“[T]he presumption of access 14 is not rebutted where . . . documents subject to a protective order are filed under seal as 15 attachments to a dispositive motion.”
How later courts described this case
- “[T]he presumption of access 14 is not rebutted where . . . documents subject to a protective order are filed under seal as 15 attachments to a dispositive motion.”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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9 SOUTHERN DISTRICT OF CALIFORNIA
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11 PEDRO GASPAR ANDRES-LUCAS, ) Case No.: 3:21-cv-01121-BEN-WVG
)
Petitioner,
12 ) ORDER:
13 v. )
) (1) SETTING BRIEFING
14 ALEJANDRO MAYORKAS, Secretary, ) SCHEDULE and
United States Department of Homeland
15 Security; TAE JOHNSON, Acting )
) (2) GRANTING PETITIONER’S
16 Director of U.S. Immigration and Customs ) MOTION FOR LEAVE TO FILE
Enforcement; MATTHEW ALLEN,
17 Senior Official Performing Duties of the ) DOCUMENTS UNDER SEAL
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18 Director of U.S. Immigration and Customs ) [ECF Nos. 1, 3]
Enforcement; JESUS REYNA, Calexico
19 Assistant Field Office Director, )
)
20 Immigration and Customs Enforcement; )
and SIXTO MARRERO, Facility
21 Administrator, Imperial Regional )
)
22 Detention Center,
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23 Respondents. )
24 I. INTRODUCTION
25 Petitioner PEDRO GASPAR ANDRES-LUCAS (“Petitioner”) brings this petition
26 for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (the “Petition”) against Defendants
27 ALEJANDRO MAYORKAS, Secretary, United States Department of Homeland
28 Security; TAE JOHNSON, Acting Director of U.S. Immigration and Customs
1 Enforcement; MATTHEW ALLEN, Senior Official Performing Duties of the Director of
2 U.S. Immigration and Customs Enforcement; JESUS REYNA, Calexico Assistant Field
3 Office Director, Immigration and Customs Enforcement; and SIXTO MARRERO,
4 Facility Administrator, Imperial Regional Detention Center (collectively,
5 “Respondents”). Petition, ECF No. 1.
6 Before the Court are Petitioner’s (1) Petition for Writ of Habeas Corpus and (2)
7 Motion for Leave to File Documents Under Seal. ECF Nos. 1, 3. After considering the
8 papers submitted, supporting documentation, and applicable law, the Court (1) sets a
9 briefing schedule as outlined in the conclusion of this order and (2) GRANTS Petitioner’s
10 Motion for Leave to File Documents Under Seal.
11 II. BACKGROUND
12 A. Statement of Facts1
13 On July 23, 1985, Petitioner was born in Guatemala. ECF No. 1 at 11,2 ¶ 17. In
14 1991, at the age of six, he came to the United States to escape the civil war in Guatemala,
15 pursuant to the Nicaraguan Adjustment and Central American Relief Act. Id. at 11, ¶¶
16 17-20. Petitioner grew up in Vista, California, where he attended elementary, middle,
17 and high school. Id. at 11, ¶ 18.
18 In April 2002, Petitioner became a lawful permanent resident of the United States.
19 ECF No. 1 at 11, ¶ 17. In 2004, he graduated from Vista High School. Id. at 11, ¶ 18.
20 In 2015, Petitioner married his wife, Maria Lopez, a United States citizen. ECF
21 No. 1 at 12, ¶ 21. They have four young children together. Id.
22 Petitioner admits that for a time, he struggled with alcohol addiction, which resulted
23 in him incurring three misdemeanors for driving under the influence (“DUI”) in 2009,
24 2011, and 2014. Id. at 12, ¶ 22.
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26 1 The below facts are from the Petition and accepted solely for purposes of setting a
27 briefing schedule.
2 Unless otherwise indicated, all page number references are to the ECF-generated
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1 In 2014, after his third misdemeanor for DUI, Child Protective Services (“CPS”)
2 intervened in Petitioner’s family, resulting in both Petitioner and his wife losing custody
3 of their children. Id. at 12, ¶ 23. Eventually, his wife regained custody of the children.
