Aguasvivas v. Pompeo
| Decision Date | 18 September 2019 |
| Docket Number | C.A. No. 19-123-JJM-PAS |
| Citation | 405 F.Supp.3d 347 |
| Parties | Cristian AGUASVIVAS, Plaintiff, v. Mike POMPEO, Secretary of State, William Barr, Attorney General, John Gibbons, U.S. Marshal for the District of Massachusetts, Wing Chau, U.S. Marshal for the District of Rhode Island, and Daniel Martin, Warden, Wyatt Detention Facility, Defendants. |
| Court | U.S. District Court — District of Rhode Island |
Amy Barsky, Fick & Marx, LLP, Samia Hossain, Federal Public Defender Office, Boston, MA, Olin W. Thompson, Federal Defender's Office, Providence, RI, for Plaintiff.
Petitioner Cristian Aguasvivas filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 and a complaint for declaratory and injunctive relief, claiming that he faces the prospect of being extradited for a crime he did not commit to a country where he will be tortured. The Court grants Mr. Aguasvivas' Petition for a Writ of Habeas Corpus, dismisses the Extradition Complaint for failure to comply with the relevant Treaty;1 finds that Mr. Aguasvivas' extradition would violate the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 ("CAT"), given the final Board of Immigration Appeals ruling; and orders Mr. Aguasvivas released from custody.
On December 6, 2013, Mr. Aguasvivas, a cabinet-maker apprentice and father of two, was waiting outside his boss' house to travel with him to a job, when agents of the Dominican Republic's National Directorate for Drug Control (DNCD) dressed in civilian clothing2 and in an unmarked vehicle tried to arrest him for suspected drug dealing in the Dominican Republic.
Chaos erupted because Mr. Aguasvivas and his family and friends witnessing the event believed he was being kidnapped. The police cuffed Mr. Aguasvivas' hands in front of his body and forced him into the front passenger's seat of their unmarked vehicle. While two officers were physically pushing Mr. Aguasvivas into the vehicle, shots were fired. DNCD Agent Lorenzo Ubri Montero3 died from his wounds
, and Captain Felipe de Jesus Jimenez Garcia and Agent Jose Marino Hernandez Rodriguez4 sustained non-fatal injuries in the commotion. Mr. Aguasvivas and his brother Francis Aguasvivas, who witnessed the event, fled from the scene.5
Documents written after the incident give conflicting evidence of the perpetrator of the killing. The autopsy of Agent Ubri conducted hours after the shooting states that ECF No. 9-4 at 71. It also states that the decedent was killed by "distant" wounding. Id. But the arrest warrant issued by the Dominican police the day of the shooting, states "at the moment when the agents of the [DNCD] were making an anti-drug operation and were preparing to arrest Estarling Aguasvivas6 ...[he] disarmed and fired three shots to the [decedent]." Id. at 64. An affidavit by the Dominican prosecutor, written three years later, alleges that Mr. Aguasvivas "in a surprising way, attacked to the agent the [decedent], to whom disarmed and killed, opening fire on all the agents of the [DNCD] that were present." Id. at 58. In a supplemental affidavit dated four months later, the prosecutor asserts that the two "surviving victims of the shootout attack on the anti-narcotics patrol carried out by [Mr. Aguasvivas]" are "eyewitnesses because they saw [Mr. Aguasvivas] disarm, shoot, and kill the [decedent]." Id. at 84.
Following the shooting, to extract information from them about Mr. Aguasvivas' location, the DNCD tortured members of Mr. Aguasvivas' family, according to four family members.7 See ECF No. 9-2 at 16-18 (). The victims consistently testified about "having [ ] black bags placed over their heads and onions placed in their mouths," and that "the black bag/onion tactic, [was] intended to simulate/cause suffocation." ECF No. 9-5 at 2.
The Dominican police shot and killed Mr. Aguasvivas' brother, Francis Aguasvivas, soon after the brothers went their separate ways. Mr. Francis Aguasvivas' autopsy shows that he was killed "by contact of a firearm projectile" to the chest and lists his manner of death as homicide caused by wound
to the heart. ECF No. 9-7 at 5, 6. The police maintain that they killed him in a shootout.
