Perera v. Jennings et al, No. 5:2021cv04136 - Document 25 (N.D. Cal. 2021)
Court Description: ORDER GRANTING 4 MOTION FOR A TEMPORARY RESTRAINING ORDER. Signed by Judge Beth Labson Freeman on 6/11/2021.(blflc4S, COURT STAFF) (Filed on 6/11/2021)
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Perera v. Jennings et al Doc. 25 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 IMESH PERERA, Plaintiff, 8 DAVID W. JENNINGS, et al., Defendants. 11 United States District Court Northern District of California ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER v. 9 10 Case No. 21-cv-04136-BLF 12 Petitioner-Plaintiff Imesh Perera filed a petition for writ of habeas corpus and complaint for 13 14 injunctive and declarative relief in this action on June 1, 2021 against Respondent-Defendants U.S. 15 Immigration and Customs Enforcement (“ICE”) San Francisco Field Office Director David W. 16 Jennings, Acting ICE Director Tae D. Johnson, DHS Secretary Alejandro Mayorkas, and Attorney 17 General Merrick Garland (collectively “Defendants”). ECF 1; Compl., ECF 18-2. Perera 18 simultaneously filed a motion seeking a temporary restraining order (“TRO”) and an order to show 19 20 21 cause why a preliminary injunction should not issue. ECF 4; Mot., ECF 18-3. The Court ordered that notice be given to Defendants and held a motion hearing on June 10, 2021. 22 As set forth below, Perera’s motion is GRANTED. Respondents-Defendants, and their 23 agents and employees, are ORDERED TO SHOW CAUSE before this Court why a preliminary 24 injunction should not issue under the same terms as this temporary restraining order. The hearing 25 on the Order to Show Cause will be held on July 15, 2021 at 9:00 am. Briefing shall be submitted 26 as provided in the Order Granting Motion for Temporary Restraining Order. 27 28 I. BACKGROUND Dockets.Justia.com 1 The declarations and associated exhibits of Judah Lakin and Scott Mossman establish the 2 following facts. See Lakin Decl., ECF 1-1; Mossman Decl., ECF 18-1. Perera was born in Sri Lanka 3 in 1990 to Marian and Prince Perera. Perera and his family came to the United States in 2002 based 4 on his mother’s H-1B visa. Mossman Decl. ¶ 4. Along with the rest of his family, Perera adjusted 5 6 to lawful permanent resident status in 2007. Id. ¶ 5. His parents became U.S. citizens in 2012. Id. On May 21, 2010, Perera was convicted in the Superior Court of California, County of Placer, for 7 8 United States District Court Northern District of California 9 transportation of a controlled substance in violation of California Health and Safety Code § 11379(a). Id. ¶ 6. On August 18, 2010, Mr. Perera and ten co-defendants were indicted on federal 10 controlled substances charges in the U.S. District Court for the Eastern District of California. Id. On 11 March 20, 2015, Perera pled guilty to conspiracy to distribute and possess with intent to distribute 12 MDMA and BZP in violation of 21 U.S.C. §§ 846 and 841(a)(1). Id. ¶ 7. Because Perera had spent 13 nearly five years in custody at that point, the court ordered him released at the time of the plea. Id. 14 On September 10, 2015, the court sentenced Perera to 50 months with credit for time served and a 15 16 term of supervised release of 36 months. Id. 17 The past six years have proved transformative for Perera. He has successfully completed 18 probation and avoided further criminal arrests or charges. Perera Decl. ¶¶ 13-15; Lakin Decl. at Ex. 19 F (Letter from Probation Officer). He has pursued a college education, studying real estate and 20 business administration, while working full-time. Perera Decl. ¶ 16; Lakin Decl. at Ex. K (Sierra 21 College Transcript), Ex. L (Letter from counselor at Sierra College), Ex. Q (Letter from program 22 technician at Sierra College). He has climbed the ranks at Safeway, earning five promotions in four 23 24 years and ultimately becoming a store director responsible for 130 employees. Perera Decl. ¶ 17- 25 19. He has committed himself to spiritual development and devotion as well as his church 26 community. Perera Decl. ¶¶ 13, 30; Lakin Decl. at Ex. C (Letter from Marian and Prince Perera); 27 Lakin Decl. at Ex. M (Letter from Perera’s Priest). He is engaged to a U.S. citizen, who is pregnant 28 with their first child, a son. Lakin Decl. at Ex. D (Letter from Chloe Enriquez). He bought a home 2 1 so his son would have somewhere “safe and secure” to grow up. Perera Decl. ¶ 18. As Perera 2 explains: “I now know that time is the one thing you can’t get back and I have lived my life every 3 day since being released from federal custody with that understanding.” Perera Decl. ¶ 15. 