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finding no error in IJ's finding "that even assuming [the p]etitioner had a cousin or even two cousins in the United States, these were not 'family ties of the type who can confer immigration benefits' to [the p]etitioner"
Summary of this case from Fallatah v. BarrOpinion
16-cv-1928 (KBF)
07-26-2017
ANGEL AGUSTIN ARGUETA ANARIBA, Petitioner, v. CHRISTOPHER SHANAHAN; SCOTT MECHKOWSKI; JEH JOHNSON; and LORETTA LYNCH, each in his/her official capacity, Respondents.
OPINION & ORDER
:
This matter is before this Court for the third time on petitioner Angel Agustin Argueta Anariba's ("Argueta") claim that he has been deprived of his right to an adequate bond hearing under Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015). As of the date of this opinion, Argueta has been detained for two and a half years.
Petitioner's motion to compel his release argues that respondents have not provided Argueta with an adequate Lora hearing because the Immigration Judge ("IJ") failed to apply the appropriate legal standard to his Lora claim and failed to hold the Government to its "clear and convincing" burden of proof regarding either danger to the community or risk of flight. Because it is unclear from the short transcript what standard the IJ applied, and because the transcript indicates that the IJ may not have held the Government to its "clear and convincing" burden of proof, the Court agrees. The Court hereby DENIES petitioner's motion to compel release and REMANDS this matter to the IJ for an expeditious clarification of the standard applied and individualized analysis of that standard's application here. I. BACKGROUND
The Court assumes familiarity with the relevant facts of this matter, which are discussed in its decisions at ECF Nos. 10 and 25. The Court refers the reader to these opinions for additional factual background.
Argueta is a 39-year-old citizen of Honduras and an undocumented immigrant. (ECF No. 13; In the Matter of Argueta Anariba, File No. A094-825-836 (June 2, 2017), ECF No. 13-4.) Argueta's criminal record has three relevant entries: He was charged with driving under the influence in 2001; he was convicted of making a terroristic threat in 2004; and he was convicted of aggravated assault while armed and carrying a dangerous weapon in 2008. The aggravated assault charge arose from a 2007 incident in which Argueta stabbed another man in the head with a two- to three-inch pocketknife with sufficient force that the blade stuck in the man's head (the victim survived). Argueta was convicted of aggravated assault while armed and sentenced to 96 months imprisonment followed by five years of supervised release. If released from immigration detention, Argueta would remain under federal supervision for the balance of that five-year term or until removed from the United States. (See In the Matter of Argueta Anariba, File No. A094-825-836, at *7 (June 2, 2017), ECF No. 13-4 at 28-29.).
When released in 2014, Argueta was transferred to the custody of the Department of Homeland Security ("DHS") and placed into removal proceedings. DHS determined that he was subject to mandatory detention pursuant to 8 U.S.C. § 1226(c). Argueta applied for Withholding of Removal and protection under the Convention Against Torture due to fear that he would be in danger in his home country. On June 2, 2015, the IJ assigned to Argueta's case denied his application for relief in a written decision. (See ECF No. 13-4.) Argueta appealed to the Board of Immigration Appeals ("BIA"), which upheld the IJ's decision and dismissed Argueta's appeal on October 8, 2015, making the removal order became administratively final. 8 U.S.C. § 1101(a)(47)(B)(i). He had been detained, to that point, for approximately ten months.
On October 16, 2015, Argueta filed a petition for review of the BIA's decision and a motion for a stay of removal, both of which are currently pending before the Second Circuit. This brings him within the "forbearance policy," which provides that he will not be removed while judicial proceedings are pending. See, e.g., In re Immigration Petitions for Review, 702 F.3d 160, 162 (2d Cir. 2012). After a Post-Order Custody Review, Immigration & Customs Enforcement ("ICE") issued a written Decision to Continue Detention on January 5, 2016, stating it would continue to hold Argueta on the following bases: Argueta's criminal history made him a risk to the public; he was a flight risk because he lacked money, equities, or property in the United States; his removal was expected in the reasonably foreseeable future; and he was an enforcement priority
On December 29, 2015, Argueta filed a petition for U Nonimmigrant Status with U.S. Citizenship and Immigration Services ("USCIS"). Argueta's U-visa petition describes an attack he suffered in 2005, when he was stabbed in the chest. USCIS has determined that he is prima facie eligible for a U visa; however, USCIS regulations provide that applicants with a history of violent or dangerous crimes will receive a U visa only in extraordinary circumstances. 8 C.F.R. § 212.17(b)(2).Were Argueta to receive a U visa, he would be permitted to remain in the United States regardless of the outcome of his removal proceedings. Argueta's petition is pending before USCIS.
