Blandon v. Barr

• Decision Date: 22 January 2020
• Docket Number: 6:18-CV-06941 EAW
• Citation: 434 F.Supp.3d 30
• Parties: David Mairena BLANDON, Petitioner, v. William P. BARR, Attorney General of the United States, et al., Respondents.
• Court: U.S. District Court — Western District of New York

434 F.Supp.3d 30

David Mairena BLANDON, Petitioner,

v.William P. BARR, Attorney General of the United States, et al., Respondents.

6:18-CV-06941 EAW

United States District Court, W.D. New York.

Signed January 22, 2020

Joseph David Moravec, Prisoners' Legal Services of New York, Albany, NY, for Petitioner.

Jenny Chong Lee, U.S. Department of Justice, Washington, DC, for Respondents.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Petitioner David Mairena Blandon ("Petitioner"), a civil immigration detainee currently held at the Buffalo Federal Detention Facility in Batavia, New York, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). The Court issued a Decision and Order on October 28, 2019 (the "D & O"), finding that Petitioner was entitled to an individualized bond hearing at which the Government bore the burden of proving by clear and convincing evidence that Petitioner poses either a risk of flight or a danger to the community. (Dkt. 7). Judgment granting the Petition in part pursuant to the D & O was entered on October 30, 2019. (Dkt. 8). Presently before the Court is Petitioner's motion to enforce the Judgment. (Dkt. 10). Petitioner's motion is granted for the reasons that follow.

BACKGROUND

The factual background of this case is set forth in detail in the D & O, familiarity with which is assumed for purposes of this Decision and Order. The Court has summarized the key details below, and includes the relevant developments since the Court's issuance of the D & O.

Petitioner is a native and citizen of Nicaragua who entered the United States in or around 2002 without admission or inspection. (Dkt. 1 at 3; Dkt. 5-1 at ¶ 5). On July 24, 2015, Petitioner was convicted by a jury in New York State Supreme Court, Kings County of manslaughter in the first degree under New York Penal Law ("NYPL") § 125.20(1) and criminal possession of a weapon in the fourth degree under NYPL § 265.01. (Dkt. 5-1 at ¶ 6). The New York State Supreme Court Appellate Division, Second Department affirmed Petitioner's criminal judgment on May 31, 2017. (Id. at 53-54).

On July 14, 2017, Petitioner was taken into DHS custody after being released from the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). (Id. at ¶ 11). On December 6, 2017, an immigration judge ("IJ") found Petitioner removable as charged and ordered he be removed from the United States to Nicaragua, a decision Petitioner appealed to the Board of Immigration Appeals ("BIA"). On April 9, 2018, the BIA dismissed Petitioner's appeal of the removal order, and DHS issued a Warrant of Removal/Deportation for Petitioner on April 20, 2018. (Id. at ¶ 16). On May 7, 2018, the IJ held a bond hearing pursuant to § 1226(a), but determined that neither he nor the BIA had jurisdiction to set bond because Petitioner's case was administratively final. (Id. at 36).

On August 20, 2018, Petitioner filed a petition for review and motion for a stay of removal with the Second Circuit (id. at ¶ 22), which the Government moved to dismiss on August 30, 2018 (id. at ¶ 23). On April 17, 2019, the Second Circuit deferred the Government's motion to dismiss and granted Petitioner's motion for a stay pending the resolution of Petitioner's criminal appeal in state court. Mairena Blandon v. Barr , No. 18-2438, Dkt. 47 (2d Cir. Apr. 17, 2019).

Petitioner filed the Petition in the instant matter pro se on December 26, 2018 (Dkt. 1), and this Court granted the Petition in part on October 28, 2019, finding that Petitioner was entitled to a bond hearing pursuant to 8 U.S.C. § 1226(a) where the Government bore the burden of demonstrating by clear and convincing evidence that Petitioner is either a risk of flight or a danger to the community (Dkt. 7). The D & O was entered on October 29, 2019 (id. ), and a Judgment was entered on October 30, 2019 (Dkt. 8).

On October 30, 2019, DHS served a Notice of Filing of Intended Bond Evidence on Petitioner, and filed the same with Immigration Judge Philip J. Montante, Jr. (the "IJ") on November 1, 2019. (Dkt. 13-2). Counsel for Petitioner was informed on October 31, 2019, at 1:00 p.m. that Petitioner's bond hearing was scheduled for the next day—on November 1, 2019, at 1:00 p.m. (Dkt. 12 at ¶ 7). Although Petitioner's counsel requested a 3-day adjournment of the bond hearing to November 4, 2019, or later, the IJ denied the request (id. at ¶¶ 11-12), and Petitioner's bond hearing was held on November 1, 2019 (Dkt. 13-3). On November 5, 2019, the IJ issued a written decision denying Petitioner's release on bond. (Dkt. 13-4).

