Ali v. King

555 F.Supp.3d 8

Sheikh Muhammad ALI, Petitioner,

v.Jean KING, et al., Respondents.

20 Civ. 703 (JPC)

United States District Court, S.D. New York.

Signed August 18, 2021

Filed August 19, 2021

Suchita Deolalikar Mathur, Zoe Pokempner Levine, The Bronx Defenders, Bronx, NY, for Petitioner.

Joshua Evan Kahane, U.S. Attorney Office SDNY, New York, NY, for Respondents.

OPINION AND ORDER

JOHN P. CRONAN, United States District Judge:

Sheikh Muhammad Ali, a native and citizen of Pakistan, was arrested by Immigration and Customs Enforcement ("ICE") and placed in removal proceedings. Ali was initially detained for approximately eighteen months, but after he sought a bond hearing, the Immigration Judge ("IJ") granted Ali bond and ordered him released pending the resolution of his removal proceedings. The Board of Immigration Appeals ("BIA") vacated the IJ's decision and determined that Ali should be detained without bond. Ali then filed this action against the Attorney General, several officials within the Executive Office for Immigration Review, and the Field Office Director of ICE's New York City Field Office (collectively, the "Government")¹ in which he challenges the BIA's decision under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , the Mandamus Act, 28 U.S.C. § 1361, and the Due Process Clause of the Fifth Amendment to the United States Constitution.

The Government and Ali brought competing motions for summary judgment. For the reasons stated below, the Court concludes that the basis for the BIA's decision is unclear. Because the BIA failed to set forth a "satisfactory explanation" for its decision to vacate the IJ's bond decision and order Ali detained, the Court grants Ali's motion for summary judgment, denies the Government's motion, vacates the BIA's order, and remands this matter to the BIA for further proceedings.

I. Background

A. Factual Background

Ali was born in Gujrat, Pakistan in 1991 and came to the United States in 2000. AR 218, 220.² Since 2010, Ali has been arrested nine times in New York. AR 332, 334. His first six arrests, which occurred between 2010 and 2013, were for a variety of crimes, including robbery, assault, and criminal possession of marijuana. AR 332. Each charge stemming from these arrests was ultimately dismissed or no conviction was obtained. Id.

In 2014, Ali's then-girlfriend became pregnant, and the two married. AR 82. They briefly moved in together, but "continually argued" and eventually split up. Id. One week before the birth of their daughter, Ali agreed to meet his wife at a mall. Id. She told police that Ali came to the mall to harm her and their unborn child, but Ali insists that his wife "set [him] up." Id. (internal quotation marks omitted). Either way, Ali was arrested and charged with aggravated harassment in the second degree. AR 332, 340. After this, Ali was subjected to an order of protection that required him to "stay away from his wife." AR 82.

On March 29, 2015, Ali was again arrested after another domestic incident. AR 84, 342. This time he was charged with several crimes: (1) criminal contempt, (2) endangering the welfare of a child, (3) harassment, and (4) intentional assault. AR 342; see also AR 334. He pleaded guilty to intentional assault and was sentenced to six months' imprisonment. See AR 334, 342. Ali's conviction was vacated on appeal, but he was subsequently convicted of reckless assault. See AR 342. On January 15, 2017, following another arrest, Ali was convicted of operating a motor vehicle while impaired by drugs. AR 341; see also AR 334. He was sentenced to six months' imprisonment and fined $500. AR 334, 341.

On July 21, 2017, the Department of Homeland Security ("DHS") served Ali with a notice to appear, which charged him with being subject to removal pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA") as an "alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General." AR 56. On August 7, 2017, ICE detained Ali and determined that he was subject to discretionary detention pursuant to section 236(a) of the INA pending the resolution of his removal proceedings. AR 58. In an effort to prevent his removal, Ali filed an application for asylum and protection under the Convention Against Torture. See AR 47. On February 12, 2018, the IJ denied Ali's application, see id. , and the BIA affirmed this decision on July 26, 2018, AR 150-60. Ali sought review of the BIA's decision by the Second Circuit and filed a motion to stay his removal. AR 140; see also AR 47.

