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Sanchez v. Sabol

United States District Court, M.D. Pennsylvania

February 13, 2017

RAFAEL IGNACIO GUERRERO SANCHEZ, Petitioner
v.
MARY SABOL, et al., Respondents

          MEMORANDUM

          William W. Caldwell United States District Judge.

         I. Background

         Pursuant to the December 23, 2016 memorandum opinion and order (Docs. 45, 46), this court held an individualized bond hearing for Rafael Ignacio Guerrero Sanchez (“Petitioner”) on February 9, 2017. The extensive procedural history of Petitioner's case was fully set forth in the December 23, 2016 opinion, (see Doc. 45 at 1-6), and will not be repeated here. Petitioner is currently being detained by Immigration and Customs Enforcement (“ICE”) while his withholding of removal claim progresses through the administrative system. He has been detained since May 19, 2015. (Id. at 3). For the following reasons, the court will release Petitioner on conditions.

         II. Standard of Review

         In Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), the Third Circuit explained that the purpose of continued detention under 8 U.S.C. § 1226[1] must be to facilitate the detention statute's goals of “ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community.” Id. at 231. The government must justify its continued detention of the detainee. Id. at 232. Accordingly, the government bears the burden of proving “that continued detention is necessary to fulfill the purposes of the detention statute.” Id. at 233.

         When a section 1226 detainee is due a bond hearing, that hearing must be “individualized.” Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 478 (3d Cir. 2015); Leslie v. U.S. Attorney Gen., 678 F.3d 265, 271 (3d Cir. 2012); Diop, 656 F.3d at 233. Mechanistic reliance on factors that are common to all section 1226 detainees will not suffice. See Singh v. Holder, 638 F.3d 1196, 1205-06 (9th Cir. 2011) (explaining that all alien detainees in section 1226 bond hearings presumably have at least one crime in their past giving rise to their removal orders, and have been ordered removed by a final, administrative order, and thus the presence of these factors alone does not necessarily warrant denial of bail); Chi Thon Ngo v. I.N.S., 192 F.3d 390, 398-99 (3d Cir. 1999).

         Furthermore, the assessment of a section 1226 detainee's dangerousness and risk of flight must be made on a current basis. In Chi Thon Ngo v. I.N.S., 192 F.3d 390 (3d Cir. 1999), the Third Circuit emphasized the importance of making a present assessment of a detainee's level of risk in light of the fundamental liberty interest at stake:

When detention is prolonged, special care must be exercised so that the confinement does not continue beyond the time when the original justifications for custody are no longer tenable. The fact that some aliens posed a risk of flight in the past does not mean that they will forever fall into that category. Similarly, presenting danger to the community at one point by committing crime does not place them forever beyond redemption. Measures must be taken to assess the risk of flight and danger to the community on a current basis. The stakes are high and we emphasize that grudging and perfunctory review is not enough to satisfy the due process right to liberty, even for aliens.

Id. at 398 (emphasis added).[2] It follows that submissions by the detainee showing, inter alia, reform, rehabilitation, good character, education, employment history and prospects, familial ties to United States citizens, potential for relief from removal, and any other evidence that contravenes danger to the community or risk of flight must be considered, as such evidence is highly relevant to ascertaining the detainee's current risk level. See, eg., id. at 393 (explaining types of evidence detainee submitted in support of petition for bond); see also In re Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006) (listing factors to be considered in detainee bond determinations).

         When assessing danger to the community, the extensiveness, recency, and severity of a detainee's past criminal activity must be considered. Singh, 638 F.3d at 1206 (citing Guerra, 24 I. & N. Dec. at 40). When assessing risk of flight, common-sense considerations include whether the imposition of conditions of release could mitigate flight risk, and whether the detainee has strong family ties to the United States. Leslie, 865 F.Supp.2d at 640; Chi Thon Ngo, 192 F.3d at 398.

         Finally, although the Third Circuit has not yet addressed the issue, this court has found that the appropriate level of proof required from the government in these bond determinations is clear and convincing evidence of risk of flight or danger to the community. See Guerrero Sanchez v. Sabol, No. 1:15-CV-2423, 2016 WL 7426129, at *5-6 (M.D. Pa. Dec. 23, 2016) (Caldwell, J.) (citing Lora v. Shanahan, 804 F.3d 601, 616 (2nd Cir. 2015), and Singh, 638 F.3d at 1203 (9th Cir. 2011)). As the Court of Appeals for the Ninth Circuit aptly explained,

[E]ven where prolonged detention is permissible, due process requires adequate procedural protections to ensure that the government's asserted justification for physical confinement outweighs the individual's constitutionally protected interest in avoiding physical restraint. Because it is improper to ask the individual to share equally with society the risk of error when the possible injury to the individual-deprivation of liberty-is so significant, a clear and convincing evidence standard of proof provides the appropriate level of procedural protection. The Supreme Court has repeatedly reaffirmed the principle that due process places a heightened burden of proof on the State in civil proceedings in which the individual interests at stake . . . are both particularly important and more substantial than the mere loss of money. For [section 1226] detainees like Singh, who face years of detention before resolution of their removability, the individual interest at stake is without doubt particularly important and more substantial than mere loss of money, and therefore a heightened standard of proof is warranted.

Singh, 638 F.3d at 1203-04 (internal quotation marks and citations omitted). The Singh court further reasoned that because a heightened standard of proof is applied in many other immigration contexts, including those where the immigrant bears the burden of proof, it makes sense that the “clear and convincing evidence” standard should also apply to the government in section 1226 bond hearings. Id. at 1205 n.4. This court has found the reasoning of Singh court persuasive, and concurs that the appropriate standard of proof is clear and convincing evidence. Guerrero Sanchez, 2016 WL 7426129, at *6.

         III. ...


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