Navarijo-Orantes v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MARIO NAVARIJO-ORANTES,

Petitioner,

v. 19-CV-790

DECISION AND ORDER

WILLIAM BARR, Attorney General;

THOMAS FEELEY, Field Office Director

for Detention and Removal, Buffalo Field

Office, Bureau of Immigration and

Customs Enforcement; and JEFFREY

SEARLS, Facility Acting Director, Buffalo

Federal Detention Facility,

Respondents.

Mario Navarijo-Orantes is a citizen of Guatemala who is detained while he awaits

judicial review of his application for withholding of removal. He has been in federal

immigration detention for over a year. On June 14, 2019, Navarijo-Orantes filed a pro

se petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging the validity

of his detention at the Buffalo Federal Detention Facility (“BFDF”) in Batavia, New York,

Docket Item 1; on August 5, 2019, the government responded, Docket Items 3 and 4;

and on August 19, 2019, Navarijo-Orantes replied, Docket Item 7.

For the reasons that follow, the Court grants in part and denies in part Navarijo-

Orantes’s petition.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts, taken from the record, come largely from filings with the

United States Department of Homeland Security, Immigration and Customs

Enforcement (“DHS”).

On April 1, 1991, Navarijo-Orantes was detained by the former Immigration and

Naturalization Service (“INS”) after he attempted to enter the United States in Miami,

Florida, with a fraudulent visa. Docket Item 3-3 at 11. He was placed into deportation

proceedings. Id. On July 1, 1991, an immigration judge (“IJ”) denied Navarijo-

Orantes’s applications for asylum and withholding of removal and ordered him removed

to Guatemala. Id. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s order and

dismissed Navarijo-Orantes’s appeal. Id. Navarijo-Orantes was removed from the

United States on November 27, 1991. Id.

On July 21, 1999, Navarijo-Orantes was apprehended by a United States Border

Patrol Officer after he illegally entered the United States at the Mexican border near

Brownsville, Texas. Id. at 12. INS reinstated Navarijo-Orantes’s prior removal order,

and he again was removed from the United States on October 15, 1999. Id. He was

also prohibited from re-entering the United States for a period of twenty years. Docket

Item 3-2 at 25.

In early 2018, Navarijo-Orantes sought asylum in Canada. Id. at 29. He was

denied relief and appealed. Id. On June 6, 2018, Navarijo-Orantes was apprehended

by a United States Border Patrol Officer after he illegally entered the United States at

the Canadian border near Rouses Point, New York. Docket Item 3-3 at 12. DHS

served him with a “Notice of Intent / Decision to Reinstate Prior Order [of Removal].” Id.

He was detained pending criminal prosecution for his illegal reentry into the United

States. Id.

On August 22, 2018, Navarijo-Orantes pleaded guilty in the United States District

Court for the Northern District of New York to violating 18 U.S.C. § 1326(a). Docket

Item 3-3 at 1. He was sentenced to time served on October 17, 2018. Id. at 2. That

same day, he was transferred to DHS custody. Id. at 12.

Two days later, Navarijo-Orantes “expressed a reasonable fear of return to

Guatemala and [his] case was referred to U.S. Citizenship and Immigration Services

[(“USCIS”)] for a reasonable fear determination.” Id. On November 19, 2018, USCIS

concluded that Navarijo-Orantes had established a reasonable fear of returning to

Guatemala and referred his case to an IJ for “withholding only proceedings.”1 Id. On

November 21, 2018, DHS determined that Navarijo-Orantes would be detained pending

the final administrative determination of his immigration case. Id. at 7.

On January 17, 2019, Navarijo-Orantes applied for withholding of removal. Id. at

21. DHS reviewed Navarijo-Orantes’s custody status and, on February 5, 2019, DHS

1 When the government reinstates a prior removal order, the alien is ineligible to

challenge the prior order. See Garcia-Villeda v. Mukasey, 531 F.3d 141, 150 (2d Cir.

