Santos Abreu v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JOSE FRANK SANTOS ABREU,

Petitioner,

v. 20-CV-372-LJV

DECISION & ORDER

WILLIAM P. BARR, U.S. Attorney

General, et al.,

Respondents.

Jose Frank Santos Abreu has been detained in United States Department of

Homeland Security (“DHS”) custody since April 24, 2019—more than fifteen months.

Docket Item 1 at 2; Docket Item 4 at 4. On March 27, 2020, Santos Abreu 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 May 22, 2020, the respondents answered the petition, Docket Item

4, and on June 12, 2020, Santos Abreu replied, Docket Item 6.

For the reasons that follow, this Court grants Santos Abreu’s petition in part.

FACTUAL AND PROCEDURAL BACKGROUND

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

States Immigration and Customs Enforcement (“ICE”).

Santos Abreu is a native and citizen of the Dominican Republic. Docket Item 1 at

1; Docket Item 4 at 3. He entered the United States on October 11, 2017. Docket Item

1 at 1; Docket Item 4 at 3.

On June 14, 2018, Santos Abreu was convicted in New York State Supreme

Court, New York County, of conspiring to possess a controlled substance. Docket Item

4 at 3. On September 27, 2018, DHS served Santos Abreu with a “Notice to Appear,”

charging that he was subject to removal from the United States under the Immigration

and Nationality Act, 8 U.S.C. §§ 1101-1537. Id. at 26-28. More specifically, DHS

charged that Santos Abreu was subject to removal under § 1227(a)(2)(B)(i) for having

been convicted of a controlled-substance offense and §1227(a)(1)(B) for having

remained in the United States longer than permitted after admission. Id. at 4.

On April 24, 2019, upon Santos Abreu’s release from the custody of the New

York State Department of Corrections, ICE took him into custody. Id. DHS determined

that Santos Abreu would remain in detention pending removal. Id. at 29. Santos Abreu

challenged his detention, but on July 1, 2019, an Immigration Judge (“IJ”) denied his

request for a change in custody status. Id. at 38. On August 7, 2019, the IJ also denied

Santos Abreu’s applications for relief from removal and ordered him removed to the

Dominican Republic. Id. at 31-32.

Santos Abreu appealed the IJ’s decisions to the Board of Immigration Appeals

(“BIA”). Id. at 41. On January 24, 2020, the BIA dismissed both Santos Abreu’s bond

appeal and his appeal of the removal order. Id. at 55-58. Based on the BIA’s final

removal order, ICE issued a Warrant of Removal/Deportation on January 28, 2020. Id.

at 21-22.

In February 2020, Santos Abreu petitioned the United States Court of Appeals for

the Second Circuit to review the BIA’s final removal order and to stay his removal. See

Santos Abreu v. Barr, No. 20-517, Docket Items 1 (2d Cir. Feb. 10, 2020) and 12 (2d

Cir. Feb. 28, 2020). On March 27, 2020, the Second Circuit granted Santos Abreu a

temporary stay of removal pending review of his petition. See Santos Abreu v. Barr,

No. 20-517, Docket Item 23 (2d Cir. Mar. 27, 2020). Santos Abreu’s petition for review

remains pending before the Second Circuit. Docket Item 4 at 7.

DISCUSSION

I. HABEAS PETITION

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 Santos Abreu is validly detained under 8

U.S.C. § 1226(c) as a noncitizen convicted of committing a controlled-substance

offense. Docket Item 5 at 2.

Santos Abreu disagrees on two grounds. First, Santos Abreu argues that his

“prolonged” detention violates his right to substantive due process under the Fifth

Amendment of the United States Constitution. Docket Item 1 at 9-10. Second, he

contends that his “prolonged detention . . . without a meaningful review” violates his

right to procedural due process under the Fifth Amendment of the United States

Constitution. Id. at 10.1

1 Santos Abreu also asks this Court to stay his removal. See Docket Item 1 at 9.

This Court, however, does not have jurisdiction to issue a stay of removal. See Rodney

v. Gonzalez, 2006 WL 73731, at *2 (E.D.N.Y. Jan 10, 2006) (“By depriving district

courts of jurisdiction to hear cases challenging final orders of removal, Congress

necessarily deprived district courts of jurisdiction to grant stays of removal in such

cases.”). Moreover, the Second Circuit already has granted Santos Abreu a temporary

II. DUE PROCESS

Santos Abreu alleges that his continued detention violates the Due Process

Clause. See Docket Item 1 at 9-10. The Fifth Amendment’s Due Process Clause

forbids the federal government from depriving any “person . . . of . . . liberty . . . without

due process of law.” U.S. Const. amend. V. 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. (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.

