Opinion
Case # 20-CV-07105-FPG
2022-08-26
Frantz MATHON, Petitioner, v. Jeffrey SEARLS, Respondent.
Daniel E. Jackson, Corfu, NY, Sarah Telo Gillman, Rapid Defense Network, New York, NY, for Petitioner. Anthony J. Messuri, Nicole J. Thomas-Dorris, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.
Daniel E. Jackson, Corfu, NY, Sarah Telo Gillman, Rapid Defense Network, New York, NY, for Petitioner. Anthony J. Messuri, Nicole J. Thomas-Dorris, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent. DECISION AND ORDER FRANK P. GERACI, JR., United States District Judge
INTRODUCTION
Petitioner Frantz Mathon instituted this proceeding pro se, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("§ 2241"). Mathon, who has been in immigration detention at the Buffalo Federal Detention Facility ("BFDF") since June 29, 2018, asserted violations of both his procedural and substantive due process rights. In a decision and order entered October 13, 2021 (ECF No. 19), the Court found that Mathon's detention had been unreasonably prolonged in violation of his right to procedural due process and conditionally granted habeas relief. Specifically, the Court directed Respondent to bring Mathon before an immigration judge ("IJ") for a bond hearing at which the government would be required to bear the burden of proving by clear and convincing evidence that his continued detention is justified based on his present dangerousness to the community or risk of flight, and that there are no alternatives to detention that can satisfy the government's regulatory interests in safeguarding the community and securing his appearance at future immigration proceedings. The Court also granted Mathon's motion to appoint counsel under the Criminal Justice Act, 18 U.S.C. § 3006A.
A bond hearing was timely conducted on October 20, 2021, and Mathon was denied release. ECF No. 22. Through appointed counsel, Daniel E. Jackson, Esq., Mathon has filed a motion to enforce, arguing that the government did not comply with the conditions in the Court's habeas order and, as a result, failed to provide him with the bond hearing to which he was constitutionally entitled. ECF No. 26. For the reasons discussed below, the motion to enforce is GRANTED, and Respondent is directed to release Mathon from custody under appropriate conditions of supervision.
BACKGROUND
I. The Court-Ordered Bond Hearing
The history of Mathon's immigration proceedings up until the October 2021 bond hearing is outlined in the Court's previous decision and order and need not be repeated here.
On October 20, 2021, Mathon appeared with pro bono counsel, Molly Deacon, Esq., before IJ Susan Aikman in Batavia for a bond hearing. Over counsel's objection, IJ Aikman granted the request by the Department of Homeland Security ("DHS") to introduce Mathon's "rap sheet". See Transcript of Bond Hearing ("Tr.") (ECF No. 26-2) at 3-4; Notice of Filing of DHS Bond Evidence (ECF No. 26-3) at 35-57. DHS acknowledged it had the burden of proving by clear and convincing evidence that Mathon is a danger to the community, a flight risk, or both; and that the IJ needed to consider alternatives to detention and Mathon's ability to pay any bond. Tr. at 6. DHS argued that Mathon was a danger to the community because he has "had a consistent criminal history since 2003" with "numerous" arrests and "encounters", as well as parole violations and arrest warrants. Id. DHS discounted the absence of criminal activity after 2018, arguing that it was due solely to the fact that Mathon has been incarcerated or detained. Id. With regard to Mathon's risk of flight, DHS acknowledged that he has been in the United States as a lawful permanent resident since he was a child, and that his sister is a U.S. citizen. Id. at 6-7. To counter that, DHS relied on the same evidence cited in support of its danger-to-the-community argument. Id. at 7. DHS asserted that there is not "any kind of alternative to detention or bond amount that would be able to mitigate [his dangerousness] . . . [or] flight risk," because if Mathon "does not get mental health treatment" upon release from custody, "there's a chance that he could cut off his ankle monitor" or "that he would not call into DHS for telephone check-in[.]" Id.
"In New York, rap sheets are generated by the New York Division of Criminal Justice Services (DCJS), which is designated by statute, Article 35 of the Executive Law, as the central repository for the criminal history record information of any individual who has a criminal history, based on that individual's fingerprints." People v. Suarez, 51 Misc. 3d 620, 627, 28 N.Y.S.3d 557 (N.Y. Crim. Ct. 2016). It is not considered a public record and contains not only convictions, but also arrests, charges, and warrants. See New York State of Criminal Justice Services, Requesting Your New York State Criminal History, available at https://www.criminaljustice.ny.gov/ojis/recordreview.htm. The Second Circuit has observed that while the Attorney General's regulations allow rap sheets to be admitted under C.F.R. § 1003.41(d) during a removal proceeding, "the commentary suggests that they will usually fail to rise to the level of clear and convincing evidence" because "[r]ap sheets lack the necessary information to describe the full record of conviction and do not necessarily emanate from a neutral, reliable source." Francis v. Gonzales, 442 F.3d 131, 143 (2d Cir. 2006).
