Argueta Anariba v. Shanahan et al

Filing 25

OPINION & ORDER re: 12 FIRST MOTION to Compel Respondents to Release Petitioner. filed by Angel A Argueta Anariba. For the reasons set forth above, a Lora hearing shall be held at which petitioner is present (either physically or via video-conference) within 20 days. If such hearing is not held pursuant to this Order, petitioner shall be immediately released from custody. The Clerk of Court shall terminate the motion at ECF No. 12 and shall terminate this action. (Signed by Judge Katherine B. Forrest on 10/18/2016) (cla)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ANGEL AGUSTIN ARGUETA ANARIBA,
:
:
Petitioner,
:
:
-v:
:
CHRISTOPHER SHANAHAN; SCOTT
:
MECHKOWSKI; JEH JOHNSON; and
:
LORETTA LYNCH, each in his/her official
:
capacity,
:
:
Respondents. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: October 18, 2016

16-cv-1928 (KBF)
OPINION & ORDER

KATHERINE B. FORREST, District Judge:
The motion before this Court raises a single important question: whether
petitioner had a right to be present at a bail hearing this Court ordered pursuant to
Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015).1 The answer is yes. Accordingly,
the hearing regarding petitioner’s bail application held on June 21, 2016, at which
he was not present, was procedurally deficient. This Court now orders that such a
hearing be held within 20 days from the date of this order or he shall be
immediately released from custody.

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Petitioner raises a second question – whether, even assuming procedural propriety of the hearing, the evidence
supports continued detention. As this Court finds the hearing was procedurally improper, it declines to address the
second question. Similarly, the Government asserts that this motion must be dismissed on the basis that petitioner
has failed to exhaust his administrative remedies. That argument also assumes the procedural propriety of the
June 21 hearing. As no procedurally proper Lora hearing has yet been held, that argument is without merit. The
Government has still not complied with the directives in this Court’s June 2, 2016, opinion and order. (ECF
No. 10.)

I.

BACKGROUND TO THE INSTANT APPLICATION

The facts relating to petitioner’s detention and the procedural history of this case
are set forth in detail in this Court’s Opinion & Order dated June 2, 2016. (ECF
No. 10.) The Court repeats only those facts necessary to establish the context of
this motion. The Court is primarily concerned with what occurred at the hearing
held on June 21, 2016, and refers the reader to its prior decision for additional
factual background.
Argueta is a native and citizen of Honduras who entered this country without
authorization in 1998. His criminal record has three relevant entries: He was
arrested and 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. For the latter offense he
was sentenced to 96 months imprisonment.
Argueta served his sentence without incident, and he was released from that
sentence in December 2014. He was transferred directly to the custody of the
Department of Homeland Security (“DHS”) and placed into removal proceedings.
DHS charged Argueta with inadmissibility under two subparts of 8 U.S.C. § 1182:
(a)(2)(A)(i)(I), which bans admission of an alien convicted of a crime involving moral
turpitude; and (a)(6)(A)(i), which bans admission of an alien present in the United
States without having been admitted or paroled. DHS also determined that he was

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subject to mandatory detention during removal proceedings pursuant to 8 U.S.C.
§ 1226(c).
Argueta contested his inadmissibility on crime-of-moral-turpitude grounds,
but admitted his inadmissibility as an alien present without having been admitted
or paroled. However, he applied for Withholding of Removal and protection under
the Convention Against Torture (“CAT”). On June 2, 2015, the Immigration Judge
(“IJ”) assigned to Argueta’s case denied his application for relief in a written
decision. Argueta appealed the IJ’s decision to the Board of Immigration Appeals
(“BIA”), which upheld the IJ’s decision and dismissed Argueta’s appeal on October
8, 2015. At that point Argueta’s 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.
Argueta filed a Petition for Review of the BIA’s decision before the Second
Circuit on October 16, 2015. He simultaneously filed a Motion for a Stay of
Removal. The government has opposed both Argueta’s Petition for Review and his
Motion for a Stay; both are currently pending before the Second Circuit. This
posture brings him within the “forbearance policy” in effect in the Second Circuit.
This policy, discussed further below, provides that U.S. Immigration and Customs
Enforcement (“ICE”) will not remove a detainee while judicial proceedings are
pending. See, e.g., In re Immigration Petitions for Review, 702 F.3d 160, 162 (2d
Cir. 2012).