4 5 6 On April 21, 2021, ICE took Perera into custody and initiated removal proceedings. Mossman Decl. ¶ 8. Since then, ICE has detained Perera at Golden State Annex, a private detention facility in McFarland, California. Id. ICE refused Perera the opportunity to post a bond for release 7 8 United States District Court Northern District of California 9 from custody during the removal proceedings. Id. ¶¶ 8, 15. On May 25, 2021, Perera denied the charge of removability against him. Id. ¶ 13. If the immigration judge ultimately sustains the charge 10 of removability, Perera intends to apply for withholding of removal to Sri Lanka pursuant to INA § 11 241(b)(3), 8 U.S.C. § 1231(b)(3) and the Convention Against Torture, and deferral of removal under 12 the Convention Against Torture. Id. ¶ 14; see also Perera Decl. ¶ 31. In particular, country conditions 13 research indicates that Sri Lankan government officials incite and acquiesce in violence against 14 Christians. Id. 15 On June 1, 2021, Perera filed the petition, complaint, and instant motion for a temporary 16 17 restraining order. ECF 1; ECF 4. The same day, the Court issued an order directing Defendants to 18 respond to the motion and directing Perera to serve Defendants with notice of the order via email. 19 See ECF 8. Plaintiff has confirmed service as authorized. ECF 9. On June 7, 2021, Defendants filed 20 an opposition brief. Opp., ECF 20. On June 8, 2021, with permission of the Court, Perera filed a 21 reply brief. Reply, ECF 22. 22 II. JURISDICTION 23 24 The Court first considers whether jurisdiction lies within this district. ICE is currently 25 detaining Perera at the Golden State Annex facility in McFarland, CA. Golden State Annex is a 26 private facility that falls within the area of responsibility of the San Francisco Field Office of ICE 27 Enforcement and Removal Operations. Respondent-Defendant Jennings is the Field Office Director 28 of ICE’s San Francisco Field Office. Compl. ¶¶ 12, 16, 39. 3 In Rumsfeld v. Padilla, the Supreme Court applied the “immediate custodian rule” to a 1 2 habeas petition filed by a U.S. citizen detained in military custody in South Carolina. 542 U.S. 430- 3 432 (2004). The immediate custodian rule is the long-held “default rule” that the proper respondent 4 to a habeas petition challenging present physical confinement “is the warden of the facility where 5 [a] prisoner is being held, not the Attorney General or some other remote supervisory official.” Id. 6 at 435–39. Padilla refused to decide who the proper respondent is in the immigration detention 7 United States District Court Northern District of California 8 context, however. 9 “Courts in this district repeatedly have held, both before and since Lopez-Marroquin,1 that 10 Padilla does not extend to cases such as this one where the immediate custodian lacks any actual 11 authority over the immigrant detainee.” Domingo v. Barr, No. 20-CV-06089-YGR, 2020 WL 12 5798238, at *2 (N.D. Cal. Sept. 29, 2020). This Court concurs with the approach taken by Judge 13 Yvonne Gonzalez Rogers in Domingo as well as other courts in and beyond this district. See, e.g., 14 Montoya Echeverria v. Barr, No. 20-CV-02917-JSC, 2020 WL 2759731, at *3-4 (N.D. Cal. May 15 16 27, 2020); Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL 2059848, at *2 (N.D. Cal. 17 April 29, 2020); Rodriguez Sanchez v. Decker, No. 18-CV-8798 (AJN), 2019 WL 3840977, at *2 18 (S.D.N.Y. Aug. 15, 2019); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1187 (N.D. Cal. 2017). As 19 such, this Court has subject matter jurisdiction and may grant relief pursuant to 28 U.S.C. § 2241. 20 III. 21 LEGAL STANDARD The standard for issuing a temporary restraining order is identical to the standard for issuing 22 a preliminary injunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 23 24 n.7 (9th Cir. 2001); Lockheed Missile & Space Co. v. Hughes Aircraft, 887 F. Supp. 1320, 1323 25 26 27 28 1 In Lopez-Marroquin v. Barr, the Ninth Circuit issued an order in which it transferred a habeas petition to immigration detention to the United States District Court for the Southern District of California. No. 18-72922, 2020 WL 1808002 (9th Cir. Apr. 9, 2020). The paragraph-long order cited to Padilla, but did not offer any facts about the petition, which was originally filed as an emergency motion to remand pursuant to the All Writs Act. Id. 4 1 2 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter 3 v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking preliminary 4 injunctive relief must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to 5 6 7 8 United States District Court Northern District of California (N.D. Cal. 1995). An injunction is a matter of equitable discretion and is “an extraordinary remedy suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20. “[I]f a plaintiff can only show that there are serious questions going to the merits – a lesser showing than likelihood of success on 9 the merits – then a preliminary injunction may still issue if the balance of hardships tips sharply in 10 the plaintiff's favor, and the other two Winter factors are satisfied.” Friends of the Wild Swan v. 11 Weber, 767 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks and citations omitted). 