Alphonse v. Moniz

• Docket Number: Civil Action No. 21-11844-FDS
• Decision Date: 17 October 2022
• Citation: 635 F.Supp.3d 28
• Parties: Anderson ALPHONSE, Petitioner, v. Antone MONIZ, Respondent.
• Court: U.S. District Court — District of Massachusetts

635 F.Supp.3d 28

Anderson ALPHONSE, Petitioner, v. Antone MONIZ, Respondent.

Civil Action No. 21-11844-FDS

United States District Court, D. Massachusetts

Signed October 17, 2022

Mary P. Holper, Boston College Legal Services Lab Immigration Clinic, Newton, MA, for Petitioner.

Michael Fitzgerald, United States Attorney's Office, Boston, MA, for Respondent.

MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

SAYLOR, Chief Judge

This is a petition for a writ of habeas corpus.PetitionerAnderson Alphonse is a detainee of Immigration and Customs Enforcement who is currently held at the Plymouth County Correctional Facility.RespondentAntone Moniz is the current superintendent of that facility.

Alphonse is a legal permanent resident who has resided in the United States since 1988.In 2018, he was convicted of several state-law drug offenses.After serving two years and ten months of a seven-year sentence, he was placed on parole and transferred to ICE custody.ICE made an initial custody determination to detain him under 8 U.S.C. § 1226(c).That determination was upheld by an immigration judge, and he has been in mandatory detention since then.

Alphonse seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that he has been unreasonably detained without a bond hearing in violation of the Fifth Amendment.For the following reasons, the petition will be granted in part.

I.Background

A.Factual Background

The facts are drawn from the petition for habeas corpus.

Anderson Alphonse is a 40-year-old legal permanent resident of the United States.(Pet. ¶ 1).His country of origin is Haiti.(Id.).

According to Alphonse, when he was approximately six years old, his family fled Haiti to the United States after allegedly being persecuted by a paramilitary group known popularly as the Tonton Macoute.(Id.¶¶ 12-13).Since 1988, he has resided in the United States.He has two children who are both U.S. citizens.(Id.¶ 11).

In 2006, Alphonse was shot, leaving debris in his neck that has caused nerve damage.(Id.¶ 16).According to Alphonse, he reported the shooter to the police and fully cooperated throughout the police investigation.(Id.).He contends that he is currently in the process of applying for a U Visa based on his cooperation with the police.(Id.¶ 24).

In 2012, Alphonse was placed in removal proceedings and charged as deportable as a legal permanent resident convicted of an aggravated felony, controlled-substance offense, and firearms offense.(Id.¶ 17).However, an immigration judge subsequently cancelled his removal.(Id.).The details of those convictions are not in the record, and it appears that the proceeding is entirely separate from the present matter.

On June 14, 2016, Alphonse was charged in state court in New Jersey with two counts related to possession of controlled dangerous substances, two counts related to possession with intent to distribute a controlled dangerous substance, and one count of possession with intent to use drug paraphernalia.(Pet. Ex. 11at 43).He pleaded not guilty.(Id.).On January 29, 2018, he was convicted under N.J. Stat. Ann. §§ 2C:35-10A(1)and2C:35-5B(3) for possession of a controlled dangerous substance and possession of a controlled dangerous substance with intent to distribute.(Pet. Ex. 11at 43;Pet. ¶ 18).He subsequently received a sentence of seven years in state prison and ultimately served two years and ten months.(Pet. Ex. 11at 43).

Those 2018 criminal convictions triggered ICE's initial custody determination under 8 U.S.C. § 1226(c).(Pet. ¶ 20;Pet. Ex. 2at 1).Petitioner is currently detained at the Plymouth County House of Corrections.(Pet. ¶ 6).

B.Procedural Background

1.Immigration Proceedings

On November 30, 2020, DHS served Alphonse a Notice to Appear, alleging that he was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having committed two crimes of moral turpitude.(Pet. Ex. 2at 1-2).On that same day, he was taken into mandatory detention pursuant to 8 U.S.C. § 1226(c).(Pet. ¶ 20;Pet. Exs. 2; 3).Also on that same day, he requested a Joseph hearing to review his custody determination.(Pet. ¶ 20;Pet. Ex. 5).¹On December 18, 2020, an immigration judge determined he was properly detained under § 1226(c).(Pet. Ex. 7).Alphonse did not appeal that determination.(MarfissiDecl. ¶ 13).

Alphonse appeared pro se before an immigration judge in removal proceedings on December 18, 2020.(Pet. ¶ 22;Pet. Ex. 14at 2).He received a ten-day continuance to secure counsel.(Pet. ¶ 22;Pet. Ex. 14at 4-5).He appeared pro se again before an immigration judge on December 28, 2020.(Pet. ¶ 22;Pet. Ex. 14at 7).At his second appearance, he told the immigration judge that he had obtained counsel but that person was unable to appear at that time.(Pet. ¶ 22;Pet. Ex. 14at 7).The immigration judge granted him a 35-day extension, but proceedings actually resumed 45 days later.(Pet. ¶ 22;seePet. Ex. 14at 8, 10).

