Evariste v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MUGIRANEZA EVARISTE,

No. 6:19-cv-06441-MAT

Petitioner, DECISION AND ORDER

-vs-

WILLIAM P. BARR, U.S. Attorney

General; DEPARTMENT OF HOMELAND

SECURITY; THOMAS E. FEELEY, Field

Office Director for Detention

and Removal, Buffalo Field Office,

Bureau of Immigration and Customs

Enforcement; and JEFFREY J. SEARLS,

Facility Director, Buffalo Federal

Detention Facility,

Respondents.

I. Introduction

Proceeding pro se, Mugiraneza Evariste, a/k/a Evariste

Mugiraneza (“Mugiraneza”) commenced this habeas proceeding pursuant

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

(hereinafter, “the Government”) challenging his continued

detention in the custody of the United States Department of

Homeland Security, Immigration and Customs Enforcement (“DHS”).

This is the second § 2241 petition Mugiraneza has filed challenging

his immigration detention. In the first proceeding, Mugiraneza v.

Whitaker, et al., No. 6:19-cv-06140-MAT, 2019 WL 2395316 (W.D.N.Y.

June 6, 2019) (“Mugiraneza I”), the Court dismissed the petition

without prejudice with leave to refile should Mugiraneza experience

a material change in circumstances warranting a new bond hearing.

In the present petition, Mugiraneza merely repeats the same

Due Process and Eighth Amendment claims in his first petition,

asserting–incorrectly—that he has never had an individualized bond

hearing. As the Government points out, Mugiraneza again has failed

to acknowledge that he did receive an individualized bond hearing

before on February 1, 2017, before an immigration judge (“IJ”)

pursuant to Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), vacated,

138 S. Ct. 1260 (2018), at which DHS bore the burden of proving by

clear and convincing evidence that Mugiraneza was not entitled to

release on bond. For the reasons discussed below, the Court denies

Mugiraneza’s request for a writ of habeas corpus. The petition

(Docket No. 1) is dismissed with prejudice.

II. Factual Background and Procedural History

Mugiraneza, a native and citizen of the Democratic Republic

of Congo (“DRC”), was admitted to the United States at New York,

New York, on or about September 24, 2014, as a refugee (RE-2).

On October 3, 2015, the City of Syracuse Police Department

arrested Mugiraneza for Assault in the Second Degree (intent to

cause serious physical injury) in violation of New York Penal Law

(“P.L.”) § 120.05(1). P.L. § 120.05(1) is a class D felony and an

offense for which a sentence of imprisonment of one year or longer

is authorized. According to the police report filed, Mugiraneza

entered his estranged wife’s apartment without permission, hit and

kicked her repeatedly about the head and neck, causing a fracture

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of one of her cervical vertebrae. An Onondaga County grand jury

subsequently indicted Mugiraneza on four counts: Assault in the

Second Degree in violation of P.L. § 120.05(1), Unlawful

Imprisonment in the First Degree in violation of P.L. § 135.10,

Criminal Possession of Stolen Property in the Fourth Degree in

violation of P.L. § 165.45(2), and Petit Larceny in violation of

P.L. § 155.25.

On March 3, 2016, Mugiraneza pleaded guilty in Onondaga County

Court to P.L. § 120.05(1) in full satisfaction of the indictment.

On May 13, 2016, he was sentenced principally to 5 years’

probation.

On June 24, 2016, United States Immigration and Customs

Enforcement (“ICE”) arrested Mugiraneza at the Onondaga County

Probation Office. ICE determined to retain him in custody.

On July 1, 2016, DHS issued a Notice to Appear (“NTA”),

charging Mugiraneza with being removable under 8 U.S.C.

§ 1227(a)(2)(A)(i) as an alien convicted of a crime involving moral

turpitude committed within five years after his admission to the

United States for which a sentence of one year or longer could be

imposed.

On February 1, 2017, Mugiraneza had a custodial determination

hearing before an immigration judge (“IJ”) pursuant to Lora v.

