Hernandez Gomez v. Becerra et al, No. 3:2023cv01330 - Document 17 (N.D. Cal. 2023)
Court Description: ORDER GRANTING RELIEF by Judge William H. Orrick. The Court grants Hernandez Gomez's 5 request for TRO and his Petition in part, and ORDERS that the government provide him with a constitutionally compliant bond hearing within fourteen days of the date of this Order. (jmd, COURT STAFF) (Filed on 4/5/2023)
Download PDF
<![CDATA[
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSE RUBEN HERNANDEZ GOMEZ, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 23-cv-01330-WHO ORDER GRANTING RELIEF v. Re: Dkt. Nos. 1, 5 MOISES BECERRA, et al., Defendants. 12 Petitioner Jose Ruben Hernandez Gomez (“Hernandez Gomez”) filed a Petition for a Writ 13 of Habeas Corpus and a Motion for a Temporary Restraining Order on March 22, 2023. Dkt. Nos. 14 1, 5. He argues that continued denial of a constitutionally compliant bond hearing violates his due 15 process rights. He has spent over sixteen months in immigration detention without a bond hearing 16 and he is medically unstable. His motion for a Temporary Restraining Order (“TRO”) asks me to 17 require the government to release him or immediately afford him a constitutionally compliant 18 bond hearing. Dkt. No. 5. 19 The government opposes the TRO and Petition, arguing that I lack jurisdiction over the 20 Petition, a TRO cannot seek the ultimate relief of release, and Hernandez Gomez is not entitled to 21 release or a bond hearing; if he is, it asserts that the burden of proof as to danger to others and 22 flight risk should be placed on him. Dkt. No. 13. 23 On April 4, 2023, I held a hearing to address both the Petition and motion for a TRO. 24 Having reviewed the arguments made and records in this case, I GRANT the TRO and Petition in 25 limited part, requiring the government to provide Hernandez Gomez with a constitutionally 26 sufficient bond hearing – with the burden of proof on the government to show by clear and 27 convincing evidence that Hernandez Gomez remains a flight risk or danger to the community – no 28 later than April 18, 2023. 1 BACKGROUND 2 Hernandez Gomez has been in federal custody since November 26, 2021, when upon being 3 released from state custody on a state court conviction for battery and assault, he was taken into 4 custody by U.S. Immigration and Customers Enforcement (“ICE”) pursuant to 8 U.S.C. § 1126(c). 5 ICE placed him into removal proceedings as a noncitizen convicted of an aggravated felony crime 6 of violence. Under 8 U.S.C. § 1226(c), detention is mandatory. United States District Court Northern District of California 7 Hernandez Gomez, who alleges he came to the United States as a toddler and became a 8 legal permanent resident when he was eight years old, has had numerous arrests and convictions 9 since 2010. They include robbery, evading a police officer, driving under the influence and 10 vehicle code issues, making a false workers compensation claim, and in 2017 battery with an 11 enhancement for infliction of great bodily injury. See Government’ Opposition to Motion for 12 Temporary Restraining Order and Return to Writ of Habeas Corpus [“Oppo.,” Dkt. 13] at 2-3; 13 Declaration of Deportation Officer Sanchez [Dkt. No. 13-1] at ¶¶ 29-32. He asserts that his last 14 conviction was the result of his former co-worker harassing him and his family, and notes that his 15 probation officer identified it as an isolated event and recommended a probationary sentence. 16 Petition ¶ 24. Hernandez Gomez served his sentence at the California Substance Abuse Treatment 17 facility, completed forestry and firefighter training, completed other rehabilitative programs, and 18 was released early for good behavior. Id. ¶ 25. Upon his release from state custody on November 19 26, 2021, he was detained by ICE and has been held in detention pursuant to 8 U.S.C. § 1226(c) 20 without a bond hearing since. 21 The government alleges that prior to his detention and at some point “after his arrival to 22 ICE custody, ICE conducted a custody review to assess whether Hernandez Gomez’s detention 23 was warranted” as a threat to public safety. Sanchez Decl. ¶¶ 33, 35. DHS concluded that 24 detention was warranted because he would constitute a threat to public safety if released. Id. He 25 has had numerous appearances before immigration judges (“IJs”) since that time but has never 26 been afforded a bond hearing. The government points out that the duration of his proceedings at 27 the IJ level is due in significant part to request for continuances made by him so that he could seek 28 counsel, his counsel could prepare for the hearings, and his counsel could file requests for relief 2 United States District Court Northern District of California 1 from removal. In January 2022, an IJ determined that Hernandez Gomez was removeable as 2 charged, but that determination was overturned on appeal to the BIA and remanded in June 2022. 