Opinion
22-CV-443-LJV
2023-12-21
Damion G.V. DAVIS, Petitioner, v. Merrick B. GARLAND, et al., Respondents.
Sarah Telo Gillman, Robert F. Kennedy Human Rights (RFK Human Rights), New York, NY, John H. Peng, Prisoners' Legal Services of New York, Albany, NY, for Petitioner. Damion G. V. Davis, Batavia, NY, Pro Se. Daniel Barrie Moar, U.S. Attorney's Office, Buffalo, NY, United States Attorney's Office, for Respondents.
Sarah Telo Gillman, Robert F. Kennedy Human Rights (RFK Human Rights), New York, NY, John H. Peng, Prisoners' Legal Services of New York, Albany, NY, for Petitioner.
Damion G. V. Davis, Batavia, NY, Pro Se.
Daniel Barrie Moar, U.S. Attorney's Office, Buffalo, NY, United States Attorney's Office, for Respondents.
DECISION & ORDER
LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE.
On June 9, 2022, Damion G.V. Davis filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging the validity of his detention at the Buffalo Federal Detention Facility ("BFDF") in Batavia, New York. Docket Item 1. In his amended petition, filed through counsel, Davis asserted that his "lengthy and ongoing detention ... raises serious risks of an erroneous deprivation of his core interests to be free from improper detention." Docket Item 11 at 23. He asked this Court to "[g]rant a [w]rit of [h]abeas [c]orpus directing [the government] to release him from further unlawful detention" or "[i]n the alternative, [to] issue a conditional writ of habeas corpus requiring [the government] to provide [Davis] with an individualized bond hearing before a neutral arbiter... at which ... [the government] must bear the burden of establishing by clear and convincing evidence that his continued detention is justified." Id. Davis had previously "received two custody hearings before the immigration court: once in or... around March 2020, and the other on April 6, 2022," id. at 10, but he alleged that he was entitled to "additional process," id. at 22-23; see also Docket Item 13 at 19 (arguing that Davis's "claims [for habeas relief] have not been mooted by any previous custody hearings he received").
28 U.S.C. § 2241 "authorizes a district court to grant a writ of habeas corpus whenever a petitioner is 'in custody in violation of the laws or treaties of the United States.'" Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)(3)).
Davis's amended petition also raised a "claim to U.S. citizenship," which he argued "render[ed] his ongoing detention violative of the Non-Detention Act and [Davis's] Due Process Rights under the Fifth Amendment." Docket Item 11 at 21 (bolding and capitalization omitted). The government moved to dismiss Davis's petition. Docket Item 12, and on November 22, 2022, this Court granted that motion as to those claims on the grounds that it lacked jurisdiction to evaluate Davis's citizenship, Docket Item 14 at 6-9. This Court also found that Davis "may be entitled to the relief he seeks because his detention has become unreasonably prolonged," and it therefore deemed it unnecessary to "address whether Davis's allegations about the circumstances of his arrest would lead to the same result." Id. at 6 n.3.
On February 7, 2023, this Court granted Davis's petition in part. Docket Item 19. In its decision and order ("D&O"), the Court held that "[b]ecause there is no indication that the immigration judge who conducted Davis's bond hearing considered alternatives to detention before ordering that Davis be detained, his continued detention
violates due process." Id. at 3. Although this Court declined to order Davis's "immediate release," it ordered that
Davis must be released unless, within 14 calendar days from the date of this decision and order, the government demonstrates by clear and convincing evidence before a neutral decisionmaker that Davis's continued detention is necessary to serve a compelling regulatory purpose, such as minimizing risk of flight or protecting others or the community. As part of that calculus, the decisionmaker must consider—and must address in any decision—whether there is clear and convincing evidence that there are no less-restrictive alternatives to physical detention, including release on conditions, that could reasonably address the government's interest in detaining Davis.
This Court further clarified the latter requirement: "[i]n other words, the decisionmaker must find, by clear and convincing evidence, that no condition or combination of conditions of release can reasonably ensure Davis's appearance and the safety of the community—that is, even with conditions, Davis presents an identified and articulable risk of flight or a threat to an individual or the community." Docket Item 19 at 20.
Id. at 19-20. The government was required to "certify[ ] compliance with th[e] order" within "30 days." Id. at 20-21.
Davis now moves to enforce this Court's judgment, Docket Item 24, arguing that the government "failed to abide by this Court's D&O in two critical ways," Docket Item 24-1 at 5. More specifically, he says (1) that the government "failed to provide [him with] a hearing before a neutral decisionmaker" and (2) that the immigration judge who presided over Davis's bond hearing failed to require the government to bear the correct "burden of proof." Id. at 5-6 (citation and internal quotation marks omitted).
For the reasons that follow, this Court disagrees and therefore denies Davis's motion to enforce.
FACTUAL AND PROCEDURAL BACKGROUND
This Court assumes familiarity with the factual and procedural background as stated in its previous decisions. See Docket Items 14, 19. The following therefore focuses on events that have taken place since the Court's last D&O was issued on February 7, 2023. Docket Item 19.
