Pensamiento v. McDonald

• Decision Date: 21 May 2018
• Docket Number: Civil Action No. 18–10475–PBS
• Parties: Samuel PENSAMIENTO, Petitioner, v. Joseph D. MCDONALD, Jr., et al., Respondents.
• Court: U.S. District Court — District of Massachusetts

315 F.Supp.3d 684

Samuel PENSAMIENTO, Petitioner,

v.Joseph D. MCDONALD, Jr., et al., Respondents.

Civil Action No. 18–10475–PBS

United States District Court, D. Massachusetts.

Filed May 21, 2018

Adriana Lafaille, Matthew Segal, American Civil Liberties Union, Aaron F. Lang, Daniel L. McFadden, Foley Hoag LLP, Boston, MA, for Petitioner.

Rayford A. Farquhar, United States Attorney's Office, Boston, MA, for Respondents.

MEMORANDUM AND ORDER

Saris, C.J.

INTRODUCTION

Petitioner Samuel Pensamiento, who was born in Guatemala, is married to a United States citizen, with whom he recently had a child. He has been in Immigration and Customs Enforcement ("ICE") custody since January 31, 2018, when he reported to Chelsea District Court for a pretrial hearing on misdemeanor criminal charges. ICE was waiting at the courthouse and detained him. Pensamiento filed a habeas petition pursuant to 28 U.S.C. § 2241, claiming that ICE was refusing to transport him to his criminal proceedings in state court and that his detention was unlawful because he had not received a constitutionally adequate bond hearing in immigration court.¹

On March 15, 2018, the judge on emergency duty (Burroughs, J.) entered a temporary restraining order and ordered ICE to deliver Pensamiento to his next hearing on the misdemeanor charges. See Docket No. 17 at 1–2. The order disposed of Counts I and II in Pensamiento's habeas petition. The only remaining claim for relief is Count III, in which Petitioner seeks release from detention, or, at the least, a detention hearing before this Court at which the government is required to prove by clear and convincing evidence that he is a danger to others or a flight risk. Respondents have moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), and Petitioner opposed on April 6, 2018.

At the hearing on April 25, 2018, on the motion to dismiss and the merits of the habeas petition, the government agreed to release Pensamiento for 30 days so that he could be present for the birth of his child. However, the parties agreed he would be placed back in detention unless the Court allowed his habeas petition.

After a review of the briefs, the Court DENIES Respondents' motion to dismiss (Docket No. 12). The Court ALLOWS the habeas petition, and ORDERS that Petitioner not be detained again unless the immigration court holds a bond hearing where the government bears the burden of proving that Pensamiento must be detained because he is dangerous or a flight risk.

FACTUAL BACKGROUND

Pensamiento is a 26–year–old Guatemalan national who arrived in the United States in 2013 after fleeing persecution in his home country. Pet. (Docket No. 1) ¶¶ 9, 12. He was apprehended, began asylum proceedings, and was released on bond in September 2013. Pet. ¶ 13. Petitioner was authorized to work during the pendency of his removal proceedings and received a Massachusetts driver's license. Pet. ¶ 14.

He met Yaritza Moreno, a United States citizen, while they were working in the same restaurant and while his asylum application was pending. Pet. ¶¶ 10, 15. Pensamiento and Moreno married in August 2016. Pet. ¶ 15. Moreno filed a Form I–130 petition to sponsor Pensamiento to become a lawful permanent resident, which was approved by the U.S. Citizenship and Immigration Service ("USCIS") on March 9, 2017. Pet. ¶ 16. Based on that approval, which provides a pathway to becoming a permanent resident, the Immigration Judge ("IJ") administratively closed Pensamiento's removal proceedings on September 20, 2017. Pet. ¶ 18.

The Chelsea police arrested Petitioner on December 17, 2017, after a car accident and charged him with two misdemeanor counts: (1) leaving the scene of an accident resulting in property damage, and (2) leaving the scene of an accident resulting in personal injury. Pet. ¶ 20. He was arraigned on December 18, 2017, and released on personal recognizance. Pet. ¶¶ 20–21. Pensamiento had a pretrial hearing scheduled for January 31, 2018. Pet. ¶ 22. After the hearing, he was arrested by ICE at the courthouse and detained. Pet. ¶ 22. Pensamiento's removal proceedings have been re-calendared since his arrest. Pet. ¶ 23. They remain pending, and no final order of removal has been entered. See Pet. ¶ 23.

