Alejandro Rodriguez, for himself v. TIMOTHY ROBBINS, Field Office Director, Los Angeles District, Immigration

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO RODRIGUEZ, for himself
and on behalf of a class of similarly-
situated individuals; ABDIRIZAK
ADEN FARAH, for himself and on
behalf of a class of similarly-situated
individuals; JOSE FARIAS CORNEJO;
YUSSUF ABDIKADIR; ABEL PEREZ
RUELAS,
Petitioners-Appellees,
and
EFREN OROZCO,
Petitioner,
v.
TIMOTHY ROBBINS, Field Office
Director, Los Angeles District,
Immigration and Customs
Enforcement; JEH JOHNSON,
Secretary, Homeland Security;
LORETTA E. LYNCH, Attorney
General; WESLEY LEE, Assistant
Field Office Director, Immigration
and Customs Enforcement; RODNEY
PENNER, Captain, Mira Loma
Detention Center; SANDRA
HUTCHENS, Sheriff of Orange
County; NGUYEN, Officer, Officer-
No. 13-56706
D.C. No.
2:07-cv-03239-
TJH-RNB

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RODRIGUEZ V. ROBBINS 2
in-Charge, Theo Lacy Facility;
DAVIS NIGHSWONGER, Captain,
Commander, Theo Lacy Facility;
MIKE KREUGER, Captain, Operations
Manager, James A. Musick Facility;
ARTHUR EDWARDS, Officer-in-
Charge, Santa Ana City Jail;
RUSSELL DAVIS, Jail Administrator,
Santa Ana City Jail; JUAN P. OSUNA,
Director, Executive Office for
Immigration Review,
Respondents-Appellants.
ALEJANDRO RODRIGUEZ, for himself
and on behalf of a class of similarly-
situated individuals; ABDIRIZAK
ADEN FARAH, for himself and on
behalf of a class of similarly-situated
individuals; JOSE FARIAS CORNEJO;
YUSSUF ABDIKADIR; ABEL PEREZ
RUELAS,
Petitioners-Appellants,
and
EFREN OROZCO,
Petitioner,
v.
TIMOTHY ROBBINS, Field Office
Director, Los Angeles District,
No. 13-56755
D.C. No.
2:07-cv-03239-
TJH-RNB
ORDER

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RODRIGUEZ V. ROBBINS 3
Immigration and Customs
Enforcement; LORETTA E. LYNCH,
Attorney General; WESLEY LEE,
Assistant Field Office Director,
Immigration and Customs
Enforcement; RODNEY PENNER,
Captain, Mira Loma Detention
Center; SANDRA HUTCHENS, Sheriff
of Orange County; NGUYEN, Officer,
Officer-in-Charge, Theo Lacy
Facility; DAVIS NIGHSWONGER,
Captain, Commander, Theo Lacy
Facility; MIKE KREUGER, Captain,
Operations Manager, James A.
Musick Facility; RUSSELL DAVIS,
Jail Administrator, Santa Ana City
Jail; ARTHUR EDWARDS, Officer-in-
Charge, Santa Ana City Jail;
THOMAS G. SNOW, Acting Director,
Executive Office for Immigration
Review; JEH JOHNSON, Secretary,
Homeland Security,
Respondents-Appellees.
Filed October 2, 2015
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges and Sam E. Haddon,* District Judge.
* The Honorable Sam E. Haddon, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.

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RODRIGUEZ V. ROBBINS 4
SUMMARY**
Immigration Habeas Corpus
In a class action lawsuit brought by detained non-citizens,
the panel discharged its Order to Show Cause dated August
13, 2015, and held that no government attorney provided
information to the Los Angeles Times with the object of
influencing this appeal.
The panel wrote that it was concerned that at oral
argument on July 24, 2015, government counsel made an
argument based on evidence not properly before the court
from a July 21, 2015 Los Angeles Times article which
referenced an immigration detainee’s bond hearings.
However, the panel found no basis to conclude that counsel
deliberately attempted to mislead the court. The panel
discharged the OSC and did not impose sanctions for
improper oral argument.
ORDER
We 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
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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RODRIGUEZ V. ROBBINS 5
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.
Though 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.
Under 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.
Government counsel argued to the panel that Mr. Dean
was initially denied release on bond under the § 1226(a)

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RODRIGUEZ V. ROBBINS 6
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 burden.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
1 Counsel argued that:
We know that initially the hearing was conducted under
the 1226(a) standard, that the first hearing when he was
taken into custody was conducted under that standard.
That standard places the burden on the individual alien
to prove that he is not a flight risk or a danger. The IJ
denied bond and said that this person is not entitled to
release. It was only after 180 days passed and we then
conducted the hearing again anew under the standard
under the preliminary injunction, which requires the
government to prove by clear and convincing evidence,
that that individual was released. It was concluded by
the immigration judge that the government had not
carried the burden . . . .
Oral Argument at 12:23–13:00; see also id. at 10:44–10:53.

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RODRIGUEZ V. ROBBINS 7
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.2 Id. 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
We do not see the relevance of Mr. Dean’s immigration
proceedings to the legal issues on appeal, and neither in its
2 As the IJ explained:
I am going to grant you bond. I think what’s going on
here is treatable. I don’t think there’s enough evidence
to show that you’re a danger. Well it’s a disturbing
record but it’s not enough for me to find that you’re a
danger and not eligible for bond. It is disturbing
though. But I think it’s treatable. I think this is
something you can figure out. Okay? So I’m going to
grant you bond. Because you’ve broken bond twice
before though it has to be a significant bond. Even
though I gave you $10,000 bond and you got in trouble,
I’m going to do $10,000 again. But obviously I’m
going to add a couple things to it. I’m going to add a
requirement that you report to the Department of
Homeland Security once a month, and I’m requiring
that you enroll in a mental health treatment plan with
the Santa Marita Mental Health Center. This is the
program that your mother has provided us with
evidence of. You must do that. You must go to that
center and set up the treatment plan within 10 days.
Id. at 16–17.
3 The government’s response to the Order to Show Cause indicates that
there is no transcript of the December 2, 2014, proceeding available.

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RODRIGUEZ V. ROBBINS 8
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. Dean’s immigration proceedings; we
therefore do not find her conduct in doing so sanctionable.4
The Order to Show Cause is discharged; no sanctions are
imposed.
IT IS SO ORDERED.
4 The ICE spokesperson, in her email of July 17, 2015, alluded to Mr.
Dean’s prior immigration bond hearings and release when she wrote
“[t]his individual most recently came into [ICE] custody in October 2014
. . . .” Dkt. 130, at 12 (emphasis added).

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