Aparicio-Larin et al v. Barr et al
Filing
7
DECISION AND ORDER that the Petition for a writ of habeas corpus is granted to the extent that, within ten days of the date of entry of this Decision and Order, the Government shall bring Aparicio-Larin before an IJ for an individualized bond hearing . At that hearing, the Government shall bear the burden of proving, by clear and convincing evidence, that he is a flight risk. If the Government fails to provide Aparicio-Larin with such a bond hearing within ten days, the Government shall immediate ly release him. If the Government holds the required bond hearing but fails to prove, by clear and convincing evidence, that Aparicio-Larin is a flight risk, the Government must release him on bail with appropriate conditions. The Government is furth er ordered to provide a status report to this Court within five days following the completion of the bond hearing. (The Clerk of Court is directed to close this case and to send by first class mail a copy of this Decision and Order to Petitioner.). Signed by Hon. Michael A. Telesca on 7/19/2019. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HENRY GAMALIEL APARICIO-LARIN,
Petitioner,
No. 6:19-cv-06293-MAT
DECISION AND ORDER
-vsWILLIAM P. BARR, Attorney General;
THOMAS FEELEY, Field Office Director
for Detention and Removal Buffalo
Field Office Bureau of Immigration
and Customs Enforcement Department of
Homeland Security; and JEFFREY1
SEARLS, Facility Director, Buffalo
Federal Detention Facility,
Respondents.
I.
Introduction
Proceeding pro se, Henry Gamaliel Aparicio-Larin (“Aparicio-
Larin” or “Petitioner”) commenced this habeas proceeding pursuant
to 28 U.S.C. § 2241 (“§ 2241”) against the named Respondents
(hereinafter,
detention
“the
in the
Government”)
custody of
challenging
the United
States
his
continued
Department of
Homeland Security (“DHS”), Immigration and Customs Enforcement
(“ICE”). For the reasons discussed below, the request for a writ of
habeas corpus is granted.
1
The Clerk of Court is directed to amend the caption to reflect
the correct spelling of this defendant’s first name (“Jeffrey,” not
“Jefferey”).
II.
Factual Background
The following factual summary is drawn from the Declaration of
Joseph D. Marchewka (“Marchewka Decl.”) (Docket No. 4-1) and
attached
Exhibits
(Docket
No.
4-2)
and
the
exhibits
(Docket
No. 1-1) attached to the Petition.
Aparicio-Larin, a native and citizen of El Salvador, filed an
application for a United States visa which was denied by the State
Department on September 2, 2003.
On October 5, 2018, at approximately 11:05 PM, a United States
Border Patrol Agent (“BPA”) observed a black colored Honda with
Virginia license plates operating on New York State Route 122,
which the Government claims is a smuggling corridor for illegal
aliens
near
the
Akwesasne
Mohawk
Reservation
in
Hogansburg,
New York. A vehicle record check of the black Honda revealed that
it had not crossed the international border from Canada into the
United States at a port of entry. Ultimately, the BPA made the
decision to conduct a vehicle stop of the black Honda at around
11:14 p.m.
Upon questioning, the driver, Franklin W. Aparicio-Villarto,
stated that he was born in El Salvador and lacked any documents
authorizing him to remain in the United States. The front-seat
passenger,
Aparicio-Larin,
and
two
rear-seat
passengers
also
admitted upon questioning that they were born outside of the
United States and lacked visas or other documentation allowing them
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to legally remain in the United States. Aparicio-Larin further
admitted that he entered the United States illegally by walking
across the Mexico border at an unknown location in Texas in the
summer of 2006.
Following the traffic stop, Aparicio-Larin was taken into
custody
and
held
based
on
8
U.S.C.