On February 13, 2023, United States Immigration Judge ("IJ") Robert P. Driscoll held a hearing at which he granted Davis's request for a continuance. Docket Item 24-5 at 4. IJ Driscoll rescheduled the bond hearing for 10 a.m. on February 16, 2023, and he required the parties to submit all evidence for his consideration by 10 a.m. on February 15, 2023. Id. at 4-5.
On February 15, 2023, between 8:39 a.m. and 8:43 a.m., Davis submitted 736 pages of evidence. Docket Item 24-1 at 6, 10. At the bond hearing the next day, IJ Driscoll expressed some "frustration" with the length of the submission, which he stated had been submitted only "25 hours" before the hearing and "much of [which]" in his view was "totally irrelevant to th[o]se proceedings." Docket Item 24-6 at 7, 10, 13. He questioned Davis's attorney, John Peng, about this evidentiary submission,
The government had submitted its evidence on February 10, 2023, in compliance with IJ Driscoll's prior scheduling order. Docket Item 24-5 at 2.
Peng represented Davis at the hearings on February 13, 2023, and February 16, 2023. Docket Items 24-5, 24-6. On October 13, 2023, Peng moved to withdraw, stating that this "request" had been "made by mutual decision with [Davis]." Docket Item 29. Peng also stated that "[he] believe[d] neither party would be prejudiced by the granting of th[e] motion" because "[Davis] will continue to be represented by Attorney Sarah T. Gillman," Docket Item 29-1 at 2, who has represented Davis in these proceedings since July 2022, Docket Item 4.
On October 13, 2023, after Peng filed his motion, the Court received a letter from Davis stating that he was "no longer with counsel" and "requesting ... permission to continue [pro se] in all further matters." Docket Item 30 at 1. But on October 17, 2023, Gillman filed a letter in which she stated that "[she had] confirmed with Mr. Davis on October 12, 2023, during a pre-scheduled legal call that he would like [her organization] RFK Human Rights to continue to represent him in this matter." Docket Item 31. On October 17, 2023, Gillman again confirmed with Davis that he would like the organization to continue to represent him, and he explained that his letter "[had been] sent prior to [the October 12, 2023, conversation]." Id. Therefore, Peng's motion to withdraw as Davis's attorney, Docket Item 29, is granted, and Davis's motion to proceed pro se, Docket Item 30, is denied as moot.
asking, for instance, "Why did you submit Jamaican court cases that ran a large portion of your evidentiary submission? I need to know why you did that." Id. at 10-11. At one point, IJ Driscoll addressed Davis directly, stating:
Absolutely none of my frustration has to do with you or your case. None of it.... It's just when I get 736 pages to read before a hearing and I look at it and I say, man, a lot of this stuff doesn't apply to this case as far as I'm concerned, I need the attorney to justify that. So I want you to know, sir, absolutely none of this has to do with any frustration directed at you whatsoever. None. And I will hear and have heard the information from both the parties, and my frustration absolutely will in no way be reflected toward you or at you in any decision that I make. I want you to know that.
Id. at 13.
In response to IJ Driscoll's comments, Peng stated that that he had "endeavored to provide the entire record that was submitted to the Third Circuit," id. at 7, so that "if the government wanted to raise a flight risk argument[,] [Davis] could show that [he] has vehemently tried to contest his removal, and so he has a viable interest in staying in the country and not being a flight risk," id. at 8. Over the course of the bond hearing, Peng raised several objections to the IJ's "demeanor" and to his treatment of Davis's evidentiary submissions. Id. at 7, 8, 13. IJ Driscoll ultimately admitted all the evidence that Davis had submitted, stating that he had "reviewed all this information" and would "give it the weight that [he] deem[ed] appropriate." Id. at 15. Over Peng's objection "on reliability grounds," IJ Driscoll also admitted the government's submission of an 1-213, a disciplinary write-up, and police criminal complaints regarding Davis. Id. at 2-4.
Following the evidentiary submissions, IJ Driscoll gave the parties an opportunity to address the merits of whether Davis was entitled to a bond or other relief. Id. at 19. IJ Driscoll informed the government that it bore "the burden, by clear and convincing evidence, to demonstrate that [Davis] is either a flight risk, a danger to the community, or that he is a national security risk." Id. at 16. The IJ heard presentations from both sides on that issue. Id. at 19-30.
On February 21, 2023, IJ Driscoll issued a written order denying Davis's "request for a change in custody status." Docket Item 20-1 at 7. He found that
DHS ha[d] established by clear and convincing evidence that [Davis] presents a current danger to the community. DHS met its burden to demonstrate by clear and convincing evidence that no bond, alternative to bond, or combination thereof could address the [g]overnment's interest in protecting the community and reasonably ensure [Davis's] appearance in future proceedings.
Id. at 7.
On March 9, 2023, the government filed a notice that Davis had been afforded a bond hearing and that all relief had been denied. Docket Item 20. On April 20, 2023, Davis moved to enforce this Court's judgment, raising the two objections to the bond hearing outlined above. Docket Item 24. On May 4, 2023, the government responded, Docket Item 26, and on May 11, Davis replied, Docket Item 27.
DISCUSSION
I. JURISDICTION
Before addressing the merits of Davis's argument that his bond hearing did not comport with this Court's order, this Court addresses two threshold jurisdictional issues raised by the government.