3 Sanchez Decl. ¶¶ 7-13. In the nine plus months since the case was remanded, his counsel has 4 again asked for extensions to prepare, delays have been caused by COVID quarantines and 5 connectivity issues preventing Hernandez Gomez’s hearings from occurring, and finally the need 6 to complete a competency inquiry. Id. ¶¶ 14-23. According to the government’s calculations, at 7 least 84 days of delay prior to the initial IJ removability determination were due to his counsel’s 8 requests for continuances. In the nine months plus since remand from the BIA, plaintiff requested 9 six months of continuances and another 35 days were due to COVID quarantines. Oppo. at 12-13. 10 Hernandez Gomez has recently begun to suffer from serious medical conditions, likely the 11 result of a hunger strike he and others detained at Mesa Verde started in February 2023 and ended 12 in March 2023. During that time, he was forcibly transferred to El Paso ICE Processing Center to 13 receive a purported “higher level of medical care.” Id. at ¶¶ 45-48. He alleges that while in El 14 Paso he was threatened with forced feeding and forced hydration if he did not resume eating. On 15 March 9, 2023, he broke his 20-plus-day hunger strike by which time he had lost 19 pounds 16 (approximately 10% of his body weight). Id. ¶ 48. He alleges that he was not fed or hydrated 17 properly at that point and was taken back to Mesa Verde around March 14, 2023. Id. ¶ 52. On 18 that date he received emergency room treatment for dizziness and vertigo. He was evaluated for 19 possible “Refeeding Syndrome,” a “potentially fatal shift in fluids and electrolytes that may occur 20 in malnourished patients” who begin feeding again. Id. 21 Since March 14, 2023, Hernandez Gomez has returned to the Mercy Hospital emergency 22 room again with ongoing neurological symptoms and has been diagnosed with “acute 23 encephalopathy, dehydration” and pneumonia. At the time the TRO was filed, he was in medical 24 isolation at Mesa Verde. Id. ¶¶ 54-56. Between the filing of the TRO and the reply in support, 25 Hernandez Gomez’s health has continued to deteriorate and is now wheelchair bound with 26 worsening neurological symptoms. See Reply Ex. AA (Letter from Mary Cheffers, MD, Clinical 27 Associate Professor, Emergency Medicine Keck Medical Center of USC). 28 In his habeas petition, Hernandez Gomez contends that his prolonged, continued detention 3 1 without a bond hearing is unconstitutional as applied to him as violating his due process rights. 2 He urges that the prolonged nature of his detention combined with the recent and very serious 3 deterioration of his medical condition, requires habeas relief; namely release or the holding of a 4 constitutionally compliant bond hearing. DISCUSSION 5 6 I. The government argues first that this court lacks jurisdiction to hear Hernandez Gomez’s 7 United States District Court Northern District of California JURISDICTION 8 habeas claim, because jurisdiction exists only in the Eastern District of California; the district 9 where Hernandez Gomez is confined. I rejected a materially similar argument in Ameen v 10 Jennings, Case No. 22-cv-0140, Dkt. No. 31 (April 19, 2022 Order). Numerous other decisions 11 from my colleagues in this District have agreed. See Salesh P. v. Kaiser, No. 22-CV-03018-DMR, 12 2022 WL 17082375, at *5 (N.D. Cal. Nov. 18, 2022) (collecting cases finding jurisdiction in the 13 Northern District over immigration habeas petitions filed by persons detained within the Eastern 14 District); see also Pham v. Becerra, Case No. 23-cv-01288-CRB, Dkt. No. (March 31, 2023 15 Order) (same). Respondent identifies no facts particular to Hernandez Gomez’s situation that would lead 16 17 to a different result.1 I have jurisdiction to hear his Petition and TRO. 18 II. ENTITLEMENT TO A BOND HEARING Having determined that I have jurisdiction, I GRANT the TRO and Petition in limited 19 20 respect.2 As an initial matter, I reject the government’s argument that because Hernandez Gomez 21 is held under § 1226(c) where detention is required by statute, and not under § 1226(a), he has no 22 23 24 25 26 27 28 1 To the contrary, Hernandez Gomez supplies evidence that his most recent release requests were addressed at the San Francisco regional office and were forwarded to “Becerra.” See Declaration of Genna Beier [Dkt. No. 14-1] ¶¶ 4, 10. 