The notice to appear issued by DHS against Mathon lists the following convictions: second-degree attempted burglary and fourth-degree attempted grand larceny on December 3, 2009; second-degree menacing on January 22, 2010; and attempted third-degree robbery on August 16, 2017. See Notice of Filing of DHS Bond Evidence (ECF No. 26-3) at 20.
Mathon's attorney characterized DHS's evidence in support of dangerousness as speculative and based on stale and prejudicial evidence, noting that it was "perfectly possible" that Mathon could still commit crimes or engage in disruptive behavior even while incarcerated or detained. Id. at 9. In addition, she informed the IJ that there was a pending appeal of the 2017 conviction for attempted third-degree robbery. Id. at 3. Counsel disputed DHS's contention that the procedural posture of his challenge to the removal order made him a greater flight risk, noting that the Second Circuit had granted a formal stay of removal, thereby finding that he had demonstrated a substantial likelihood of success on the merits of his petition for review. Thus, she argued, Mathon has a vested interest in remaining in contact with his attorney and complying with any conditions of release. Finally, she noted that Mathon would be going to live with his U.S. citizen sister, Marguerite Mathon, who owns a home on Long Island and has a stable job and dependable income. In a letter submitted into evidence at the hearing, Marguerite states she is willing to assist her brother in obtaining mental health treatment, including medication management and outpatient therapy. See Letter from Marguerite Mathon (ECF No. 26-4, p. 3 of 19); see also Tr. at 9-10.
After oral argument on the petition for review ("PFR"), the parties agreed that the case should be dismissed with prejudice and remanded to the BIA for consideration of the Attorney General's decision in Matter of B-Z-R, 28 I. & N. Dec. 563 (A.G. 2022) (holding that IJs may consider an applicant's mental health in determining whether he or she has been convicted of a particularly serious crime), overruling Matter of G-G-S, 26 I. & N. Dec. 339 (BIA 2014). See Document 128 at 1, Mathon v. Garland, 19-4180 (2d Cir. May 23, 2022). Because the BIA applied the since-overruled agency case, Matter of G-G-S, it did not consider Mathon's mental health issues in concluding that he had been convicted of a particularly serious crime and thus was ineligible withholding of removal and protection under the Convention Against Torture. Id. The parties' stipulation pursuant to Fed. R. App. P. 42 was "so ordered" by the Second Circuit on May 24, 2022. See Document 134, Mathon v. Garland, 19-4180 (2d Cir. May 24, 2022). Mathon indicates that although the BIA has acknowledged the remand, it has not set a briefing schedule as of July 22, 2022. See Petitioner's Status Update (ECF No. 34) at 5 n.3.
Under questioning by the IJ, Mathon testified that he was diagnosed with schizophrenia when he was in his 20s; he currently is in his early 30s. Tr. at 13. Before he entered the custody of Immigration and Customs Enforcement ("ICE"), he was "going through some stuff" and living in a homeless shelter in Brooklyn. Id. Mathon explained that before he went to the shelter, he was staying with his sister, but it got to be "too much" with her family. He could not live there anymore, but he could go and shower and perhaps spend one or two nights at a time. Id. at 14-15. Mathon testified that even though he was taking his medication regularly, he went to "a lot" of "psych wards" because he was having "a lot" of suicidal thoughts, and he also "tried to commit suicide, and things like that." Id. at 15, 16. While in Respondent's custody, the doctors changed his medication and "now [he] feel[s] a little better." Id. at 15. The new medication is administered monthly, in a shot. Id.
Counsel for DHS and Mathon both declined the opportunity to question Mathon. Id. at 18. After a brief recess, the IJ stated, "I feel at this time, strict supervision and . . . a strict schedule is, is the best thing right now." Id. at 19.
II. The IJ's Transcribed Oral Decision
IJ Aikman issued a transcribed oral decision ("IJ Decision") (ECF No. 26-5) on October 20, 2021, summarizing her reasons for denying bond. To support her conclusion that Mathon is both a flight risk and a danger to the community, she relied on the same evidence and analysis—that Mathon's new situation would be "the same" as his pre-detention situation, which "came with parole violations and warrants and serious criminal behavior" and a "history of . . . issues with his appearance at criminal convictions [sic]." IJ Decision at 6-7. IJ Aikman stated that "[n]o amount of bond can overcome a danger to the community or to oneself [sic]." Id. at 6. She concluded that she "cannot in good conscious [sic] set a bond that would mitigate" dangerousness and flight risk. Id. at 7. IJ Aikman also determined that the only two possible alternatives to detention—ankle monitoring and mandatory reporting—would not meet Mathon's "need for continued supervision and medication." Id. IJ Aikman concluded that DHS had presented clear and convincing that there are no alternatives to detention that could mitigate Mathon's dangerousness to the community or risk of flight. Id. at 7-8.
