Summary
requiring the government to bear the burden at detention hearings
Summary of this case from Lopez v. BarrOpinion
6:19-CV-06571 EAW
12-09-2019
Luis Alfredo Rivas ALFARO, Petitioner, v. William P. BARR, Attorney General, et al., Respondents.
Luis Alfredo Rivas Alfaro, Batavia, NY, pro se. Daniel Barrie Moar, U.S. Attorney's Office, Buffalo, NY, for Respondent.
Luis Alfredo Rivas Alfaro, Batavia, NY, pro se.
Daniel Barrie Moar, U.S. Attorney's Office, Buffalo, NY, for Respondent.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Pro se petitioner Luis Alfredo Rivas Alfaro ("Petitioner"), a civil immigration detainee currently held at the Buffalo Federal Detention Facility in Batavia, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner, who is detained pursuant to 8 U.S.C. § 1226(a), contends that the bond hearing he received on May 1, 2019, violated his right to procedural due process. (Id. at 1). For the reasons that follow, the Court finds that Petitioner is entitled to a new, individualized bond hearing at which the Government bears the burden of proving by clear and convincing evidence that Petitioner poses either a risk of flight or a danger to the community, and where the IJ must consider ability to pay and alternative conditions of release in setting bond.
BACKGROUND
I. Factual Background
Petitioner is a native and citizen of El Salvador. (Dkt. 3-1 at ¶ 5). On or about December 19, 2003, Petitioner entered the United States by wading across the Rio Grande River at or near the Roma, Texas Port of Entry without having been admitted or paroled by an Immigration Officer. (Id. ). Petitioner was placed in immigration removal proceedings by a Notice to Appear on December 20, 2003, which charged him as subject to removal from the United States pursuant to Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(i), as an alien present in the United States without being inspected or paroled. (Id. at ¶ 6). On December 22, 2003, Petitioner was charged with illegal entry in violation of 8 U.S.C. § 1325(a)(1) via a criminal complaint filed in the United States District Court for the Southern District of Texas. (Id. at ¶ 7). Petitioner pled guilty and was sentenced to 30-day term of imprisonment, and an immigration detainer was lodged against Petitioner with the United States Marshals Service. (Id. ).
By an order dated February 3, 2004, an immigration judge ("IJ") granted Petitioner release from custody upon posting a bond of $4,500. (Id. at ¶ 8). The immigration bond was posted for Petitioner on March 4, 2004, and he was released from the custody of the Department of Homeland Security ("DHS"). (Id. ). On August 24, 2004, an IJ granted Petitioner's application for voluntary departure in lieu of removal and ordered Petitioner to depart the United States by December 15, 2004, but Petitioner failed to depart voluntarily. (Id. at ¶ 9).
On or about June 5, 2007, Petitioner was convicted in the Fairfax County, Virginia General District Court of driving while intoxicated. (Id. at ¶ 10). He was sentenced to a 60-day term of imprisonment with 55 days suspended. (Id. ). On or about June 6, 2007, Petitioner was convicted in the Prince William County, Virginia General District Court of driving while intoxicated. (Id. at ¶ 11). He was sentenced to a 30-day term of imprisonment with 30 days suspended. (Id. ).
DHS cancelled Petitioner's $4,500 immigration bond on June 26, 2008. (Id. at ¶ 12). On May 10, 2010, Petitioner was arrested by the Fairfax County, Virginia Police and charged with being drunk in public. (Id. at ¶ 13). That same day, Petitioner was interviewed by an immigration officer, and an immigration detainer was lodged against Petitioner at the Fairfax County Jail. (Id. ). He was placed in DHS custody on May 12, 2010, and released from DHS custody pursuant to an order of supervision on June 22, 2010. (Id. at ¶¶ 13-14). On July 20, 2010, DHS removed Petitioner from the United States to El Salvador. (Id. at ¶ 15). Prior to his removal, Petitioner was given a Form I-294 (a Warning to Alien Ordered Removed or Deported) notifying him that he was prohibited from entering or attempting to enter the United States for a period of 10 years. (Id. ).
