Gutierrez Cupido v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JOSE ELIAS GUTIERREZ CUPIDO,

Petitioner, Case # 19-CV-6367-FPG

v.

DECISION AND ORDER

WILLIAM P. BARR, et al.,

Respondents.

Pro se Petitioner Jose Elias Gutierrez Cupido brought this petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241, challenging his continued detention at the Buffalo Federal

Detention Facility. ECF No. 1. On October 1, 2019, the Court granted the petition in part and

ordered Respondent Jeffrey Searls to hold a bond hearing for Petitioner, at which the government

would bear the burden of proving “by clear and convincing evidence that Petitioner’s continued

detention is justified based on risk of flight or danger to the community.” ECF No. 8 at 6-7. On

October 8, 2019, Immigration Judge Philip J. Montante, Jr. (the “IJ”) held the ordered hearing. He

found that the government had sustained its burden of proving that continued detention is justified

based on Petitioner’s risk of flight. ECF No. 17-2 at 10.

Petitioner has now filed a motion requesting his immediate release on the ground that the

hearing did not, in fact, comply with the Court’s order. ECF No. 13. The government opposes

the motion. For the reasons that follow, Petitioner’s motion is DENIED.

BACKGROUND

The following facts are taken from the record. Petitioner is a native and citizen of El

Salvador, and has been detained by immigration authorities since May 2018. On October 2, 2019,

notice of the Court’s Order granting the petition was sent to Respondents electronically and to

Petitioner by mail. Respondents aver that, on that same day, Petitioner was personally served with

a notice that a bond hearing would be held October 8, 2019. Petitioner counters that he did not

receive notice of the hearing until October 6, 2019.

For purposes of the motion, the Court will assume that Petitioner did not receive notice of

the hearing until October 6. Petitioner claims that, because of the short turnaround between the

notice and the hearing, his counsel was unable to appear, he was unable to submit letters of support

(which his counsel possessed), and his family could not appear as witnesses. See ECF No. 13 at

3. Importantly, however, Petitioner does not assert—and there is no evidence in the record to

suggest—that he objected to the hearing date or otherwise raised these concerns to the IJ or

Respondents.

The IJ held the hearing as scheduled. A Spanish interpreter was present. ECF No. 17-1 at

2. The IJ asked Petitioner whether he had an attorney to represent him for the proceeding. ECF

No. 17-2 at 6 n.1. Petitioner responded that an attorney named “Brenda” represented him, though

he could not recall her last name. Id. Assuming that Petitioner was referring to Brenda Cisneros—

an immigration attorney—the IJ contacted her organization, the Volunteer Lawyers Project, to

determine whether she represented Petitioner. The organization “confirmed via telephone that

neither the organization nor Ms. Cisneros represents [Petitioner].” Id. Because there was no other

attorney of record on file, the IJ proceeded with the hearing.1 Id.

Immigration authorities argued that Petitioner is a flight risk because he “does not have

financial, proprietary, or significant familial ties to the United States” and because he has been

ordered removed at the administrative level (though that order is on appeal). Id. at 7. Based on

the IJ’s written decision, it appears that the IJ asked Petitioner twice during the hearing if he had

1 The Court agrees with the IJ that, at least based on the present record, there is no indication that Petitioner

is represented by counsel with respect to the detention issues. In his memoranda, Petitioner states that he

has counsel but does not identify who that person is. To the extent he is referring to his appellate counsel,

evidence to rebut those arguments. Id. at 10 n.7. Petitioner “chose to rebut in a limited way by

presenting evidence of his wife’s pending asylum application, rather than presenting evidence that

would assure [the IJ] that he would be present for the remainder of his removal proceedings.” Id.