12 13 IV. DISCUSSION A. Analysis 14 1. Likelihood of Success on the Merits 15 16 The Court begins its analysis by considering Perera’s showing on the first Winter factor, 17 likelihood of success on the merits. Perera argues that 8 U.S.C. § 1226(c), as applied to him, is 18 unconstitutional under the Due Process Clause. Mot. at 11-18. The Due Process Clause of the Fifth 19 Amendment to the United States Constitution forbids the government from depriving a person of 20 life, liberty, or property without due process of law. U.S. Const. Amend. V. The protection applies 21 to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, 22 23 24 unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). 28 U.S.C. § 2241(c)(3) authorizes a district court to grant a writ of habeas corpus whenever a petitioner is “in 25 custody in violation of the Constitution or laws or treaties of the United States.” This includes claims 26 by non-citizens challenging the constitutionality of their detention without bail. Demore v. Kim, 538 27 U.S. 510, 516-17 (2003). Detention violates due process absent “adequate procedural protections” 28 or “special justification[s]” sufficient to outweigh one's “‘constitutionally protected interest in 5 1 2 avoiding physical restraint.’” Zadvydas, 533 U.S. at 690 (quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)). 3 At issue here is Perera’s detention under 8 U.S.C. § 1226(c). Federal immigration law 4 authorizes DHS to arrest and initially detain an alien who has entered the United States and is 5 6 believed to be removable. 8 U.S.C. § 1226(a). Certain classes of non-citizens are subject to mandatory detention and may not, under the text of § 1226(c), be released until the removal 7 United States District Court Northern District of California 8 proceedings conclude. Jennings v. Rodriguez, 138 S. Ct. 830, 837-38 (2018). For example, non- 9 citizens who have committed certain crimes of “moral turpitude” are subject to mandatory detention. 10 8 U.S.C. §§ 1226(c), 1227(a)(2)(A)(ii) (“Any alien who at any time after admission is convicted of 11 two or more crimes involving moral turpitude ... is deportable.”). 12 13 Courts routinely review as-applied constitutional challenges to § 1226(c) detention. See, e.g., Romero Romero v. Wolf, No. 20-CV-08031-TSH, 2021 WL 254435, at *2 (N.D. Cal. Jan. 26, 2021); 14 Arizmendi v. Kelly, No. CV-17-4791-JAT (DMF), 2018 WL 3912279, at *4 (D. Ariz. July 23, 2018), 15 16 report and recommendation adopted, No. CV-17-04791-PHX-JAT, 2018 WL 3872228 (D. Ariz. 17 Aug. 15, 2018); Rodriguez v. Barr, 488 F. Supp. 3d 29, 37 (W.D.N.Y. 2020); Martinez-Done v. 18 Decker, 56 F. Supp. 3d 535 (S.D.N.Y. 2014); see also Nielsen v. Preap, 139 S. Ct. 954, 972 (2019) 19 (“Our decision today on the meaning of [§ 1226(c)] does not foreclose as-applied challenges—that 20 is, constitutional challenges to applications of the statute as we have now read it.”). A lawful 21 permanent resident detained under § 1226(c) “could be entitled to an individualized determination 22 as to his risk of flight and dangerousness if the continued detention became unreasonable or 23 24 unjustified”—such as if there were “an unreasonable delay by the [government] in pursuing and 25 completing deportation proceedings.” Demore, 538 U.S. at 532, (Kennedy, J., concurring) (citations 26 omitted); see also Preap, 139 S. Ct. at 982, 985 (Section 1226(c) “creates serious constitutional 27 problems” by denying a bond hearing to a noncitizen “who committed a crime many years before 28 and has since reformed, living productively in a community” (Breyer, J., dissenting)). In this case, 6 1 2 he was on federal supervised release, and thus his whereabouts were continuously known to the 3 government. 4 In sum, the Court must decide whether § 1226(c), as applied here, violates Perera’s Fifth 5 Amendment procedural due process rights. “The fundamental requirement of due process is the 6 opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 7 8 9 United States District Court Northern District of California review is prompted by the fact that ICE delayed Perera’s detention for six years, three years of which 424 U.S. 319, 333 (1976) (quotation omitted). Under Mathews, the “specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be 10 affected by the official action; second, the risk of an erroneous deprivation of such interest through 11 the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; 12 and finally, the Government’s interest, including the function involved and the fiscal and 13 administrative burdens that the additional or substitute procedural requirements would entail.” 