2008) (“[W]hile aliens have a right to fair procedures, they have no constitutional right to

force the government to re-adjudicate a final removal order by unlawfully reentering the

country.” (quoting Morales–Izquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir.2007) (en

banc))). The only relief an alien in that situation can pursue is withholding or deferral of

removal. See 8 C.F.R. § 1208.2(c)(2); see also id. § 1208.2(c)(3)(i) (“The scope of

review in proceedings conducted pursuant to paragraph (c)(2) of this section shall be

limited to a determination of whether the alien is eligible for withholding or deferral of

removal. During such proceedings, all parties are prohibited from raising or considering

any other issues, including but not limited to issues of admissibility, deportability,

eligibility for waivers, and eligibility for any other form of relief.”).

decided to continue Navarijo-Orantes’s detention because it found him to be a flight risk.

Id. at 11-13.

On March 5, 2019, an IJ conducted a bond hearing. Id. at 15. The IJ found

Navarijo-Orantes to be a flight risk and denied his request for a change in custody. Id.

Navarijo-Orantes was given a further custody review, including an in-person interview,

in April 2019. Id. at 32-33. On April 18, 2019, DHS again decided to continue his

detention. Id. at 34.

On April 19, 2019, an IJ denied Navarijo-Orantes’s application for withholding of

removal, and his removal order was reinstated. Id. at 21-31. Navarijo-Orantes

appealed the IJ’s decision to the BIA, and that appeal is currently pending. Docket Item

3-1 ¶ 36.

Navarijo-Orantes remains detained at the BFDF. Id. ¶ 39.

DISCUSSION

28 U.S.C. § 2241 “authorizes a district court to grant a writ of habeas corpus

whenever a petitioner is ‘in custody in violation of the laws or treaties of the United

States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C.

§ 2241(c)(3)). The government maintains that Navarijo-Orantes is validly detained

under 8 U.S.C. § 1226(a). Docket Item 3 at 1. Navarijo-Orantes makes three

arguments to the contrary. First, he argues that his continued detention violates his

right to due process under the Fifth Amendment. Docket Item 1 at 8-9. Second, he

argues that his right to due process entitles him to another bond hearing at which the

government must establish by clear and convincing evidence that he presents a risk of

flight or danger. Id. at 8. Finally, he argues that the “government’s categorical denial of

bail to certain non[-]citizens violates the right to bail encompassed by the Eighth

Amendment.” Id.

Because Navarijo-Orantes is proceeding pro se, this Court holds his submissions

“to less stringent standards than formal pleadings drafted by lawyers.” Haines v.

Kerner, 404 U.S. 519, 520 (1972).

I. DUE PROCESS CLAUSE

The Fifth Amendment’s Due Process Clause forbids depriving any “person . . . of

. . . liberty . . . without due process of law.” U.S. Const. amend. V. “Freedom 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). “Aliens, even aliens whose presence in this country is unlawful,

have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and

Fourteenth Amendments.” Plyer v. Doe, 457 U.S. 202, 210 (1982). At the same time,

however, Congress has “broad power over naturalization and immigration, [permitting it

to] make[ ] rules that would be unacceptable if applied to citizens.” Demore v. Kim, 538

U.S. 510, 521 (2003) (quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)).

The Supreme Court “has held that the Due Process Clause protects individuals

against two types of government action.” United States v. Salerno, 481 U.S. 739, 746

(1987). “So called ‘substantive due process’ prevents the government from engaging in

conduct that ‘shocks the conscience,’ . . . or interferes with rights ‘implicit in the concept

of ordered liberty.’” Id. (internal citations omitted). “When government action depriving

a person of life, liberty, or property survives substantive due process scrutiny, it must

still be implemented in a fair manner.” Id. “This requirement has traditionally been

referred to as ‘procedural’ due process.” Id.

The Due Process Clause is not offended by mandatory detention of aliens

without a hearing for the “brief period necessary for . . . removal proceedings.” Demore,

538 U.S. at 513 (emphasis added). In Demore, the Supreme Court explicitly noted that

“in the majority of cases [§ 1226(c) detention] lasts for less than the 90 days . . .

considered presumptively valid in Zadvydas.” Id. at 529. Diving even deeper, the Court

noted that “in 85% of the cases in which aliens are detained pursuant to § 1226(c),

removal proceedings are completed in an average time of 47 days and a median of 30

days.” Id. And “[i]n the remaining 15% of cases, in which the alien appeals the decision

of the [IJ] to the [BIA], appeal takes an average of four months, with a median time that

is slightly shorter.” Id.

