Summary
In Gonzales Garcia v. Rosen, 513 F. Supp. 3d 329, (W.D.N.Y. Jan. 13, 2021), this Court found that the petitioner, who was detained pursuant to 8 U.S.C. § 1225(b), was not constitutionally required to receive a bond hearing based on the Supreme Court's decision in Thuraissigiam. Id. at *3, 6.
Summary of this case from Figueroa v. GarlandOpinion
6:19-CV-06327 EAW
2021-01-13
Selvin Fernando GONZALES GARCIA, Petitioner, v. Jeffrey A. ROSEN, Acting Attorney General, et al., Respondents.
Joseph David Moravec, John H. Peng, Prisoners' Legal Services of New York, Albany, NY, for Petitioner. Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, for Respondents.
Joseph David Moravec, John H. Peng, 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
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Petitioner Selvin Fernando Gonzales Garcia ("Petitioner"), a civil immigration detainee currently held at the Buffalo Federal Detention Facility in Batavia, New York, filed the instant action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner has been held in immigration custody as an "other alien" pursuant to 8 U.S.C. § 1225(b) since his arrest on June 18, 2018, when he was apprehended approximately one mile from the southern U.S. border. On February 3, 2020, the Court entered a Decision and Order (Dkt. 12) (the "February 3rd D&O") granting the Petition to the extent of ordering Respondents to provide Petitioner with an individualized bond hearing at which the government would bear the burden of showing either dangerousness or risk of flight by clear and convincing evidence and at which the immigration judge ("IJ") considered ability to pay and alternative conditions of release in setting bond. Respondents thereafter appealed to the United States Court of Appeals for the Second Circuit. (Dkt. 14).
On July 1, 2020, Petitioner filed a motion to enforce the Court's judgment. (Dkt. 18). Petitioner contends that at the Court-ordered bond hearing, the IJ did not hold the government to the burden of clear and convincing evidence and instead shifted the burden to him to demonstrate that he did not pose a risk of flight. (Dkt. 19). Petitioner seeks release as a result of this purported failure to comply with the Court's instructions. (Id. ).
On July 15, 2020, Respondents filed their opposition to Plaintiff's motion to enforce, along with a motion for reconsideration of the February 3rd D&O. (Dkt. 22). In support of their motion for reconsideration, Respondents argue that the Supreme Court's subsequent decision in Department of Homeland Security v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020), undercuts the rationale for the February 3rd D&O and mandates the conclusion that Petitioner was not entitled to a bond hearing. (Dkt. 22-2 at 4-8).
Petitioner filed his response to Respondents’ motion for reconsideration and his reply in further support of his motion to enforce on July 27, 2020. (Dkt. 24). Respondents filed their reply in further support of their motion for reconsideration on August 5, 2020. (Dkt. 25).
On September 23, 2020, the Second Circuit held Respondents’ appeal in abeyance pending this Court's resolution of the motion to enforce and the motion for reconsideration. Gonzales Garcia v. Barr , No. 20-1113, Dkt. 34 (2d Cir. Sep. 23, 2020).
For the reasons discussed below, the Court concludes that binding Supreme Court precedent requires a "legal fiction" to be imposed on Petitioner so that he is treated as at the threshold of entry—as opposed to within this country's borders—and as a result, he is entitled to only those protections as afforded by statute, and not the procedural protections of the Due Process Clause. Accordingly, this Court: (1) states pursuant to Federal Rule of Civil Procedure 62.1(a)(3) that it would grant Respondents’ motion for reconsideration if the Second Circuit remanded for that purpose; and (2) denies Petitioner's motion to enforce.
FACTUAL BACKGROUND
The factual background of this matter is set forth in detail in the February 3rd D&O, familiarity with which is assumed for purposes of this Decision and Order. The Court summarizes the salient facts below, including developments after entry of the February 3rd D&O.
