P.M. v. Joyce

• Decision Date: 08 March 2023
• Docket Number: 22-CV-6321 (VEC)
• Court: U.S. District Court — Southern District of New York
• Parties: P.M., Petitioner, v. WILLIAM P. JOYCE, in his official capacity as Acting Field Officer Director, New York Field Office, U.S. Immigration & Customs Enforcement; ALEJANDRO MAYORKAS, in his official capacity as Secretary, U.S. Department of Homeland Security; and MERRICK GARLAND, in his official capacity as Attorney General, U.S. Department of Justice. Respondents.

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P.M., Petitioner, v. WILLIAM P. JOYCE, in his official capacity as Acting Field Officer Director, New York Field Office, U.S. Immigration & Customs Enforcement; ALEJANDRO MAYORKAS, in his official capacity as Secretary, U.S. Department of Homeland Security; and MERRICK GARLAND, in his official capacity as Attorney General, U.S. Department of Justice. Respondents.

No. 22-CV-6321 (VEC)

United States District Court, S.D. New York

March 8, 2023

OPINION AND ORDER

VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE:

Petitioner P.M.^[1] seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, on the grounds that the Government has violated the Fifth Amendment and the Administrative Procedures Act (“APA”) by detaining him for more than eighteen months without a constitutionally-adequate bond hearing. Pet., Dkt. 1. Petitioner seeks a new bond hearing during which the Government bears the burden to prove, by clear and convincing evidence, that Petitioner poses a danger to the community or a risk of flight. Id. at 33. The Government opposes the petition. Gov. Opp., Dkt. 17. For the following reasons, P.M.'s petition is GRANTED in part; the Government must promptly provide P.M. a new bond hearing at which it bears the burden of proof.

BACKGROUND

P.M. is a 26-year-old citizen of El Salvador who has been undergoing removal proceedings since August 2021. Pet. ¶¶ 5 24; Pet. Ex. 1 (“Corral Decl.”), Dkt. 1 ¶ 3; Morrow Decl., Dkt. 18 ¶¶ 4, 14. P.M. has been arrested multiple times, but he has only two convictions burglary and possession of a controlled substance. Pet. ¶ 22; Gov. Opp. Ex. 6, Dkt. 20 at 9, 15. P.M. was sentenced on those charges to a term of imprisonment of approximately seven months, which he has since served. Corral Decl. ¶ 16; Morrow Decl. ¶¶ 8, 13.

On August 6, 2021, Immigration and Customs Enforcement (“ICE”) detained P.M. and charged him with unlawfully entering the United States. Corral Decl. ¶ 3; Morrow Decl. ¶ 14. On September 9, 2021, the Immigration Judge (“IJ”) sustained the charge of removability. Corral Decl. ¶ 13; Morrow Decl. ¶ 18. P.M. subsequently filed an application for asylum, withholding of removal, and for protection under the Convention Against Torture. Pet. ¶ 27. P.M. has now been detained by the immigration authorities for more than eighteen months. See Corral Decl. ¶ 3.

On October 19, 2021, P.M. requested a bond hearing. Pet. ¶ 28. On October 27, 2021, the IJ held a bond hearing during which she placed the burden of proof on P.M. to prove that he was neither a flight risk nor a danger to the community. Id. ¶ 29; Corral Decl. ¶ 17. During the hearing, P.M. submitted, inter alia, letters of support from his mother and sister, a letter from a social worker setting forth a release plan for P.M., including addiction treatment, and a copy of P.M.'s asylum application. Corral Decl. ¶ 15. In response, the Government cited P.M.'s arrest record and relied on P.M.'s burglary conviction as evidence of his dangerousness. Gov. Opp. Ex. 7 (“Hearing Tr”), Dkt. 20 at 10-11.

Upon reviewing the record, the IJ concluded that P.M. had not met his burden of proof to show he is not a danger to the community. Hearing Tr. at 17. The IJ highlighted the seriousness of the burglary conviction, P.M.'s past failure to address his substance abuse problem, and the number, frequency, and recency of P.M.'s arrests. Hearing Tr. at 17-18. P.M. reserved but did not seek appeal to the BIA.^[2] Id. at 18; Morrow Decl. ¶ 21.

In November 2021, the IJ denied P.M.'s request for asylum and other forms of relief.^[3] Corral Decl. ¶ 18; Morrow Decl. ¶ 22. The IJ found that P.M. had not proven that he was entitled to an exemption from the one-year deadline for filing an asylum application. Gov. Opp. Ex. 8, Dkt. 20 at 2-3.

P.M. appealed the order of removal. Corral Decl. ¶ 19; Morrow Decl. ¶ 23. On May 18, 2022, the Board of Immigration Appeals (“BIA”) dismissed P.M.'s appeal and ordered P.M.'s removal to El Salvador. Corral Decl. ¶ 20; Morrow Decl. ¶ 26. P.M. appealed to the Second Circuit and moved to stay removal. Corral Decl. ¶ 21; Morrow Decl. ¶ 28. The parties subsequently stipulated that P.M. is being detained pursuant to 8 U.S.C. § 1226(a),^[4] and the Second Circuit remanded P.M.'s case to the BIA. Letter, Dkt. 27; P.M. v. Garland, No. 226269, Dkt. 28 (2d Cir. Dec. 21, 2022).