On October 9, 2019, the IJ issued a written decision finding that immigration authorities

had satisfied their burden of proving by clear and convincing evidence that Petitioner poses a flight

risk. See id. at 9, 10. He noted that Petitioner only recently entered the United States and does not

have any significant ties to the country—he owns no personal property and maintains no bank

account here. Furthermore, the IJ found significant the fact that Petitioner’s applications for relief

from removal had been denied, which “necessarily increases the risk that [he] will flee if released

from detention.” Id. at 10. The IJ found unpersuasive Petitioner’s evidence that his wife had a

pending asylum application. He acknowledged “as a positive equity” that Petitioner might gain

immigration status based on his wife’s application, but he declined to “speculate as to the

likelihood of success of [that] application.” Id. For that reason, the IJ concluded that Petitioner’s

evidence did not mitigate the risk of flight. Finally, the IJ considered alternatives to detention and

found that “less restrictive alternatives” could not “reasonably assure [Petitioner’s] appearance.”

Id. Accordingly, the IJ found that “a denial of bond is appropriate.” Id.

On October 31, 2019, Petitioner filed the present motion challenging the IJ’s decision. ECF

No. 13.

DISCUSSION

Before reaching the merits of Petitioner’s motion, the Court must address three preliminary

matters. First, on December 2, 2019, Respondents appealed the Court’s October 1, 2019 Decision

and Order. See ECF No. 15. This raises a question concerning the Court’s continuing jurisdiction.

“It is well-settled that the filing of a notice of appeal confers jurisdiction on the court of appeals

and divests the district court of control over those aspects of the case involved in the appeal.”

Independent Living Aids, Inc. v. Maxi-Aids, Inc., 208 F. Supp. 2d 387, 392 (E.D.N.Y. 2002)

(internal quotation marks omitted). “The divestiture of jurisdiction rule is, however, not a per se

rule.” United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996). One exception is that, absent

a stay, a district court retains jurisdiction to enforce its orders and judgments despite an appeal.

See, e.g., City of New York v. Venkataram, No. 06 Civ. 6578, 2012 WL 2921876, at *3 (S.D.N.Y.

July 18, 2012) (collecting cases). This includes orders granting habeas relief. See Enoh v.

Sessions, No. 16-CV-85, 2017 WL 2080278, at *4-5 (W.D.N.Y. May 15, 2017). Therefore, the

notice of appeal does not divest this Court of jurisdiction to review compliance with and, if

necessary, enforce its previous order. See id.

Second, Respondents argue that 8 U.S.C. § 1226(e) divests this Court of jurisdiction to

review the IJ’s bond determination. That provision states, “The Attorney General’s discretionary

judgment regarding the application of this section shall not be subject to review. No court may set

aside any action or decision by the Attorney General under this section regarding the detention or

release of any alien . . . .” 8 U.S.C. § 1226(e). This provision does not bar the Court’s review. As

an initial matter, Section 1226(e) concerns only “discretionary judgments” pertaining to “the

application of this section”—that is, Section 1226. Id. (emphasis added). The Court is skeptical

that the July 2019 bond hearing constitutes a proceeding conducted under Section 1226; rather, it

was a court-ordered bond hearing that demanded procedural protections beyond those compelled

by the statute itself. See Jennings v. Rodriguez, 138 S. Ct. 830, 847-48 (2018); Darko v. Sessions,

342 F. Supp. 3d 429, 434-35 (S.D.N.Y. 2018). In any case, Section 1226(e) does not deprive a

court of jurisdiction over constitutional and statutory challenges to detention. Enoh, 2017 WL

2080278, at *5; see also Jennings, 138 S. Ct. at 841 (Ҥ 1226(e) does not preclude challenges to

the statutory framework that permits the alien’s detention without bail.” (internal quotation marks

and brackets omitted)). Thus, even if it were otherwise applicable, the statute presents no obstacle

to review because the Court is not reviewing an immigration judge’s discretionary judgment, but

whether its order was followed—i.e., “whether [Petitioner] received the due process to which he

was entitled.” Hechavarria v. Whitaker, 358 F. Supp. 3d 227, 236 (W.D.N.Y. 2019).

