358 F. Supp. 3d 227
W.D.N.Y.2019Background
- Petitioner Joseph E. Hechavarria had been detained by DHS/ICE since July 11, 2013—over five years—pending removal. The district court previously granted a conditional writ (Nov. 2, 2018) ordering release unless a neutral decisionmaker held an individualized hearing where the government had to show by clear and convincing evidence that continued detention was necessary to serve a compelling regulatory purpose and consider less restrictive alternatives.
- An IJ (Philip J. Montante, Jr.) held a bond hearing on Nov. 6, 2018, and denied bond on Nov. 14, 2018. The government relied primarily on a 2011 felony assault conviction (stabbing and alleged sexual assault) and older drug history; petitioner presented parole risk assessments, evidence of programming and good conduct, family support, medical issues, and proposed electronic monitoring as a less restrictive alternative.
- The IJ stated the government bore the clear-and-convincing burden but found DHS met its burden, emphasized the seriousness of the 2011 offense, discounted some dated favorable records as stale, and noted petitioner declined to testify.
- Petitioner moved to enforce the district court’s conditional writ, arguing the IJ failed to apply the clear-and-convincing standard, impermissibly shifted the burden to him, and failed to consider less restrictive alternatives (e.g., electronic monitoring).
- The district court (Vilardo, J.) concluded the court retained jurisdiction to enforce its habeas judgment, exhaustion was not required (or excused), and that the IJ’s decision did not satisfy the Nov. 2, 2018 order because the IJ did not actually apply the clear-and-convincing standard and did not consider less restrictive alternatives.
- Remedy: the court granted petitioner’s enforcement motion and ordered DHS to release Hechavarria within 14 days under reasonable conditions of supervision (at government expense), directing a compliance report within 30 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court retained jurisdiction to enforce its conditional writ given 8 U.S.C. § 1226(e) | Vilardo: court may enforce its habeas judgment and ensure compliance; § 1226(e) does not bar enforcement of habeas orders | Respondents: § 1226(e) precludes review of discretionary bond/detention decisions | Held: Court retains jurisdiction to enforce its conditional writ; § 1226(e) does not strip enforcement power here |
| Whether petitioner had to exhaust administrative remedies (appeal to BIA) before enforcement motion | Hechavarria: exhaustion excused due to irreparable harm, futility, and substantial constitutional question; BIA lacks power to resolve constitutional claims | Respondents: exhaustion should be required because IJ decision was available for BIA review | Held: Exhaustion not required here; administrative exceptions (no genuine adequate relief, futility, constitutional question) apply |
| Whether IJ complied with the Nov. 2, 2018 mandate to apply clear-and-convincing standard | Hechavarria: IJ failed to apply the heightened standard; decision rests on speculation and temporally distant offenses | Respondents: IJ acknowledged the standard and weighed evidence; government put on case first | Held: IJ’s reasoning shows he did not apply the clear-and-convincing standard; speculation cannot satisfy that burden |
| Whether IJ considered less restrictive alternatives before ordering continued detention | Hechavarria: IJ ignored offered alternatives (electronic monitoring, stringent supervision) and never explained why alternatives would fail | Respondents: under typical § 1226(a) practice alternatives considered only after alien proves not dangerous | Held: Because this was a due-process hearing with government bearing burden, IJ was required to consider and reject less restrictive alternatives; IJ failed to do so |
Key Cases Cited
- Hechavarria v. Sessions, 891 F.3d 49 (2d Cir. 2018) (prior appellate decision addressing detention and § 1226(c) temporal concerns)
- Jennings v. Rodriguez, 138 S. Ct. 830 (U.S. 2018) (holding § 1226(c) does not naturally provide periodic bond hearings)
- Demore v. Kim, 538 U.S. 510 (2003) (discussing detention during removal proceedings)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (due-process balancing test)
- Addington v. Texas, 441 U.S. 418 (1979) (clear-and-convincing evidence standard explained)
- Hilton v. Braunskill, 481 U.S. 770 (1987) (standards for granting habeas relief and release conditions)