Aparicio-Villatoro v. Barr
| Decision Date | 16 August 2019 |
| Docket Number | No. 6:19-cv-06294-MAT,6:19-cv-06294-MAT |
| Parties | FRANKLIN WI APARICIO-VILLATORO, Petitioner, v. WILLIAM P. BARR, Attorney General; THOMAS FEELEY, Field Office Director for Detention and Removal Buffalo Field Office Bureau of Immigration and Customs Enforcement Department of Homeland Security; and JEFFREY SEARLS, Facility Director, Buffalo Federal Detention Facility, Respondents. |
| Court | U.S. District Court — Western District of New York |
Proceeding pro se, Franklin Wi1 Aparicio-Villatoro ("Aparicio-Villatoro" or "Petitioner") commenced this habeas proceeding pursuant to 28 U.S.C. § 2241 ("§ 2241") against the named Respondents (hereinafter, "the Government") challenging his continued detention in the custody of the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE"). For the reasons discussed below, the request for a writ of habeas corpus is granted.
The following factual summary is drawn from the Declaration ofJoseph D. Marchewka ("Marchewka Decl.") (Docket No. 4-1) and attached Exhibits (Docket No. 4-2) and the exhibits (Docket No. 1-1) attached to the Petition.
Aparicio-Villatoro, a native and citizen of El Salvador, entered the United States on an unknown date at an unknown place in January 2004, after traveling through Guatemala and Mexico. Aparicio-Villatoro states in his Petition that while he was in high school, two MS-13 gang members came to his school looking for a friend of his. They asked Aparicio-Villatoro's friend why he had changed his mind and refused to come for a meeting with them as scheduled. Apparently, Petitioner's friend did not give them an acceptable answer, at which point one of the gang members pulled out a gun and fatally shot him. Aparicio-Villatoro escaped but ultimately left El Salvador out of fear of retaliation by MS-13 members since he was the only witness to the shooting of his friend. Once in this country Aparicio-Villatoro obtained a tax identification number and worked for a number of years doing construction and plumbing work. Prior to his being taken into DHS custody, he lived in Silver Spring, Maryland with his U.S. citizen girlfriend (whom he married in December 2018) and their two-year-old son.
On October 5, 2018, at approximately 11:05 PM, a United States Border Patrol Agent ("BPA") observed a black colored Honda with Virginia license plates operating on New York State Route 122,which the Government claims is a smuggling corridor for illegal aliens near the Akwesasne Mohawk Reservation in Hogansburg, New York. A vehicle record check of the black Honda revealed that it had not crossed the international border from Canada into the United States at a port of entry. Ultimately, the BPA made the decision to conducted a vehicle stop of the black Honda at around 11:14 p.m.
Upon questioning, the driver, Aparicio-Villatoro, stated that he was born in El Salvador and lacked any documents authorizing him to remain in the United States. The front-seat passenger and two rear-seat passengers also admitted upon questioning that they were born outside of the United States and lacked visas or other documentation allowing them to legally remain in the United States.
Following the traffic stop, Aparicio-Villatoro was transported to the Burke New York Border Patrol Station for processing where he declined to answer questions before speaking to a lawyer and declined the opportunity to contact the El Salvador Consulate. Aparicio-Villatoro was held based on an alleged violation of 8 U.S.C. § 1182 and Immigration and Nationality Act ("INA") § 212, as being an alien present without admission. On October 6, 2018, he was served with a Notice to Appear ("NTA"), charging him with being subject to removal from the United States pursuant to INA § 212(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled, or who arrived in the United States atany time or place other than as designated by the Attorney General. Also on October 6, 2018, DHS reviewed Aparicio-Villatoro's custody status and determined that he should be detained pending a final decision in his immigration proceedings.
On or about October 16, 2018, Aparicio-Villatoro was transferred to the BFDF. On November 16, 2018, the IJ granted the motion to continue filed by Aparicio-Villatoro's immigration counsel. The IJ granted a subsequent motion to continue on November 21, 2018, rescheduling the custody redetermination hearing for December 6, 2018.