Petitioner is a native and citizen of Honduras who illegally entered the United States on June 18, 2018, by rafting across the Rio Grande River, and was shortly thereafter arrested by a United States Border Patrol Agent approximately one mile west of the Roma, Texas Port of Entry. (Dkt. 12 at 2). On September 6, 2018, Petitioner was found to have a credible fear of persecution if returned to Honduras and was referred to the Batavia Immigration Court for further immigration proceedings pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii). (Id. ). Petitioner's removal proceedings are ongoing.
Following issuance of the February 3rd D&O, Respondents afforded Petitioner a bond hearing on February 10, 2020. (Dkt. 19-1 at 2). Petitioner was represented by counsel at the bond hearing. (Id. at 3). IJ Mary Baumgarten presided over the bond hearing and concluded that the government had borne its burden of demonstrating by clear and convincing evidence that Petitioner presented a risk of flight and that no conditions of release, including alternatives to detention, would mitigate that risk. (Id. at 18-25).
DISCUSSION
I. Respondents’ Motion for Reconsideration
Respondents have moved for reconsideration of the February 3rd D&O, arguing that the Supreme Court's decision in Thuraissigiam mandates the conclusion that Petitioner was not entitled to a bond hearing. Because Respondents’ motion addresses the validity of the judgment Petitioner is asking the Court to enforce, the Court considers Respondents’ motion for reconsideration first.
The Court notes as a threshold matter that it currently lacks jurisdiction to grant Respondents’ motion for reconsideration because Respondents’ appeal remains pending. As the Second Circuit has explained:
As a general matter, the filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal. A district court does not regain jurisdiction until the issuance of the mandate by the clerk of the court of appeals.
United States v. Rodgers , 101 F.3d 247, 251 (2d Cir. 1996) (quotation, citation, and alteration omitted). Here, the issue addressed by Respondents’ motion for reconsideration—namely, whether Petitioner was constitutionally entitled to a bond hearing as ordered by this Court—is the same as the issue on appeal, and this Court has accordingly been divested of jurisdiction.
However, the Court is not without any recourse. Federal Rule of Civil Procedure 62.1 addresses this precise situation—that is, where "a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending"—and provides that the Court "may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue." Fed. R. Civ. P. 62.1(a). In the event the Court states pursuant to Rule 62.1(a)(3) that it would grant the motion or that the motion raises a substantial issue, "[t]he movant must promptly notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 [.]" Fed. R. Civ. P. 62.1(b). "A motion brought pursuant to [ Rule] 62.1 is a procedural device that allows a district court to inform the parties and [the circuit court] how it would rule on the merits of certain motions after an appeal has been filed and the district court has been divested of jurisdiction." LFoundry Rousset, SAS v. Atmel Corp. , 690 F. App'x 748, 750 (2d Cir. 2017).
Here, if it had the authority to do so, the Court would grant Respondents’ motion for reconsideration, due to "an intervening change of controlling law[.]" Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd. , 956 F.2d 1245, 1255 (2d Cir. 1992) (citation omitted). The Court's analysis in the February 3rd D&O depended upon its conclusion that Petitioner held the status of a "person[ ] within the United States," and was thus entitled to certain due process protections. (Dkt. 12 at 18 (citation and emphasis omitted)). However, Thuraissigiam renders that conclusion untenable.
In Thuraissigiam , the petitioner was apprehended within 25 feet of the border and asked for asylum because he feared persecution in Sri Lanka. Thuraissigiam , 140 S. Ct. at 1964. An asylum officer found that the petitioner had not established a credible fear and referred him for removal. Id. at 1968. This finding was later affirmed by a supervising officer and an IJ. Id. The petitioner filed a habeas petition, arguing that "immigration officials deprived him of ‘a meaningful opportunity to establish his claims’ and violated credible-fear procedures by failing to probe past his denial of the facts necessary for asylum." Id. The petitioner sought a new opportunity to present his asylum claim. Id. The district court dismissed the petition, concluding that Ninth Circuit case law and 8 U.S.C. § 1252(a)(2) and (e)(2) "foreclosed review of the negative credible-fear determination that resulted in [the petitioner's] expedited removal order." Id. (citation omitted). The Ninth Circuit reversed, finding that § 1252(e)(2) violated the Suspension Clause and that the petitioner had a right "to expedited removal proceedings that conformed to the dictates of due process." Id. (citation omitted).
The Supreme Court reversed the Ninth Circuit, rejecting the petitioner's argument that § 1252(e)(2) violated the Suspension Clause, explaining that habeas was historically available only as a "means to secure release from unlawful detention" and, thus, was unavailable "to achieve an entirely different end, namely, to obtain additional administrative review of [the petitioner's] asylum claim and ultimately to obtain authorization to stay in this country." Id. at 1963. As such, the petitioner could not use the writ of habeas to request entry into the United States. See id. The Supreme Court also rejected the petitioner's due process argument, concluding that "an alien in [the petitioner's] position has only those rights regarding admission that Congress has provided by statute. In [the petitioner's] case, Congress provided the right to a ‘determin[ation]’ whether he had ‘a significant possibility’ of ‘establish[ing] eligibility for asylum,’ and he was given that right." Id. at 1983 (alterations in original). Of particular importance here, the Thuraissigiam Court held that an alien who "is detained shortly after unlawful entry" is not treated, for due process purposes, as having "effected an entry" into the United States, but is instead treated as "on the threshold," just like "an alien detained after arriving at a port of entry." Id. at 1982-83.
Petitioner, like the petitioner in Thuraissigiam , was apprehended shortly after his unlawful entry into this country. This Court is thus bound by the decision in Thuraissigiam to treat him as an individual who is "on the threshold" and has not effected an entry into the United States. In other words, even though Petitioner is physically located in Western New York, binding Supreme Court precedent requires this Court to treat him as though he never entered the United States.
This conclusion in turn has significant repercussions for the Court's assessment of the process due to Petitioner. As another court in this Circuit has explained, the outcome of a due process challenge by an alien who has not entered the United States "is controlled by the Supreme Court's decision in Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953)," wherein the Supreme Court held that "[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Mendez Ramirez v. Decker , No. 1:19-CV-11012-GHW, ––– F. Supp. 3d ––––, ––––, 2020 WL 1674011, at *13 (S.D.N.Y. Apr. 3, 2020) (quotation omitted); see also Poonjani v. Shanahan , 319 F. Supp. 3d 644, 648 (S.D.N.Y. 2018) (holding in habeas proceeding brought by individual detained pursuant to § 1225(b) that " Mezei ’s holding—that for aliens on the ‘threshold of initial entry,’ due process is whatever procedure has been ‘authorized by Congress’—compels denial of the Petition here"). To be sure, Mezei was a 5-4 decision, and Justice Robert H. Jackson penned a powerful dissent recognizing the broad power of Congress to "determine whom we will admit to our shores and by what means it will effectuate its exclusion policy," but conditioning that power with the "limitation ... that it may not do so by authorizing United States officers to take without due process of law the life, the liberty or the property of an alien who has come within our jurisdiction; and that means he must meet a fair hearing with fair notice of the charges." 345 U.S. at 228, 73 S.Ct. 625 (Jackson, J., dissenting). Nonetheless, Thuraissigiam confirms that almost 70 years later, it is still the law of this country that the constitutional protections of procedural due process do not apply to a noncitizen who is physically held in custody in this country, if he is inadmissible and taken into custody at or shortly after unlawfully crossing the border.
Petitioner argues that Thuraissigiam does not apply to challenges to detention, but is limited to the claims of individuals challenging admission decisions. (Dkt. 24 at 9). This argument is unavailing. While Thuraissigiam was decided in the admission context, it cited and reaffirmed the continuing vitality of Mezei , which addressed the issue of detention. See Thuraissigiam , 140 S.Ct. at 1982. Moreover, nothing in Thuraissigiam suggests that its discussion of whether an alien who is apprehended shortly after unlawfully entering the country has effected an entry is limited to the admission context.
Further, binding Second Circuit precedent holds that the government "has the authority to indefinitely detain excludable aliens...." Guzman v. Tippy , 130 F.3d 64, 65 (2d Cir. 1997). The petitioner in Guzman had arrived in the United States from Cuba in 1980, whereupon he was "paroled to a sponsor." Id. at 65. In 1987, he was convicted of second degree murder, resulting in the revocation of his immigration parole. Id. After completion of his prison sentence in 1992, the petitioner was taken into immigration custody, where he remained for several years, subject only to annual evaluation of his eligibility for parole by the then-Immigration and Naturalization Service ("INS"). Id. The Second Circuit affirmed the denial of the habeas petition in Guzman , stating unequivocally that "[i]ndefinite detention of excludable aliens does not violate due process" and "[a]n excluded alien's rights are determined by the procedures established by Congress and not by the due process protections of the Fifth Amendment." Id. at 66. Mezei and Guzman compel this Court to conclude that an alien, like Petitioner, who has not effected an entry into the United States is entitled only to those protections afforded by Congress. See Mendez Ramirez , ––– F.Supp.3d at ––––, 2020 WL 1674011, at *14 ("Lower courts are not empowered to pick and choose which Supreme Court holdings they apply.... Until Congress or a higher court says otherwise, this Court is constrained to apply Mezei .").
" ‘[E]xcludable’ aliens were those who were ineligible for admission or entry into the United States, even though in reality they were often granted ‘parole,’ which allowed them to come into the country.... As amended, the Immigration Act refers to ‘inadmissible’ aliens in the place of ‘excludable’ aliens." Chi Thon Ngo v. INS , 192 F.3d 390, 395 n.4 (3d Cir. 1999).
This Court's decision in Hassoun v. Searls , 469 F. Supp. 3d 69 (W.D.N.Y. 2020) is not, as Petitioner suggests (see Dkt. 24 at 9), to the contrary. The petitioner in Hassoun had lawfully entered the United States and had been present in this county "for more than 30 years[.]" 469 F. Supp. 3d at 83 n. 8. Thus, unlike Petitioner, he was not at the threshold of initial entry.
The Court is further unpersuaded by Petitioner's argument that he should be treated as having effected a legal entry into the United States because he has passed a credible fear interview. (See Dkt. 24 at 9). Petitioner relies on the Second Circuit's now-vacated decision in Haitian Centers Council, Inc. v. McNary , 969 F.2d 1326, 1345 (2d Cir. 1992) (" HCC "), for this proposition. HCC arose out of the exodus of numerous Haitians from Haiti after a military coup overthrew the existing government in the early 1990s. Id. at 1330. Many Haitians were interdicted by the United States Coast Guard and transported to camps in Guantánamo Bay. Id. at 1330, 1332. The interdicted Haitians were subsequently interviewed by immigration officials "to determine whether they [had] a ‘credible’ fear of political persecution if returned to Haiti." Id. at 1332. If an interdicted Haitian held a credible fear of political persecution, that Haitian was "screened in" and "brought to the United States so that [he or she] may pursue asylum claims." Id. If the interdicted Haitian did not hold a credible fear of political persecution, he or she was "screened out" and "repatriated to Haiti." Id.
The HCC plaintiffs sought injunctive relief and asserted, among other things, that their Fifth Amendment due process rights had been violated. Id. at 1341. The plaintiffs claimed to enjoy a liberty interest that included the "freedom not to be sent back to conditions of persecution or death without a fair adjudication that they are not bona fide asylees." Id. The Second Circuit agreed that "[o]nce ‘screened in’—that is, found by the governmental officials to have a credible fear of persecution if returned to Haiti—the plaintiffs are entitled to due process prior to United States officials altering their now-different status." Id. at 1345.
