Rodriguez-Figueroa v. Barr
| Decision Date | 28 February 2020 |
| Docket Number | 6:19-CV-06366 EAW |
| Citation | 442 F.Supp.3d 549 |
| Parties | Elmer Augusto RODRIGUEZ-FIGUEROA, Petitioner, v. William P. BARR, Attorney General, et al., Respondents. |
| Court | U.S. District Court — Western District of New York |
Joseph David Moravec, Prisoners' Legal Services of New York, Albany, NY, for Petitioner.
Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, for Respondents.
DECISION AND ORDER
Petitioner Elmer Augusto Rodriguez-Figueroa ("Petitioner"), a civil immigration detainee currently held at the Buffalo Federal Detention Facility in Batavia, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner contends that he is detained pursuant to 8 U.S.C. § 1226(a), and that he is entitled to release, or in the alternative, a bond hearing. (Id. at 2). For the reasons that follow, the Court finds that Petitioner is detained pursuant to 8 U.S.C. § 1225(b) but nonetheless, while not entitled to immediate release, Petitioner is entitled to an individualized bond hearing at which the Government bears the burden of proving by clear and convincing evidence that he poses either a risk of flight or a danger to the community.
Petitioner is a native and citizen of Honduras. (Dkt. 8-1 at ¶ 5). He illegally entered the United States on June 9, 2018, with four other individuals, and he was in the United Stated within 0.75 miles of the United States border with Mexico when he was apprehended by Customs and Border Patrol ("CBP") agents in the early morning hours of June 10, 2018. (Id. ). Petitioner admitted to knowingly crossing the border without proper immigration documents (id. at ¶¶ 6-7), but he claimed a fear of torture or persecution if returned to Honduras (id. at ¶ 8). An asylum officer determined that the fear was not credible (id. ), and Petitioner was ordered removed from the United States under 8 U.S.C. § 1225(b)(1) (Dkt. 8-2 at 5).
Petitioner was referred to an immigration judge ("IJ") for review of the asylum officer's determination. (Dkt. 8-1 at ¶ 8). On August 21, 2018, the Department of Homeland Security ("DHS") notified Petitioner that it had performed a custody determination pursuant to 8 U.S.C. § 1226 and would continue his detention pending a final administrative outcome in his immigration proceedings. (Id. at ¶ 9; Dkt. 8-2 at 11). On September 11, 2018, Petitioner appeared before an IJ for a hearing on the asylum officer's determination, which was rescheduled for September 25, 2018, to allow Petitioner's attorney to appear. (Dkt. 8-1 at ¶ 10). The hearing was again adjourned to allow Petitioner to consult with his attorney, and was scheduled for October 11, 2018, at the Buffalo Federal Detention Facility where Petitioner was transferred on October 4, 2018. (Id. at ¶¶ 11-12). Petitioner's hearing was further adjourned at his attorney's request and held on November 1, 2018. (Id. at ¶¶ 13-14). At the hearing, the IJ found Petitioner failed to establish a credible fear of persecution, but on November 2, 2018, the IJ issued an amended order finding that Petitioner met the criteria for a credible fear of persecution and vacating the decision of the asylum officer. (Id. at ¶¶ 14-15).
After the credible fear finding, Petitioner was transferred from expedited removal proceedings to formal removal proceedings pursuant to 8 U.S.C. § 1225(b)(1)(a)(iii). (Id. at ¶ 16). He was served with a Notice to Appear dated November 13, 2018, which set a removal hearing date for January 31, 2019. (Id. ). On November 15, 2018, Petitioner was informed that DHS had performed another custody determination pursuant to § 1226 and decided to continue his detention pending a final administrative determination in his formal removal proceedings. (Id. at ¶ 17; Dkt. 8-2 at 18). He requested that an IJ review the detention determination. (Dkt. 8-1 at ¶ 17).
