Domingo-Jimenez v. Johnson, No. 3:2016cv05431 - Document 29 (N.D. Cal. 2017)
Court Description: ORDER GRANTING MOTION TO DISMISS HABEAS PETITION [re 28 MOTION Consideration of Jorjani Declaration filed by Carlos Romeo Domingo-Jimenez, 22 MOTION to Dismiss for Lack of Jurisdiction filed by Steven L. Durfor, Loretta M. Lynch, Jeh C. Johnson, Thomas J. Decker]. Signed by Judge William Alsup on 1/19/2017. (whasec, COURT STAFF) (Filed on 1/19/2017)
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Domingo-Jimenez v. Johnson Doc. 29 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 CARLOS R. DOMINGO-JIMENEZ, 11 For the Northern District of California United States District Court 10 12 13 14 15 16 Petitioner, No. C 16-05431 WHA v. LORETTA E. LYNCH, Attorney General of the United States, JEH C. JOHNSON, Secretary of the United States Department of Homeland Security, THOMAS DECKER, Field Office Director, and STEVEN L. DURFOR, Sheriff-Coroner of Yuba County in charge of Yuba County Jail, ORDER GRANTING MOTION TO DISMISS HABEAS PETITION Respondents. 17 / 18 INTRODUCTION 19 20 In this petition for habeas relief, respondents seek dismissal following the release of 21 petitioner from custody. For the reasons stated below, respondents’ motion to dismiss is 22 GRANTED. 23 24 STATEMENT Petitioner Carlos Domingo-Jimenez is a national and citizen of Guatemala. On August 1, 25 2016, he was arrested on four misdemeanor charges in Alameda County based on allegations 26 that he had inappropriately touched two girls (ages 11 and 12) at a public pool. On August 18, 27 the Superior Court held a bail hearing and ordered him released on his own recognizance. 28 Petitioner had no prior criminal convictions. Dockets.Justia.com 1 While he was in the release area of the Alameda County Sheriff’s Office, a deportation 2 officer with Immigration and Customs Enforcement took him into custody, then placed him in 3 removal proceedings, charging him as a removable alien for being present in the United States 4 without being admitted or paroled pursuant to Section 1182(a)(6) of Title 8 of the United States 5 Code. He remained in federal custody while his state criminal case was pending in Oakland. On September 14, Immigration Judge Joren Lyons held a bond hearing on petitioner’s 6 7 removal action. In advance of the hearing, petitioner submitted numerous letters from his family 8 and friends contending that he would not present a danger to the community upon release 9 (Verified Petition, Exhs. I, J, K, N, O, P, Q, R, and S). At the hearing, however, Judge Lyons admitted into evidence a police report offered by Homeland Security over petitioner’s strenuous 11 For the Northern District of California United States District Court 10 objections. Judge Lyons overruled those objections in reliance on Ninth Circuit decisions 12 holding that consideration of police reports was appropriate in discretionary proceedings such 13 as bond hearings, provided any evidence calling into question the reliability of those police 14 reports received consideration. The police report provided detailed synopses of officer 15 interviews with the two alleged victims, including the allegation that petitioner touched one 16 girl’s groin area on three separate occasions in the pool on August 1 (Blachman-Hitchings Decl., 17 Exh. H). Petitioner declined to testify about the events of the day in question.* Judge Lyons denied petitioner’s request for release on bond in light of the specificity of 18 19 the allegations in the police report, finding him a danger to the community (id., Exh. I). On September 22, petitioner filed the instant petition and promptly moved for an order 20 21 to parole him to attend hearings in the state criminal proceedings. Without success, his counsel 22 had previously attempted to have him released and transported by ICE to three earlier hearings in 23 state court. After the petition, however, the government reversed field and allowed him to attend 24 hearings in the state criminal matter. The parties therein reached a negotiated disposition of the 25 criminal proceedings, and a sentence was imposed (Petition, Exh. U). Petitioner remained 26 detained by ICE. 27 * 28 Contrary to government counsel, petitioner’s counsel did not ask Judge Lyons not to review the security footage at the pool during the September 14 hearing (Dkt. No. 13 at 9). They only requested the judge to not review the police report (Dkt. No. 26). 