Lopez v. Decker, No. 19-2284-cv

978 F.3d 842

Carlos VELASCO LOPEZ, Petitioner-Appellee,

v.Thomas DECKER, in His Official Capacity as New York Field Office Director for the U.S. Immigration and Customs Enforcement, Chad F. Wolf, in His Official Capacity as Acting Secretary of the U.S. Department of Homeland Security, James Mchenry, in His Official Capacity as Director of the Executive Office for Immigration Review, William P. Barr, in His Official Capacity as Attorney General of the United States, Respondents-Appellants.

No. 19-2284-cv

August Term 2019

United States Court of Appeals, Second Circuit.

Argued May 13, 2020

Decided October 27, 2020

Julie Dona, Supervising Attorney (Janet E. Sabel, Attorney-in-Chief, Adriene Holder, Attorney-in-Charge, Civil Practice, Hasan Shafiqullah, Attorney-in Charge, Immigration Law Unit, Aadhithi Padmanabhan, Of Counsel, on the brief), The Legal Aid Society, New York, NY, for Petitioner-Appellee

Christopher Connolly, Assistant United States Attorney (Benjamin H. Torrance, on the brief), for Audrey Strauss, Acting United States Attorney, Southern District of New York, for Respondents-Appellants

Before: Parker, Chin, and Carney, Circuit Judges

Barrington D. Parker, Circuit Judge:

The Government¹ appeals from a judgment of the United States District Court for the Southern District of New York (Carter, J. ), granting Carlos Alejandro Velasco Lopez's petition for a writ of habeas corpus. Velasco Lopez was detained pursuant to 8 U.S.C. § 1226(a), which provides for discretionary detention of noncitizens during the pendency of removal proceedings.² At various bond hearings, Velasco Lopez was unable to carry the burden, placed on him by immigration regulations, to prove that he was neither a danger to the community nor a flight risk. See Matter of Guerra , 24 I. & N. Dec. 37, 38 (B.I.A. 2006) ; Matter of Adeniji , 22 I. & N. Dec. 1102, 1112 (B.I.A. 1999).³ He was twice denied bail and remained incarcerated in Orange County Correctional Facility for fourteen months before he filed a habeas petition challenging the procedures employed in his bond hearings.

The district court granted Velasco Lopez's petition and ordered a new bond hearing at which the Government was required to show by clear and convincing evidence that he was either a flight risk or a danger to the community. When the Government failed to do so, the immigration judge granted Velasco Lopez release on the condition that he post a $10,000 bond. He did so and was admitted to bail.

The Government appeals from this decision, arguing that the procedures employed in Velasco Lopez's various bond hearings were constitutionally adequate and that the district court erred in ordering a new hearing with the shifted burden of proof. We disagree. We conclude that Velasco Lopez was denied due process because he was incarcerated for fifteen months (with no end in sight) while the Government at no point justified his incarceration. We further conclude that the district court correctly ordered a new bond hearing where the Government bore the burden of proof. We therefore affirm the judgment of the district court.

BACKGROUND

Velasco Lopez was born in Oaxaca, Mexico, in 1995. He arrived in the United States at the age of four and has not left the country since his arrival. Since 2000, Velasco Lopez and his family have been living in Westchester County, New York.⁴ He attended kindergarten through high school in New York. He was a member of the youth group at his family's church, frequently placed on the honor roll, and received awards for perfect attendance at his school. In addition, he participated in numerous extracurricular activities, including band, track, and soccer. Since graduating high school, he has been a caretaker to his mother, who suffers from a number of health conditions. In 2012, during his last year of high school, Velasco Lopez submitted an application under the Deferred Action for Childhood Arrivals ("DACA") program; his application was approved in 2013. After completing courses at a culinary institute following high school, he began working as a sous chef for a local catering company. In his unsuccessful bail applications, he submitted numerous letters from his managers and coworkers attesting to his character and work ethic. He maintained his DACA status until November 2017, when his renewal application was denied.

In October 2016, Velasco Lopez pled guilty to driving while ability impaired ("DWAI").⁵ On February 1, 2018, he was arrested and issued appearance tickets for aggravated unlicensed operation of a vehicle, driving while intoxicated, and consumption of alcohol in a motor vehicle. He has not been convicted of any of these charges. At the time of his February 2018 arrest, Velasco Lopez was also subject to charges related to an incident in March 2017 at a bar in White Plains, New York, where a fight broke out between an off-duty police officer and other bar patrons. Velasco Lopez consistently denied any involvement in the altercation and the charges were eventually dismissed in June 2018.

