Argueta Anariba v. Shanahan et al
Filing
49
OPINION AND ORDER: re: 41 THIRD MOTION to Compel Respondents to release Petitioner. filed by Angel A Argueta Anariba. Having considered the other arguments raised in Argueta's third motion to compel release, the Court finds them similarly unavailing. For those and the other reasons stated above, the Court therefore DENIES Argueta's motion to compel release. For the reasons stated above, the Court DENIES petitioners third motion to compel his release at ECF No. 41. The Clerk of Court is directed to terminate all open motions and terminate this action. So Ordered. (Signed by Judge Katherine B. Forrest on 12/14/2017) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ANGEL AGUSTIN ARGUETA ANARIBA,
:
:
Petitioner,
:
:
-v:
:
CHRISTOPHER SHANAHAN, et al.,
:
:
Respondents. :
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KATHERINE B. FORREST, District Judge:
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: December 14, 2017
16-cv-1928 (KBF)
OPINION & ORDER
This matter is now before this Court for the fourth and final time on
petitioner Angel Agustin Argueta Anaribia’s (“Argueta” or “petitioner”) claim that
he has been deprived of his right to an adequate bond hearing under Lora v.
Shanahan, 804 F.3d 601 (2d Cir. 2015). As of the date of this opinion, Argueta has
been detained by Immigration and Customs Enforcement (“ICE”) for approximately
three years.
Argueta’s motion to compel his release once again argues that respondents
have not provided him with an adequate Lora hearing because the Immigration
Judge (“IJ”) failed to apply the appropriate “clear and convincing” legal standard in
an individualized analysis of his future dangerousness and/or risk of flight. (See
generally Mem. of Law in Supp. of Mot. to Compel Pet.’s Release (“Pet. Mem.”), ECF
No. 42.) This Court disagrees. For the reasons stated below, the Court hereby
DENIES Argueta’s petition in full.
I.
BACKGROUND
The Court assumes familiarity with the relevant facts of this matter, which
are discussed in its decisions at ECF Nos. 10, 25, and 39. The Court refers the
reader to those opinions for the facts underlying Argueta’s unauthorized entry,
criminal history, immigration detention, and efforts to compel release in this Court.
Below, the Court briefly reviews those facts most relevant to resolution of the
current petition.
On June 2, 2016, this Court held that Argueta qualified for a Lora hearing.
(ECF No. 10.) After a hearing was held in his absence on June 21, 2016, Argueta
filed a motion to compel release on the basis that his unwilling absence rendered
that Lora hearing procedural improper. (ECF Nos. 12-14.) This Court agreed that
the hearing was procedurally deficient, and ordered that the Government provide
Argueta with an adequate Lora hearing within twenty days or release him. (ECF
No. 25.) Accordingly, a second Lora hearing was held on November 7, 2016;
Argueta appeared by video conference.
During the November 7, 2016 hearing, the IJ ruled on the record that “the
Government has met its burden of proof that [Argueta] is a danger to the
community and a flight risk.” (Nov. 7, 2016 Trans. At 14:3-5.) On February 12,
2017, Argueta filed a second motion to compel release on the basis that the IJ did
not properly hold the Government to the requisite “clear and convincing” burden of
proof. (ECF No. 28-30.) Noting that the IJ did not issue a written decision and did
not mention or discuss Lora’s clear and convincing standard at any point during the
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November 7, 2016 hearing, this Court agreed with Argueta and remanded the
action to the IJ “for an expeditious clarification of the standard applied an
individualized analysis of that standard’s application here.” (ECF No. 39.)
On August 16, 2017, the IJ issued a Memorandum Decision in compliance
with this Court’s directive. (See generally Mem. Dec. of the IJ (“IJ Bond Dec.”),
ECF No. 40.) Therein, the IJ clearly and unequivocally recognized that “the
government bears the burden to establish ‘by clear and convincing evidence that the
immigrant poses a risk of flight or a risk of danger to the community.’” (Id. at 2-3
(citing Lora, 804 F.3d at 612).) The IJ then provided a complete and thorough
analysis of the evidence regarding Argueta’s conduct before, during, and after his
imprisonment, and concluded that “DHS has established by clear and convincing
evidence that [Argueta] is a risk of danger to the community, a ‘specially dangerous
individual’ and a flight risk.” (Id. at 2.)
In response, Argueta filed a third motion to compel his release on October 23,
2017. (ECF Nos. 41-42.) Argueta’s petition argues, in sum and substance, that the
IJ’s written decision fails to properly apply the requisite “clear and convincing”
standard in determining whether Argueta is a danger to the community and/or
flight risk. (See Pet. Mem. at 6.) The heart of Argueta’s argument is that the IJ:
(1) did not properly explain how he applied the “clear and convincing standard”
(stating instead that he “assigned greater weight” to Argueta’s “violent behavior”
and “lesser weight” to Argueta’s rehabilitation efforts); (2) did not address any of
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the factors that should be weighed; and (3) did not adequately consider evidence of
Argueta’s recent rehabilitation. (Id. at 6-8.)
