Vargas v. Davies et al

Filing 36

OPINION AND ORDER re: 22 MOTION for Leave to File Amended Petition filed by Ariel Diaz Vargas. The motion for leave to file an amended petition is GRANTED. The Clerk of the Court is respectfully directed to terminate the motion. Doc. 22. The parties are hereby directed to submit joint or separate letters informing the Court as to (i) the current status of Petitioner's removal proceeding, and (ii) whether the parties require further opportunity to brief the merits of the hab eas petition, since the bulk of the briefing to date preceded the Second Circuit's decision in Lora. Those letters are due on or before June 3, 2016. It is SO ORDERED. (As further set forth in this Order.) (Signed by Judge Edgardo Ramos on 5/27/2016) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ARIEL DIAZ VARGAS,
Petitioner,

OPINION AND ORDER
15 Civ. 3525 (ER)

- against CHRISTOPHER DAVIES, in his official capacity as
Warden of the Bergen County Jail, CHRISTOPHER
SHANAHAN, in his official capacity as New York
Field Office Director for U.S. Immigration and Customs
Enforcement, JEH JOHNSON, in his official capacity
as Secretary of Homeland Security, LORETTA
LYNCH, in her official capacity as the Attorney
General of the United States, and U.S. DEPARTMENT
OF HOMELAND SECURITY,
Respondents.

Ramos, D.J.:
Ariel Diaz Vargas (“Petitioner”) moves pursuant to Federal Rule of Civil Procedure
15(a)(2) to amend his petition for writ of habeas corpus brought under 28 U.S.C. § 2241.
Respondents are the government officials and agency (the “Government”) responsible for
Petitioner’s current immigration-related detention. Petitioner’s motion to amend is GRANTED.
I. BACKGROUND
Petitioner is a native and citizen of the Dominican Republic. He entered the United
States in 1994 as a legal permanent resident. On February 9, 2015, U.S. Immigration and
Customs Enforcement (“ICE”) arrested Petitioner and commenced removal proceedings against
him, charging that Petitioner’s 2007 and 2008 drug convictions from rendered him removable
under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)–(B). See
Declaration of Shane Cargo (“Cargo Decl.”) (Doc. 26), Ex. C. The Government was required to

detain Petitioner while his removal proceeding was ongoing. See 8 U.S.C. § 1226(c)(1)(B). On
March 26, 2015, Petitioner moved to terminate the removal proceeding on the grounds that his
prior convictions were not categorically removable offenses under the INA. Proposed Amended
Petition for Writ of Habeas Corpus (“Am. Pet.”) (Doc. 23, Ex. 1) ¶ 25.
On May 5, 2015, while still detained by the Government, Petitioner filed his original
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this Court, seeking an order
requiring the Government to provide a bond hearing, in which the Government would bear the
burden of proving that Petitioner should remain detained pending removal. (Doc. 1).
The immigration judge (“IJ”) denied Petitioner’s motion to terminate the removal
proceeding on July 13, 2015, finding Petitioner was removable, but also finding that there was
insufficient evidence to establish his removability on the basis of an aggravated felony. See
Cargo Decl., Ex. D at 5. This latter conclusion was critical because it meant that Petitioner was
eligible to file a Cancellation of Removal for Lawful Permanent Residents under 8 U.S.C. §
1129(b)(a). Unfortunately, Petitioner’s counsel at the time overlooked this portion of the IJ’s
decision, informed the IJ that Petitioner had remaining avenues of relief, and accepted an order
of removal to the Dominican Republic on her client’s behalf on August 3, 2015. See Am. Pet. ¶
27; Cargo Decl., Ex. E. (removal order); Declaration of Luis Mancheno (“Mancheno Decl.”)
(Doc. 29), Ex. A (Notice to Reopen). Petitioner appealed the removal order to the Board of
Immigration Appeals (“BIA”), but the BIA denied the application on December 8, 2015. Cargo
Decl., Ex. F. Petitioner filed a petition for review and a motion for stay of removal in the United
States Court of Appeals for the Second Circuit on December 10, 2015. Cargo Decl., Ex. G.
Meanwhile, on October 28, 2015, the Second Circuit decided Lora v. Shanahan, 804 F.3d
601 (2d Cir. 2015). Like Petitioner in this case, Lora was a lawful permanent resident who was

