Ixchop Perez v. McAleenan

Background

Mario Alexander Ixchop Perez, a noncitizen and citizen of Guatemala, had been detained by the U.S. Government since January 23, 2018. He entered the United States without being inspected, admitted, or paroled. He had primarily lived in San Francisco since 1996, was married to a U.S. citizen, and had three young children. His criminal record included five driving-under-the-influence convictions between 2009 and 2015, four misdemeanors and one felony. He asserted that he had been sober since his 2015 arrest and presented evidence of treatment, rehabilitation, family support, and possible alcohol monitoring.

In January 2020, the court granted Perez’s earlier petition for a writ of habeas corpus, a legal procedure for challenging unlawful detention. The court ordered the Government to provide an individual bond hearing and to prove by clear and convincing evidence that continued detention was justified. Perez received that hearing on January 31, 2020. On February 2, 2020, the immigration judge denied bond, finding that the Government had shown by clear and convincing evidence that Perez posed a danger to the community. Perez appealed to the Board of Immigration Appeals and filed the present motions before that appeal was completed.

Motion to Enforce the Earlier Order

Perez argued that the immigration judge had not complied with the earlier court order. He contended that the Government had not met the required burden and that the immigration judge had mischaracterized the facts, failed to give enough weight to the time since his last driving-under-the-influence offense and his rehabilitation, failed to consider important evidence, and failed to consider alternatives to detention.

The court held that it had jurisdiction to review Perez’s constitutional challenge to the bond-hearing process, even though federal law generally bars review of discretionary bond decisions. The court also held that Perez ordinarily had to exhaust available administrative appeals before seeking relief, but excused that requirement because exhaustion would be futile and continued detention could cause irreparable harm. The court explained that the issue could be resolved from the existing record without waiting for the administrative appeal.

The court concluded that due process required the Government to prove by clear and convincing evidence that Perez was a flight risk or danger to the community before denying bond. It found that the immigration judge had considered Perez’s rehabilitation efforts and the time since his last driving-under-the-influence offense. The court also found that the immigration judge could rely on Perez’s repeated offenses, their circumstances, the high blood-alcohol levels involved in four of the five arrests, excessive speeding during one incident, and the presence of his wife in the car during another incident.

The court further held that the immigration judge was not required to discuss every piece of evidence in the written decision. The hearing record showed that the immigration judge considered the evidence, including the proposed remote alcohol-monitoring program. Because the immigration judge found Perez dangerous, the judge did not have to consider alternative release conditions. The court stated that it could not second-guess how the immigration judge weighed the evidence, and it found sufficient evidence supporting the danger determination. It therefore denied Perez’s motion to enforce the court’s earlier order.

Temporary Restraining Order Based on COVID-19

Perez alternatively sought temporary release because of the COVID-19 pandemic. The court considered the standard for a temporary restraining order, which requires a clear showing of likely success, likely irreparable harm, favorable balancing of hardships, and consistency with the public interest.

The court found that Perez’s asthma, hypertension, and latent tuberculosis placed him at increased risk of severe illness or death from COVID-19. It also found that the shared and confined conditions of the Aurora Detention Facility made meaningful social distancing impossible. The court concluded that these circumstances established a likely risk of irreparable harm.

The court also held that Perez was likely to succeed on his due-process challenge to the conditions of his detention. Although the Government had a legitimate, nonpunitive reason for detaining him, the court found that detention under the existing conditions was excessive in relation to that purpose because the Government’s interests could be advanced through a limited release. The court found that the balance of hardships and the public interest also favored relief.

Disposition

The court denied Perez’s motion to enforce the earlier order. It granted in part his motion for a temporary restraining order and ordered the Government to immediately release him subject to three conditions: he could not consume alcohol, could not drive or operate a motor vehicle, and had to obey governmental shelter-in-place orders, regulations, and protocols. The parties had to meet and confer about a date for Perez to return to immigration custody and file a joint statement by noon on April 15, 2020. The temporary restraining order was set to expire on April 27, 2020; if the parties could not agree on a return date, the Government had to show cause by noon on April 20, 2020, why the order should not be converted into a preliminary injunction for the duration of the shelter-in-place period. Judge Edward J. Davila signed the order.