FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE OMAR BELLO-REYES, No. 19-16441 Petitioner-Appellant, D.C. No. v. 3:19-cv-03630- SK PETER T. GAYNOR, Acting Secretary of Homeland Security; JONATHAN FAHEY, Senior Official Performing OPINION the Duties of the Director; ERIK BONNAR, Field Office Director, San Francisco Field Office; JEFFREY A. ROSEN, Acting Attorney General, Respondents-Appellees. Appeal from the United States District Court for the Northern District of California Sallie Kim, Magistrate Judge, Presiding Argued and Submitted November 17, 2020 San Francisco, California Filed January 14, 2021 Before: Sidney R. Thomas, Chief Judge, and Mary M. Schroeder and Marsha S. Berzon, Circuit Judges. Opinion by Chief Judge Thomas 2 BELLO-REYES V. GAYNOR SUMMARY* Immigration In a case in which Jose Omar Bello-Reyes filed a petition for a writ of habeas corpus under 8 U.S.C. § 2241, arguing that his immigration arrest and re-detention was retaliation for his protected speech, the panel reversed the district court’s denial of the petition and remanded for application of the standard from Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). In 2018, Bello was detained by Immigration and Customs Enforcement (“ICE”) and released on bond and, in April 2019, he was convicted of driving under the influence. On May 13, 2019, Bello spoke publicly at a rally and read his poem, entitled “Dear America,” in which he criticized ICE practices. Less than thirty-six hours later, ICE revoked his bond and re-arrested him. In denying Bello’s habeas petition, the magistrate judge relied on Nieves v. Bartlett, 139 S. Ct. 1715 (2019), in which the Supreme Court held that the presence of probable cause generally defeats a retaliatory criminal arrest claim under 42 U.S.C. § 1983. The panel concluded that Nieves did not control here. First, the panel explained that problems of causation that may counsel for a no probable cause standard are less acute in the habeas context. Specifically, in § 1983 suits, the plaintiff must identify the official or officials who violated his constitutional rights, but that is not so in habeas. Second, the * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. BELLO-REYES V. GAYNOR 3 panel explained that Nieves arose out of the criminal context, where evidence of probable cause for arrest will be available in virtually every retaliatory arrest case, but that this reasoning does not translate to the immigration bond revocation context, where probable cause is not necessary, and the decision is completely discretionary. The panel remanded to the district court to apply the Mt. Healthy standard, the default rule for First Amendment retaliation claims. Under Mt. Healthy, once a petitioner has made a showing of a 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. The panel explained that the district court applied this standard incorrectly, but that it correctly remarked that ...
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