Summary
holding that Court has jurisdiction to determine whether the IJ complied with the Court's decision and order at bond hearing
Summary of this case from Concepcion v. BarrOpinion
6:18-CV-06941 EAW
2020-01-22
David Mairena BLANDON, Petitioner, v. William P. BARR, Attorney General of the United States, et al., Respondents.
Joseph David Moravec, Prisoners' Legal Services of New York, Albany, NY, for Petitioner. Jenny Chong Lee, U.S. Department of Justice, Washington, DC, for Respondents.
Joseph David Moravec, Prisoners' Legal Services of New York, Albany, NY, for Petitioner.
Jenny Chong Lee, U.S. Department of Justice, Washington, DC, for Respondents.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Petitioner David Mairena Blandon ("Petitioner"), a civil immigration detainee currently held at the Buffalo Federal Detention Facility in Batavia, New York, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). The Court issued a Decision and Order on October 28, 2019 (the "D & O"), finding that Petitioner was entitled to an individualized bond hearing at which the Government bore the burden of proving by clear and convincing evidence that Petitioner poses either a risk of flight or a danger to the community. (Dkt. 7). Judgment granting the Petition in part pursuant to the D & O was entered on October 30, 2019. (Dkt. 8). Presently before the Court is Petitioner's motion to enforce the Judgment. (Dkt. 10). Petitioner's motion is granted for the reasons that follow.
BACKGROUND
The factual background of this case is set forth in detail in the D & O, familiarity with which is assumed for purposes of this Decision and Order. The Court has summarized the key details below, and includes the relevant developments since the Court's issuance of the D & O.
Petitioner is a native and citizen of Nicaragua who entered the United States in or around 2002 without admission or inspection. (Dkt. 1 at 3; Dkt. 5-1 at ¶ 5). On July 24, 2015, Petitioner was convicted by a jury in New York State Supreme Court, Kings County of manslaughter in the first degree under New York Penal Law ("NYPL") § 125.20(1) and criminal possession of a weapon in the fourth degree under NYPL § 265.01. (Dkt. 5-1 at ¶ 6). The New York State Supreme Court Appellate Division, Second Department affirmed Petitioner's criminal judgment on May 31, 2017. (Id. at 53-54).
On July 14, 2017, Petitioner was taken into DHS custody after being released from the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). (Id. at ¶ 11). On December 6, 2017, an immigration judge ("IJ") found Petitioner removable as charged and ordered he be removed from the United States to Nicaragua, a decision Petitioner appealed to the Board of Immigration Appeals ("BIA"). On April 9, 2018, the BIA dismissed Petitioner's appeal of the removal order, and DHS issued a Warrant of Removal/Deportation for Petitioner on April 20, 2018. (Id. at ¶ 16). On May 7, 2018, the IJ held a bond hearing pursuant to § 1226(a), but determined that neither he nor the BIA had jurisdiction to set bond because Petitioner's case was administratively final. (Id. at 36).
On August 20, 2018, Petitioner filed a petition for review and motion for a stay of removal with the Second Circuit (id. at ¶ 22), which the Government moved to dismiss on August 30, 2018 (id. at ¶ 23). On April 17, 2019, the Second Circuit deferred the Government's motion to dismiss and granted Petitioner's motion for a stay pending the resolution of Petitioner's criminal appeal in state court. Mairena Blandon v. Barr , No. 18-2438, Dkt. 47 (2d Cir. Apr. 17, 2019).
Petitioner filed the Petition in the instant matter pro se on December 26, 2018 (Dkt. 1), and this Court granted the Petition in part on October 28, 2019, finding that Petitioner was entitled to a bond hearing pursuant to 8 U.S.C. § 1226(a) where the Government bore the burden of demonstrating by clear and convincing evidence that Petitioner is either a risk of flight or a danger to the community (Dkt. 7). The D & O was entered on October 29, 2019 (id. ), and a Judgment was entered on October 30, 2019 (Dkt. 8).
On October 30, 2019, DHS served a Notice of Filing of Intended Bond Evidence on Petitioner, and filed the same with Immigration Judge Philip J. Montante, Jr. (the "IJ") on November 1, 2019. (Dkt. 13-2). Counsel for Petitioner was informed on October 31, 2019, at 1:00 p.m. that Petitioner's bond hearing was scheduled for the next day—on November 1, 2019, at 1:00 p.m. (Dkt. 12 at ¶ 7). Although Petitioner's counsel requested a 3-day adjournment of the bond hearing to November 4, 2019, or later, the IJ denied the request (id. at ¶¶ 11-12), and Petitioner's bond hearing was held on November 1, 2019 (Dkt. 13-3). On November 5, 2019, the IJ issued a written decision denying Petitioner's release on bond. (Dkt. 13-4).
