Martinez Leiva v. Becerra

• Court: District Court, N.D. California
• Decided: May 26, 2023
• Docket: 3:23-cv-02027
• Status: Unknown

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 CRUZ LEANDRO MARTINEZ LEIVA, Case No. 23-cv-02027-CRB

9 Plaintiff,

ORDER GRANTING PETITION FOR 10 v. WRIT OF HABEAS CORPUS, DENYING MOTION TO DISMISS 11 MOISES BECERRA, et al., 12 Defendants.

13 Petitioner Cruz Leandro Martinez Leiva (“Martinez Leiva”), a 23-year-old artist, 14 has been in immigration detention for 20 months pursuant to 8 U.S.C. § 1126(c), without 15 ever having had an individualized determination of whether he poses a risk of flight or a 16 danger. He brings this petition for habeas corpus, asking the Court to release him outright 17 or order an evidentiary hearing at which the government must demonstrate that further 18 detention is warranted. See Petition (dkt. 1); Traverse (dkt. 14). The government opposes 19 the petition and seeks dismissal of the case. See MTD/Return (dkt. 13). Because the 20 Court is persuaded that the government has violated Martinez Leiva’s constitutional right 21 to procedural due process, it GRANTS the petition and DENIES the motion to dismiss. 22 I. BACKGROUND 23 A. Fleeing El Salvador and Early Struggles in the United States 24 Martinez Leiva was born in El Salvador in 2000. CLML Decl. (dkt. 1-1) ¶ 2. His 25 father was a soldier in the Salvadoran Armed Forces and was tasked with arresting gang 26 members, including members of MS-13. Id. ¶ 5. One day after school, members of MS- 27 13 confronted Martinez Leiva; they told him that they knew that he was the son of a 1 they stayed in MS-13’s territory. Id. ¶ 6. Martinez Leiva stopped going to school because 2 he was afraid. Id. A week later, his father was attacked by members of MS-13, and only 3 got away because other soldiers intervened. Id. His family fled El Salvador the next 4 week. Id. They arrived at the Mexico-United States border on October 16, 2015. Id. ¶¶ 5 2–3. 6 United States Customs and Border Protection immediately apprehended Martinez 7 Leiva and issued a Notice to Appear, charging him as removable under 8 U.S.C. § 8 1182(a)(6)(A)(i) as a noncitizen present in the United States who has not been admitted or 9 paroled. McKee Decl. (dkt. 1-3) ¶ 4. Shortly thereafter, the family settled in Houston, 10 Texas, where Martinez Leiva enrolled in high school. CLML Decl. ¶¶ 2, 8. Martinez 11 Leiva, who had been a strong student in El Salvador, struggled in high school because he 12 did not speak English. Yolanda Decl. (dkt. 1-2) ¶ 5; CLML Decl. ¶ 8 (“It was difficult for 13 me to feel good about myself in school. I knew I could do well in school, but I got 14 discouraged not speaking any English, which was sad for me because I had loved school 15 back in El Salvador.”). Martinez Leiva’s father then abandoned the family after three 16 months in the United States. Yolanda Decl. ¶ 4. Martinez Leiva “lost [his] way.” CLML 17 Decl. ¶¶ 7, 8 (“I felt so abandoned and lost”); Yolanda Decl. ¶¶ 4–6. 18 B. Criminal Conviction 19 In January 2017, when Martinez Leiva was 16, he and a group of friends were 20 approached after school by two former students, Brian and Christian, who were over the 21 age of 18. CLML Decl. ¶ 10. Brian invited them to go on an adventure with him to Los 22 Angeles. Id. Martinez Leiva did not know where Los Angeles was in relation to Houston 23 or how long a drive it would be. Id. After a few days in Los Angeles, the brakes stopped 24 working on Brian’s car, and Martinez Leiva and his friends became anxious about how 25 they would get home. Id. ¶ 11. Brian and Christian told them that that would need to rob 26 people to get money for the car repair—that no one would get hurt, and that this would be 27 the fastest way to get home. Id. ¶ 12. Brian and Christian also told them that minors could 1 and his friends should tell the police that they were minors and then the police would let 2 them go. Id. 3 On January 31, 2017, they (primarily Brian and Christian) carjacked a woman in a 4 residential area, and then crashed the car on the side of the road. Id. ¶ 13. Martinez Leiva 5 was arrested the next day. Id. In reliance on Brian and Christian’s advice, he waived his 6 right to remain silent, waived his right to an attorney, and claimed responsibility for the 7 crimes. Id. ¶ 14. He was placed in pretrial detention in a juvenile facility but charged as 8 an adult in Los Angeles Superior Court. Id. ¶¶ 14–15. He pled no contest to California 9 Penal Code § 215(a) for carjacking and § 211 for robbery in the second degree. Id. ¶ 15. 