Mr. Aguasvivas fled the country and came to the United States upon hearing the news of his family's torture and his brother's death.
Upon arrival in the United States, Mr. Aguasvivas sought asylum, withholding of removal, and protection under the CAT in immigration court. The Immigration Judge held nine hearings and considered the testimony of ten witnesses. See ECF No. 9-2 at 14-15 (listing witnesses). Mr. Aguasvivas testified and called eight witnesses: Joseline Ballez, Angel Pimenthal, Keila Aguasvivas, and Sandra Aguasvivas testified to being tortured; Yolanda Diaz testified as a percipient witness; and three individuals testified as character witnesses. The Government called one witness, a DEA agent working in the Dominican Republic. See id. at 13-14 (). Mr. Aguasvivas also presented reports and articles documenting human rights violations by the Dominican police. See id. at 2-3, 5. The Government submitted documents in support of its allegation that Mr. Aguasvivas committed the shooting, including the Dominican arrest warrant, police reports, an Interpol notice for Mr. Aguasvivas, and news articles about Mr. Aguasvivas' involvement in the shooting. See id. at 4-5.
The Immigration Judge found that Mr. Aguasvivas was not eligible for asylum or withholding of removal because he did not establish persecution because of his race, religion, nationality, membership in a particular social group, or political opinion. See id. at 29. The Immigration Judge also found there were "serious reasons for believing" that Mr. Aguasvivas had committed the murder, a serious nonpolitical crime. See id. at 26, 29. The Immigration Judge also denied Mr. Aguasvivas the CAT relief. See id. at 30-31. Mr. Aguasvivas appealed.
Id. (internal citations omitted). The BIA granted Mr. Aguasvivas withholding of removal. ECF No. 9-8. This represented the final order on the CAT. Mr. Aguasvivas was released from custody and the United States Government was barred from removing him from this country because of the likelihood that he would be tortured.
About one year after the BIA granted Mr. Aguasvivas withholding of removal under the CAT, the United States Government filed an Extradition Complaint in the United States District Court for the District of Massachusetts. In re Aguasvivas , Misc. No. 17-MJ-4218-DHH (D. Mass. Sept. 13, 2017). The request sought extradition on conspiracy, homicide, illegal possession of firearm, and robbery charges stemming from his arrest in the Dominican Republic. ECF No. 9-4 at 56. The United States Marshal Service detained Mr. Aguasvivas and he has been in federal custody at the Wyatt Detention Facility in Central Falls, Rhode Island for the last two years. Mr. Aguasvivas moved to dismiss the Extradition Complaint. The Magistrate Judge held a hearing on the motion to dismiss and an evidentiary hearing on the extradition request.
The Magistrate Judge found that the Treaty between the United States and the Dominican Republic was in full force and effect, and that the Treaty covered the crimes for which the Dominican Republic requested surrender. ECF No. 9-12 at 12-16. He also found that there was enough evidence to support a probable cause finding on the charges of robbery, illegal possession of firearms, and murder, denying certification on the conspiracy charges. Id. at 17-31. He later issued an Order denying the motion to dismiss, issued a Certificate of Extraditability, and an Order of Commitment. Id. at 2, 38-39. The Magistrate Judge did not have the issue of the CAT before him. The matter now comes here by a Petition for Writ of Habeas Corpus, in essence appealing the Magistrate Judge's order.8
Mr. Aguasvivas sets forth two arguments in seeking review of the Magistrate Judge's certificate of extradition. First, he challenges his extradition under the Treaty between the two countries by both claiming that there was no probable cause established that he committed the crimes, and that the Dominican Republic government did not meet the documentary requirements of the Treaty. Second, he argues that extradition is unlawful under the CAT because he will be tortured in the Dominican Republic if the United States returns him there. While the Court agrees with some of Mr. Aguasvivas' arguments...
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