Jimenez v. Decker

SALOMON APARICO JIMENEZ, Petitioner, v. THOMAS DECKER, et al., Respondents.

21-CV-880 (VSB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 3, 2021

OPINION & ORDER

VERNON S. BRODERICK, United States District Judge:

Petitioner Salomón Aparicio Jiménez ("Petitioner" or "Aparicio") is a citizen of Mexico currently in removal proceedings before the Executive Office for Immigration Review, Board of Immigration Appeals ("BIA" or the "Board"). Aparicio brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2441, 28 U.S.C. § 1651, and Article I, Section 9, of the Constitution of the United States for an order directing Respondents Thomas Decker, Peter T. Gaynor, Jeffrey A. Rosen, and Carl E. Dubois (collectively, "Respondents"), to: (1) refrain from removing Petitioner from the Court's jurisdiction during the course of habeas proceedings; and (2) release Aparicio from custody on his own recognizance or on reasonable conditions of supervision, or, in the alternative, provide Aparicio with a bond hearing at which Respondents bear the burden of establishing by clear and convincing evidence that Aparicio's continued detention is justified. Aparicio also moves for a temporary restraining order and preliminary injunction seeking essentially the same relief.

For the reasons stated on the record during the February 25, 2021 hearing and below, because I find that Aparicio was denied due process as he suffered prolonged detention without a bond hearing at which the Government bore the burden of establishing that he should be denied bail, Aparicio's petition is GRANTED to the extent that he seeks a bond hearing with the burden on the Government to justify by clear and convincing evidence his continued detention based upon Aparicio's danger to society or risk of flight.

I. Background and Procedural History¹

On February 1, 2021, Aparicio filed the instant petition for a writ of habeas corpus requesting an order (1) enjoining Respondents from moving him from the New York City area while habeas proceedings are pending, and (2) directing Respondents to immediately release him from custody, or, in the alternative, ordering Respondents to provide him with a hearing before an impartial adjudicator at which Respondents bear the burden of establishing by clear and convincing evidence that continued detention is justified. (Doc. 1, Pet. 32-33.)² On February 3, 2021, Aparicio filed the instant motion for an order to show cause, preliminary injunction, and temporary restraining order ("PI Motion"). (Doc. 4, Pet.'s Mem.)³ The relief requested in Aparicio's PI Motion is virtually identical to the relief requested in his habeas petition. (Pet.'s Mem. 32.)

On February 12, 2021, Respondents filed a memorandum in opposition to both Aparicio's habeas petition and his PI Motion. (Doc. 13, Resp. Opp. Mem.)⁴ In support of their opposition papers, Respondents also filed a declaration by United States Immigration andCustoms Enforcement ("ICE") Deportation Officer Kevin King, (Doc. 12, King Decl.),⁵ and a Return with accompanying exhibits, (Resp. Return).⁶ Aparicio waived his reply. (Doc. 15.)

Aparicio entered the United States in 2000 without inspection. (Pet. ¶ 21.) On November 22, 2008, Aparicio was arrested by the Yonkers City Police Department and charged with driving while intoxicated ("DWI"), in violation of the New York Vehicle and Traffic Law ("VTL") § 1192(3). (King Decl. ¶ 5; Resp. Return, Ex. 1, at 4-5.) On August 31, 2009, Aparicio pled guilty to the reduced charge of driving while ability impaired by the consumption of alcohol ("DWAI") in violation of VTL § 1192(1). (King Decl. ¶ 6; Resp. Return, Ex. 1, at 5.)

On January 22, 2020, Aparicio was arrested by the Westchester County Department of Public Safety for driving while intoxicated in violation of VTL § 1992(3), aggravated unlicensed operation of a motor vehicle in the third degree, aggravated DWI, as well as three other driving infractions. (King Decl. ¶ 7; Resp. Return, Ex. 1, at 3-4.) On January 31, 2020, Aparicio was arrested by the Yonkers City Police Department and charged with Petit Larceny, in violation of New York Penal Law § 155.25. (King Decl. ¶ 8; Resp. Return, Ex. 1, at 3.) The 2020 charges against Aparicio remain pending. (King Decl. ¶¶ 7-8.) The Government states that ICE has no indication in its records of receiving a request to produce Aparicio for hearings in any of his criminal cases, and that it would ordinarily accede to such requests. (Resp. Opp. Mem. 4 n.1; King Decl. ¶¶ 30, 29.)

On February 12, 2020, ICE officers arrested Aparicio at his home in Yonkers, New York, charging him with inadmissibility under § 8 U.S.C. 1182(a)(6) as a noncitizen present in theUnited States without admission or parole. (Pet. ¶ 22; see Resp. Return, Ex. 2, Notice to Appear.) ICE detained Aparicio as a matter of discretion pursuant to 8 U.S.C. § 1226(a), and transferred him to Orange County Jail in Goshen, New York, where he remains detained. (Pet. ¶ 22; Resp. Return, Ex. 3, Notice of Custody Determination, dated February 12, 2020; Ex. 4, Notice to EOIR: Alien Address, dated February 13, 2020.)