On October 5, 2018, at approximately 11:05 p.m., a U.S. Border Patrol Agent ("BPA") observed a black colored Honda with Virginia license plates operating on or near State Route 122. (Id. at ¶ 16). The vehicle was operating along an internationally recognized smuggling corridor for illegal aliens near the Akwesasne Mohawk Reservation in Hogansburg, New York. (Id. ). The BPA requested a vehicle record check of the black Honda, which revealed that the vehicle had not crossed the international border from Canada to the United States at a port of entry. (Id. at ¶ 17). Additionally, the encounter occurred during the period of the nightly shift change for U.S. Border Patrol, raising the BPA's suspicion. (Id. at ¶ 18). The BPA tracked the black Honda as it travelled eastbound on State Route 122 and requested further record checks. (Id. at ¶ 20). Another BPA advised that the black Honda had been seen travelling west on State Route 11 approximately one hour earlier. (Id. ). The BPA stopped the black Honda at approximate 11:14 p.m. (Id. ).
The driver, Franklin W. Apricio-Villarto, stated he was born in El Salvador and lacked legal documents. (Id. at ¶ 21). One of the rear-seat passengers was Petitioner, who admitted that he was born in El Salvador and lacked proper documentation. (Id. ). It was determined that Petitioner was subject to a prior order of removal, and on October 6, 2018, DHS served Petitioner with a Notice of Intent/Decision to Reinstate Prior Order. (Id. at ¶ 22). Petitioner was placed in the custody of the U.S. Marshals Service at the Clinton County Jail pending prosecution for illegal re-entry in violation of 8 U.S.C. § 1326(a). (Id. ). On December 28, 2018, Petitioner pleaded guilty in the United States District Court for the Northern District of New York to illegal re-entry and was sentenced to time served. (Id. at ¶¶ 23-24).
On January 11, 2019, Petitioner's case was referred to U.S. Citizenship and Immigration Services ("USCIS") after he expressed a reasonable fear of removal to El Salvador. (Id. at ¶ 25). A reasonable fear interview was scheduled for January 22, 2019, but was moved to February 4, 2019, due to Petitioner's request to speak with an attorney. (Id. ). On February 22, 2019, the asylum officer concluded that Petitioner had established fear, and Petitioner was served with a Notice of Referral to an IJ for "withholding only" proceedings. (Id. at ¶ 27). The same day, DHS performed a custody determination for Petitioner and decided to continue his detention pending a final administrative determination of his immigration case. (Id. at ¶ 28). Petitioner requested that an IJ review the custody determination. (Id. ). The withholding-only hearing and custody redetermination hearing were scheduled for March 25, 2019. (Id. at ¶ 29).
On March 25, 2019, Petitioner filed an I-589 application for asylum and withholding of removal. (Id. at ¶ 30). The withholding-only hearing was continued until May 23, 2019, and the bond hearing was re-scheduled at the request of Petitioner's attorney to April 15, 2019, and again to May 1, 2019. (Id. at ¶¶ 30-31). On March 26, 2019, Petitioner was notified that DHS determined to continue his detention, finding that he was a flight risk and a danger to the community based on his failure to depart from the United States after being granted voluntary departure, removal from the United States and subsequent illegal re-entry, and two separate convictions for driving while intoxicated. (Id. at ¶ 32).
An IJ conducted a bond hearing for Petitioner on May 1, 2019, and at the conclusion denied Petitioner's request for a change in custody status. (Id. at ¶ 33). Petitioner did not appeal the IJ's decision. (Id. at ¶ 34).
