Aparicio-Villatoro v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

FRANKLIN WI APARICIO-VILLATORO,

No. 6:19-cv-06294-MAT

Petitioner, DECISION AND ORDER

-vs-

WILLIAM 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” or “Petitioner”) commenced this habeas proceeding

pursuant to 28 U.S.C. § 2241 (“§ 2241”) against the named

Respondents (hereinafter, “the Government”) 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.”

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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-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-year-

old 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,

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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

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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. 28-

42 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. Aparicio-

Villatoro 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

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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-removal-

period 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 to detention that are independent of

challenges to removal orders.’”) (quoting H.R. Cong. 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

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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

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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,

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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 .

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. . without due process of law.” U.S. CONST., amend. V. The Supreme

Court has emphasized that “[f]reedom from imprisonment—from

government custody, detention, or other 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

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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

(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).

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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,

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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 cognizable prejudice fairly attributable to the

challenged process.”) (internal quotations omitted)); Linares

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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 single set of charges—now reduced to

misdemeanors—was not enough to show, by 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 record, including the extensiveness of

criminal activity, the recency of such activity, and the

seriousness of the offenses, (7) the immigrant’s history 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 Aparicio-

Villatoro’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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