Aparicio-Villatoro v. Barr et al

Filing 8

DECISION AND ORDER granting 1 Petition for Writ of Habeas Corpus pursuant to 28 USC 2241. Signed by Hon. Michael A. Telesca on 08/16/2019. A copy of this Decision and Order was sent to the petitioner via first-class U.S. Mail on 8/16/2019.(AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FRANKLIN WI APARICIO-VILLATORO,
No. 6:19-cv-06294-MAT
DECISION AND ORDER

Petitioner,
-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 JEFFREY
SEARLS, Facility Director, Buffalo
Federal Detention Facility,
Respondents.

I.

Introduction
Proceeding pro se, Franklin Wi1 Aparicio-Villatoro (“Aparicio-

Villatoro”
pursuant

to

Respondents

or
28

“Petitioner”)
U.S.C.

commenced

this

§

2241

(Ҥ

2241”)

(hereinafter,

“the

Government”)

habeas
against

proceeding
the

named

challenging

his

continued detention in the custody of the United States 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.
II.

Factual Background
The following factual summary is drawn from the Declaration of
1

Petitioner’s El Salvador passport (Docket No. 7, p. 38 of 95) indicates
that his middle name is “Wilfredo” not “Wi.”

-1-

Joseph D. Marchewka (“Marchewka Decl.”) (Docket No. 4-1) and
attached Exhibits (Docket No. 4-2) and the exhibits (Docket No. 11) attached to the Petition.
Aparicio-Villatoro, a native and citizen of El Salvador,
entered the United States on an unknown date at an unknown place in
January

2004,

after

traveling

through

Guatemala

and

Mexico.

Aparicio-Villatoro states in his Petition that while he was in high
school, two MS-13 gang members came to his school looking for a
friend of his. They asked Aparicio-Villatoro’s friend why he had
changed his mind and refused to come for a meeting with them as
scheduled. Apparently, Petitioner’s friend did not give them an
acceptable answer, at which point one of the gang members pulled
out a gun and fatally shot him. Aparicio-Villatoro escaped but
ultimately left El Salvador out of fear of retaliation by MS-13
members since he was the only witness to the shooting of his
friend. Once in this country Aparicio-Villatoro obtained a tax
identification number and worked for a number of years doing
construction and plumbing work. Prior to his being taken into DHS
custody, he lived in Silver Spring, Maryland with his U.S. citizen
girlfriend (whom he married in December 2018) and their two-yearold son.
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,

-2-

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 conducted a vehicle stop of the black Honda at around
11:14 p.m.
Upon questioning, the driver, Aparicio-Villatoro, stated that
he was born in El Salvador and lacked any documents authorizing him
to remain in the United States. The front-seat passenger 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 to legally remain in the United States.
Following the traffic stop, Aparicio-Villatoro was transported
to the Burke New York Border Patrol Station for processing where he
declined to answer questions before speaking to a lawyer and
declined the opportunity to contact the El Salvador Consulate.
Aparicio-Villatoro was held based on an alleged violation of 8
U.S.C. § 1182 and 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

-3-

any time or place other than as designated by the Attorney General.
Also on October 6, 2018, DHS reviewed Aparicio-Villatoro’s custody
status and determined that he should be detained pending a final
decision in his immigration proceedings.
On

or

about

October

16,

2018,

Aparicio-Villatoro

was

transferred to the BFDF. On November 16, 2018, the IJ granted the
motion

to

continue

filed

by

Aparicio-Villatoro’s

immigration

counsel. The IJ granted a subsequent motion to continue on November
21, 2018, rescheduling the custody redetermination hearing for
December 6, 2018.
Prior to the bond hearing, Aparicio-Villatoro’s immigration
attorney submitted a number of letters of support from family and
friends attesting to his significant family ties in the United
States and his lack of any criminal conduct. Also submitted were
the birth certificate of his two-year-old son and a letter of
support and proof of hardship from his fiancee, a U.S. citizen,
along with letters of support from his two U.S. citizen brothers
and U.S. citizen uncles, cousins, and aunts; copies of lease
agreements; bank account statements; pay stubs; and proof of filing
of income tax returns. See generally Docket No. 1-1, pp. 14-23 of
164 (Respondent’s Bond Brief on Appeal dated 1/23/2019); Docket No.
1-1, pp. 24-164 (documents submitted at bond hearing). DHS opposed
the bond request but made no submissions prior to the actual bond
hearing and made no submisrions at the bond hearing. Docket No. 1-

