Bello-Reyes v. Gaynor, No. 19-16441 (9th Cir. 2021)
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The Ninth Circuit reversed the district court's denial of a petition for habeas relief under 28 U.S.C. 2241, and remanded for application of the standard from Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), the default rule for First Amendment retaliation claims.
The panel held that the Supreme Court's recent decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), holding that the presence of probable cause generally defeats a retaliatory criminal arrest claim under 42 U.S.C. 1983, does not apply to a noncitizen's claim that ICE unconstitutionally retaliated against him for his speech when revoking his bond and rearresting him. In this case, petitioner had been detained by ICE and released on bond in 2018. After petitioner spoke publicly at a rally in 2019 and read his poem, entitled "Dear America," in which he criticized ICE practices, ICE revoked his bond and re-arrested him. The panel explained that Nieves is not applicable because problems of causation that may counsel for a no probable cause standard are less acute in the habeas context. Furthermore, Nieves arose out of the criminal arrest context where "evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case." The panel explained that this reasoning does not translate to the immigration bond revocation context.
Court Description: Immigration. In a case in which Jose Omar Bello-Reyes filed a petition for a writ of habeas corpus under 8 U.S.C. § 2241, arguing that his immigration arrest and re-detention was retaliation for his protected speech, the panel reversed the district court’s denial of the petition and remanded for application of the standard from Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). In 2018, Bello was detained by Immigration and Customs Enforcement (“ICE”) and released on bond and, in April 2019, he was convicted of driving under the influence. On May 13, 2019, Bello spoke publicly at a rally and read his poem, entitled “Dear America,” in which he criticized ICE practices. Less than thirty-six hours later, ICE revoked his bond and re-arrested him. In denying Bello’s habeas petition, the magistrate judge relied on Nieves v. Bartlett, 139 S. Ct. 1715 (2019), in which the Supreme Court held that the presence of probable cause generally defeats a retaliatory criminal arrest claim under 42 U.S.C. § 1983. The panel concluded that Nieves did not control here. First, the panel explained that problems of causation that may counsel for a no probable cause standard are less acute in the habeas context. Specifically, in § 1983 suits, the plaintiff must identify the official or officials who violated his constitutional rights, but that is not so in habeas. Second, the BELLO-REYES V. GAYNOR 3 panel explained that Nieves arose out of the criminal context, where evidence of probable cause for arrest will be available in virtually every retaliatory arrest case, but that this reasoning does not translate to the immigration bond revocation context, where probable cause is not necessary, and the decision is completely discretionary. The panel remanded to the district court to apply the Mt. Healthy standard, the default rule for First Amendment retaliation claims. Under Mt. Healthy, once a petitioner has made a showing of a retaliation claim, the burden shifts to the government to show that it would have taken the same action even in the absence of the protected conduct. The panel explained that the district court applied this standard incorrectly, but that it correctly remarked that the timing of ICE’s decision to re-arrest Bello was highly suggestive of retaliatory intent.
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