Petitioner's withholding-only hearing commenced on May 23, 2019, and was continued until July 11, 2019. (Id. at ¶ 35). DHS's Headquarters Removal and International Operations ("HQRIO") further reviewed Petitioner's custody status in June 2019. (Id. at ¶ 36). As part of the review, a panel was convened on June 25, 2019, at the Buffalo Federal Detention Facility in Batavia, New York to conduct an in-person interview of Petitioner. (Id. ). After the file review and interview, Petitioner was notified on July 2, 2019, that DHS determined his custody should be continued. (Id. ).
On July 31, 2019, an IJ denied Petitioner's applications for relief from removal and ordered him removed to El Salvador. (Id. at ¶ 37). On August 20, 2019, DHS sent a presentation packet to the consulate general of El Salvador requesting that a travel document be issued for Petitioner's removal. (Id. at ¶ 38). Petitioner filed an appeal of the IJ's order of removal with the BIA on September 4, 2019, and that appeal remains pending. (Id. at ¶ 39).
II. Procedural Background
Petitioner filed his Petition on July 31, 2019. (Dkt. 1). Respondents filed their Answer and memorandum in opposition on October 2, 2019. (Dkt. 3; Dkt. 4). Petitioner filed his reply on October 25, 2019. (Dkt. 5).
DISCUSSION
I. Jurisdiction
The federal habeas corpus statute gives district courts jurisdiction to hear immigration-related detention cases. See 28 U.S.C. § 2241(c)(3) ; Demore v. Kim , 538 U.S. 510, 517-18, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (holding federal courts have jurisdiction to review challenges to pre-removal detention); Zadvydas v. Davis , 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (holding " § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention" in immigration cases). District courts do not have jurisdiction over challenges to the legality of final orders of deportation, exclusion, and removal; jurisdiction to review such challenges rests exclusively in circuit courts. See Gittens v. Menifee , 428 F.3d 382, 384 (2d Cir. 2005) ("[The REAL ID Act, 119 Stat. 231, § 106(a) (May 11, 2005) ] eliminates habeas jurisdiction over final orders of deportation, exclusion, and removal, providing instead for petitions of review ... which circuit courts alone can consider.").
II. Due Process
Petitioner challenges the constitutionality of the procedures used in connection with Petitioner's bond hearing on May 1, 2019. (See Dkt. 1 at 1). In particular, Petitioner argues that it was unconstitutional for the Government to require him to bear the burden of demonstrating, at his bond hearing, that he was not a flight risk and did not present a danger to the community. (Id. ). The Court agrees.
The Due Process Clause of the Fifth Amendment provides that the Government may not "deprive[ ]" any person "of life, liberty, or property, without due process of law." U.S. Const., amend. V. "Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects." Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491. The guarantee of due process "applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent." Id. at 693, 121 S.Ct. 2491 (quotation omitted).
Here, Petitioner is detained pursuant to 8 U.S.C. § 1226(a). (See Dkt. 4 at 16). That statutory provision "provides in pertinent part that ‘an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.’ " Aparicio-Villatoro v. Barr , No. 6:19-CV-06294-MAT, 2019 WL 3859013, at *4 (W.D.N.Y. Aug. 16, 2019) (quoting 8 U.S.C. § 1226(a) ). The statute further empowers the Attorney General to release the detained individual on bond pending the determination of his removal proceedings. 8 U.S.C. § 1226(a)(2). Accordingly, DHS has promulgated regulations setting forth the procedures by which an individual detained under § 1226(a) may obtain release: "The DHS district director makes the initial custody determination; thereafter, the alien has the right to appeal an adverse decision to an IJ, and then to the BIA." Aparicio-Villatoro , 2019 WL 3859013, at *4 (citing 8 C.F.R. §§ 1003.19(a), (f), 1236.1(d)(1), (3) ).