Third, Respondents contend that Petitioner did not appeal the bond determination to the

Board of Immigration Appeals and thereby failed to exhaust his administrative remedies. For the

reasons discussed in other cases in this district, the Court disagrees that a petitioner must seek

exhaustion before moving to enforce a judgment. See id. at 236-38; Enoh, 2017 WL 2080278, at

*2-3.

The Court turns to the merits of Petitioner’s motion. Petitioner raises substantive and

procedural objections to the hearing and the IJ’s determination. The Court addresses the

substantive objection first.

Petitioner argues that the evidence was insufficient to prove by clear and convincing

evidence that he posed a risk of flight. The Court disagrees. In reviewing the IJ’s determination,

the Court’s task is narrow: it is to determine whether Respondents complied with the Decision and

Order, not to review the hearing evidence de novo and determine whether Petitioner is in fact a

flight risk. See Nguti v. Sessions, No. 16-CV-6703, 2017 WL 5891328, at *2 (W.D.N.Y. Nov. 29,

2017) (collecting cases). Thus, the question is “whether the immigration judge relied upon proof

that could not possibly establish by clear and convincing evidence” that Petitioner is a flight risk.

Id. The clear-and-convincing burden of proof “requires the government to prove that a factual

contention is highly probable.” Hechavarria, 358 F. Supp. 3d at 240 (internal quotation marks

omitted).

Here, the IJ complied with the Court’s October 1, 2019 Decision and Order. The record

shows that he gave both sides an opportunity to submit evidence and argument, applied the correct

standards, and arrived at a legally permissible conclusion in light of the available evidence. That

is, the IJ could reasonably conclude that Petitioner’s risk of flight is highly probable. Based on

the evidence before the IJ, Petitioner did not own property, maintain any bank account or other

proprietary interest, or have significant family ties in the United States. The only connection

Petitioner proffered was his wife’s presence in the country. But because she was not an established

resident and was seeking asylum, the IJ could reasonably conclude that this did not establish a

strong tie or mitigate Petitioner’s risk of flight. In short, the IJ could reasonably infer from the

evidence that Petitioner did not have the sorts of ties that would render him “so deeply committed

and personally attached that he cannot be driven from [them] by the threat of” removal. United

States v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992) (discussing risk of flight in the context of

criminal pretrial detention); see also Gianello v. Holder, No. 11-CV-180, 2014 WL 1255884, at

*3 (S.D. Cal. Mar. 24, 2014) (noting that lack of family ties and employment “tend to show” that

an alien is a flight risk). In addition, Petitioner was subject to an administratively final order of

removal, “which diminish[ed] his incentive to appear for further removal proceedings.” Singh v.

Holder, 638 F.3d 1196, 1205 (9th Cir. 2011) (noting that administratively final order of removal

“is a relevant factor in the calculus”).

Petitioner counters that there are other facts that show he is not a flight risk, including that

his wife has a fixed address at which he can reside, and he has a cousin and uncle who are willing

to financially support him. ECF No. 13 at 4. In his briefs on this motion, he also develops several

other arguments to demonstrate that he is not a flight risk. See ECF No. 19 at 10-14.

The problem is that there is no indication in the record that Petitioner presented this

evidence or raised these arguments to the IJ. As the Court stated, the Court’s task is not to

determine whether it believes that Petitioner is a flight risk, but only whether the IJ could

reasonably make such a conclusion based on the evidence presented. See Nguti, 2017 WL

5891328, at *2. The Court cannot fault the IJ for failing to consider evidence or arguments that

Petitioner did not raise at the hearing.

This leads to Petitioner’s procedural argument, however. Petitioner contends that he was

deprived of a meaningful hearing because he received notice of the hearing only two days before

it was scheduled, which “did not allow his counsel to come and to submit supporting [evidence]”

and prevented his family from appearing as witnesses. ECF No. 19 at 7. In other words, Petitioner

claims that the short time frame inhibited his ability to obtain evidence and develop arguments in

time for the hearing.