§
1182,
Immigration
and
Nationality Act (“INA”) § 212, as being an alien present without
admission. On October 6, 2018, he was served with a Notice to
Appear (“NTA”), charging him with being subject to removal from the
United States pursuant to INA § 212(a)(6)(A)(i) as an alien present
in the United States without being admitted or paroled, or who
arrived in the United States at any time or place other than as
designated by the Attorney General. Also on October 6, 2018, DHS
reviewed Aparicio-Larin’s custody status and determined that he
should be detained pending a final decision in his immigration
proceedings.
Aparicio-Larin obtained counsel who filed a motion for a bond
determination. An immigration judge (“IJ”) scheduled a bond hearing
for November 27, 2018. Because Aparicio-Larin’s counsel had a
scheduling conflict in another immigration matter, the bond hearing
and the removal hearing were re-scheduled for December 6, 2018.
Following
a hearing
on
December
6,
2018,
the
IJ
denied
Aparicio-Larin’s request for a change in custody status, finding
that Larin was a flight risk, had used a smuggler to cross the
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border initially, and had worked in the United States without
authorization. The removal hearing was re-scheduled for March 6,
2019. The IJ subsequently issued a memorandum decision reflecting
the bond denial on January 10, 2019. Through counsel, AparicioLarin appealed the IJ’s bond decision.
On December 27, 2018, Aparicio-Larin’s counsel submitted a
Request for Administrative Bond or Release on Alternatives to
Detention to the DHS Field Office Director. On January 2, 2019, DHS
denied the request citing Aparicio-Larin’s previous bond hearing at
which the IJ determined that Larin was a flight risk and not
entitled to release on bond. For reasons that do not appear in the
record, Aparicio-Larin’s attorney filed a motion to withdraw as
counsel, which was granted “for good cause shown” by the IJ on
January 4, 2019. On January 7, 2019, the IJ notified Aparicio-Larin
that
he
was
no
longer
represented
by
counsel.
However,
on
January 23, 2019, Aparicio-Larin’s former counsel filed a brief in
support of his application for release on bond.
Aparicio-Larin
also
has
filed
an
I-130
Petition
for
cancellation of removal for non-legal permanent residents based on
his length of residency (12 years) in the United States as well as
an I-589 Application for Asylum. Aparicio-Larin seeks withholding
of removal and protection under the Convention Against Torture
(“CAT”)
due
to
his
fear
of
persecution
Salvatrucha) gang in El Salvador.
-4-
by
the
MS-13
(Mara
On March 6, 2019, Aparicio-Larin appeared at his removal
hearing pro se. At the conclusion of the proceeding, the IJ issued
an oral ruling denying Aparicio-Larin’s applications for relief and
ordering him removed to El Salvador.
Aparicio-Larin appealed the IJ’s order of removal on March 21,
2019. That appeal remains pending before the Bureau of Immigration
Affairs (“BIA”). On May 30, 2019, the BIA dismissed AparicioLarin’s
appeal
of
the
IJ’s
bond
decision.
Aparicio-Larin
is
currently held at the Buffalo Federal Detention Facility (“BFDF”)
in
Batavia,
New
York,
pending
completion
of
his
immigration
proceedings.
III.
Scope of Review
Title 28 U.S.C. § 2241 grants this Court jurisdiction to hear
habeas corpus petitions from aliens claiming they are held “in
violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678,
687 (2001) (citing 28 U.S.C. § 2241(c)(3)). However, the REAL ID
Act of 2005, Pub. L. No. 109-13, § 106(a), 199 Stat. 231 (May 11,
2005) amended the Immigration and Nationality Act (“INA”) to
provide that petitions for review filed in the appropriate Courts
of Appeals were to be the “sole and exclusive means for judicial
review” of final orders of removal. Ruiz-Martinez v. Mukasey, 516
F.3d 102, 113 (2d Cir. 2008) (citing REAL ID Act § 106(c); 8 U.S.C.
§ 1252(a)(5)). In other words, the REAL ID Act “strips district
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courts of jurisdiction to hear habeas petitions challenging final
orders of deportation. . . .” De Ping Wang v. Dep’t of Homeland
Sec., 484 F.3d 615, 615-16 (2d Cir. 2007). District courts still
are empowered to grant relief under § 2241 to claims by aliens
under a final order of removal who allege that their post-removalperiod
detention
and
supervision
are
unconstitutional.