“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). “[G]overnment detention violates that

Clause unless the detention is ordered in a criminal proceeding with adequate

procedural protections . . . or, in certain special and narrow nonpunitive circumstances,

. . . where a special justification, such as harm-threatening mental illness, outweighs the

individual’s constitutionally protected interest in avoiding physical restraint.” Id.

(emphasis in original) (citations omitted). Other than those unique, special, and narrow

circumstances, “[o]nly a jury, acting on proof beyond a reasonable doubt, may take a

stay of removal. See Santos Abreu v. Barr, No. 20-517, Docket Item 23 (2d Cir. Mar.

27, 2020).

person’s liberty. That promise stands as one of the Constitution’s most vital protections

against arbitrary government.” United States v. Haymond, 139 S. Ct. 2369, 2373

(2019).

“[Noncitizens], even [noncitizens] whose presence in this country is unlawful,

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

Amendment[ ].” Plyer v. Doe, 457 U.S. 202, 210 (1982); see also Shaughnessey v.

United States ex rel. Mezei, 345 U.S. 206, 212 (1954) (“It is true that [noncitizens] who

have once passed through our gates, even illegally, may be expelled only after

proceedings conforming to traditional standards of fairness encompassed in due

process of law.”). At the same time, 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)).

A. Substantive Due Process

Santos Abreu argues that his detention violates his right to substantive due

process. Docket Item 1 at 9-10. He has been in DHS custody since April 24, 2019—

more than fifteen months. Docket Item 1 at 2; Docket Item 4 at 4. But this Court cannot

say that detention that long 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 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. Although there comes a time

when the length of a noncitizen’s detention pending removal violates due process

regardless of the procedural protections afforded, see id. at 747 n.4, that time has not

yet come here.

B. Procedural Due Process

Santos Abreu also challenges the procedural safeguards that apply to his

continued detention. Docket Item 1 at 10. The Due Process Clause is not offended by

the mandatory detention of noncitizens for the “brief period necessary for their removal

proceedings,” Demore, 538 U.S. at 513 (emphasis added), but may be violated by

detention beyond that “brief” period, depending on the balance of the individual’s and

the government’s interests, see, e.g., id. at 532 (Kennedy, J., concurring) (“[A] lawful

permanent resident . . . could be entitled to an individualized determination as to his risk

of flight and dangerousness if the continued detention bec[omes] unreasonable or

unjustified.”); see also Landon v. Plasencia, 459 U.S. 21, 34 (1982) (“The constitutional

sufficiency of procedures provided in any situation, of course, varies with the

circumstances.”).

For that reason, this Court “has evaluated procedural due process challenges to

immigration detention with a two-step inquiry.” Hemans v. Searls, 2019 WL 955353, at

*5 (W.D.N.Y. Feb. 27, 2019). “A[t] the first step, the Court considers whether the

[noncitizen’s] detention has been unreasonably prolonged.” Id. “If it has not, then there

is no procedural due process violation.” Id. “But if it has, the Court proceeds to step

two and ‘identifies the specific dictates of due process’ by considering the Mathews v.

Eldridge factors.” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). “If the

government has not provided the procedural safeguards dictated by the Mathews

factors to a [noncitizen] subject to unreasonably prolonged detention, then his continued

detention violates procedural due process.” Id.

1. Santos Abreu’s Detention

“[W]hen weighing the lawfulness of continued detention of a [noncitizen] under

the Due Process Clause,” several factors determine whether detention is unreasonably

prolonged. Jamal A. v. Whitaker, 2019 WL 549722, at *3 (D. Minn. Jan. 22, 2019). This

Court, for example, 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.” Hemans, 2019 WL 955353, at *6.

First, and most important, courts consider the length of detention. Santos Abreu

has been in DHS custody since April 24, 2019—more than fifteen months. Docket Item

1 at 2; Docket Item 4 at 4. “As detention continues past a year, courts become

extremely wary of permitting continued custody absent a bond hearing.” Muse v.