Shanahan, 804 F.3d 601 (2d Cir. 2015), vacated 138 S. Ct. 1260

(2018) (“Lora”). The IJ denied Mugiraneza’s request to change his

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custodial status, finding that DHS had established by clear and

convincing evidence that he is a danger to the community.

Mugiraneza appealed the denial of bond to the Board of Immigration

Appeals (“BIA”). On May 4, 2017, the BIA dismissed his appeal,

concluding that the IJ did not err in finding that the DHS

demonstrated by clear and convincing evidence that Mugiraneza poses

a danger to the community.

On May 30, 2018, an IJ issued an order stating Mugiraneza was

removable as charged. The IJ found Mugiraneza statutorily

ineligible for asylum or withholding of removal because his offense

was a “particularly serious crime” and, even if the offense were

not a “particularly serious crime,” Mugiraneza did not carry his

burden of proof for demonstrating entitlement to asylum,

withholding of removal, or protection under the Convention Against

Torture (“CAT”). In addition, the IJ concluded that even if

Mugiraneza qualified for asylum, the IJ would deny asylum in the

exercise of his discretion. With respect to Mugiraneza’s

application for adjustment of status under INA § 209(a) pertaining

to those admitted to the United States under 8 U.S.C. § 1157 as

refugees, the IJ determined that, in light of his criminal

conviction, Mugiraneza required a discretionary waiver of

inadmissibility. However, the IJ found, Mugiraneza did not qualify

for such a waiver. The IJ also denied Mugiraneza’s application to

adjust his status under INA § 209(a) as a matter of discretion. The

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IJ accordingly ordered that Mugiraneza be removed to the DRC.

Mugiraneza appealed to the BIA, which dismissed his appeal on

October 26, 2018.

On October 30, 2018, Mugiraneza refused to complete a travel

document application for the DRC Embassy. Consequently, he was

placed in “failure to comply” status. Also on October 30, 2018, DHS

served Mugiraneza with an I-229, Warning for Failure to Depart and

Notice, informing him that he was legally required to assist in his

removal.

On November 7, 2018, DHS issued a Warrant of

Removal/Deportation for Mugiraneza and requested that the DRC issue

a passport or other suitable travel document for him.

On November 19, 2018, Mugiraneza was served with a Notice of

Failure to Comply pursuant to 8 C.F.R. § 241.4(g).

In the meantime, on November 15, 2018, Mugiraneza filed a pro

se petition for review of the BIA’s decision with the United States

Court of Appeals for the Second Circuit (“Second Circuit”), along

with a motion for a stay of removal and a motion to appoint

counsel. The Government opposed the stay motion and filed a

supplement with exhibits on November 26, 2018.

On January 9, 2019, DHS served Mugiraneza with another I-229,

Warning for Failure to Depart and Notice.

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On January 16, 2019, DHS received a travel document for

Mugiraneza’s removal from the DRC Embassy and took Mugiraneza out

of failure to comply status.

On February 12, 2019, after DHS obtained a travel document for

Mugiraneza, the Government asked the Second Circuit to expedite

adjudication of the stay motion.

On or about February 20, 2019, DHS issued and served on

Mugiraneza a Decision to Continue in Custody. Prior to this

decision, Mugiraneza had acquired at least two separate

disciplinary reports at the Buffalo Federal Detention Facility

based on three violations (possessing of anything not authorized on

July 5, 2018; lying or providing a false statement to a staff

member on July 27, 2018; and fighting, boxing, sparring, or

wrestling, etc. on July 27, 2018).

On February 13, 2019, Mugiraneza filed his first habeas

petition in Mugiraneza I, asserting that his “prolonged detention

without a hearing on danger and flight risk violates the Due

Process Clause of the Fifth Amendment and the Eighth Amendment’s

Excessive Bail Clause.” He requested that this Court determine that

his detention is not justified because the Government has not

established by clear and convincing evidence that he presents a

risk of flight or danger in light of available alternatives to

detention, and order his release, with appropriate conditions of

supervision if necessary, taking into account his ability to pay a

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bond. In the alternative, he requested that this Court order his

release within 30 days unless the Government scheduled a hearing

before an IJ at which the Government bore the burden of proof.

