Diaz Ortiz v. Tompkins

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

CRISTIAN DIAZ ORTIZ, )

)

Petitioner, )

) Civil Action

v. ) No. 18-12600-PBS

)

YOLANDA SMITH, Superintendent of )

Suffolk County Correctional )

Facility, )

)

Respondent. )

___________________________________)

MEMORANDUM AND ORDER

June 7, 2019

Saris, C.J.

INTRODUCTION

Petitioner Cristian Diaz Ortiz, an undocumented alien born

in El Salvador with no criminal record, has been in U.S.

Immigration and Customs Enforcement (“ICE”) custody since August

20, 2018. ICE is detaining him pursuant to 8 U.S.C. § 1226(a)

while his removal proceedings are pending. At his first custody

redetermination hearing, the immigration judge placed the burden

on him to prove his eligibility for release on bond and declined

to release him. Diaz Ortiz filed a petition for writ of habeas

corpus in this Court alleging that this allocation of the burden

of proof violated his due process rights. Following its earlier

decision in Pensamiento v. McDonald, 315 F. Supp. 3d 684 (D.

Mass. 2018), appeal dismissed, No. 18-1691 (1st Cir. Dec. 26,

2018), the Court agreed. On January 29, 2019, the Court ordered

the Government to provide Diaz Ortiz with a new custody

redetermination hearing at which it bore the burden of proof to

show that he is dangerous or a flight risk (“the January 29

order”). The Government filed a notice of appeal. At Diaz

Ortiz’s second hearing, a different immigration judge again

declined to release him. Diaz Ortiz now moves to enforce the

January 29 order, arguing that the immigration judge at his

second hearing also failed to put the burden of proof on the

Government.

JURISDICTION

The Court has jurisdiction to address Diaz Ortiz’s motion.

The January 29 order granted a conditional writ of habeas corpus

that gave the Government a chance to cure the constitutional

defect in Diaz Ortiz’s detention. See Herrera v. Collins, 506

U.S. 390, 403 (1993). A district court retains jurisdiction to

“review compliance with its earlier order conditionally granting

habeas relief.” Leonardo v. Crawford, 646 F.3d 1157, 1161 (9th

Cir. 2011) (collecting cases). The fact that the Government has

appealed the January 29 order does not deprive the Court of

jurisdiction because Diaz Ortiz seeks only enforcement of an

already issued order.1 See, e.g., Blue Cross & Blue Shield

Ass’n v. Am. Express Co., 467 F.3d 634, 638 (7th Cir. 2006)

(“[T]he district court may enforce its judgment while an appeal

to test that judgment’s validity proceeds.”); In re Padilla, 222

F.3d 1184, 1190 (9th Cir. 2000) (“Absent a stay or supersedeas,

the trial court also retains jurisdiction to implement or

enforce the judgment or order . . . .”).

That said, the Court’s authority in enforcing its order is

limited. Diaz Ortiz must show the immigration judge failed to

place the burden of proof on the Government as required by the

January 29 order. To make this showing, he can either point to

the language of the immigration judge’s opinion or demonstrate

that “the evidence itself could not –- as a matter of law –-

have supported” the immigration judge’s decision to deny bond.

Hechavarria v. Whitaker, 358 F. Supp. 3d 227, 240 (W.D.N.Y.

2019).

THE BOND DECISION

The immigration judge’s opinion demonstrates that he placed

the burden of proof by a preponderance of the evidence on the

Government. Although he noted in a footnote that “in most bond

1 Diaz Ortiz need not exhaust administrative remedies by

appealing the immigration judge’s denial of bond to the Board of

Immigration Appeals insofar as he argues that his hearing was

again constitutionally inadequate because the immigration judge

did not put the burden of proof on the Government. See

Pensamiento, 315 F. Supp. 3d at 689.

proceedings, the respondent would have the burden of proving

that he or she should be released,”2 Dkt. No. 41-1 at 3 n.1, he

referenced the January 29 order, explained that the Government

bore the burden of proof, and stated his conclusion that the

Government had met its burden. Diaz Ortiz contends that the

immigration judge effectively created a presumption that the

Government’s evidence of his gang membership was true and

persuasive by failing to acknowledge its flaws. The opinion does

not support this interpretation: the immigration judge merely

explained that he found that Government’s evidence to be

persuasive. Nor does the immigration judge’s citations to Board

of Immigration Appeals (“BIA”) decisions that put the burden of

proof on the alien demonstrate that he misallocated the burden

of proof. BIA precedent requires that the burden of proof fall

on the alien, In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006),

so all its decisions place the burden on the alien.

The primary evidence the Government submitted to show Diaz

Ortiz’s dangerousness was (1) a gang report that documented his

frequent associations with others suspected of being MS-13 gang

members and (2) his possession of a padlock and chain in his

backpack, a weapon commonly used by MS-13 members. Although the

2 The Government dismissed its appeal of Pensamiento.

Accordingly, the Court will apply that ruling reallocating the

burden of proof to all subsequent § 1226(a) bond proceedings

unless the First Circuit reaches a contrary conclusion.

gang report contains hearsay evidence, the immigration judge may

rely on the opinion of law enforcement experts that Diaz Ortiz

appears to be an MS-13 member if based on reliable information.