Sessions, 2018 WL 4466052, at *4 (D. Minn. Sept. 18, 2018) (collecting cases). In fact,

courts have found detention even shorter than a year to be unreasonably prolonged as

part of a procedural due process analysis.2

2 See, e.g., Vargas v. Beth, 2019 WL 1320330, at *8 (E.D. Wis. Mar. 22, 2019)

(“approximately nine and a half months”); Cabral v. Decker, 331 F. Supp. 3d 255, 261

(S.D.N.Y. 2018) (“over seven months” and “over nine months” by the next removal-

related hearing); Hernandez v. Decker, 2018 WL 3579108, at *1, *12 (S.D.N.Y. July 25,

2018) (nine months); Sajous v. Decker, 2018 WL 2357266, at *1, *12 (S.D.N.Y. May 23,

2018) (over eight months); Jarpa v. Mumford, 211 F. Supp. 3d 706, 720 (D. Md. 2016)

(exceeding ten months); see also Sopo v. U.S. Attorney General, 825 F.3d 1199, 1218

In Demore, the Supreme Court upheld the constitutionality of § 1226(c), relying

on the “very limited time of . . . detention at stake” and noting that “in the majority of

cases[, § 1226(c) detention] lasts less than the 90 days . . . considered presumptively

valid in Zadvydas.” Demore, 538 U.S. at 529 & n.12; see also id. (“[I]n 85% of the

cases in which [noncitizens] are detained pursuant to § 1226(c), removal proceedings

are completed in an average time of 47 days and a median of 30 days. In the remaining

15% of cases, in which the [noncitizen] appeals the decision of the Immigration Judge to

the Board of Immigration Appeals, appeal takes an average of four months, with a

median time that is slightly shorter.” (citations omitted)).

Santos Abreu’s fifteen-month detention far exceeds the four-month average cited

in Demore. The length of Santos Abreu’s detention therefore supports his argument

that his detention without an individualized bond hearing has become 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 the petitioner’s detention. Sajous v.

Decker, 2018 WL 2357266, at *11 (S.D.N.Y. May 23, 2018). “The more that the

conditions under which the [noncitizen] is being held resemble penal confinement, the

stronger his argument that he is entitled to a bond hearing.” Muse, 2018 WL 4466052,

at *5.

(11th Cir. 2016) (“[A] criminal [noncitizen’s] detention without a bond hearing may often

become unreasonable by the one-year mark, depending on the facts of the case.”).

Here, the government has submitted the declaration of a deportation officer at

BFDF. See Docket Item 4 at 13-19. But the BFDF deportation officer did not offer

information about the conditions at BFDF; nor did Santos Abreu provide such

information. Thus, this factor does not favor either party.

Third, courts consider whether the petitioner has prolonged his own detention.

The Second Circuit has found that this factor weighs against finding detention

unreasonable when a noncitizen 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 (first quoting

Nken v. Holder, 556 U.S. 418, 436 (2009)). As the Sixth Circuit has noted, “appeals

and petitions for relief are to be expected as a natural part of the process. A

[noncitizen] who would not normally be subject to indefinite detention cannot be so

detained merely because he seeks to explore avenues of relief that the law makes

available to him.” Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003) (cited in

Hechavarria, 891 F.3d at 56 n.6). Indeed,

although a [noncitizen] may be responsible for seeking relief, he is not

responsible for the amount of time that such determinations may take. The

mere fact that a [noncitizen] has sought relief from deportation does not

authorize the [government] to drag its heels indefinitely in making a

decision. The entire process, not merely the original deportation hearing, is

subject to the constitutional requirement of reasonability.

Id.

Here, DHS charged Santos Abreu with removability on September 27, 2018, and

took him into custody on April 4, 2019. Docket Item 4 at 3-4. Santos Abreu promptly

applied for relief from removal before an IJ, who denied Santos Abreu’s applications on

August 7, 2019. Id. at 31-32. Santos Abreu then appealed to the BIA two weeks later—

on August 21, 2019. Id. at 50-52. But the BIA did not issue its decision until January

24, 2020. Id. at 55-58.

Santos Abreu promptly petitioned the Second Circuit to review the BIA’s final

removal order and to stay his removal. See Santos Abreu v. Barr, No. 20-517, Docket

Items 1 (2d Cir. Feb. 10, 2020) and 12 (2d Cir. Feb. 28, 2020). The Second Circuit

issued a temporary stay of removal on March 27, 2020. See Santos Abreu v. Barr, No.