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1, p. 16 of 164. Aparicio-Villatoro provided testimony by which he
established that he does not have criminal history and, although he
admittedly

worked

without

authorization,

obtained

a

tax

identification number ID and has been filing taxes since he began
working in the United States. Aparicio-Villatoro testified that he
fled El Salvador due to the widespread gang violence and the fears
that his grandfather had for his safety. He further testified that
he is the sole breadwinner for his family and his fiancee depends
on him to pay the bills for the home including her medical bills
due to her eye surgery. He indicated that if released, he would
return to his residence in Maryland with his fiancee and child.
Following the hearing, the IJ denied Aparicio-Villatoro’s request
for a change in custody status, finding that he was a flight risk,
had used a smuggler to cross the border initially, and had worked
in the United States without authorization. The removal hearing was
re-scheduled for March 7, 2019.
On December 27, 2018, through counsel, Aparicio-Villatoro
filed his applications for relief from removal, including a Form
EOIR-42B Application for Cancellation of Removal and Adjustment of
Status

for

certain

Non-Permanent

Residents,

a

Form

I-589

Application for Asylum and for Withholding of Removal, along with
supporting

documents.

Aparicio-Villatoro

submitted

additional

evidence, namely, proof of continuous residency and of a qualifying
relative, to support the applications he made for relief from

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removal on January 2, 2019, and February 26, 2019.
On December 17, 2018, Aparicio-Villatoro appealed the IJ’s
December 6, 2018 bond decision. On December 27, 2018, he submitted
a Request for Administrative Bond or Release on Alternatives to
Detention. On January 2, 2019, DHS denied the request citing
Aparicio-Villatoro’s previous bond hearing on December 6, 2018,
following which the IJ determined that Villatoro was a flight risk
and denied bond. The IJ’s memorandum decision (Docket No. 4-2, pp.
21-24 of 48) regarding the December 6, 2018 bond denial was issued
on January 8, 2019.
On March 7, 2019, Aparicio-Villatoro appeared with counsel at
his removal hearing. He testified, along with his wife, who is a
United States citizen and with whom he has a two-year-old son. At
the conclusion of the proceeding, the IJ reserved decision. On May
3, 2019, the IJ issued a written decision (Docket No. 4-2, pp. 2842 of 48) denying Aparicio-Villatoro’s applications for relief from
removal and ordering him removed to El Salvador. The IJ noted that
Aparicio-Villatoro conceded his ineligibility for asylum because he
failed to file his application within the one-year deadline. The IJ
also found that Aparicio-Villatoro failed to meet his burden in
proving that it is more likely than not that he will suffer harm
rising to the level of persecution if he is returned to El Salvador
and failed to demonstrate that he will more likely than not be
subject to torture in El Salvador. The IJ concluded that Aparicio-

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Villatoro had failed to demonstrate that his removal would result
in exceptional and extremely unusual hardship to his qualifying
relatives, as is required for cancellation of removal.
On May 23, 2019, Aparicio-Villatoro timely appealed the IJ’s
order of removal to the Bureau of Immigration Affairs (“BIA”). On
May 21, 2019, the BIA dismissed (Docket No. 4-2, pp. 46-47 of 48)
Aparicio-Villatoro’s appeal of the IJ’s bond decision. His appeal
of the IJ’s removal order remains pending before the BIA. AparicioVillatoro is currently held at the BFDF 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
courts of jurisdiction to hear habeas petitions challenging final

-7-

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).
IV.