"While § 1226(a) is silent on the issues of which party bears the burden of proof at a custody redetermination hearing and the quantum of evidence necessary to satisfy that burden, see 8 U.S.C. § 1226(a), the BIA has interpreted § 1226(a) to place ‘[t]he burden on the alien to show to the satisfaction of the [IJ] that he or she merits release on bond.’ " Id. (quoting In re Guerra , 24 I. & N. Dec. 37 (BIA 2006) (alteration omitted)). However, courts in this Circuit have overwhelmingly concluded that it is a violation of procedural due process to require an immigration detainee held under § 1226(a) to bear the burden at his bond hearing. See, e.g., Aparicio-Villatoro , 2019 WL 3859013, at *7 ("As to the applicable burden of proof, most courts that have decided the issue have concluded that [the] Government must supply clear and convincing evidence that the alien is a flight risk or danger to society."); Velasco Lopez v. Decker , No. 19-CV-2912 (ALC), 2019 WL 2655806, at *3 (S.D.N.Y. May 15, 2019) ("[E]very court to have considered the constitutional issue presented in this case has agreed ... [that] under the Due Process Clause of the Fifth Amendment, it is the Government's burden to justify the detention of an immigrant at a bond hearing under § 1226(a)"), appeal filed , No. 19-2284 (2d Cir. July 23, 2019); Brevil v. Jones , No. 17 CV 1529-LTS-GWG, 2018 WL 5993731, at *4 (S.D.N.Y. Nov. 14, 2018) ("The Court has reviewed and is persuaded by recent decisions within and outside of this district which hold that due process requires that the Government demonstrate dangerousness or risk of flight by a clear and convincing standard at an immigration detainee's bond hearing." (quotation and alteration omitted)). But see Rasel v. Barr , No. 19-CV-458 LJV, 2019 WL 4257408, at *6 (W.D.N.Y. Sept. 9, 2019) (finding that a bond hearing at which an immigration detainee bears the burden of proof is not "a facially invalid process"). This Court agrees with and is persuaded by the logic of the courts that have found a procedural due process violation under these circumstances, and accordingly "joins with these courts and concludes that the Fifth Amendment's Due Process Clause requires the Government to bear the burden of proving, by clear and convincing evidence, that detention is justified at a bond hearing under § 1226(a)." Aparicio-Villatoro , 2019 WL 3859013, at *7.
Additionally, the Court finds that both due process and BIA precedent require the IJ to consider ability to pay and alternative conditions of release in setting bond. See Abdi v. Nielsen , 287 F. Supp. 3d 327, 335-39 (W.D.N.Y. 2018) ; see also Hernandez v. Sessions , 872 F.3d 976, 991 & n.4 (9th Cir. 2017) ("A bond determination that does not include consideration of financial circumstances and alternative release conditions is unlikely to result in a bond amount that is reasonably related to the government's legitimate interests."); Arce-Ipanaque , 2019 WL 2136727, at *3 (collecting cases); Lett v. Decker , 346 F. Supp. 3d 379, 389 (S.D.N.Y. 2018) ("The Court agrees with Petitioner that an immigration bond hearing that fails to consider ability to pay or alternative conditions of release is constitutionally inadequate."); Hernandez v. Decker , No. 18-CV-5026 (ALC), 2018 WL 3579108, at *12 (S.D.N.Y. July 25, 2018) ("[T]he Due Process Clause requires than an IJ consider ability to pay and alternative conditions of release in setting bond." (quotation and alteration omitted)).
