Summary
finding that petitioner "is entitled to a bond hearing under either § 1226 or § 1231" under Diouf II because he "has been detained by ICE for more than six months and his detention is likely to continue until his withholding-only proceedings are concluded"
Summary of this case from Guardado-Quevara v. LynchOpinion
Case No. C15-1778-MJP
03-07-2016
VICTOR MERCADO GONZALEZ, Petitioner, v. NATHALIE R. ASHER, et al., Respondents.
ORDER GRANTING IN PART AND DENYING IN PART HABEAS PETITION
The Court, after careful consideration of the Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate Judge, and the balance of the record, does hereby find and Order:
1. The Court adopts the Report and Recommendation.
2. Petitioner's habeas petition, Dkt. 1, is GRANTED in part and DENIED in part.
3. Respondents' motion to dismiss, Dkt. 6, is GRANTED in part and DENIED in part.
4. Petitioner is not entitled to an order of release.
5. Petitioner is entitled to a bond hearing where the government bears the burden of proving by clear and convincing evidence that he presents a flight risk or a danger to the community. See Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942 (9th Cir. 2008); Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) ("Diouf II"); Rodriguez v.
Robbins, 804 F.3d 1060 (9th Cir. 2015).
6. Within 14 days of the date of this Order, respondents shall provide petitioner with such a bond hearing.
7. The Clerk shall send a copy of this Order to the parties and to Judge Tsuchida.
DATED this 7th day of March, 2016.
/s/_________
Marsha J. Pechman
United States District Judge