III. The Administrative Appeal
Mathon appealed to the Board of Immigration Appeals ("BIA") which affirmed the IJ's decision on March 22, 2022 ("BIA Decision") (ECF No. 31-1). The BIA agreed with the IJ that Mathon would be "relying on the same family structure that previously existed (i.e., his sister and mother) that did not deter him from criminal activity." Id. at 2. Therefore, the BIA found, the IJ properly concluded that DHS "met its burden to demonstrate by clear and convincing evidence that [Mathon] presents a danger to the community, such that he is not eligible for bond." Id. As an alternative basis for affirmance, the BIA upheld the IJ's finding that Mathon is flight risk, such that "no condition or combination of conditions of supervision short of detention will offset [his] flight risk." Id. at 3.
IV. The Motion to Enforce the Court's Conditional Writ of Habeas Corpus
In support of the motion to enforce (ECF No. 26), Mathon argues that the IJ applied incorrect legal standards throughout the bond decision, that the denial of bond was not based on clear and convincing evidence of dangerousness or flight risk, and that the analysis regarding alternatives to detention likewise was not based on clear and convincing evidence. As relief, Mathon requests immediate release from Respondent's custody under appropriate conditions of supervision. Respondent filed an opposition memorandum of law (ECF No. 30), arguing that Mathon's claims are jurisdictionally barred, unexhausted, and, in any event, without merit. Respondent maintains that the bond hearing complied with the Court's order and that DHS's evidence met the clear and convincing burden of proof. Mathon timely filed a reply (ECF No. 31).
On July 13, 2022, the Court issued a text order requesting a status update from the parties. ECF No. 33. The Court referenced the letter submitted by habeas counsel from deportation officer Brent Strothers (ECF No. 26-6), indicating that Mathon was transferred on February 17, 2022, to North Larkin Hospital Behavioral Health Services ("North Larkin") "to meet his medical needs." The Court directed the parties to provide an update as to (1) the reasons for his transfer to North Larkin, including why it was necessary to "meet his medical needs," (2) if he is still at North Larkin, how long is he anticipated to be there, (3) how does the transfer to North Larkin affect the parties' respective positions on the motion to enforce, and (4) how does the transfer affect the proposed "release plan" that habeas counsel argued would be in place for Mathon with his sister if he is released from detention.
Both parties timely provided status updates. See Petitioner's Status Update (ECF No. 34); Respondent's Status Report (ECF No. 35). According to Respondent, Mathon was transferred to North Larkin to receive "enhanced mental health treatment and management" which was necessary to "prevent further decompensation of his mental health." Declaration of Dr. Carlos M. Quinones-Ortiz ("Quinones-Ortiz Dec.") (ECF No. 35-2) ¶¶ 8-10; see also Respondent's Status Report (ECF No. 35) at 2. Prior to the transfer, Mathon was exhibiting "acute exacerbation of psychiatric symptoms that included poor sexual impulse and auditory command hallucinations with suicidal ideations," which "demonstrated an appreciable deterioration of his mental health from his baseline." Id. ¶ 9. In fact, from January 29, 2022, to February 1, 2022, Mathon had to be placed on constant watch in the medical unit due to suicidal ideation. Id. Mathon's decompensation "caused an appreciable disruption to those employed and those in custody at the BFDF." Declaration of Deportation Officer Eugene Fiorotto, III (ECF No. 35-1) ¶ 8. Once his mental health condition stabilized, Mathon was discharged on April 19, 2022, and returned to BFDF. Quinones-Ortiz Dec. ¶ 13.
In connection with Mathon's status report (ECF No. 34), habeas counsel submitted a declaration memorializing his conversation with Mathon about what led to his transfer to North Larkin, the nature and efficacy of the treatment he received while there, and the impacts of detention on his mental health status. See Declaration of Daniel E. Jackson Relaying Statement of Petitioner Frantz Mathon ("First Jackson Dec.") (ECF No. 34-1). Mathon explained to counsel that "not knowing" when or if he will be released from detention sometimes "gets too much" and he starts having "bad thoughts." Id. at 4. That is what occurred in February of 2022—he was hearing voices telling him to harm himself. Although he knew the voices were not real, he needed more help so he spoke to his social worker and a psychiatrist at the BFDF. Id.; see also id. at 6. When he asked for additional treatment, they agreed to send him to North Larkin. The doctors at North Larkin "provided [him] much more help" than he was getting at BFDF; he "was going to group therapy and had people to talk to every morning" which "really helped." Id. at 4. Mathon feels that he "need lots of direct help" which he does not get at BFDF. To try to cope, he "just lock[s] [him]self in [his] cell and pace[s] back and forth for hours" which "helps [him] not think about stuff." Id. at 5. Mathon is targeted by other detainees due to his mental health issues; they call him "crazy" and demand that he give them items from his commissary. Id.