See
Zadvydas, 533 U.S. at 687-88; see also Hernandez v. Gonzales, 424
F.3d 42, 42–43 (1st Cir. 2005) (“The Real ID Act deprives the
district courts of habeas jurisdiction to review orders of removal,
. . . [but] those provisions were not intended to ‘preclude habeas
review
over
challenges
challenges
to
removal
to
detention
orders.’”)
that
are
(quoting
independent
H.R.
Cong.
of
Rep.
No. 109-72, at *43 2873 (May 3, 2005)).
Although this Court has jurisdiction to decide statutory and
constitutional challenges to civil immigration detention, it does
not have jurisdiction to review the discretionary decisions of the
Attorney General. Zadvydas, 533 U.S. at 688 (citing 8 U.S.C.
§ 1252(a)(2)(B)(ii)) (“[N]o court shall have jurisdiction to review
. . . any other decision or action of the Attorney General . . .
the authority of which is specified under this subchapter to be in
the discretion of the Attorney General.”). “[W]hether the district
court has jurisdiction will turn on the substance of the relief
that a [petitioner] is seeking.” Delgado v. Quarantillo, 643 F.3d
52, 55 (2d Cir. 2011) (per curiam).
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IV.
Discussion
A.
Overview of Petitioner’s Claims
In Count One of the Petition, Aparicio-Larin asserts both a
statutory violation of 8 U.S.C. § 1226(a) and the Fifth Amendment’s
Due Process Clause on the basis that his detention is unjustified
because he bore the burden of proof, instead of the Government, at
his bond hearing. See Petition (“Pet.”) (Docket No. 1) ¶¶ 43-46. In
Count
Two
of
the
Petition,
Aparicio-Larin
alleges
that
the
Government’s categorical denial of bail to certain non-citizens
violates the Eighth Amendment’s excessive bail clause. Id. ¶¶ 4750.
For the reasons discussed below, the Court finds that as a
matter of due process, Aparicio-Larin is entitled to a new bond
hearing at which the Government bears the burden of proof by clear
and convincing evidence. In light of this conclusion, the Court
need not consider his claim based on a violation of 8 U.S.C.
§ 1226(a) or his Eighth Amendment claim.
B.
Statutory Framework
The statute authorizing Aparicio-Larin’s detention, 8 U.S.C.
§ 1226(a), provides in pertinent part that “an alien may be
arrested and detained pending a decision on whether the alien is to
be removed from the United States.” 8 U.S.C. § 1226(a). “[P]ending
such decision, the Attorney General--(1) may continue to detain the
arrested alien; and (2) may release the alien on– (A) bond of at
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least $1,500 with security approved by, and containing conditions
prescribed by, the Attorney General; or (B) conditional parole. .
.
.”
Id.
“In
connection
with
§
1226(a),
[DHS]
promulgated
regulations setting out the process by which a non-criminal alien
may obtain release[,]” which “provide that, in order to obtain bond
or
conditional
parole,
the
‘alien
must
demonstrate
to
the
satisfaction of the [decision maker] that such release would not
pose a danger to property or persons, and that the alien is likely
to appear for any future proceeding.’” Sopo v. U.S. Attorney Gen.,
825
F.3d
1199,
1208
(11th
Cir.
2016)
(quoting
8
C.F.R.
§ 1236.1(c)(8); second alteration in original), vacated on other
grounds, 890 F.3d 952 (11th Cir. 2018). The DHS district director
makes the initial custody determination; thereafter, the alien has
the right to appeal an adverse decision to an IJ, and then to the
BIA. 8 C.F.R. § 1236.1(d)(1), (3); id. § 1003.19(a), (f). If denied
release from custody, a § 1226(a) detainee may seek a custody
redetermination hearing upon a showing of changed circumstances.