Prior to the bond hearing, Aparicio-Villatoro's immigration attorney submitted a number of letters of support from family and friends attesting to his significant family ties in the United States and his lack of any criminal conduct. Also submitted were the birth certificate of his two-year-old son and a letter of support and proof of hardship from his fiancee, a U.S. citizen, along with letters of support from his two U.S. citizen brothers and U.S. citizen uncles, cousins, and aunts; copies of lease agreements; bank account statements; pay stubs; and proof of filing of income tax returns. See generally Docket No. 1-1, pp. 14-23 of 164 (Respondent's Bond Brief on Appeal dated 1/23/2019); Docket No. 1-1, pp. 24-164 (). DHS opposed the bond request but made no submissions prior to the actual bond hearing and made no submisrions at the bond hearing. Docket No. 1-1, p. 16 of 164. Aparicio-Villatoro provided testimony by which he established that he does not have criminal history and, although he admittedly worked without authorization, obtained a tax identification number ID and has been filing taxes since he began working in the United States. Aparicio-Villatoro testified that he fled El Salvador due to the widespread gang violence and the fears that his grandfather had for his safety. He further testified that he is the sole breadwinner for his family and his fiancee depends on him to pay the bills for the home including her medical bills due to her eye surgery. He indicated that if released, he would return to his residence in Maryland with his fiancee and child. Following the hearing, the IJ denied Aparicio-Villatoro's request for a change in custody status, finding that he was a flight risk, had used a smuggler to cross the border initially, and had worked in the United States without authorization. The removal hearing was re-scheduled for March 7, 2019.
On December 27, 2018, through counsel, Aparicio-Villatoro filed his applications for relief from removal, including a Form EOIR-42B Application for Cancellation of Removal and Adjustment of Status for certain Non-Permanent Residents, a Form I-589 Application for Asylum and for Withholding of Removal, along with supporting documents. Aparicio-Villatoro submitted additional evidence, namely, proof of continuous residency and of a qualifying relative, to support the applications he made for relief fromremoval on January 2, 2019, and February 26, 2019.
On December 17, 2018, Aparicio-Villatoro appealed the IJ's December 6, 2018 bond decision. On December 27, 2018, he submitted a Request for Administrative Bond or Release on Alternatives to Detention. On January 2, 2019, DHS denied the request citing Aparicio-Villatoro's previous bond hearing on December 6, 2018, following which the IJ determined that Villatoro was a flight risk and denied bond. The IJ's memorandum decision (Docket No. 4-2, pp. 21-24 of 48) regarding the December 6, 2018 bond denial was issued on January 8, 2019.
On March 7, 2019, Aparicio-Villatoro appeared with counsel at his removal hearing. He testified, along with his wife, who is a United States citizen and with whom he has a two-year-old son. At the conclusion of the proceeding, the IJ reserved decision. On May 3, 2019, the IJ issued a written decision (Docket No. 4-2, pp. 28-42 of 48) denying Aparicio-Villatoro's applications for relief from removal and ordering him removed to El Salvador. The IJ noted that Aparicio-Villatoro conceded his ineligibility for asylum because he failed to file his application within the one-year deadline. The IJ also found that Aparicio-Villatoro failed to meet his burden in proving that it is more likely than not that he will suffer harm rising to the level of persecution if he is returned to El Salvador and failed to demonstrate that he will more likely than not be subject to torture in El Salvador. The IJ concluded that Aparicio-Villatoro had failed to demonstrate that his removal would result in exceptional and extremely unusual hardship to his qualifying relatives, as is required for cancellation of removal.
On May 23, 2019, Aparicio-Villatoro timely appealed the IJ's order of removal to the Bureau of Immigration Affairs ("BIA"). On May 21, 2019, the BIA dismissed (Docket No. 4-2, pp. 46-47 of 48) Aparicio-Villatoro's appeal of the IJ's bond decision. His appeal of the IJ's removal order remains pending before the BIA. Aparicio-Villatoro is currently held at the BFDF pending completion of his immigration proceedings.
Title 28 U.S.C. § 2241 grants this Court jurisdiction to hear habeas corpus petitions from aliens claiming they are held "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678, 687 (2001) (citing 28 U.S.C. § 2241(c)(3)). However, the REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a), 199 Stat. 231 (May 11, 2005) amended the Immigration and Nationality Act ("INA") to provide that petitions for review filed in the appropriate Courts of Appeals were to be the "sole and exclusive means for judicial review" of final orders of removal. Ruiz-Martinez v. Mukasey, 516 F.3d 102, 113 (2d Cir. 2008) (citing REAL ID Act § 106(c); 8 U.S.C. § 1252(a)(5)). In other words, the REAL ID Act "strips district courts of jurisdiction to hear habeas petitions challenging finalorders of deportation. . . ." De Ping Wang v. Dep't of Homeland Sec., 484 F.3d...
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