Huanga v. Decker

• Decision Date: 19 April 2022
• Docket Number: 22 Civ. 1301 (AT) (GWG)
• Citation: 599 F.Supp.3d 131
• Parties: Luis Klever Huanga HUANGA, Petitioner, v. Thomas DECKER, Director, New York Field Office, U.S. Immigration & Customs Enforcement, et al., Respondents.
• Court: U.S. District Court — Southern District of New York

599 F.Supp.3d 131

Luis Klever Huanga HUANGA, Petitioner,

v.Thomas DECKER, Director, New York Field Office, U.S. Immigration & Customs Enforcement, et al., Respondents.

22 Civ. 1301 (AT) (GWG)

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

Signed April 19, 2022

Edgar Loy Fankbonner, Goldberger & Dubin PC, New York, NY, for Petitioner.

Rebecca Ruth Friedman, DOJ-USAO, New York, NY, for Respondents.

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Petitioner Luis Klever Huanga Huanga brings this petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging his detention by United States Immigration and Customs Enforcement ("ICE"), a division of the United States Department of Homeland Security ("DHS").¹ For the reasons set forth below, the petition for a writ of habeas corpus should be denied.

I. BACKGROUND

A. Facts

Huanga is a citizen of Ecuador who unlawfully entered the United States at a time and place unknown to the Government. See Bacchus Decl. ¶¶ 3-4. Huanga represents that he entered the United States without inspection in 2008. See Pet. ¶ 1. In October 2011, Huanga was arrested in Rockland County, New York and charged with various offenses relating to the operation of a motor vehicle without a license and while under the influence of alcohol. See Bacchus Decl. ¶ 5. On March 20, 2012, Huanga pled guilty to a first violation of Driving While Intoxicated, New York Vehicle and Traffic Law ("NYVTL") § 1192(03). See id. ¶ 6; Certificates of Disposition, annexed to Ret. as Ex. 2, at *1.

On July 3, 2017, Huanga was again arrested in Rockland County and charged with operating a motor vehicle without a license in violation of NYVTL § 509(01) and other traffic offenses. See Bacchus Decl. ¶ 7; Certificates of Disposition, at *3. Huanga was convicted of operating a motor vehicle without a license and failure to obey a traffic control device. See Bacchus Decl. ¶ 8; Certificates of Disposition, at *3. On May 5, 2019, Huanga was arrested a third time in Rockland County and charged with operating a motor vehicle without a license, driving while under the influence of alcohol, and other traffic offenses. See Bacchus Decl. ¶ 9. On November 25, 2019, Huanga was convicted by his plea of guilty to a second violation of driving while intoxicated in violation of NYVTL § 1192(03), a felony. Id. ¶ 10. He was sentenced to five years of probation. See Pet. ¶ 3.

Two years into that probation, in 2021, Huanga was arrested after the New York State probation office notified DHS that he had been charged with violating his probation after testing positive for marijuana. See id. On September 30, 2021, outside Rockland County Jail, Huanga was arrested by ICE pursuant to a warrant. See Bacchus Decl. ¶ 11; Notice to Appear, Warrant, and Notice of Custody Determination, annexed to Ret. as Ex. 3 ("Notice to Appear"), at *6. ICE also issued a notice to appear, a charging document used to commence removal proceedings. See Notice to Appear at *1. The notice to appear alleged that Huanga was subject to removal from the United States for entering the country without being admitted or paroled, pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i). See id. Acting pursuant to the authority conferred on DHS by section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226(a), ICE detained Huanga during the pendency of his removal proceeding. Id. at *4. The Notice of Custody Determination informed Huanga that he could request a review of the custody determination by an immigration judge, which Huanga requested on the date of his arrest. See id.

B. Procedural History

On October 4, 2021, Huanga filed a motion before the Immigration Court requesting a custody redetermination hearing. See Emergent Motion for a Bond Hearing, dated Oct. 4, 2021, annexed to Ret. as Ex. 4. On October 5, 2021, the Immigration Judge ("IJ") held a bond hearing. See Bond Hearing Transcript, dated Oct. 5, 2021, annexed to Ret. as Ex. 7. The IJ examined the evidence submitted by both Huanga and DHS and heard arguments from both parties. Id. at 3-8. The IJ then denied Huanga's request for a change in custody status, explaining that Huanga had failed to establish that he was not a danger to the community. Id. at 9. The IJ relied on the fact that Huanga had two prior convictions relating to operating a vehicle with a blood alcohol level that indicated intoxication. Id. The IJ also noted that Huanga had not testified to provide context to his criminal offenses, and had not offered evidence tending to show that, notwithstanding his convictions, he was not a danger to the community:

However, there are certain issues here. Number one, there are no criminal documents such as a police affidavit or police report that would provide any information about the underlying circumstances and how serious the driving was, whether there were any injuries or whether potential [sic], there were any close calls, any damage to any property. There's none of that, no documents.

