Bourguignon v. MacDonald, C.A. No. 09-CV-30068-MAP.

• Citation: 667 F.Supp.2d 175
• Decision Date: 30 October 2009
• Docket Number: C.A. No. 09-CV-30068-MAP.
• Parties: Bristout BOURGUIGNON, Petitioner v. Frederick B. MacDONALD, Sheriff Franklin County et al., Respondents.
• Court: U.S. District Court — District of Massachusetts

Page 175

667 F.Supp.2d 175

Bristout BOURGUIGNON, Petitioner v. Frederick B. MacDONALD, Sheriff Franklin County et al., Respondents.

C.A. No. 09-CV-30068-MAP.

United States District Court, D. Massachusetts.

October 30, 2009.

Lauren Carasik, Western New England, College School of Law, Springfield, MA, Michael J. Wishnie, Yale Law School, New Haven, CT, for Petitioner.

Karen L. Goodwin, United States Attorney's Office, Springfield, MA, for Respondents.

MEMORANDUM AND ORDER RGARDING PETITION FOR WRIT OF HABEAS CORPUS AND RSPONDENTS' MOTION TO DIMISS (Dkt. Nos. 1 & 15)

PONSOR, District Judge.

I. INTRODUCTION

Petitioner Bristout Bourguignon, a native and citizen of Haiti, is presently in detention at the Franklin County Jail and House of Corrections in Greenfield, Massachusetts pending the outcome of deportation proceedings prompted by his commission in July, 2000 of an aggravated felony. He seeks issuance of a writ of habeas corpus, contending that he has been unlawfully detained without a bond hearing since July 2, 2007 pursuant to the explicit terms of 8 U.S.C. § 1226(c).¹ He has asked the court, first, to construe § 1226(c) as harboring an implicit "reasonableness" limitation on the government's power to detain him without a bond hearing; second, to find that his lengthy detention is unreasonable; and, third, to order Respondents to give him a bond hearing to allow him to seek reasonable conditions of release while the question of his possible deportation is sorted out.

Respondents have filed a motion to dismiss on the ground that the statute is constitutional and explicitly calls for Petitioner's mandatory detention with no right to a bond hearing.

For the reasons stated below, the petition (Dkt. No. 1) will be allowed and Respondents' Motion to Dismiss (Dkt. No. 15) will be allowed as to Respondent Napolitano without prejudice to reconsideration and otherwise denied. As will be seen, the pivotal Supreme Court decision construing 8 U.S.C. § 1226(c), Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), recognized an implicit qualification of reasonableness in the apparently mandatory language of the statute. Decisions subsequent to Demore from the Sixth and Ninth Circuits and from various district courts, including the District of Massachusetts, have confirmed this interpretation of Demore. Since Petitioner has now been detained far beyond any reasonable period (more than twenty-seven months) while his removal proceedings have been pending, he is constitutionally entitled to an inperson hearing at which his eligibility for release on conditions will be weighed in light of his possible danger to the community or risk of flight.

II. FACTS

Petitioner is a lawful permanent resident who suffers from mental illness and insulin-dependent diabetes. Born in Haiti, Petitioner immigrated legally to the United States as a teenager in 1986. After arriving in this country, he graduated from high school, attended college for two years, and was employed consistently thereafter as, among other things, a basketball coach and trainer.

Respondents are Frederick MacDonald, the Sheriff of Franklin County; Forbes Byron, the Superintendent of the Franklin County Jail and House of Correction; and Janet Napolitano, the Secretary of the Department of Homeland Security.

Since the petition relies upon the procedural history of the prior removal proceedings and bond hearings, the court will recount them in detail.

A. Removal Proceedings

On July 2, 2000, Petitioner was arrested on serious criminal charges in Connecticut. He was accused of entering the residence of his employer while children were present, armed with a firearm and under the influence of drugs and alcohol. Petitioner was convicted on September 21, 2001 of one count of burglary in the first degree, two counts of risk of injury to a child, and one count of criminal mischief. He was sentenced to a total of fifteen years imprisonment, suspended after seven years, and five years probation.²

With the end of his term of confinement drawing near, authorities at the Department of Homeland Security, Office of Immigration and Customs Enforcement ("ICE") began removal proceedings against Petitioner. On May 4, 2007, Petitioner was issued a Notice to Appear ("NTA") charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony as that term is defined in 8 U.S.C. § 1101(a)(43)(A). On July 2, 2007, Petitioner completed his seven-year custodial sentence and was released into the custody of ICE officials, who detained him in the Wyatt Detention Facility in Rhode Island pending completion of removal proceedings.