8 C.F.R. § 1003.19(e).
While § 1226(a) is silent on the issues of which party bears
the burden of proof at a custody redetermination hearing and the
quantum of evidence necessary to satisfy that burden, see 8 U.S.C.
§ 1226(a), the BIA has interpreted § 1226(a) to place “[t]he burden
. . .
on the alien to show to the satisfaction of the [IJ] that he
or she merits release on bond.” In re Guerra, 24 I. & N. Dec. 37
-8-
(BIA 2006); accord In re Adeniji, 22 I. & N. Dec. 1102, 1116 (BIA
1999) (holding that “respondent must demonstrate that his release
would not pose a danger to property or persons, and that he is
likely to appear for any future proceedings”). The alien must show
that he is not “a threat to national security, a danger to the
community at large, likely to abscond, or otherwise a poor bail
risk.” Guerra, 24 I. & N. Dec. at 40. In cases issued following
Adeniji, the BIA has reaffirmed that the alien properly bears the
burden of proof; the quantum of proof is described simply as being
“to the satisfaction of” the IJ and BIA. E.g., In re Fatahi, 26 I.
& N. Dec. 791, 793 (BIA 2016) (“An alien who seeks a change in
custody status must establish to the satisfaction of the [IJ] and
the [BIA] that he is not ‘a threat to national security, a danger
to the community at large, likely to abscond, or otherwise a poor
bail risk.’”) (quoting Guerra, 24 I. & N. Dec. at 40).
The BIA is the only forum from which an alien may seek
reconsideration of the substance of an IJ’s discretionary bond
determination. See 8 C.F.R. §§ 1003.19(f), 1003.38, 1236.1(d)(3);
see also Demore v. Kim, 538 U.S. 510, 516–17 (2003) (noting that
8 U.S.C. § 1226(e) bars federal court review of a “discretionary
judgment” or a “decision” of the Attorney General) (citing 8 U.S.C.
§ 1226(e) (stating that “[n]o court may set aside any action or
decision by [immigration officials] under this section regarding
the detention or release of any alien or the grant, revocation, or
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denial of bond or parole”)). “What § 1226(e) does not bar, however,
are constitutional challenges to the immigration bail system.”
Pensamiento v. McDonald, 315 F. Supp.3d 684, 688–89 (D. Mass. 2018)
(citing Jennings v. Rodriguez, ___ U.S. ____, 138 S. Ct. 830, 841,
200 L.Ed.2d 122 (2018) (holding that challenges to “the extent of
the
Government’s
detention
authority”
are
not
precluded
by
§ 1226(e)); Demore, 538 U.S. at 517 (“Section 1226(e) contains no
explicit provision barring habeas review, and we think that its
clear text does not bar respondent’s constitutional challenge to
the legislation authorizing his detention without bail [under
§ 1226(c)]. . . .”); other citations omitted), appeal withdrawn sub
nom. Pensamiento v. Moniz, 18-1691 (1st Cir. Dec. 26, 2018).
Here, Aparicio-Larin is not challenging the IJ’s discretionary
decision to keep him in detention. Instead, he is arguing that the
immigration bond system, in which aliens detained pursuant to
§ 1226(a) must bear the burden of proving they are not dangerous
and are not flight risks, violates the Due Process Clause of the
Fifth Amendment. “This type of constitutional claim ‘falls outside
of the scope of § 1226(e)’ because it is not a matter of the IJ’s
discretionary judgment.”
Pensamiento, 315 F. Supp.3d at 689
(quoting Jennings, 138 S. Ct. at 841).
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C.
Constitutional Framework
The Due Process Clause of the Fifth Amendment forbids the
Government from “depriv[ing]” any “person . . . of . . . liberty .
. . without due process of law.” U.S. CONST., amend. V. The Supreme
Court
has
government
emphasized
custody,
that
“[f]reedom
detention,
or
from
other
imprisonment—from
forms
of
physical
restraint—lies at the heart of the liberty that Clause protects.”
Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Longstanding Supreme
Court
precedent
has
underscored
the
principle
that
“civil
commitment for any purpose constitutes a significant deprivation of
liberty that requires due process protection.” Addington v. Texas,
441
U.S.
418,
425
(1979).
That
an
individual
may
not
be
a
United States citizen or may not be in this country legally does
not divest them of all protections enshrined in the Due Process
Clause. See Zadvydas, 533 U.S. at 693 (“[T]he Due Process Clause
applies to all ‘persons’ within the United States, including
aliens, whether their presence here is lawful, unlawful, temporary,
or permanent.”); Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is
well established that the Fifth Amendment entitles aliens to due
process of law in deportation proceedings.”). The question that has
continued to vex courts is the nature of the process due, for the
Supreme
Court
“has
recognized
detention
during
deportation
proceedings as a constitutionally valid aspect of the deportation
process.” Demore, 538 U.S. at 523 (citations omitted).
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In the context of a § 1226(a) custody hearing, the
Ninth
Circuit has held that the Constitution mandates placing the burden
of proof on the Government to show ineligibility for bail by clear
and convincing evidence. Singh v. Holder, 638 F.3d 1196, 1203
(9th Cir. 2011). The Ninth Circuit explained that “even where
prolonged detention is permissible, due process requires ‘adequate
procedural protections’ to ensure that the government’s asserted
justification for physical confinement ‘outweighs the individual’s
constitutionally
protected
interest
in
avoiding
physical
restraint.’” Id. (quotations omitted). Several district courts have
held that Singh’s due process analysis survived Jennings since the
Supreme Court expressly declined to address the constitutional
question.2 E.g., Cortez v. Sessions, 318 F. Supp. 3d 1134, 1146–47
2
In Jennings, the class of habeas petitioners had originally
argued that, absent a requirement for periodic bond hearings,
8 U.S.C. §§ 1225(b), 1226(a), and 1226(c) would violate the Due
Process Clause. See Jennings, 138 S. Ct. at 839. Instead of
addressing the constitutional argument, however, the Ninth Circuit
employed the canon of constitutional avoidance and interpreted
§ 1226(a) to require “periodic bond hearings every six months in
which the Attorney General must prove by clear and convincing
evidence that the alien’s continued detention is necessary.” 138
S. Ct. at 847. But the Supreme Court held that “[n]othing in
§ 1226(a)’s text . . . even remotely supports the imposition of
either of those requirements.” Id. The Supreme Court reversed and
remanded to the Ninth Circuit with instructions to consider the
constitutional questions on the merits. Id. at 851. The Ninth
Circuit, in turn, remanded the case to the district court without
reaching the merits of the constitutional arguments. Rodriguez v.
Marin, 909 F.3d 252 (9th Cir. 2018), on remand to Rodriguez v.
Robbins, Case No. 07-cv-3239-TJH-RNB (C.D. Cal.).
-12-
(N.D. Cal. 2018) (“The [Jennings] Court did not engage in any
discussion of the specific evidentiary standard applicable to bond
hearings, and there is no indication that the Court was reversing
the Ninth Circuit as to that particular issue. Accordingly, the
court declines
to
find
that
Jennings reversed
the
clear
and
convincing evidence standard announced in Singh or later Ninth
Circuit cases relying on Singh’s reasoning.”), appeal dismissed,
No. 18-15976, 2018 WL 4173027 (9th Cir. July 25, 2018).3
In Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015),
vacated, 138 S. Ct. 1260 (2018), the Second Circuit relied on
Singh’s constitutional avoidance analysis to hold, in the context
of an criminal alien detained under § 1226(c), that due process
requires a bail hearing within six months of the alien being taken
into custody at which the Government must establish by clear and
convincing evidence that the alien poses a risk of flight or a
danger to the community. After Lora was decided, the Supreme Court
granted certiorari in Rodriguez v. Jennings, 804 F.3d 1060 (9th
3
See
also
D.
v.
