Nguti v. Lynch et al

Filing 31

DECISION AND ORDER that the claims raised in petitioner's status report are dismissed, as specified. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 11/29/2017. (CMD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
EDWIN FRU NGUTI,
Petitioner,
v.

16-CV-6703
ORDER

JEFFERSON B. SESSIONS III, Attorney
General of the United States; JOHN F.
KELLY, Secretary of the Department of
Homeland Security; THOMAS P.
BROPHY, Acting Field Office Director,
Buffalo Field Office, Enforcement and
Removal Operations, U.S. Immigration
and Customs Enforcement; and JOSEPH
KOSAN, Acting Facility Director, Buffalo
Federal Detention Facility,
Respondents.
___________________________________

The petitioner, Edwin Fru Nguti, is a civil immigration detainee currently held at
the Buffalo Federal Detention Facility. On October 27, 2016, he filed a petition for a writ
of habeas corpus under 28 United States Code Section 2241, arguing that he was being
detained in violation of the Constitution or laws of the United States. Docket Item 1. On
November 17, 2016, he filed an amended petition. Docket Item 3. This Court
(Hon. David G. Larimer) ordered the government to respond, and the government did so
on December 22, 2016. Docket Items 6 & 7. On March 31, 2017, this case was
transferred from Judge Larimer to the undersigned. Docket Item 9.
On May 2, 2017, this Court found that Nguti had been detained under 8 United
States Code Section 1226(a) for longer than six months and therefore was entitled to a
bond hearing under Lora v. Shanahan, 804 F.3d 601 (2d. Cir. 2015). Nguti v. Sessions,

2017 WL 1653030, at *6 (W.D.N.Y. May 2, 2017) ("the proposition that a [Section]
1226(a) detainee, after prolonged detention, ought to receive the same Lora bond
hearing as a [Section] 1226(c) detainee strikes this Court as relatively uncontroversial").
For that reason, this Court ordered that "within one week of the date of the order, the
government must provide Nguti a Lora hearing before an Immigration Judge." Id. at *7;
Docket Item 12. A week later, Immigration Judge John B. Reid presided over a bond
and custody redetermination hearing for Nguti. Docket Item 21-1. At the conclusion of
the hearing, Judge Reid found that the government established, by clear and convincing
evidence, that Nguti is a danger to the community based on his three prior DUI
convictions. Judge Reid therefore ordered that Nguti remain in custody without bond.
Id. at 16.
A week after the hearing, the government filed a sworn affidavit describing how it
had complied with the terms of this Court's order of May 2, 2017. Docket Item 14.
About two months later, however, Nguti disagreed and filed a status report alleging that,
as a matter of law, the government had failed to comply with the order. Docket Item 21.
At a status conference held on July 20, 2017, the Court heard from both sides and set a
briefing schedule to allow the government to respond to Nguti's status report. Docket
Item 24. On August 4, 2017, the government responded. Docket Item 25. And on
October 6, 2017, Nguti replied. 1 Docket Item 30.

1

Nguti also appealed Judge Reid's order to the Board of Immigration Appeals

("BIA").
2

DISCUSSION
In his status report, Nguti argues that the evidence upon which Judge Reid relied
could not possibly have met the government's burden to establish, by clear and
convincing evidence, that Nguti is a danger to the community. Docket Item 21. Not
surprisingly, the government disagrees. Docket Item 25.
Because this Court's May 2, 2017 order was a conditional order, it required the
government to comply with its terms, principally to provide Nguti with a Lora hearing and
file a status report. Docket Item 12. If the government did not comply, Nguti would be
afforded further habeas relief. See Enoh v. Sessions, 2017 WL 2080278, at *2
(W.D.N.Y. May 15, 2017).
In reviewing the government's compliance with the May 2, 2017 order, this Court
is careful not to overstep its bounds and set aside an immigration judge's bond
determination on discretionary or evidentiary grounds. Such action would violate
8 United States Code Section 1226(e), which precludes the court from "set[ting] aside
any action or decision . . . under this section regarding . . . the grant, revocation, or
denial of bond or parole." 8 U.S.C. § 1226(e); see Demore v. Kim, 538 U.S. 510, 51617 (2003); see also Hamilton v. Shanahan, 2009 WL 5173927, at *3 (S.D.N.Y. Dec. 30,
2009), ("Section 1226(e) specifically divests this Court of jurisdiction to review the
decisions of the [immigration judge] and the BIA (acting on behalf of the Attorney
General) regarding detention of aliens under section 1226. Additionally, the Court lacks
jurisdiction to review the [immigration judge]'s and the BIA's discretionary
determinations. Accordingly, this Court lacks jurisdiction over [the detainee's petition] to
the extent it asks the Court to review the weight that the [immigration judge] or BIA
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assigned the evidence or any other discretionary determinations the [immigration judge]
or BIA made . . . ."). On the other hand, this Court indeed has the jurisdiction to ensure
that Nguti was given the bond hearing to which he was entitled. See, e.g., Enoh, 2017
WL 2080278, at *2.
This Court's preliminary order in Enoh v. Sessions, which required the
government to provide a Lora hearing to a detainee held longer than six months, was
virtually identical to the Court's order here. See id. at *1. In Enoh, this Court found that
the detainee had not received the hearing to which he was entitled because the
evidence upon which the immigration judge relied could not possibly—as a matter of
law—have constituted clear and convincing proof of the detainee's danger or flight risk.
Indeed, the evidence cited by the immigration judge were simply facts recited in this
Court's prior decision—second- and third-hand facts that this Court relied upon as
background but did not find by a preponderance of the evidence, let alone by clear and
convincing evidence. For that reason this Court concluded that the detainee could not
possibly have been given the hearing to which he was entitled and ordered his release.
Id. at *8-10.
This Court is not the first to consider whether a detainee has received the
required bond hearing to which he was entitled. The Southern District of California, in
Judulang v. Chertoff, found that the evidence upon which the immigration judge relied
could not possibly—as a matter of law—have constituted clear and convincing proof
that the detainee was a danger to the community and similarly ordered the detainee
released. 562 F. Supp. 2d 1119, 1126 (S.D. Cal. 2008). Similarly, in Cepeda v.
Shanahan, 2016 WL 3144394, *2 (S.D.N.Y. Apr. 22, 2016), the Southern District of New