20-517, Docket Item 23 (2d Cir. Mar. 27, 2020). On the same day, Santos Abreu filed a

habeas petition in this Court. Docket Item 1.

In no way has Santos Abreu “abus[ed] the processes provided to him.” See

Hechavarria, 891 F.3d at 56 n.6 (quoting Nken, 556 U.S. at 436). Indeed, he has done

nothing more than promptly challenge his removal and appeal the IJ’s decision to the

BIA and then to the Second Circuit. Therefore, the third factor weighs in Santos Abreu’s

favor.

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 Santos Abreu’s claims

pending before the Second Circuit.

After balancing all these factors, this Court finds that Santos Abreu’s detention

has become unreasonably prolonged. Therefore, this Court turns to the second step of

the two-part inquiry to determine what remedy his unreasonably-prolonged detention

demands.

2. The Process Due to Santos Abreu

“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,

namely: “(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 Santos Abreu’s continued detention without an individualized hearing, at

which the government must justify his continued detention by clear and convincing

evidence, fails to “comport with the ‘fundamental fairness’ demanded by the Due

Process Clause.” See Schall v. Martin, 467 U.S. 253, 263 (1984).

Santos Abreu’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). He 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, while “[t]he private interest here is not liberty in the abstract, but

liberty in the United States,” Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999)

(emphasis in original), Santos Abreu has not conceded his deportability, and the

resolution of that issue remains pending before the Second Circuit. In fact, his interest

in liberty in the United States must indeed be strong for him to subject himself to

unreasonably-prolonged detention while contesting his deportability. See Fremont v.

Barr, 2019 WL 1471006, at *6 n.7 (W.D.N.Y. Apr. 3, 2019).

And there appears to be good reason for that strong interest. Santos Abreu

testified that his “common law wife[,] . . . his son[,] . . . his brother-in-law[, and] . . . three

siblings” all live in the United States. See Docket Item 4 at 67. Thus, if Santos Abreu

chose not to challenge his removal, he would “lose the right to rejoin [his] immediate

family, a right that ranks high among the interests of the individual.” Landon, 459 U.S.

at 34.

This Court recognizes that the government’s interest in detaining Santos Abreu

also may be strong. The government contends that Santos Abreu’s risk of flight and

disregard for the law justify his continued detention. Docket Item 4 at 87-90. In fact,

Santos Abreu is detained under 8 U.S.C. § 1226(c), which applies to aliens who fall

“into one of several enumerated categories involving criminal offenses and terrorist

activities.” Jennings, 138 S. Ct. at 837. “[Noncitizens] detained under [that] authority

are not entitled to be released under any circumstances other than those expressly

recognized by the statute.”3 Id. at 846. Thus, in mandating the detention of criminal

aliens, the statute reflects a congressional purpose of reducing the risk of flight and

danger to the community. See Demore, 538 U.S. at 518-19 (explaining that Congress

found that “deportable criminal aliens who remained in the United States often

committed more crimes before being removed” and that “20% of deportable criminal

aliens failed to appear for their removal hearings”4). “The government’s interest in

preventing crime by arrestees is both legitimate and compelling.” Salerno, 481 U.S. at

749. And general concerns about the risk of flight highlight the government’s

3 The exception from mandatory detention is a “limited authorization for release

for witness-protection purposes,” Jennings, 138 S. Ct. at 846, not applicable here.

4 The Court noted that this number included aliens who were released from

custody without an individualized bond hearing. Demore, 538 U.S. at 519 n.4

(“Although the Attorney General had the authority to release these aliens on bond, it is

not clear that all of the aliens released were in fact given individualized bond hearings.”

(emphasis in original)).

compelling interest in preserving its “ability to later carry out its broader responsibilities

over immigration matters.” Doherty, 943 F.2d at 211.

This Court concludes that in light of the procedures used thus far, there is a

significant risk of an erroneous deprivation to Santos Abreu’s liberty interests. Section

1226(c) prohibits the government from offering a detainee the opportunity to challenge

whether he is, in fact, a danger or a flight risk. Jennings, 138 S. Ct. at 846. Now that

Santos Abreu’s detention has become unreasonably prolonged, due process requires

some opportunity to be heard “at a meaningful time and in a meaningful manner,”

Armstrong, 380 U.S. at 552, to challenge the statute’s assumptions as applied to him.