Petitioner filed the instant motion to enforce on November 25, 2019. (Dkt. 10). On December 13, 2019, Respondents submitted their opposition (Dkt. 15), and Petitioner replied on December 20, 2019.
On December 17, 2019, the New York Court of Appeals affirmed Petitioner's criminal conviction. (Dkt. 16). The Second Circuit lifted the stay of Petitioner's petition for review on December 23, 2019. Blandon v. Barr , No. 18-2438, Dkt. 84 (2d Cir. Dec. 23, 2019). Respondents filed a notice of appeal in the instant action on December 26, 2019. (Dkt. 19).
DISCUSSION
Petitioner contends that he did not receive a constitutionally adequate bond hearing as required by the D & O and asks the Court to order that Respondents immediately release him. (Dkt. 10; Dkt. 11 at 5). The Court agrees with Petitioner that Respondents have failed to comply with the D & O. However, the Court declines to order Petitioner's immediate release at this time, and instead Respondents will be given one final opportunity to afford Petitioner a constitutionally adequate bond hearing.
I. Jurisdiction
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) (holding federal courts have jurisdiction to review challenges to pre-removal detention); Zadvydas v. Davis , 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (holding " § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention" in immigration cases). 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) ("[The REAL ID Act, 119 Stat. 231, § 106(a) (May 11, 2005) ] eliminates habeas jurisdiction over final orders of deportation, exclusion, and removal, providing instead for petitions of review ... which circuit courts alone can consider.").
Respondents rely on the language in 8 U.S.C. § 1226(e) to argue that the Court lacks jurisdiction over Petitioner's motion because Petitioner "seeks to intrude upon the IJ's discretion to determine what evidence meets the applicable standard, which is exactly what Congress has prohibited" in § 1226(e). (Dkt. 15 at 12-13). The Court is not persuaded by Respondents' argument for the reasons that follow.
As an initial matter, it is not clear that 8 U.S.C. § 1226(e) applies here. Section 1226(e) states:
The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. 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.
8 U.S.C. § 1226(e) (emphases added). "The Court is skeptical that [Petitioner's] bond hearing constitutes a proceeding conducted under Section 1226 ; rather, it was a court-ordered bond hearing that demanded procedural protections beyond those compelled by the statute itself." Gutierrez Cupido v. Barr , No. 19-CV-6367-FPG, 2020 WL 103477, at *2 (W.D.N.Y. Jan. 9, 2020) (citing Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 847-48, 200 L.Ed.2d 122 (2018) ); see Darko v. Sessions , 342 F. Supp. 3d 429, 434-35 (S.D.N.Y. 2018) ("[W]hile the Supreme Court held that § 1226(a) does not mandate that a clear and convincing evidence burden be placed on the government in bond hearings, it left open the question of whether the Due Process Clause does.").