On December 18, 2018, Petitioner appeared before the IJ and requested a continuance. (Id. at ¶ 18). The removal hearing and custody redetermination hearing were both rescheduled for January 8, 2019. (Id. ). At the hearing on January 8, 2019, Petitioner informed the IJ that he planned to file a Form 1-589 Application for Asylum and Withholding of Removal. (Id. at ¶ 19). The custody redetermination hearing was rescheduled for February 28, 2019, and the removal hearing was rescheduled for April 10, 2019. (Id. ).
Petitioner withdrew his request for a change in custody status and bond on February 28, 2019. (Id. at ¶ 21). After his removal hearing was rescheduled for June 24, 2019, he was ordered removed to Honduras, and his applications for relief from withholding and for asylum were denied. (Id. at ¶ 23). Petitioner appealed the removal order to the BIA on July 11, 2019. (Id. at ¶ 24). On December 5, 2019, the BIA denied Petitioner's appeal, and Petitioner filed a petition for review before the Second Circuit on December 19, 2019. (Dkt. 16-1 at 1). On December 30, 2019, the Second Circuit issued a temporary stay of removal. (Id. at 3). Petitioner had a bond hearing before an IJ on January 17, 2020. (Dkt. 17-1). The IJ found that she did not have jurisdiction because the BIA affirmed the order of removal making it administratively final, and alternatively finding that bond was inappropriate because Petitioner presents a risk of flight. (Id. at 2).
Petitioner filed his Petition pro se on May 15, 2019. (Dkt. 1). Respondents timely filed their answer and opposition to the Petition on August 12, 2019 (Dkt. 5; Dkt. 8; Dkt. 9), and Petitioner's reply was filed on August 21, 2019 (Dkt. 10). Counsel appeared on Petitioner's behalf on September 30, 2019. (Dkt. 11). Oral argument was held before the undersigned on December 18, 2019, and decision was reserved. (Dkt. 15). Petitioner submitted status updates regarding his petition for review and bond hearing respectively on January 5, 2020 (Dkt. 16) and February 6, 2020 (Dkt. 17).
The federal habeas corpus statute gives district courts jurisdiction to hear immigration-related detention cases. See 28 U.S.C. § 2241(c)(3) ; Demore v. Kim , 538 U.S. 510, 517-18, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (); Zadvydas v. Davis , 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (). District courts do not have jurisdiction over challenges to the legality of final orders of deportation, exclusion, and removal; jurisdiction to review such challenges rests exclusively in circuit courts. See Gittens v. Menifee , 428 F.3d 382, 384 (2d Cir. 2005) ().
Petitioner argues that the Government is detaining him pursuant to § 1226(a), and as a result he is entitled to a bond hearing wherein the Government bears the burden of proving by clear and convincing evidence that Petitioner should be detained. The Government argues Petitioner was and continues to be detained pursuant to § 1225(b). For the following reasons, the Court finds Petitioner is detained pursuant to § 1225(b).
" Section 1225 applies to two types of aliens: ‘arriving aliens’ and ‘certain other aliens.’ " Dorval v. Barr , 414 F.Supp.3d 386, 390 (W.D.N.Y. 2019) ; see 8 U.S.C. § 1225(b) (). Regulations define an arriving alien as:
[A]n applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport.
8 C.F.R. § 1001.1(q). Pursuant to § 1225, "arriving aliens" are subject to expedited removal proceedings "without further hearing or review unless the alien indicates either an intention to apply for asylum ... or a fear of persecution." 8 U.S.C. § 1225(b)(1)(A)(i). If the "arriving alien" does so indicate, "the officer shall refer the alien for an interview by an asylum officer." Id. § 1225(b)(1)(A)(ii).
With regards to "certain other aliens," § 1225(b)(1)(A)(iii), titled "Application to certain other aliens," states:
When the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, was passed, the Attorney General's authority under § 1225(b)(1)(A)(iii)(I) was delegated to the Secretary of DHS. In 2004, DHS used this authority to designate as "certain other aliens" the following:
Aliens determined to be inadmissible under sections 212(a)(6)(C) or (7) of the Immigration and Nationality Act who are present in the U.S. without having been admitted or paroled following inspection...
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