On January 22, 2021, DHS conducted a custody determination as to Alphonse pursuant to the nationwide injunction in Fraihat v. U.S. Immigr. & Customs Enf't, 445 F. Supp. 3d 709(C.D. Cal.2020), rev'd and remanded, 16 F.4th 613(9th Cir.2021).(Pet. ¶ 21).DHS concluded that he would remain detained in light of his risk factors and because he was a threat to public safety.(Id.).

At removal proceedings on February 10, 2021, DHS orally corrected an incorrect reference to a New Jersey statute that was included in the Notice to Appear.(Pet. Ex. 14at 12-13).DHS was also given two weeks to brief the issue of derivative citizenship.(Pet. Ex. 14at 14).Alphonse denied all charges of removability and moved to terminate proceedings through counsel.(Pet. ¶ 23).On February 24, 2021, DHS submitted its brief in support of removability.(Pet. Ex. 12at 4).It simultaneously lodged two additional charges of removability, alleging that his 2018 conviction for possession of a controlled dangerous substance with intent to distribute qualified as both an aggravated felony rendering him removable under § 1227(a)(2)(A)(iii) and as a controlled-substance offense rendering him removable under § 1227(a)(2)(B).(Id.).

On March 24, 2021, the immigration judge denied Alphonse's motion to terminate the proceedings and sustained all three charges of removability.(Pet. ¶ 23).On May 12, 2021, the immigration judge denied his application for deferral of removal under the Convention Against Torture and ordered him removed to Haiti.(Id.).

Alphonse filed a notice of appeal of the immigration judge's decision to the Board of Immigration Appeals.(Pet. ¶ 23).On June 24, 2021, the BIA issued a briefing schedule.(Id.).On August 5, 2021, Alphonse submitted his supporting brief after a three-week extension granted by the BIA.(Id.).In that brief, he argued that the IJ erred in finding that his convictions constituted both a controlled-substance offense and an aggravated felony; that the IJ erred in denying his claim under the CAT; that the BIA should consider changed country conditions in Haiti; and that new law affected his claim and required remand based on his relationship to his mother and uncle.(SeePet. Ex. 15).The government also filed its brief.(MarfissiDecl. ¶ 22).

On August 8, 2022, the BIA remanded the case to the immigration judge, finding that the immigration judge's decision did not contain sufficient findings or analysis for meaningful appellate review.Matter of Anderson Alphonse, No. A041-584-763 (BIA Aug. 8, 2022).The BIA rejected petitioner's other arguments.

2.Habeas Proceedings

On November 12, 2021, Alphonse filed the present petition for a writ of habeas corpus.

On January 31, 2022, the Court issued an order dismissing the case.The Court found that § 1252(b)(9) precluded jurisdiction over the application of § 1226(c) to Alphonse and that the statute was constitutional as applied.The Court further found, using the factors outlined in Reid v. Donelan, 390 F. Supp. 3d 201(D. Mass.2019), that his detention was not unreasonably prolonged in violation of the Fifth Amendment.

On March 1, 2022, Alphonse appealed the Court's decision to the First Circuit.On September 1, 2022, the First Circuit granted the parties' joint motion to remand in light of the intervening decision of the BIA on August 8, 2022.

On September 8, 2022, the Court granted a joint motion to expedite briefing by the parties, and the issue on remand is now fully briefed.Alphonse and the United States agree that the only issue before the Court is whether, in light of the BIA decision, it should reconsider its earlier decision that Alphonse's detention was not unreasonably prolonged and order a bond hearing, and, if so, what burden of proof should apply at that bond hearing.

II.Petitioner's Continued Detention

A.Legal Standard

Title 8, U.S.C. § 1226 governs the apprehension and detention of aliens during removal proceedings.Although the government may generally release an alien on conditional parole or bond while his removability decision is pending, § 1226(c)"carves out a statutory category of aliens who may not be released under § 1226(a)."Jennings v. Rodriguez, — U.S. —, 138 S. Ct. 830, 837, 200 L.Ed.2d 122(2018).Pursuant to § 1226(c), the Attorney General is required to take into custody any alien who is inadmissible or deportable based on a conviction for "certain crimes of moral turpitude, controlled substance offenses, aggravated felonies, firearm offenses, or acts associated with terrorism."Gordon v. Lynch, 842 F.3d 66, 67 n.1(1st Cir.2016);see8 U.S.C. § 1226(c).The Attorney General may release such an alien only if he decides "that release of the alien from custody is necessary" for witness-protection purposes and "the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding."8 U.S.C. § 1226(c)(2).

A district court may...