Even if true,2 the Court cannot conclude that Respondents or the IJ violated the Court’s

October 1, 2019 Decision and Order on that basis. The Court ordered that a bond hearing be

conducted by October 15, 2019, but it did not require that it be scheduled at any particular date or

time. By implication, the Order assumed that the bond hearing would be scheduled and conducted

consistent with ordinary practice. Generally, immigration judges exercise “independent judgment

and discretion” in the “disposition of [their] cases,” 8 C.F.R. § 1003.10(b), and are responsible for

scheduling matters and providing notice to the parties. Id. § 1003.18(a). Indeed, the Second

Circuit has noted that “[j]ust as United States District Judges have broad discretion to schedule

hearings and to grant or to deny continuances in matters before them, IJs have similarly broad

discretion with respect to calendaring matters.” Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.

2006). Challenges to calendaring decisions are reviewed for abuse of discretion. See id.

Consequently, the Court would only be inclined to grant relief on Petitioner’s theory if the

IJ scheduled the hearing for the very purpose of interfering with Petitioner’s right to a hearing or

2

otherwise abused his discretion when scheduling the matter. Petitioner does not argue the former,

and the Court is not persuaded of the latter.

On its face, the IJ’s decision to schedule the hearing for October 8, 2019 did not amount to

an abuse of discretion. If anything, that compressed timeframe was for Petitioner’s benefit: he had

been detained for more than sixteen months and was entitled to a hearing to justify his continued

detention. The prejudice arose not from the scheduling of the hearing but from the delayed notice

given to Petitioner. Although the IJ scheduled and sent notice of the hearing on October 2, 2019,

for some unknown reason Petitioner did not receive that notice until October 6.3

Had Petitioner raised this issue to the IJ, it would be a closer question as to whether, in

light of the delayed notice, the IJ could permissibly hold the hearing on October 8. But nothing in

the record suggests that Petitioner informed the IJ of the late notice, the missing evidence, or his

desire to adjourn the hearing. Rather, he participated in the hearing without comment on those

matters. Under these circumstances—where the IJ scheduled a hearing swiftly in order to comply

with a court-ordered deadline, and Petitioner raised no objection prior to or at the hearing—the

Court cannot find that the IJ deviated from ordinary practice or abused his discretion in such a

manner as to deprive Petitioner of the hearing to which he was entitled. Cf. Drobny v. I.N.S., 947

F.2d 241, 244 (7th Cir. 1991) (immigration judge did not abuse discretion when he conducted

hearing without interpreter, where, inter alia, alien “did not object to the absence of an

interpreter”).

The only hint that might have led the IJ to believe that Petitioner was unprepared or in need

of a continuance was the absence of Petitioner’s alleged counsel. But the IJ took steps to determine

3 The certification section of the notice indicates that it was served on Petitioner “c/o Custodial Officer” on

October 2, 2019. ECF No. 17-2 at 4. It may be that authorities at the detention facility did not serve the

notice on Petitioner until October 6. Regardless, there is no indication that the delay was the product of

whether Petitioner was even represented. Having reviewed the court docket and contacted the

Volunteer Lawyers Project, the IJ concluded that Petitioner did not have counsel. The IJ proceeded

with the hearing, and Petitioner does not appear to have objected to that decision. Given the steps

the IJ took, the Court cannot say that the IJ was required to take further steps or that he should

have sua sponte adjourned the hearing.

The Court recognizes that Petitioner is a layperson who cannot be held to the same standard

as an attorney. Still, Petitioner does not articulate any reason why he could not have simply

requested an adjournment or informed the IJ of his predicament. Perhaps he has some justification

for not doing so, but on this record the Court cannot discern one. Accordingly, the Court cannot

conclude that Respondent Searls or the IJ failed to adhere to the Court’s Order. Petitioner is not

entitled to relief.

CONCLUSION

For the reasons stated herein, Petitioner’s motion for relief (ECF No. 13) is DENIED.

IT IS SO ORDERED.

Dated: January 9, 2020

Rochester, New York

Chief Judge

United States District Court