Even if the bond hearing ordered by the Court was a bond hearing pursuant to 8 U.S.C. § 1226, " § 1226(e) does not preclude ‘challenges to the statutory framework that permits the alien's detention without bail,’ " and only "precludes an alien from ‘challenging a discretionary judgment by the Attorney General or a decision that the Attorney General has made regarding his detention or release.’ " Jennings , 138 S. Ct. at 841 (quoting Demore , 538 U.S. at 516-17, 123 S.Ct. 1708 ). Other courts in this District have held that § 1226(e) does not deprive district courts of jurisdiction to determine whether an IJ followed a court order granting a bond hearing pursuant to the Fifth Amendment. See Apollinaire v. Barr , No. 19-CV-6285-FPG, 2019 WL 4023560, at *2 (W.D.N.Y. Aug. 27, 2019) ("[T]he statute presents no obstacle to review because the Court is not reviewing an immigration judge's discretionary judgment, but whether its order was followed[.]"); Hechavarria v. Whitaker , 358 F. Supp. 3d 227, 235-36 (W.D.N.Y. 2019) ("[T]he Court is not reviewing a discretionary judgment of the IJ under § 1226, and it is not ‘set[ting] aside any action or decision by the Attorney General under § 1226. Nor is this Court simply reviewing , as the government contends, how the IJ applied [the clear and convincing] burden to the facts before it and weighed the evidence. Instead, the Court is determining whether the order it issued on November 2, 2018, was followed—that is, whether [the petitioner] received the due process to which he was entitled." (alterations in original) (quotations, citation, and footnote omitted)); see also Nguti v. Sessions , No. 16-CV-6703, 2017 WL 5891328, at *2 (W.D.N.Y. Nov. 29, 2017) ("[T]he question here is not whether this Court believes that the proof establishes, by clear and convincing evidence, that [the petitioner] is a danger to the community. Rather, the question is whether the immigration judge relied upon proof that could not possibly establish by clear and convincing evidence—as a matter of law—that [the petitioner] is a danger to the community."); Enoh v. Sessions , No. 16-CV-85(LJV), 2017 WL 2080278, at *10 (W.D.N.Y. May 15, 2017) (holding "the IJ failed to apply the clear and convincing standard" at the petitioner's bond hearing ordered pursuant to Lora v. Shanahan , 804 F.3d 601 (2d Cir. 2015) ). This Court agrees and follows these courts in holding that it has jurisdiction to determine whether the IJ complied with the D & O.
The Court also notes that the Notice of Appeal filed on December 26, 2019 (see Dkt. 19), does not divest it of jurisdiction over Petitioner's motion. The "filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal." Marrese v. Am. Acad. of Orthopaedic Surgeons , 470 U.S. 373, 378-79, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). "The divestiture of jurisdiction rule is, however, not a per se rule." United States v. Rodgers , 101 F.3d 247, 251 (2d Cir. 1996). "One exception is that, absent a stay, a district court retains jurisdiction to enforce its orders and judgments despite an appeal." Apollinaire , 2019 WL 4023560, at *2 ; see Enoh , 2017 WL 2080278, at *4-5 (holding the court had jurisdiction in a habeas case brought pursuant to § 2241 "to decide in the first instance whether the government has complied with the order of February 22, 2017," despite the filing of a notice of appeal of the order). Accordingly, the Court has jurisdiction to rule on Petitioner's motion to enforce.
II. Exhaustion
Respondents also contend that Petitioner failed to exhaust his administrative remedies. (Dkt. 15 at 9-12). The Court finds it would not be appropriate to require exhaustion of the issues raised in Petitioner's motion to enforce.
"There is no statutory requirement of administrative exhaustion before immigration detention may be challenged in federal court by a writ of habeas corpus; however, such exhaustion is generally required as a prudential matter." Paz Nativi v. Shanahan , No. 16-CV-8496 (JPO), 2017 WL 281751, at *1-2 (S.D.N.Y. Jan. 23, 2017) (collecting cases). "Exhaustion of administrative remedies may not be required when: (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question." Guitard v. U.S. Sec'y of Navy , 967 F.2d 737, 740 (2d Cir. 1992) (citing Myers v. Bethlehem Shipbuilding Corp. , 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938) ); see Compunnel Software Grp., Inc. v. Gupta , No. 14 Civ. 4790(SAS), 2015 WL 1224298, at *4 (S.D.N.Y. Mar. 17, 2015) ("The exhaustion doctrine, however, is also subject to numerous exceptions.").
In the instant matter, Petitioner argues that the IJ did not appropriately apply the bond hearing standard ordered by the Court in the D & O. Petitioner did not raise any new claims, constitutional or otherwise, during his bond hearing, nor does the Court rule on new claims in deciding his motion to enforce. Rather, the Court only decides whether Petitioner received the relief he is entitled to pursuant to the order issued in the D & O. Particularly in light of Petitioner's already prolonged detention, and the Court's initial order for Petitioner to receive a constitutionally adequate bond hearing within 14 days of entry of the D & O, the Court finds exhaustion of Petitioner's administrative remedies is not required here. See Hechavarria , 358 F. Supp. 3d at 237-38 ("[B]ecause of delays inherent in the administrative process, BIA review would result in the very harm that the bond hearing was designed to prevent: ‘ "prolonged" detention without due process during lengthy and backlogged removal proceedings.’ " (quoting Enoh , 2017 WL 2080278, at *3 )); cf. Argueta Anariba v. Shanahan , No. 16-CV-1928 (KBF), 2017 WL 3172765, at *4 (S.D.N.Y. July 26, 2017) ("A petitioner need not re-exhaust his or her Lora claim each time the government fails to comply with its Lora obligations.").