Sec’y
of
Homeland
Sec.,
No.
0:18-CV-1557-WMW-KMM, 2019 WL 1905848, at *6 (D. Minn. Feb. 11,
2019) (“‘[B]ecause the Jennings majority and dissent were focused
on whether the statutes required bond hearings, declining to reach
the constitutional question at issue here, the Court is unpersuaded
that Jennings has any bearing on the appropriate procedures
consistent with due process.’”) (quoting Hernandez v. Decker,
No. 18 Civ. 5026 (ALC), 2018 WL 3579108, at *11 (S.D.N.Y. July 25,
2018)), report and recommendation adopted as modified sub nom.
Bolus A. D. v. Sec’y of Homeland Sec., 376 F. Supp.3d 959 (D. Minn.
2019).
-13-
Cir.
2015),
and
rejected
the
Ninth
Circuit’s
constitutional
avoidance analysis on which the Second Circuit had relied in
interpreting § 1226(c). Accordingly, the Supreme Court vacated Lora
and remanded it for further consideration in light of Jennings v.
Rodriguez, 138 S. Ct. 830, supra.
On remand in Lora, the Second Circuit dismissed the appeal as
moot because, in the interim, the petitioner had been released on
bond. Lora v. Shanahan, 719 F. App’x 79 (2d Cir. 2018). Thus, the
Second Circuit did not have occasion to revisit the constitutional
question in Lora. Some district courts in this Circuit have held
that while Lora is no longer precedential authority, it still
carries “significant persuasive weight,” v. Decker, No. 18 Civ.
2447 (AJN), 2018 WL 2357266, at *6 (S.D.N.Y. May 23, 2018) (citing
Brown v. Kelly, 609 F.3d 467, 476-77 (2d Cir. 2010)), on the
questions of the proper burden and quantum of proof at immigration
bond hearings.
A number of district courts have taken up the question left
open by the Supreme Court in Jennings, and “there has emerged a
consensus view that where, as here, the government seeks to detain
an alien pending removal proceedings, it bears the burden of
proving that such detention is justified.” Darko v. Sessions, 342
F. Supp.3d 429, 434–36 (S.D.N.Y. 2018) (citing Linares Martinez v.
Decker, No. 18 Civ. 6527 (JMF), 2018 WL 5023946, at *32 (S.D.N.Y.
Oct. 17, 2018); Sajous, 2018 WL 2357266, at *12; Hernandez, 2018 WL
-14-
3579108, at *10; Frederic v. Edwards, No. 18 Civ. 5540(AT), Docket
No. 13 (S.D.N.Y. July 19, 2018); Pensamiento, 315 F. Supp.3d at
692; Figueroa v. McDonald, No. 18-CV-10097 (PBS), ___ F. Supp.3d
____, 2018 WL 2209217, at *5 (D. Mass. May 14, 2018); Frantz C. v.
Shanahan, No. CV 18-2043 (JLL), 2018 WL 3302998, at *3 (D. N.J.
July 5, 2018); Portillo v. Hott, 322 F. Supp.3d 698, 709 n.9 (E.D.
Va. 2018); Cortez, 318 F. Supp.3d at 1145-46; see also D. v. Sec’y
of Homeland Sec., 2019 WL 1905848, at *6; Diaz-Ceja v. McAleenan,
No. 19-CV-00824-NYW, 2019 WL 2774211, at *10 (D. Colo. July 2,
2019).
