Ignacio v. Sabol et al

Filing 55

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 2/13/17. (ma) (Main Document 55 replaced on 2/13/2017) (ma).

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

RAFAEL IGNACIO GUERRERO
SANCHEZ,
Petitioner
v.
MARY SABOL, et al.,
Respondents

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: CASE NO. 1:15-CV-2423
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MEMORANDUM

I.

Background
Pursuant to the December 23, 2016 memorandum opinion and order (Docs.

45, 46), this court held an individualized bond hearing for Rafael Ignacio Guerrero
Sanchez (“Petitioner”) on February 9, 2017. The extensive procedural history of
Petitioner’s case was fully set forth in the December 23, 2016 opinion, (see Doc. 45 at 16), and will not be repeated here. Petitioner is currently being detained by Immigration
and Customs Enforcement (“ICE”) while his withholding of removal claim progresses
through the administrative system. He has been detained since May 19, 2015. (Id. at 3).
For the following reasons, the court will release Petitioner on conditions.
II.

Standard of Review
In Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), the Third Circuit

explained that the purpose of continued detention under 8 U.S.C. § 1226 1 must be to

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The court, in its September 19, 2016 memorandum, determined that Petitioner—who is subject to
a reinstated order of removal but has pending an application for protection under the CAT—is
being detained under 8 U.S.C. § 1226 (“pre-removal” detention) rather than 8 U.S.C. § 1231
(“post-removal” detention). (See Doc. 23 at 7-11).

facilitate the detention statute’s goals of “ensuring that an alien attends removal
proceedings and that his release will not pose a danger to the community.” Id. at 231.
The government must justify its continued detention of the detainee. Id. at 232.
Accordingly, the government bears the burden of proving “that continued detention is
necessary to fulfill the purposes of the detention statute.” Id. at 233.
When a section 1226 detainee is due a bond hearing, that hearing must be
“individualized.” Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 478 (3d Cir.
2015); Leslie v. U.S. Attorney Gen., 678 F.3d 265, 271 (3d Cir. 2012); Diop, 656 F.3d at
233. Mechanistic reliance on factors that are common to all section 1226 detainees will
not suffice. See Singh v. Holder, 638 F.3d 1196, 1205-06 (9th Cir. 2011) (explaining that
all alien detainees in section 1226 bond hearings presumably have at least one crime in
their past giving rise to their removal orders, and have been ordered removed by a final,
administrative order, and thus the presence of these factors alone does not necessarily
warrant denial of bail); Chi Thon Ngo v. I.N.S., 192 F.3d 390, 398-99 (3d Cir. 1999).
Furthermore, the assessment of a section 1226 detainee’s dangerousness
and risk of flight must be made on a current basis. In Chi Thon Ngo v. I.N.S., 192 F.3d
390 (3d Cir. 1999), the Third Circuit emphasized the importance of making a present
assessment of a detainee’s level of risk in light of the fundamental liberty interest at stake:
When detention is prolonged, special care must be exercised so
that the confinement does not continue beyond the time when the
original justifications for custody are no longer tenable. The fact
that some aliens posed a risk of flight in the past does not mean
that they will forever fall into that category. Similarly, presenting
danger to the community at one point by committing crime does
not place them forever beyond redemption. Measures must be
taken to assess the risk of flight and danger to the community on
a current basis. The stakes are high and we emphasize that