Petitioner's initial custody redetermination hearing was held on February 13, 2018. Pet. ¶ 24. The IJ required Pensamiento to prove that he was not dangerous or a flight risk by clear and convincing evidence. Pet. ¶ 24. Based on the police report of the then-pending misdemeanor charges, the IJ found that Petitioner had not carried his burden on the dangerousness inquiry and denied him bond. Pet. ¶ 24.

On March 19, 2018, Petitioner pleaded guilty to leaving the scene of an accident resulting in property damage and was ordered to pay a $200 fine. Docket No. 26–1 at 8. Other than the guilty plea for this misdemeanor, Pensamiento has no criminal record anywhere in the world. See Pet. ¶ 11. The Commonwealth dismissed the charge of leaving the scene of an accident resulting in personal injury. Docket No. 26–1 at 8.

Pensamiento had a second bond hearing on April 3, 2018, after the charges were resolved. Docket No. 26–2 ¶ 5. Again, the IJ placed the clear-and-convincing burden on Petitioner and denied his request for release. Docket No. 26–2 ¶ 7. There is no evidence that Pensamiento has appealed either of the IJ's bond decisions to the Board of Immigration Appeals ("BIA"). See Docket No. 26 at 6 n.2.

During the hearing on April 25, 2018, the parties reached an agreement to temporarily release Pensamiento on a GPS tracking device for 30 days so that he could be present for the birth of his child. See Docket No. 33. It is the Court's understanding that he has been released on these conditions.

DISCUSSION

I. Motion to Dismiss

A. Legal Standard

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(1), the plaintiff has the burden of establishing that subject-matter jurisdiction exists. See Calderón–Serra v. Wilmington Trust Co., 715 F.3d 14, 17 (1st Cir. 2013). "When a district court considers a Rule 12(b)(1) motion, it must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor." Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010). "The district court may also ‘consider whatever evidence has been submitted, such as the depositions and exhibits.’ " Id. (quoting Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996) ).

B. Subject–Matter Jurisdiction

Respondents first argue that this Court lacks subject-matter jurisdiction over Pensamiento's habeas petition based on the REAL ID Act. The REAL ID Act, passed in 2005, stripped the federal district courts of jurisdiction to review aliens' challenges to their final orders of removal. See 8 U.S.C. § 1252(a)(5) ("[A] petition for review filed with an appropriate court of appeals ... shall be the sole and exclusive means for judicial review of an order of removal."); id. § 1252(b)(9) (consolidating "review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions" arising from a removal action in the statute's judicial review procedure). The statute also insulates discretionary executive decision-making from review, mandating that "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien." Id. § 1252(g).

Despite these jurisdiction-stripping provisions, the district court may still review habeas challenges to unlawful immigration detention. See Aguilar v. U.S. Immigration and Customs Enforcement Div. of Dep't of Homeland Sec., 510 F.3d 1, 11 (1st Cir. 2007) ("[D]istrict courts retain jurisdiction over challenges to the legality of detention in the immigration context."). The court's habeas jurisdiction "encompasses constitutional challenges regarding the availability of bail." Id. Thus, Pensamiento's petition brings precisely the type of claim that the First Circuit has held to be within the district court's jurisdiction. See id.

Respondents next argue that, to the extent Petitioner is asking this Court to review the IJ's discretionary decision to deny his release, jurisdiction is precluded by 8 U.S.C. § 1226(e). Congress has eliminated judicial review of discretionary custody determinations. See 8 U.S.C. § 1226(e). Section 1226(e) states: "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." Id. This provision has been held to bar an alien's challenge to "a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release." Demore v. Kim, 538 U.S. 510, 516, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).

What § 1226(e) does not bar, however, are constitutional challenges to the immigration bail system. See Jennings v. Rodriguez, ––– U.S. ––––, 138 S.Ct. 830, 841, 200 L.Ed.2d 122 (2018) (holding that challenges to "the extent of the Government's detention authority" are not precluded by § 1226(e) ); Demore, 538 U.S. at 517, 123 S.Ct. 1708 ; see also Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) ("[C]laims that the discretionary process itself was constitutionally flawed are ‘cognizable in federal court on habeas.’ " (quoting Gutierrez–Chavez v. INS, 298 F.3d 824, 829 (9th Cir. 2002) ) ).

The Court's jurisdiction is not barred by § 1226(e) in this case. Pensamiento is not challenging the IJ's discretionary decision to keep him in detention. Instead, he is arguing that the immigration bond system, in which aliens detained pursuant to § 1226(a) must prove they are not dangerous and are not flight risks, is unconstitutional. See Docket No. 26 at 6. This type of constitutional claim "falls outside of the scope of § 1226(e)"...