On February 28, 2019, the Second Circuit granted the

Government’s motion to expedite, granted Mugiraneza’s motion to

stay his removal, and granted his motion for assignment of pro bono

counsel.

On June 6, 2019, the Court issued a Decision and Order

dismissing the petition in Mugiraneza I without prejudice with

leave to refile should Mugiraneza experience a material change in

circumstances warranting a new bond hearing. Judgment was entered

on June 7, 2019.

On June 13, 2019, Mugiraneza commenced the instant habeas

proceeding, reasserting the same claims raised in Mugiraneza I. On

June 20, 2019, the Court issued an Order (Docket No. 2)

administratively closing the case due to Mugiraneza’s failure to

pay the filing fee or file a properly supported motion for leave to

proceed in forma pauperis. Mugiraneza subsequently paid the $5

filing fee and, on July 8, 2019, the Court ordered that the

Petition be served on the named Respondents, who were directed to

answer. See Docket No. 5.

Mugiraneza also filed a Motion to Appoint Counsel (Docket

No. 4) and Motion for Leave to Proceed In Forma Pauperis (Docket

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No. 3). He subsequently submitted letters (Docket No. 8) from

various individuals supporting his request for release on bond.

The Government filed a Response (Docket No. 9) to the

Petition, along with various exhibits (Docket Nos. 9-1, 9-2, 9-3),

and a Memorandum of Law (Docket No. 9-4).

On September 6, 2019, Mugiraneza filed a Reply (Docket No. 10)

to the Government’s Response.

On September 30, 2019, Joseph Moravec, Esq. filed a Notice of

Appearance (Docket No. 11) on behalf of Mugiraneza. However,

Attorney Moravec has not filed any pleadings on his client’s

behalf.

III. Scope of Review

Title 28 U.S.C. § 2241 grants this Court jurisdiction to hear

habeas corpus petitions from aliens claiming they are held “in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678,

687 (2001) (citing 28 U.S.C. § 2241(c)(3)). However, the REAL ID

Act of 2005, Pub. L. No. 109-13, § 106(a), 199 Stat. 231 (May 11,

2005) amended the Immigration and Nationality Act (“INA”) to

provide that petitions for review filed in the appropriate Courts

of Appeals were to be the “sole and exclusive means for judicial

review” of final orders of removal. Ruiz-Martinez v. Mukasey, 516

F.3d 102, 113 (2d Cir. 2008) (citing REAL ID Act § 106(c); 8 U.S.C.

§ 1252(a)(5)). In other words, the REAL ID Act “strips district

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courts of jurisdiction to hear habeas petitions challenging final

orders of deportation. . . .” De Ping Wang v. Dep’t of Homeland

Sec., 484 F.3d 615, 615-16 (2d Cir. 2007). District courts still

are empowered to grant relief under § 2241 to claims by aliens

under a final order of removal who allege that their post-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).

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IV. Discussion

A. The Due Process Claim

The Petition’s First Claim for Relief, see Petition (“Pet.”)

¶¶ 36-39, asserts that his “ongoing detention without a hearing

violates due process.” Id. ¶ 39. Mugiraneza asserts that “[t]o

justify [his] ongoing prolonged detention, due process requires

that the government establish, at an individualized hearing before

a neutral decisionmaker, that [his] detention is justified by clear

and convincing evidence of flight risk or danger. . . .” Id. ¶ 38.

