Reyes v. Wolf

MARIA MAGDALENA FUENTES REYES, Petitioner, v. CHAD WOLF, Acting Secretary of the U.S.Department of Homeland Security, et al., Respondents.

Case No. 2:19-cv-02086-GMN-EJY

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

May 8, 2020

ORDER

Petitioner Maria M. Fuentes Reyes, a counseled immigration detainee, has filed a Petition for Writ of Habeas Corpus (ECF No. 1) pursuant to 28 U.S.C. § 2241.¹ Respondents have answered the Petition (ECF No. 19), and Petitioner has replied (ECF No. 20). For the reasons discussed below, the Petition is granted in part and denied in part.

BACKGROUND

Petitioner is a 24-year old native and citizen of El Salvador who has been detained by the United States Immigration and Customs Enforcement ("ICE") division of the Department of Homeland Security ("DHS") since September 21, 2017. (Pet. at 3-4, ¶¶ 4, 8.²) She is married to a United States citizen, David Cisneros, and is the mother of a 4-year old daughter, H.C., who is also a United States citizen. (Id. at 5, ¶ 14.)

I. STATE CRIMINAL PROCEEDINGS

In November 2016, one month after H.C. was born, Petitioner asked Cisneros to take her shopping. (Id. at 6, ¶ 16.) He agreed to do so and arranged to sell a set of tools in the parking lot.(Id.) When the buyers arrived, a verbal and physical altercation occurred. (Id.) Petitioner testified before an immigration judge ("IJ") that several men began beating Cisneros and a woman pushed her, which caused Petitioner to slap the woman.³ (ECF No. 12-6 at 5-6.) According to Petitioner, Cisneros then took Petitioner to her cousin's house where she and the baby remained with her cousin, and he left the house and was involved in a shooting later that day. (Id.) Petitioner testified that she was not present for the shooting (id. at 6-8), although Respondents dispute this account based on her prior testimony suggesting she was present. (ECF No. 19 at 12 n.3.)

On May 18, 2017, a grand jury indicted Cisneros and Petitioner on multiple state charges stemming from the events of November 2016, and Petitioner was arrested the following week. (Pet. at 6, ¶ 16.) Both Cisneros and Petitioner were charged with battery, robbery, possession of stolen property, battery with the intent to commit a crime, discharge of firearm from or within structure or vehicle, discharging firearm at or into occupied structure, vehicle, aircraft, or watercraft, conspiracy to commit murder, and two counts of attempted murder with use of a deadly weapon. (ECF Nos. 12-7, 12-9.)

Four months after Petitioner's arrest, state prosecutors filed an amended indictment pursuant to a guilty plea agreement and dropped all but one misdemeanor count of battery for slapping the woman.⁴ (ECF No. 19-4.) On September 21, 2017, Petitioner entered a guilty plea to the misdemeanor battery charge. (ECF No. 12-8.) The state court sentenced her to 30 days in jail, credited her for time served, and closed her case.⁵ (Id.)

According to Petitioner, the arrest and misdemeanor battery conviction resulting from the events of November 2016 are the extent of her criminal history. (Pet. at 2, ¶ 2; ECF No. 19-12 at 12.) Respondents do not contend otherwise.

II. IMMIGRATION PROCEEDINGS

Petitioner entered the United States in or about April 2014 seeking asylum. (Pet. at 5, ¶ 14.) An asylum officer conducted a credible fear interview and determined there was a significant possibility Petitioner could establish that she was persecuted or her fear of future persecution was well-founded. (Id. at ¶ 15.) The following month, DHS initiated removal proceedings by filing a Notice to Appear charging Petitioner as removable under Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. (Id.) She was released from ICE custody on a $7,500 bond. (Id.)

A. Relief Sought From Removal

Petitioner has requested relief from removal via two avenues: a "family-based" petition and an asylum application. (Id. at 7, ¶¶ 17, 19.) Cisneros filed a Petition for Alien Relative (Form I-130), i.e., family-based petition, on Petitioner's behalf.⁶ (Id. at 5, ¶ 14.) In January 2018, she filed an asylum application. (Id. at 7, ¶ 17.) Four months later, the IJ held a merits hearing on the asylum application, received testimony from Petitioner, and denied all forms of relief, including her request for continuance until her family-based petition was decided. (Id. at ¶ 19.) She appealed the denial of asylum relief to the BIA, which dismissed the appeal. (Id. at ¶ 20.) She then filed a petition for review before the United States Court of Appeals for the Ninth Circuit, Fuentes Reyes v. Barr, Case No. 18-73434, which is currently pending. (Id. at 2, ¶ 1.) A stay of removal has been in effect since December 2018. (Id. at 7, ¶ 21.) The U.S. Citizenship and Immigration Services approved the family-based petition on May 30, 2019. (Id. at 5, ¶ 14.)