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convicted for drug-related offenses, later arrested by ICE, and held in mandatory detention
pursuant to 8 U.S.C. § 1226(c) pending removal proceedings. Lora, 804 F.3d at 605. While in
immigration custody, Lora filed a writ of habeas corpus contending that his indefinite detention
under section 1226(c) without an opportunity to apply for bail violated his constitutional right to
due process. Id. The Second Circuit granted the petition and instituted a bright-line rule “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.” Id. at 616. The Lora Court further held “that the detainee
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.” Id. (citing the Ninth
Circuit’s similar holding in Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013)).
On December 9, 2015, Petitioner’s counsel informed this Court that, because of Lora, the
New York Immigration Court had scheduled a bond hearing for Petitioner on December 14,
2015, potentially mooting the original habeas petition filed on May 5, 2015. (Doc. 11). The
Court thus held the case in abeyance pending the outcome of the bond hearing. (Doc. 12).
The IJ held a bond hearing on January 12, 2016 (the “Bond Hearing”). The IJ denied the
bond orally at the conclusion of the hearing. See Mancheno Decl., Ex. B (“Tr.”) (unofficial
transcript of Bond Hearing provided by Bronx Defenders). The IJ’s decision was formally
recorded in a written memorandum issued on February 9, 2016. Cargo Decl., Ex. I (“IJ Bond
Op.”). In his written decision, the IJ described the requirements in Lora, purported to “apply”
those standards, and concluded that “the government has established by clear and convincing
evidence that [Petitioner] is both a flight risk and a danger to the community.” IJ Bond Op. at 2.
The IJ found that Petitioner was a flight risk “because there is a standing order of removal,

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notwithstanding motions to stay or reconsider that order of removal.” Id. The IJ further found
that Petitioner’s “history of serious drug-related criminal behavior” meant that he posed a danger
to the community, specifically noting six separate instances Petitioner was arrested between
2007 and 2014 for drug-related felonies and misdemeanors, resulting in convictions for one drug
felony and three drug misdemeanors, as well as two other non-drug misdemeanor convictions.
Id. at 3. The IJ also noted Petitioner’s representation that he would enter a rehabilitation
program, and Petitioner’s submissions of supportive family letters, employment records, and tax
payments, but found that this evidence did not “overcome the risk of flight and his extensive
prior criminal record.” Id. The IJ concluded that the facts before it—“the pending final order of
removal, the lack of an application for relief from removal, his significant drug-related criminal
record over seven years, and his general disregard and lack of respect for the law”—led to the
conclusion “that the government met its burden of proof by clear and convincing evidence that
[Petitioner] is a flight risk and a danger to the community.” Id. (citing Lora, 804 F.3d at 616).
On January 13, 2016, the day after the IJ orally denied the bond, Petitioner appealed the
IJ’s bond decision to the BIA, arguing that the Bond Hearing did not comply with Lora because
the IJ “gave undue weight to unreliable documents” and “failed to properly consider the rebuttal
evidence provided.” Cargo Decl., Ex. J at 2.
On January 28, 2016, Petitioner filed a motion to reopen his removal proceeding with the
BIA, alleging ineffective assistance of counsel based on prior counsel’s failure to note the IJ’s
rejection of the aggravated-felony evidence and counsel’s concomitant failure to move for
cancellation of removal. See Mancheno Decl., Ex. A.
Petitioner filed the instant motion to amend his habeas petition on February 5, 2016.
(Doc. 22). The proposed amended petition asserts two causes of action, both grounded in the

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Fifth Amendment’s guarantee of procedural due process—the first is based on the IJ’s alleged
failure to provide a procedurally adequate bond hearing under Lora, and the second is based on
the “prolonged” and ongoing nature of Petitioner’s detention. See Am. Pet. ¶¶ 31–44. Petitioner
now seeks a writ of habeas corpus ordering the Government to either (i) release Petitioner
immediately on his own recognizance or under parole, bond, or other reasonable condition of
supervision, or (ii) provide Petitioner with another bond hearing that properly applies the
procedural requirements and burden of proof set forth in Lora. Id. at pp. 18–19.
On April 1, 2016, Petitioner’s counsel was informed that the BIA was granting the
motion to reopen based on the claim of ineffective assistance of counsel, and remanding the case
to the immigration court. 1 (Doc. 31). Petitioner’s removal proceeding is thus still in active
litigation at the time of writing.
On April 25, 2016, the BIA denied Petitioner’s appeal of the Bond Hearing, affirming the
IJ’s denial of bond. 2 (Doc. 32, Ex. 1) (“BIA Bond Op.”). The BIA found that the IJ conducted
the Bond Hearing in accordance with Lora and agreed with the IJ’s finding that “the evidence is
clear and convincing that [Petitioner] presents a danger to the community.” BIA Bond Op. at 1.
The BIA noted that Lora did not purport to limit the type of evidence that may be considered by
an IJ, and found it appropriate for the IJ to rely on Petitioner’s RAP sheet and charging
instruments to consider both Petitioner’s convictions, which were “entitled to significant weight
and “probative of future dangerousness,” and Petitioner’s arrests and unarraigned charges, which
were “entitled to some weight in assessing dangerousness, with the understanding that the degree

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Though the Government originally opposed the instant motion by arguing that Petitioner was subject to a final
removal order and thus no longer eligible for a bond hearing under section 1226(c), the Government now concedes
that the BIA’s granting of the motion to reopen renders that argument moot. (Doc. 34).

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Though the Government originally opposed the instant motion by arguing that Petitioner should be forced to
exhaust his appeal before the BIA, the Government now concedes that the BIA’s affirmance of the Bond Hearing
renders that argument moot. (Doc. 34).

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of probability that the individual committed such offenses is not as great” as actual convictions.
Id. at 1–3. The BIA did not reach the issue of flight risk, and also declined Petitioner’s request to
remand the bond proceeding to the IJ based on the BIA’s grant of the motion to reopen the
removal proceeding. Id. at 3.
II. LEGAL STANDARD
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a party may amend its
pleading with leave of the Court, and that “[t]he court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). The standard is generally a “permissive” one that is
“consistent with [the Second Circuit’s] strong preference for resolving disputes on the merits.”
Williams v. Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011) (citation omitted). Leave to
amend, however, “may properly be denied if the amendment would be futile, as when the
proposed new pleading fails to state a claim on which relief can be granted.” Anderson News,
L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012) (citations omitted); see also Raju v.
Shanahan, No. 15 Civ. 7499 (RA), 2015 WL 7567455, at *3 (S.D.N.Y. Nov. 23, 2015). “The
adequacy of a proposed amended complaint to state a claim is to be judged by the same
standards as those governing the adequacy of a filed pleading.” Anderson News, 680 F.3d at
185. “The party opposing a motion to amend bears the burden of establishing that an
amendment would be futile,” and an “amendment is not ‘futile’ if it could withstand a motion to
dismiss under Rule 12(b)(6).” Simon v. City of New York, No. 14 Civ. 8391 (JMF), 2016 WL
1587244, at *1 (S.D.N.Y. Apr. 19, 2016) (citations omitted).
To survive a Rule 12(b)(6) motion, the plaintiff must plead sufficient facts “to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A newly proposed claim is facially plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). In deciding the motion, the Court “must accept the facts alleged by the party seeking
amendment as true and construe them in the light most favorable to that party.” Simon, 2016
WL 1587244, at *1 (citing Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 604 (2d
Cir. 2005)).
III. DISCUSSION
The Government first argues that the Court does not have subject matter jurisdiction over
the Amended Petitioner’s first cause of action, because that claim would require the Court to
review the IJ’s “discretionary judgment” regarding the “denial of bond,” which is prohibited by
8 U.S.C. § 1226(e). 3 “Although 8 U.S.C. § 1226(e) bars judicial review of certain ‘discretionary
judgment[s],’ that section does not deprive the Court of jurisdiction over [petitioner’s]
constitutional and statutory challenges to his detention.” Gordon v. Shanahan, No. 15 Civ. 261
(JGK), 2015 WL 1176706, at *2 (S.D.N.Y. Mar. 13, 2015) (citing Demore v. Kim, 538 U.S. 510,
517 (2003); Louisaire v. Muller, 758 F. Supp. 2d 229, 234 (S.D.N.Y. 2010)); see also Hassan v.
Holder, No. 11 Civ. 7157 (LGS), 2014 WL 1492479, at *9 (S.D.N.Y. Apr. 15, 2014) (“While,
under 8 U.S.C. § 1226(e), federal jurisdiction over 28 U.S.C. § 2241 habeas petitions ‘does not
extend to review of discretionary determinations by the IJ and the BIA,’ jurisdiction does
properly extend to review of ‘purely legal statutory and constitutional claims.’”) (quoting Chen
v. U.S. Dep’t of Justice, 434 F.3d 144, 153 n.5 (2d Cir. 2006)). Thus, while the Court “lacks
jurisdiction to review the weight assigned to evidence presented at Petitioner’s bond hearing or

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“The 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 alien or the grant, revocation, or denial of bond or parole.” 8 U.S.C. § 1226(e).