According to the affirmation of Aparicio's counsel, Edgar Fankbonner, Orange County Jail is approximately 90 minutes from New York City by car. (Doc. 4-1, at ¶ 4.) Because Aparicio was detained miles from his community, he faced significant obstacles to conferring with family and counsel and accessing records relevant to his bond hearing and merits defenses. (Pet.'s Mem. 19; Doc. 4-1, at ¶ 4.)

In addition, the software used by the jail contractor to provide videoconference services for prisoners to communicate with their attorneys ceased to function properly and remains unrepaired. (Doc. 4-1, at ¶ 4.) As such, it is virtually impossible for attorneys to communicate with clients at the jail unless clients initiate telephone calls to their attorneys—and these calls are brief and expensive. (Id.) As a result, counsel's communications with Aparicio were limited and inconsistent, and Aparicio was unable to offer fulsome assistance to counsel in preparing his own defense. (Id.)

Aparicio requested a bond hearing to review his custody determination on February 12, 2020. (Resp. Return, Ex. 3, at 2.) On February 13, 2020, ICE commenced deportation proceedings against Aparicio by serving him with a Notice to Appear ("NTA"). (King Decl. ¶ 10.)

On February 25, 2020, Aparicio appeared by videoconference for an initial master calendar hearing before an immigration judge ("IJ"). (King Decl. ¶ 11.) Aparicio withdrew hisbond request, and the IJ adjourned the case to another master calendar hearing to be held in March 12, 2020 in order to permit Aparicio to obtain counsel. (Id.)

On March, 12, 2020, Aparicio appeared by videoconference before an IJ, represented by counsel who appeared in person, for a second master calendar hearing. (Id. ¶ 12.) Counsel for Aparicio requested a one-month adjournment to prepare the case and review ICE's evidence in support of its NTA, and the IJ granted an adjournment of the master calendar hearing until April 16, 2020. (Id.)

At the third master calendar hearing on April 16, 2020, Aparicio entered pleadings on the NTA, admitted the allegations, and conceded the charge of removal. (Id. ¶ 14.) The IJ granted and adjourned the case until an April 24, 2020 master calendar hearing for Aparicio to file applications for relief from removal. (Id.)

On or about March 31, 2020, counsel for Aparicio filed a motion for bond determination pursuant to § 1226(a)(2), (Pet. ¶ 23; King Decl. ¶ 13),⁷ and on April 24, 2020, filed a packet of evidence in support of Aparicio's bond application, (King Decl. ¶ 15). Specifically, Aparicio proffered the birth certificate of his daughter who is a United States citizen, proof of his long-term residence and employment in Westchester County, character letters, and other evidence of his good moral character and ties to the community. (Pet. ¶ 23.) ICE, represented by the United States Department of Homeland Security (DHS) Office of the Chief Counsel, opposed Aparicio's motion with a rap sheet reflecting his early 2020 arrests and 2009 DWAI conviction. (Id.; see Resp. Return, Ex. 1.)

On April 30, 2020, Aparicio appeared by videoconference for his fourth master calendarhearing, during which the IJ granted Aparicio's request for an adjournment until May 18, 2020 to file an application for relief from removal. (King Decl. ¶ 16.) The IJ then went on the bond record to hold a bond hearing, but counsel for Aparicio withdrew the bond request, noting that she had not been able to meet with Aparicio to prepare for the bond hearing due to the COVID-19 pandemic. (Id.) In light of this withdrawal, the IJ did not proceed with a bond hearing. (Id.)

On or about May 13, 2020, counsel for Aparicio filed a renewed motion for a bond hearing. (Id. ¶ 17.) A bond hearing was scheduled for May 18, 2020, the same date as the next scheduled master calendar hearing. (Id.) At this hearing, Aparicio appeared by videoconference, and counsel for Aparicio requested another continuance, due to purported difficulties obtaining documentation in support of Aparicio's application for relief from removal. (Id. ¶ 18.) The IJ granted Aparicio's request and scheduled another master calendar hearing for June 4, 2020. (Id.) Counsel for Aparicio also withdrew the new request for a bail hearing, again citing difficulties obtaining documentation in support of Aparicio's bond request. (Id.) The IJ accordingly did not proceed with a bond hearing. (Id.)

On June 4, 2020, Aparicio appeared by videoconference with counsel appearing telephonically for a fifth master calendar hearing. (Id. ¶ 19.) At this hearing, counsel submitted an application for relief from removal (Form EOIR-42B) and requested a continuance to submit additional evidence in support of the application, noting that she was having difficulty obtaining that evidence due to the COVID-19 related quarantine. (Id.) The IJ...