K. A. v. GREEN

Filing 11

OPINION. Signed by Judge Susan D. Wigenton on 7/10/2019. (JB, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
K.A.,1

Civil Action No. 19-3599 (SDW)
Petitioner,
OPINION
v.

CHARLES GREEN,
Respondent.

WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, K.A.,
filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). Following an order to answer, the Government
filed a response to the petition (ECF No. 8), to which Petitioner replied. (ECF No. 9). For the
reasons set forth below, this Court will deny the petition without prejudice.

I. BACKGROUND
Because Petitioner’s current immigration detention has been the subject of considerable
prior litigation, and because his current challenge focuses entirely on the bond hearing he received
last fall, only a brief recitation of the background of that bond hearing is necessary for the purposes

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After filing his habeas petition in this matter, Petitioner filed with the Court a motion seeking to
seal or otherwise restrict access to the docket of this matter (ECF No. 4), an action he has taken in
both of his prior habeas petitions and on appeal before the Third Circuit. See, e.g., K.A. v. Green,
No. 18-3436, 2018 WL 3742631, at *2 (D.N.J. Aug. 7, 2018). In these prior occasions, both courts
in this district and the Third Circuit have denied Petitioner’s motions to fully seal the record in
light of the restricted access applicable to immigration proceedings such as this habeas matter, but
have granted the motion solely to the extent that Petitioner shall be referred to by his initials only.
This Court will follow suit, and will deny Petitioner’s motion to seal to the extent he seeks to seal
the entire record of this matter, but will grant the motion solely to the extent that Petitioner shall
be referred to in this opinion by his initials. Id.
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of this opinion. As retired Chief Judge Linares explained in his opinion denying Petitioner’s
motion to reopen his prior habeas petition,
On August 7, 2018, [Judge Linares] entered an order and opinion
granting Petitioner[] . . . a bond hearing. In granting Petitioner a
bond hearing, [the court] indicated that “[a]t the hearing the
Government [will be required] to produce individualized evidence
that [Petitioner’s] continued detention was or is necessary to further
the goals of § 1226(c) – specifically ensuring that Petitioner presents
neither a danger to the community nor a flight risk.”
Petitioner thereafter received a bond hearing. On August 17,
2018, the immigration judge who conducted the hearing denied
Petitioner bond by way of a written opinion. In that opinion, the
immigration judge clearly identified the burden of proof it was
applying:
Once an alien’s detention is found to be
unreasonable, “the Due Process Clause demands a
hearing, at which the Government bears the burden
of proving that continued detention is necessary to
fulfill the purposes of the detention statute. Diop [v.
ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir.
2011)] (holding that [§ 1226(c)] is “only
unconstitutional when it is applied to detain someone
for an unreasonable length of time without further
individualized inquiry into whether detention is
necessary to carry out the purposes of the statute.”).
[The Government] must establish with evidence
particular to the alien that continuing to detain him
or her is necessary to ensure that the alien attends
removal hearings or that his or her release will pose
a danger to the community. Diop, 656 F.3d at 233;
Leslie [v. Att’y Gen., 678 F.3d 265, 271 (3d Cir.
2012)]; Chavez-Alvarez v. Warden York County
Prison, 783 F.3d 469, 478 (3d Cir. 2015).
The immigration judge then went on to apply that standard
to the facts presented to it and concluded that Petitioner was both a
flight risk and a danger to the community, and that his detention
therefore was necessary to fulfill the purposes of § 1226(c). In
finding Petitioner a danger to the community, the immigration judge
noted that Petitioner had a lengthy criminal history including both
theft and drug charges, and that Petitioner’s recent paucity of
charges was the direct result of Petitioner “largely being
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incarcerated since 2001 – from 2001 to 2008, and from 2011 to [the
present]” and that the lack of recent criminal activity “is not
necessarily indicative of any rehabilitation.” The immigration judge
also noted that during Petitioner’s brief period of release on bond
between 2008 and 2011, Petitioner had not entirely avoided law
enforcement as he had received “a few motor vehicle traffic
violations” during that time. Although the immigration judge noted
that Petitioner had received a disciplinary infraction during his stay
in the Essex County Jail, the judge does not appear to have relied on
that charge in concluding that the Government had established that
Petitioner was a danger to the community and that Petitioner had
failed to rebut the Government’s proof of that status. The
immigration judge also rejected Petitioner’s argument that he was
not a flight risk, finding that Petitioner’s lengthy criminal history
and previous denials of relief from removal also made him a flight
risk. The immigration judge thus concluded that the Government
had “met its burden of establishing that [Petitioner]’s continued
detention is necessary to fulfill the statute’s purposes” and denied
Petitioner bond.
K.A. v. Green, No. 18-3436, 2018 WL 4676049, at *1 (D.N.J. Sept. 26), reconsideration denied,
2018 WL 6003541 (Nov. 14, 2018).
Following the denial of bond, Petitioner filed a motion to reopen his previous habeas
petition in which he argued that the immigration judge had applied the wrong standard of proof
and had in any event failed to apply the standard of proof and burden provided by the order granting
him a bond hearing. Id. at *2. Judge Linares denied that order, finding that the immigration judge
had applied the burden of proof and standard provided for by his order granting a bond hearing,
and that as the immigration judge had provided Petitioner with a bona fide bond hearing and
applied the proper standard and burden, the court was without jurisdiction to second guess the
discretionary determination of the immigration judge that Petitioner was a danger to the
community and a flight risk. Id. at *2-3. Judge Linares also rejected Petitioner’s argument that
the immigration judge had failed to consider his submissions showing that a jail disciplinary
proceeding had terminated in his favor. Id. at 3.