The Court further concludes that it is not clear whether the IJ's decision would have been different if the IJ had followed the standards set forth above. See Navarijo-Orantes v. Barr , No. 19-CV-790, 2019 WL 5784939, at *7 (W.D.N.Y. Nov. 6, 2019) ("[E]ven assuming, for the sake of argument, that the respondents are correct that the government could have proven by clear and convincing evidence that [the petitioner] posed some flight risk, there is no indication that such a risk could not have been mitigated by alternatives to detention."); Aparicio-Villatoro , 2019 WL 3859013, at *7 ("Having found a constitutional error, the Court next examines whether such error was prejudicial to [the petitioner]."); Brevil , 2018 WL 5993731, at *5 (holding the petitioner "was prejudiced by the incorrect allocation of the burden of proof at his initial bond hearing" because the court could not "discern whether, had the Government ... borne the burden of proof ..., the immigration judge would have found that the Government had met its burden"). Nor does the Court find the determination of the Buffalo Federal Detention Facility Field Director, which also required Petitioner to demonstrate "by ‘clear and convincing evidence’ that [he] will not pose a danger to the community and will not be a significant flight risk" (Dkt. 3-2 at 33), to be dispositive. "[T]he ‘minimal burden’ that a bond hearing would place on the Government is far outweighed by [Petitioner]'s interest in ‘ensur[ing] that his continued detention is justified.’ " Arce-Ipanaque v. Decker , No. 19-CV-1076 (JMF), 2019 WL 2136727, at *2 (S.D.N.Y. May 15, 2019) (quoting Vallejo v. Decker , No. 18-CV-5649 (JMF), 2018 WL 3738947, at *5 (S.D.N.Y. Aug. 7, 2018) ). Accordingly, the Court finds that Petitioner is entitled to a new, individualized bond hearing at which the Government bears the burden of proving by clear and convincing evidence that Petitioner poses either a risk of flight or danger to the community justifying his continued detention without bond, and where the IJ must consider ability to pay and alternative conditions of release in setting bond.
Respondents argue that the Court should not grant Petitioner's requested relief because he failed to exhaust his administrative remedies. (Dkt. 4 at 14-16). The Court is not persuaded by Respondents' argument.
"There is no statutory requirement of administrative exhaustion before immigration detention may be challenged in federal court by a writ of habeas corpus; however, such exhaustion is generally required as a prudential matter." Paz Nativi v. Shanahan , No. 16-CV-8496 (JPO), 2017 WL 281751, at *1-2 (S.D.N.Y. Jan. 23, 2017) (collecting cases). "Exhaustion of administrative remedies may not be required when: (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question." Guitard v. U.S. Sec'y of Navy , 967 F.2d 737, 740 (2d Cir. 1992) (citing Myers v. Bethlehem Shipbuilding Corp. , 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938) ); see Compunnel Software Grp., Inc. v. Gupta , No. 14 Civ. 4790(SAS), 2015 WL 1224298, at *4 (S.D.N.Y. Mar. 17, 2015) ("The exhaustion doctrine, however, is also subject to numerous exceptions.").
In the instant matter, the available administrative remedies provide no genuine opportunity for adequate relief because, as discussed above, the burden of proof the IJ would use at a bond hearing in the absence of an order from this Court does not comply with due process. Where the petitioner's challenge "is to regulations [and precedent that are] promulgated and consistently enforced by the agency, and which the agency has either no power, or no inclination, to correct," exhaustion is futile. Abbey v. Sullivan , 978 F.2d 37, 45 (2d Cir. 1992). Because an IJ would not apply the proper burden at a bond hearing absent an order of this Court, see In re Guerra , 24 I. & N, Dec. at 40, the Court finds that Petitioner is not required to exhaust his administrative remedies for this Court to grant his Petition, and that Respondents must bear the burden at the bond hearing as described above. See Joseph v. Decker , No. 18-CV-2640(RA), 2018 WL 6075067, at *6 (S.D.N.Y. Nov. 21, 2018) (requiring exhaustion would be futile because "[a]ny future hearing would ... be conducted in accordance with longstanding BIA precedent and government regulations placing the burden of proof on [the petitioner]"), appeal withdrawn , 2019 WL 3334802 (2d Cir. May 1, 2019) ; Brevil v. Jones , No. 17-CV-1529 (LTS) (GWG), 2018 WL 5993731, at *3 (S.D.N.Y. Nov. 14, 2018) (same).
CONCLUSION
For the foregoing reasons, the Petition (Dkt. 1) is granted solely to the extent that the Court orders Respondents to afford Petitioner an individualized bond hearing consistent with the procedures outlined in this Decision and Order within 14 days of its entry. The Clerk of Court is instructed to close this case.
SO ORDERED.