Petitioner filed the instant motion to enforce on November 25, 2019. (Dkt. 10). On December 13, 2019, Respondents submitted their opposition (Dkt. 15), and Petitioner replied on December 20, 2019.

On December 17, 2019, the New York Court of Appeals affirmed Petitioner's criminal conviction. (Dkt. 16). The Second Circuit lifted the stay of Petitioner's petition for review on December 23, 2019. Blandon v. Barr , No. 18-2438, Dkt. 84 (2d Cir. Dec. 23, 2019). Respondents filed a notice of appeal in the instant action on December 26, 2019. (Dkt. 19).

DISCUSSION

Petitioner contends that he did not receive a constitutionally adequate bond hearing as required by the D & O and asks the Court to order that Respondents immediately release him. (Dkt. 10; Dkt. 11 at 5). The Court agrees with Petitioner that Respondents have failed to comply with the D & O. However, the Court declines to order Petitioner's immediate release at this time, and instead Respondents will be given one final opportunity to afford Petitioner a constitutionally adequate bond hearing.

I. Jurisdiction

The federal habeas corpus statute gives district courts jurisdiction to hear immigration-related detention cases. See 28 U.S.C. § 2241(c)(3) ; Demore v. Kim , 538 U.S. 510, 517-18, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (holding federal courts have jurisdiction to review challenges to pre-removal detention); Zadvydas v. Davis , 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (holding " § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention" in immigration cases). District courts do not have jurisdiction over challenges to the legality of final orders of deportation, exclusion, and removal; jurisdiction to review such challenges rests exclusively in circuit courts. See Gittens v. Menifee , 428 F.3d 382, 384 (2d Cir. 2005) ("[The REAL ID Act, 119 Stat. 231, § 106(a) (May 11, 2005) ] eliminates habeas jurisdiction over final orders of deportation, exclusion, and removal, providing instead for petitions of review ... which circuit courts alone can consider.").

Respondents rely on the language in 8 U.S.C. § 1226(e) to argue that the Court lacks jurisdiction over Petitioner's motion because Petitioner "seeks to intrude upon the IJ's discretion to determine what evidence meets the applicable standard, which is exactly what Congress has prohibited" in § 1226(e). (Dkt. 15 at 12-13). The Court is not persuaded by Respondents' argument for the reasons that follow.

As an initial matter, it is not clear that 8 U.S.C. § 1226(e) applies here. Section 1226(e) states:

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

8 U.S.C. § 1226(e) (emphases added). "The Court is skeptical that [Petitioner's] bond hearing constitutes a proceeding conducted under Section 1226 ; rather, it was a court-ordered bond hearing that demanded procedural protections beyond those compelled by the statute itself." Gutierrez Cupido v. Barr , No. 19-CV-6367-FPG, 2020 WL 103477, at *2 (W.D.N.Y. Jan. 9, 2020) (citing Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 847-48, 200 L.Ed.2d 122 (2018) ); see Darko v. Sessions , 342 F. Supp. 3d 429, 434-35 (S.D.N.Y. 2018) ("[W]hile the Supreme Court held that § 1226(a) does not mandate that a clear and convincing evidence burden be placed on the government in bond hearings, it left open the question of whether the Due Process Clause does.").

Even if the bond hearing ordered by the Court was a bond hearing pursuant to 8 U.S.C. § 1226, " § 1226(e) does not preclude ‘challenges to the statutory framework that permits the alien's detention without bail,’ " and only "precludes an alien from ‘challenging a discretionary judgment by the Attorney General or a decision that the Attorney General has made regarding his detention or release.’ " Jennings , 138 S. Ct. at 841 (quoting Demore , 538 U.S. at 516-17, 123 S.Ct. 1708 ). Other courts in this District have held that § 1226(e) does not deprive district courts of jurisdiction to determine whether an IJ followed a court order granting a bond hearing pursuant to the Fifth Amendment. See Apollinaire v. Barr , No. 19-CV-6285-FPG, 2019 WL 4023560, at *2 (W.D.N.Y. Aug. 27, 2019) ("[T]he statute presents no obstacle to review because the Court is not reviewing an immigration judge's discretionary judgment, but whether its order was followed[.]"); Hechavarria v. Whitaker , 358 F. Supp. 3d 227, 235-36 (W.D.N.Y. 2019) ("[T]he Court is not reviewing a discretionary judgment of the IJ under § 1226, and it is not ‘set[ting] aside any action or decision by the Attorney General under § 1226. Nor is this Court simply reviewing , as the government contends, how the IJ applied [the clear and convincing] burden to the facts before it and weighed the evidence. Instead, the Court is determining whether the order it issued on November 2, 2018, was followed—that is, whether [the petitioner] received the due process to which he was entitled." (alterations in original) (quotations, citation, and footnote omitted)); see also Nguti v....