A. Substantive Due Process

Navarijo-Orantes argues that his detention violates his right to substantive due

process. Docket Item 1 at 8. He has been detained by DHS since October 17, 2018—

more than a year.2 Nevertheless, this Court cannot say that detention that long

necessarily violates due process. See Sanusi v. I.N.S., 100 F. App'x 49, 51 (2d Cir.

2004) (summary order) (determining that six-year detention did not violate due process).

Indeed, detention under § 1226 may serve the government’s compelling interests in

2 Navarijo-Orantes claims that “has been detained in immigration custody” since

June 6, 2018. Docket Item 1 ¶ 2. As the respondents note, however, he was not

transferred to DHS custody until after he was sentenced in the Northern District of New

York on October 17, 2018. Docket Item 4 at 3. Thus, although he has been detained

since June 6, 2018, he has been in immigration detention only since October 17, 2018;

before that, he was in custody on the criminal charge.

both “preser[ving] the government’s ability to later carry out its broader responsibilities

over immigration matters,” Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991),

and preventing crime by arrestees who pose a danger to the safety of the community,

see Salerno, 481 U.S. at 749. What is more, Navarijo-Orantes’s detention here has

been prolonged primarily by the pending judicial review of his claims. See Sanusi, 100

F. App’x at 51. Although there comes a time when the length of an alien’s detention

pending removal violates due process regardless of the procedural protections afforded,

that time has not yet come here. See Salerno, 481 U.S. at 747 n.4.

B. Procedural Due Process

Navarijo-Orantes also challenges the procedural safeguards that apply to his

continued detention. Docket Item 1 at 8-9. “In light of the substantial uncertainty

surrounding the detention provisions” in § 1226, Hechavarria v. Sessions, 891 F.3d 49,

58 (2d Cir. 2018), this Court has evaluated procedural due process challenges to

immigration detention with a two-step inquiry, see Hechavarria v. Sessions, 2018 WL

5776421, at *5-*9 (W.D.N.Y. Nov. 2, 2018). As the first step, the Court considers

whether the alien’s detention has been unreasonably prolonged. Id. at *5-*7. If it has

not, then there is no procedural due process violation.3 See Sankara v. Whitaker, 2019

WL 266462, at *5 (W.D.N.Y. Jan. 18, 2019). But if it has, the Court proceeds to step

two and “identif[ies] . . . the specific dictates of due process” by considering the factors

3 This presumes, however, that the DHS has not “in an arbitrary or categorical

manner, . . . den[ied] an alien access to the administrative processes in place to review

continued detention.” Zadvydas v. Davis, 533 U.S. 678, 724 (2001) (Kennedy, J.,

dissenting). In such a case, “habeas jurisdiction would lie to redress the due process

violation caused by the denial of the mandated procedures.” Id. Navarijo-Orantes

makes no such argument.

noted in Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see Hechavarria, 2018 WL

5776421, at *7-*9. If the government has not provided the procedural safeguards

dictated by the Mathews factors to an alien subject to unreasonably prolonged

detention, then his continued detention violates procedural due process. See

Hechavarria, 2018 WL 5776421, at *9.

1. Navarijo-Orantes’s Unreasonably Prolonged Detention

“[W]hen weighing the lawfulness of continued detention of an alien under the Due

Process Clause,” several factors determine whether detention is unreasonably

prolonged. Jamal A. v. Whitaker, 358 F. Supp. 3d. 853, 858-59 (D. Minn. 2019)). “For

example, this Court has considered ‘(1) the total length of detention to date; (2) the

conditions of detention; (3) delays in the removal proceedings caused by the parties;

and (4) the likelihood that the removal proceedings will result in a final order of

removal.’” Joseph v. Barr, 2019 WL 3842359, at *5 (W.D.N.Y. Aug. 15, 2019) (quoting

Hemans, 2019 WL 955353, at *6).

First and most important, courts consider the length of detention. See Reid v.

Donelan, 2019 WL 2959085, at *9 (D. Mass. July 9, 2019) (“The total length of the

detention is the most important factor.”). Although there is no bright-line rule in

determining whether detention has become unreasonably prolonged, see Hechavarria,

2018 WL 5776421, at *5-*6, “courts become extremely wary” of concluding that

detention is not unreasonably prolonged “[a]s detention continues past a year,” Muse v.