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grudging and perfunctory review is not enough to satisfy the due
process right to liberty, even for aliens.
Id. at 398 (emphasis added). 2 It follows that submissions by the detainee showing, inter
alia, reform, rehabilitation, good character, education, employment history and prospects,
familial ties to United States citizens, potential for relief from removal, and any other
evidence that contravenes danger to the community or risk of flight must be considered,
as such evidence is highly relevant to ascertaining the detainee’s current risk level. See,
eg., id. at 393 (explaining types of evidence detainee submitted in support of petition for
bond); see also In re Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006) (listing factors to be
considered in detainee bond determinations).
When assessing danger to the community, the extensiveness, recency, and
severity of a detainee’s past criminal activity must be considered. Singh, 638 F.3d at 1206
(citing Guerra, 24 I. & N. Dec. at 40). When assessing risk of flight, common-sense
considerations include whether the imposition of conditions of release could mitigate flight
risk, and whether the detainee has strong family ties to the United States. Leslie, 865 F.
Supp. 2d at 640; Chi Thon Ngo, 192 F.3d at 398.
Finally, although the Third Circuit has not yet addressed the issue, this court
has found that the appropriate level of proof required from the government in these bond
determinations is clear and convincing evidence of risk of flight or danger to the
community. See Guerrero Sanchez v. Sabol, No. 1:15-CV-2423, 2016 WL 7426129, at
*5-6 (M.D. Pa. Dec. 23, 2016) (Caldwell, J.) (citing Lora v. Shanahan, 804 F.3d 601, 616
(2nd Cir. 2015), and Singh, 638 F.3d at 1203 (9th Cir. 2011)). As the Court of Appeals for
the Ninth Circuit aptly explained,
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Notably, Chi Thon Ngo involved a post-removal detainee facing certain removal from the United
States, unlike Petitioner and other section 1226 “pre-removal” detainees. See id. at 392-95.

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[E]ven 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. 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. The
Supreme Court has repeatedly reaffirmed the principle that due
process places a heightened burden of proof on the State in civil
proceedings in which the individual interests at stake . . . are both
particularly important and more substantial than the mere loss of
money. For [section 1226] detainees like Singh, who face years
of detention before resolution of their removability, the individual
interest at stake is without doubt particularly important and more
substantial than mere loss of money, and therefore a heightened
standard of proof is warranted.
Singh, 638 F.3d at 1203-04 (internal quotation marks and citations omitted). The Singh
court further reasoned that because a heightened standard of proof is applied in many
other immigration contexts, including those where the immigrant bears the burden of proof,
it makes sense that the “clear and convincing evidence” standard should also apply to the
government in section 1226 bond hearings. Id. at 1205 n.4. This court has found the
reasoning of Singh court persuasive, and concurs that the appropriate standard of proof is
clear and convincing evidence. Guerrero Sanchez, 2016 WL 7426129, at *6.
III.

Discussion
A. The Parties’ Arguments
Respondents contend that bond should be denied because Petitioner is both

a danger to the community and a flight risk. Respondents mainly rely on Petitioner’s
previous drug conspiracy conviction and his unlawful immigration status to support their
contentions. They maintain that because drug trafficking is an inherently violent criminal
activity, and because Petitioner was detained during the criminal proceedings prior to
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pleading guilty, Petitioner is presently a danger to the community. They further maintain
that Petitioner’s illegal entrance into the United States in 1998 with false documents and
his ongoing removal proceedings indicate that he is a current flight risk as well.
Petitioner counters Respondents’ claims with a host of evidence including,
but not limited to, (1) a court order and an executed limited power of attorney to
corroborate his mother’s motor vehicle injury and her need for prescription medication,
which was the purported reason Petitioner left the United States and traveled to Mexico in
1998; (2) IRS Form 1040s for 1999 to 2002 and 2004 to 2011 evidencing Petitioner’s filing
of federal income tax returns and payment of income tax; (3) Petitioner’s May 19, 2015
notice of release and arrival indicating his “good conduct time release” from federal
incarceration into ICE custody; (4) multiple notarized letters from Petitioner’s co-workers
and employers averring to his good character and plumbing expertise, as well as
indicating that they would consider hiring Petitioner for plumbing work if he were released
from detention; (5) Petitioner’s wife’s June 21, 2016 notice of approval of relative
immigrant visa petition; (6) a January 26, 2015 letter from the correctional center chaplain
explaining that Petitioner, since the summer of 2013, had consistently attended Catholic
Mass, participated as a musician for Catholic Mass, and acted as the music overseer and
equipment trainer for the Mass programming; (7) a February 3, 2015 letter from the prison
vocational coordinator explaining that Petitioner had been working since December 2013
for the vocational education department instructing other inmates in plumbing and HVAC
in both English and Spanish, and that Petitioner also had worked on projects in the prison
itself alongside the maintenance crew; (8) Petitioner’s November 26, 2014 certificate of
completion of “Choice and Change Drug Abuse Education Program”; (9) a copy of