In October 2018, while his Second Circuit appeal was pending, Ali filed a motion to reopen his removal proceedings with the BIA. AR 166-94; see also AR 47-48. On March 20, 2019, the BIA granted Ali's motion. AR 22. Later that month, the Second Circuit dismissed Ali's pending appeal in light of the BIA's decision to reopen his proceedings. See Ali v. Barr , No. 18-2241 (2d Cir. Mar. 29, 2019), Dkt. 82. Ali's removal proceedings remain ongoing, and it appears his next hearing will not occur until approximately one year from now. See 7/12/2021 Tr. at 30.

B. The IJ's Bond Decision

During much of this time, Ali was detained. See AR 55. In early December 2018, while his motion to reopen was pending with the BIA, Ali requested a bond redetermination hearing and asked the IJ to release him on bond. AR 110-30. The IJ held a bond hearing on January 24, 2019. See AR 48, 60. At the hearing, the IJ determined Ali had met his burden of showing that he was not a danger to the community and thus did not need to be detained. See AR 48. Ali posted a bond of $30,000 and was released in early February 2019 after being held for approximately eighteen months. See AR 16, 48 n.1.

In a memorandum issued on March 25, 2019, the IJ explained his reasoning. AR 47-50. The IJ concluded that "[d]espite a 2017 conviction in New York for driving while ability impaired by drugs and a 2015 conviction for contempt and endangering the welfare of a child, along with a number of additional arrests for assault, disorderly conduct, and possession of marijuana, [Ali] met his burden to show that he does not pose a danger to the community." AR 49. The IJ "provide[d] context" by explaining that Ali had "suffered as a child due to the death of his mother from cancer" and that Ali "was abused by his father." Id. The IJ also explained that at times Ali was homeless and addicted to drugs, which led to "most of his criminal activity." Id. Further, the IJ found that "[n]o one was injured or harmed" during Ali's domestic disputes that led to charges against him and that Ali "was charged with endangering the welfare of a child merely because [his] daughter was present" when he violated the order of protection. Id.

The IJ also noted that Ali submitted evidence showing "that he would be law-abiding upon his release." Id. Specifically, the IJ pointed to the fact that Ali was taking medication for a severe major depressive disorder and a substance use disorder and had not used illicit substances since he was detained in 2017. AR 49-50. The IJ additionally relied on a social worker's representation that Ali would attend counseling and be referred to substance abuse treatment if necessary. AR 50. Moreover, the IJ found that Ali would live at a church shelter, would receive support from a non-profit organization, and intended to find a job to support himself and his father. Id. In light of this, the IJ concluded that Ali "met his burden to show that he [was] not dangerous to himself or others and that he [would] not pose a danger to the community upon his release from custody." Id. The IJ found that while Ali presented "some flight risk," that concern was sufficiently addressed by the required $30,000 bond. Id.

C. The BIA Decision

The DHS appealed the IJ's bond decision. AR 42-44. On November 4, 2019, the BIA vacated the IJ's decision and ordered that Ali be detained on no bond. AR 4-5 ("BIA Decision").

In its decision, the BIA first set forth the applicable standards of review, explaining that it reviews an IJ's findings of fact under the "clearly erroneous" standard and "questions of law, discretion, and judgment" de novo. BIA Decision at 1 (internal quotation marks omitted). The BIA then explained that the "DHS argue[d] that [Ali] has a very serious criminal record and that the [IJ] did not cumulatively analyze his criminal record in determining that he is not a danger – particularly, his 2017 conviction for driving while impaired with drugs, his domestic violence incidents, his arrest for endangering the welfare of a child, and his violation of an order of protection." Id.

The BIA then stated that "[c]ontrary to the [IJ's] determination, we conclude that the respondent should not be released on bond." Id. The BIA followed this conclusion with two paragraphs. It stated:

In this regard, the DHS argues that the respondent has nine arrests and two convictions in the span of 7 years for crimes ranging from assault and robbery to criminal sale of marijuana. The DHS contends that his recent 2017 conviction for driving while impaired with drugs is a serious criminal offense -- particularly considering that the respondent admits he has used marijuana daily in the past, and has used cocaine and unprescribed Xanax. SeeMatter of Siniauskas , (BIA 2018) (holding that driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings); see alsoBegay v. United States , 553 U.S. 137, 141 [128 S.Ct. 1581, 170 L.Ed.2d 490] (2008). While the [IJ] believed that the respondent has demonstrated sufficient rehabilitation, the DHS also observes that the respondent's driving while impaired occurred after his 31-day rehabilitation program and that his illicit drug use ceased only upon his 2017 detention (IJ at 4; Respondent's Exhs. A, B). SeeMatter of

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