The day after his February 1, 2018 arrest, Velasco Lopez was transferred to ICE custody. He was incarcerated for three and half months before he received an initial bond hearing on May 14, 2018. At the time of the May 2018 hearing, the charges stemming from the White Plains bar incident were still pending, as were the charges from the February 2018 arrest. In accordance with BIA precedent, the immigration judge placed the burden on Velasco Lopez to justify his release, and, when he could not do so, in part due to the outstanding charges, the immigration judge denied his bail application on June 21, 2018.

Before his initial bond hearing, on four separate occasions between February 2018 and April 2018, ICE declined to produce Velasco Lopez for criminal court appearances related to the charges stemming from the White Plains incident. When ICE finally produced him in White Plains City Court on June 25, 2018, the charges were dismissed. While incarcerated, Velasco Lopez faced similar obstacles in attempting to resolve the charges stemming from his February 2018 arrest. After he failed to appear for his initial criminal court date—due to his incarceration in ICE custody—a bench warrant was issued for his arrest on February 2018.

On August 7, 2018, Velasco Lopez, represented by counsel from the Legal Aid Society, submitted a renewed bond request citing ‘changed circumstances’ based on the dismissal of the charges stemming from the White Plains bar incident. See 8 C.F.R. § 1003.19(e). He was given a second hearing on October 10, 2018. In this bond hearing, as in his initial hearing, agency procedures dictated that Velasco Lopez bore the burden of showing to the satisfaction of the immigration judge that he was neither a flight risk nor dangerous. Under agency policy, ambiguities, or lack of information, in the record result in an adverse inference against the detainee. In the second bond hearing, for example, the immigration judge required that Velasco Lopez submit the charging documents from his February 2018 arrest. But that case had not progressed as a result of Velasco Lopez's incarceration, and he had not yet been able to answer the charges. When his counsel submitted the charging document, the immigration judge was unsatisfied with its level of detail, noting that it did not include Velasco Lopez's blood alcohol level or even the reason why the officer stopped his car. The immigration judge concluded that he did not have all the relevant facts before him and thus made adverse inferences against Velasco Lopez and again denied bail.

In April 2019, having been incarcerated for fourteen months and denied bail twice, Velasco Lopez filed a petition for a writ of habeas corpus challenging on due process grounds the procedures employed in his hearings. The district court granted his petition and ordered a new hearing at which the Government, not Velasco Lopez, was required to justify his continued incarceration by presenting clear and convincing evidence that he was either a flight risk or a danger to the community. A new hearing was held at which the Government focused its substantial expertise and resources on Velasco Lopez's circumstances. After hearing from the Government, the immigration judge concluded that it had failed to establish that Velasco Lopez was either a flight risk or dangerous, and ordered him released on a $10,000 bond, which he posted. He has remained with his family pending the outcome of his ongoing removal proceedings.

We review de novo a district court's grant of habeas relief under 28 U.S.C. § 2241. Guerra v. Shanahan , 831 F.3d 59, 61 (2d Cir. 2016).

DISCUSSION

I.

Detention during removal proceedings is a constitutionally valid aspect of the deportation process. Demore v. Kim , 538 U.S. 510, 523, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). The constitutionality of detention pending removability proceedings under § 1226(a) is not at issue in this case. Our concern is, in the words of the Supreme Court, with the "important constitutional limitations" on that power's exercise. Zadvydas v. Davis , 533 U.S. 678, 695, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

The Immigration and Nationality Act ("INA") has provided for discretionary detention pending removal proceedings since it was enacted in 1952. The statute providing for that detention is currently codified as 8 U.S.C. § 1226(a). Until the early 1990s, the Attorney General exercised his discretion with a presumption in favor of liberty during the pendency of removal proceedings. This presumption was repeatedly affirmed by the Board of Immigration Appeals ("BIA"). See Matter of Patel , 15 I. & N. Dec. 666, 666 (B.I.A. 1976) ("An alien generally is not and should not be detained or required to post bond except on a finding that he is a threat to national security or that he is a poor bail risk."); see also Matter of Andrade , 19 I. & N. Dec. 488, 489 (B.I.A. 1987).

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