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any other discretionary determinations of the IJ, the Court has jurisdiction over any constitutional
claim that Petitioner may be raising regarding his detention hearing, such as a claim that the
conduct of that hearing violated his due process rights.” Hassan, 2014 WL 1492479, at *9
(citing Hamilton v. Shanahan, No. 09 Civ. 6869 (SAS), 2009 WL 5173927, at *3 (S.D.N.Y. Dec.
30, 2009)).
Drawing all reasonable inferences in Petitioner’s favor, and mindful of the liberal Rule
15(a)(2) standard, the Court will permit Petitioner to amend. But the Government’s implicit
argument that the amended claim lacks merit is not without force. It appears that the IJ expressly
discussed and applied the Lora standard, putting the burden on the Government to prove danger
or flight risk by clear and convincing evidence. See IJ Bond Op. at 2. 4 And while Petitioner’s
claim turns in part on the proposition that a past criminal record, standing alone, can never
establish danger to the community by clear and convincing evidence, Lora does not prohibit IJs
from assessing the totality of a detainee’s prior criminal history, including arrests and
unarraigned charges, in determining danger to the community. To the extent Petitioner simply
asks the Court to second-guess the IJ’s weighing of the evidence, that would not go beyond a
mere challenge to the IJ’s discretion or sufficiently state a constitutional claim, and Petitioner
would lose on the merits. See Palaniandi v. Jones, No. 15 Civ. 4021 (RA), 2016 WL 1459607,
at *1 (S.D.N.Y. Mar. 10, 2016); Alvarez v. Shanahan, No. 15 Civ. 9122 (RA) (AJP), 2016 WL
873129, at *2 (S.D.N.Y. Mar. 7, 2016); cf. Rone v. Shanahan, No. 15 Civ. 9063 (AKH), 2016
WL 1047393, at *3, 7–8 (S.D.N.Y. Mar. 10, 2016) (ordering new Lora hearing where IJ
expressly considered whether to apply the Lora standard and wrongly refused to do so based on
status of petitioner’s detention). Nevertheless, Petitioner may have a viable constitutional claim

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The unofficial transcript provided by Bronx Defenders bears out the same conclusion. See, e.g., Tr. at 6:1–2, 9:7–
13, 13:28–14:5.

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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. See Cepeda
v. Shanahan, No. 15 Civ. 9446 (AT) 2016 U.S. Dist. LEXIS 61661, *6–7 (S.D.N.Y. Apr. 22,
2016) (“To the extent Cepeda complains that his bond hearing was constitutionally deficient—
that is, that the government's evidence could not, as a matter of law, establish clearly and
convincingly that Cepeda was dangerous, and therefore he was not accorded the process he
is due—he can seek redress from this Court.”); compare also Sinsaeng v. Lynch, No. 15 Civ. 701
(SRB), 2016 WL 1752953, at *3 (D. Ariz. May 3, 2016) (“These facts provide clear and
convincing evidence for a dangerousness finding. Therefore, the record establishes that
Petitioner’s December 2012 Casas bond hearing was legally sufficient, and his continued
detention does not violate statutory or constitutional law.”), and Becerra-Jaime v. Clark, No. 15
Civ. 1849 (JLR) (JPD), 2016 WL 1211852, at *2 (W.D. Wash. Mar. 1, 2016) (finding that IJ
relied on sufficient evidence to deny bond under standard functionally equivalent to Lora),
report and recommendation adopted, 2016 WL 1248977 (W.D. Wash. Mar. 25, 2016), with
Singh v. Holder, 638 F.3d 1196, 1205 (9th Cir. 2011) (remanding and instructing IJ to reweigh
evidence of dangerousness under newly adopted clear-and-convincing standard), and Judulang v.
Chertoff, 562 F. Supp. 2d 1119, 1127 (S.D. Cal. 2008) (“The evidence before the IJ failed, as a
matter of law, to prove flight risk or danger pursuant to the Court’s order. Accordingly, under the
facts of this case, Petitioner’s continued detention is not authorized by statute.”). Rather than
prohibit Petitioner from even attempting to prove such a claim, and given the absence of delay or
prejudice to the Government, the Court opts in favor of permitting amendment and reserving
judgment for final resolution on the merits.

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