Given the violent nature of the MS-13 gang, such evidence was

sufficient to allow the immigration judge to find by a

preponderance of the evidence that Diaz Ortiz is a danger to the

community.

Diaz Ortiz seeks to undermine the probative value of the

gang report, pointing out that a federal regulation permits the

inclusion in the gang database of information on suspects for

whom there is only “reasonable suspicion” of criminal conduct or

activity. 28 C.F.R. § 23.20. However, multiple law enforcement

agencies (Department of Homeland Security, FBI, Boston Police

Department/Boston Regional Intelligence Center, and Boston

School Police) had the opinion that he was a gang member or

affiliate because he was carrying a common MS-13 gang weapon in

his backpack, frequented areas notorious for MS-13 gang

activity, and had contacts with known gang members/associates.3

3 Diaz Ortiz criticizes the FBI’s terse opinion because it

provides no factual basis for its conclusion that he is a member

of MS-13. While the lack of factual support reduces the weight

to be given to the opinion, the immigration judge could consider

it to the extent it corroborates other law enforcement opinions.

Although the document states at the bottom that it “contains

neither recommendations nor conclusions of the FBI,” Dkt. No.

41-5 at 2, this appears to be pro forma language.

Diaz Ortiz also emphasizes that the immigration judge did

not consider the statements from community members, neighbors,

and family he submitted, but an immigration judge “can consider

all the evidence without directly addressing in his written

decision every piece of evidence submitted by a party.” NRLB v.

Beverly Enters.-Mass., Inc., 174 F.3d 13, 26 (1st Cir. 1999).

That a different immigration judge reached the opposite

conclusion with respect to John Doe, who was arrested with Diaz

Ortiz, does not demonstrate that this immigration judge applied

the wrong burden of proof.

The immigration judge’s determination that Diaz Ortiz is

dangerous obviated any need for him to consider conditions of

release. See Matter of Urena, 25 I. & N. Dec. 140, 141 (BIA

2009) (“Dangerous aliens are properly detained without bond.”).

Furthermore, the finding of dangerousness renders irrelevant any

complaints Diaz Ortiz raises about the immigration judge’s

consideration of his flight risk. See id. (“Only if an alien

demonstrates that he does not pose a danger to the community

should an Immigration Judge continue to a determination

regarding the extent of flight risk posed by the alien.”).

Ultimately, Diaz Ortiz disagrees with the immigration

judge’s weighing of the evidence and exercise of discretion with

respect to dangerousness. The Court does not have jurisdiction

to hear such a challenge. See 8 U.S.C. § 1226(e); see also

Demore v. Kim, 538 U.S. 510, 516 (2003) (explaining that 8

U.S.C. § 1226(e) bars an alien’s challenge to “a discretionary

judgment by the Attorney General or a decision that the Attorney

General has made regarding his detention or release” (internal

quotation marks omitted)); Pensamiento, 315 F. Supp. 3d at 688

(“Congress has eliminated judicial review of discretionary

custody determinations.”). And for the reasons just described,

the Court cannot say that “the exercise of discretion in denying

bond was so arbitrary that it would offend fundamental tenets of

due process.” Pratt v. Doll, No. 3:17-cv-1020, 2019 WL 722578,

at *4 (M.D. Pa. Feb. 20, 2019), appeal filed, No. 19-1641 (3d

Cir. March 25, 2019).

STANDARD OF PROOF

Diaz Ortiz has raised other constitutional challenges to

his custody redetermination hearing. Since the Government has

appealed the January 29 order, the Court does not have

jurisdiction to decide these issues now. See In re Padilla, 222

F.3d at 1190 (explaining that a trial court “may not alter or

expand upon the judgment” after the filing of a notice of

appeal). However, the Court notes that Diaz Ortiz argued that

due process requires that the Government prove his dangerousness

and flight risk by clear and convincing evidence. In

Pensamiento, this Court declined to adopt the clear and

convincing standard but did not rule out the possibility that it

is required by due process. See 315 F. Supp. 3d at 693. Since

the Supreme Court’s decision in Jennings v. Rodriguez, 138 S.

Ct. 830 (2018), and after Pensamiento, the Third Circuit has

ruled that the proper burden is clear and convincing evidence

for aliens detained under 8 U.S.C. § 1231(a)(6), see Guerrero-

Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 224 & n.12 (3d

Cir. 2018), and numerous district courts have imposed a clear

and convincing standard on the Government for § 1226(a)

detainees, see, e.g., Calderon-Rodriguez v. Wilcox, -- F. Supp.

3d --, 2019 WL 486409, at *1 n.8 (W.D. Wash. 2019); Darko v.

Sessions, 342 F. Supp. 3d 429, 435-36 (S.D.N.Y. 2018). Because

the January 29 order is on appeal, the Court has no jurisdiction

to address this issue in light of the new caselaw but notes that

requiring the Government to prove Diaz Ortiz’s dangerousness by

clear and convincing evidence could have made a difference in

the outcome of the custody redetermination hearing.

ORDER

Diaz Ortiz’s motion to enforce the conditional writ of

habeas corpus (Dkt. No. 39) is DENIED.

SO ORDERED.

/s/ PATTI B. SARIS

Hon. Patti B. Saris

Chief United States District Judge