 5229795 2 (C.D. Cal. Aug. 6, 2013), remains in place as a preliminary 3 injunction and requires the government to conduct a bond hearing 4 for class members who have been detained longer than six months. 5 (Objs. at 1-2.) They also concede that the Ninth Circuit, when 6 reviewing that injunction in Rodriguez III, held that the 7 government must conduct periodic bond hearings for class members 8 every six months. (Id.) But despite acknowledging in their 9 original briefing that the Ninth Circuit’s periodic-bond-hearing 10 ruling “modified the District Court’s permanent injunction” (see 11 Resp’t’s Suppl. Return at 1), they now argue that the Magistrate 12 Judge erred in so finding (see Objs. at 2; R. & R. at 7, 9). 13 As the Magistrate Judge pointed out and Respondents have not 14 even tried to refute, they have repeatedly argued before various 15 courts that the injunction requiring periodic bond hearings 16 remains in place after Jennings but should be vacated. (See R. & 17 R. at 8-9; see generally Objs. (nowhere disputing that they have 18 so argued).) As the Magistrate Judge noted, both the district 19 court and the Ninth Circuit have rejected that argument in the 20 Rodriguez litigation (see R. & R. at 8-9), and at least one other 21 court has found that even after Jennings the Rodriguez injunction 22 requires periodic bond hearings. See Meza v. Bonnar, No. 23 18-cv-02708-BLF, 2018 WL 2151877, at *2 (N.D. Cal. May 10, 2018) 24 (“Pending determination on the merits of the constitutional 25 issue, the Ninth Circuit has denied the government’s motion to 26 vacate a permanent injunction requiring periodic bond hearings 27 for detailed [sic] aliens.”). Respondents’ arguments here that 28 the periodic-bond-hearing requirement has somehow magically 2 1 dissipated should not be countenanced. Cf. United States v. 2 Liquidators of Eur. Fed. Credit Bank, 630 F.3d 1139, 1149 (9th 3 Cir. 2011) (government judicially estopped from taking position 4 inconsistent with that in prior proceeding); Davila-Bardales v. 5 I.N.S., 27 F.3d 1, 5 (1st Cir. 1994) (finding troubling “prospect 6 of a government agency treating virtually identical legal issues 7 differently in different cases, without any semblance of a 8 plausible explanation”). 9 Respondents claim for the first time in their Objections 10 that although the Ninth Circuit clearly directed the district 11 court to modify the injunction to include periodic bond hearings, 12 see Rodriguez III, 804 F.3d at 1090, the lower court never 13 actually did so (see Objs. at 2). As an initial matter, the 14 district court certainly seems to think it did. (See Suppl. 15 Return, Ex. 11 at 4 (district court rejecting Respondents’ motion 16 to vacate injunction, including portion requiring periodic bond 17 hearings, because “the Ninth Circuit, on remand from the Supreme 18 Court, left the permanent injunction in place pending 19 consideration of the constitutional issues”).) But in any event, 20 any such procedural glitch would not render the Ninth Circuit’s 21 express modification void — or not binding on this Court — and 22 Respondents cite no law to the contrary. Under Respondents’ 23 reasoning, the district court’s original injunction remains in 24 place (see Objs. at 2 & n.2); but it applied to noncitizens 25 detained under 8 U.S.C. § 1231(a), and Rodriguez III held that 26 they are “not members of the certified class.” 804 F.3d at 1074. 27 Respondents are clearly wrong. See Flores Tejada v. Godfrey, 954 28 F.3d 1245, 1250 n.4 (9th Cir. 2020) (“Rodriguez III made clear 3 1 that aliens detained pursuant to § 1231(a)(6) were not class 2 members in that case.”). 3 Flores Tejada, cited by Respondents (see Objs. at 2-3), has 4 no bearing on the issues here and in dictum actually undermines 5 their position. In it, the Ninth Circuit reviewed a statute- 6 based periodic-bond-hearing order for those in withholding-only 7 proceedings and held that Rodriguez III did not support such a 8 requirement. 954 F.3d at 1249-51. But as Petitioner points out 9 (see Resp. at 8), Flores Tejada addressed only whether bond 10 hearings were required under § 1231(a)(6) and not under the 11 statutes at issue in Rodriguez III and here (or the Constitution, 12 which is what the continuing proceedings in Rodriguez concern). 13 See Flores Tejada, 954 F.3d at 1250 n.4. Flores Tejada 14 affirmatively noted that “Rodriguez . . . imposed additional 15 procedural requirements” — bond hearings every six months — “with 16 respect to aliens detained pursuant to §§ 1225, 1226(a), and 17 1226(c).” Id. Because the Rodriguez injunction requiring 18 periodic bond hearings remains in place during adjudication of 19 the constitutional issue, a circumstance that is not at all 20 unusual (see R. & R. at 7-8), Petitioner is entitled to such 21 hearings no matter how skeptical Flores Tejada might have been 22 concerning whether the Ninth Circuit or the Supreme Court will 23 eventually find those hearings required by the Constitution. 24 Having reviewed de novo those portions of the R. & R. to 25 which Respondents object, the Court agrees with and accepts the 26 findings and recommendations of the Magistrate Judge. IT 27 THEREFORE IS ORDERED that Petitioner’s request for judicial 28 notice is granted, the Petition as narrowed in the Reply is 4 1 || granted, and Respondents must give Petitioner a bond hearing within 30 days and then every six months thereafter until his ICE 3 || custody ends or the injunction modified in Rodriquez III is 4 || vacated.?

6 | parep August 26, 2020 / CORMAC J. CARNEY 7 U.S. DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 Because the Magistrate Judge correctly found that Petitioner 22 is entitled to periodic bond hearings under the Rodriquez injunction, she properly did not address his constitutional 23 argument, and this Court refrains from doing so as well. Thus, Respondents’ argument that Petitioner must seek any constitutional 24 ||relief as a member of the class in Rodriquez (Return at 12; see 25 also Objs. at 3-4) is moot. Respondents argue in a footnote, without citing any authority, that “[a]lternatively, to the extent 26 [Petitioner] believes the government is violating the injunction by failing to provide periodic hearings, he may seek to raise that 27 || issue in Rodriquez itself.” (Objs. at 4 n.5.) They do not argue that he must do so, however, and the Court declines to research the 28 | issue for them.