A. Exhaustion
First, the government contends that Davis cannot seek judicial review of IJ Driscoll's decision because Davis "fail[ed] to exhaust his administrative remedies by appealing his bond denial to the [Board of Immigration Appeals ("BIA")]." Docket Item 26 at 3; see also id. at 8-12. Davis disagrees, arguing that his case falls under "clear exceptions to the customary administrative exhaustion rules." Docket Item 27 at 2 n.2. This Court agrees with Davis.
Under the circumstances here, Davis was not required to exhaust his administrative remedies. "There is no statutory requirement of administrative exhaustion before immigration detention may be challenged in federal court," but "such exhaustion is generally required as a prudential matter." Paz Nativi v. Shanahan, 2017 WL 281751, at *1 (S.D.N.Y. Jan. 23, 2017). Nevertheless, courts need not require a party to exhaust all administrative remedies 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, 741 (2d Cir. 1992) (citation and internal quotation marks omitted). And cases like this one fall into at least one of the categories in which exhaustion is not required.
First, Davis's challenge to the bond hearing that he received under this Court's order raises a "substantial constitutional question" over which the BIA would lack jurisdiction, rendering appeal to that body "futile." Guitard, 967 F.2d at 741; see Blandon v. Barr, 434 F. Supp. 3d 30, 37-38 (W.D.N.Y. 2020). So the third and fourth exhaustion exceptions—a substantial constitutional question and the futility of administrative review—are met. See Blandon, 434 F. Supp. 3d at 37-38.
And the first two exceptions may apply as well. As this Court has recognized, "because of delays inherent in the administrative process, BIA review would result in the very harm that the bond hearing was designed to prevent: prolonged detention without due process during lengthy and backlogged removal proceedings." Hechavarria v. Whitaker, 358 F. Supp. 3d 227, 237 (W.D.N.Y. 2019) (citation and internal quotation mars omitted). So irreparable injury may result in a situation where there really is no genuine opportunity for timely, and therefore adequate, relief.
Indeed, courts in this District—including this Court—have found that a party challenging an IJ's compliance with a judgment ordering a constitutionally adequate
bond hearing need not exhaust administrative remedies before seeking review of those inadequacies in court. See, e.g., Blandon, 434 F. Supp. 3d at 37 (Wolford, J.) (holding that "in light of [the] [p]etitioner's already prolonged detention, and the Court's initial order for [the] [p]etitioner to receive a constitutionally adequate bond hearing within 14 days of entry of the [D&O], the Court finds exhaustion of ... administrative remedies [was] not required" for the petitioner to bring a motion to enforce"); Gutierrez Cupido v. Barr, 2020 WL 103477, at *3 (W.D.N.Y. Jan. 9, 2020) (Geraci, J.) ("For the reasons discussed in other cases in this [D]istrict, the Court disagrees that a petitioner must seek exhaustion before moving to enforce a judgment."); Hechavarria, 358 F. Supp. 3d at 237 (Vilardo, J.) ("[Exhaustion] principles do not preclude an inquiry into whether the government complied with a prior order issuing a conditional writ of habeas corpus.").
The Court therefore agrees with Davis that he need not exhaust his administrative remedies before seeking relief in this Court.
B. Statutory Bar
Second, the government argues that under the Immigration and Nationality Act ("INA"), this Court lacks jurisdiction to review IJ Driscoll's "discretionary judgment[s]." Docket Item 26 at 13-14. Under the provision on which the government relies,
[t]he Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any [noncitizen] or the grant, revocation, or denial of bond or parole.
Docket Item 26 at 13 (citing 8 U.S.C. § 1226(e)).
But that provision does not bar the Court's review here. As this Court has explained, "a federal court always retains jurisdiction to enforce its lawful judgments, including habeas judgments, and.... has the authority to see that its judgment is fully effectuated." Hechavarria, 358 F. Supp. 3d at 235 (alterations omitted) (quoting Gali v. Scroggy, 603 F.3d 346, 352 (6th Cir. 2010)). So this Court has jurisdiction, at least over the limited question of whether Davis's bond hearing complied with its February D&O. II. DEFICIENCY OF DAVIS'S BOND HEARING
In fact, it is not clear that section 1226(e) even applies here. Courts in this District have previously expressed some "skeptic[ism]" that "court-ordered bond hearing[s] that demand[ ] procedural protections beyond those compelled by the statute itself"—such as the one Davis is challenging here—"constitute[ ]... proceeding[s] conducted under [s]ection 1226." Blandon, 434 F. Supp. 3d at 35-36; see also Mathon v. Searls, 623 F. Supp. 3d 203, 213, 214 (W.D.N.Y. 2022) ("[T]he Court is neither reviewing an IJ's 'discretionary judgment' under [section] 1226 nor 'setting aside any action or decision by the Attorney General' under [section] 1226. Instead, the Court is determining whether all of the conditions contained in the bond order were followed—that is, whether [the noncitizen] received the due process to which he was entitled."(alteration omitted)) And in any event, section 1226(e) "precludes [a noncitizen] from challenging [only] a discretionary judgment by the Attorney General or a decision that the Attorney General has made regarding [the noncitizen's] detention or release," not "challenges to the statutory framework that permits the [noncitizen's] detention without bail." Blandon, 434 F. Supp. 3d at 36 (internal quotation marks omitted); see Jennings v. Rodriguez, 583 U.S. 281, 295, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018). Here, Davis is seeking this Court's review of whether his bond hearing complied with the constitutional requirements the Court outlined in its prior order—that is, requirements beyond what section 1226 imposes. See Docket Item 24-1 at 5-8.
