Ortega v. Bonnar

Background

Giovanny Hernan Ortega was born in El Salvador and came to the United States as a teenager in 1990. After a juvenile conviction for seven counts of attempted murder and more than two decades in custody, he was released into Immigration and Customs Enforcement custody in April 2017. The Department of Homeland Security began removal proceedings against him based on his conviction for an aggravated felony. An immigration judge denied his request for protection under the Convention Against Torture and ordered him removed; the Board of Immigration Appeals affirmed, and Ortega filed a petition for review with the Ninth Circuit.

In January 2018, an immigration judge ordered Ortega released on a $35,000 bond. His wife posted the bond, and he was released on January 31, 2018. Immigration and Customs Enforcement later sought reconsideration of the bond decision without giving Ortega notice. The immigration judge vacated the bond order in part, and later reinstated the bond order after an unopposed motion.

Ortega filed this petition asking for a court order preventing the Department of Homeland Security defendants from re-arresting him unless and until an immigration judge held a hearing, with adequate notice, to decide whether his bond should be revoked or changed. During the case, the court issued a preliminary injunction that imposed that restriction. Ortega remained released, worked, participated in community activities, complied with the requirements of the Intensive Supervision Alien Program and parole, and continued counseling.

Issues and arguments

Ortega brought an as-applied due-process challenge, meaning he challenged how the government’s authority applied to his specific circumstances. He argued that he had a liberty interest in remaining out of custody on bond and was entitled to a hearing before re-arrest if the government believed circumstances had materially changed.

The government argued that the court lacked jurisdiction to review a discretionary bond-revocation decision, that Ortega’s claim was not ripe because he had not been re-arrested, that he had no protected liberty interest in remaining on bond, and that the procedures available after re-arrest were constitutionally sufficient.

Court’s reasoning

The court held that it had jurisdiction over Ortega’s constitutional claim. Although the relevant immigration statutes limited review of some discretionary decisions, they did not eliminate habeas jurisdiction over constitutional claims or legal questions. The court also held that the claim was ripe because the government had not assured Ortega that it would not re-arrest him, had asserted that it had discretion to do so, and had argued that circumstances had already materially changed. Waiting until after re-arrest would not provide the pre-re-arrest hearing Ortega sought.

The court ruled that Ortega had a protected liberty interest in remaining on bond. Government discretion in making a decision does not by itself eliminate a liberty interest, and the court treated Ortega’s release from civil immigration detention as comparable in relevant respects to other forms of supervised release.

The court applied the three-part test from Mathews v. Eldridge: the private interest at stake, the risk of an erroneous deprivation and value of additional procedures, and the government’s interest and the burden of additional procedures. It found Ortega’s private interest substantial because he had lived with his wife, spent time with family, worked as a bicycle mechanic, and developed community relationships. It found the risk of an erroneous deprivation high and a hearing before a neutral immigration judge valuable. It found the government’s interest in re-arresting Ortega without a hearing low, particularly because the alleged material change had occurred more than a year and a half earlier and Ortega had complied with his release conditions.

Disposition

Judge William H. Orrick granted Ortega’s petition for a writ of habeas corpus. The defendants, including Immigration and Customs Enforcement, were permanently enjoined from re-arresting Ortega unless and until an immigration-court hearing, preceded by adequate notice, determines whether his bond should be revoked or altered.