On December 21, 2015, Argueta filed a motion for a bond hearing under Lora. His hearing was originally scheduled for January 20, 2016. The government failed to produce Argueta for his January 20, 2016, bond hearing. They did produce him for the rescheduled hearing date on February 18, 2016, at which the government disputed Argueta's entitlement to such a hearing. After briefing, on March 15, 2016, the IJ ruled he lacked jurisdiction to hold a bond hearing because, he determined, Argueta was in custody pursuant to 8 U.S.C. § 1231 rather than 8 U.S.C. § 1226. The same day Argueta filed a habeas petition challenging the IJ's ruling under 28 U.S.C. § 2241.
On June 2, 2016, this Court held that petitioner qualified for a Lora hearing. (ECF No. 10.) A hearing was held in petitioner's absence on June 21, 2016, over the objection of petitioner's counsel. The Government argued petitioner's criminal history justified continued detention "given that [Argueta has] spent the last—in recent years in detention, he can't show any type of rehabilitation," and that the status of the deportation proceedings made Argueta a flight risk. The Government presented no other evidence, and the Government provided no proof of non-rehabilitation or contemporary incidents of violence as to petitioner, specifically. Counsel for petitioner responded that rehabilitation is a primary purpose of the American criminal justice system and that the Government's position either ignored this or assumed total failure generally, as the Government made no argument about petitioner's individual rehabilitation. Counsel for petitioner presented evidence that petitioner had not incurred any disciplinary infractions during his almost seven years in custody, and that his time in immigration custody was in all events not supposed to be punitive. She also presented evidence that petitioner has significant medical problems that negate his ability to pose an ongoing danger to the community and reduced his risk of flight. (Id. at 6-7.) The ILJ denied the bail application. (Id. at 12).
Petitioner subsequently filed a motion to compel his release on the basis that his unwilling absence from the June 21, 2016 hearing rendered it procedurally improper, and that the IJ failed to hold the government to its standard of proof. (ECF Nos. 12, 13.) On October 18, 2016, this Court agreed that the hearing was procedurally deficient due to Argueta's absence and ordered the Government either to provide an adequate Lora hearing within twenty days or to release him. (ECF No. 25.) This Court's opinion emphasized that petitioner's absence from the hearing was particularly problematic because both the Government's argument and the IJ's ruling relied heavily on the question of plaintiff's rehabilitation. (See ECF No. 25 at 8 ("In light of the strong reliance the Court and Government gave to petitioner's assumed lack of rehabilitation (based largely on the nature of his prior crimes and his period of incarceration), it cannot be assumed that defendant's lack of presence was not prejudicial.").) Because the procedural inadequacies of the June 21, 2016, hearing were sufficient to require a new hearing, the Court's opinion did not reach petitioner's arguments regarding the applicable legal standard and the government's burden of proof.
On November 7, 2016, a bond hearing was held at which Argueta appeared by video conference. Petitioner again presented evidence that, inter alia, he had not incurred any disciplinary infractions while incarcerated, that he had no history of domestic violence, that he took hundreds of hours of classes while incarcerated, and that he had chronic, painful medical problems that would make it difficult for him to present a danger to the community. (See ECF No. 13-2.) The Government again argued that petitioner was a danger to the community due his crime of conviction and length of sentence. Again, the Government did not present evidence of petitioner's individual lack of rehabilitation or any post-2007 acts of violence by petitioner, nor did the Government address the evidence presented by petitioner in support of his rehabilitation claims.