Mathon also submitted a new letter (ECF No. 34-3), from his sister, reiterating that she will provide him with a place to live at her home on Long Island and also will be assisting him with his everyday needs, including his meals, medical care, medication, and day rehab responsibilities. She states that if he enrolls in the Wyandanch Clinic in Copiague, New York, she will be able to drive him there easily since it is only about ten minutes away from her house. Id.
Habeas counsel contacted the Wyandanch Clinic by telephone on July 18, 2022, and spoke to Michelle Dietrich ("Dietrich"), an intake manager/supervisor with the Clinic's Personalized Recovery Oriented Services ("PROS") program, which integrates rehabilitation, treatment, and support services for people with serious mental illness. See Declaration of Daniel E. Jackson Regarding Updates to Petitioner's Release Plan (ECF No. 34-2) ¶¶ 2-4 & n.1. Dietrich confirmed that the Clinic accepts Medicaid, is accepting new patients, treats individuals with serious psychiatric and mental health diagnoses, and routinely deals with individuals being released from incarceration. Id. ¶ 5. Outpatient treatment plans vary with the needs of each patient, and can range from a one-hour appointment once or twice per week, to five days per week of all-day therapy and treatment, including group therapy. Id. Based on the information provided by habeas counsel, Dietrich believes that the Clinic likely would be able to enroll Mathon into the PROS program. Id. Dietrich indicated that if Mathon were ever to require more intensive treatment, as he had in February 2022, the Clinic would be able to address that need. Id. ¶ 6.
DISCUSSION
I. Preliminary Issues
A. The Court's Authority to Enforce a Conditional Writ of Habeas Corpus
The Court's bond order was a conditional writ of habeas corpus inasmuch as it required the government to comply with several conditions, including holding a bond hearing that provided Mathon with certain procedural protections and filing a status update. It explicitly stated that the government's failure to comply with the specified conditions would result in Mathon's immediate release from custody under appropriate conditions of supervision. ECF No. 19 at 16-17. Mathon now argues that the hearing provided to him did not comply with the conditions dictated by the Court's bond order and requests release from custody as a remedy for the government's noncompliance. As this Court previously has held in similar cases, it retains jurisdiction to consider such challenges. See, e.g., Sheriff v. Searls, No. 21-CV-6073-FPG, 2021 WL 6797495, at *3 (W.D.N.Y. Aug. 16, 2021) (citations omitted).
B. Jurisdiction
Respondent asserts that Immigration and Nationality Act ("INA") § 236(e), 8 U.S.C. § 1226(e) ("§ 1226(e)") divests this Court of jurisdiction to review the IJ's bond decision in the context of Mathon's enforcement motion. Under § 1226(e), an immigrant is "preclude[d] . . . from 'challenging a discretionary judgment by the Attorney General or a decision that the Attorney General has made regarding his detention or release.' " Jennings v. Rodriguez, — U.S. —, 138 S. Ct. 830, 841, 200 L.Ed.2d 122 (2018) (quoting Demore v. Kim, 538 U.S. 510, 516, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003)). "But § 1226(e) does not preclude 'challenges to the statutory framework that permits the alien's detention without bail.' " Id. (quoting Demore, 538 U.S. at 517, 123 S.Ct. 1708). Moreover, § 1226(e) "applies only to 'discretionary judgment[s] regarding the application of [§ 1226]' and 'actions' or 'decisions' also under § 1226." Hechavarria v. Whitaker, 358 F. Supp. 3d 227, 235 (W.D.N.Y. 2019) (alterations in original) (quoting 8 U.S.C. § 1226(e)).
Here, the Court is neither reviewing an IJ's "discretionary judgment" under § 1226 nor "set[ting] aside any action or decision by the Attorney General" under § 1226. Instead, the Court is determining whether all of the conditions contained in the bond order were followed—that is, whether Mathon received the due process to which he was entitled. See Hechavarria, 358 F. Supp. 3d at 235-36 (rejecting government's argument that § 1226(e) precluded district court from entertaining motion to enforce conditional writ of habeas corpus; contrary to government's contention, district court was not "simply reviewing . . . how the IJ applied [the clear and convincing] burden to the facts before it and weighed the evidence") (alteration in original) (quotation omitted). Therefore, § 1226(e) is no impediment to the Court's review of the IJ's decision in the context of the enforcement motion.