An opportunity to be heard in a meaningful manner necessarily requires a

hearing that “satisfies the constitutional minimum of fundamental fairness.” Santosky v.

Kramer, 455 U.S. 745, 756 n.8 (1982) (citation omitted). When the government seeks

the civil detention of a person to effect a compelling regulatory purpose, it must show by

clear and convincing evidence that such detention is necessary to serve that compelling

interest. See 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 here.

To sustain the prolonged detention of a noncitizen subject to removal

proceedings based on its general interests in immigration detention, 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 noncitizen will appear for any future proceeding.5 This

requires consideration of less-restrictive alternatives to detention. See id.; cf. United

States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) (“When a plausible, less[-]

restrictive alternative is offered to a” regulation burdening a constitutional right, “it is the

Government’s obligation to prove that the alternative will be ineffective to achieve its

goals.”).

Santos Abreu’s § 1226(c) detention has been unreasonably prolonged. Because

§ 1226(c) does not require an individualized hearing in which the government must

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

reasonably serve the government’s compelling regulatory interests in detaining him, it is

unconstitutional as applied to him. As such, his continued detention violates the Due

Process Clause.

Santos Abreu must be released unless, no later than 14 calendar days from the

date of this decision and order, the government demonstrates by clear and

convincing evidence before a neutral decision maker that Santos Abreu’s continued

detention is necessary to serve a compelling regulatory purpose—such as preventing

flight or protecting others or the community. The decision maker also must consider—

and must address in any decision—whether there is clear and convincing evidence that

there are no less-restrictive alternatives to physical detention, including release on bond

5 As this Court explained in Hemans, 2019 WL 955353, at *8 n.7, a pretrial

detainee’s right to a speedy trial distinguishes the interests supporting the evidentiary

standard traditionally applicable to flight-risk determinations for pretrial detention

purposes from what is required after an unreasonably-prolonged immigration detention.

in an amount the petitioner can reasonably afford, with or without conditions, that also

would reasonably address those same regulatory purposes.

III. LIMIT ON TRANSFERRING SANTOS ABREU

Santos Abreu also asks this Court to order the respondents and their “agents not

to remove [him] from the jurisdiction of this Court during the duration of the

consideration of this petition.” Docket Item 1 at 11.

Now that this Court has conditionally granted Santos Abreu’s writ, his

jurisdictional concerns are not unreasonable. After all, “conditional writs ‘would be

meaningless’ if a habeas court could not determine compliance with them and order

sanctions accordingly.” Mason v. Mitchell, 729 F.3d 545, 549 (6th Cir. 2013) (quoting

Satterlee v. Wolfenbarger, 453 F.3d 362, 368 n.5 (6th Cir. 2006)). But “[it] is well

established that jurisdiction attaches on the initial filing for habeas corpus relief, and it is

not destroyed by a transfer of the petitioner and the accompanying custodial change.”

See Santillanes v. U.S. Parole Comm’n, 754 F.2d 887, 888 (10th Cir. 1985). In other

words, regardless of where Santos Abreu is housed, this Court retains jurisdiction over

his habeas petition. So there is no need to interfere with DHS’s authority to “arrange for

appropriate places of detention” under 8 U.S.C. § 1231(g)(1).

ORDER

In light of the above, IT IS HEREBY

ORDERED that within 14 calendar days of the date of this decision and

order, the government must release Santos Abreu from detention unless a neutral

decision-maker conducts an individualized hearing to determine whether his continued

detention is justified; and it is further

ORDERED that at any such hearing, the government has the burden of

demonstrating by clear and convincing evidence that Santos Abreu’s continued

detention is necessary to serve a compelling regulatory purpose, such as minimizing

risk of flight or danger to the community. 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,

the decision maker must find that no condition or combination of conditions of release

can reasonably ensure Santos Abreu’s appearance and the safety of the community—

that is, even with conditions, Santos Abreu presents an identified and articulable risk of

flight or a threat to an individual or the community; and it is further

ORDERED that within 30 days of the date of this decision and order the

government shall file an affidavit certifying compliance with this order. That affidavit

should include a written copy of the IJ’s decision.

SO ORDERED.

Dated: August 5, 2020

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE