Ortiz v. Barr

W.D. Washington

Ortiz v. Barr

DecidedOctober 6, 2020

Docket2:20-cv-00497

StatusUnknown

This text of Ortiz v. Barr (Ortiz v. Barr) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ortiz v. Barr, (W.D. Wash. 2020).

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 FRANCISCO MUNOZ ORTIZ , 9 Petitioner, CASE NO. C20-497-RSM-BAT 10 v. ORDER ADOPTING REPORT AND RECOMMENDATION 11 WILLIAM PELHAM BARR, 12 Respondents.

13 This matter comes before the Court on review of the Report and Recommendation 14 (“R&R”) of the Honorable Brian A. Tsuchida, United States Magistrate Judge. Dkt. #25. 15 Respondents object to the R&R for only one reason: “the Report and Recommendation erred in 16 finding that due process requires the Government to justify prolonged detention by clear and 17 convincing evidence at an alien’s bond redetermination hearing pursuant to Immigration and 18 Naturalization Act (‘INA’) § 236(a), 8 U.S.C. § 1226(a).” Dkt. #26 at 1. 19 The Court finds no error in Judge Tsuchida’s citation to Singh v. Holder, 638 F.3d 1196, 20 1203-05 (9th Cir. 2011) for the proposition that due process required the government to justify 21 prolonged civil detention by clear and convincing evidence at Petitioner’s most recent bond 22 hearing. Respondents argue that “a constitutional requirement shifting the burden of proof to the 23 Government for § 236(a) bond hearings does not exist,” Dkt. #26 at 5, however Petitioner is correct 1 that this Court like many other district courts in the Ninth Circuit disagree with Respondents’ 2 narrow application of Singh, see Dkt. #27 at 3–4 (citing, inter alia, Calderon-Rodriguez v. Wilcox, 3 374 F. Supp. 3d 1024 (W.D. Wash. 2019). 4 Accordingly, having reviewed the R&R, Respondents’ Objections and Petitioner’s 5 Response to that, and the remaining record, the Court finds and ORDERS:

6 (1) The Court ADOPTS the Report and Recommendation. 7 (2) The Government’s Motion to Dismiss, Dkt. #13, is GRANTED in part and 8 DENIED in part. 9 (3) Petitioner’s habeas petition and complaint for injunctive relief, Dkt. #12, is 10 GRANTED in part and DENIED in part. 11 (4) Petitioner’s request for immediate release is DENIED. 12 (5) The Government shall provide Petitioner with a new bond hearing within 30 days 13 of the date of this order. The bond hearing must comply with the procedural requirements of Singh 14 v. Holder, 638 F.3d 1196 (9th Cir. 2011). If the Government fails to provide Petitioner with a new

15 bond hearing, the Court will grant Petitioner’s habeas petition requesting release. 16 (6) The Clerk is directed to send copies of this Order to the parties and to Judge 17 Tsuchida. 18 Dated this 6th day of October, 2020. 19 20 21 RICARDO S. MARTINEZ 22 CHIEF UNITED STATES DISTRICT JUDGE

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 FRANCISCO MUNOZ ORTIZ , 9 Petitioner, CASE NO. C20-497-RSM-BAT 10 v. ORDER ADOPTING REPORT AND RECOMMENDATION 11 WILLIAM PELHAM BARR, 12 Respondents.

13 This matter comes before the Court on review of the Report and Recommendation 14 (“R&R”) of the Honorable Brian A. Tsuchida, United States Magistrate Judge. Dkt. #25. 15 Respondents object to the R&R for only one reason: “the Report and Recommendation erred in 16 finding that due process requires the Government to justify prolonged detention by clear and 17 convincing evidence at an alien’s bond redetermination hearing pursuant to Immigration and 18 Naturalization Act (‘INA’) § 236(a), 8 U.S.C. § 1226(a).” Dkt. #26 at 1. 19 The Court finds no error in Judge Tsuchida’s citation to Singh v. Holder, 638 F.3d 1196, 20 1203-05 (9th Cir. 2011) for the proposition that due process required the government to justify 21 prolonged civil detention by clear and convincing evidence at Petitioner’s most recent bond 22 hearing. Respondents argue that “a constitutional requirement shifting the burden of proof to the 23 Government for § 236(a) bond hearings does not exist,” Dkt. #26 at 5, however Petitioner is correct 1 that this Court like many other district courts in the Ninth Circuit disagree with Respondents’ 2 narrow application of Singh, see Dkt. #27 at 3–4 (citing, inter alia, Calderon-Rodriguez v. Wilcox, 3 374 F. Supp. 3d 1024 (W.D. Wash. 2019). 4 Accordingly, having reviewed the R&R, Respondents’ Objections and Petitioner’s 5 Response to that, and the remaining record, the Court finds and ORDERS:

6 (1) The Court ADOPTS the Report and Recommendation. 7 (2) The Government’s Motion to Dismiss, Dkt. #13, is GRANTED in part and 8 DENIED in part. 9 (3) Petitioner’s habeas petition and complaint for injunctive relief, Dkt. #12, is 10 GRANTED in part and DENIED in part. 11 (4) Petitioner’s request for immediate release is DENIED. 12 (5) The Government shall provide Petitioner with a new bond hearing within 30 days 13 of the date of this order. The bond hearing must comply with the procedural requirements of Singh 14 v. Holder, 638 F.3d 1196 (9th Cir. 2011). If the Government fails to provide Petitioner with a new

15 bond hearing, the Court will grant Petitioner’s habeas petition requesting release. 16 (6) The Clerk is directed to send copies of this Order to the parties and to Judge 17 Tsuchida. 18 Dated this 6th day of October, 2020. 19 20 21 RICARDO S. MARTINEZ 22 CHIEF UNITED STATES DISTRICT JUDGE

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