In the D & O, the Court found that exhaustion of Petitioner's administrative remedies would provide no genuine opportunity for adequate relief because of the incorrect burden of proof that would be applied during the bond hearing absent a court order. (Dkt. 7 at 9-10).
Moreover, Petitioner's motion for enforcement raises constitutional questions, and "the BIA does not have jurisdiction to adjudicate constitutional issues." United States v. Gonzalez-Roque , 301 F.3d 39, 48 (2d Cir. 2002) ; Matter of Rodriguez-Carrillo , 22 I & N. Dec. 1031, 1035 (BIA 1999) ("[N]either the Immigration Judge nor this Board may rule on the constitutionality of the statutes that we administer."). Accordingly, exhaustion would also be futile. See Hechavarria , 358 F. Supp. 3d at 238 (finding "the third and fourth exhaustion exceptions—the futility of an administrative appeal and a substantial constitutional question ... also apply to this case" because the motion for enforcement raised constitutional questions (citation omitted)).
Respondents contend that Enoh is distinguishable from the instant matter because the petitioner in Enoh appealed his bond decision to the BIA but the BIA had not yet issued a decision, whereas Petitioner has not appealed the IJ's bond determination to the BIA. (Dkt. 15 at 10). The Court fails to see any import to this distinction. The purpose of administrative exhaustion is to "protect[ ] the authority of administrative agencies, limit[ ] interference in agency affairs, and promot[e] judicial efficiency by resolving potential issues and developing the factual record." Beharry v. Ashcroft , 329 F.3d 51, 56 (2d Cir. 2003), as amended (July 24, 2003). None of those purposes are served absent an order from the BIA, so either a failure to appeal to the BIA or a failure to wait for the BIA's decision before filing a habeas petition should be treated the same for exhaustion purposes. In any event, the Hechavarria court, utilizing the same logic in Enoh , found that the petitioner's motion to enforce was not barred by exhaustion despite the petitioner's failure to appeal the decision to the BIA. Hechavarria , 358 F. Supp. 3d at 236-38. As discussed above, the Court agrees with the logic in Enoh and Hechavarria and finds that exhaustion is not required in the instant matter.
The remainder of Respondents' attempts to distinguish Enoh address the merits of Petitioner's motion, which the Court discusses below.
III. Compliance with the D & O
In reviewing Petitioner's motion to enforce, "it is important to emphasize that the Court's task is narrow: it is to determine whether Respondent complied with the Decision and Order, not to review the hearing evidence de novo [.]" Apollinaire , 2019 WL 4023560, at *3 ; see Gutierrez Cupido , 2020 WL 103477, at *3 (same); Hechavarria , 358 F. Supp. 3d at 236 ("[T]he Court is determining whether the order it issued on November 2, 2018, was followed—that is, whether Hechavarria received the due process to which he was entitled."); Nguti , 2017 WL 5891328, at *2 ("In reviewing the government's compliance with the May 2, 2017 order, this Court is careful not to overstep its bounds and set aside an immigration judge's bond determination on discretionary or evidentiary grounds."). In the D & O, the Court ordered Respondents to provide Petitioner with a bond hearing where the Government bore "the burden of proving, by clear and convincing evidence, that detention is justified." (Dkt. 7 at 10 (quotation omitted)). Accordingly, the Court must now determine whether during Petitioner's bond hearing the IJ "relied upon proof that could not possibly establish by clear and convincing evidence—as a matter of law—that [Petitioner] was a danger to the community" or a flight risk. Nguti , 2017 WL 5891328, at *2 ; see Apollinaire , 2019 WL 4023560, at *3 (same).
"[C]lear and convincing evidence ... means something more than ‘preponderance of the evidence,’ and something less than ‘beyond a reasonable doubt.’ " United States v. Chimurenga , 760 F.2d 400, 405 (2d Cir. 1985). "The clear-and-convincing burden of proof ‘requires the government to prove that a factual contention is highly probable.’ " Apollinaire , 2019 WL 4023560, at *3 (quoting Hechavarria , 358 F. Supp. 3d at 240 ); see Colorado v. New Mexico , 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) (discussing that clear and convincing evidence requires presenting evidence that shows "the truth of its factual contentions are ‘highly probable’ "); Fernandez Aguirre v. Barr , No. 19-CV-7048 (VEC), 2019 WL 4511933, at *6 (S.D.N.Y. Sept. 18, 2019) ("To find danger to the community under this standard of proof requires that the evidence support such a conclusion with a high degree of certainty." (quoting Chimurenga , 760 F.2d at 405 )).