Petitioner promptly applied, pro se, for relief from deportation under the Convention Against Torture ("CAT"). His application was denied by an Immigration Judge ("IJ") on October 17, 2007. He timely appealed the removal order, again pro se, to the Board of Immigration Appeals ("BIA"), which affirmed the IJ's order on January 23, 2008 and rendered it final. See 8 U.S.C. § 1101(a)(47)(B)(I). On February 29, 2008, ICE officials requested necessary travel documents from the Haitian consul to facilitate Petitioner's return to Haiti.

Within ninety days of the final order of removal, ICE conducted a custody review and determined that Petitioner should remain detained because of his crimes of violence and mental illness. His mental illness, described in a psychiatrist's report, included multiple suicide attempts beginning two years before his incarceration, fights with inmates in jail, a personality disorder, and vulnerability to "behavioral dysregulation." Dkt. 4, Talla Decl., Ex. F, at 4. Significantly, the custody review by ICE involved no face-to-face interview with Petitioner or appearance before a neutral arbiter empowered to consider conditions for Petitioner's release.

With the assistance of counsel, Petitioner appealed the BIA's affirmance of his final removal order to the United States Court of Appeals for the Second Circuit, which dismissed his petition for review on July 24, 2008. That court also dismissed a motion to reconsider on August 22, 2008. In accordance with the informal practice within the Second Circuit, ICE held off on any effort to repatriate Petitioner to Haiti while the appeal and motion to reconsider were pending.

Petitioner then filed, pro se, two motions to reopen his final order of removal; these were denied by the BIA on May 28 and September 18, 2008. He followed with a petition for a writ of habeas corpus with the United States District Court for the District of Rhode Island. The district court dismissed the petition on November 7, 2008 for lack of jurisdiction. See Bourguignon v. D.H.S., No. 08-361 (D. R.I. Oct. 24, 2008).

ICE transferred Petitioner from Rhode Island to the Plymouth House of Correction in Massachusetts on December 8, 2008 to await removal.³ Once in Massachusetts, Petitioner, with the assistance of his present counsel, filed a third motion to reopen his final order of removal on December 24, 2008.

On March 10, 2009, the BIA granted Petitioner's motion to reopen and remanded the record to the IJ for further proceedings. In its sua sponte order, the BIA found that Petitioner had provided evidence that "he would likely suffer intentionally severe abuse in prison, which constitutes torture...." Dkt. 4, Ex. R, Talla Decl. at 2. It noted, "respondent has provided demonstrable evidence that he may suffer torture at the hands of or with the acquiescence of a public official, if removed to Haiti." Id.

On March 17, 2009, Petitioner was transferred from Plymouth to the Franklin County Jail and House of Correction in Greenfield, Massachusetts. On April 20, 2009, counsel for Petitioner filed the petition for a writ of habeas corpus now before this court.

On July 1, 2009, while the petition was pending here, the IJ held an evidentiary hearing to consider Petitioner's claim for deferral of removal under the CAT pursuant to the BIA's decision to reopen and remand the case. On July 8, 2009, the IJ issued an oral decision, denying the CAT claim and once more ordering Petitioner to be repatriated to Haiti.

Petitioner has filed a notice of appeal of this decision with the BIA. Dkt. No. 20-3. In his appeal, he argues that the IJ's decision ignored the BIA's remand order, was factually incorrect, and failed to address all of Petitioner's claims. This appeal is currently pending. If the BIA affirms the IJ, Petitioner intends to file a petition for review with the Second Circuit under 8 U.S.C. § 1252(b).

Since the BIA has not yet made a decision regarding the IJ's ruling, Petitioner is not currently subject to a final order of removal; obviously, it is not certain that he ever will be. If the order should become final after review, Petitioner will once again be held under 8 U.S.C. § 1231, which governs detention of an alien following a removal order. Unless and until this happens, Petitioner's detention is covered by 8 U.S.C. § 1226, which applies to an alien's detention while removal proceedings are pending.

B. Bond Hearing

On March 31, 2009, Petitioner filed a motion for a bond determination with the Immigration Court in Hartford, Connecticut. On April 1, 2009, he appeared before the IJ and presented declarations from his brother, sister, and cousin. Each offered evidence as to Petitioner's ties to his family and the financial support they would provide him if released. In addition, he presented a letter from Carol Pace, Director of a facility called "CT Renaissance-East," which confirmed his eligibility for a three-to six-month residential program that offered both intensive substance abuse treatment and assistance with reentry into the community.⁴

The IJ did not weigh any of this evidence, or consider whether Petitioner constituted a danger to the community or a flight risk. Rather, he held that, since Petitioner had been convicted of an aggravated felony, the explicit...