Sessions, 2018 WL 4466052, at *4 (D. Minn. Sept. 18, 2018); see also Reid, 2019 WL

2959085, at *9-*10 (explaining that “detention is likely to be unreasonable if it lasts for

more than one year during removal proceedings before the agency, excluding any

delays due to the alien’s dilatory tactics,” but “[t]his one-year period is not a bright line”).

Navarijo-Orantes has been in DHS custody since October 17, 2018—more than

one year and much longer than the four-month average period contemplated in

Demore. See 538 U.S. at 529; see also Jennings v. Rodriguez, 138 S. Ct. 830, 864

(2018) (Breyer, J., dissenting) (individuals with mental illness “dangerous to themselves

or to others may be confined involuntarily . . . [with] the right to review the

circumstances at least annually.”). As this Court has noted, “courts have found

detention shorter than a year to be unreasonably prolonged as part of a procedural due

process analysis.” Fremont v. Barr, 2019 WL 1471006, at *4 (W.D.N.Y. Apr. 3, 2019)

(collecting cases). Because Navarijo-Orantes’s detention has surpassed the one-year

period by which time “detention is likely to be unreasonable,” Reid, 2019 WL 2959085,

at *9, this factor supports his argument that his detention without an individualized

hearing has been unreasonably prolonged.

Second, courts consider the conditions of detention. “Whether ‘the facility for the

civil immigration detention is meaningfully different from a penal institution for criminal

detention’ factors into the reasonableness of [a petitioner’s] detention.” Jamal A., 358 F.

Supp. 3d at 860 (quoting Sajous v. Decker, 2018 WL 2357266, at *11 (S.D.N.Y. May

23, 2018)). “The more that the conditions under which the alien is being held resemble

penal confinement, the stronger his argument that he is entitled to a bond hearing.” Id.

(quoting Muse, 2018 WL 4466052, at *5).

Navarijo-Orantes states that “[t]he stress and anxiety that [he] faces at the

[BFDF] which is not different from other penal institutions of prison sentences like the

Clinton Jail in which [he] was previously kept . . . , are amounting to be severe due to

lengthy incarceration.” Docket Item 7 at 12 (emphasis added). The respondents, on

the other hand, have submitted an affidavit stating that “[p]ersons held at BFDF

generally do not face the same level of restrictions typical for someone held at a prison.”

Docket Item 3-4 ¶ 7 (emphasis added). For example, the respondents say, “[a]t night,

most persons held at BFDF are not locked in a cell, as would be typical in a prison.” Id.

¶ 8 (emphasis added). But the affidavit does not specify whether Navarijo-Orantes is

housed like “most persons” or what restrictions apply to him. What is more, the

respondents’ brief is silent regarding Navarijo-Orantes’s conditions of confinement. See

Docket Item 4.

Given the respondents’ failure to specify the conditions of Navarijo-Orantes’s

confinement, the Court will credit Navarijo-Orantes’s statement that those conditions are

“not different from” the penal institution in which he had previously been housed. See

Jamal A., 358 F. Supp. 3d at 860 (finding that factor favored the petitioner where

incarceration was “indistinguishable from penal confinement” (quoting Muse, 2018 WL

4466052, at *5)). Thus, this factor also favors a determination that Navarijo-Orantes’s

detention has been unreasonably prolonged.

Third, courts consider whether either side is responsible for delay. The Second

Circuit has indicated that this factor weighs against finding detention unreasonably

prolonged when an alien has “substantially prolonged his stay by abusing the processes

provided to him,” but not when “an immigrant . . . [has] simply made use of the

statutorily permitted appeals process.” Hechavarria, 891 F.3d at 56 n.6 (quoting Nken

v. Holder, 556 U.S. 418, 436 (2009)).

In this case, the respondents argue that Navarijo-Orantes “obtained multiple

adjournments of his immigration merits hearing which resulted in the hearing moving

from December 18, 2018 to April 18, 2019—a period of 122 days.” Docket Item 4 at 11.

This statement suggests that Navarijo-Orantes was responsible for the entire 122-day

period. But a closer examination of the record tells a different story.