To the extent Mugiraneza contends that he has never been

afforded an individualized bond hearing, he is incorrect. As noted

above, he received a Lora bond hearing on February 1, 2017, before

an IJ. At that time, Mugiraneza was considered to be detained

pursuant to 8 U.S.C. § 1226(c) (“§ 1226(c)”).1 In Lora, the Second

Circuit held that § 1226(c) “must be read as including an implicit

temporal limitation” in order to avoid “serious constitutional

concerns” raised by indefinite detention. 804 F.3d at 614. Adopting

the Ninth Circuit’s bright-line rule, Lora held that an alien

1

The Government points out that some documents in Mugiraneza’s DHS file

refer to his detention as being pursuant to § 1226(c) (which provides for

mandatory detention of certain criminal aliens). However, because his criminal

sentence ultimately did not include a term of imprisonment of one year or longer

(requiring mandatory detention pursuant to § 1226(c)), his detention is pursuant

to § 1226(a), which “creates a default rule for [aliens already present in the

United States] by permitting—but not requiring—the Attorney General to issue

warrants for their arrest and detention pending removal proceedings.” Jennings

v. Rodriguez, 138 S. Ct. 830, 846 (2018). Section 1226(a) also permits the

Attorney General to release those aliens on bond, ‘[e]xcept as provided in’”

§ 1226(c). Id. at 847 (alteration in original).

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detained pursuant to § “1226(c) must be afforded a bail hearing

before an immigration judge within six months of his or her

detention,” 804 F.3d at 616 (citing Rodriguez v. Robbins, 715 F.3d

1127, 1132–33 (9th Cir. 2013)). The Second Circuit also followed

the Ninth Circuit in holding that the alien “must be admitted to

bail unless the government establishes by clear and convincing

evidence that [he or she] poses a risk of flight or a risk of

danger to the community.” Lora, 804 F.3d at 616 (citing Rodriguez,

715 F.3d at 1131; footnote omitted).

At Mugiraneza’s bond hearing, the IJ “recognize[d] that Lora

altered the burden of proof and evidentiary standards in bond

hearings by shifting the burden from the alien to establish he does

not pose a risk of danger to the community and does not pose a

flight risk to DHS to establish an alien should not be released on

bond. Under Lora, an Immigration Judge . . . ‘must’ set bond

‘unless the Government establishes by clear and convincing evidence

that the immigrant poses a risk of flight or a risk of danger to

the community.’” Bond Memorandum dated February 16, 2017.

The IJ then observed that Lora “did not alter” the well-

settled BIA precedent regarding the factors to be considered, such

as the extent of the alien’s criminal record and the recency and

seriousness of his criminal activity. Id. The IJ explained that he

considered the records pertaining to Mugiraneza’s criminal

conviction and ensuing order of restraint, which indicated that he

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inflicted “very serious injuries” on the victim (i.e., facial

lacerations and a spinal fracture which necessitated the victim

wearing a neck brace). Id. The IJ also considered Mugiraneza’s

refusal to accept culpability and his “testimony in which he

asserted that the assault had been a ‘fabrication’ by the victim.”

Id. Although the IJ noted that Mugiraneza’s had submitted letters

of support from members of the community, the “bond record was

notably devoid of any statement” from the victim “indicating that

the events that formed the basis of [Mugiraneza]’s conviction were

merely a fabrication.” Id. The IJ also considered the information

in the police report that the incident at issue was not the first

time Mugarineza had been abusive towards the victim. The IJ held

that after “thorough consideration of the evidence, including the

respondent’s criminal record, the seriousness of his offense, and

the severity of the injuries sustained by the victim,” DHS had “met

its burden of showing by clear and convincing evidence that

Respondent is a danger to the community.” Accordingly, the IJ

denied Mugiraneza’s request for bond.