4 Id. at 12, ¶ 24. One day, in April 2017, Petitioner visited his children to bring them ice
5 cream, and alleges that his four-year-old son threw a temper tantrum because he was
6 unhappy with the flavor. Id. at 12, ¶ 25. He pleads that he intervened to try to calm his
7 son and discipline him, but his son fell and was injured. Id. Based on this alleged
8 accidental and isolated event, Petitioner pled guilty in 2017 to a single count of child
9 endangerment, in violation of California Penal Code § 273a(a). Id. Due to Petitioner’s
10 prior misdemeanor convictions, and despite Probation’s recommendation of formal
11 probation, Petitioner was sentenced to two years in custody. Id. at 12-13, ¶ 25.
12 Petitioner claims that since his 2017 conviction, he has committed to bettering his
13 life and amending his relationships by participating in rehabilitation and parenting classes.
14 ECF No. 1 at 13, ¶ 26. However, in 2018, the Department of Homeland Security (“DHS”)
15 issued a Notice to Appear to Petitioner, alleging that his 2017 conviction constituted a
16 “crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect,
17 or child abandonment” under the Immigration and Nationality Act, 8 U.S.C. § 1226, et
18 seq. See, e.g., 8 U.S.C. § 1227(a)(2)(E)(i) (providing that “[a]ny alien who at any time
19 after admission is convicted of a crime of domestic violence, a crime of stalking, or a
20 crime of child abuse, child neglect, or child abandonment is deportable”); see also ECF
21 No. 1 at 13, ¶ 27. Petitioner applied for cancellation of his removal under 8 U.S.C. §
22 1229(a), based on his many years of residency in the United States and strong family ties.
23 ECF No. 1 at 13, ¶ 27. However, the immigration judge sustained the charge of
24 removability, denied Petitioner’s application for cancellation of his removal, and ordered
25 that he be removed to Guatemala. Id. Petitioner appealed to the Board of Immigration
26 Appeals (the “BIA”) and retained new counsel to handle the appeal, who he alleges made
27 critical errors that resulted in his removal to Guatemala. Id. Petitioner then appealed to
28 the Ninth Circuit, but he pleads that his appeal was dismissed after his counsel failed to
1 pay the filing fee. Id. at 14, ¶ 29. He alleges that by the time his attorney moved to reopen
2 the case on January 21, 2020, it was too late, and the DHS had already initiated the
3 removal process. Id. He pleads that “the only reason [he] was removed to Guatemala in
4 2020 and not permitted to stay and challenge his removability was the deficient
5 performance of his counsel.” Id.
6 In 2020, two weeks after Petitioner arrived back in Guatemala, he alleges that gang
7 members in his family’s hometown began targeting him because he appeared to be from
8 the United States. ECF No. 1 at 14, ¶ 30. He claims that while attempting to travel to
9 another town, he was brutally attacked by gang members at what appeared to be a police
10 checkpoint. Id. He alleges that the gang members pulled him out of the taxi and whacked
11 on the head so violently that he lost consciousness. Id. He claims he managed to escape
12 his attackers “and fled Guatemala for his life.” Id. Petitioner admits that “[a]s he had
13 lived in the United States for almost three decades and had no other home country, [he]
14 made the arduous trek to return to the United States.” Id. However, upon his return, he
15 was apprehended attempting to cross the border. Id. Although the DHS issued a
16 reinstatement order, Petitioner was provided a reasonable fear interview (“RFI”) because
17 he feared returning to Guatemala, where he had been kidnapped and assaulted. Id. at 14-
18 15, ¶ 31. He pleads that following a positive RFI determination, he was placed into
19 withholding-only proceedings. Id. However, even though he was found to be credible,
20 on November 6, 2020, his withholding-only relief was denied. Id. at 15, ¶ 32. Petitioner
21 appealed this decision, but on June 14, 2020, the BIA denied that appeal. Id. On June
22 14, 2021, the BIA also denied his claims for withholding of removal and deferral against
23 the Convention Against Torture (“CAT”). Id.
24 Petitioner’s petition for review at the Ninth Circuit challenging the loss of his
25 lawful permanent resident status is still pending. See Andres Lucas v. Garland, Case No.
26 19-72125 (9th Cir.). He alleges that he has been in civil immigration detention at the
27 Imperial Regional Detention Facility (“Imperial Regional”) since May 2020. ECF No. 1
28 at 8, ¶ 1, 10, ¶ 11. Petitioner asks the Court to (1) issue a writ of habeas corpus and order
1 Respondents to show cause, within fourteen (14) days of filing of his Petition, why the
2 relief he seeks should not be granted; (2) set a hearing on this matter within 10 days of
3 the response to the order to show cause, pursuant to 28 U.S.C. § 2243; (3) upon conclusion
4 of the hearing, order Petitioner’s immediate release, either on his own recognizance or
5 under the least restrictive conditions that are reasonably necessary to ensure his
6 appearance in immigration proceedings; or (4) in the alternative, order a new bond hearing
7 requiring the immigration judge to hold the government to its burden of proof, consider
8 alternatives to detention, and consider other mitigating evidence. ECF No. 1 at 35-36.
9 B. Procedural History
10 On June 16, 2021, Petitioner filed the instant Petition, alleging two claims for relief
11 against Respondents for (1) prolonged detention without a constitutionally adequate
12 hearing in violation of his Fifth Amendment Right to Due Process and (2) freedom from
13 unlawful detention pursuant to his Fifth Amendment Right to Substantive Due Process.
14 Petition, ECF No. 1. Petitioner paid the $5.00 filing fee. See id. To date, the records
15 indicate Petitioner has not served Respondents. Also on June 16, 2021, Petitioner filed a
16 motion to file documents under seal, seeking to file the exhibits to his Petition, which
17 were lodged as ECF No. 4, under seal. ECF No. 3.
18 III. LEGAL STANDARD
19 A. Petition for Writ of Habeas Corpus
20 A district court “entertaining an application for a writ of habeas corpus shall
21 forthwith award the writ or issue an order directing the respondent to show cause why the
22 writ should not be granted, unless it appears from the application that the applicant or
23 person detained is not entitled thereto.” 28 U.S.C. § 2243.
24 B. Motion to Seal
25 Except for certain documents “traditionally kept secret,” federal courts begin a
26 sealing analysis with “a strong presumption in favor of access to court records.” Foltz v.
27 State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). A party seeking to
28 seal a judicial record then must “articulate [] compelling reasons supported by specific
1 factual findings,” id., that outweigh the general history of access and the public policies
2 favoring disclosure, such as the “public interest in understanding the judicial process,”
3 Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). The Court “conscientiously
4 balance[s] . . . the competing interests” of the public and the party who seeks to keep
5 certain judicial records secret. Foltz, 331 F.3d at 1135. After considering these interests,
6 if the Court decides to seal certain judicial records, it “base[s] its decision on a compelling
7 reason and articulate[s] the factual basis for its ruling, without relying on hypothesis or
8 conjecture.” Hagestad, 49 F.3d at 1434.
9 “The mere fact that the production of records may lead to a litigant’s
10 embarrassment, incrimination, or exposure to further litigation will not, without more,
11 compel the court to seal its records.” Kamakana, 447 F.3d at 1179. A party must satisfy
12 the compelling reasons standard even if the motion, or its attachments, were previously
13 filed under seal or protective order. Foltz, 331 F.3d at 1136 (“[T]he presumption of access
14 is not rebutted where . . . documents subject to a protective order are filed under seal as
15 attachments to a dispositive motion.”). Further, “[s]imply mentioning a general category
16 of privilege, without further elaboration or any specific linkage with the documents, does
17 not satisfy the burden.” Kamakana, 447 F.3d at 1184. A party’s failure to meet the burden
18 of articulating specific facts showing a “compelling reason” means that the “default
19 posture of public access prevails.” Id. at 1182.
20 IV. DISCUSSION
21 The Court orders Respondents to show cause as to why the Court should not grant
22 the Petition for a writ of habeas corpus by complying with the briefing schedule at the
23 conclusion of this order.
24 As for Petitioner’s Motion to File Documents Under Seal, Petitioner asks the Court
25 for leave to file Exhibits A through I to his Petition under seal. ECF No. 3 at 2:1-2. He
26 argues that these exhibits contain the personal and confidential information of Petitioner
27 and his family, including passport numbers and other identification numbers, street
28 addresses, personal phone numbers, and personal email addresses. ECF No. 3 at 2:3-5.
1 He also contends that he suffered persecution in Guatemala and fears retribution for
2 speaking out against his persecutors. Id. at 2:5-7.