In concluding that allocating the burden to a noncriminal
alien to prove that he should be released on bond under § 1226(a)
violates due process, a number of these courts have looked for
guidance to the Supreme Court’s precedent on civil commitment and
detention. E.g., Darko, 342 F. Supp.3d at 434 (citing Addington,
441 U.S. at 425 (“In considering what standard should govern in a
civil commitment proceeding, we must assess both the extent of the
individual’s
interest
in
not
being
involuntarily
confined
indefinitely and the state’s interest in committing the emotionally
disturbed under a particular standard of proof. Moreover, we must
be mindful that the function of legal process is to minimize the
risk of erroneous decisions.”); other citations omitted). The
Government clearly has legitimate interests in both public safety
and
securing
a
noncitizen’s
appearance
-15-
at
future
immigration
proceedings. However, the Court cannot discern any legitimate
Government
interest,
beyond
administrative
convenience,
in
detaining noncitizens generally while their immigration proceedings
are pending and no final removal order has been issued. See
Addington, 441 U.S. at 426 (“[T]he State has no interest in
confining individuals involuntarily if they are not mentally ill or
if they do not pose some danger to themselves or others. Since the
preponderance standard creates the risk of increasing the number of
individuals erroneously committed, it is at least unclear to what
extent, if any, the state’s interests are furthered by using a
preponderance standard in such commitment proceedings.”). The Court
agrees with the district court cases holding that allocating the
burden to a noncriminal alien to prove he should be released on
bond under § 1226(a) violates due process because it asks “[t]he
individual . . . to share equally with society the risk of error
when the possible injury to the individual is significantly greater
than any possible harm to the [Government].” 441 U.S. at 427. See
Darko, 342 F. Supp.3d at 435 (“[G]iven the important constitutional
interests at stake, and the risk of harm in the event of error, it
is appropriate to require the government to bear the burden,
particularly in light of long-established Supreme Court precedent
affecting
the
deprivation
of
individual
liberty[.]”)
(citing
Linares Martinez, 2018 WL 5023946 at *2); Diaz-Ceja, 2019 WL
-16-
2774211, at *10 (similar) (citing Addington, 441 U.S. at 427;
Singh, 638 F.3d at 1203; other citations omitted).
As to the applicable burden of proof, most courts that have
decided the issue have concluded that Government must supply clear
and convincing evidence that the alien is a flight risk or danger
to society. See Darko, 342 F. Supp.3d at 436 (stating that “the
overwhelming majority of courts to have decided the issue” utilized
the “clear and convincing” standard) (collecting cases); but see
Diaz-Ceja, 2019 WL 2774211, at *11 (finding that the appropriate
standards are ones that mirror the Bail Reform Act, i.e., the
government must prove risk of flight by a preponderance of the
evidence, and it must prove dangerousness to any other person or to
the community by clear and convincing evidence) (internal and other
citations omitted). As noted above, Singh and Lora required the
Government to meet its burden by clear and convincing evidence, a
conclusion followed by the vast majority of the district courts—and
all the district courts in this Circuit—that have decided this
issue.
The Court joins with these courts and concludes that the Fifth
Amendment’s Due Process Clause requires the Government to bear the
burden of proving, by clear and convincing evidence, that detention
is justified at a bond hearing under § 1226(a). Darko, 342 F.
Supp.3d at 436 (citations omitted).
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Having found a constitutional error, the Court next examines
whether such error was prejudicial to Aparicio-Larin. Brevil v.
Jones, No. 17 CV 1529-LTS-GWG, 2018 WL 5993731, at *5 (S.D.N.Y.
Nov. 14, 2018) (citing Singh, 638 F.3d at 1205 (analyzing whether
IJ’s application of an erroneous evidentiary burden at bond hearing
under § 1226(a) prejudiced alien detainee); Garcia-Villeda v.
Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (“Parties claiming denial
of due process in immigration cases must, in order to prevail,
allege
some
challenged
cognizable
process.”)
prejudice
(internal
fairly
attributable
quotations
omitted));
to
the
Linares
Martinez, 2018 WL 5023946, at *5 (rejecting government’s argument
that alien detained under § 1226(a) was not prejudiced by any due
process violation at first bond hearing; “the IJ plainly could have
found
that
the
misdemeanors—was
single
not
set
enough
to
of
show,
charges—now
by
reduced
to
clear-and-convincing
evidence, that Linares’s release would pose a danger”); but see
Darko, 342 F. Supp.3d at 436 (finding due process error due to IJ’s
imposition of burden of proof on alien detained under § 1226(a);
granting habeas relief and ordering second individualized bond
hearing
without
undertaking
analysis
of
whether
alien
was
prejudiced by erroneous burden of proof at first bond hearing).
