Hechavarria v. Whitaker

• Decision Date: 16 January 2019
• Docket Number: 15-CV-1058
• Citation: 358 F.Supp.3d 227
• Parties: Joseph E. HECHAVARRIA, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General of the United States; Thomas Feeley, Field Director for Department of Homeland Security Immigration and Customs Enforcement Detention and Removal; and Jeffrey Searls, Facility Director, Buffalo Federal Detention Facility, Respondents.
• Court: U.S. District Court — Western District of New York

358 F.Supp.3d 227

Joseph E. HECHAVARRIA, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General of the United States; Thomas Feeley, Field Director for Department of Homeland Security Immigration and Customs Enforcement Detention and Removal; and Jeffrey Searls, Facility Director, Buffalo Federal Detention Facility, Respondents.

15-CV-1058

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

Signed January 16, 2019

Timothy W. Hoover, Spencer Leeds Durland, Hodgson Russ LLP, Buffalo, NY, for Petitioner.

Allison R. Frayer, Office of Immigration Litigation, Jesi Jean Carlson, U.S. Department of Justice, Washington, DC, Daniel Barrie Moar, Mary Pat Fleming, U.S. Attorney's Office, Buffalo, NY, for Respondents.

DECISION AND ORDER

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

The petitioner, Joseph E. Hechavarria, has been detained by the United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS") since July 11, 2013—for five-and-a-half years—pending a final determination regarding his removal. On November 2, 2018, this Court ordered the respondents to "release Hechavarria from detention unless a neutral [decisionmaker] conducts an individualized hearing to determine whether his continued detention is justified." Docket Item 38 at 20. More specifically, this Court found that given the extent of Hechavarria's unreasonably prolonged detention, due process required the government to bear "the burden of demonstrating by clear and convincing evidence that [his] continued detention is necessary to serve a compelling regulatory purpose." Id. Furthermore, this Court found that the determination of whether detention was "necessary to serve a compelling regulatory purpose" necessarily required the decisionmaker to consider whether "a less restrictive alternative to detention" would suffice. Id. at 20 n. 13.

Now before the Court is Hechavarria's motion, Docket Item 43, to enforce this Court's order and judgment, Docket Items 38, 40. Because the respondents failed to comply with this Court's November 2, 2018 order, the respondents are ordered to release Hechavarria under conditions of supervision.

BACKGROUND

The factual and procedural background leading to this Court's order of November 2, 2018, is generally set forth in that order. See Docket Item 38 at 2-6, Hechavarria v. Sessions , 2018 WL 5776421, at *1-*3 (W.D.N.Y. Nov. 2, 2018) ; see also Hechavarria v. Sessions , 891 F.3d 49, 51-53 (2d Cir. 2018) ; Docket Item 9 at 2-6. On November 16, 2018, Hechavarria filed a status report, which stated that a bond hearing had been held in Immigration Court at Batavia, New York on November 6, 2018. Docket Item 41 at 1. The Immigration Judge ("IJ"), Philip J. Montante, Jr., issued a written decision on November 14, 2018, denying Hechavarria's request for bond. Id.

I. THE HEARING

On November 6, 2018, IJ Montante conducted Hechavarria's bond hearing. Docket Item 43-2 at 10. Before the evidentiary hearing began, Hechavarria's counsel raised an issue regarding the statutory authority of the IJ to hold the bond hearing in the first place. Id. at 11. IJ Montante took that issue under advisement, explaining "that will be thoroughly examined in the final [written] analysis." Id.

IJ Montante allowed the government to proceed first because the government had the burden of proof. Id. at 10. The government noted that Hechavarria "pled guilty to assaulting another person by cutting that person, his alleged girlfriend, with a knife." Id. at 15. The government said that Hechavarria "was accused by his on-again off-again girlfriend of having sexual intercourse with her without her consent, in addition to cutting her on the neck with a steak knife." Id. at 15-16. The government argued that "this shows a history of engaging in very dangerous behavior."Id. at 16.

The government also addressed news articles reporting that Hechavarria once went to New York City after he became aware that there were allegations pending against him in Cheektowaga, New York. Id. This was "something for this court to consider, if it were to consider flight." Id. The government argued that "as long as the government has established to this court and this court's mind that this respondent presents a clear and convincing evidence of danger or such a risk of flight ... no bond is warranted, then [the government] ha[s] met the requirements of the district court's ruling." Id. at 17.

Counsel for Hechavarria responded that the government had not met its burden. He noted that

the government has to show by clear and convincing evidence that detention is necessary. Not simply that it's, would be effective. But that detention is necessary to serve a compelling governmental interest.

