Pham v. Becerra

Background

Hung Phi Pham came to the United States from Vietnam in 2008 and became a lawful permanent resident in 2010. In 2015, he was convicted in Santa Clara County Superior Court under California Penal Code § 289(e) and sentenced to 364 days in county jail. He served six months and was released in August 2015. He later completed probation, registered as a sex offender in California, completed rehabilitation and alcohol-abuse programs, and worked as a handyman and construction worker.

Pham married Han Nguyen Khanh Duong, a U.S. citizen, in January 2020. They had a child in August 2020, and Pham applied for U.S. citizenship in June 2021. After a naturalization interview in April 2022, his application remained pending. On January 19, 2023, Immigration and Customs Enforcement detained Pham at his home. His second child was born while he was detained, and the opinion states that Pham had not yet met that child.

The government served Pham with a notice charging him with being deportable because his conviction qualified as an aggravated felony under the Immigration and Nationality Act. An immigration judge ruled that, under 8 U.S.C. § 1226(c), Pham was not entitled to a bond hearing. The immigration judge later sustained the charge of removability. Pham then filed a petition challenging his detention and moved for a temporary restraining order.

Jurisdiction

The government argued that the Northern District of California lacked jurisdiction because Pham was held at Golden State Annex, a private detention facility in the Eastern District of California. The court considered the rule that a person challenging physical confinement generally must sue the official who controls the confinement.

The court concluded that the government had not shown that the lower-level officials based in the Eastern District were the proper respondents. Those officials reported to Moises Becerra, the San Francisco Field Office Director, and the court found that Becerra exercised control over Pham’s physical custody. Because Becerra was based in the Northern District, the court held that it had jurisdiction over Pham’s petition.

Due-Process Challenge

Pham brought an as-applied constitutional challenge, meaning he argued that applying the mandatory-detention statute to his particular circumstances violated due process. Section 1226(c) generally requires the government to detain certain noncitizens with specified criminal convictions during removal proceedings without periodic bond hearings. The court noted that the Supreme Court had left open such as-applied constitutional challenges.

Applying the due-process balancing test from Mathews v. Eldridge, the court found that Pham had a substantial liberty interest in freedom from physical restraint. The court rejected the government’s position that the time between Pham’s release from criminal custody and his immigration detention eliminated that interest.

The court also found a significant risk of an erroneous deprivation of liberty because Pham had received no process addressing whether he was dangerous or likely to flee. The court cited evidence that he had completed post-conviction programs, had a wife and two U.S. citizen children, held a steady job, and had meaningful community ties. The court emphasized that it was not deciding whether Pham should ultimately receive bond; it was deciding whether he was entitled to a hearing.

The court found that the government’s interest in detaining Pham without a bond hearing was limited. Requiring a hearing would not prevent the government from detaining noncitizens who posed a danger or flight risk. Balancing these considerations, the court held that Pham was likely to succeed on his due-process claim and that continued detention without a bond hearing would violate due process.

Other Temporary-Restraining-Order Factors

The court found that Pham also satisfied the requirements for temporary emergency relief. Continued detention without a hearing caused irreparable harm, including preventing him from being with his family, providing economic and emotional support, and meeting his second child. The balance of hardships favored Pham, and the court found that the public interest supported preventing unnecessary detention.

Burden of Proof and Security

The court ruled that the government would bear the burden of proof at the bond hearing. It relied on Ninth Circuit authority requiring that allocation when a substantial liberty interest is at stake and found that later authority had not displaced that rule in § 1226(c) cases.

The court also granted Pham’s request that no security be required for the temporary restraining order.

Disposition

The court GRANTED Pham’s motion for a temporary restraining order. It enjoined the government from continuing to detain Pham for more than five days after the order without providing a bond hearing at which the government bears the burden of proof. The order was issued after notice and a March 30, 2023 hearing and was set to expire at 5:00 p.m. on April 21, 2023, unless extended by consent or court order. The court set a preliminary-injunction hearing for April 21, 2023, or a later date requested by the parties.