Ortiz Vargas v. Jennings

Background

On August 23, 2020, the court granted in part Ortiz Vargas’s motion for a temporary restraining order. The earlier order barred respondents from re-detaining him unless and until he received a pre-deprivation administrative hearing about whether the re-detention would be lawful. The court denied in part his request for a pre-deprivation judicial hearing and ordered respondents to explain why a preliminary injunction should not issue.

Ortiz Vargas had been conditionally released from detention on bond. He challenged an immigration judge’s later order revoking the bond and finding him subject to mandatory detention under 8 U.S.C. § 1226(c). He argued that re-arrest or re-detention without a hearing beforehand would violate procedural due process under the Fifth Amendment.

Parties’ Arguments

Respondents argued that existing procedures would adequately protect Ortiz Vargas’s due process rights if he were re-arrested. They also relied on authority holding that detention during immigration proceedings can be constitutionally valid and argued that Ortiz Vargas was not entitled to continued release on bond after the immigration judge determined that the initial release decision was incorrect.

The court concluded that those arguments did not resolve whether a non-citizen released on bond has a protected liberty interest in remaining released or whether due process requires a hearing before re-arrest or re-detention. The court also noted that Ortiz Vargas’s pending appeal to the Board of Immigration Appeals did not address the claimed harm from being re-detained before he could challenge the mandatory-detention issue.

Preliminary-Injunction Analysis

A preliminary injunction is temporary relief intended to preserve the parties’ positions until a final decision. The court applied the factors governing such relief and found serious questions concerning the merits of Ortiz Vargas’s procedural due process claim, that the balance of hardships sharply favored him, that irreparable injury was likely, and that the public interest favored due process protections for a possible loss of liberty.

The court determined that the injunction did not require an immigration judge to consider every constitutional challenge in the habeas petition during the pre-deprivation hearing. Instead, the hearing had to be limited to whether Ortiz Vargas was subject to mandatory detention under § 1226(c), which respondents identified as the basis for possible re-detention.

Order

The court issued a preliminary injunction ordering David Jennings, Matthew T. Albence, Chad Wolf, and William P. Barr, in the positions identified in the order, not to re-arrest or re-detain Simon Ortiz Vargas unless and until an administrative hearing with adequate notice determines whether he is subject to mandatory detention under § 1226(c). The court stated that it would set a case management conference by separate clerk’s notice. This order issued preliminary relief; the opinion does not state a final ruling on the habeas petition’s merits.