424 14 U.S. at 335. The Court finds that the Mathews factors unquestionably weigh in favor of Perera.2 15 First, the main private interest at stake in the instant matter is Perera’s “[f]reedom from 16 17 imprisonment—from government custody, detention, or other forms of physical restraint.” 18 Zadvydas, 533 U.S. at 690. Perera has an overwhelming interest here—regardless of the length of 19 his immigration detention—because “any length of detention implicates the same” fundamental 20 rights. Rajnish v. Jennings, No. 3:20-cv-07819-WHO, 2020 WL 7626414, at *6 (N.D. Cal. Dec. 22, 21 2020). 22 Second, the risk of an erroneous deprivation is substantial. Put another way, the value of 23 24 providing Perera with a hearing is high. Rajnish, 2020 WL 7626414, at *9. While it is not the 25 26 27 28 2 Acknowledging that Perera bears the burden of proving a TRO should issue, the Court nonetheless highlights that Defendants’ discussion of Mathews was limited to a single footnote. Opp. Br. at 17, fn. 3. In that footnote, the Defendants’ state only that Mathews in inapplicable here because Perera’s detention is constitutional and mandatory. Id. But this contention ignores that Perera is making an as applied challenge to his detention, which Preap explicitly permits. Preap, 139 S. Ct. at 972. 7 1 province of this Court to make a finding as to whether Perera is a flight risk or poses a danger to the 2 community, the Court determines that the record is abound with evidence that would support such 3 a finding by the immigration judge (“IJ”). Perera has submitted evidence showing his rehabilitation 4 since incarceration. After spending five years incarcerated for a crime he committed as a teenager, 5 6 he has completed probation and avoided further criminal arrests or charges. Perera Decl. ¶¶ 13-15; Letter from Probation Officer. Beyond that, he has committed himself to his education, his career, 7 8 United States District Court Northern District of California 9 his church, and his growing family. Perera Decl. ¶ 13, 15-19, 30; Sierra College Transcript; Letter from counselor at Sierra College; Letter from program technician at Sierra College; Letter from 10 Marian and Prince Perera; Letter from Perera’s Priest; Letter from Chloe Enriquez; see also Preap, 11 139 S. Ct. at 982 (emphasizing the constitutional concern implicated by denying a non-citizen a 12 bond hearing “who committed a crime many years before and has since reformed, living 13 productively in a community”). However, to date, no neutral decisionmaker has considered and 14 15 16 weighed this evidence. The IJ declined to reconsider ICE’s detention decision, accepting ICE’s argument that the IJ lacked authority under § 1226(c). Mossman Decl. ¶¶ 15-16. Perera’s subsequent 17 release request to ICE on May 25, 2021 was apparently summarily denied by the same ICE 18 employees without consideration of any of Perera’s ample evidence of his rehabilitation and roots 19 in the community. Lakin Decl. ¶¶ 5-7. On this record, the risk of an erroneous decision is substantial 20 absent a neutral decisionmaker’s review. See Rodriguez, 488 F. Supp. 3d at 42 (finding significant 21 risk of erroneous deprivation where petitioner had to prove to a DHS official, as opposed to a neutral 22 decisionmaker, that he did not pose a danger or present a flight risk). That there is no remotely 23 24 certain end in sight to Perera’s custody only raises the risk of erroneous deprivation. 25 Third, the government’s interest is low. The government certainly has an interest “in efficient 26 administration of the immigration laws at the border,” Landon v. Plasencia, 459 U.S. 21, 34 (1982), 27 and in the “fiscal and administrative burdens that the additional or substitute procedural requirement 28 would entail,” Mathews, 424 U.S. at 335. But the Court emphasizes that the interest at stake is not 8 1 whether the government may detain Perera, but whether they may do so without providing him an 2 individualized bond hearing. See Lopez Reyes v. Bonnar, 362 F. Supp. 3d 765, 777 (N.D. Cal 2019) 3 (“the governmental issue at stake in this motion is the ability to detain Petitioner without providing 4 him with [a] bond hearing, not whether the government may continue to detain him.”