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Petitioner’s Nevada marriage certificate; (10) Petitioner’s résumé outlining his extensive
residential and commercial plumbing experience, licensing, and employment history; (11)
copies of Petitioner’s numerous plumbing and fire safety certificates and licenses; (12) a
September 27, 2016 letter from one of Petitioner’s three daughters, Jocelyn Guerrero,
directed to the Immigration Court, highlighting the difficulty of not having Petitioner to
support the family and requesting an affordable bail determination; and (13) a September
28, 2016 letter from another one of Petitioner’s daughters, Sandra Guerrero, directed to
the Immigration Court, highlighting Petitioner’s good character, explaining the strain of
losing Petitioner’s financial and familial support, and requesting an affordable bail
determination. (Doc. 39-1).
Petitioner also provided relevant documents from his ongoing claim for
withholding of removal under the Convention Against Torture (“CAT”). Most recently, the
Third Circuit granted his petition for review based on his application for protection under
the CAT, vacated the prior order of the BIA, and remanded the matter to the BIA for
further proceedings. Guerrero v. U.S. Attorney Gen., No. 16-1217 (3d Cir. Oct. 19,
2016); (Doc. 37-1). In its opinion, the Third Circuit found that the IJ and the BIA had too
narrowly construed the government-acquiescence-to-torture standard under the CAT.
Guerrero v. U.S. Attorney Gen., No. 16-1217, at 6 (3d Cir. Nov. 30, 2016). The Third
Circuit concluded that
the BIA erred by failing to consider whether record evidence of the
violence caused by the Sinaloa cartel and corruption of law
enforcement officials demonstrated that it is more likely than not
that Guerrero will be tortured “by or at the instigation of or with the
consent or acquiescence of a public official . . . .” If it is, Guerrero
may have met his burden under the CAT.
Id. at 7 (citation omitted).
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In addition, the Presentence Investigation Report (“PSR”), (Doc. 41), for
Petitioner’s years-old drug conspiracy conviction shows that Petitioner has no criminal
history. (Doc. 41 at 25). The PSR further indicates that Petitioner accepted responsibility
for his actions. (Id. at 23-24). Petitioner also notes that he has repeatedly expressed
remorse for his prior criminal episode. He further avers that he had no disciplinary
infractions while incarcerated or detained, and that he has never missed an immigration
court hearing or proceeding.
Finally, Petitioner has provided evidence of his marriage to United States
citizen Sandra Guerrero, as well as the birth of his three citizen daughters to this marriage.
(Doc. 52-1 at 3-7). Petitioner’s wife and eldest daughter flew from Las Vegas, Nevada to
attend the instant bond hearing, and his wife testified on Petitioner’s behalf and also
volunteered to be his custodian if he were released. Petitioner’s wife testified that she has
lived in Las Vegas, Nevada for over twenty years, and that Petitioner has not returned to
Mexico since his 1998 trip. She further testified that when federal authorities came to
arrest Petitioner for the prior drug crime, she called Petitioner and told him that law
enforcement was present, and he immediately returned home and turned himself over
rather than trying to flee.
B. Respondents Have Failed to Carry Their Burden
After conducting the instant bond hearing and thoroughly reviewing the
record evidence proffered by the parties, the court finds that Respondents have failed to
carry their burden. That is, Respondents have not shown by clear and convincing
evidence, or even a preponderance of the evidence, that Petitioner’s continued detention
is necessary to facilitate the goals of the detention statute.