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Petitioner thereafter filed a motion for reconsideration, which Judge Linares denied in
November 2018. In that motion, Petitioner repeated many of the same arguments, but chiefly
argued that the immigration judge should have been required to find him dangerous or a flight risk
under a “clear and convincing evidence” standard rather than by a preponderance of the evidence,
and that the Third Circuit’s decision in Guerrero-Sanchez v. Warden York County Prison, 905
F.3d 208 (3d Cir. 2018), required such a standard in all immigration related bond hearings. See
K.A., 2018 WL 6003541 at *1-2. Judge Linares rejected that argument, explaining that
[a]lthough Petitioner contends that Guerrero-Sanchez mandated
that he receive a bond hearing applying the clear and convincing
evidence standard, Petitioner is mistaken. Guerrero-Sanchez
discussed only the entitlement to a bond hearing for those detained
pursuant to 8 U.S.C. § 1231(a)(6) – a statute that does not apply to
Petitioner, who is awaiting the outcome of his petition for review
before the Third Circuit and is subject to a stay of removal. He is
instead detained pursuant to § 1226(c). Guerrero-Sanchez was
entirely silent as to the standard applicable to bond hearings ordered
for those held pursuant to § 1226(c), and thus its holding does not
apply to those such as Petitioner. Guerrero-Sanchez, 905 F.3d at
223-26. The Third Circuit has not yet required the clear and
convincing evidence standard for bond hearings ordered for those
held under § 1226(c), and this Court did not require the use of that
standard by the Immigration Judge in its order granting Petitioner a
bond hearing, and Petitioner is thus mistaken in his belief that he is
now retroactively entitled to a bond hearing held under the clear and
convincing evidence standard.
Id. at *2.
Petitioner also filed an appeal of his bond denial to the Board of Immigration Appeals.
(See Document 8 attached to ECF No. 8 at 3). On December 7, 2018, the BIA entered an order
affirming the denial of bond and dismissing that appeal. (Id.). In so doing, the BIA agreed with
the immigration judge that Petitioner’s considerable criminal history, lengthy incarcerations, and
minor run-ins with the law during three of the last approximately twenty years that he was not
incarcerated all presented individualized, “probative and specific” evidence of Petitioner’s danger
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to the community which was sufficient to establish Petitioner’s danger over and above any
evidence of rehabilitation Petitioner had submitted. (Id. at 4-5). The BIA then rejected Petitioner’s
contention that the immigration judge had improperly relied on a dismissed or expunged jail
disciplinary infraction in finding him dangerous, noting that the immigration judge’s “decision . .
. does not reflect that he relied on this information to support his dangerousness finding,” but noted
that, even had the judge relied upon the charge, Petitioner had failed to show the evidence could
not be considered Petitioner had only established that he charge had been expunged or dismissed,
and had not provided any further information about what had occurred. (Id. at 5). The BIA further
found support for the dangerousness finding in Petitioner’s continued “med/high” security jail
classification. (Id.). The BIA also rejected Petitioner’s contention that an improper burden had
been applied or an improper standard of proof, noting, as did Judge Linares, that the immigration
judge had applied the standard set forth in the order granting bond and established in ChavezAlvarez, 783 F.3d at 475. (Id.). Because the BIA upheld the finding of dangerousness, the Board
declined to address the immigration judge’s finding that Petitioner was a flight risk as
dangerousness alone was a sufficient basis to deny bond. (Id.).

