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Criminal Defense Attorneys

Second Immigration Bond Hearing a Due Process Right?

Aroldo Alberto Rodriguez Diaz came to the United States from El Salvador as a child, entering the United States illegally on an unknown date. 

At age 15, in 2011, he was convicted of first-degree residential burglary and spent a month in state custody, after which he was transferred to Immigration and Customs Enforcement under 8 U.S.C. § 1226(a), which authorizes the federal government to detain aliens pending the completion of removal proceedings.

ICE filed removal charges against Rodriguez Dias as being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without having been inspected, admitted or paroled. 

Since Rodrigue Diaz was a minor, ICE transferred him to the custody of the Office of Refugee Resettlement , which subsequently released him on January 20, 2012. 

Removal proceedings continued and Rodriguez Diaz later filed applications for asylum and protection under the Convention Against Torture (CAT).

In the following years, after removal proceedings had started, Rodriguez Diaz accumulated a fairly lengthy criminal record.  In 2014, he was charged with battery on a person on school, park, or other property, and battery resulting in serious bodily injury.  These charges were later dismissed. 

In 2016, while age 20, Rodriguez Diaz was charged with misdemeanor possession of burglary tools.  While these charges were pending, he was also charged with possession of cocaine, to which he pleaded no contest in return for dismissal of the burglary tools charge.  For the drug charge, Rodriguez Diaz was placed on 18 months of probation. 

Finally, in 2018, at age 22, Rodriguez Diaz was arrested on seven felony counts relating to a domestic dispute involving his wife and child.  He was convicted of spousal battery and intimidation of a witness and was sentenced to 276 days in county jail and 36 months of probation.

By this time, ICE also received a report from law enforcement that Rodriguez Diaz had admitted to being a gang member on two occasions.

On or about December 18, 2018, Rodriguez Diaz was released from the San Mateo County Jail and taken into ICE custody under 8 U.S.C. § 1226(a).  Approximately two months later, he had an immigration bond hearing on the issue of whether his detention was justified because he presented a flight risk or danger to the community. 

At the bail hearing, the judge asked Rodriguez Diaz if he was a gang member and he said he was not.  He was then asked about his “C.L.” tattoo that police said stood for “Carnales Locos,” which was the gang he admitted to being a member of.  Rodriguez Diaz told the judge that the tattoo stood for “California Life.”

The judge denied bail, finding that he represented a danger to society based on his gang membership.

About five months later, the Immigration Judge assigned to his case denied his application for CAT relief and ordered him removed. 

Rodriguez Diaz then appealed to the Board of Immigration Appeals (BIA), which dismissed his appeal.

Rodriguez Diaz then appealed to the U.S. Court of Appeals for Ninth Circuit and requested a temporary stay of removal.

The request for a temporary stay of removal was granted and while his appeal was pending, his state court conviction for drug possession was vacated.  Consequently, Rodriguez Diaz filed motion to reopen his removal proceedings, arguing, among other things that the vacatur of his conviction meant he was newly eligible for cancellation of removal and adjustment of status.

At around this time, Rodriguez Diaz also filed a motion for a new bond hearing a custody redetermination.  In his motion, Rodriguez Diaz claimed that vacatur of his drug conviction and, while admitting that he used to be a member of the Carnales Locos, he had cut ties with the gang.

The immigration judge (IJ) denied the motion, finding that his claims about gang affiliation lacked credibility, given his prior false testimony on the matter, and therefore, he remained a danger to the community.

He then filed a petition for writ of habeas corpus in the federal district court, arguing that his detention was unduly prolonged and he should receive a new immigration bond hearing.  The district court granted the petition in large part, ruling that the government must prove by clear and convincing evidence that Rodriguez was a flight risk or a danger to the community.

The immigration judge then held a hearing and lowered bail to $10,000, which Rodriguez Diaz immediately posted.

The government quickly appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the immigration judge ruling and remanded with instructions that the immigration judge reinstate the district court ruling.  The Ninth Circuit applied the Matthews v. Eldridge factors for aliens seeking an immigration bond.  Matthew v. Eldridge (1976) 424 U.S. 319.  The three factors that Matthew mandates scrutiny of were: 1) the private interest affected; 2) the risk in depriving that interest and whether there are procedural safeguards; and 3) the government’s interest.  In this case, factor one weighed heavily in Rodriguez Diaz’s favor, but factor three weighed heavily in the government’s favor.

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