Public-domain · open source
OpenJurist

803 F.3d 502

Docket Nos. 13-56706, 13-56755.

Rodriguez v. Robbins

Ninth Circuit Court of Appeals

Decided Oct. 2, 2015.

Ninth Circuit Court of Appeals · decided 2015-10-02

2 counsel of record

Relies on LVRC Holdings LLC v. Brekka

Decided 2015-10-02

¶1Ahílan Thevanesan Arulanantham, Michael Kaufman, ACLU Foundation of *503Southern California, Sean Ashley Commons, Esquire, Sidley Austin LLP, Los Angeles, CA, Judy Rabinovitz, Aclu Immigrants’ Rights Project, Michael K.T. Tan, ACLU American Civil Liberties Union Foundation, New York, N.Y., Jayashri Sri-kantiah, Mills Legal Clinic, Stanford, CA, Cecillia D. Wang, American Civil Liberties Union Foundation, San Francisco, CA, for Petitioners-Appell&es.

¶2Theodore William Atkinson, Esquire, Trial, Nicole Prairie, Trial, Erez Reuveni, Sarah Stevens Wilson, Alisa Beth Klein, Jaynie R. Lilley, Benjamin C. Mizer, U.S. Department of Justice, Washington, DC, Robert I. Lester, Assistant U.S., Office of the U.S. Attorney, Los Angeles, CA, for Respondents-Appellees.

¶3D.C. No. 2:07-cv-03239-TJH-RNB.

¶4Before: KIM McLANE WARDLAW and RONALD M. GOULD, Circuit Judges and SAM E. HADDON,* District Judge.

¶6ORDER

¶7We have considered both the government’s and petitioners’ responses to the Order to Show Cause dated August 13, 2015, and these submissions have satisfied us that no government attorney provided information to the press with the object of influencing this appeal. Rather, it appears that a U.S. Immigration and Customs Enforcement (ICE) spokesperson provided information about this case in response to an inquiry by a Los Angeles Times reporter on July 16, 2015, and that the timing of the article’s publication was only coincidentally related to the date of the hearing. We therefore discharge the Order to Show Cause.

¶8Though we appreciate the government’s prompt and respectful submission, we remain concerned that government counsel made an argument based on evidence not properly before this court, which left an impression contrary to the facts surrounding Kaene Dean’s immigration bond hearings.

¶9Under review are cross-motions for summary judgment. We are therefore limited to considering evidence that was before the district court when it issued its ruling, unless we take judicial notice of the new evidence pursuant to Federal Rule of Evidence 201. See Fed. R.App. P. 10(a); LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1136 (9th Cir.2009). Government counsel did not request judicial notice of the July 21, 2015, Los Angeles Times article, which referenced Mr. Dean’s bond hearings. Nor was the article properly a subject for judicial notice as it contained representations neither “generally known within the trial court’s territorial jurisdiction” nor “accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Unfortunately, the representations made to the court by government counsel about those proceedings appear to have been based on the news article, which included partial and potentially misleading information concerning the proceedings. See Model Rules of Prof'l Conduct r. 3.3; Cal. Rules of Prof'l Conduct r. 5-200.

¶10Government counsel argued to the panel that Mr. Dean was initially denied release on bond under the § 1226(a) standard, but that under the Rodriguez preliminary injunction standard, in a second bond hearing, the immigration judge (IJ) concluded that Mr. Dean had to be released because the government had not carried its bur*504den.1 The government has now provided us with the transcript of the April 28, 2015, Rodriguez bond hearing. The transcript shows that the IJ conducted a total of four bond hearings for Mr. Dean and had previously released him twice on bond with conditions before she held the bond hearing pursuant to Rodriguez. On each occasion, Mr. Dean violated the conditions of release on bond and was returned to detention. See Apr. 28, 2015 Tr. at 16 (“[Y]ou’ve been given bond twice before, and you’ve broken the terms of the bond twice before.”). Mr. Dean’s release on bond on the prior two occasions was not due to the government’s failure to meet the Rodriguez standard, as the district court did not issue its preliminary injunction until September 13, 2012. Moreover, as the IJ states, she released Mr. Dean on bond on April 28, 2015, because she concluded that Mr. Dean’s predatory behavior was treatable, his mother presented a concrete treatment plan, and Mr. Dean and his mother assured her that he would comply with it.2Id. at 14-17. The IJ also reasoned that, “at the last hearing,” i.e., on December 2, 2014 (the “initial” hearing to which government counsel referred) when Mr. Dean was denied release on bond, Mr. Dean’s mother wasn’t sure if Mr. Dean would consent to mental health treatment. Id. at 15.3

¶11We do not see the relevance of Mr. Dean’s immigration proceedings to the legal issues on appeal, and neither in its response to the Order to Show Cause nor at any time in a proper way, e.g., a letter brief filed pursuant to Federal Rule of Appellate Procedure 28(j), has government counsel explained the relevance. We will therefore disregard the Los Angeles Times article and government counsel’s arguments referencing it. However, we find no basis for concluding that government counsel deliberately attempted to mislead the court by relying on only a partial and potentially misleading news report of Mr. *505Deans immigration proceedings; we therefore do not find her conduct in doing so sanctionable.4

¶12The Order to Show Cause is discharged; no sanctions are imposed.

¶13IT IS SO ORDERED.

/803/f3d/502 · .json · Public domain