(emphasis in 5 6 original)); see also Zerezghi v. USCIS, 955 F.3d 802, 810 (9th Cir. 2020) (explaining that while the government’s general interest in immigration enforcement is substantial, the third Mathews factor 7 United States District Court Northern District of California 8 focuses on its specific interest in the procedures it is using for enforcement rather than on the 9 government’s general interest). Requiring the government to provide Perera with a bond hearing 10 does not meaningfully undermine the government’s interest in detaining non-citizens who pose a 11 danger to the community or are a flight risk. “[T]he government has no legitimate interest in 12 detaining individuals who have been determined not to be a danger to the community and whose 13 14 appearance at future immigration proceedings can be reasonably ensured by a lesser bond or alternative conditions.” Hernandez, 872 F.3d at 994. The government’s interest in denying Perera 15 16 an individualized bond hearing is further diluted by the fact that it waited six years to detain him. 17 ICE was aware of Perera’s potential removability as early as 2010, and completed paperwork to 18 complete a removal case against him in 2017. Yet the government chose not to initiate proceedings 19 against Perera until April 2021. This time lapse significantly undermines the government’s interest 20 in mandatorily detaining him. See Opp. at 20 (suggesting that the government has a strong interest 21 in the quick execution of removal orders). 22 Balancing the Mathews factors, it is clear that Perera is likely to succeed in establishing his 23 24 due process right to an individualized bond hearing. Perera’s interest is grave, as his fundamental 25 rights are implicated. A hearing would serve a valuable purpose in combatting any erroneous 26 deprivation of Perera’s constitutional rights. And the government's interest is not seriously 27 undermined, as the relief Perera requests will still allow the government ample opportunity to 28 demonstrate that Perera’s detention is justified. In sum, the Court finds that Perera is likely to 9 1 2 establish that § 1226(c) is unconstitutional as applied to him, and that his continued detention, without an individualized bond hearing, violates the Due Process Clause. 3 2. Irreparable Harm 4 The Court finds that Perera will face irreparable harm absent relief. “It is well established 5 that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” 6 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 7 8 United States District Court Northern District of California 9 373 (1976)). Because Perera is likely to succeed on the merits of his due process claim, he has “carried [his] burden as to irreparable harm.” Hernandez, 872 F.3d at 995. 10 The Ninth Circuit has highlighted the irreparable harms imposed on anyone subject to 11 immigration detention, such as “subpar medical and psychiatric care in ICE detention facilities, the 12 economic burdens imposed on detainees and their families as a result of detention, and the collateral 13 harms to children of detainees whose parents are detained.” Id. And there is copious evidence in the 14 record about the harm that Perera, in particular, will face, should he continue to be detained without 15 16 the possibility of bond. First and foremost, any loss of liberty is fundamental and substantial. See 17 Singh v. Holder, 638 F.3d 1196, 1204 (9th Cir. 2011). In Perera’s case, his first child is due in a few 18 months. Mot. at 6. Being absent for this once-in-a-lifetime occasion is his “worst nightmare,” a “loss 19 [he] will never be able to recover from,” and “a moment [he] will never be able to get back.” Perera 20 Decl. ¶ 29. Perera also stands to lose his job as a store director at Safeway and, consequently, his 21 home. Id. ¶¶ 19, 28. Finally, Perera’s fiancé stands to face additional psychological harms. Perera 22 Decl. ¶ 27; Letter from Chloe Enriquez; Lakin Decl. at Ex. CC (Letter from Dr. Amanda Lea Poe); 23 24 see Jorge M. F. v. Wilkinson, No. 21-CV-01434-JST, 2021 WL 783561, at *3 (N.D. Cal. Mar. 1, 25 2021) (recognizing the severe economic hardship and psychological harm family members of 26 detainees can face). 27 28 3. Balance of Equities and Public Interest Finally, the balance of the equities and the public interest tip sharply in favor granting 10 1 injunctive relief. “When the government is a party, these last two [Winter] factors merge.” Drakes 2 Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 3 435 (2009)). The balance of the equities weigh strongly in favor of granting Perera relief. As 4 discussed at length above, Perera has a strong interest in an individualized bond hearing so he can 5 6 exercise his rights under the Constitution and have the chance to abate the imminent harms described above. And granting relief would not deprive the government of the opportunity to prove to a neutral 7 8 United States District Court Northern District of California 9 decisionmaker whether Perera poses a threat to the community or a flight risk such that detainment is necessary. Similarly, the public has a strong interest in upholding constitutional rights. See 10 Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005) (“Generally, public interest concerns are 11 implicated when a constitutional right has been violated, because all citizens have a stake in 12 upholding the Constitution.”). The public is also served by ensuring that the government does not 13 14 15 16 17 expend its resources to detain individuals unnecessarily and without adequate process. Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983) (“Society’s interest lies on the side of affording fair procedures to all persons, even though the expenditure of governmental funds is required.”). B. Burden of Proof at Bond Hearing 18 Perera contends that if the Court orders an individualized bond hearing, “the government 19 should bear the burden at that hearing of proving by clear and convincing evidence that Mr. Perera 20 poses a danger or flight risk to justify his continued detention.” Mot. at 18. This Court agrees, and 21 Defendants do not argue otherwise. The Ninth Circuit has held that “the government must prove by 22 clear and convincing evidence that [a non-citizen] is a flight risk or a danger to the community to 23 24 justify denial of bond.” Singh, 638 F.3d at 1203. While the Ninth Circuit made this holding in the 25 context of Casas hearings, the Court determines that the reasoning applies with equal force here. In 26 particular, the Court finds that “it is improper to ask [Perera] to ‘share equally with society the risk 27 of error when the possible injury to the individual’—deprivation of liberty—is so significant.” Id. 28 at 1203-1204 (quoting Addington v. Texas, 441 U.S. 418, 427 (1979)); see also Ixchop Perez v. 11 1 McAleenan, 435 F. Supp. 3d 1055, 1062 (N.D. Cal. 2020), appeal dismissed sub nom. Perez v. 2 McAleenan, No. 20-15511, 2020 WL 8970669 (9th Cir. Dec. 4, 2020) (“Accordingly, this court will 3 join the consensus view among District Courts concluding that after Jennings where ... the 4 government seeks to detain an alien pending removal proceedings, it bears the burden of proving 5 that such detention is justified.” (internal marks and citation omitted)). 6 C. Security 7 Federal Rule of Civil Procedure 65(c) provides that “[t]he court may issue a preliminary 8 United States District Court Northern District of California 9 injunction or a temporary restraining order only if the movant gives security in an amount that the 10 court considers proper to pay the costs and damages sustained by any party found to have been 11 wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The Ninth Circuit has “recognized that 12 Rule 65(c) invests the district court with discretion as to the amount of security required, if any.” 13 14 15 16 Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (internal quotation marks and citation omitted) (italics in original). “The district court may dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the defendant from enjoining his or her conduct.” 17 Id. District courts have routinely exercised their discretion to require no security in cases brought 18 by incarcerated people. See, e.g., Jorge M.F., 2021 WL 783561, at * 4; Vargas v. Jennings, 2020 19 WL 5074312, at *5 (N.D. Cal. Aug. 23, 2021); Orantes–Hernandez v. Smith, 541 F. Supp. 351, 385 20 n.42 (C.D. Cal. 1982). This Court does the same here. 21 V. ORDER 22 The Court HOLDS as follows: 23 24 (1) Plaintiff’s application for a TRO is GRANTED. 25 (2) Respondents-Defendants and their agents and employees are ENJOINED from 26 continuing to detain Petitioner-Plaintiff for more than 7 days from the date of this order 27 without a bond hearing at which the government bears the burden of justifying Petitioner- 28 Plaintiff’s detention, by clear and convincing evidence. 12 1 2 preliminary injunction on July 15, 2021 at 9:00 am, or such later dates as the parties may 3 request. 4 5 6 7 8 9 10 11 United States District Court Northern District of California (3) This TRO is issued after notice and hearing. The Court SETS set the hearing for the (4) The Temporary Restraining Order provisions set forth herein shall expire at 5:00 pm on July 15, 2021 unless before then Defendants consent, or the Court, for good cause, orders an extension. (5) Defendants may file any papers in opposition to the issuance of a preliminary injunction no later than June 24, 2021. (6) Perera may file any reply papers prior to the Show Cause hearing no later than July 1, 2021. 12 IT IS SO ORDERED. 13 14 Dated: June 11, 2021 15 16 17 ______________________________________ BETH LABSON FREEMAN United States District Judge 18 19 20 21 22 23 24 25 26 27 28 13
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