Id. at 18. Counsel for Hechavarria then offered the IJ a less restrictive alternative to detention: "electronic monitoring." Id.

Counsel for Hechavarria presented evidence—that is, a request for permission to travel to New York City, which had been granted—to show that the news article upon which the government relied did not suggest any risk of flight. Id. at 19 More specifically, counsel argued that this "supports [their] argument that Mr. Hechavarria does not present a flight risk" because "request[ing] permission to go to New York City" before traveling there is "not the conduct[ ] of somebody who is seeking to abscond." Id. at 20.

Counsel for Hechavarria also observed that "every single piece of evidence that the government has submitted ... does not go past 2011." Id. He argued that "the government needs to demonstrate ... that nothing has changed since 2011," and he noted that "the government has submitted nothing to show that nothing has changed since 2011." Id. Counsel submitted risk assessments from the New York State Department of Corrections and Community Supervision finding that Hechavarria's "risk of felony violence," "arrest risk," and "abscond risk" all are low; the assessments also showed that his "prison misconduct" and "history of violence" were minimal as well. Id. at 21. Counsel also introduced evidence that Hechavarria participated positively in available programming while incarcerated and had a clean disciplinary record. Id. at 22-23.

Hechavarria's attorney also submitted evidence of Hechavarria's medical condition, arguing that because of his medical issues, Hechavarria would not and could not abscond if released. Id. at 23-24. He also submitted e-mails from Hechavarria's family members—including Ronald Hechavarria, the petitioner's brother, and Germaine Hechavarria, the petitioner's son—to demonstrate his family ties, and he argued that those family ties would decrease the likelihood that Hechavarria might return to abusing drugs if released. Id. at 24-25. Based on all that, Hechavarria's counsel expressly asked "the [IJ] to release Mr. Hechavarria on ... stringent monitoring, electronic monitoring, ... and stringent conditions of supervision." Id. at 26.

Counsel for the government replied by arguing that "[p]ast actions are often a predictor for future actions." Id. He said that because Hechavarria had been in custody for years and therefore had limited opportunities to return to drug use, "we don't know how he will act when he is released." Id. at 26-27. "We don't know if he will return to using drugs, which, according to ... the documents I've submitted ... he's had drug issues since 1988." Id. at 27. "And we don't know what he's going to do if he's released from custody." Id. "It's been a long time since he's been [out of] custody." Id. "[I]mportantly," the government argued, "what's he going to do when he is finally released? And the bottom line is, none of us know." Id.

Turning to the standard of proof, government counsel said that the IJ "can weigh [Hechavarria's] history to determine whether or not he will engage in [drug-related] risky, dangerous behavior." Id. Moreover, he argued, "in immigration court if [the IJ] feel[s] there is a potential that this respondent is a danger, then no bond is appropriate, no, no stringent monitoring is appropriate, because if you feel the need for stringent monitoring, because you fear that this respondent might engage in some sort of act, then the proper recourse is no bond then in that case." Id. "Because he is a danger, and if he is a danger then no bond enough is sufficient to protect the citizens of the United States and those around it." Id.

At the conclusion of the hearing, the IJ asked the parties whether they wished to put on testimonial evidence. Id. at 31. When both sides declined, the IJ specifically asked whether either side would call Hechavarria to testify. Id. The parties responded in the negative; there were some additional exchanges regarding scheduling; and the hearing ended. Id. at 31-33.

II. THE IJ'S DECISION

After listing the exhibits that were introduced at the hearing, IJ Montante noted that "[t]raditionally, it is the Respondent's burden to establish eligibility for bond by proving that his ‘release would not pose a danger to property or persons, and that he is likely to appear for any future proceeding,’ 8 C.F.R. § 1236.1(c)(8)." Docket Item 41 at 5-7. Here, "[h]owever, the Federal District Court placed the burden on the government to establish that the Respondent poses a risk of danger to the community." Id. at 7.

The IJ then relied on Matter of Adeniji , 22 I & N Dec. 1102, 1113 (BIA 1999), for the proposition that "[a]n alien who poses a threat of danger to the community should be held without bond." Id. at 8. The IJ also cited a 1974 Fifth Circuit opinion holding that "[t]he Attorney General and his delegates have wide discretion whether to release an alien on bond pending a final decision of removal, and the alien has a heavy burden to establish that the Attorney General or his delegate has abused his discretion in denying bail." Id. (citing United States Ex Rel. Barbour v. District Dir. of I. & N.S. , 491 F.2d 573 (5th Cir. 1974) ).

The IJ found "that the DHS ... met its burden to prove that [Hechavarr...