The Government opposed Argueta’s petition for release on November 21,
2017 (ECF No. 45), and Argueta replied on December 5, 2017 (ECF No. 48). For the
reasons stated below, the Court concludes that the IJ properly applied the requisite
legal standard under Lora, that there are no grounds to second guess the IJ’s
findings or conclusions, and that Argueta’s petition for release must be denied on
that basis.
II.
LEGAL PRINCIPLES
“The Due Process Clause applies to all ‘persons’ within the United States,
including aliens, whether their presence is lawful or unlawful, temporary or
permanent.” Lora, 804 F.3d at 613 (quoting Zadvydas v. Davis, 533 U.S. 678, 693
(2001)). It is well-settled that “the Fifth Amendment entitles aliens to due process
in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). In Lora, the
Second Circuit held that “in order to avoid the constitutional concerns raised by
indefinite detention, an immigrant detained pursuant to section 1226(c) must be
afforded a bail hearing before an immigration judge within six months of his or her
detention.” 804 F.3d at 616.
Constitutional due process requires that a person detained pursuant to 8
U.S.C. § 1226(c) “must be admitted to bail unless the government establishes by
clear and convincing evidence that the immigrant poses a risk of flight or a risk of
danger to the community.” Lora, 804 F.3d at 616; see also Rodriguez v. Robbins,
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715 F.3d 1127, 1144 (9th Cir. 2013) (“[B]ond hearings must be held before a neutral
IJ with the government bearing the burden of proof by clear and convincing
evidence.”); Singh v. Holder, 638 F.3d 1196, 1203-04 (9th Cir. 2011) (“Because it is
improper to ask the individual to ‘share equally with society the risk of error when
the possible injury to the individual’—deprivation of liberty—is so significant, a
clear and convincing evidence standard of proof provides the appropriate level of
procedural protection.” (quoting Addington v. Texas, 441 U.S. 418, 427 (1979)).
A district court will not second-guess an IJ’s decision “with respect to the
appropriate weight to be assigned to the evidence presented at his bond hearing.”
Hassan v. Holder, No. 11-cv-7157, 2014 WL 142479, at *9 (S.D.N.Y. Apr. 15, 2017).
However, failure to apply the correct legal standard and to hold the government to
its burden of proof renders a bond hearing “constitutionally deficient” under Lora.
See Cepeda v. Shanahan, No. 15-cv-9446, 2016 WL 3144394, at *2 (S.D.N.Y. Apr.
22, 2016); Vargas v. Davies, No. 15-cv-3525, 2016 WL 3044850, at *4 (S.D.N.Y. May
27, 2017) (“Petitioner may have a viable constitutional claim to the extent he is
asserting that the IJ effectively failed to apply a clear-and-convincing standard by
relying on evidence that can never alone satisfy that standard as a matter of law.”).
It is particularly important that the Government be held to the “clear and
convincing” burden of proof in the immigration detention context because civil
removal proceedings, unlike criminal proceedings, “are nonpunitive in purpose and
effect.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001); see also Cooper v. Oklahoma,
517 U.S. 348, 363 (1996) (“[D]ue process places a heightened burden of proof on the
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State in civil proceedings in which the ‘individual interests at stake . . . are both
particularly important and more substantial than mere loss of money.’” (quoting
Santosky v. Kramer, 455 U.S. 745, 756 (1982)). Due process requires an
individualized determination of a detainee’s risk of flight and future dangerousness.
Demore v. Kim, 539 U.S. 510, 531 (2003) (Kennedy, J., concurring) (“[D]ue process
requires individualized procedures to ensure there is at least some merit to [the
Government’s] charge[.]”). Detention on the basis of dangerousness in civil
immigration proceedings is appropriate “only when limited to specially dangerous
individual and subject to strong procedural protections.” Zadvydas, 533 U.S. at 691.
III.