C. Exhaustion of Administrative Remedies
Respondent urges the Court to decline to consider Mathon's claims of error at the bond hearing because he failed to exhaust his administrative remedies by first appealing the denial of bond to the BIA pursuant to 8 C.F.R. §§ 1003.19(f) and 1236.1(d)(3). Respondent further argues that Mathon has not demonstrated entitlement to any exceptions to the prudential exhaustion requirement.
The Court consistently has rejected this argument when raised by Respondent in similar cases. See, e.g., Gutierrez Cupido v. Barr, No. 19-CV-6367-FPG, 2020 WL 103477, at *2-3 (W.D.N.Y. Jan. 9, 2020). Respondent has not convinced the Court to revisit its analysis on this issue. To the extent that Mathon's motion focuses on whether Respondent complied with the bond order, exhaustion of administrative remedies is not a precondition to this Court's review. In any event, Mathon did appeal the IJ's decision to the BIA, which upheld it. Thus, the exhaustion issue has been rendered moot.
II. Merits of the Enforcement Motion
A. Application of the Clear and Convincing Evidence Standard
The Court's habeas order directed the IJ to hold DHS to the clear and convincing burden of proof, which requires the "ultimate factfinder [to have] an abiding conviction that the truth of [the proponent's] factual contentions are 'highly probable.' " Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) (quoting C. McCormick, Law of Evidence § 320, p. 679 (1954)); see also United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985) (stating that the clear and convincing standard of proof "requires that the evidence support such a conclusion with a high degree of certainty"). This standard satisfied only when "the material [the proponent] offered instantly tilted the evidentiary scales in [its favor] when weighed against the evidence [the other party] offered in opposition." Colorado, 467 U.S. at 316, 104 S.Ct. 2433 (citation omitted).
In general, a litigant may challenge a factfinder's opinion application of the correct standard of proof in two ways. Hechavarria, 358 F. Supp. 3d at 240. "[A] challenge may be based on the contention that the decisionmaker erred because the evidence itself could not—as a matter of law—have supported the adjudicator's conclusion." Id. Also, "it may be clear from the adjudicator's opinion itself that he [or she] simply did not apply the correct standard to the facts." Id. (internal and other citations omitted). Mathon urges both theories in support of his challenges to the IJ's findings on dangerousness, risk of flight, and alternatives to detention.
B. The IJ Did Not Apply the Correct Evidentiary Standard When Determining Dangerousness and Risk of Flight
Respondent argues that the IJ applied the correct burden of proof, nothing that she recited portions of the Court's order setting forth the parameters of the bond hearing, the standard of proof, and placement of the evidentiary burden. However, "the mere utterance of the correct standard of proof early in the IJ's decision is insufficient to demonstrate that it was applied when the rest of that decision demonstrates otherwise." Hechavarria, 358 F. Supp. 3d at 241. Here, as Mathon argues, the IJ's decision on its face shows she did not actually apply the legal standards as directed by the Court's order.
At the beginning of the hearing, the IJ described the hearing as a "custody redetermination case" and said that this Court had asked her to consider "the bond redetermination request." Tr. at 1. As Mathon notes, the Court's order was not asking the IJ to "redetermine" anything; instead, the order directed the government to produce clear and convincing evidence that Mathon was a danger to the community or a flight risk, and clear and convincing evidence that no alternatives to detention could mitigate those concerns.
The IJ made numerous comments indicating that she was, in fact, treating the hearing as a bond redetermination request governed by immigration law as determined by the BIA. For instance, the IJ said she had "broad discretion in considering factors in making a bond determination," that she was vested with "broad discretion in deciding which factors and evidence to consider," and that the Immigration Court "may give greater weight to one factor over others as long as its decision is reasonable." IJ Decision at 3-4 (citing Matter of Guerra, 24 I. & N. Dec. 37 (BIA 2006)). Guerra, however, is an agency case setting forth the factors an IJ should consider in reviewing a detainee's request for discretionary release under INA § 236(a), 8 U.S.C. § 1226(a). The IJ's statements that she had "discretion" to determine "whether a [detainee] merits release from [sic] bond," IJ Decision at 3, likewise disregarded the Court's instructions that the government—not Mathon—must bear the burden of proof.
"[A]liens detained under § 1226(a) receive bond hearings at the outset of detention." Jennings, 138 S.Ct. at 847 (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)). In a § 1226(a) bond hearing, "the alien must demonstrate to the satisfaction of the [immigration] officer that [the alien's] release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding." 8 C.F.R. § 1236.1(c)(8).
C. DHS's Evidence of Dangerousness and Risk of Flight Did Not Meet the Clear and Convincing Standard
The Court, in reviewing this issue, is "mindful of [its] obligation to afford . . . a degree of deference to the [factfinder's] determinations." Hechavarria, 358 F. Supp. 3d at 240 (alterations and ellipsis in original) (quoting United States v. Tortora, 922 F.2d 880, 882 (1st Cir. 1990)). Nonetheless, where an IJ has unambiguously mischaracterized the factual record, it raises a question of law. Xia Li v. Holder, 543 F. App'x 29, 31 (2d Cir. 2013) (unpublished opn.) (citing Gui Yin Liu v. I.N.S., 508 F.3d 716, 722 (2d Cir. 2007)). Thus, it is an appropriate subject of this Court's review.