B. First Bond Request

After Petitioner's release from state custody in September 2017, she was immediately transferred to ICE custody. (Id. at 6, ¶ 16.) Two months later, she filed a bond request in the immigration court. (Id. at ¶ 17.) An IJ held a hearing in January 2018 and issued a bond memorandum finding that she is a danger to the community and denying the bond request ("2018 IJ Decision"):

The record reflects that [Petitioner] was convicted of battery in May 2017. Despite this conviction, [she] was originally charged with attempted murder, discharging a firearm at a structure or vehicle, robbery, battery to commit robbery, conspiracy to commit murder, and conspiracy to commit robbery. At her bond hearing, [Petitioner] claimed that her husband was convicted of attempted murder and that she was present at the offense for which her husband was convicted. She also stated that her husband did not have or discharge a firearm. Despite the [Petitioner's] statements, the Court found [she] is a danger to the community because she was present when her husband attempted to murder somebody and that the battery conviction stems from the same offense that her husband was convicted of attempting to murder another person.

(ECF No. 12-10 at 2 (internal citation omitted).⁷)

C. First BIA Appeal

Petitioner appealed the 2018 IJ Decision to the Board of Immigration of Appeals ("BIA"). (Pet. at 6-7, ¶ 17; 2018 Appellate Brief, ECF No. 19-10.) On March 30, 2018, the appeal was dismissed ("2018 BIA Decision"):

On appeal, [Petitioner] argues that the Immigration Judge erred in finding [she] is a danger to the community based primarily on charges that were later dropped, and failing to consider her positive equities which include community and family ties. [Petitioner] also argues the Immigration Judge should not have denied bond based on facts and "bad acts" allegedly committed by her husband (Brief at 5-6). However, [Petitioner's] community and family ties did not prevent her from committing the very recent and very serious crime which ultimately resulted in her battery conviction. In addition, it is undisputed that the respondent was present at the time of the crimes for which her husband was convicted.

The Immigration Judge correctly considered the evidence of record. The evidence supports the Immigration Judge's determination that the DHS met its burden of establishing by clear and convincing evidence that continued detention of the respondent is justified due to the danger she poses to the community based on her prior arrest and conviction. Matter of Siniauskas, 27 I & N Dec. 207 (BIA 2018).

(ECF No. 12-11 at 3-4.)

D. Second Bond Request

In January 2019, Petitioner filed a motion for bond based on changed circumstancespursuant to 8 C.F.R. § 1003.19(e). (Pet. at 7, ¶ 22.) According to Petitioner, one changed circumstance was the discovery, through her testimony at the May 2018 merits hearing, that the IJ and BIA's factual basis for denying her first bond request was incorrect.⁸ (Id. at 13-14, ¶¶ 48-49.) She filed the second bond request to clarify the details and sequence of events in November 2016. (Mot. to Redetermine Bond, ECF No. 19-12).) The IJ denied her bond request without receiving new testimony or proffered evidence regarding her changed circumstances. (Pet. at 7, ¶ 22; see also Jan. 2019 Order, ECF No. 19-13.) The IJ issued a second bond memorandum ("2019 IJ Decision") recounting the history of the bond and asylum proceedings, and holding as follows:

[Petitioner] claimed that there are materially changed circumstances because she has a petition pending before the circuit court and that Court may overrule the [BIA's] decision. In addition, she argued that a material changed in facts has come to light during [Petitioner's] individual hearing because she was not actually present at the scene when her husband committed any of the crimes for which he was convicted. She also argued a number of factors related to her family situation and ties to the community to warrant her release on bond.

This Court concluded that there is lack of material changed circumstances and a lack of jurisdiction to hear [Petitioner's] bond since the [BIA] issued its final decision. Alternatively, this Court found the respondent remains a danger to the community and now is a risk of flight because this Court denied her requested relief and the [BIA] affirmed this Court's decision.

(ECF No. 12-12 at 3.)

E. Second BIA Appeal

Petitioner appealed the 2019 IJ Decision to the BIA. (Pet. at 7, ¶ 22; 2019 Appellate Brief, ECF No. 19-16.) The BIA dismissed the appeal in April 2019 ("2019 BIA Decision"):

As we noted in our prior decision, the Immigration Judge found that [Petitioner] was a danger to the community based on the fact that she was convicted of battery on September 21, 2017. In support of this finding, the Immigration Judge cited evidence reflecting that [Petitioner] was originally arrested and charged with attempted murder, discharging a firearm at a structure or vehicle, robbery, battery to commit robbery, conspiracy to commit murder, and conspiracy to commit robbery. See

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