The respondents submitted an affidavit recounting the following events. “On

December 18, 2018, Mr. Navarijo-Orantes appeared, with counsel, for a master

calendar hearing and a bond hearing before an immigration judge located in Batavia,

New York. The master calendar hearing was adjourned to March 5, 2019, to allow Mr.

Navarijo-Orantes time to prepare and file an application for relief.” Docket Item 3-5 ¶ 11

(emphasis added). “On January 17, 2019, Mr. Navarijo-Orantes filed an application for

relief with the immigration court.” Id. ¶ 13. “On March 5, 2019, Mr. Navarijo-Orantes

appeared, with counsel, for a master calendar hearing and a bond hearing before an

immigration judge. The master calendar hearing was adjourned to March 27, 2019 to

an individual calendar hearing on the merits.” Id. ¶ 14 (emphasis added). “The hearing

scheduled on March 27, 2019 was adjourned to April 2, 2019 for immigration judge

reassignment.” Id. ¶ 15 (emphasis added).

“On March 18, 2018, Mr. Navarijo-Orante’s [sic] filed a motion for a continuance

with the immigration court. The immigration judge granted that motion and the hearing

scheduled for April 2, 2019 was adjourned to April 18, 2019.” Id. ¶ 16. “On April 18,

2019, Mr. Navarijo-Orantes appeared, with counsel, for an individual calendar hearing

before an immigration judge. At the conclusion of that hearing, the immigration judge

denied Mr. Navarijo-Orantes's application for relief.” Id. ¶ 19.

The first two adjournments—on December 18, 2018, and March 5, 2019—were

of master calendar hearings, not individual merits hearings. See De Ren Zhang v. Barr,

767 F. App’x 101, 103 (2d Cir. 2019) (summary order) (“In the usual course of things,

for removal proceedings held in immigration court, an IJ first holds one or more ‘master

calendar hearings,’” with several purposes, including “for the IJ to set deadlines for filing

applications and submitting evidence and [to] schedule hearings to decide contested

matters and applications for relief.” (emphasis added) (citing U.S. Dep’t of Justice,

Office of the Chief Immigration Judge, Immigration Court Practice Manual, § 4.15

(2018))). “Although it is possible to resolve some uncontested cases through only a

master calendar hearing, cases that do require evidentiary hearings typically also

require one or more master calendar hearings in preparation for that individual hearing.”

Id. (citing Deborah E. Anker, Law of Asylum in the United States, App. A § A3:21

(2018)). Thus, the adjournments of the master calendar hearings were not delays

caused by Navarijo-Orantes; they were part of the ordinary course of an immigration

proceeding.

The first merits hearing in this case was scheduled for March 27, 2019. That

hearing was adjourned until April 2 for the assignment of a different IJ—an event

presumably beyond Navarijo-Orantes’s control. Upon learning of the April 2 date,

Navarijo-Orantes’s attorney requested a short continuance due to a scheduling conflict.

See Docket Item 3-3 at 17. Thus, with the exception of that final motion for an

approximately two-week continuance, necessitated by the government’s change in the

schedule to assign a new IJ, it appears that the delays were due to the normal

administrative process—not to any action taken by Navarijo-Orantes. Consequently,

the Court finds this factor to be neutral.

Finally, courts consider the likelihood that the removal proceedings will result in a

final order of removal. This Court declines to weigh the merits of Navarijo-Orantes’s

claims pending before the BIA, which may be appealed from there to the Second

Circuit. But even if this factor were to cut against Navarijo-Orantes, it would not change

the Court’s conclusion.

After weighing all the factors, and especially the length of detention, this Court

finds that Navarijo-Orantes’s detention has been unreasonably prolonged. Therefore,

this Court turns to the second step of the two-part inquiry to determine what remedy, if

any, that demands.

2. The Process Due to Navarijo-Orantes

“The fundamental requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at 333 (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[I]dentification of the specific dictates

of due process generally requires consideration of three distinct factors,” id. at 335, “(A)

the private interest affected; (B) the risk of erroneous deprivation of that interest through

the procedures used; and (C) the governmental interest at stake,” Nelson v. Colorado,

137 S. Ct. 1249, 1255 (2017). Here, that analysis leads to the conclusion that Navarijo-

Orantes’s continued detention without a robust hearing fails to “comport with the

‘fundamental fairness’ demanded by the Due Process Clause.” Schall, 467 U.S. at 263

(quoting Breed, 421 U.S. at 531).

Navarijo-Orantes’s interest in his freedom pending the conclusion of his removal

proceedings deserves great “weight and gravity.” Addington v. Texas, 441 U.S. 418,

427 (1979). Navarijo-Orantes has an obvious interest in his “[f]reedom from

imprisonment—from government custody, detention, or other forms of physical

restraint.” Zadvydas, 533 U.S. at 690. Moreover, Navarijo-Orantes has strong ties to

the United States. He has two children who are United States citizens and a third child

who is a legal permanent resident. Docket Item 1 ¶ 20. He also has support from the

broader community. Id. ¶ 21; see also id. at 57-65 (letters from friends and community

members). Thus, the Court finds that Navarijo-Orantes has a substantial interest in

release from detention in the United States.

This Court recognizes that the government’s interest in detaining Navarijo-

Orantes also may be strong. The government contends that Navarijo-Orantes’s

detention is justified because he presents a flight risk. Docket Item 3 ¶ 25. This Court

agrees that such an interest may well be “legitimate and compelling.” Salerno, 481 U.S.

at 752.

Finally, this Court finds that there is a substantial risk of an erroneous deprivation

of Navarijo-Orantes’s liberty interests from the procedures used thus far. As this Court

has noted before, “[w]hen the government seeks to detain a person to achieve a

regulatory purpose, due process requires the government to demonstrate by clear and

convincing evidence that detention necessarily serves a compelling interest.” Hemans,

2019 WL 955353, at *8 (citing Foucha v. Louisiana, 504 U.S. 71, 81-83 (1992);

Addington, 441 U.S. at 432-33); see also Santosky, 455 U.S. at 756 (explaining that the

“clear and convincing evidence” standard applies “‘when the individual interests at stake

in a . . . proceeding are both ‘particularly important’ and ‘more substantial than mere

loss of money’” (quoting Addington, 441 U.S. at 424)). That standard applies equally in

the context of immigration detention. See Hechavarria, 2018 WL 5776421, at *8

(collecting cases).

To sustain the prolonged detention of an alien subject to removal proceedings,

the “[g]overnment [is] required, in a ‘full-blown adversary hearing,’ to convince a neutral

decisionmaker by clear and convincing evidence that no conditions of release can

reasonably assure the safety of the community or any person,’” Foucha, 504 U.S. at 81

(quoting Salerno, 481 U.S. at 751), or ensure that the alien will appear for any future

proceeding. This requires consideration of less restrictive alternatives to detention.

See Hechavarria v. Whitaker, 2019 WL 233887, at *10-*11 (W.D.N.Y. Jan. 16, 2019);

Hechavarria v. Sessions, 2018 WL 5776421, at *9 n.13.

Turning to the procedures used thus far in this case, Navarijo-Orantes did

receive an individualized custody hearing before an immigration judge on March 5,

2019. See Docket Item 3-3 at 15. The immigration judge declined to release Navarijo-

Orantes because he found that Navarijo-Orantes was a flight risk. Id. But at that

§ 1226(a) hearing, the burden of proof presumably was on Navarijo-Orantes to

demonstrate to the “satisfaction of the officer that [his] release would not pose a danger

to property or persons, and that [he] is likely to appear for any future proceeding.” 8

C.F.R. § 236.1(c)(8).

Navarijo-Orantes’s first hearing was insufficient because it was not a proceeding

in which DHS bore the burden of proof by clear and convincing evidence or where a

neutral decision maker even considered plausible, less-restrictive alternatives to

detention. As this Court has explained, after an alien’s detention has become

unreasonably prolonged, “a ‘typical’ § 1226(a) bond hearing[ ]—where he must prove ‘to

the satisfaction of the immigration judge’ that he ‘does not present a danger’ before the

immigration judge could even consider whether conditions of supervision might suffice

to protect the public—is no longer constitutionally adequate.” Hechavarria v. Whitaker,

2019 WL 233887, at *7 (emphasis in original) (quoting 8 C.F.R. § 236.1(c)(8)).

The respondents argue that even if Navarijo-Orantes were entitled to a bond

hearing where the government bears the burden of proof, he has failed to show any

prejudice resulting from the failure to conduct such a hearing. Specifically, the

respondents contend that Navarijo-Orantes has failed to show that placing the burden of

proof on the government would have made any difference in the IJ’s determination that

he was a flight risk. Docket Item 4 at 15-16. But even if that ipse dixit argument were

true, it does not address the IJ’s obligation to consider less-restrictive alternatives to

detention. So even assuming, for the sake of argument, that the respondents are

correct that the government could have proven by clear and convincing evidence that

Navarijo-Orantes posed some flight risk, there is no indication that such a risk could not

have been mitigated by alternatives to detention.