Furthermore, you were given the opportunity to have your client testify. However, you decided to rest on the record as the Government did. I have no information again on the underlying circumstances. There's no indication of rehabilitation, whether he has attended any programs. There's no indication whatsoever of whether or not this has been an ongoing problem. He's had two arrests. As the Attorney General has stated in the footnote in one case, studies have shown that a person with two arrests, that generally indicates that there may have been other incidents where the respondent was not caught by law enforcement, but we have no testimony on that as to whether or not this has been an ongoing problem. Again, it's the respondent's burden.

Id. at 9-10.

The IJ issued a written order containing his ruling. See Order Denying Bond, dated Oct. 5, 2021, annexed to Ret. as Ex. 5. Huanga never filed an appeal. See Bacchus Decl. ¶ 17.

On December 16, 2021, Huanga appeared for a hearing on his applications for relief from removal. See Bacchus Decl. ¶¶ 20, 22. The IJ denied Huanga's applications for cancellation of his removal and for voluntary departure, rendering his order of removal final. See id. ¶ 22; Order of Removal, dated Dec. 16, 2021, annexed to Ret. as Ex. 8. ICE performed a custody review and determined that Huanga should remain detained due to his final removal order and his criminal history. See Bacchus Decl. ¶ 23.

On January 19, 2022, Huanga, through new counsel, filed a motion with the IJ to reopen his removal proceedings, claiming ineffective assistance of counsel. Id. ¶ 24. Huanga also filed a motion to stay his removal. Id. On January 20, 2022, an IJ granted Huanga's motion to stay his removal, see id. ¶ 26, and on January 31, 2022, an IJ granted Huanga's motion to reopen his removal proceedings, see id. ¶ 30; Order of the Immigration Judge, dated Feb. 1, 2022, annexed to Ret. as Ex. 11.

On February 16, 2022, while Huanga's second application for relief from removal was still pending, Huanga filed the petition now before the Court. See Pet. Huanga also filed an emergency motion for an order to show cause, see Emergency Motion for Order to Show Cause, filed Feb. 16, 2022 (Docket # 3), and a proposed temporary restraining order, see Proposed Temporary Restraining Order, filed Feb. 17, 2022 (Docket # 13). Huanga sought a preliminary injunction barring his removal from this Court's jurisdiction and seeking release from custody absent a showing by DHS by clear and convincing evidence that Huanga is a flight risk and/or a danger to society. See id. at 1. On February 24, 2022, this Court granted Huanga's request that respondents be enjoined from removing him from this Court's jurisdiction, but denied Huanga's other requested relief. See Order of February 24, 2022 (Docket # 19).

II. LEGAL STANDARD

8 U.S.C. § 1226(a) provides that "an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." Section 1226(a) gives the Attorney General the choice to "continue to detain the arrested alien," or "release the alien on (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole." The Attorney General has delegated this authority to immigration judges. See 8 C.F.R. §§ 1003.19, 1236.1. As interpreted by the BIA, "[s]ection 1226 provides for the release on bond for all persons — except those subject to mandatory detention as criminals or terrorists, or those who are arriving aliens — unless there is a finding that the alien is either a threat to the public safety, a threat to national security, or is likely to abscond." Jimenez v. Decker, 2021 WL 826752, at *5 (S.D.N.Y. Mar. 3, 2021) (citing Matter of Patel, 15 I. & N. Dec. 666 (B.I.A. 1976) ).

Section 1226(a) is silent as to whether the Government or the alien bears the burden of proof. "Beginning in 1999, the BIA began placing the burden on the arrested individual to demonstrate, to the satisfaction of the arresting officer, that release would not pose a danger to property or persons and that the individual is likely to appear for any future proceedings to bond hearings conducted by immigration judges under § 1226(a)." Jimenez, 2021 WL 826752, at *5. The BIA's decision in Matter of Adeniji, 22 I. & N. Dec. 1102 (B.I.A. 1999), adopted the standard set forth in 8 C.F.R. § 236.1(c)(8), which allows "[a]ny officer authorized to issue a warrant of arrest" to release an alien pending removal proceedings, if that alien "demonstrate[s] to the satisfaction of the officer that such release would not pose a danger to property or persons, and that [he] is likely to appear for any future proceeding." The BIA has consistently upheld this standard and continues to require that, at an immigration bond hearing, the detainee bear the burden of proving "that he or she does not present a...