United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. Chief Judge
se Petitioner Jose Elias Gutierrez Cupido brought this
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, challenging his continued detention at the
Buffalo Federal Detention Facility. ECF No. 1. On October 1,
2019, the Court granted the petition in part and ordered
Respondent Jeffrey Searls to hold a bond hearing for
Petitioner, at which the government would bear the burden of
proving “by clear and convincing evidence that
Petitioner's continued detention is justified based on
risk of flight or danger to the community.” ECF No. 8
at 6-7. On October 8, 2019, Immigration Judge Philip J.
Montante, Jr. (the “IJ”) held the ordered
hearing. He found that the government had sustained its
burden of proving that continued detention is justified based
on Petitioner's risk of flight. ECF No. 17-2 at 10.
has now filed a motion requesting his immediate release on
the ground that the hearing did not, in fact, comply with the
Court's order. ECF No. 13. The government opposes the
motion. For the reasons that follow, Petitioner's motion
following facts are taken from the record. Petitioner is a
native and citizen of El Salvador, and has been detained by
immigration authorities since May 2018. On October 2, 2019,
notice of the Court's Order granting the petition was
sent to Respondents electronically and to Petitioner by mail.
Respondents aver that, on that same day, Petitioner was
personally served with a notice that a bond hearing would be
held October 8, 2019. Petitioner counters that he did not
receive notice of the hearing until October 6, 2019.
purposes of the motion, the Court will assume that Petitioner
did not receive notice of the hearing until October 6.
Petitioner claims that, because of the short turnaround
between the notice and the hearing, his counsel was unable to
appear, he was unable to submit letters of support (which his
counsel possessed), and his family could not appear as
witnesses. See ECF No. 13 at 3. Importantly,
however, Petitioner does not assert-and there is no evidence
in the record to suggest-that he objected to the hearing date
or otherwise raised these concerns to the IJ or Respondents.
held the hearing as scheduled. A Spanish interpreter was
present. ECF No. 17-1 at 2. The IJ asked Petitioner whether
he had an attorney to represent him for the proceeding. ECF
No. 17-2 at 6 n.1. Petitioner responded that an attorney
named “Brenda” represented him, though he could
not recall her last name. Id. Assuming that
Petitioner was referring to Brenda Cisneros- an immigration
attorney-the IJ contacted her organization, the Volunteer
Lawyers Project, to determine whether she represented
Petitioner. The organization “confirmed via telephone
that neither the organization nor Ms. Cisneros represents
[Petitioner].” Id. Because there was no other
attorney of record on file, the IJ proceeded with the
authorities argued that Petitioner is a flight risk because
he “does not have financial, proprietary, or
significant familial ties to the United States” and
because he has been ordered removed at the administrative
level (though that order is on appeal). Id. at 7.
Based on the IJ's written decision, it appears that the
IJ asked Petitioner twice during the hearing if he had
evidence to rebut those arguments. Id. at 10 n.7.
Petitioner “chose to rebut in a limited way by
presenting evidence of his wife's pending asylum
application, rather than presenting evidence that would
assure [the IJ] that he would be present for the remainder of
his removal proceedings.” Id.
October 9, 2019, the IJ issued a written decision finding
that immigration authorities had satisfied their burden of
proving by clear and convincing evidence that Petitioner
poses a flight risk. See Id. at 9, 10. He noted that
Petitioner only recently entered the United States and does
not have any significant ties to the country-he owns no
personal property and maintains no bank account here.
Furthermore, the IJ found significant the fact that
Petitioner's applications for relief from removal had
been denied, which “necessarily increases the risk that
[he] will flee if released from detention.”
Id. at 10. The IJ found unpersuasive
Petitioner's evidence that his wife had a pending asylum
application. He acknowledged “as a positive
equity” that Petitioner might gain immigration status
based on his wife's application, but he declined to
“speculate as to the likelihood of success of [that]
application.” Id. For that reason, the IJ
concluded that Petitioner's evidence did not mitigate the
risk of flight. Finally, the IJ considered alternatives to
detention and found that “less restrictive
alternatives” could not “reasonably assure
[Petitioner's] appearance.” Id.
Accordingly, the IJ found that “a denial of bond is
October 31, 2019, Petitioner filed the present motion
challenging the IJ's decision. ECF No. 13.
reaching the merits of Petitioner's motion, the Court
must address three preliminary matters. First, on December 2,
2019, Respondents appealed the Court's October 1, 2019
Decision and Order. See ECF No. 15. This raises a
question concerning the Court's continuing jurisdiction.
“It is well-settled that 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.” Independent
Living Aids, Inc. v. Maxi-Aids, Inc., 208 F.Supp.2d 387,
392 (E.D.N.Y. 2002) (internal quotation marks omitted).
“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. See, e.g.,
City of New York v. Venkataram, No. 06 Civ. 6578,
2012 WL 2921876, at *3 (S.D.N.Y. July 18, 2012) (collecting
cases). This includes orders granting habeas relief. See
Enoh v. Sessions, No. 16-CV-85, 2017 WL 2080278, at *4-5
(W.D.N.Y. May 15, 2017). Therefore, the notice of appeal does
not divest this Court of jurisdiction to review compliance
with and, if necessary, enforce its previous order. See
Respondents argue that 8 U.S.C. § 1226(e) divests this
Court of jurisdiction to review the IJ's bond
determination. That provision 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 . . . .” 8 U.S.C. § 1226(e). This
provision does not bar the Court's review. As an initial
matter, Section 1226(e) concerns only “discretionary
judgments” pertaining to “the application of
this section”-that is, Section 1226.
Id. (emphasis added). The Court is skeptical that
the July 2019 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. See Jennings v.
Rodriguez, 138 S.Ct. 830, 847-48 (2018); Darko v.
Sessions, 342 F.Supp.3d 429, 434-35 (S.D.N.Y. 2018). In
any case, Section 1226(e) does not deprive a court of
jurisdiction over constitutional and statutory challenges to
detention. Enoh, 2017 WL 2080278, at *5; see
also Jennings, 138 S.Ct. at 841 (“§ 1226(e)
does not preclude challenges to the statutory framework that
permits the alien's detention without bail.”
(internal quotation marks and brackets omitted)).
Thus, even if it were otherwise applicable, the statute
presents no obstacle to review because the Court is not
reviewing an immigration judge's discretionary judgment,
but whether its order was followed-i.e.,
“whether [Petitioner] received the due process to which
he was entitled.” Hechavarria v. Whitaker, 358
F.Supp.3d 227, 236 (W.D.N.Y. 2019).
Respondents contend that Petitioner did not appeal the bond
determination to the Board of Immigration Appeals and thereby
failed to exhaust his administrative remedies. For the
reasons discussed in other cases in this district, the Court
disagrees that a petitioner must seek exhaustion ...