Perera v. Jennings

Background

Imesh Perera filed a petition challenging his custody and a complaint seeking court orders against immigration officials. He also asked for a temporary restraining order (TRO), an emergency order providing temporary relief, and an order requiring the defendants to explain why a preliminary injunction should not issue.

Perera was born in Sri Lanka in 1990 and came to the United States with his family in 2002. He became a lawful permanent resident in 2007, and his parents became U.S. citizens in 2012. He was convicted in California state court in 2010 of transporting a controlled substance. In 2015, he pleaded guilty in federal court to conspiracy to distribute and possess with intent to distribute MDMA and BZP. He received a 50-month sentence with credit for time served and 36 months of supervised release.

The opinion states that Perera later completed probation, avoided further criminal arrests or charges, pursued college studies, worked full-time, received five promotions at Safeway, and became a store director responsible for 130 employees. He also remained involved in his church community. He was engaged to a U.S. citizen who was pregnant with their first child.

ICE detained Perera on April 21, 2021, and began removal proceedings. He was held at Golden State Annex, a private detention facility in McFarland, California. ICE did not give him an opportunity to post a bond. Perera denied the charge of removability and intended to seek protection from removal to Sri Lanka if the charge was sustained.

Jurisdiction

The court held that it had jurisdiction under 28 U.S.C. § 2241 to consider the challenge to Perera’s detention. Although the facility was privately operated, the court concluded that the ICE field-office director named as a defendant was an appropriate respondent under the approach used by courts in the district because the facility’s immediate custodian lacked actual authority over the immigrant detainee.

Legal Standard

The court applied the same four-part standard used for a preliminary injunction: whether the plaintiff is likely to succeed, likely to suffer irreparable harm without relief, whether the balance of hardships favors the plaintiff, and whether an injunction serves the public interest. The court also explained that relief may issue when there are serious questions on the merits, the hardships sharply favor the plaintiff, and the other two factors are satisfied.

Due Process Analysis

Perera argued that mandatory detention under 8 U.S.C. § 1226(c), as applied to him, violated the Fifth Amendment’s Due Process Clause. The court focused on whether he could be detained without an individualized bond hearing, rather than on whether the government could detain him at all.

Applying the three-factor test from Mathews v. Eldridge, the court found that the factors “unquestionably” favored Perera. First, freedom from physical detention was a substantial private interest. Second, the risk of an erroneous deprivation was substantial because no neutral decisionmaker had considered evidence of Perera’s rehabilitation, education, employment, church involvement, and family ties. The immigration judge had declined to reconsider ICE’s detention decision based on a lack of authority under § 1226(c), and ICE apparently denied Perera’s release request without considering that evidence. Third, the government’s specific interest in denying an individualized bond hearing was limited, particularly because ICE waited six years to detain Perera while his whereabouts were continuously known to the government.

The court therefore found that Perera was likely to succeed in establishing a due process right to an individualized bond hearing. It also found irreparable harm from the loss of liberty and the effects of detention on Perera’s anticipated child, employment, home, and fiancé. The court concluded that the balance of equities and public interest favored requiring a hearing because the government would still be able to show that continued detention was necessary.

Burden at the Bond Hearing

The court agreed with Perera that the government must prove by clear and convincing evidence that he presents a danger to the community or a flight risk to justify denying bond. The defendants did not oppose that requested allocation of the burden.

Security

Under Federal Rule of Civil Procedure 65(c), a court may require security for a temporary restraining order or preliminary injunction. The court exercised its discretion to require no security in this case.

Order

The court granted Perera’s application for a TRO. The respondents, along with their agents and employees, were enjoined from continuing to detain Perera for more than seven days from the date of the order without a bond hearing at which the government would bear the burden of justifying his continued detention.

The TRO was issued after notice and a hearing. The court set a preliminary-injunction hearing for July 15, 2021, and ordered briefing deadlines. The TRO provisions were set to expire at 5:00 p.m. on July 15, 2021, unless the defendants consented to an extension or the court ordered one for good cause.