Discussion
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A.

Overview of Petitioner’s Claims

In Count One of the Petition, Aparicio-Villatoro 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-Villatoro
alleges that the Government’s categorical denial of bail to certain
non-citizens violates the Eighth Amendment’s excessive bail clause.
Id. ¶¶ 47-50.
For the reasons discussed below, the Court finds that as a
matter of due process, Aparicio-Villatoro 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
least $1,500 with security approved by, and containing conditions

-9-

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
(BIA 2006); accord In re Adeniji, 22 I. & N. Dec. 1102, 1116 (BIA
-10-

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
denial of bond or parole”)). “What § 1226(e) does not bar, however,

-11-

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-Villatoro

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).
C.

Constitutional Framework

The Due Process Clause of the Fifth Amendment forbids the
Government from “depriv[ing]” any “person . . . of . . . liberty .
-12-

. . 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).
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

-13-

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

constitutionally

protected

‘outweighs
interest

in

the

individual’s

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
(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

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.).

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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 a 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
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

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).

-15-

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
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,
-16-

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

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

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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
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
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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).
Having found a constitutional error, the Court next examines
whether such error was prejudicial to Aparicio-Villatoro. 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

-19-

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

of

to

charges—now

show,

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
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,

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20 I & N Dec. at 40. Here, the IJ considered Aparicio-Villatoro’s
positive equities (e.g., he rents a house in Maryland, owns a car,
and has multiple family members with legal status in the United
States, including a brother who is a U.S. citizen, and a son who is
a

U.S.

citizen)

but

focused

mainly

on

Aparicio-Villatoro’s

grandfather’s alleged use of a smuggler to help his grandson gain
entry to the United States and the absence of copies of AparicioVillatoro’s tax returns for several years.4 Not to undercut the
IJ’s concerns, the Court notes that Aparicio-Villatoro appears to
have a number of favorable equities, which the IJ recognized.5
Particularly in light of the fact that the Government did not
present any submissions in opposition to Aparicio-Villatoro’s bond
application,

the

Court

“cannot

conclude

that

the

clear

and

convincing evidence standard would not have affected the outcome of
4

Aparicio-Villatoro’s counsel’s brief (Docket No. 1-1, pp. 14-23 of 164)
indicates that while Aparicio-Villatoro testified that his grandfather may have
paid someone to help him enter the United States over thirteen years ago, he did
not testify to paying anyone to smuggle him into the United States. Moreover, he
was a minor at the time of his entry into the United States. Id., p. 18 of 164.
Although the IJ found that the alleged actions by Aparicio-Villatoro and his
grandfather were tantamount to aiding and abetting a smuggler, counsel argued
that he was not involved in any scheme to smuggle persons into the United States.
Moreover, she noted, the record did not establish he had been arrested or charged
in any smuggling schemes let alone any criminal conduct. Id. With regard to the
tax return issue, Aparicio-Villatoro testified he has filed tax returns since he
had began working in the United States but was unable to obtain copies of the
older tax returns. His counsel pointed out that the IJ did not make a finding
that Aparicio-Villatoro testified falsely when he stated under oath that he had
filed taxes every year that he worked in this country. Therefore, counsel argued,
it was erroneous for the IJ to find he was wilfully engaging in tax evasion. Id.,
p. 19 of 164.
5

In addition, the IJ rejected DHS’s argument, at the removal hearing, that
Aparicio-Villatoro had not met his burden of demonstration the requisite good
moral character for obtaining cancellation of removal and adjustment of status.
See Docket No. 7, p. 58 of 95.

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the bond hearing.” Singh, 638 F.3d at 1205.
Habeas relief accordingly is warranted to the extent that
Aparicio-Villatoro 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-Villatoro 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-Villatoro 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-Villatoro 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-Villatoro 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.

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SO ORDERED.

s/ Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

August 16, 2019
Rochester, New York.

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