2 1 On October 17, petitioner and the government first appeared in this action to hear 2 petitioner’s motion for a temporary restraining order. A decision was held in abeyance pending 3 the outcome of the bond redetermination. On October 24, a different immigration judge, 4 Judge Valerie Burch, found petitioner was not a danger to the community or a poor bail risk, and 5 bond was set at $5000. He was released on bond from ICE custody November 1 and remains out 6 of custody today. The release is for all purposes, not just for attendance in state court (where the 7 proceedings are concluded anyway). On November 8, petitioner’s then-pending motion in this 8 action was denied as moot and a schedule settled to hear the instant motion. 9 11 For the Northern District of California United States District Court 10 The government now moves to dismiss pursuant to FRCP 12(b)(1) because petitioner remains free on bond and further relief is unnecessary. Following the hearing on this motion, petitioner’s counsel submitted a motion for 12 consideration of a declaration regarding an immigration court hearing on January 13, 2017. 13 There, petitioner’s counsel represented another client in an unrelated action who became 14 rearrested and redetained by ICE despite an immigration judge’s order granting him bond. 15 The immigration judge in that matter accepted the government’s argument that ICE had authority 16 to cancel a bond ordered by an immigration judge without first seeking a new order from the 17 immigration court (Dkt. No. 28). ANALYSIS 18 19 Petitioner seeks habeas relief pursuant to Section 2241 of Title 28 of the United States 20 Code, which applies where a petitioner is in custody in violation of the Constitution or laws or 21 treaties of the United States. 22 The petition asserts three claims for relief. First, petitioner contends the federal 23 detention denied him an opportunity to appear and defend himself in the state criminal 24 prosecution and thus violated petitioner’s due process and Sixth Amendment rights. 25 Second, petitioner contends the immigration judge’s admission of the police report into evidence 26 that had not resulted in a criminal conviction violated petitioner’s due process. Third, petitioner 27 contends the immigration judge’s finding that petitioner was a danger to the community based 28 3 1 exclusively on the police report, despite the state criminal court’s finding to the contrary in its 2 bond determination, violated petitioner’s due process. 3 4 5 The government contends petitioner’s release on bond granted him all the relief to which he was possibly entitled. A habeas petition continues to present a live controversy after a petitioner’s release if 6 there is some remaining collateral consequence that may be redressed by success on the petition. 7 Abdala v. I.N.S., 488 F.3d 1061, 1063 (9th Cir. 2007). Unlike standing, however, avoiding 8 a finding of mootness does not necessarily require a live controversy. A case may survive 9 without a live controversy if it satisfies either the voluntary cessation exception or the capable of repetition, yet evading review exception. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 11 For the Northern District of California United States District Court 10 Inc., 528 U.S. 167, 190 (2000). 12 1. LIVE CONTROVERSY. 13 In Abdala, the petitioner alleged that his prolonged pre-removal detention violated the 14 Immigration and Nationality Act and his due process rights, but he was deported to Somalia 15 before the petition was heard. Because deportation fully relieved his prolonged detainment, 16 there were no collateral consequences remaining that could be redressed by the petition. 17 Similarly, the claims here were fully resolved after petitioner was transported to his 18 criminal hearings and eventually released on bond without further charges. Petitioner has no 19 need for defense counsel in the state matter (now resolved), and any violation based on the use 20 of the police report in the first bond redetermination hearing is now moot following the second 21 immigration judge’s release order. 22 23 24 Despite release, petitioner argues a live controversy exists because he remains subject to two continuing effects of the government’s alleged violations. First, petitioner claims the allegedly unconstitutional reliance upon the police report 25 in his first bond hearing will be relied upon by the government to admit the police report into 26 evidence in his asylum proceedings. In asylum proceedings, he must show that he has not been 27 convicted of a particularly serious crime, and the deciding court may go beyond a conviction to 28 determine whether the offense constituted a particularly serious crime. 