"Detention on the basis of dangerousness in civil immigration proceedings is appropriate ‘only when limited to specially dangerous individual[s] and subject to strong procedural protections.’ " Argueta Anariba , 2017 WL 3172765, at *4 (quoting Zadvydas , 533 U.S. at 691, 121 S.Ct. 2491 ). Courts in this Circuit have found that the clear and convincing threshold is not met when the IJ is "forced to speculate as to how [the petitioner] would conduct himself if released into the community," Hechavarria , 358 F. Supp. 3d at 241 ; see Fernandez Aguirre , 2019 WL 4511933, at *6 (finding the IJ failed to comply with the clear-and-convincing standard because "[i]n order to arrive at the conclusion that Petitioner was dangerous, therefore, the IJ had to have engaged in conjecture and guesswork about facts not in the record before him"), when the IJ does not make any factual findings and instead relies on the general factual background in the district court's bond hearing order, Enoh , 2017 WL 2080278, at *8, and when the IJ relies "entirely on facts surrounding [the petitioner's] ... conviction" and "does not discuss individualized [post-conviction] facts regarding petitioner's behavior, dangerousness, or risk of flight," Argueta Anariba , 2017 WL 3172765, at *4.
The IJ relied on two conclusions in determining that the Government met its burden of proving by clear and convincing evidence that Petitioner was a danger to the community: first, the seriousness of Petitioner's criminal convictions, and second, Petitioner's failure to provide rebuttal evidence to the Government's arguments. The Court finds that as a matter of law, these two conclusions taken together cannot establish that Petitioner was a danger to the community by clear and convincing evidence.
Petitioner argues that the presentence investigation report ("PSR") submitted by the Government as evidence during the bond hearing should not have been admitted into the record. (Dkt. 11 at 21-24). However, even if it were proper for the Court to consider the propriety of admitting certain pieces of evidence during a bond hearing, there is no indication that the IJ considered the PSR in making his determination.
Petitioner's criminal convictions cannot, on their own, satisfy the Government's clear-and-convincing-evidence burden. While past criminal convictions, particularly of violent offenses, are critical to evaluating a petitioner's risk of danger to the community, "[t]he process due even to excludable aliens requires an opportunity for an evaluation of the individual's current threat to the community and his risk of flight." Hechavarria , 358 F. Supp. 3d at 240 (quoting Chi Thon Ngo v. I.N.S. , 192 F.3d 390, 398 (3rd Cir. 1999) ). IJs should consider one or more factors relevant to the currency of the threat, such as the recency of the criminal offense, see Singh v. Holder , 638 F.3d 1196, 1206 (9th Cir. 2011) ("[T]he recency and severity of the offenses must be considered."); Ramos v. Sessions , 293 F. Supp. 3d 1021, 1034 (N.D. Cal. 2018) ("[E]vidence of criminal conduct grows less powerful as it becomes less current. Thus, the passage of time is undeniably relevant and the IJ must consider it."); In re Guerra , 24 I. & N. Dec. 37, 40 (BIA 2006) (holding IJs may consider "the alien's criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses" when assessing the alien for bond eligibility), or the petitioner's behavior subsequent to the conviction, see Argueta Anariba , 2017 WL 3172765, at *4 ("[T]he IJ's ruling relied entirely on facts surrounding Argueta's 2008 conviction and, other than briefly acknowledging that petitioner has a medical condition, does not discuss individualized post-2007 facts regarding petitioner's behavior, dangerousness, or risk of flight.").
In the instant matter, the IJ's bond determination decision shows he only considered the seriousness of Petitioner's criminal convictions without looking at the recency of the convictions or Petitioner's subsequent behavior. (See Dkt. 13-4 at 6 ("The Court considers it too great a risk to release [Petitioner] to the public given the seriousness of his criminal conviction[.]")). As discussed above, reliance on the type of crime committed by Petitioner, without more, is not sufficient to meet the clear-and-convincing-evidence burden. Indeed, if reliance on the seriousness of the criminal conviction was sufficient in and of itself to meet the standard set forth in the D & O, it would negate the purpose of the bond hearing.