As noted above, this Court's D&O required the government to "demonstrate[ ] by clear and convincing evidence before a neutral decisionmaker that Davis's continued detention is necessary to serve a compelling regulatory purpose, such as minimizing risk of flight or protecting others or the community." Docket Item 19 at 20. And it specifically required that decisionmaker to "find, by clear and convincing evidence, that no condition or combination of conditions of release can reasonably ensure Davis's appearance and the safety of the community." Id.
Davis argues that the bond hearing he was provided did not comply with "this Court's D&O in two critical ways." Docket Item 24-1 at 5. More specifically, he says (1) that the government "failed to provide [him] a hearing before 'a neutral decisionmaker,'" and (2) that the IJ who presided over his hearing failed to require the government to show by "clear and convincing" evidence that "Davis poses a current danger risk so high that no amount of alternatives to detention would be capable of ameliorating [the] purported risk [of releasing him]." Id. at 5-6. Davis asks this Court to review the proceeding to determine whether he "received the due process to which he was entitled." Id. at 9.
A. Failure to Provide a Neutral Decisionmaker
First, Davis contends that his bond hearing was not overseen by a "neutral decisionmaker." Docket Item 24-1 at 5. More specifically, he says that "the transcript... and audio recording of the February 16, 2023, hearing show[ ] [that IJ] Driscoll evinced clear hostility towards [Davis's] counsel and [Davis's] case." Docket Item 24-1 at 5 (footnote omitted). And he argues that "[s]uch hostility is exemplified by IJ Driscoll['s] repeated[ ] admoni[tions] [of] [Davis's] counsel and [Davis] for the timing and length of [Davis's] evidentiary submission, despite [the fact that] the submission fully compl[ied] with IJ Driscoll's own oral scheduling order." Id. at 5-6; see also id. at 12-15.
1. Legal Standard
"Unlike an Article III judge, an IJ is not merely the fact finder and adjudicator, but also has an obligation to establish and develop the record." Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006). Congress has empowered IJs to "interrogate, examine, and cross-examine the [non-citizen] and any witnesses," 8 U.S.C. § 1229a(b)(1), and courts have recognized that "[in] the course of developing a sound and useful record, an IJ must, when appropriate, question an applicant in order, for example, to probe inconsistencies and develop the relevant facts," Islam, 469 F.3d at 55. A court's "review of IJ and BIA decisions" is "generally deferential." Id. at 55. Indeed, the Second Circuit has declined to find that an IJ "exhibited bias simply by questioning [a noncitizen] on [a specific] issue," Patel v. Garland, 2022 WL 2069272, at *2 (2d Cir. June 9, 2022), even when that "questioning" was alleged—without more—to be "hostile," Kargapolov v. Mukasey, 287 F. App'x 948, 950 (2d Cir. 2008).
Moreover, an IJ's attempt to impose certain rules in a proceeding does not constitute bias. Singh Multani v. Garland, 2021 WL 4343438, at *2 (2d Cir. Sept. 24, 2021) (upholding as proper the decision of an IJ who merely "posed questions to probe for more details, warned against leading questions while offering suggested alternatives, and advised on her preferred procedures"). And the Supreme Court has held that an Article III "judge's ordinary efforts at courtroom administration—even
a stern and short-tempered judge's ordinary efforts at courtroom administration—remain immune" from challenge for "bias or partiality." Liteky v. United States, 510 U.S. 540, 556, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). That should be no less true in the immigration context, particularly in light of an IJ's greater leeway to question the parties and develop the factual record.
But that is not to say that an IJ's behavior is always beyond reproach or judicial challenge. In fact, "an immigration judge has a responsibility to function as a neutral, impartial arbiter and must be careful to refrain from assuming the role of advocate for either party." Islam, 469 F.3d at 55. The Second Circuit has held that "when an IJ's conduct results in the appearance of bias or hostility such that [a court] cannot conduct a meaningful review of the decision below, [it should] remand." Id. For example, remand has been deemed appropriate when an IJ "repeatedly addressed [a noncitizen] in an argumentative, sarcastic, impolite, and overly hostile manner that went beyond fact-finding and questioning" and "created an atmosphere in which it might have been difficult for [the noncitizen] to advocate fully on his own behalf." Id. at 55-56; see also Huang v. Gonzales, 453 F.3d 142, 148 (2d Cir. 2006) (remanding case for reconsideration based on "several instances of questioning by the IJ that were at least inappropriate and at worst indicative of bias against Chinese witnesses").
