Vasquez Cruz v. Barr

Background

Ricardo A. Vasquez Cruz filed a petition under 28 U.S.C. § 2241 challenging his prolonged detention in Immigration and Customs Enforcement custody without a bond hearing. He is a native and citizen of El Salvador. After serving a state sentence for felony convictions under California Penal Code section 273.5(a), corporal injury of a spouse or cohabitant, and section 273a(a), child abuse, he was taken into immigration custody on May 17, 2018.

An immigration judge denied his requests for a bond hearing after finding that his section 273.5 conviction was a crime involving moral turpitude, making him subject to mandatory detention under 8 U.S.C. § 1226(c). The Board of Immigration Appeals affirmed that decision. Vasquez Cruz had previously filed a habeas petition, but the court denied it without prejudice because he had not yet completed the required administrative process. After the Board issued its decision, he filed this petition. His removal proceedings had separately resulted in a removal order, which was under review by the Ninth Circuit, with a temporary stay of removal in effect.

Jurisdiction

The respondents argued that the court could not consider the petition because Vasquez Cruz’s challenge had to be raised through his pending petition for review of the removal order. Vasquez Cruz argued that the legality of his mandatory detention was separate from whether he was removable.

The court agreed with Vasquez Cruz. Relying on the Supreme Court’s decision in Nielsen v. Preap, the court held that the immigration judicial-review provisions did not prevent it from deciding whether he was subject to mandatory detention without a bond hearing. The court therefore found that it had jurisdiction.

Merits

Section 1226(c) requires detention without a bond hearing for certain noncitizens convicted of a crime involving moral turpitude. The court applied the categorical approach, which compares the elements of the state offense with the generic federal definition of that type of crime. The court followed Ninth Circuit precedent holding that California Penal Code section 273.5 is broader than the generic offense because it covers several types of relationships, not only spouses. As a result, the statute is not categorically a crime involving moral turpitude.

The court assumed, without deciding, that section 273.5 is divisible, meaning that it contains alternative versions of the offense that can be evaluated separately. Under the modified categorical approach, the court examined whether the conviction record conclusively showed that Vasquez Cruz had been convicted of causing injury to a spouse. The government had the burden to establish that match conclusively.

The state felony complaint listed several possible relationships and stated that the victim was someone with whom Vasquez Cruz had a dating relationship. It did not clearly identify the victim as a spouse. His plea document referred only to section 273.5(a) and supplied no additional details. The court concluded that the record did not conclusively establish spousal abuse. Because only a section 273.5 conviction involving a spouse qualified as a crime involving moral turpitude under the precedent applied by the court, Vasquez Cruz was eligible for a bond hearing.

Disposition

The court granted Vasquez Cruz’s petition for a writ of habeas corpus. It ordered that he be released within 60 days of the order’s filing date unless the agency provided him with a new bond hearing before an immigration judge. Because the temporary restraining order sought the same relief, the court denied as moot his motion for a temporary restraining order.