Here, the IJ's decision relies on multiple mischaracterizations of the record. To justify her conclusion that Mathon remains a flight risk and a danger to the community, the IJ found that Mathon's post-release circumstances would be "the same" as his pre-detention circumstances:
[T]he same people who now state they will take care of him and would be willing to help him get into a program were the same people that were there for him before and were not able to curtail the [Mathon's] criminal activities and dangerous activities. The [Immigration] Court also notes that [Mathon] was taking meds, the sister was aware of this and yet this was not enough to stop [Mathon] from continuing in criminal activity.IJ Decision at 6.
The [Immigration] Court's concern is that [Mathon] would be returning to a well-intentioned and sincere offer of help, but it is the same help that has been there all along and was not sufficient to keep [Mathon] from causing damage and harm.
No reasonable factfinder could review the transcript of the bond hearing and conclude that Mathon's past and present circumstances are "the same." Prior to his detention in Respondent's custody, Mathon testified that he was living in Brooklyn and was forced to stay at different homeless shelters. He could not live at his sister's house in Brooklyn and could only go there to shower and perhaps stay over a couple of nights. Upon his release, Mathon testified—and submitted documentary evidence demonstrating—that he would be living at his sister's new house on Long Island. Having a fixed address and living with a family member is quite plainly not "the same" as being transient and staying in homeless shelters.
Moreover, although Mathon was taking medication prior to his detention, he testified that it was poorly controlling his schizophrenia. Now, however, he has been prescribed a new medication that is administered as a monthly shot; he reported that it is working better. Although he testified that his sister sometimes helped him obtain his medication during the period prior to his detention, he was not living with her and did not have the type of support he would have from her now. As noted above, his sister has committed to providing him a place to live and ensuring that he obtain mental health treatment. Thus, the circumstances surrounding his mental health issues and medication situation are not "the same" as before.
This is not a question of how two reasonable factfinders could weigh the evidence differently. Instead, it was a consistent misrepresentation of key pieces of evidence, which permeated the IJ's findings as to dangerousness and risk of flight and amounted to an error of law. Cf. Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005) (per curiam) ("Although it is the task of the agency to determine the appropriate weight to give such evidence, we may remand 'where the agency's determination is based on an inaccurate perception of the record, omitting potentially significant facts[.]' ") (quoting Tian-Yong Chen v. I.N.S., 359 F.3d 121, 127 (2d Cir. 2004) (citation omitted)).
Even absent those errors, DHS's proffered evidence did not "instantly tip the scales," Colorado, 467 U.S. at 316, 104 S.Ct. 2433, in its favor. While it was rational for the IJ to have looked at Mathon's past conduct for purposes of predicting his future conduct, Sheriff, 2021 WL 6797495, at *5 (citing United States v. Paulino, 335 F. Supp. 3d 600, 614 (S.D.N.Y. 2018)), it is elemental that "[d]ue process is not satisfied . . . by rubber-stamp denials based on temporally distant offenses." Chi Thon Ngo v. I.N.S., 192 F.3d 390, 398 (3d Cir. 1999). "The process due even to excludable aliens requires an opportunity for an evaluation of the individual's current threat to the community and his risk of flight." Id. (emphasis added).
Apart from temporally distant offenses that occurred when Mathon was experiencing homelessness and was being prescribed a less efficacious medication for his schizophrenia, DHS did not offer any affirmative evidence that Mathon's current mental health status renders him dangerous or a flight risk. The Court does not accept DHS's theory that the absence of criminal activity for the past several years is solely the result of Mathon being in custody. As Mathon argued at the hearing, it is entirely possible for a person to engage in criminal activities and other misconduct while incarcerated or detained.
DHS's dangerousness and flight risk arguments were premised on the possibility that Mathon might not get mental health treatment. See Tr. at 7 (stating that there is "no guarantee" that Mathon "will get the mental health treatment that he has been getting [while in detention], [and] if he is released, that he won't commit additional crimes; at [sic] which seems to be connected to his, his mental health situation"). DHS did not provide any evidence, let alone clear and convincing proof, that Mathon will not get mental health treatment upon his release. A factual contention cannot be "highly probable" if it is based on conjecture or surmise. Cf. Hypnotic Hats, Ltd. v. Wintermantel Enterprises, LLC, 335 F. Supp. 3d 566, 581 (S.D.N.Y. 2018) (stating that clear and convincing evidence "is a 'heavy burden' that 'requires the opposing party to present proof that leaves nothing to speculation, conjecture, or surmise' ") (quotation omitted). Concerns about what an alien might or might not do if released may be enough to meet the standard of proof applicable to "typical" § 1226(a) bond hearings, see 8 C.F.R. § 1236.1(c)(8) ("alien must demonstrate to the satisfaction of the officer . . . that the alien is likely to appear for any future proceeding"), it does not meet standard that was to be applied here. See Hechavarria, 358 F. Supp. 3d at 241 ("If the clear and convincing standard means what it says, it cannot permit detention based on mere speculation that an alien's release might possibly pose a danger.") (citing Addington v. Texas, 441 U.S. 418, 427, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) ("The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.")).
On the record as developed at the hearing, the IJ's conclusion that Mathon is a flight risk and a danger to the community represents an error of law. See Thomas v. Searls, No. 20-CV-6362-FPG, 2021 WL 358128, at *7 (W.D.N.Y. Jan. 4, 2021), enforcement denied as moot, 515 F. Supp. 3d 34 (W.D.N.Y. 2021); Judulang v. Chertoff, 562 F. Supp. 2d 1119, 1127 (S.D. Cal. 2008) ("Where Petitioner's only relevant conviction for violence is nearly 20 years old and no evidence indicating dangerousness was put forward, the IJ's finding of present dangerousness was an error of law and the denial of bond was inappropriate").
D. The IJ's Finding as to Alternatives to Detention Did Not Apply the Correct Legal Standard and Is Unsupported by Clear and Convincing Evidence
As an alternative and independent basis for granting the motion to enforce, Mathon contends that the IJ did not adequately consider less restrictive alternatives to continued detention as required by the Court's prior order. To the limited extent the IJ did consider alternatives, Mathon argues, her finding was not supported by clear and convincing evidence.
The Court directed that alternatives to detention must be considered as part of the bond hearing. Instead, the IJ said "[a]n Immigration Judge should only set a monetary bond if he or she first determines that the [detainee] does not present a danger to the community." IJ Decision at 4 (emphases supplied) (citing Matter of Urena, 25 I. & N. Dec. 140 (BIA 2007)). Like Guerra, Urena is an agency decision and is based on a different legal standard and analytical framework than the Court's order contemplated. According to Urena, which applies at a typical bond hearing held pursuant to § 1226(a), "alternatives to detention are considered only after the alien has met his or her burden of proving to the IJ's satisfaction that he or she is not a flight risk." Thomas, 2021 WL 358128, at *7.
However, this was not a § 1226(a) hearing; "it was a due process hearing where the government bore the burden of proof and where the IJ was required to consider alternatives before resorting to detention." Id. (quoting Hechavarria, 358 F. Supp. 3d at 242). By refusing to consider alternatives to detention because she found that Mathon was a danger to the community, the IJ disregarded the express terms of the Court's order and improperly relieved the government of the burden of proving by clear and convincing evidence that there were no alternatives to detention that could mitigate any risk of flight or danger to the community. The IJ's application of the analytical framework used in a discretionary § 1226(a) hearing represents a clear error of law.
Furthermore, the evidence submitted by DHS did not, as a matter of law, satisfy the clear and convincing standard. DHS's sole evidence regarding alternatives to detention was a one-page declaration from a deportation officer dated a year prior to the hearing that did not apply to Mathon's case in particular:
ICE has a single ATD monitoring program: ISAP III (Intensive Supervision Appearance Program). ISAP III relies on the use of electronic ankle monitors, biometric voice recognition and image recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants. The participant must have a fixed place of residence.Declaration of Michael K. Ball ("Ball Dec.") (ECF No. 26-3, Exhibit H) (paragraph numbering and spacing omitted). DHS asserted that the IJ was limited to considering ICE's alternatives to detention and that those presented by ICE would not suffice because "[i]f [Mathon] does not get mental health treatment and he's released from custody, then there's a chance that he could cut off his ankle monitor[,] [and] that he would not call into DHS for telephone check-in. Tr. at 8. The IJ agreed with DHS that "an ankle monitor or a reporting schedule would not meet" Mathon's "need for continued supervision and medication" because "it is not continued supervision or support." But "continued supervision and support," read in the context of the IJ's decision, simply seems to be another way of saying "custodial detention."
The Court recognizes that the attorney who represented Mathon at the bond hearing did not present any alternatives to detention, instead asking that he be released on his own recognizance and, if a bond was deemed necessary, for it to be less than $10,000. That did not relieve the IJ of her responsibility to comply with all conditions set forth in the Court's bond order. As Mathon argues, the obvious alternative to detention that would have mitigated DHS's and the IJ's stated concerns was to condition his release on obtaining mental health treatment and submitting proof that he was receiving such treatment. Notably, DHS failed to offer any proof that ICE's intensive monitoring program could not be modified to address the need for Mathon to obtain continuing mental health treatment and report on that treatment. As Mathon points out, the form used by ICE to list the terms of supervision (Form I-220B) includes a section for "other specified conditions", which implies that ICE has flexibility in imposing release terms.