The IJ did not issue a written decision but ruled on the record that "the Government has met its burden of proof that he is a danger to the community and a flight risk." (Nov. 7, 2016, Trans. at 14:3-5.) In the fourteen-page hearing transcript, neither the IJ nor the Government mentioned or discuss Lora's clear and convincing standard. In ruling on the record, the IJ discussed events from 2007 giving rise to Argueta's assault conviction:
I've considered all of the various submissions throughout the various bond proceedings carefully. The fact remains [petitioner] remains convicted of what the Court views as an extremely serious crime. He cause serious bodily injury while armed with a knife. It appears this was after trial. I also note that the officer on the scene describes
arriving on the scene with a large crowd of people surrounding the victim who was lying on the ground, and the officer observed the handle of the knife sticking out of the top of the victim's head. The officer learned that the victim was stabbed with a folding pocketknife and the entire blade of the knife was inside the victim's head. Respondent testified . . . that the blade was approximately two or three inches in length. One certainly has to consider the level of force necessary to put the two to three inch blade through someone's skull into their brain. He was found guilty at trial and received an eight-year sentence. As stated, the Government has met its burden of proof and I'm going to be denying bond.(Id. at 14:10-15:4.)
The IJ stated on the record that "[h]e does have equities. He appears to have some medical problems certainly," but did not mention or discuss any evidence regarding plaintiff's rehabilitation or lack thereof. (Nov. 7, 2016, Trans. at 14:8-9.) The IJ made no statements or factual findings regarding petitioner's risk of flight, and the Government made no arguments on the record regarding risk of flight. II. LEGAL PRINCIPLES
"The Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence is lawful or unlawful, temporary or permanent." Lora, 804 F.3d at 613 (quoting Zadvydas v. Davis, 533 U.S. 678, 693 (2001)). It is well-settled that "the Fifth Amendment entitles aliens to due process in deportation proceedings." Reno v. Flores, 507 U.S. 292, 306 (1993). In Lora, the Second Circuit held that "in order to avoid the constitutional concerns raised by indefinite detention, an immigrant detained pursuant to section 1226(c) must be afforded a bail hearing before an immigration judge within six months of his or her detention." 804 F.3d at 616.
Constitutional due process requires that a person detained pursuant to 8 U.S.C. § 1226(c) "must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community." Lora, 804 F.3d at 616; see also Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013) ("[B]ond hearings must be held before a neutral IJ with the government bearing the burden of proof by clear and convincing evidence."); Singh v. Holder, 638 F.3d 1196, 1203-04 (9th Cir. 2011) ("Because it is improper to ask the individual to 'share equally with society the risk of error when the possible injury to the individual'—deprivation of liberty—is so significant, a clear and convincing evidence standard of proof provides the appropriate level of procedural protection." (quoting Addington v. Texas, 441 U.S. 418, 427 (1979)).
A district court will not second-guess an IJ's decision "with respect to the appropriate weight to be assigned to the evidence presented at his bond hearing." Hassan v. Holder, No. 11-cv-7157, 2014 WL 142479, at *9 (S.D.N.Y. Apr. 15, 2017). However, failure to apply the correct legal standard and to hold the government to its burden of proof renders a bond hearing "constitutionally deficient" under Lora. See Cepeda v. Shanahan, No. 15-cv-9446, 2016 WL 3144394, at *2 (S.D.N.Y. Apr. 22, 2016); Vargas v. Davies, No. 15-cv-3525, 2016 WL 3044850, at *4 (S.D.N.Y. May 27, 2017) ("Petitioner may have a viable constitutional claim to the extent he is asserting that the IJ effectively failed to apply a clear-and-convincing standard by relying on evidence that can never alone satisfy that standard as a matter of law.").
It is particularly important that the Government be held to the "clear and convincing" burden of proof in the immigration detention context because civil removal proceedings, unlike criminal proceedings, "are nonpunitive in purpose and effect." Zadvydas v. Davis, 533 U.S. 678, 690 (2001); see also Cooper v. Oklahoma, 517 U.S. 348, 363 (1996) ("[D]ue process places a heightened burden of proof on the State in civil proceedings in which the 'individual interests at stake . . . are both particularly important and more substantial than mere loss of money.'" (quoting Santosky v. Kramer, 455 U.S. 745, 756 (1982)). Due process requires an individualized determination of a detainee's risk of flight and future dangerousness. Demore v. Kim, 539 U.S. 510, 531 (2003) (Kennedy, J., concurring) ("[D]ue process requires individualized procedures to ensure there is at least some merit to [the Government's] charge[.]"). Detention on the basis of dangerousness in civil immigration proceedings is appropriate "only when limited to specially dangerous individual and subject to strong procedural protections." Zadvydas, 533 U.S. at 691. III. DISCUSSION
It is unclear from the hearing transcript what standard the IJ applied, and the transcript indicates that the IJ may not have held the Government to its "clear and convincing" burden of proof. Due process entitles Argueta to an individualized determination of dangerousness or risk of flight. Lora, 804 F.3d at 615-16; Demore v. Kim, 539 U.S. at 531. The Court therefore remands for clarification and application of the correct standard. Neither the Government nor the IJ mention Lora's clear and convincing standard anywhere in the transcript, including in the IJ's ruling. (See Nov. 7, 2016, Trans. at 14:3-5.) Moreover, the IJ's ruling relied entirely on facts surrounding Argueta's 2008 conviction and, other than briefly acknowledging that petitioner has a medical condition, does not discuss individualized post-2007 facts regarding petitioner's behavior, dangerousness, or risk of flight. (See Nov. 7, 2016, Trans. at 13:25-15:2.) It appears from the hearing transcript that the IJ may have held petitioner to presumption of detention based upon his 2008 conviction alone, despite the civil nature of this immigration proceeding. See Cooper, 517 U.S. at 363 (1996) ("[D]ue process places a heightened burden of proof on the State in civil proceedings in which the 'individual interests at stake . . . are both particularly important and more substantial than mere loss of money.'" (quoting Santosky, 455 U.S. at 756)). A clarification of the standard and analysis of its application is particularly important given that the Government—which bears the burden of proof under the Due Process Clause—relied almost entirely on its argument that plaintiff was not rehabilitated, but offered no post-2007 evidence of petitioner's alleged lack of rehabilitation and did not address evidence offered by petitioner to show rehabilitation. See Lora, 804 F.3d at 616; see also Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013) ("[B]ond hearings must be held before a neutral IJ with the government bearing the burden of proof by clear and convincing evidence.").
The Court notes that the IJ stated in passing that the Government met its burden on risk of flight, (Nov. 7, 2016, Trans. at 14:5), but discussed no facts to support such a finding. Nor did the Government argue on the November 7, 2016, hearing record that petitioner presented a risk of flight.
The Government argues that petitioner failed to exhaust his Lora claim before the BIA, and therefore this Court is deprived of jurisdiction to hear this petition. This is incorrect. Petitioner is asserting the same due process claim to an appropriate Lora hearing that he has been asserting for over a year. A petitioner need not re-exhaust his or her Lora claim each time the government fails to comply with its Lora obligations. As this Court said in its October 18, 2016 opinion & order, "[t]he Lora hearing—with the requisite due process—that that the Court ordered to occur before the end of June 2016 has not occurred. There is no basis to assert a need for exhaustion of administrative remedies in such a circumstance." (ECF No. 25 at 8.). --------
The Court therefore DENIES petitioner's motion to compel his release at this time, and REMANDS to the IJ to provide clarification and analysis of the applicable legal standard. IV. CONCLUSION
The Court DENIES petitioner's motion to compel his release at this time, and REMANDS to the IJ for an expeditious clarification of the standard applied and individualized analysis of that standard's application here.
The Clerk of Court is directed to terminate the motion at ECF No. 28.
SO ORDERED. Dated: New York, New York
July 26, 2017
/s/_________
KATHERINE B. FORREST
United States District Judge