United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, DISTRICT JUDGE.
matter is now before this Court for the fourth and final time
on petitioner Angel Agustin Argueta Anaribia's
(“Argueta” or “petitioner”) claim
that he has been deprived of his right to an adequate bond
hearing under Lora v. Shanahan, 804 F.3d 601 (2d
Cir. 2015). As of the date of this opinion, Argueta has been
detained by Immigration and Customs Enforcement
(“ICE”) for approximately three years.
motion to compel his release once again argues that
respondents have not provided him with an adequate
Lora hearing because the Immigration Judge
(“IJ”) failed to apply the appropriate
“clear and convincing” legal standard in an
individualized analysis of his future dangerousness and/or
risk of flight. (See generally Mem. of Law in Supp.
of Mot. to Compel Pet.'s Release (“Pet.
Mem.”), ECF No. 42.) This Court disagrees. For the
reasons stated below, the Court hereby DENIES Argueta's
petition in full.
Court assumes familiarity with the relevant facts of this
matter, which are discussed in its decisions at ECF Nos. 10,
25, and 39. The Court refers the reader to those opinions for
the facts underlying Argueta's unauthorized entry,
criminal history, immigration detention, and efforts to
compel release in this Court. Below, the Court briefly
reviews those facts most relevant to resolution of the
2, 2016, this Court held that Argueta qualified for a
Lora hearing. (ECF No. 10.) After a hearing was held
in his absence on June 21, 2016, Argueta filed a motion to
compel release on the basis that his unwilling absence
rendered that Lora hearing procedural improper. (ECF
Nos. 12-14.) This Court agreed that the hearing was
procedurally deficient, and ordered that the Government
provide Argueta with an adequate Lora hearing within
twenty days or release him. (ECF No. 25.) Accordingly, a
second Lora hearing was held on November 7, 2016;
Argueta appeared by video conference.
the November 7, 2016 hearing, the IJ ruled on the record that
“the Government has met its burden of proof that
[Argueta] is a danger to the community and a flight
risk.” (Nov. 7, 2016 Trans. At 14:3-5.) On February 12,
2017, Argueta filed a second motion to compel release on the
basis that the IJ did not properly hold the Government to the
requisite “clear and convincing” burden of proof.
(ECF No. 28-30.) Noting that the IJ did not issue a written
decision and did not mention or discuss Lora's
clear and convincing standard at any point during the
November 7, 2016 hearing, this Court agreed with Argueta and
remanded the action to the IJ “for an expeditious
clarification of the standard applied an individualized
analysis of that standard's application here.” (ECF
August 16, 2017, the IJ issued a Memorandum Decision in
compliance with this Court's directive. (See
generally Mem. Dec. of the IJ (“IJ Bond
Dec.”), ECF No. 40.) Therein, the IJ clearly and
unequivocally recognized that “the government bears the
burden to establish ‘by clear and convincing evidence
that the immigrant poses a risk of flight or a risk of danger
to the community.'” (Id. at 2-3 (citing
Lora, 804 F.3d at 612).) The IJ then provided a
complete and thorough analysis of the evidence regarding
Argueta's conduct before, during, and after his
imprisonment, and concluded that “DHS has established
by clear and convincing evidence that [Argueta] is a risk of
danger to the community, a ‘specially dangerous
individual' and a flight risk.” (Id. at
response, Argueta filed a third motion to compel his release
on October 23, 2017. (ECF Nos. 41-42.) Argueta's petition
argues, in sum and substance, that the IJ's written
decision fails to properly apply the requisite “clear
and convincing” standard in determining whether Argueta
is a danger to the community and/or flight risk.
(See Pet. Mem. at 6.) The heart of Argueta's
argument is that the IJ: (1) did not properly explain
how he applied the “clear and convincing
standard” (stating instead that he “assigned
greater weight” to Argueta's “violent
behavior” and “lesser weight” to
Argueta's rehabilitation efforts); (2) did not address
any of the factors that should be weighed; and (3) did not
adequately consider evidence of Argueta's recent
rehabilitation. (Id. at 6-8.)
Government opposed Argueta's petition for release on
November 21, 2017 (ECF No. 45), and Argueta replied on
December 5, 2017 (ECF No. 48). For the reasons stated below,
the Court concludes that the IJ properly applied the
requisite legal standard under Lora, that there are
no grounds to second guess the IJ's findings or
conclusions, and that Argueta's petition for release must
be denied on that basis.
Due Process Clause applies to all ‘persons' within
the United States, including aliens, whether their presence
is lawful or unlawful, temporary or permanent.”
Lora, 804 F.3d at 613 (quoting Zadvydas v.
Davis, 533 U.S. 678, 693 (2001)). It is well-settled
that “the Fifth Amendment entitles aliens to due
process in deportation proceedings.” Reno v.
Flores, 507 U.S. 292, 306 (1993). In Lora, the
Second Circuit held that “in order to avoid the
constitutional concerns raised by indefinite detention, an
immigrant detained pursuant to section 1226(c) must be
afforded a bail hearing before an immigration judge within
six months of his or her detention.” 804 F.3d at 616.
due process requires that a person detained pursuant to 8
U.S.C. § 1226(c) “must be admitted to bail unless
the government establishes by clear and convincing evidence
that the immigrant poses a risk of flight or a risk of danger
to the community.” Lora, 804 F.3d at 616;
see also Rodriguez v. Robbins, 715 F.3d 1127, 1144
(9th Cir. 2013) (“[B]ond hearings must be held before a
neutral IJ with the government bearing the burden of proof by
clear and convincing evidence.”); Singh v.
Holder, 638 F.3d 1196, 1203-04 (9th Cir. 2011)
(“Because it is improper to ask the individual to
‘share equally with society the risk of error when the
possible injury to the individual'-deprivation of
liberty-is so significant, a clear and convincing evidence
standard of proof provides the appropriate level of
procedural protection.” (quoting Addington v.
Texas, 441 U.S. 418, 427 (1979)).
district court will not second-guess an IJ's decision
“with respect to the appropriate weight to be assigned
to the evidence presented at his bond hearing.”
Hassan v. Holder, No. 11-cv-7157, 2014 WL 142479, at
*9 (S.D.N.Y. Apr. 15, 2017). However, failure to apply the
correct legal standard and to hold the government to its
burden of proof renders a bond hearing
“constitutionally deficient” under Lora.
See Cepeda v. Shanahan, No. 15-cv-9446, 2016 WL
3144394, at *2 (S.D.N.Y. Apr. 22, 2016); Vargas v.
Davies, No. 15-cv-3525, 2016 WL 3044850, at *4 (S.D.N.Y.
May 27, 2017) (“Petitioner may have a viable
constitutional claim to the extent ...