B.S. v. Joyce

• Decision Date: 13 February 2023
• Docket Number: 22-cv-9738 (PKC)
• Parties: B.S., Plaintiff, v. WILLIAM JOYCE, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

B.S., Plaintiff,
v.
WILLIAM JOYCE, et al., Defendants.

No. 22-cv-9738 (PKC)

United States District Court, S.D. New York

February 13, 2023

OPINION AND ORDER

P. Kevin Castel, United States District Judge.

Petitioner B.S. has been detained in connection with Immigration and Customs Enforcement (“ICE”) removal proceedings. At a bond hearing, an immigration judge placed the burden on B.S. to prove that he was neither a flight risk nor a danger to the community. The immigration judge found that B.S. failed to establish he was not a danger to the community and denied bond. B.S. filed a petition for a writ of habeas corpus arguing that placing the burden of proof upon him at the bond hearing was a violation of his constitutional due process rights. (ECF 1, hereinafter “Petition”). For the reasons described below, the Court concludes that the burden allocation at B.S.'s initial bond hearing violated his due process rights, and that B.S. is entitled to a constitutionally adequate bond hearing.

BACKGROUND

B.S. fled Guatemala in 2020 to seek protection in the United States. (Petition ¶ 17.) After arriving in the United States, he worked as a landscaper on Long Island until he was arrested on August 9, 2021. (Id. ¶¶ 20-21.) He was convicted of a misdemeanor and served a sentence of several months. (Id. ¶ 21.) On the day of his scheduled release, he was taken into

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ICE custody. (Id.) B.S. has been detained by ICE pursuant to 8 U.S.C. § 1226(a) since December 23, 2021. (Id. ¶ 22.) B.S. first appeared, pro se, before an immigration judge on or about December 27, 2021. (Id. ¶ 23.) He retained The Bronx Defenders as pro bono counsel on January 6, 2022.^[1]

Upon request of The Bronx Defenders, B.S. received a psychological and cognitive evaluation and a competency hearing. (Id. ¶¶ 26, 31.) The psychological evaluation stated that B.S. met diagnostic criteria for Posttraumatic Stress Disorder, Major Depressive Disorder, and Mild Neurocognitive Disorder, and that B.S. is at severe risk for suicide. (Id. ¶ 32.) At the competency hearing, the immigration judge accepted the expert's finding that “B.S. displayed moderate impairments in his ability to consult with counsel and to examine and present evidence,” but did not make an explicit determination with respect to competency. (Id. ¶ 34.) Several safeguards were implemented, such as “required use of brief and simple vocabulary” and “taking frequent breaks.” ^[2](Id.)

On April 15, 2022, counsel for B.S. filed applications for relief from removal “based on his fear of torture by transnational criminal gangs and state actors in Guatemala” and a motion to terminate proceedings on the ground that ICE had not met its burden of proof with respect to removability. (Id. ¶ 33.) The motion to terminate and a subsequent supplemental motion to terminate were both denied on May 25, 2022. (Id.)

A hearing on the merits of B.S.'s applications was held on August 5, 2022. (Id. ¶ 37.) B.S. testified to the harm he would face if returned to Guatemala and an expert testified to the conditions in Guatemala related to B.S.'s fear of deportation. (Id.) The immigration judge

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ultimately ordered B.S.'s removal and denied his application for deferral of removal under the Convention Against Torture. (ECF 29 ¶ 3.) B.S. appealed the decision, and his appeal remains pending. (Id. ¶¶ 3-5.)

Meanwhile, on August 8, 2022, B.S. filed a request for a custody redetermination hearing, known as a “bond hearing.” (Petition ¶ 41.) The bond hearing took place on August 16, 2022. (Id. ¶ 44.) At the hearing, the immigration judge placed the burden on B.S. to prove that he was neither a flight risk nor a danger to the community, and denied bond based on a finding that B.S. failed to establish he was not a danger to the community. (Id. ¶ 44, Ex. E.) B.S. did not appeal the bond decision to the Board of Immigration Appeals (“BIA”). (Id. ¶ 44.)

B.S. filed his Petition on November 15, 2022. The Petition asserts that the burden allocation at B.S.'s bond hearing violated his due process rights because (1) he never had a constitutionally adequate bond hearing that justifies his detention, and (2) he has been subject to “prolonged detention.” (Id. ¶ 84.) The Petition argues B.S. is entitled to a constitutionally adequate bond hearing where the burden is on the government to justify his detention by clear and convincing evidence. (Id.) He further urges that the hearing must include “additional procedural protections, specifically consideration of an individual's ability to pay and alternative^ conditions of release,” in order to satisfy due process. (Id. ¶¶ 71, 84.) The Petition also argues that placing the burden on the noncitizen violates the Administrative Procedures Act (“APA”) because the BIA decision that established the burden allocation is arbitrary and capricious. (Id. ¶¶ 92-96.)

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DISCUSSION

I. B.S.'s Failure to Appeal His Adverse Bond Decision Is Excused.

“Under the doctrine of exhaustion of administrative remedies, ‘a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself.'” Howell v. I.N.S., 72 F.3d 288, 291 (2d Cir. 1995) (quoting Guitard v. U.S. Secretary of Navy, 967 F.2d 737, 740 (2d Cir. 1992)). As “[t]here is no statutory requirement of administrative exhaustion before immigration detention may be challenged in federal court by a writ of habeas corpus,” the exhaustion requirement in immigration detention cases is a judicially-created prudential standard. Joseph v. Decker, 18-Civ-2640, 2018 WL 6075067, at *5 (S.D.N.Y. Nov. 21, 2018) (quoting Nativi v. Shanahan, 16-Civ-8496, 2017 WL 281751, at *1 (S.D.N.Y. Jan. 23, 2017)); see also Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003). Failure to exhaust administrative remedies may be excused “when such exhaustion would be futile or where the agency has predetermined the issue before it.” Rosenthal v. Killian, 667 F.Supp.2d 364, 366 (S.D.N.Y. 2009) (quoting Garcia v. Shanahan, 615 F.Supp.2d 175, 180 (S.D.N.Y. 2009)); see also Beharry, 329 F.3d at 62.

It is undisputed that B.S. did not appeal the immigration judge's bond decision to the BIA. The government argues that B.S.'s failure to exhaust his administrative remedies should not be excused. It urges that an appeal to the BIA would not be futile for two reasons -both are unpersuasive. First, it asserts that B.S. could have raised other, non-constitutional arguments that the BIA should be allowed to address in the first instance, and which could have mooted this case. (ECF 17 at 21.) As Petitioner points out, this argument is based on “hypothetical errors” and is “entirely speculative.” (See ECF 30 at 11.) Moreover, the cases cited by the government do not support its position. See Cepeda v. Shanahan, 15-Civ-9446,

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2016 WL 3144394 (S.D.N.Y. Apr. 22, 2016) (petitioner challenged standard of proof - not burden allocation - at bond hearing, and the court determined it was “premature” to reach the constitutional question because petitioner's appeal to the BIA was pending); United States v. Gonzalez-Roque, 301 F.3d 39, 48 (2d Cir. 2002) (noting the BIA “can address procedural defects in deportation proceedings” and concluding that petitioner could not “evade BIA review” by labelling his “essentially procedural”...