10 He was sentenced to five years at Soledad State Prison. Id. 11 C. State Sentence 12 While in state prison, Martinez Leiva took responsibility for his life. Id. ¶ 18. He 13 became fluent in English, completed high school and made progress toward a college 14 degree at Palo Verde Community College, and held down a job, working as a painter five 15 days a week. Id. ¶ 19. Martinez Leiva completed at least eleven continuing education 16 courses, was never written up for any fights or riots, and got credit for good behavior, 17 reducing his sentence by 11.5 months. Id. ¶ 20. He worked through his trauma around his 18 father’s leaving the family, committed himself to his faith, and recommitted himself to his 19 lifelong passion for art—drawing and painting portraits, and picking up new textile skills. 20 Id. Martinez Leiva also maintained a loving relationship with his family, speaking with his 21 mother nearly every day, and speaking multiple times a week with his sister, brother, and 22 7-year-old son. Id. ¶¶ 24–25. He hoped to return to live with his family in Houston, work 23 as an industrial painter, and enroll in college upon his release. Id. ¶¶ 28–30. 24 D. Immigration Detention and Proceedings 25 An immigration court hearing took place on July 31, 2017; Martinez Leiva did not 26 appear because he was in state custody, and so he was ordered removed in absentia. 27 McKee Decl. ¶ 5. At the completion of his state criminal sentence, on September 2, 2021, 1 Annex, an immigration detention center run for profit by GEO Group, Inc. that was 2 previously used as a correctional facility. CLML ¶ 3, Petition at 8–9 n.2. 3 1. Detention at Golden State Annex 4 Martinez Leiva’s time at Golden State Annex has been very difficult:

5 The conditions at Golden State Annex are unlivable and unsanitary. There are often flies in our food, the milk we are 6 served is often spoiled, the walls of our bathrooms are covered in mold and the plumbing is broken, with leaking toilets that 7 leak blackwater all over the floors. We often have outbreaks of illness from eating contaminated food and Golden State Annex 8 has been under investigation for having inadequate medical care and abhorrent conditions for some time now. 9 CLML ¶ 27.1 Martinez Leiva participated in a hunger strike with 81 other detainees as a 10 form of peaceful protest against their perceived mistreatment at Golden State Annex. Id. 11 He believes that he was retaliated against for that hunger strike. Id. 12 Martinez Leiva participated in a class action lawsuit against ICE and GEO, alleging 13 retaliation in violation of the First-Amendment-protected right to engage in a peaceful 14 collective hunger strike. See Mendez v. ICS, No. 3:23-cv-829-TLT, Dkt. 1 (N.D. Cal. Feb. 15 23, 2023). He also filed a civil rights complaint with the DHS Office for Civil Rights and 16 Civil Liberties about the violence, retaliation, and medical neglect at Golden State Annex. 17 McKee Decl. ¶ 31, Ex. A. 18 2. Immigration Proceedings 19 While Martinez Leiva has been detained at Golden State Annex, he has participated 20 in immigration proceedings to avoid removal. On September 23, 2021, the immigration 21 judge (“IJ”) granted DHS’s motion to reopen and rescind the in absentia removal order. 22 McKee Decl. ¶ 7. The IJ changed the venue of Martinez Leiva’s removal proceedings 23 from Houston, Texas, to Van Nuys, California, the immigration court that hears removal 24 proceedings for individuals at Golden State Annex. Id. 25

26 1 The Petition lists other evidence of inadequate conditions at Golden State Annex, including a 27 January 2022 inspection by the DHS Office of Detention Oversight that concluded that Golden State Annex “was in compliance with only 14 of 24 required standards,” and a June 2022 labor 1 A number of hearings took place over the next few months: 2  On October 5, 2021, Martinez Leiva appeared in immigration court pro se 3 and was granted a continuance to seek representation. Id. ¶ 8. 4  On October 21, 2021 and November 16, 2021, the IJ granted Martinez Leiva 5 continuances because he was making efforts to find counsel. Id. ¶ 9. 6  On December 7, 2021, Martinez Leiva appeared at his Master Calendar 7 hearing with attorney Xavier Chavez, and was granted a one-week 8 continuance to request the documents DHS had filed in support of Martinez 9 Leiva’s removal. Id. ¶ 10. Chavez received those documents at the 10 December 14, 2021 Master calendar hearing. Id. 11  On January 7, 2022, Martinez Leiva, through counsel, filed an I-589 12 Application for Asylum, Withholding of Removal, and Protection under the 13 Convention Against Torture, and documents in support thereof. Id. ¶ 11. 14  On January 13, 2022, an individual hearing was set for March 22, 2022. Id. 15 ¶ 12. 16  On March 22, 2022, the IJ heard Martinez Leiva’s testimony. Id. ¶ 13. 17 Martinez Leiva testified about the gang threats his family had received in 18 connection with his father’s job. Id. The IJ found the testimony credible but 19 found that the death threats did not constitute past torture or demonstrate a 20 sufficient likelihood of future torture. Id. ¶ 14. The IJ denied relief and 21 ordered Martinez Leiva’s removal to El Salvador. Id. 22 Martinez Leiva timely filed a pro se appeal of that decision to the BIA. Id. ¶ 15. 23 He had trouble finding new counsel while in detention and got a single 21-day extension 24 for his briefing. Id. ¶ 16. He then proceeded pro se on appeal. Id. ¶ 18. 25 On August 17, 2022, the BIA adopted and affirmed the IJ’s decision. Id. ¶ 19. 26 Martinez Leiva filed a timely petition for review of the BIA’s decision, as well as a motion 27 for stay of removal, motion to proceed in forma pauperis, and motion for appointment of 1 (9th Cir. Sept. 8, 2022). On November 28, 2022, the Ninth Circuit determined that 2 “appointment of pro bono counsel would benefit the court’s review in this petition” and 3 granted the motion for appointment of counsel. Martinez-Leiva v. Garland, No. 22-1495, 4 Dkt. 12 (9th Cir. Nov. 28, 2022).2 The Circuit appointed the Cornell Law School Asylum 5 and Convention Against Torture Appellate Clinic to represent Martinez Leiva. Martinez- 6 Leiva v. Garland, No. 22-1495, Dkt. 13 (9th Cir. Jan. 3, 2023). The briefing schedule for 7 the petition for review will conclude on July 4, 2023. Id. Martinez Leiva then expects the 8 Circuit to take at least four months to issue a decision, see McKee Decl. ¶ 25. 9 On February 14, 2023, Martinez Leiva filed an administrative request to ICE 10 seeking his release from custody as a matter of prosecutorial discretion, submitting 11 evidence of his community ties, rehabilitation, educational support, community support, 12 and photographs of his art. McKee Decl. ¶ 30. ICE denied the request without mention of 13 the evidence, based on his mandatory detention. Id. 14 Martinez Leiva has been in immigration detention for 20 months. 15 II. LEGAL STANDARD 16 Federal district courts may grant writs of habeas corpus if the petitioner is “in 17 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 18 § 2241(c)(3). It shall “award the writ or issue an order directing the respondent to show 19 cause why the writ should not be granted, unless it appears from the application that the 20 applicant or person detained is not entitled thereto.” Id. § 2243. 21 In immigration cases, federal district courts lack jurisdiction to review “decision[s]” 22 for which the statute grants “discretion” to the Attorney General. 8 U.S.C. § 23 1252(a)(2)(B). Federal district courts do have jurisdiction over “constitutional claims or 24 questions of law.” Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir.2011). 25

26 2 The Petition notes that “[O]nly meritorious or otherwise deserving cases are selected for the 27 program” and that appointed counsel “have achieved at least partial reversal or other favorable termination for their client in about 50% of cases since the program began.” Petition at 52 III. DISCUSSION 1 Martinez Leiva’s habeas petition implicates three main issues: (A) whether this 2 Court has jurisdiction over the petition; (B) whether Martinez Leiva’s continued detention 3 violates Martinez Leiva’s right to substantive due process; and (C) whether Martinez 4 Leiva’s continued detention violates Martinez Leiva’s right to procedural due process.3 5 This order addresses those issues in turn, concluding that procedural due process requires 6 an individualized bond hearing. 7 A. Jurisdiction 8 The first issue the Court must resolve is one of jurisdiction. The government argues 9 first that this Court lacks jurisdiction over Martinez Leiva’s petition because habeas 10 jurisdiction only lies in the district of confinement—in this case, the Eastern District. See 11 MTD/Return at 6 (citing Rumsfeld v. Padilla, 542 U.S. 426 (2004)). The government has 12 made this same argument repeatedly and has seen it repeatedly rejected. See, e.g., Pham v. 13 Becerra, No. 23-cv-01288-CRB, 2023 WL 2744397, at *2–4 (N.D. Cal. Mar. 31, 2023) 14 (collecting cases). The Court rejects it here, too. 15 While Padilla stands for the “default rule . . . that the proper respondent is the 16 warden of the facility where the prisoner is being held,” 542 U.S. at 435, this Court has 17 explained that “Padilla did not address the question, raised in this case, of which court has 18 jurisdiction when the detainee is confined ‘in a facility run by an entity other than the 19 federal government,’” Pham, 2023 WL 2744397, at *3. Martinez Leiva, like the petitioner 20 in Pham, is detained at Golden State Annex, a private detention facility in the Eastern 21 District. See CLML Decl. ¶ 3l; Pham, 2023 WL 2744397, at *3. The Court sees no reason 22 to reach a different result in this case than it did in Pham, and again follows “Judge 23 Chhabria’s sensible rule articulated in Saravia v. Sessions, that ‘a petitioner held in federal 24 detention in a non-federal facility pursuant to a contract should sue the federal official 25 most directly responsible for overseeing that contract facility,’ 280 F. Supp. 3d at 1185.” 26

27 3 There is no question that Martinez Leiva has due process rights. “[T]he Due Process Clause 1 Pham, 2023 WL 2744397, at *4. Because Martinez Leiva has sued Field Office Director 2 Moises Becerra, who is based in this district, the Court has jurisdiction to hear the petition. 3 See also Hernandez Gomez v. Becerra, No. 34-cv-01330-WHO, 2023 WL 2802230, at *2 4 (N.D. Cal. April 4, 2023) (reaching same conclusion).4 5 B. Substantive Due Process 6 The second issue the Court must resolve is whether the government’s continued 7 detention of Martinez Leiva violates his constitutional right to substantive due process. 8 Substantive due process prohibits civil detention that is punitive in its purpose or effect, 9 including detention that is unreasonably prolonged. See Martinez Franco v. Jennings, 456 10 F. Supp. 3d 1193, 1197 (N.D. Cal. 2020) (citing Jonas v. Blanas, 393 F.3d 918, 932 (9th 11 Cir. 2004), Bell v. Wolfish, 441 U.S. 520, 536 (1979)); see also Jackson v. Indiana, 406 12 U.S. 715, 738 (1972) (as to pretrial commitment of incompetent criminal defendants, “due 13 process requires that the nature and duration of commitment bear some reasonable relation 14 to the purpose for which the individual is committed”); United States v. Salerno, 481 U.S. 15 739, 747 n.4 (1987) (as to pretrial detention, there is a “point at which detention in a 16 particular case might become excessively prolonged, and therefore punitive”). Martinez 17 Leiva argues that his detention has become unconstitutionally punitive, as: (1) it does not 18 serve any nonpunitive governmental interest because he is not a flight risk or danger to his 19 community; (2) it is excessive in relation to any governmental interest; and (3) its duration5 20 exceeds the bounds of due process. See Petition at 18–23. The government does not 21 squarely address this claim as applied to Martinez Leiva, instead relying on general 22 language from Demore v. Kim, 538 U.S. 510, 527–28 (2003), that “detention during 23 deportation proceedings is a constitutionally valid aspect of the deportation process” and 24 25 4 The Court further rejects the government’s argument, see MTD/Return at 4–5, 15–16, that Becerra is a sham defendant whose presence does not support venue. See Pham, 2023 WL 26 2744397, at *4 (“Both AAFOD Gonzalez and DFOD Cruz report to FOD Becerra; thus, Becerra, and not Gonzalez or Cruz, exercises control over [Martinez Leiva’s] physical custody.”). 27 5 To be clear, the issue here is prolonged detention, not indefinite detention. See Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018) (“detention under § 1226(c) has ‘a definite termination 1 that detaining “deportable criminal aliens pending their removal proceedings [per 8 U.S.C. 2 § 1226(c)] . . . . necessarily serves the purpose of preventing deportable criminal aliens 3 from fleeing prior to or during their removal proceedings, thus increasing the chance that, 4 if ordered removed, the aliens will be successfully removed.” See MTD/Return at 16–17; 5 but see Traverse at 5–7 (asserting that the government did not address the substantive due 6 process issue at all and so conceded it). 7 Demore is an appropriate starting point. Martinez Leiva’s detention pursuant to 8 8 U.S.C. § 1226(c) did not start out being punitive because it serves the valid government 9 purpose of preventing him from fleeing or causing harm during his removal proceedings. 10 Demore, 538 U.S. at 527–28; see also Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (civil 11 detention in immigration proceedings is “nonpunitive in purpose and effect”). Martinez 12 Leiva’s argument that his detention has become punitive because he does not pose a risk of 13 flight or a danger—pointing to his family ties, the real possibility that he will succeed in 14 his petition for review, and his rehabilitation, see Petition at 19–23—might be correct. But 15 that is what bond hearings are for. 16 The same is true of Martinez Leiva’s argument that continued detention is excessive 17 in relation to the government’s interest, given alternatives like ICE’s Intensive Supervision 18 Appearance Program. See id. at 20–21. It is correct only if he is correct that he poses no 19 risk (or a manageable risk) of flight or danger, something that he has not yet had the 20 opportunity to prove. See Crespo v. Baker, No. 11-cv-3019-IEG, 2012 WL 1132961, at 21 *5–6 (S.D. Cal. Apr. 3, 2012) (“Petitioner may be able to prove . . . that he is not a threat 22 to the community and the United States, but he has not done so yet.”). This is not a case, 23 like the COVID-19 cases that Martinez Leiva cites, where a court can readily determine 24 that the conditions of confinement have become excessive in relation to an individual’s 25 risk of flight or danger. See Petition at 23 (citing Bent v. Barr, 445 F. Supp. 3d 408, 414– 26 15, 421 (N.D. Cal. 2020); Doe v. Barr, No. 20-cv-02151-LB, 2020 WL 1820667, at *8–11 27 (N.D. Cal. April 12, 2020)); see also Pimentel-Estrada v. Barr, 458 F. Supp. 3d 1226 1 described as punitive, the situation has drastically changed given the unique and 2 unprecedented threat posed by COVID-19. . . . due to his age and underlying health 3 conditions. These conditions create far more serious consequences for Petitioner than are 4 justified by Respondent’s need to ensure his presence at removal”).6 The conditions 5 Martinez Leiva describes at Golden State Annex are certainly problematic, see Petition at 6 8–11, but they are largely problematic for all detainees there in the same way. The 7 particularized point Martinez Leiva makes—that his time exposed to the conditions at 8 Golden State Annex is excessive in light of less harsh alternatives that would provide 9 adequate supervision for him—is one that he has not yet had the opportunity to 10 demonstrate. 11 Nor will the Court conclude that that the duration of Martinez Leiva’s detention, in 12 and of itself, exceeds the bounds of substantive due process. See Petition at 21–23. 13 Martinez Leiva cites to no cases so holding in this context.7 He relies on United States v. 14 Torres, 995 F.3d 695, 709–10 (9th Cir. 2021), in which a criminal defendant was detained 15 for 21 months while awaiting trial because the court was closed due to the pandemic. Id. 16 at 21–22. The Circuit recognized as “undisputed” that “at some point, pretrial detention 17 can ‘become excessively prolonged, and therefore punitive.’” 995 F.3d at 708. But it 18 analyzed the question using, among other factors, the evidence supporting detention under 19 the Bail Reform Act (not relevant here), id., and it actually concluded that the defendant’s 20 21-month detention did not violate due process, though 21 months was “approaching the 21 limits of what due process can tolerate,” id. at 709. 22 Here, the issue is best framed not as whether 20 months in immigration detention is 23 24 6 The Court notes that all three of these cases were decided at the beginning of the COVID-19 pandemic, and that the courts came to decide these issues in the context of motions for 25 compassionate release with great frequency. See Stirling v. Salazar, No. 3:20-cv-00712-SB, 2022 WL 16948810, at *7–10 (D. Or. Nov. 15, 2022) (recounting history of how individuals in federal 26 custody sought COVID-related release). 7 Cases that do address the issue seem to dispose of it rather quickly. See, e.g., Singh v. Barr, 400 27 F. Supp. 3d 1005, 1013 (S.D. Cal. 2019) (rejecting argument that length of immigration detention had “become so prolonged that it is no longer reasonably-related to its purpose of securing him in 1 excessive, full stop, but whether it is excessive for Martinez Leiva given the absence of an 2 individualized bond hearing. See Casas-Castrillon v. Dept. of Homeland Sec., 535 F.3d 3 942, 950 (9th Cir. 2008) (“Even where detention is permissible, however, due process 4 requires ‘adequate procedural protections’ to ensure that the government’s asserted 5 justification for physical confinement ‘outweighs the individual’s constitutionally 6 protected interest in avoiding physical restraint.’”) (quoting Zadvydas, 533 U.S. at 690), 7 overruled on other grounds by Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018). Indeed, 8 the overwhelming number of cases the Court has reviewed that allege prolonged detention 9 under 8 U.S.C. § 1226(c) assert that the prolonged detention violated the detainee’s 10 procedural due process in the absence of a bond hearing. See also Martinez v. Clark, 36 11 F.4th 1219, 1223 (9th Cir. 2022) (“district courts throughout this circuit have ordered 12 immigration courts to conduct bond hearings for noncitizens held for prolonged periods 13 under § 1226(c). . . . According to one such court order, the ‘prolonged mandatory 14 detention pending removal proceedings, without a bond hearing, will—at some point— 15 violate the right to due process.’”) (quoting Martinez v. Clark, No. 18-cv-01669-RAJ, 16 2019 WL 5962685, at *1 (W.D. Wash. Nov. 13, 2019)). 17 Accordingly, the Court turns to Martinez Leiva’s procedural due process claim. 18 C. Procedural Due Process 19 The third and final issue the Court must resolve is whether the government’s 20 continued detention of Martinez Leiva without a bond hearing violates his constitutional 21 right to procedural due process. Detention violates due process absent “adequate 22 procedural protections” or “special justification[s]” sufficient to outweigh the 23 “‘constitutionally protected interest in avoiding physical restraint.’” Zadvydas, 533 U.S. at 24 690 (quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)). Section 1226(c), titled 25 “Detention of Criminal Aliens,” instructs that the government “shall take into custody any 26 alien” who has committed various types of criminal offenses “when the alien is released.” 27 The Supreme Court and Ninth Circuit have addressed the meaning, application, and 1 DMR, 2022 WL 17082375, at *6 (N.D. Cal. Nov. 18, 2022) (“The Supreme Court and the 2 Ninth Circuit have long ‘grappled in piece-meal fashion with whether the various 3 immigration detention statutes may authorize indefinite or prolonged detention of 4 detainees and, if so, may do so without providing a bond hearing.’”) (quoting Rodriguez v. 5 Hayes, 591 F.3d 1105, 1114 (9th Cir. 2010)). The Court in Demore held that section 6 1226(c) was constitutional on its face. 538 U.S. at 530. The Court in Jennings v. 7 Rodriguez, 138 S. Ct. 830, 847 (2018), held that the statutory text of section 1226(c) does 8 not provide for the imposition of periodic bond hearings during detention pending a 9 removal decision. However, Jennings left open the question of whether prolonged 10 detention without a bond hearing violates the Due Process Clause of the Fifth Amendment. 11 Salesh P., 2022 WL 17082375, at *7 (citing Rodriguez v. Marin, 909 F.3d 252, 256 (9th 12 Cir. 2018)); see also Rodriguez, 909 F.3d at 256 (“We have grave doubts that any statute 13 that allows for arbitrary prolonged detention without any process is constitutional”). 14 Courts in this district have concluded that “a petitioner being held under § 1226(c) may 15 make an as-applied due process argument to support a request for a bond hearing.” 16 Hernandez Gomez, 2023 WL 2802230, at *5. 17 There is “a dearth of guidance regarding the point at which an individual’s 18 continued mandatory detention under Section 122(c) becomes unconstitutional.” Gonzalez 19 v. Bonnar, 18-cv-5321-JSC, 2019 WL 330906, at *3 (N.D. Cal. Jan. 25, 2019). This Court 20 declines Martinez Leiva’s invitation to adopt a bright-line rule at six months of detention. 21 See Petition at 24–25 (noting that one court in this district has done so); see also 22 Hernandez Gomez, 2023 WL 2802230, at *3 (rejecting six month rule); Salesh P., 2022 23 WL 17082375, at *7 (rejecting six month rule).8 Rather, the Court will apply the three 24 factors from Mathews v. Eldridge, 424 U.S. 319, 335 (1976), to determine what the 25 “specific dictates of due process” require in this particular case: “First, the private interest 26

27 8 Nor will the Court follow German Santos v. Warden Pike County Correctional Facility, 965 F.3d 1 that will be affected by the official action; second, the risk of an erroneous deprivation of 2 such interest through the procedures used, and the probable value, if any, of additional or 3 substitute procedural safeguards; and finally, the Government’s interest, including the 4 function involved and the fiscal and administrative burdens that the additional or substitute 5 procedural requirements would entail.” 6 1. Private Interest 7 The “main private interest at stake” in this case is Martinez Leiva’s interest in 8 “[f]reedom from imprisonment—from government custody, detention, or other forms of 9 physical restraint.” Perera v. Jennings, No. 21-CV-4136-BLF, 2021 WL 2400891, at *4 10 (N.D. Cal. June 11, 2021) (quoting Zadvydas, 533 U.S. at 690). The interest in “freedom 11 from prolonged detention” is “unquestionably substantial.” See Singh, 638 F.3d at 1208. 12 And it persists no matter the length of detention. See id. (quoting Rajnish v. Jennings, No. 13 3:20-cv-07819-WHO, 2020 WL 7626414, at *6 (N.D. Cal. Dec. 22, 2020)). Nor is this 14 interest extinguished because Martinez Leiva is detained under section 1226(c). See 15 Pham, 2023 WL 2744397, at *5–6. Indeed, Martinez Leiva’s interest is heightened in light 16 of the significant length of time (20 months)9 he has been detained, see Zadvydas, 533 17 U.S. at 690, 696, and in light of his strong desire to rejoin his family and to meet his young 18 son, see Petition at 27. 19 The government asserts that the Court should take into account the process that 20 Martinez Leiva has already received, making much of his “custody reviews.” 21 MTD/Return at 2, 3, 23–24. Some portions of the government’s brief actually refer to 22 Martinez Leiva as having had a “bond hearing.” Id. at 2 (“he has already been afforded a 23 bond hearing before a neutral decisionmaker”), 23–24 (“Petitioner requested and was 24 granted a bond hearing”). But the documents to which the government cites in support of 25 that assertion are Martinez Leiva’s “motion for bond determination,” the DHS submission, 26 and the IJ’s form order, which checks off “Denied, because 236(c)-mandatory detention.” 27 1 Id. (citing to Munoz Decl. (dkt. 13-1), Exs. L (dkt. 13-13), M (dkt. 13-14), N (dkt. 13-15)). 2 These documents do not reflect a substantive bond hearing at which a neutral 3 decisionmaker made an individualized assessment of Martinez Leiva’s dangerousness or 4 risk of flight. See id. at 25 (“What is clear from the record is that the IJ found Petitioner 5 subject to mandatory detention under 8 U.S.C. § 1226(c).”). Rather, they were instances in 6 which an IJ concluded that Martinez Leiva was statutorily ineligible for bond. Traverse at 7 11 (citing Munoz Decl. Ex. N). Martinez Leiva has never had a bond hearing at which a 8 neutral decision maker determined whether he is a risk of flight or a danger. Id. at 1, 11. 9 He has not had the process that is available to non-citizens detained under section 1226(a). 10 See Rodriguez Diaz v. Garland, 53 F.4th 1189, 1202 (9th Cir. 2022) (noting the “extensive 11 procedural protections [for section 1226(a) detainees] that are unavailable under other 12 detention provisions” including “an initial bond hearing before a neutral decisionmaker”). 13 The government also asserts that “Petitioner’s time in detention is principally due to 14 his own litigation choices, including numerous continuances before the IJ, a briefing 15 extension before the BIA, and seeking successive appeals of the agency’s decisions.” 16 MTD/Return at 24. The extensions Martinez Leiva sought were not excessive or 17 inappropriate. See McKee Decl. ¶¶ 8–25. And “[t]he duration and frequency of these 18 requests do not diminish his significant liberty interest in his release or his irreparable 19 injury of continued detention without a bond hearing.” Hernandez Gomez, 2023 WL 20 2802230, at *4 (citing Masood v. Barr, No. 19-cv-7623-JD, 2020 WL 95633, at *3 (N.D. 21 Cal. Jan. 8, 2020)). 22 2. Risk of Erroneous Deprivation 23 While it is not for the Court to decide the ultimate question of whether Martinez 24 Leiva should be granted bond, he has offered persuasive evidence—of his rehabilitation, 25 education, family ties, growing maturity, life goals, and the potential for a favorable 26 outcome before the Ninth Circuit, which he is doggedly pursuing—that he does not pose a 27 danger or present a flight risk. But he has received no process at all on the question of his 1 high. See Pham, 2023 WL 2744397, at *6. The government’s assertion that “There is no 2 risk of erroneous deprivation—i.e., no ‘value of providing [Petitioner] with a hearing,’” 3 see MTD/Return at 25 (quoting Perera, 2021 WL 2400981, at *4), is wrong.10 Demore, 4 which did not reach the constitutional question at issue here, does not hold otherwise. 