HCC does not support the conclusion that Petitioner can be deemed to have entered the United States due to having passed a credible fear interview, nor that he is entitled to additional due process protections because of such status. To the contrary, the HCC court acknowledged "[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Id. at 1340 (citation omitted and alteration in original). The HCC court then considered whether the plaintiffs in that case were subject to the Immigration and Naturalization Act ("INA") and regulations promulgated thereunder, and determined that they were not because they were "neither physically present in the United States ... nor at a port of entry of the United States." Id. at 1340 (citations omitted). The HCC court thus concluded that "Congress and the Executive Branch [had] not authorized a procedure under the INA and the regulations promulgated thereunder that applies to the subject interdicted and ‘screened in’ Haitians detained on Guantánamo Bay." Id. It was only after determining that Congress had not established any procedures applicable to the plaintiffs that the HCC court undertook an inquiry into the proper process. Id. In this case, by contrast, it is undisputed that Petitioner is subject to the INA, and that § 1225(b), under which he is held, provides for mandatory detention. See 8 U.S.C. § 1225(b)(1)(B)(ii) ; Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 845, 200 L.Ed.2d 122 (2018) (holding that " §§ 1225(b)(1) and (b)(2) mandate detention of aliens throughout the completion of applicable proceedings").
The petitioners in HCC also were not challenging their detention—instead, they were challenging the respondents’ authority to return them to Haiti as well as the denial of access to legal counsel. Id. at 1347. In addition, HCC was decided before Guzman and flowed, at least in part, from the court's conclusion that "the due process clause applies to excludable aliens held at INS detention centers in the United States[.]" Id. at 1341. As set forth above, Guzman expressly held to the contrary, stating that "[a]n excluded alien's rights are determined by the procedures established by Congress and not by the due process protections of the Fifth Amendment." 130 F.3d at 66. This Court is bound by the Second Circuit's later holding in Guzman .
The Court further notes the petitioner in Poonjani had passed a credible fear interview and been released on parole. 319 F. Supp. 3d at 645. The Poonjani court nonetheless treated him as remaining "at the threshold of initial entry." Id. at 648. In addition, the petitioner in Mendez Ramirez had actually had his application for asylum granted by an IJ, but "the government timely appealed that determination." ––– F.Supp.3d at ––––, 2020 WL 1674011, at *1. As in those cases, the Court does not find that Petitioner having passed a credible fear interview takes him outside the category of an inadmissible alien on the threshold of initial entry.
Justice Jackson concluded his dissent in Mezei by stating: "It is inconceivable to me that this measure of simple justice and fair dealing would menace the security of this country. No one can make me believe that we are that far gone." 345 U.S. at 228, 73 S.Ct. 625 (Jackson, J., dissenting). Yet, the Supreme Court has reaffirmed, almost 70 years later, that Petitioner—who is detained in a facility about 40 miles away from a federal courthouse that bears Justice Jackson's name—is not entitled to that "simple justice and fair dealing" embodied by the Due Process Clause. Thus, the Court concludes that its determination that Petitioner is entitled to a bond hearing with the procedural protections elucidated in the February 3rd D&O cannot survive the Supreme Court's decision in Thuraissigiam . Instead, this Court is bound by Supreme Court and Second Circuit precedent to conclude that (1) Petitioner is on the threshold of initial entry into the United States and (2) he accordingly is not entitled to procedural protections beyond those provided by statute. For all these reasons, the Court states that it would grant Respondents’ motion for reconsideration if the Second Circuit were to remand for that purpose.
To be clear, the Court does not revisit its conclusion in the February 3rd D&O that the Due Process Clause, if applicable, would not tolerate Petitioner's ongoing detention without an appropriate bond hearing.
II. Petitioner's Motion to Enforce
Notwithstanding the pendency of Respondents’ appeal, this Court has jurisdiction over Petitioner's motion to enforce. See Blandon v. Barr , 434 F. Supp. 3d 30, 36-37 (W.D.N.Y. 2020).
The Court turns next to Petitioner's motion to enforce, which seeks release on the basis that the bond hearing provided to Petitioner did not satisfy the standard set by this Court. For all the reasons discussed at length above, the Court now finds that no such bond hearing was constitutionally required. The Court will not order Respondents to release Petitioner when it can no longer conclude that there has been a constitutional violation. Accordingly, the Court denies Petitioner's motion to enforce.
CONCLUSION
For the foregoing reasons, the Court states pursuant to Federal Rule of Civil Procedure 62.1(a)(3) that it would grant Respondents’ motion for reconsideration (Dkt. 22) if the Second Circuit remanded for that purpose. The Court denies Petitioner's motion to enforce (Dkt. 18).
SO ORDERED.