2 Hernandez Gomez and the government dispute whether he should have filed a motion for a TRO seeking the “ultimate” habeas relief of release or whether he should have instead sought an expedited hearing on the Petition itself. But that dispute does not matter given my resolution herein and that the government filed an opposition to the TRO combined with the return on the Petition. Dkt. No. 13. Both procedural mechanisms lead to the same place; my determination based on this record that Hernandez Gomez is entitled to a constitutionally compliant bond hearing. 4 1 due process right to a bond hearing. That argument has been consistently rejected by decisions in 2 this District where my colleagues have explained that a petitioner being held under § 1226(c) may 3 make an as-applied due process argument to support a request for a bond hearing. See, e.g., Pham 4 v. Becerra, Case No. 23-cv-01288-CRB, Dkt. No. (March 31, 2023 Order) at 9 (noting as applied 5 challenges to the constitutionality of continued detention may be brought by individuals detained 6 under § 1226(c)); Perera v. Jennings, 598 F. Supp. 3d 736, 744 (N.D. Cal. 2022) (allowing as- 7 applied challenge to detention under § 1226(c)). United States District Court Northern District of California 8 However, I reject Hernandez Gomez’s position that I should adopt and apply a “bright- 9 line” test and conclude that persons detained under § 1226(c) are entitled to a bond hearing after 10 six months or some other specific period. See TRO at 6-7; Reply at 13. Instead, I will consider 11 his individualized claim for relief under the balancing test of Mathews v. Eldridge, 424 U.S. 319 12 (1976). See, e.g., Salesh P. v. Kaiser, No. 22-CV-03018-DMR, 2022 WL 17082375, at *8 (N.D. 13 Cal. Nov. 18, 2022) (“Absent controlling authority establishing a bright-line rule for a due process 14 right to receive periodic bond hearings, the court finds that it is appropriate to conduct an 15 individualized due process analysis under Mathews. . . .”); Perera v. Jennings, No. 21-CV-04136- 16 BLF, 2021 WL 2400981, at *4 (N.D. Cal. June 11, 2021) (conducting as-applied analysis to 17 detention under § 1226(c)). 18 Under Mathews, courts consider (1) the individual’s interest, (2) the government’s interest, 19 and (3) the risk of erroneous deprivation of the right absent the further procedures. Matthews, 424 20 U.S. at 334. Applying these factors and especially considering the length of his detention and his 21 serious health issues, I find that Hernandez Gomez is entitled to a bond hearing. Individual’s Interest 22 A. 23 The “main private interest at stake” is indisputably Hernandez Gomez’s interest in 24 “‘[f]reedom from imprisonment—from government custody, detention, or other forms of physical 25 restraint.’” Perera v. Jennings, 2021 WL 2400891 * 4 (quoting Zadvydas v. Davis, 533 U.S. 678, 26 690 (2001)). Hernandez Gomez, like the petitioner in Perera, “has an overwhelming interest 27 here—regardless of the length of his immigration detention—because ‘any length of detention 28 implicates the same’ fundamental rights.” Id. (quoting Rajnish v. Jennings, No. 3:20-cv-078195 1 WHO, 2020 WL 7626414, at *6 (N.D. Cal. Dec. 22, 2020)). That interest is not extinguished 2 because Hernandez Gomez is detained under § 1226(c). See Pham v. Becerra, Case No. 23-cv- 3 01288-CRB, March 31, 2023 Order at 10-11. Here, that interest is heightened given the length of 4 his detention without a bond hearing and his apparent worsening health, which according to 5 Hernandez Gomez cannot be managed at Mesa Verde. See Reply, Exs. AA, BB; cf. Rajnish v. 6 Jennings, No. 3:20-cv-07819-WHO, 2020 WL 7626414, *4 (N.D. Cal. Dec. 22, 2020) (“Rajnish 7 has presented evidence that his prolonged detention has resulted in a degradation of his mental 8 health.”). United States District Court Northern District of California 9 The government contends that Hernandez Gomez cannot establish that his detainment 10 violates his fundamental interests when requests for continuances or for extra time by him and his 11 counsel cover at least 9 months of the alleged 15 month detention period. The period of those 12 requests and their admitted purpose do not demonstrate any purposeful intent to delay