8 USC 1158(b)(2)(A)(ii); 4 1 Matter of N-A-M, 24 I&N Dec. 336 (BIA 2007). Petitioner fears the government will use the 2 first immigration judge’s police report determination to show that the less serious misdemeanors 3 petitioner plead guilty to in the resolved state matter were more serious. 4 This alleged continuing effect is not a collateral consequence redressable by success on 5 the petition. Our court of appeals in Abdala adopted its definition of collateral consequences 6 from Spencer v. Kemna, 523 U.S. 1, 14 (1998). In Spencer, the Supreme Court held that an 7 allegedly unconstitutional parole revocation did not present a “concrete and continuing injury” 8 after the petitioner there was re-released on parole and his sentence had expired. That petitioner 9 argued that the parole revocation decision, which had been based on a police report of a crime he allegedly committed while on parole, might be wrongly used against him in future parole 11 For the Northern District of California United States District Court 10 proceedings while serving another sentence. Even though the petitioner actually was serving 12 a new sentence when the Supreme Court considered his case, the detrimental effect of the past 13 parole revocation was still only a “possibility rather than a certainty or even a probability,” and 14 therefore was not a collateral consequence. Id. at 14. 15 So too here. Our petitioner’s theory that the police report determination will resurface in 16 his asylum proceedings to his detriment is speculative and does not constitute a collateral 17 consequence. It makes no difference that our petitioner remains subject to the conditions of his 18 release on bond, unlike the Spencer petitioner — the theory remains just as speculative. 19 The second alleged continuing effect imagines that an immigration judge in a possible 20 future bond hearing will rely on the police report decision of the first immigration judge. 21 This also fails because future bond redeterminations are even more speculative than asylum 22 proceedings. A bond hearing will only occur if petitioner is redetained by ICE. If ordered 23 removed, he might be rearrested. That scenario is plausible, but it is not certain or even probable 24 that the police report would be relied on by the government in any such bond proceeding, much 25 less relied on by the immigration judge. 26 2. VOLUNTARY CESSATION EXCEPTION. 27 The voluntary cessation exception enables a federal court with no remaining controversy 28 before it to retain jurisdiction on the ground that the party asserting mootness voluntarily ceased 5 1 illegal conduct in response to a lawsuit, or threat of one, and may revert to its old ways once the 2 action is dismissed. Friends of the Earth, 528 U.S. at 189. 3 Petitioner claims ICE voluntarily began transporting petitioner to his state court hearings 4 in response to the filing of the instant habeas petition, after missing three. ICE was not ordered 5 to do so by either the immigration judge or the Superior Court because both felt they lacked 6 jurisdiction to effectuate such an order (Dkt. No. 4 at 117; Dkt. No. 7 at 5). It is evident the 7 proceedings on this petition caused a voluntary change in ICE’s challenged conduct. 8 9 Because the conduct was ceased voluntarily, the government holds “the formidable burden of showing it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 190. This burden may not be shifted to 11 For the Northern District of California United States District Court 10 petitioner — the government must show that it is “absolutely clear” that it is not reasonably 12 likely they will subject petitioner to the same challenged behavior. See Rosemere Neighborhood 13 Ass’n v. U.S. Environmental Protection Agency, 581 F.3d 1169, 1174 (9th Cir. 2009). 14 In Picrin-Peron v. Rison, our court of appeals considered the voluntary cessation 15 exception where a habeas petitioner challenged his indefinite detention. The petitioner claimed 16 similar challenges to his were repeatedly dismissed as moot because the government would 17 voluntarily release the petitioners before their petitions were heard. The decision found the 18 government had met its burden that the alleged conduct would not recur based on a verified 19 declaration from the government stating the petitioner would remain on parole absent 20 circumstances completely out of the government’s control. 930 F.2d 773, 776 (9th Cir. 1991). 