II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “is
in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody”
and the custody is allegedly “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). As Petitioner is

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currently detained within this Court’s jurisdiction, by a custodian within the Court’s jurisdiction,
and asserts that his continued detention violates due process, this Court has jurisdiction over his
claims. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S.
484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).

B. Analysis
In his habeas petition, Petitioner seeks to challenge the propriety of the bond hearing he
received following the granting of his previous habeas petition. This Court’s jurisdiction to review
bond hearings is extremely limited. Where a § 1226(c) detainee has already received a bona fide
bond hearing, a district court “does not have the power to second guess the discretionary decision
of the [immigration judge] to deny . . . release on bond.” Pena v. Davies, No. 15-7291, 2016 WL
74410, at *2 (D.N.J. Jan. 5, 2016); see also 8 U.S.C. § 1226(e) (the “Attorney General’s
discretionary judgment regarding the [granting or denial of bond] shall not be subject to review.
No court may set aside any action or decision [of an immigration judge] regarding the detention
or release of any alien, or the grant, revocation, or denial of bond or parole”). A petitioner who
has already received such a hearing may therefore only challenge the denial of his request for
release on bond by showing that his bond hearing was not bona fide – i.e. that it was conducted in
violation of Due Process or was otherwise unlawfully conducted. Pena, 2016 WL 74410 at *2;
see also Colon-Pena v. Rodriguez, No. 17-10460, 2018 WL 1327110, at *2 (D.N.J. Mar. 15, 2018).
To the extent Petitioner’s habeas petition essentially presents his disagreement with the
immigration judge or BIA’s weighing of the evidence and ultimate conclusions, rather than the
process by which those conclusions were released, this Court is without authority to review those

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conclusions. Petitioner’s mere disagreement with the immigration judge is patently insufficient to
warrant relief or a second bond hearing.
Petitioner contends throughout his petition both that the immigration judge and BIA
applied the incorrect standard of proof and that they improperly shifted the burden of proof to him
to disprove his dangerousness to the community. As part of that argument, Petitioner once again
argues that his bond hearing should have been held under the clear and convincing evidence
standard, relying upon Guerrero-Sanchez as he did in his reconsideration motion in his prior
habeas petition. This Court, however, fully agrees that the immigration court was in no way
required to apply that heightened standard in Petitioner’s bond hearing. In the order granting relief,
ordered only that the Government would bear the burden of proof at Petitioner’s bond hearing and
that the Government was required to show that Petitioner was either a flight risk or a danger to the
community. Nothing in that order required the application of a burden of proof beyond a
preponderance of the evidence. Contrary to Petitioner’s assertion, and as was explained to
Petitioner in the denial of his reconsideration motion, Guerrero-Sanchez likewise does not require
the application of a heightened standard of proof in § 1226(c) cases. Guerrero-Sanchez held only
that the clear and convincing evidence standard be applied in bond hearings held for alien’s
detained pursuant to 8 U.S.C. § 1231(a) and was utterly silent as to the burden of proof applicable
in § 1226(c) cases. 905 F.3d at 223-26. Although the Court found the liberty interests of § 1231(a)
detainees similar to § 1226 detainees, it did so by comparison to discretionary detainees held
pursuant to § 1226(a) – detainees who bear the burden of proof in their own bond hearings. Id.;
see also Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274, 279 (3d Cir. 2018) (“under
§ 1226(a) the burden remains on the detainee at all times” in any and all bond hearings). GuerreroSanchez is thus inapplicable to Petitioner, and the only Third Circuit case law on point are Diop