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York considered the constitutionality of a detainee's bond hearing. In Cepeda, the court
clearly and succinctly articulated the difference between reviewing an immigration
judge's determination for constitutional soundness—a determination to which a
petitioner is entitled, as opposed to evidentiary soundness—a determination beyond the
jurisdiction of district courts:
To the extent [the petitioner] 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 [the petitioner]
was dangerous, and therefore he was not accorded the process he is due—
he can seek redress from this Court.
Id. (emphasis added) (citations omitted).
So the question here is not whether this Court believes that the proof establishes,
by clear and convincing evidence, that Nguti is a danger to the community. Rather, the
question is whether the immigration judge relied upon proof that could not possibly
establish by clear and convincing evidence—as a matter of law—that Nguti is a danger
to the community.
Here, Judge Reid considered and addressed the actual evidence of Nguti's prior
convictions, as well as the evidence in mitigation presented by Nguti. 2 The transcript—
filed with Nguti's status report—shows the following: Judge Reid presided over the
hearing; Nguti spoke during the hearing; the government submitted police documents—
an I-213 and a National Crime Information Center "NCIC" printout—that showed Nguti
had three DUI convictions on December 21, 2004, June 26, 2009, and August 30, 2014;
Judge Reid asked Nguti's counsel whether Nguti had been convicted of the three DUIs,

2

This is supported by the hearing transcript—which did not exist in Enoh or
Judulang because the immigration courts did not record those hearings.
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and Nguti's counsel confirmed that Nguti had "suffered" three DUI convictions. Docket
Item 21-1. The transcript also shows that Judge Reid weighed several mitigating
factors, including: Nguti does not own a car and cannot afford one; he does not have a
driver's license; he does not need to drive; he will not drive because he can walk or get
a ride from his family; and he is very willing to take an alcoholism course—to which
Nguti testified. Id.
After hearing all the evidence, Judge Reid decided that the government had
established, by clear and convincing evidence, that Nguti is a danger to the community.
Id. And he gave a reason for discounting the evidence in mitigation: "I don't know how
you assure that somebody for a fourth time will drive with or without a license under the
influence and potentially kill himself or other and do property damage." Id. at 15-16.
Were this Court to review Judge Reid's decision in light of the evidence presented at the
hearing, it would cross the boundary from evaluating constitutional soundness to
evaluating evidentiary soundness—that is, exactly what it has been precluded from
doing. See 8 U.S.C. § 1226(e); Cepeda, 2016 WL 3144394; Judulang, 562 F. Supp. 2d
1119.
Nguti argues that the sources upon which Judge Reid relied—the I-213 and
NCIC printout—cannot constitute clear and convincing evidence as a matter of law.
And the Second Circuit has held that a rap sheet alone, in certain contexts, cannot
constitute clear and convincing evidence of a conviction. See, e.g., Singh v. U.S. Dep't
of Homeland Sec., 526 F.3d 72, 80 (2d Cir. 2008) ("We have previously held that an
[immigration judge] errs in relying on a rap sheet as conclusive proof that an alien has
been convicted of a particular crime for the purpose of the alien's removal

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proceedings."). Docket Item 21. But together with the admission by Nguti's counsel
that Nguti indeed had been convicted of the DUIs, the evidence here might well
constitute clear and convincing evidence for the immigration judge's consideration. See
id. ("an [immigration judge] may admit a rap sheet as partial evidence of such a
conviction."); In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006); Felzcerek v. I.N.S.,
75 F.3d 112, 116 (2d Cir. 1996) (concluding that even though "the strict rules of
evidence do not apply in deportation proceedings . . . the Form I–213 contain[s]
guarantees of reliability and trustworthiness that are substantially equivalent to those
required of documents admissible under Rule 803(8)"). Indeed, the evidence upon
which Judge Reid relied to deny Nguti bond is precisely what the BIA recommends
immigration judges should consider. Specifically, Judge Reid considered "the alien's
criminal record, including the extensiveness of criminal activity, the recency of such
activity, and the seriousness of the offenses." See In re Guerra, 24 I. & N. Dec. 37, 40
(BIA 2006). Therefore, Judge Reid appropriately considered the I-213 and NCIC
printout that listed Nguti's three DUI convictions.
Finally, Nguti argues that Judge Reid shifted the burden from the government to
him when Judge Reid asked Nguti's counsel whether Nguti had, in fact, been convicted
of the three DUIs. But asking a question of counsel does not shift any burden. And
Judge Reid's decision makes clear that he well understood that the government had the
burden to establish the risk of flight or danger to the community by clear and convincing
evidence.
Again, whether this Court believes that the proof establishes, by clear and
convincing evidence, that Nguti is a danger to the community is not the question.

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Rather, this Court must decide whether Judge Reid relied upon proof that—as a matter
of law—could not establish, by clear and convincing evidence, that Nguti is a danger to
the community. That is not the case. And because this Court is without jurisdiction
otherwise to review Judge Reid's decision, that ends the inquiry.
CONCLUSION
For the foregoing reasons, the claims raised in petitioner's status report are
DISMISSED.
SO ORDERED.
Dated:

November 29, 2017
Buffalo, New York

s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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