Because Navarijo-Orantes’s detention has been unreasonably prolonged, and

because § 1226(a) does not require the government to demonstrate by clear and

convincing evidence that his detention necessarily serves a compelling regulatory

purpose, the statute is unconstitutional as applied to him. His continued detention

violates the Due Process Clause. Navarijo-Orantes therefore must be released unless,

no later than fourteen days from the date of this decision, the government demonstrates

by clear and convincing evidence before a neutral decision maker that Navarijo-

Orantes’s continued detention is necessary to serve a compelling regulatory purpose—

such as preventing flight. The decision maker must consider—and must address in any

decision—whether there is clear and convincing evidence that no less-restrictive

alternative to physical detention, including release on bond in an amount the petitioner

can reasonably afford, with or without conditions, would also reasonably address those

purposes. See Hechavarria v. Whitaker, 2019 WL 233887, at *10; Hechavarria v.

Sessions, 2018 WL 5776421, at *8-*9. Because Navarijo-Orantes has indicated an

interest in a “supervised release” program, including the possibility of electronic

monitoring, Docket Item 7 at 13, the decision maker must expressly consider whether

there is clear and convincing evidence that this plausible, less-restrictive alternative to

detention would not reasonably serve the government’s interests in lieu of detention.

II. EXCESSIVE BAIL CLAUSE

Navarijo-Orantes also argues that the “government’s categorical denial of bail to

certain noncitizens violates the right to bail encompassed by the Eighth Amendment.”

Docket Item 1 at 8-9. The Excessive Bail Clause requires “that the Government’s

proposed conditions of release or detention not be ‘excessive’ in light of the perceived

evil.” Salerno, 481 U.S. at 754. Although detention of criminal aliens during removal

proceedings for only a brief period without individualized findings after a hearing is not

“excessive in relation to the valid interests the government seeks to achieve,” Sankara

v. Barr, 2019 WL 1922069, at *9 (W.D.N.Y. Apr. 30, 2019) (quoting Galen v. Cty of Los

Angeles, 477 F.3d 652, 660 (9th Cir. 2007)); see Demore, 538 U.S. at 519-21

(explaining Congress’s interests in brief mandatory § 1226(c) detention), the same

cannot necessarily be said “after unusual delay in deportation hearings,” Carlson v.

Landon, 342 U.S. 524, 546 (1952). But because this Court has determined that due

process requires that Navarijo-Orantes receive an individualized hearing, his claim that

the Excessive Bail Clause requires the same result is moot. See Kabba v. Barr, 2019

WL 3974135, at *7 (W.D.N.Y. Aug. 22, 2019).

CONCLUSION

For the reasons stated above, Navarijo-Orantes’s petition, Docket Item 1, is

GRANTED IN PART AND DENIED IN PART. Within fourteen days of the date of

this decision and order, the government must release Navarijo-Orantes from

detention unless a neutral decision maker conducts an individualized hearing to

determine whether his continued detention is justified. At any such hearing, the

government has the burden of demonstrating by clear and convincing evidence that

Navarijo-Orantes’s continued detention is necessary to serve a compelling regulatory

purpose, such as protecting against danger to the community or risk of flight. Whether

detention is necessary to serve a compelling regulatory purpose requires consideration

of whether a less-restrictive alternative to detention would also address the

government’s interests. In other words, Navarijo-Orantes must be released unless a

neutral decision maker finds by clear and convincing evidence that no condition or

combination of conditions of release can reasonably assure Navarijo-Orantes’s

appearance and the safety of the community or any persons.

SO ORDERED.

Dated: November 6, 2019

Buffalo, New York

s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE