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Bello v. Gaynor

Facts

Jose Bello-Reyes was initially detained by ICE in 2018 and released on bond. After publicly criticizing ICE at a rally on May 13, 2019, ICE revoked his bond and re-arrested him less than 36 hours later. The government argued that it had probable cause for the arrest, while Bello-Reyes contended that the revocation was retaliatory due to his speech.

In May 2018, Bello was initially arrested by ICE, detained, and issued with a notice to appear ('NTA') charging him as being 'present in the United States without admission or parole' and initiating removal proceedings. Bello had been living in California for most of his life after arriving in the United States without documentation in 2000, at age three. He was released from detention on a $10,000 bond secured by community groups in August 2018. After his release, Bello became an outspoken activist, publicly decrying ICE's policy's and practices.

Issue

Whether the Supreme Court's decision in Nieves v. Bartlett applies to Bello-Reyes's claim that ICE retaliated against him for his speech by revoking his bond and re-arresting him.

This case requires us to consider whether the Supreme Court's recent decision in Nieves v. Bartlett, 139 S. Ct. 1715, 204 L. Ed. 2d 1 (2019), applies to a noncitizen's claim that Immigration and Customs Enforcement ('ICE') unconstitutionally retaliated against him for his speech when revoking his bond and rearresting him.

Rule

The court applied the Mt. Healthy burden-shifting standard for First Amendment retaliation claims, which requires the government to show that it would have taken the same action even in the absence of the protected conduct.

Under Mt. Healthy, once a petitioner has made a showing of a First Amendment retaliation claim, 'the burden shifts to the government to show that it 'would have taken the same action even in the absence of the protected conduct.'

Analysis

The court found that the Nieves decision, which established a no-probable-cause rule for retaliatory arrest claims under 1983, did not apply to Bello-Reyes's habeas petition. The court noted that the issues of causation and the nature of the claims were different in the habeas context compared to a 1983 suit. The court emphasized that the timing of ICE's actions suggested retaliatory intent, warranting the application of the Mt. Healthy standard.

For at least these reasons, in combination, Nieves is not applicable here. First, problems of causation that may counsel for a no probable cause standard are less acute in the habeas context. In 1983 suits, it is necessary to identify the particular state official or officials who violated the plaintiff's constitutional rights. Not so in habeas: the petitioner need not identify a particular violator, only that his confinement is unconstitutional.

Conclusion

The Ninth Circuit reversed the district court's decision and remanded the case for the application of the Mt. Healthy standard to Bello-Reyes's retaliation claim.

Because Nieves does not control, we remand to the district court to apply the Mt. Healthy standard, the default rule for First Amendment retaliation claims.

Who won?

Jose Bello-Reyes prevailed because the court found that the district court had applied the wrong legal standard in denying his habeas petition.

The Ninth Circuit reversed the district court's decision and remanded the case for the application of the proper burden-shifting standard for retaliation claims.

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