by 13 Hernandez Gomez, but instead allow for his counsel to be an effective advocate. The duration and 14 frequency of these requests do not diminish his significant liberty interest in his release or his 15 irreparable injury of continued detention without a bond hearing. See Masood v. Barr, No. 19- 16 CV-07623-JD, 2020 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020) (“The BIA appeal and remand 17 motion are perfectly legitimate proceedings he is legally entitled to pursue, and it ill suits the 18 United States to suggest that he could shorten his detention by giving up these rights and 19 abandoning his asylum application.”). Government’s Interest 20 B. 21 The government has an undeniable, significant interest in detention for individuals who are 22 potentially removable given convictions of aggravated felony crimes of violence. But the interest 23 “at stake in this motion is the ability to detain Hernandez Gomez without providing him with 24 another bond hearing, not whether the government may continue to detain him.” Lopez Reyes v. 25 Bonnar, 362 F. Supp. 3d 762, 777 (N.D. Cal. 2019). “Requiring the government to provide 26 [petitioner] with a bond hearing does not meaningfully undermine the government’s interest in 27 detaining non-citizens who pose a danger to the community or are a flight risk.” Perera, 2021 WL 28 2400981, at *5. The government’s interest here is low. 6 C. 1 Risk of Erroneous Deprivation Given the length of time of Hernandez Gomez’s detention as well as his uncontested and 2 apparently worsening medical conditions, an even slight risk of an erroneous deprivation of his 3 liberty weighs in favor of relief. As he notes, he is not under a final order of deportation (the prior 4 order having been reversed by the BIA) and he has recently undergone a competency evaluation in 5 support of his request for relief from removal. Given the ongoing proceedings that he is pursing 6 with diligence, in light of his significant medical conditions, and considering his record of 7 excellent behavior and successful rehabilitation efforts during his incarceration, I find that the risk 8 of an erroneous deprivation, as well as the likelihood of irreparable injury, is high. 9 The Matthews factors weigh heavily in support of granting Hernandez Gomez immediate 10 relief, here requiring the government to provide him a bond hearing. That ICE has repeatedly 11 United States District Court Northern District of California rejected his administrative requests for release is not a substitute for an individualized bond 12 hearing. See, e.g., Rajnish v. Jennings, No. 3:20-CV-07819-WHO, 2020 WL 7626414, at *9 13 14 (N.D. Cal. Dec. 22, 2020) (the fact that a petitioner could apply for “emergency relief due to COVID-19 in the form of release while habeas petitions are pending,” was not “a replacement for 15 an individualized determination by an IJ at which the government bears the burden of proof about 16 being permitted to be out on bond generally.”). 17 18 III. BURDEN OF PROOF Finally, I agree with my colleagues that under Singh v. Holder, 638 F.3d 1196, 1203 (9th 19 Cir. 2011)), the burden of proof on whether Hernandez Gomez is a flight risk or presents a danger 20 to the community if released rests on the government, despite the fact that Hernandez Gomez is 21 detained under § 1226(c). See Pham v. Becerra, Case No. 23-cv-01288-CRB, March 31, 2023 22 Order at 13-14 (detained under § 1226(c)); Salesh P. v. Kaiser, No. 22-CV-03018-DMR, 2022 23 WL 17082375, at *9 (N.D. Cal. Nov. 18, 2022 (“At the hearing, the government must justify his 24 continued detention [under § 1226(c)] by establishing by clear and convincing evidence that he is 25 a flight risk or a danger to the community pursuant”); Perera v. Jennings, 598 F. Supp. 3d 736, 26 747 (N.D. Cal. 2022) (same § 1226(c)); see also Rajnish v. Jennings, No. 3:20-CV-07819-WHO, 27 2020 WL 7626414 *5-7 (N.D. Cal. Dec. 22, 2020) (placing the burden of proof on flight risk and 28 7 1 danger to the community on the government, even in an initial § 1226(a) bond hearing). CONCLUSION 2 3 I GRANT Hernandez Gomez’s request for TRO and his Petition in part, and ORDER that 4 the government provide him with a constitutionally compliant bond hearing within fourteen days 5 of the date of this Order. The government shall have the burden of proof by clear and convincing 6 evidence. 7 8 IT IS SO ORDERED. Dated: April 4, 2023 9 10 William H. Orrick United States District Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
