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Gutierrez Cupido v. Barr

United States District Court, W.D. New York

January 9, 2020

WILLIAM P. BARR, et al., Respondents.


          HON. FRANK P. GERACI, JR. Chief Judge

         Pro 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.

         Petitioner 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 is DENIED.


         The 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.

         For 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.

         The IJ 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 hearing.[1] Id.

         Immigration 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.

         On 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 appropriate.” Id.

         On October 31, 2019, Petitioner filed the present motion challenging the IJ's decision. ECF No. 13.


         Before 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 id.

         Second, 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).

         Third, 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 ...

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