See Department of Homeland Security, U.S. Immigration and Customs Enforcement, Order of Supervision, available at https://www.ice.gov/doclib/detention/checkin/I_220B_OSUP.pdf (last accessed Aug. 19, 2022).
A reasonable factfinder could not have concluded on the evidence presented at the hearing that it was "highly probable" that there are no conditions less restrictive than detention that would mitigate DHS's and the IJ's concerns regarding dangerousness and risk of flight. Therefore, the government failed to meet its burden of justifying Mathon's continued detention based on clear and convincing evidence.
D. The Appropriate Relief
Courts are authorized to "dispose of [a habeas petition] as law and justice require," 28 U.S.C. § 2243, and are allowed "broad discretion . . . in fashioning the judgment granting relief to a habeas petitioner[.]" Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). Typically, the relief granted in federal habeas corpus proceedings is a conditional writ, see Herrera v. Collins, 506 U.S. 390, 403, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), to allow the government an opportunity to correct the constitutional defects in the challenged proceeding. That is what the Court ordered here, as an accommodation to the government. However, the IJ failed to comply with the conditions contained in the Court's order and did not provide Mathon with a constitutionally adequate bond hearing. Therefore, his detention in Respondent's custody remains unlawful.
The Court accordingly must determine the appropriate relief. Respondent requests that the Court remand the matter for another bond hearing. Mathon requests immediate release from custody, under appropriate conditions related to his obtaining mental health treatment. The Court concludes that no purpose—apart from unnecessarily extending Mathon's detention—would be served by remanding this case for another bond hearing.
As discussed above, DHS's offer of proof at the original hearing, as a matter of law, could not have constituted clear and convincing evidence to support the IJ's findings as to dangerousness, flight risk, and alternatives to detention. At a new hearing, the record would be supplemented with the information in the parties' status updates, which further erodes the scant evidentiary support for DHS's arguments and the IJ's decision. In other words, it is even less plausible for DHS to argue that there is "no guarantee" Mathon will get appropriate mental health treatment where his sister has reconfirmed her commitment to ensuring he get such treatment; there is a treatment facility within easy driving distance of her house; and Mathon's attorney has already contacted the treatment facility which has indicated it likely will be able to enroll him, notwithstanding the seriousness of his mental health issues and his currently detained status.
Moreover, the evidence offered by Respondent in his status report in fact undermines DHS's argument that the only way to "guarantee" Mathon gets appropriate treatment is to keep him detained in Respondent's custody at BFDF. To the contrary, it illustrates that Respondent, despite his best intentions, is simply unable to provide the level of care necessary to maintain Mathon at his baseline. If he were able to do so, there would have been no need to transfer Mathon to Florida for intensive inpatient treatment. And Mathon's statements about his mental health, communicated through counsel, strongly imply that if he remains in detention, he will experience future episodes of decompensation, requiring additional hospitalizations. Remanding this matter for further administrative action would be contrary to the interests of law and justice, particularly given the unreasonable length of Mathon's detention to date.
The Court recognizes that in deciding whether release from custody is the appropriate remedy for the government's failure to comply with a conditional writ of habeas corpus, a district court should consider the risks posed by releasing a petitioner from detention. Hechavarria, 358 F. Supp.3d at 243 (citing Hilton, 481 U.S. at 777, 107 S.Ct. 2113). Nevertheless, the existence of some risk associated with release does not bar the Court from ordering it as a remedy. See id. at 243. Mathon has now spent more than four years in custody, and his removal proceedings are nowhere near completion. The Court finds that "the due process to which [Mathon] is entitled necessitates taking the risk associated with his release[.]" Id.; see also Thomas, 2021 WL 358128, at *8.
CONCLUSION
For the reasons stated above, Mathon's motion to enforce (ECF No. 26) is GRANTED. As soon as is practicable, but in no event later than ten (10) days from the date of this decision and order, Respondent shall release Mathon from custody on the following conditions: (1) Mathon shall be subject to electronic monitoring; (2) Mathon must enroll in a mental-health treatment program and remain in said program during his release; and (3) Mathon must reside with his sister, Marguerite Mathon, at her residence (770 Windmill Avenue, West Babylon, NY 11704). Any violation of these conditions shall result in Mathon's remand to custody. DHS/ICE may impose any other reasonable and appropriate conditions of supervision in addition to the above conditions. Within five (5) days of Mathon's release from custody, Respondent shall file an update with the Court demonstrating compliance with this order. IT IS SO ORDERED.