I’ll admit that when I see a Ninth Circuit panel of three very liberal judges grant relief in a habeas case involving an illegal immigrant, I get suspicious of mischief. On an admittedly quick review of today’s panel ruling in Bello-Reyes v. Gaynor—opinion by Chief Judge Sidney Thomas, joined by Judge Mary Schroeder and Judge Marsha Berzon—my suspicions have heightened.
The case concerns an illegal immigrant, Jose Omar Bello-Reyes, who, after being released on bond, was convicted of driving under the influence. A month or so later, he publicly criticized ICE practices. Less than 36 hours later, ICE revoked his bond and re-arrested him. Bello (as the panel calls him) filed a petition for a writ of habeas corpus on the ground that this arrest was in retaliation for his protected speech. The magistrate judge denied relief on the basis of the Supreme Court’s 2019 ruling in Nieves v. Bartlett, which held that a retaliatory-arrest claim failed because the officers had probable cause to make the arrest.
The Ninth Circuit panel purports to distinguish Nieves on two grounds, but neither strikes me as persuasive. First, it contends that the “causal complexities” that the Supreme Court cited in Nieves “are less acute in the habeas context” than they are in the section 1983 context because it is not necessary for the habeas petitioner to identify a particular violator. But it’s still complex to show that Bello’s arrest was in retaliation for his protected speech, and (to borrow from Nieves) inquiry into that question “would threaten to set off broad-ranging discovery in which there often is no clear end to the relevant evidence.” (Internal quotations omitted.) As the Court made clear in Nieves, “regardless of the source of the causal complexity, the ultimate problem remains the same.”
Second, the panel says that Nieves arose in the criminal-arrest context, where a requirement of probable cause exists. By contrast, ICE’s decision to revoke bond is “completely discretionary.” I would have thought that this distinction cuts strongly against the habeas petitioner rather than in his favor.