2. IJ Driscoll's Conduct
This Court has carefully reviewed both the transcript and the audio recording of the hearing on February 16, 2023, and it finds that IJ Driscoll's conduct did not "result[ ] in the appearance of bias or hostility" in a way that impedes this Court's ability to "conduct a meaningful review of the decision below." Islam, 469 F.3d at 55; Docket Item 24-6 (transcript); Docket Item 25 (audio recording). It is true that at the hearing the IJ questioned Davis's lawyer about his evidentiary submission, see generally Docket Item 24-6, and even admitted to being "frustrated" with Davis's lawyer, id. at 7, 13. But that does not translate into the sort of bias or hostility toward Davis that might require remand. Indeed, IJ Driscoll's comments here are a far cry from Islam, where the judge's "argumentative, sarcastic, impolite, and overly hostile manner" had the effect of potentially impeding the noncitizen's ability to "advocate fully on his own behalf." Islam, 469 F.3d at 55-56.
As anyone who has served as a judge knows, lawyers and their submissions can sometimes be frustrating. Here, because the lengthy submission was nevertheless timely under the IJ's own schedule, perhaps that frustration was unwarranted. But that does not mean that the frustration crossed the line into bias. On the contrary, the IJ recognized his responsibility not to let that happen: He specifically told Davis that "[a]bsolutely none of [his] frustration has to do with [Davis] or [his] case"; that he "[would] hear and ha[d] heard the information from both the parties[;] and [that his] frustration absolutely w[ould] in no way be reflected toward [Davis] or at [Davis] in any decision." Id. at 13; see supra at 288-89. In context, then, IJ Driscoll's frustration is not the "overly hostile" questioning deemed impermissible in Islam but the kind of "ordinary efforts at courtroom administration" that have been found permissible by the Supreme Court. See Liteky, 510 U.S. at 556, 114 S.Ct. 1147.
What is more, there is no indication that IJ Driscoll's questioning of Davis's attorney regarding his evidentiary submission precluded Davis's ability to "advocate fully on his own behalf such that this Court is
unable to "conduct a meaningful review of the decision below." Islam, 469 F.3d at 55-56. Although IJ Driscoll questioned the attorney's decision to submit what he did, the IJ nevertheless "reviewed all th[e] information" submitted and accordingly "admit[ted] everything," noting that he would "give it the weight that [he] deem[ed] appropriate." Docket Item 24-6 at 15. Further, after making his evidentiary ruling, IJ Driscoll gave both sides the chance to present their arguments regarding Davis's custody status, explicitly noting that the government bore "the burden, by clear and convincing evidence, to demonstrate that [Davis] is either a flight risk, a danger to the community, or that he is a national security risk." Id. at 16.
In light of all that, this Court cannot conclude that IJ Driscoll's conduct evidences a disqualifying bias or impedes this Court's ability to "meaningful[ly] review" his decision. Accordingly, it finds that IJ Driscoll fulfilled his obligation to serve as a "neutral, impartial arbiter," Islam, 469 F.3d at 55, and that the government did not fail to provide Davis with the "neutral decisionmaker" that the D&O required, see Docket Item 19 at 20; Docket Item 24-1 at 5.
B. Failure to Apply the Correct Burden of Proof
Davis also argues that IJ Driscoll erred in failing to require the government to establish, by "clear and convincing evidence" that (1) "Davis poses a current danger risk," Docket Item 24-1 at 15, and (2) "no alternatives to detention could ameliorate th[at] purpo[r]ted danger risk[ ]," id. at 20.
1. Legal Standard
Clear and convincing evidence "means something more than 'preponderance of the evidence,' and something less than 'beyond a reasonable doubt.'" United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985) (quoting Addington v. Texas, 441 U.S. 418, 431, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). To meet the clear-and-convincing standard, a party must "place in the ultimate factfinder an abiding conviction that the truth of its factual contentions [is] highly probable." Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) (citation and internal quotation marks omitted); see also Blandon, 434 F. Supp. 3d at 38 ("The clear-and-convincing burden of proof requires the government to prove that a factual contention is highly probable." (citation and internal quotation marks omitted)). In other words, the burden has been satisfied only if "the material ... offered instantly tilt[s] the evidentiary scales in the affirmative when weighed against the evidence ... offered in opposition." Colorado, 467 U.S. at 316, 104 S.Ct. 2433.
But "[i]n reviewing [Davis's] motion to enforce, it is important to emphasize that the Court's task is narrow: it is to determine whether an IJ complied with the [Court's D&O], not to review the hearing evidence de novo." Blandon, 434 F. Supp. 3d at 38 (citations and internal quotation marks omitted); see Gutierrez Cupido, 2020 WL 103477, at *3 (same); see also Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001) (declining to review a noncitizen's assertion that "the decisions of the IJ and BIA lacked adequate support in the record" because "federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IJ and the BIA"). For that reason, an IJ's finding of "clear and convincing evidence" may be overturned only in limited circumstances, such as when "the evidence itself could not—as a matter of law—have supported the adjudicator's conclusion" or when it is "clear from the adjudicator's opinion itself that [the IJ] simply did not
apply the correct standard to the facts." Mathon, 623 F. Supp. 3d at 213-14 (citation omitted).
Davis argues that both circumstances are present here. See Docket Item 24-1 at 17-25. But this Court disagrees.