On appeal, the BIA affirmed the IJ’s decision on the Lora bond

determination, finding that Mugiraneza’s “criminal record, showing

that he severely beat his wife causing her serious physical harm,

supports the . . . determination that the DHS met its burden to

show by clear and convincing evidence that [Mugiraneza] is a danger

to the community. As this issue is dispositive, the [BIA] need not

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address the additional issue of whether [Mugiraneza] poses a risk

of flight.” BIA Order dated May 4, 2017. The BIA rejected

Mugiraneza’s argument on appeal that the existence of a past

criminal record is not necessarily sufficient to meet the

Government’s burden pursuant to Lora,2 especially since “his wife,

who was the victim of his ‘sole indiscretion,’ wrote a letter to

the [IJ] in support of [him], indicating that he is not a threat to

her” and “several members of the Congo local community” submitted

letters “that he is not a threat to the community.” Id. The BIA

found that these letters “do not negate the evidence demonstrating

the violence of [Mugiraneza’s] assault of his wife.” Id.

As the foregoing procedural history demonstrates, Mugiraneza’s

second Petition rests on the same incorrect factual premise on

which his first Petition rested—that he did not receive an

individualized bond hearing. What is more, Mugiraneza enjoyed the

benefit of having the burden of proof allocated to the Government

under then-controlling Second Circuit precedent in Lora, supra. The

Supreme Court “has placed the burden on the Government to justify

civil detention or the deprivation of other constitutional rights

by making a showing of at least clear and convincing evidence.”

2

On March 5, 2018, a little less than a year after the BIA’s affirmance of

the denial of bond, Lora was vacated, based on the Supreme Court’s decision in

Jennings, 538 138 S. Ct. 830. See Shanahan v. Lora, 138 S. Ct. 1260 (2018)

(reversing and remanding Second Circuit decision for further consideration in

light of Jennings). On remand in Lora, the Second Circuit did not consider the

issues raised by the Supreme Court because, during the pendency of the appeal,

the petitioner had received cancellation of removal. Therefore, the case became

moot. Lora v. Shanahan, 719 F. App’x 79 (2d Cir. 2018).

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Sajous v. Decker, No. 18-CV-2447(AJN), 2018 WL 2357266, at *12

(S.D.N.Y. May 23, 2018) (citing Zadvydas, 533 U.S. at 692; Foucha

v. Louisiana, 504 U.S. 71, 81-83 (1992); other citations omitted).

That was the standard applied by the IJ case at Mugiraneza’s bond

hearing. Thus, Mugiraneza cannot demonstrate that he was denied Due

Process at the Lora bond hearing.

Once an IJ has made an initial bond redetermination, a

detainee being held pursuant to § 1226(a) may request a subsequent

bond redetermination. Such a request must be made in writing and

must show that the detainee’s circumstances have changed materially

since the prior bond redetermination. 8 C.F.R. § 1003.19(e). Here,

there is no suggestion that Mugiraneza sought a bond

redetermination hearing pursuant to 8 C.F.R. § 1003.19(e) between

June 6, 2019, the date the Court denied his first Petition, and

June 13, 2019, the date he signed his second Petition. Nowhere in

his Petition or in his Reply does Mugiraneza assert that he has

experienced materially changed circumstances. Rather, Mugiraneza

relies on cases involving detention pursuant to 8 U.S.C. § 1226(c),

which does not provide for any type of individualized bond hearing,

in contrast to § 1226(a), and argues that his detention since the

Lora hearing has become unreasonably long. He asserts that under

the three-part test articulated in Mathews v. Eldridge, 424 U.S.

319 (1976), he is entitled to a second bond hearing. In Mathews,

the Supreme Court articulated a three-part test to determine

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whether established procedures provide constitutionally sufficient

due process. 424 U.S. at 334-35. District courts have applied

Mathews to habeas petitions involving noncitizens who were detained

under § 1226(a), who, like Mugiraneza, had already received a

constitutionally sufficient bond hearing and were seeking a second

hearing. See, e.g., Viramontes-Gomez v. Nielsen, No. 18-935, 2018

WL 6111015, at *4 (W.D. Wash. Oct. 18, 2018), report and

recommendation adopted, 2018 WL 6107293 (W.D. Wash. Nov. 21, 2018);

Soto v. Sessions, No. 18-2891, 2018 WL 3619727, at *3-*5 (N.D. Cal.