Additionally, the record shows that the burden was not on the Government at the bond hearing to establish by clear and convincing evidence that Petitioner is a flight risk. The only evidence relied on by the IJ in his decision was evidence provided by Petitioner , namely that Petitioner "has two daughters who are United States citizens," and that Petitioner "failed to articulate with which family member he would be residing." (Dkt. 13-4 at 6-7). The IJ did not even mention in his decision, let alone rely on, any evidence presented by the Government. Nor did the IJ consider whether there was a less-restrictive alternative to detention. See Navarijo-Orantes v. Barr , No. 19-CV-790, 2019 WL 5784939, at *7 (W.D.N.Y. Nov. 6, 2019) ("The decision maker must consider—and must address in any decision—whether there is clear and convincing evidence that no less-restrictive alternative to physical detention, including release on bond in an amount the petitioner can reasonably afford, with or without conditions, would also reasonably address those purposes."); Hechavarria , 358 F. Supp. 3d at 242 ("At the very least, the IJ was required to consider possible alternatives to detention.... And at the very least, the IJ was required to determine whether the government's evidence demonstrated that any and all proffered alternatives to detention would not protect the public"). Accordingly, as a matter of law, the IJ relied upon proof that could not possibly establish that Petitioner was a flight risk by clear and convincing evidence.
The IJ's improper allocation of the burden of proof is further demonstrated by his emphasis on Petitioner's failure to present evidence at the bond hearing. The IJ's decision "notes that [Petitioner] did not provide ... any evidence of rehabilitation to rebut DHS' argument that his criminal convictions make him a danger to the community." (Dkt. 13-4 at 6). Because Petitioner's criminal convictions alone are not sufficient to constitute clear and convincing evidence, and because the IJ nevertheless required that Petitioner submit evidence that showed he was not a danger to the community, the burden of proof was effectively on Petitioner despite the D & O ordering otherwise. See Hechavarria , 358 F. Supp. 3d at 241 ("[T]he mere utterance of the correct standard of proof early in the IJ's decision is insufficient to demonstrate that it was applied when the rest of that decision demonstrates otherwise.").
Nor does the Court find that it would be futile for the IJ to consider the additional factors articulated above. The record before the Court shows that Petitioner's crime occurred in April 2013 (Dkt. 13-2 at 4) and that the Government did not present any evidence that Petitioner had disciplinary issues or exhibited violent tendencies while in state prison or during his confinement at the Buffalo Federal Detention Facility, or before his conviction. A reasonable trier of fact could find one incident that occurred nearly seven years ago, while serious, does not show that it is highly probable Petitioner currently poses a threat to the community. See Calderon-Rodriguez v. Wilcox , 374 F. Supp. 3d 1024, 1036 (W.D. Wash. 2019) (holding the IJ's decision to deny bond was not supported by clear and convincing evidence where the IJ only looked at the petitioner's past criminal convictions and did not look at the petitioner's actions since the crimes or take into account that the crime was committed "over four years before his ... bond hearing"). Additionally, given that the IJ did not consider any evidence presented by Petitioner, the Court cannot say with certainty that Petitioner does not have any reasonable chance of being granted release on bond.
The Court also notes that while the IJ has broad discretion in calendaring matters and it is not this Court's role to interfere in such issues, the IJ's refusal to grant Petitioner an extension of time of three days within which to submit rebuttal evidence as well as the IJ's denial of the admittance of any such evidence during the bond hearing, supports a conclusion that Respondents' efforts to comply with the D & O were, at best, superficial. Petitioner's bond hearing was scheduled to take place on November 1, 2019, three days after the D & O was entered. Petitioner's counsel did not receive notice of the bond hearing until he met with Petitioner on October 31, 2019. (Dkt. 12 at ¶ 10). At Petitioner's bond hearing, counsel for Petitioner requested an adjournment until November 4, 2019, to give him time to prepare an evidentiary submission. (Id. at ¶ 11). The IJ denied the request, stating he did not "have the authority to change a U.S. District Court order," and that Petitioner "either knew or should have known that the date was coming up." (Dkt. 13-3 at 5). However, because the D & O was entered on October 29, 2019, the bond hearing could have been held anytime on or before November 12, 2019, to comply with the Court's order. Moreover, if Petitioner was required to have his evidence prepared for filing as soon as the Court issued its D & O, he would essentially have had to anticipate what evidence the Government would present even though Petitioner did not bear the burden of proof at the bond hearing. Because the burden is on Respondents to present sufficient evidence, until the Government submits such evidence, Petitioner is under no obligation to speculatively submit a rebuttal. Additionally, the Court imposed the 14-day deadline as a procedural protection to Petitioner , so if the IJ had granted a request for a continuance by Petitioner, even one that did not rigorously comport with the 14-day deadline set by the Court's order, it would have been within the IJ's "wide latitude in calendar management." Morgan v. Gonzales , 445 F.3d 549, 551-52 (2d Cir. 2006).
