# Gutierrez Cupido v. Barr

> District Court, W.D. New York · January 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10361655

## Case

- **Court:** District Court, W.D. New York
- **Decided:** January 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10361655

## How later opinions describe it (automated extraction)

- noting that administratively final order of removal “is a relevant factor in the calculus”
- discussing risk of flight in the context of criminal pretrial detention

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361655. Public record. Not legal advice.