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and Chavez-Alvarez, both of which apply the very standard ordered by Judge Linares, and applied
by both the immigration judge and the BIA. See Chavez-Alvarez, 783 F.3d at 474-79.
Petitioner further contends that both the immigration judge and the BIA improperly shifted
the burden of proof to him to disprove his dangerousness during his hearing and appeal. 2 Having
reviewed both decisions, however, it is clear that this is simply not the case. Although the
immigration judge and the BIA both noted that Petitioner had either failed to rebut the
Government’s showing that he was a danger to the community or failed to persuade the BIA that
there was sufficient evidence in the record to overcome the showing of dangerousness found by
the immigration judge, neither statement indicates a shifting of the burden. Both the BIA and the
immigration judge clearly identified the proper standard of proof and burden – that the burden was
on the Government to prove that Petitioner was either a flight risk or danger to the community –
and applied that standard and burden to the evidence. Neither court placed the burden on Petitioner
to prove he wasn’t a flight risk, instead they merely observed that the evidence Petitioner had
supplied did not rebut the determination that he was a danger to the community – a question which
would only arise if the Government met its burden to the satisfaction of the immigration courts –
and thus the immigration courts found the totality of the evidence established Petitioner’s
dangerousness. Having reviewed the underlying decisions, it is clear that the burden was not

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By nature of the fact that Petitioner was the appellant before the BIA, the Court recognizes that
there was a burden on Petitioner on appeal to show that the immigration judge’s factual findings
were “clearly erroneous” in order to have those determinations overturned on appeal. See 8 C.F.R.
§1003.1(d)(3)(i). As the appellant, that burden was properly on Petitioner. This appellate burden
aside, however, the Board’s decision contains no indication that Petitioner was required to prove
he was not a danger to be entitled to bond in his bond hearing, and the Board’s decision instead
indicates that the Board was well aware and properly applied the appropriate burden – that the
Government was required to prove Petitioner was a burden.
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shifted to Petitioner, and any suggestion to that effect by Petitioner amounts to a misreading or
mischaracterization of the immigration court bond decisions.
Petitioner also repeats in his current petition his contention from his motion to reopen his
previous habeas petition that the immigration judge’s findings were not individualized and did not
include a full and proper consideration of the evidence Petitioner submitted, including his
documents which indicated that his recent jail disciplinary charge had been dismissed or expunged.
As explained by Judge Linares in denying Petitioner’s motion to reopen, the immigration judge’s
decision, and in turn the decision of the BIA,
bel[y] these assertions. The immigration judge’s opinion clearly
indicates that the judge considered Petitioner’s extensive record, his
history of incarceration, and the lack of evidence that Petitioner had
been rehabilitated and would not pose a risk were he released once
more. The judge also considered the mitigating evidence presented
by Petitioner and found it wanting. This indicates that the judge
considered not only Petitioner’s past danger and risk, but also that
which he currently poses, permitted Petitioner to attempt to rebut the
showing of the Government, and ultimately found that the evidence
submitted by the Government firmly established Petitioner to
currently be both a flight risk and a danger to the community.
Petitioner’s contentions are thus without merit, and his arguments
amount to little more than disagreement with the immigration
judge’s conclusions, which is patently insufficient to warrant further
relief.
K.A., 2018 WL 4676049 at *2-3. The record thus clearly indicates that Petitioner received the
individualized consideration that Chavez-Alvarez requires. The immigration courts considered the
evidence he submitted, including the dismissal of his disciplinary charges – a point made clear by
the BIA. Petitioner has thus not shown that he was denied Due Process at his bond hearing.
In the remainder of his arguments, and throughout his petition, Petitioner provides only his
own disagreement with the immigration judge and BIA’s weighing of the facts. Petitioner’s
subjective disagreement with the ultimate conclusions of the immigration judge and BIA, however,

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are not subject to review by this Court. Pena, 2016 WL 74410 at *2; 8 U.S.C. § 1226(e). Because
Petitioner has failed to show that he was denied Due Process or that his bond hearing was otherwise
unlawfully conducted, because this Court is without authority to second-guess the discretionary
determination of the immigration judge to deny Petitioner bond, and because Petitioner’s mere
disagreement with the immigration judge or BIA is patently insufficient to warrant a new bond
hearing or other relief, Petitioner has failed to show his entitlement to relief and his habeas petition
is denied.

III. CONCLUSION
For the reasons expressed above, Petitioner’s habeas petition is denied. An appropriate
order follows.

Dated: July 10, 2019
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge

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