3 Rule 5.2 of the Federal Rules of Civil Procedure (“FRCP 5.2”), requires redaction
4 of any court filing that “contains an individual’s social-security number, taxpayer-
5 identification number, or birth date, the name of an individual known to be a minor, or a
6 financial-account number.” Petitioner argues the exhibits he seeks to seal contain
7 information for which redaction is required under FRCP 5.2(a). The documents he seeks
8 to seal are listed below:
Exhibit No.: Description: Bates No.:
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Declaration of Mr. Andres in Support of
10 A Habeas Petition 000001
11 A-1 Rehabilitation Certificate from Imperial Regional 000007
Detention Facility CA
12 Declaration of Mr. Andres in Support of Application of
B 000012
13 Withholding of Removal
D Bond Hearing Transcript (2020.12.21) 000030
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F Order Denying Bond (2020.12.21) 000045
15 G Bond Memorandum Denying Bond (2021.2.8) 000048
Respondent’s Evidentiary Submission in Support of
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H Custody Redetermination (2020.12.16) 000055
17 H-1 Identity Document of Mr. Andres 000061
H-2 Sponsor Documents from Antonia Andres 000064
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H-3 Letters of Support and Proof of Legal Status 000089
19 H-5 Evidence of Rehabilitation of Mr. Andres 000110
20 H-7 Documents Relating to Withholding-Only Proceedings 000133
H-8 Documents Relating to Concurrent Ninth Circuit PFR 000146
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Notification that ICE considers Mr. Andres at High Risk
22 H-9 000206
of Sever COVID-19
23 I DHS Prehearing Submission (2020.11.8) 000220
24 Upon review of the above documents, the Court finds that the redactions are
25 narrowly tailored and limited to either (1) information Petitioner believes would subject
26 him to physical harm if made publicly available or (2) identifying information of
27 Petitioner or non-party litigants. Given other district courts have lodged under seal the
28 type of documents at issue here as well as the confidential and privileged nature of the
1 records involved, compelling reasons exist for the Court to exercise its discretion and
2 inherent authority to similarly lodge these materials without redactions under seal. See,
3 e.g., Zeiger v. WellPet LLC, --- F. Supp. 3d ---, No. 3:17-CV-04056-WHO, 2021 WL
4 756109, at *31 (N.D. Cal. Feb. 26, 2021) (granting a motion “to redact individual
5 customers’ identifying information, which is plainly sealable and narrowly tail[or]ed”);
6 Nightingale v. U.S. Citizenship & Immigr. Servs., 507 F. Supp. 3d 1193, 1213 (N.D. Cal.
7 2020), appeal dismissed sub nom. No. 21-15288, 2021 WL 3674656 (9th Cir. July 30,
8 2021) (sealing “certain limited information from ten of the fourteen exhibits, seven of
9 which contain personal identifying information of certain government employees”).
10 V. CONCLUSION
11 The Court ORDERS as follows:
12 1. The Parties shall comply with the following briefing schedule for
13 Petitioner’s Petition for a Writ of Habeas Corpus:
14 a. The Government shall file and serve a response in opposition to
15 Petitioner’s Petition for Habeas Corpus no later than Friday, October 15, 2021. The
16 opposition shall include any documents relevant to the determination of the issues raised
17 in the Petition, including any relevant court transcripts.
18 b. If Petitioner chooses to file a traverse, he may do so no later than
19 Monday, November 15, 2021.
20 2. The Clerk of Court shall serve a copy of the Petition together with a copy of
21 this order on the United States Attorney, or an authorized representative, at 880 Front
22 Street, Room 6293, San Diego, California 92101.
23 3. Upon filing of the foregoing, the parties shall await further order from this
24 Court.
25 4. Petitioner’s Motion for Leave to File Documents Under Seal is GRANTED.
26 Redacted versions of the aforementioned documents have been filed on the public docket
27 as ECF No. 4. The Clerk is directed to file unredacted versions of the documents and
28 exhibits lodged at Docket Number 4 under seal. To the extent either party seeks to rely
1 |}on a document previously sealed by this Court, that party is directed to cite the ECF
2 || Number and page number of the lodged, sealed document rather than filing a redundant
3 || motion to seal the same document.
4 IT IS SO ORDERED. "
5 || DATED: September 1, 2021
6 ON. ROGER T. BENITE
; United States District Judge
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