On July 25, 2022, while his appeal to the Second Circuit was still pending, P.M. petitioned this Court for a writ of habeas corpus. See Pet. P.M. alleges he is being detained without having been provided a constitutionally-adequate bond hearing in violation of the Due Process Clause of the Fifth Amendment and the Administrative Procedures Act. Id. ¶ 2. P.M. also alleges that his detention has been prolonged without being justified on an individual basis in violation of his due process rights under the Fifth Amendment. Id. ¶ 3.

DISCUSSION

I. Legal Standard

The Due Process Clause of the Fifth Amendment prevents the Government from depriving any person of “life, liberty, or property, without due process of law.” U.S. Const. amend. V. “Freedom from imprisonment - from government custody, detention, or other forms of physical restraint - lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001); see also Addington v. Texas, 441 U.S. 418, 425 (1979) (“This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.”).

Moreover, “due process places a heightened burden of proof on the State in civil proceedings in which the individual interests at stake are both particularly important and more substantial than mere loss of money.” Cooper v. Oklahoma, 517 U.S. 348, 363 (1996) (cleaned up); see also Kansas v. Hendricks, 521 U.S. 346, 353-56 (1997) (holding that a civil commitment statute satisfied the Due Process Clause in part because it “plac[ed] the burden of proof upon the State”). It is well established that the procedural protections required by the Fifth Amendment extend to noncitizens, including in removal proceedings. Zadvydas, 533 U.S. at 693 (“[T]he Due Process clause applies to all ‘persons' within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.” (citation omitted)); Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles [noncitizens] to due process of law in deportation proceedings.” (citation omitted)).

II. The Government Must Bear the Burden of Proof at P.M.'s Bond Hearing

Courts within this District have consistently held that the Due Process Clause requires the Government to bear the burden of proof in removal proceedings brought pursuant to 8 U.S.C. § 1226(a), particularly once the detention has been prolonged.^[5] See, e.g., Banegas v. Decker, No. 21-CV-2359, 2021 WL 1852000, at *3 (S.D.N.Y. May 7, 2021); Quintanilla v. Decker, No. 21-CV-417, 2021 WL 707062, at *3 (S.D.N.Y. Feb. 22, 2021) (collecting cases); Rodriguez, 2020 WL 3618990, at *2. “[W]here . . . the Government seeks to detain a noncitizen pending removal pursuant to § 1226(a), the . . . [principles of the] Due Process Clause require[] the Government to bear the burden of proving, by clear and convincing evidence, that such detention is justified.” Banegas, 2021 WL 1852000, at *2.

Although the Second Circuit in Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020), declined to create a “bright-line rule for when due process entitles an individual detained under § 1226(a) to a new bond hearing with a shifted burden,” id. at 855 n.13, “neither . . . Velasco Lopez nor any other binding appellate authority overrules the ‘overwhelming consensus' of courts in this District that the Due Process Clause of the Fifth Amendment requires the Government to bear the burden to justify continued detention of a noncitizen who is detained pursuant to § 1226(a), even absent ‘prolonged detention,'”^[6] Banegas, 2021 WL 1852000, at *3. See also Jimenez v. Decker, No. 21-CV-880, 2021 WL 826752, at *8 (S.D.N.Y. Mar. 3, 2021); Quintanilla, 2021 WL 707062, at *3.

Notwithstanding the clear precedent, the Government unpersuasively argues that the IJ properly placed the burden on P.M. during the initial bond hearing. First, the Government states that section 1226(a) does not provide a noncitizen with the right to be released on bond, and, as a result, the BIA and the Attorney General have exercised their discretion to place the burden of proof on the noncitizen. Gov. Opp. at 20. The Attorney General's exercise of discretion is, of course, limited by the United States Constitution, and the principles of the Due Process Clause require the Government to bear the burden during a bond hearing for petitioners detained pursuant to section 1226(a). See Banegas, 2021 WL 1852000, at *2.

Second, the Government argues that pursuant to the factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), the Due Process Clause does not require a new bond hearing during which the Government bears the burden of proof because the existing procedural protections are adequate. Gov. Opp. at 22-23. In Velasco Lopez, however, the Second Circuit found that the Mathews factors required the Government to provide the detainee a new bond hearing during which it bore the burden of proof. See Velasco Lopez, 978 F.3d at 851-55. Courts in this district applying Velasco Lopez have consistently found that the Mathews factors require the Government to provide detainees a new bond hearing in which it bears the burden of proof once detention has become prolonged. See, e.g., Huanga v. Decker, 599 F.Supp.3d 131, 140 (S.D.N.Y. 2022) (collecting cases); Jimenez, 2021 WL 826752, at *11.

The...