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On December 21, 2015, Argueta filed a motion for a bond hearing, citing as
authority the Second Circuit’s October 28, 2015, decision in Lora. His hearing was
originally scheduled for January 20, 2016. On December 29, 2015, Argueta filed a
petition for U Nonimmigrant Status with United States Citizenship and
Immigration Services (“USCIS”). A U visa is one set aside for victims of certain
crimes who have suffered mental or physical abuse and provide assistance to
investigations or prosecution of criminal activity. 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. 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). Argueta’s petition is pending before USCIS.
On December 29, 2015, ICE commenced a Post-Order Custody Review
(“POCR”). ICE issued a written Decision to Continue Detention on January 5, 2016,
which briefly explained that the reasoning behind its decision was four-fold:
Argueta’s criminal history made him a risk to the well-being of the public; his lack
of money, equities, or property in the United States made him a flight risk; his
removal was expected in the reasonably foreseeable future; and he was an
enforcement priority under a November 2014 directive of the Secretary of DHS.
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. The parties expressed their disagreement over Argueta’s entitlement to a
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bond hearing, and the IJ asked the parties to brief the issue. On March 15, 2016,
the parties again met before the IJ, who ruled that he did not have jurisdiction to
hold a bond hearing because, in his determination, Argueta was in custody
pursuant to 8 U.S.C. § 1231, rather than 8 U.S.C. § 1226. The same day, Argueta
filed the instant habeas petition challenging the IJ’s ruling under 28 U.S.C. § 2241,
which authorizes a district court to issue a writ to anyone in custody in violation of
the Constitution or law or treaties of the United States.
On June 2, 2016, this Court found that petitioner qualified for a Lora
hearing. A hearing was held on June 21, 2016. (ECF No. 21-1.) At the
commencement of the hearing, counsel for petitioner objected to her client not being
present. (Id. at 3.) A discussion ensued during which counsel for petitioner and the
Immigration Law Judge (“ILJ”) had the following exchange:
Ms. Ostolaza: Well, Your Honor, he has a right to be present at the
hearing.
The Court: I agree.
(Id.) The Court then continued, “I believe he does have a right to be here. My
preference is to have him here. How do you both want to proceed?” (Id. at 4.)
Counsel for petitioner stated that she was willing to proceed without his presence
unless the Court believed that the Government had carried its burden of
demonstrating continued detention was appropriate; she expressed confidence that
the evidence would not support such a showing. (Id.) She stated clearly that should
the Court believe the Government had carried its burden, she would want to revisit

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the question of the petitioner’s presence. (Id.) The Government expressed a desire
to proceed. (Id.)
The hearing ensued. The main thrust of the Government’s argument was
that continued detention was appropriate in light of petitioner’s criminal history,
and “given that he’s spent the last – in recent years in detention, he can’t show any
type of rehabilitation” and that the status of his deportation proceedings made him
a flight risk. (Id. at 5.) The Government did not present any additional evidence.
Counsel for petitioner discussed that a purpose of the American criminal justice
system is to provide rehabilitation; and that the Government’s argument either
ignored this purpose or assumed total failure generally (the Government provided
no proof as to petitioner specifically). Counsel for petitioner then presented
evidence that petitioner had not incurred any disciplinary infractions during his
time in custody, and that his time in immigration custody was in all events not
supposed to be punitive. She also presented evidence that petitioner had a
significant medical history that would impact his ability to pose an ongoing danger
to the community. (Id. at 6-7.)
The ILJ denied the bail application. (Id. at 12).
I.

LEGAL PRINCIPLES
Due process imposes constraints on governmental decisions that deprive

individuals of liberty interests within the meaning of the Due Process Clause of the
Fifth Amendment. U.S. Const. amend. V; Mathews v. Eldridge, 424 U.S. 319, 333
(1976). The right to be heard before suffering a serious loss “is a principle basic to
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our society” and “specifically to its democratic commitment to ‘fairness.’” U.S. v.
Abuhamra, 389 F.3d 309, 322 (2d Cir. 2004) (quoting Joint Anti-Fascist Refugee
Comm. v. McGrath, 341 U.S. 123, 168, 170 (1951) (Frankfurter, J., concurring)).
“Fairness of procedure [] is the essence of due process.” Abuhamra, 389 F.3d
at 22 (citing Joint Anti-Fascist Refugee Comm., 341 U.S. at 161). “[N]o person shall
be deprived of his liberty without opportunity, at some time, to be heard.” The
Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86, 101 (1903).
“Particularly where liberty is at stake, due process demands that the individual and
the government each be afforded the opportunity not only to advance their
respective positions but to correct or contradict arguments or evidence offered by
the other.” Abuhamra, 389 F.3d at 322.
The Supreme Court has held that even when a defendant “is not actually
confronting witnesses or evidence against him, he has a due process right ‘to be
present in his own person whenever his presence has a relation, reasonably
substantial, to the fullness of his opportunity to defend against the charge.’”
Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts,
291 U.S. 97, 105-06 (1934).
“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
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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.
II.

DISCUSSION
The Due Process Clause entitled the petitioner to be present at his bail

hearing. He was not. His lawyer timely objected. There is no evidence in the record
that the defendant himself waived his presence. 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.
The 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.
III.

CONCLUSION
For the reasons set forth above, a Lora hearing shall be held at which

petitioner is present (either physically or via video-conference) within 20 days. If
such hearing is not held pursuant to this Order, petitioner shall be immediately
released from custody.
The Clerk of Court shall terminate the motion at ECF No. 12 and shall

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terminate this action.
SO ORDERED.
Dated:

New York, New York
October 18, 2016

______________________________________
KATHERINE B. FORREST
United States District Judge

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