Garcia v. Rosen

513 F.Supp.3d 329

Selvin Fernando GONZALES GARCIA, Petitioner,

v.Jeffrey A. ROSEN, Acting Attorney General,¹ et al., Respondents.

6:19-CV-06327 EAW

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

Signed January 13, 2021

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 ...