DISCUSSION
The sole issue here is whether the IJ correctly applied the “clear and
convincing” legal standard under Lora to his determination that Argueta is “a risk
of danger to the community, a ‘specially dangerous individual’ and a flight risk.” (IJ
Bond Dec. at 2.) If so, the Court has no reason to second guess or disturb the IJ’s
conclusions. See Hassan, 2014 WL 142479, at *9 (holding that a district court will
not second-guess an IJ’s decision “with respect to the appropriate weight to be
assigned to the evidence presented at his bond hearing”). Having carefully
reviewed the IJ’s written decision and the evidence before him, the Court concludes
that the IJ clearly identified and properly applied the “clear and convincing”
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standard as directed, and that there is no basis to disturb his conclusion regarding
Argueta’s risk of danger and/or flight.1
In concluding that Argueta is a “specially dangerous individual”, the IJ
considered Argueta’s seven-year history of criminal conduct from 2001-2007. (See
IJ Bond Dec. at 3.) In 2008, Argueta was convicted of aggravated assault while
armed and carrying a dangerous weapon after he “approached [a] victim and
stabbed him on his head with a folding pocket knife.” (Id.) “The entire blade of the
knife entered the victim’s head” and multiple eyewitnesses reported that Argueta
“fled the scene” after the attack. (Id.) The IJ stated that he was “deeply concerned”
by this dangerous behavior, and noted that the attack was done with “such force
that the entire blade of the knife broke through the victim’s skull.” (Id.) The IJ
further noted that Argueta “ha[d] other criminal issues” during the seven-year
period from 2001-2007, including “drunk driving and making a terroristic threat.”
(Id.) According to the IJ, these violations demonstrated a “propensity to commit
serious criminal offenses” and Argueta’s “pattern of behavior became more and
more dangerous over time.” (Id. at 3-4.)
Argueta argues that the IJ “considered only [his] criminal record”, and “[did]
away with consideration of any and all factors other than criminal activity.” (See
Pet. Mem. at 7 (emphasis added).) According to Argueta, this renders the IJ’s
As discussed infra, the IJ correctly noted that it was “not necessary for DHS to establish that
[Argueta] poses a flight risk” given the IJ’s conclusion regarding risk of dangerousness. (IJ Bond
Dec. at 4.) Due process only requires that the government establish by clear and convincing evidence
“that the immigrant poses a risk of flight or a risk of danger to the community.” Lora, 804 F.3d at
616 (emphasis added).
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ultimate conclusion “unreasonable”, because he failed to take into account the
potential reasons for Argueta’s criminal behavior or the substantial evidence of
rehabilitation since then, and did not conduct “an individualized, prospective
assessment as to whether Mr. Argueta poses a risk of danger.” (Id. at 7-8.)
But Argueta’s characterization of the IJ’s decision is incorrect. In fact, the IJ
clearly considered evidence submitted by Argueta to “rebut the showing of
dangerousness”, including inter alia the fact that he: (1) “did not incur any
disciplinary infractions while incarcerated and had no history of domestic violence”;
(2) took part in various educational programs while in detention; (3) had serious
medical conditions; (4) has a U.S. citizen son who resides in the U.S. with his
biological mother. (IJ Bond Dec. at 3.) The IJ weighed that evidence, but
reasonably concluded that Argueta’s good behavior in a controlled environment was
“very substantially outweigh[ed]” by the nature and extent of his “very serious
criminal record”, and that the evidence as a whole “strongly indicates that [Argueta]
will be a danger to the public if he is released from detention.” (Id. at 3-4.) The IJ
then specifically concluded that “DHS met its burden by clear and convincing
evidence to establish that [Argueta] poses a risk of danger to the community.” (Id.
at 4.) Argueta has every right to disagree with the IJ’s weighing of the evidence,
but it is simply untrue that the IJ failed to consider evidence other than his prior
criminal record.
As for risk of flight, the IJ correctly noted that it was “not necessary for DHS
to establish that [Argueta] poses a flight risk” because they carried their burden
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with respect to risk of danger. (Id. at 4.) Nonetheless, the IJ reasonably concluded,
based on the record evidence, that the Government carried its burden of providing
by “clear and convincing” evidence that Argueta poses a flight risk. The IJ pointed
specifically to the fact that Argueta: (1) “has shown a tendency of disregarding the
laws of the U.S.”; (2) had already been denied asylum and withholding of removal;
and (3) was extremely unlikely to succeed in his application for U visa given his
history of violent crimes. (Id. at 4.) Argueta may disagree with the IJ’s decision
regarding his risk of flight, but the Court easily concludes it is supported by “clear
and convincing” evidence.
In reality, Argueta’s petition seeks to relitigate the merits of his immigration
status before this Court. (See, e.g., Pet. Mem. at 10-14 (arguing that the record
evidence does not “clearly and convincingly” establish that Argueta poses a risk of
danger and/or flight).) But as previously noted, this Court will not disturb the IJ’s
careful and thorough analysis of the record evidence assuming that he applied the
correct legal standard. It is eminently clear that he did.
Having considered the other arguments raised in Argueta’s third motion to
compel release, the Court finds them similarly unavailing. For those and the other
reasons stated above, the Court therefore DENIES Argueta’s motion to compel
release.
IV.
CONCLUSION
For the reasons stated above, the Court DENIES petitioner’s third motion to
compel his release at ECF No. 41.
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The Clerk of Court is directed to terminate all open motions and terminate
this action.
SO ORDERED.
Dated:
New York, New York
December 14, 2017
______________________________________
KATHERINE B. FORREST
United States District Judge
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