2. The IJ's Dangerousness Finding
IJ Driscoll found that DHS "ha[d] provided clear and convincing evidence of [Davis's] dangerousness," and "conclude[d]," after "considering all the factors in th[e] case," that "[Davis] poses a substantial, current danger to the community." Docket Item 20-1 at 5. Davis disputes this finding on four grounds. Docket Item 24-1 at 17-19.
a. Application of the Clear-and-Convincing Standard
First, Davis says that "IJ Driscoll committed legal error when he articulated his belief [that] he had general and broad discretion to admit evidence because the proceedings were, to him, custody proceedings subject[ ] to the regulations of the [INA]." Id. at 17. In particular, Davis cites IJ Driscoll's statement during the February 16, 2023, bond hearing that: "This is a bond proceeding. Even though it is a habeas case, it's still governed by the INA and the regulations as well as the considerations and due process that the [D]istrict [C]ourt set forth in its order." Id. at 17 (quoting Docket Item 24-6 at 4).
Davis argues the IJ's statement ignores precedent in this District finding that a "post-habeas custody hearing is not a hearing conducted pursuant to the INA." Id. Davis says that this statement shows that IJ Driscoll—like the IJ in Mathon—failed to require the government to meet its burden of proof by clear and convincing evidence. Docket Item 24-1 at 17-18; see Mathon, 623 F. Supp. 3d at 214. In fact, Davis says, IJ Driscoll's written order cites the same problematic BIA decision— Matter of Guerra, 24 I. & N. Dec. 37 (BIA 2006)—that the IJ in Mathon cited. Docket Item 24-1 at 17-18. As a result, Davis argues, IJ Driscoll clearly "did not apply the correct standard to the facts." Docket Item 24-1 at 17; see also Mathon, 623 F. Supp. 3d at 214 (holding that the IJ had not applied the proper standard).
The Court disagrees. In the first place, Mathon is inapposite. In Mathon, the court found that the IJ had not applied the correct standard—and, indeed, had not required the government to bear the burden of proof—because she "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." Mathon, 623 F. Supp. 3d at 214. As an example of those comments, the court cited the IJ's statement that "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.'" Id. (citing Mathon v. Barr, Case No. 20-cv-7105, Docket Item 26-5 at 3-4 (IJ decision)). The court also noted that the IJ had cited in support of these statements Matter of Guerra, "an agency case setting forth the factors an IJ should consider in reviewing a detainee's request for discretionary release." Id. Thus, the court found that the IJ—despite "recit[ing] portions of the [c]ourt's order setting forth the parameters of the bond hearing, the standard of proof, and placement of the evidentiary burden"—actually applied prior BIA rulings instead of the "legal standards ... directed by the [c]ourt's order." Id.
Not so here. IJ Driscoll's statement that the hearing was a "bond proceeding ...
governed by the INA and the regulations," Docket Item 24-6 at 4, addressed his discretion to admit evidence—not to allocate the burden of proof. See Docket Item 24-6 at 4. In fact, during the bond hearing and in his written opinion, IJ Driscoll repeatedly stressed that the government bore the burden of proof by "clear and convincing evidence." Docket Item 24-6 at 16 (informing the government's attorney that "[he] d[id] have the burden, by clear and convincing evidence, to demonstrate that [Davis] is either a flight risk, a danger to the community, or that he is a national security risk"); id. at 30 (informing Davis that "[he] had no burden, [and his] attorney had no burden here"); Docket Item 20-1 at 2 (citing this Court's order requiring a bond hearing at which "the government must demonstrate by clear and convincing evidence before a neutral decisionmaker that [Davis's] continued detention is necessary to serve a compelling regulatory purpose"); id. at 3-5 (repeating this standard several times and concluding that "[the government] has provided clear and convincing evidence of [Davis's] dangerousness"). The parties agreed that this was the correct standard of proof and argued in light of that standard. See Docket Item 24-6 at 16, 19-20, 22, 24, 26. And IJ Driscoll's opinion carefully lays out the reasons why he believes that standard was met in this case. Docket Item 20-1 at 3-5.
Even the IJ's statement that Davis finds most troubling states that the bond hearing is "governed by the INA and the regulations as well as the considerations and due process that the [D]istrict [C]ourt set forth in its order." Docket Item 24-6 at 4 (emphasis added). Davis argues that this nevertheless is error because "this District's judges have repeatedly emphasized" that a "post-habeas custody hearing is not a hearing conducted pursuant to the INA." Docket Item 24-1 at 17. But while courts in this District have found that court-ordered bond hearings are not conducted pursuant to the INA (and specifically, 8 U.S.C. § 1226), they have not held that the INA and its regulations simply do not apply in this context. See supra at 291 n.7.
"[T]he 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." Mathon, 623 F. Supp. 3d at 214. But here, IJ Driscoll not only stated repeatedly that he was applying the correct standard—he also analyzed the evidence under that standard. See Docket Item 20-1 at 3-5. Therefore, and for the reasons stated above, IJ Driscoll's statement that the hearing was governed by the INA and its regulations was not legal error, nor does it suggest that the IJ "simply did not apply the correct standard to the facts." See Mathon, 623 F. Supp. 3d at 214.
The fact that IJ Driscoll cites Matter of Guerra at times in his opinion does not change this analysis. Blandon, which holds that the government bears the burden of establishing its case by "clear and convincing evidence," itself cites Matter of Guerra to support the kind of factors an IJ can consider when arriving at this determination. See Blandon, 434 F. Supp. 3d at 39-40.
b. Admission of Evidence
Davis also argues that IJ Driscoll erred in "admitting and relying upon certain evidence"—specifically "police and prosecutorial reports"—"that lack general indicia of reliability." Docket Item 24-1 at 18. For that reason, Davis argues, the evidence presented "could not—as a matter of law—have supported the [IJ's] conclusion." See id. at 17-18 (quoting Mathon, 623 F. Supp. 3d at 214). Again, this Court disagrees.
First, IJ Driscoll did not err in admitting the records that Davis challenges. The Federal Rules of Evidence do
not apply in immigration proceedings. See Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996) ("[T]he strict rules of evidence do not apply in deportation proceedings."); Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th Cir. 2005) ("[T]he rules of evidence are not applicable to immigration hearings," although "the constitutional and statutory guarantees of due process require that the government's choice [of whether to use certain evidence] ... not be wholly unfettered." (alterations, citations, and internal quotation marks omitted)). And courts have upheld the use of police and prosecutorial records as evidence in immigration bond proceedings. See Vides v. Searls, 2021 WL 6846277, at *2 (W.D.N.Y. May 13, 2021) (upholding finding of dangerousness based on IJ's consideration of, among other evidence, "Form 1-213, Pre-sentence Investigation Report, certificate of conviction, and sentencing transcript"); Singh v. DHS, 526 F.3d 72, 80 (2d Cir. 2008) ("[A]n IJ may admit a rap sheet as partial evidence of... conviction[s].").
For that reason, although Davis cites it to support his argument, the Supreme Court's statement in Melendez-Diaz v. Massachusetts that "police reports generated by law enforcement officials ... do not qualify as business or public records" under Federal Rule of Evidence 803(8) is not directly relevant here. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 322, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Docket Item 24-1 at 18.
Moreover, Davis's argument that IJ Driscoll erred in "relying" on the police and prosecutorial reports, see Docket Item 24-1 at 18, also is misplaced. Although records of criminal convictions—standing by themselves—cannot constitute "clear and convincing evidence" of dangerousness, Blandon, 434 F. Supp. 3d at 39, that is not what IJ Driscoll found here. On the contrary, he did what he was supposed to do: "consider one or more factors relevant to the currency of the threat, such as the recency of the criminal offense, or the petitioner's behavior subsequent to the conviction." Id. at 39-40 (internal citations omitted). And that certainly was not error.
In his decision, IJ Driscoll noted that Davis's criminal record included "driving under the influence, theft, disorderly conduct, resisting arrest, strangulation, assault, and drug possession"; he then reasonably found that record to "demonstrate[ ] a pattern of committing serious crimes .. and extremely dangerous behavior... over the course of several years." Docket Item 20-1 at 5. The IJ noted that Davis's crimes were relatively recent, observing that in 2018, Davis was convicted of four crimes, and in 2019, he was convicted of two crimes. Id. IJ Driscoll also noted that Davis has previously violated a "protection order" involving his wife, and found that Davis had neither "shown any rehabilitation" nor "addressed past patterns of behavior." Id.
In light of that analysis—and especially because this Court cannot revisit the weight the IJ assigned to any particular piece of evidence—this Court cannot find that the evidence presented, as a matter of law, could not support the IJ's finding. See Adejola v. Barr, 439 F. Supp. 3d 120, 130 (W.D.N.Y. 2020) (holding that "[t]o the extent [a noncitizen] ... argu[es] that the IJ's assessment of that evidence was wrong or that [the IJ] erred in ... credibility determinations or the weight [the IJ] gave to particular aspects of the record, such arguments are beyond the scope of this Court's jurisdiction"); see also Apollinaire v. Barr, 2019 WL 4023560, at *3 (W.D.N.Y. Aug. 27, 2019) (noting that in reviewing immigration bond determinations, "the question [for the court] is whether the immigration judge relied upon proof that could not possibly establish by
clear and convincing evidence" the government's case (alterations, citation, and internal quotation marks omitted)); Medley v. Decker, 2020 WL 1033344, at *3 (S.D.N.Y. Mar. 3, 2020) (same).
c. Disciplinary Evidence and Evidence of Rehabilitation
Davis argues that the IJ "erred when he considered the documents presented by [DHS] regarding a disciplinary incident at the BFDF without otherwise assessing [Davis's] evidence concerning why he could not offer a proper rebuttal to the DHS's showing." Docket Item 24-1 at 19. Likewise, he says that the IJ erred by "ignor[ing] context relating to DHS's role in denying ... Davis access to material and important evidence when he stated [that] ... Davis had not shown any rehabilitation." Id. (alteration, citations, and internal quotation marks omitted). But those challenges boil down to disagreeing with the weight given to evidence by the IJ. And as noted above, this Court will not—indeed, it cannot—reexamine the evidence and review whether IJ Driscoll assigned the proper weight to each item in the proper context. See Adejola, 439 F. Supp. 3d at 130. So Davis's final two objections to IJ Driscoll's finding of dangerousness also miss the mark.
3. The IJ's Finding Regarding Alternatives to Detention
Finally, Davis argues that for several reasons, IJ Driscoll failed to heed this Court's directive that "the decisionmaker must consider—and must address in any decision—whether there is clear and convincing evidence that there are no less-restrictive alternatives to physical detention, including release on conditions, that could reasonably address the government's interest in detaining Davis." Docket Item 19 at 20; Docket Item 24-1 at 7-8. For many of the same reasons already discussed, the Court rejects each of those challenges.
First, Davis argues that "the [government] did not submit sufficient evidence" to show that no alternatives to detention could address the government's interest in safeguarding the community. Docket Item 24-1 at 21. But as discussed above, and as this Court has previously held, the insufficient-evidence bar is a high one since the only "question" for this Court is whether the evidence "relied upon ... could not possibly establish" the inadequacy of alternatives to detention "by clear and convincing evidence." Apollinaire, 2019 WL 4023560, at *3 (alterations, citation, and internal quotation marks omitted); see also Tucker v. Searls, 2023 WL 3267085, at *3 (W.D.N.Y. May 5, 2023) (Vilardo, J.). Here, the IJ explicitly "considered the alternatives to ... continued detention, ... including release with enhanced supervision," Docket Item 20-1 at 6; Docket Item 24-6 at 26-27, as well as evidence showing that any alternatives would, in Davis's case, be inadequate, see Docket Item 20-1 at 6; Docket Item 24-6 at 27-28. The IJ cited evidence that Davis had failed to comply with court orders of protection in the past and has violated those orders by, among other things, "beating[ ] and choking the protected party." Docket Item 20-1 at 6. The IJ also took account of Davis's history of violence "towards his wife while small children were present" and "towards police officers[ ] while being arrested." Id. And the IJ concluded that Davis "has demonstrated a strong likelihood of noncompliance with the terms of an Alternatives to Detention ... program." Id. Based on all that, this Court cannot find that the evidence "could not possibly" have met the clear-and convincing-standard. See Apollinaire, 2019 WL 4023560, at *3.
Second, Davis contends that IJ Driscoll "failed to consider individualized forms of
alternatives to detention that may address... Davis's situation." Docket Item 24-1 at 21. But in his written opinion, IJ Driscoll considered several particular alternatives to detention, including "enhanced supervision" and an "electronic ankle monitor," and found that neither was sufficient given Davis's specific history of "noncompliance" with Court orders in the past. Docket Item 20-1 at 6. So that argument fails as well.
Other courts have found similar considerations of alternatives sufficient in this context. For example, in Vides v. Searls, the court found that an IJ who had "explained his reasoning for concluding that [several alternatives to detention] were not viable under the circumstances" had "complied sufficiently with the [court's] directives.. to consider ... alternatives to detention" and upheld the bond determination. Vides, 2021 WL 6846277, at *4-5; see also Tucker, 2023 WL 3267085, at *5 (this Court reaching a similar conclusion). Indeed, the Vides court noted that while "greater detail could have been provided," the IJ's "decision makes clear that [the IJ] did take those matters under consideration as directed, and resulted in the legally permissible conclusion that the alternatives considered were not appropriate." Id. The same is true here. And again, even if this Court may have reached a different conclusion regarding the possibility of suitable alternatives to detention, "it is not this Court's role to engage in a re-weighing of the evidence considered by the IJ." Adejola, 439 F. Supp. 3d at 130; see also Sheriff v. Searls, 2021 WL 6797495, at *7 (W.D.N.Y. Aug. 16, 2021) ("Since [the IJ] explicitly considered several different alternatives to detention, [the petitioner's] challenge boils down to a request that this Court reweigh the evidence and testimony presented at hearing, which is beyond this Court's purview.").
The fact that IJ Driscoll included this analysis makes this case dissimilar to the two cases on which Davis relies. See Docket Item 24-1 at 20-21. First, this case is unlike Hechavarria, where the IJ "did not consider [the noncitizen]'s proffered alternative [to detention]—or any alternative, for that matter." Hechavarria, 358 F. Supp. 3d. at 242. Likewise, this case is unlike Mathon, where the IJ refused even to consider any alternatives to detention—including mental health treatment—because the noncitizen had been found to present a risk of "danger to the community." Mathon, 623 F. Supp. 3d. at 217-18.
CONCLUSION
In sum, the Court finds that IJ Driscoll "applied the burden of proof ordered by th[is] Court, performed the necessary analysis, and relied on the evidence of record in reaching h[is] conclusion." See Adejola, 439 F. Supp. 3d at 130. "That is sufficient to establish compliance with the Court's D&O." See id.
Therefore, for the reasons stated above, Davis's motion to enforce, Docket Item 24, is DENIED. Attorney Peng's motion to withdraw as Davis's attorney, Docket Item 29, is GRANTED, and Davis's motion to proceed pro se, Docket Item 30, is DENIED as moot.
SO ORDERED.