5 3. Government Interest 6 Finally, the government’s interest in continued detention absent a bond hearing is 7 low. See Hernandez Gomez, 2023 WL 2802230, at *4. While the government certainly 8 has an interest in the “efficient administration of immigration laws” and the administrative 9 burdens inherent in additional procedural protections, Landon v. Plasencia, 459 U.S. 21, 34 10 (1982),11 “the governmental issue at stake in this [petition] is the ability to detain Petitioner 11 without providing him with [a] bond hearing, not whether the government may continue to 12 detain him” at all,Lopez Reyes v. Bonnar, 362 F. Supp. 3d 765, 777 (N.D. Cal. 2019). 13 “Requiring the government to provide [Martinez Leiva] with a bond hearing does not 14 meaningfully undermine the government’s interest in detaining non-citizens who pose a 15 danger to the community or are a flight risk.” See Perera, 2021 WL 2400981, at *5. 16 Balancing the Mathews factors, Martinez Leiva has demonstrated that his continued 17 detention absent a bond hearing violates his right to procedural due process. “A hearing 18 would serve a valuable purpose in combatting any erroneous deprivation of [Martinez 19 Leiva’s] constitutional rights.” See id. Indeed, numerous courts in this district have held 20 that continued detention without a bond hearing for detainees held under the same statute 21 for less time than Martinez Leiva violates due process. See, e.g., Jimenez v. Wolf, No. 19- 22 cv-7996-NC, 2020 WL 510347, at *1, *2, *4 (N.D. Cal. Jan. 30, 2020) (just over one 23 year); Hernandez Gomez, 2023 WL 2802230, at *4 (sixteen months); Gonzalez, 2019 WL 24 25 10 As the Court explained in Pham, “[t]he government’s argument that there is no risk of erroneous deprivation because Pham is subject to mandatory detention without bond under § 1226(c), see 26 Opp’n at 21, is circular. . . . successful due process challenges to mandatory detention would require additional process—i.e., more than none—such as a bond hearing where the government 27 must show that continued detention is justified.” Pham, 2023 WL 2744397, at *6 n.9. 11 See also Rodriguez Diaz, 53 F.4th at 1208 (holding in section 1226(a) case that “protecting the 1 || 330906, at *3—5 (just over a year) (noting that “as detention continues past a year, courts 2 || become extremely wary of permitting continued custody absent a bond hearing”) (internal 3 || quotation marks omitted). 4 D. Remedy 5 The Court further concludes that the appropriate remedy here is a bond hearing,’ 6 || and that an IJ, not the Court, should conduct it, see Rodriguez v. Robbins, 804 F.3d 1060, 7 1084 (9th Cir. 2015), rev'd, Jennings, 138 S. Ct. 830; Mansoor v. Figueroa, No. 17-cv- 8 || 01695-GPC (NLS), 2018 WL 840253, at *4 (S.D. Cal. Feb. 13, 2018) (“The Court finds 9 || the IJ is uniquely qualified and situated to make neutral administrative determinations 10 || about Petitioner’s eligibility for release on bond and/or placement in a supervised release 11 |] program such as ISAP.”). As numerous other courts in this district have held, the 12 || government shall bear the burden, at that hearing, of proving by clear and convincing 13 evidence that further detention is warranted. See Hernandez Gomez, 2023 WL 2802230, 14 || at *4 (collecting cases). The Court therefore rejects the government’s argument that 3 15 || Singh, 638 F.3d at 1203, is no longer good law on this point. See Pham, 2023 WL 16 || 2744397, at *7 (‘Absent controlling authority to the contrary, the reasoning of Singh and 5 17 || its holding remains applicable to § 1226(c) cases, like this one, where there is a 18 || ‘substantial liberty interest at stake.””). 19 || Iv. CONCLUSION 20 For the foregoing reasons, the Court GRANTS the petition, DENIES the motion to 21 || dismiss, and ORDERS that an IJ conduct a bond hearing within ten days of this order. 22 IT ISSO ORDERED. - 23 Dated: May 26, 2023 CHARLES R. BREYER 24 United States District Judge 25 26 27 | 22 see Lopez v. Garland, No. 22-cv-0531-SAB-HC, 2022 WL 4586413, at *9 (ED. Cal. Sept. 29, 28 || a bond hearing before an immigration judge rather than immediate release”).