21 Here, that burden has been met too. Our petitioner is free on bond. The state prosecution 22 is over. Even if ICE wanted to bring him back into custody and even if this were done in spite 23 of the immigration judge’s release order, a new arrest would have nothing to do with the 24 now-resolved state prosecution and would turn on new facts absolutely beyond the control of 25 ICE. Even under that scenario, were ICE to resurrect the swimming pool incident again, the 26 police report involving the alleged touching of the children has been replaced by a more specific 27 conviction (on less serious charges). So it is very hard to see how the circumstances that led to 28 this petition could be revived. 6 1 Petitioner’s arguments that the immigration judge’s conduct constituted a voluntary 2 cessation also fail. The second bond hearing leading to petitioner’s release came after the state 3 prosecution was fully resolved, a change in circumstances. Because the immigration judge’s 4 conduct was merely a response to changed circumstances, not a gimmick to dodge federal court 5 oversight, the government does not have the burden to show the alleged behavior will not recur. 6 3. CAPABLE OF REPETITION EXCEPTION. 7 With respect to the exception for matters capable of repetition yet evading review, our 8 court of appeals views this exception narrowly, limiting its applicability “to extraordinary cases 9 in which (1) the duration of the challenged action is too short to be fully litigated before it ceases, and (2) there is a reasonable expectation that the plaintiff will be subjected to the same 11 For the Northern District of California United States District Court 10 action again.” C.F. ex rel. Farnan v. Capistrano Unified School Dist., 654 F. 3d 975, 983 (9th 12 Cir. 2011). Unlike the voluntary cessation exception, the capable of repetition prong of this 13 exception places the burden on petitioner to establish a demonstrated probability that the same 14 controversy will recur involving the same litigants. Lee v. Schmidt-Wenzel, 766 F. 2d 1387, 15 1390 (9th Cir. 1985). To meet the evading review prong, it must be shown that the underlying 16 action is “almost certain to run its course before” a federal court of appeals “can give the action 17 full consideration.” See Hubbart v. Knapp, 379 F. 3d 773, 778 (9th Cir. 2004). 18 Petitioner relies on United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953), to argue 19 the burden is on the government. That decision, however, only considered the voluntary 20 cessation exception, rather than the capable of repetition exception. 21 Petitioner has failed to meet his burden. Under the broadest interpretation of what 22 constitutes “the same controversy” involving the “same litigants,” petitioner argues that an 23 immigration judge will well rely on the police report in question in ruling on the merits in 24 removal or asylum proceedings. Any such reliance, however, would be reviewable on direct 25 appeal by our court of appeals and thus would not escape review. 26 While the foregoing is sufficient, it finally deserves to be said that it would be imprudent 27 for a district court to embark on the hypothetical exercise of deciding the extent to which the 28 police report should be admissible in the asylum (or any other) proceeding. At the bond hearing, 7 1 petitioner’s counsel herself presented numerous hearsay letters vouching for petitioner. 2 Hearsay is not per se inadmissible at bond hearings and the real question usually comes down to 3 how reliable the specific hearsay seems to be. Are we really going to bring the two young girls 4 into federal court to re-live the pool touching and to be cross-examined about it, merely in aid 5 of deciding how reliably the police officer captured their memories, all in preparation for the 6 off-chance that this incident will someday come back to haunt petitioner? That scenario would 7 be premature. Caution is one thing but excess caution is another. If and when petitioner ever 8 faces the police report again (without review by our court of appeals) there will be time enough 9 then to bring a new petition. 11 For the Northern District of California United States District Court 10 CONCLUSION For the reasons stated above, this case is DISMISSED without prejudice to a new petition 12 in the event that petitioner is rearrested and detained based on a police report. Judgment will 13 follow. The clerk SHALL CLOSE THE FILE. 14 15 IT IS SO ORDERED. 16 17 Dated: January 19, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 8
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