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1. Petitioner Is Not a Current Flight Risk
The court finds that the overwhelming majority of record evidence indicates
that Petitioner is not a current flight risk—i.e., that he is likely to attend removal
proceedings. First, Petitioner has a wife and three daughters living in Las Vegas,
Nevada—all of whom are United States citizens. Petitioner’s wife testified that he could
reside with his family if he were released, and that she would act as his custodian. These
substantial familial ties cut strongly in favor of finding that Petitioner is not a current flight
risk. See Leslie, 865 F. Supp. 2d at 640 (explaining that “courts have long recognized”
that having extensive family ties to the United States “strongly militates against a risk of
flight”) (citing United States v. Himler, 797 F.2d 156 (3d Cir. 1986); United States v.
Carbone, 793 F.2d 559 (3d Cir. 1986)).
Equally persuasive is Petitioner’s ongoing withholding of removal claim,
which clearly has merit and may yet provide relief from his final order of removal.
Petitioner has every reason to attend future immigration proceedings, not the least of
which is his credible fear of being returned to Mexico and facing members of the Sinaloa
cartel, who have physically injured his brother and threatened Petitioner’s life. Petitioner’s
wife confirmed this fear during her testimony at the bond hearing.
Finally, there are conditions of release that will further assure Petitioner’s
appearance at future immigration proceedings. Such conditions include contacting
immigration officials before a change of residence or telephone number, having
Petitioner’s wife act as a custodian who will agree to supervise Petitioner and ensure his
appearance at immigration proceedings, and restricting Petitioner’s travel radius.

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2. Petitioner Is Not a Current Danger to the Community
The great weight of record evidence also indicates that Petitioner is not a
present danger to the community. To be sure, Petitioner committed a serious crime. As
the Third Circuit has admonished, it is not that past “convictions are no longer relevant.
[But d]ue process is not satisfied . . . by rubberstamp denials based on temporally distant
offenses. The process due even to . . . aliens requires an opportunity for an evaluation of
the individual’s current threat to the community[.]” Chi Thon Ngo, 192 F.3d at 398
(emphasis added). Indeed, “presenting danger to the community at one point by
committing a crime does not place [a detainee] forever beyond redemption.” Id.
Here, Petitioner has provided substantial evidence that he is not a present
danger to the community. See supra pp. 5-7. That evidence includes the absence of any
criminal history beyond his drug conspiracy conviction, acceptance of responsibility for his
criminal conduct, extensive evidence of rehabilitation and good conduct while incarcerated
and detained, multiple offers of support from family and employers if he were to be
released, and numerous sworn statements attesting to Petitioner’s good character.
Respondents, meanwhile, have attempted to carry their burden by relying
almost exclusively on Petitioner’s years-old drug conspiracy conviction and generalities
regarding the violent nature of the drug trade. But such generalities, by their nature, are
not “individualized” considerations of Petitioner’s danger to the community, as the law
requires. See Chavez-Alvarez, 783 F.3d at 478; Leslie, 678 F.3d at 271; Diop, 656 F.3d
at 233. Moreover, “[d]ue process is not satisfied . . . by rubberstamp denials based on
temporally distant offenses.” Chi Thon Ngo, 192 F.3d at 398. Accordingly, the court finds

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that the record evidence militates strongly in favor of finding that Petitioner is not a present
danger to the community.
V.

Conclusion
Rafael Ignacio Guerrero Sanchez has now been detained for more than one

year and eight months beyond the thirty-seven months’ incarceration he served for his
underlying criminal conviction. Today, the court finds that Petitioner is neither a current
flight risk nor a danger to the community. Therefore, his continued detention is not
necessary to fulfill the purposes of the detention statute. Accordingly, an order releasing
Petitioner from detention and setting forth appropriate conditions of release will follow.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

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