As an initial matter, the BIA directs IJs to consider the
following factors in determining whether an immigrant is a flight
risk or poses a danger to the community: (1) whether the immigrant
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has a fixed address in the United States; (2) the immigrant’s
length of residence in the United States; (3) the immigrant’s
family ties in the United States, (4) the immigrant’s employment
history, (5) the immigrant’s record of appearance in court, (6) the
immigrant’s
criminal
criminal
activity,
seriousness
of
the
record,
the
including
recency
offenses,
(7)
of
the
such
the
extensiveness
activity,
immigrant’s
and
history
of
the
of
immigration violations; (8) any attempts by the immigrant to flee
prosecution or otherwise escape from authorities; and (9) the
immigrant’s manner of entry to the United States. Matter of Guerra,
20 I & N Dec. at 40. Here, the IJ considered Aparicio-Larin’s
positive equities (e.g., strong family ties in this country,
including siblings who are United States citizens; lack of a
criminal record; ownership of bank accounts; a current lease to an
apartment; and ownership of a car and motorcycle) but focused
mainly on Aparicio-Larin’s alleged use of a smuggler to gain entry
to the United States and the absence of copies of Aparicio-Larin’s
tax returns for several years.4 Aparicio-Larin’s counsel pointed
4
Aparicio-Larin’s counsel’s brief (Docket No. 1-1, pp. 14-21 of
151) indicates that he testified his father may have paid someone
to help him enter the United States in 2006, in order to escape
further violence at the hands of MS-13 gang members. However, she
argued, Aparicio-Larin was not involved in any scheme to smuggle
persons into this country. Aparicio-Larin recounts that his friend,
Rene, was murdered by members of MS-13, and that when he was seen
driving Rene’s car, MS-13 gang members pulled him over and beat
him. It was this event that prompted Aparicio-Larin’s father to
find a way to send him to the United States. With regard to the tax
return issue, Aparicio-Larin testified he has filed tax returns
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out in her appellate brief that the Government made no submissions
prior to the actual bond hearing and adduced no evidence at the
bond hearing. Docket No. 1-1, p. 15 of 151. Without discounting the
IJ’s concerns, the Court notes that Aparicio-Larin appears to have
a
number
of
favorable
equities,
which
the
IJ
recognized.
Particularly in light of the fact that the Government apparently
did not present any submissions in opposition to Aparicio-Larin’s
bond application, the Court “cannot conclude that the clear and
convincing evidence standard would not have affected the outcome of
the bond hearing.” Singh, 638 F.3d at 1205.
Habeas relief accordingly is warranted to the extent that
Aparicio-Larin must be afforded a new bond hearing before an IJ at
which the Government must adduce clear and convincing evidence that
he is a flight risk (there is no suggestion in the record that
Aparicio-Larin was or is a danger to the community).
V.
Conclusion
For the foregoing reasons, the Petition for a writ of habeas
corpus is granted to the extent that, within ten days of the date
of entry of this Decision and Order, the Government shall bring
Aparicio-Larin before an IJ for an individualized bond hearing. At
that hearing, the Government shall bear the burden of proving, by
clear and convincing evidence, that he is a flight risk. If the
since he had began working in the United States but was unable to
obtain copies of the older tax returns. See Docket No. 1-1, pp. 1719 of 151.
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Government fails to provide Aparicio-Larin with such a bond hearing
within ten days, the Government shall immediately release him. If
the Government holds the required bond hearing but fails to prove,
by clear and convincing evidence, that Aparicio-Larin is a flight
risk, the Government must release him on bail with appropriate
conditions. The Government is further ordered to provide a status
report to this Court within five days following the completion of
the bond hearing. The Clerk of Court is directed to close this
case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
July 19, 2019
Rochester, New York.
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