July 30, 2018). On the facts of this case, the Court concludes that

due process does not require an additional bond hearing at this

time.

To determine the specific dictates of due process in a given

situation, Mathews requires consideration of (1) the private

interest affected by government action; (2) the government’s

interest, including the function involved and the burdens that

additional or alternative procedures would entail; and (3) the risk

of an erroneous deprivation of the private interest through the

procedures used, and the probable value, if any, of additional or

alternative procedures. Mathews, 424 U.S. at 334-35; accord, e.g.,

Nelson v. Colorado, 137 S. Ct. 1249, 1255 (2017).

Turning to the first factor, Mugiraneza’s freedom from

detention is at stake, which is an important interest that “lies at

the heart of the liberty that [the Due Process] Clause protects.”

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Zadvydas v. Davis, 533 U.S. 678, 690 (2001). It has been

approximately two years and eight months since his last bond

hearing, a significant length of time.

At the same time, the government has legitimate and important

interests in continuing to detain Mugiraneza. In particular,

detention assures that he will appear if ultimately ordered removed

and protects the community as a whole (and his estranged wife) from

him given his criminal history of domestic violence. As to the

third factor, Mugiraneza already has received an individualized

bond hearing before a neutral judge3 at which the Government bore

the burden of proving by clear and convincing evidence that he was

a danger to the community and thus not entitled to bond. Thus, the

procedures used are those that this Court and numerous others have

held are constitutionally required in order to mitigate the risk of

an erroneous deprivation of an alien’s liberty interest. Mugiraneza

has made no showing of circumstances that would justify a different

custody determination at this time, which leads the Court to

conclude that no value would be added by holding another bond

hearing. Weighing the three Mathews factors, the Court concludes

that Mugiraneza has received all of the due process protections to

3 Immigration judges are part of the Executive Office for

Immigration Review (“EOIR”), which is a component of the Department of Justice

(“DOJ”). ICE is a part of DHS, and both are “entirely separate” from the DOJ

and EOIR. In proceedings before an IJ or the BIA, DHS is deemed to be a party

and is represented by ICE. See Immigration Court Practice Manual, Ch. 1, § 1.2

(DOJ July 30, 2019), available at

https://www.justice.gov/eoir/page/file/1189481/download.

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which he is entitled at this time. Accordingly, the Court dismisses

his Fifth Amendment claim as without merit.

B. The Eighth Amendment Claim

In his second claim for relief, Mugiraneza asserts that his

prolonged detention violates the Eighth Amendment which prohibits

“excessive bail.” Pet. ¶ 41 (quoting U.S. CONST., amend. VIII). The

Eighth Amendment states, “Excessive bail shall not be required . .

. .” U.S. CONST., amend. VIII. The Excessive Bail Clause does not

“accord a right to bail in all cases, but merely [provides] that

bail shall not be excessive in those cases where it is proper to

grant bail.” Carlson v. Landon, 342 U.S. 524, 545 (1952); see also

Leader v. Blackman, 744 F. Supp. 500, 509 (S.D.N.Y. 1990) (“It is

well settled that bail may be denied under many circumstances,

including deportation cases, without violating any constitutional

rights.”). As Mugiraneza fails to point to any authority

establishing that it is proper to grant him bail under the Eighth

Amendment, the Court denies this claim. Banda v. McAleenan, 385 F.

Supp.3d 1099, 1121 (W.D. Wash. 2019).

V. Conclusion

For the foregoing reasons, the request for a writ of habeas

corpus is denied, and the Petition (Docket No. 1) is dismissed. The

Motion to Appoint Counsel is denied as Moot. The Motion for Leave

to Proceed In Forma Pauperis is denied as moot, Petitioner having

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already paid the filing fee. The Clerk of Court is directed to

close this case.

SO ORDERED.

S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA

United States District Judge

Dated: November 4, 2019

Rochester, New York.

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