Moreover, at the bond hearing, Petitioner's counsel sought leave to file supplementary evidence, but the IJ denied Petitioner's request as untimely. ( Id. ). It is perplexing that Petitioner's submission could be "untimely" when the D & O was issued merely three days before the bond hearing and where Petitioner received notice of the bond hearing 24 hours before it was scheduled. However, more concerningly, the IJ's denial of the admission of any evidence submitted by Petitioner combined with the IJ's denial of Petitioner's request for a continuance amounts to an utter refusal by the IJ to consider any evidence submitted by Petitioner. Again, while the Court recognizes the IJ has broad discretion when calendaring matters and deciding what evidence to consider, that broad discretion must comport with the requirements of the Due Process Clause.
The Court also notes this is not the first time this particular IJ has failed to comply with a district court order requiring the Government to bear the clear-and-convincing-evidence burden at a bond hearing. See Hechavarria , 358 F. Supp. 3d at 241-43.
For the foregoing reasons, the Court grants Petitioner's motion to enforce.
IV. Appropriate Relief
Petitioner requests that the Court release Petitioner due to Respondents' non-compliance with the Court's Judgment, citing several cases where other courts in this District have ordered release under similar circumstances. (Dkt. 11 at 29-30). However, in those cases, the orders stated that if a bond hearing that complied with the Order was not held within 14 days, then Petitioner would be released. See Hechavarria v. Sessions , No. 15-CV-1058, 2018 WL 5776421, at *9 (W.D.N.Y. Nov. 2, 2018), enforcement granted sub nom. Hechavarria , 358 F. Supp. 3d 227 ("Within fourteen calendar days of the date of this Decision and Order, the government must release Hechavarria from detention unless a neutral decision-maker conducts an individualized hearing to determine whether his continued detention is justified." (emphasis omitted)); Enoh , 2017 WL 2080278, at *1 ("This Court ... ordered that (1) "[a]t that hearing, [the petitioner] will be entitled to release on bail unless the government establishes by clear and convincing evidence that he poses a risk of flight or a risk of danger to the community[.]"). In the instant matter, the D & O contained no such provision.
Instead, the Court will afford Respondents one final opportunity to hold a bond hearing that complies with the D & O. See Argueta Anariba v. Shanahan , No. 16-CV-1928 (KBF), 2017 WL 3172765, at *5 (S.D.N.Y. July 26, 2017) ("The Court therefore DENIES petitioner's motion to compel his release at this time, and REMANDS to the IJ to provide clarification and analysis of the applicable legal standard."); see also Fernandez Aguirre v. Barr , No. 19-CV-7048 (VEC), 2019 WL 3889800, at *4 (S.D.N.Y. Aug. 19, 2019) ("Because the Petition seeks only a constitutionally-adequate bond hearing, and because the Court has granted that relief, immediate release is not necessary to make the habeas writ effective." (citation omitted)). However, if this second bond hearing does not comply with the due process protections set forth herein, then release of Petitioner may be appropriate. Mapp v. Reno , 241 F.3d 221, 226 (2d Cir. 2001) ("[A] habeas petitioner should be granted bail only in unusual cases, or when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective." (quotation omitted)).
CONCLUSION
For the foregoing reasons, the motion to enforce (Dkt. 10) is granted solely to the extent that the Court orders Respondents to afford Petitioner an individualized bond hearing consistent with the procedures outlined in the October 28, 2019, Decision and Order and the instant Decision and Order within 14 days of entry. If Petitioner requests a continuance that results in a bond hearing date outside the 14-day deadline set forth above, such a continuance will be in compliance with the instant Decision and Order, as long as the new date falls within a reasonable time period. Respondents are directed to file a status update with the Court within three (3) days of the date of Petitioner's bond hearing regarding the outcome of the hearing, or on or before February 10, 2020, whichever date is earlier.
SO ORDERED.