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Garcia v. McDonald

United States District Court, D. Massachusetts

September 23, 2016

MYNOR GARCIA, Petitioner,
v.
JOSEPH D. MCDONALD, in his capacity as Sheriff of Plymouth County House of Corrections, Respondent.

          MEMORANDUM AND ORDER

          ALLISON D. BURROUGHS U.S. DISTRICT COURT JUDGE

         I. Introduction

         Currently before the Court are three motions relating to Petitioner Mynor Garcia's detention by United States Immigration and Customs Enforcement (“ICE”) at the Plymouth County House of Corrections. Mr. Garcia has filed an emergency motion seeking the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241 ordering his release from immigration detention [ECF No. 3] as well as a motion to expedite the hearing of his habeas petition. [ECF No. 20]. Respondent[1] followed with a motion to dismiss for failure to state a claim. [ECF No. 17].

         Judge Leo Sorokin, who was initially assigned to this case when it was filed on August 16, 2016, conducted a motion hearing on September 1, 2016, before the case was transferred to this Court. This Court has reviewed the transcript of Judge Sorokin's hearing and also held a further hearing and conference with counsel for the parties on September 21, 2016.

         For the following reasons, Mr. Garcia's motion for the grant of a writ of habeas corpus is ALLOWED IN PART and DENIED IN PART. The Court declines to require the immediate release of Mr. Garcia, but does order that Mr. Garcia be afforded a bond hearing before an Immigration Judge as soon as reasonably possible. Respondent's motion to dismiss for failure to state a claim is DENIED and Petitioner's motion to expedite is DENIED AS MOOT with leave to renew if appropriate.

         II. Factual and Procedural Background

         Mr. Garcia is a citizen of Guatemala. He entered the United States without inspection on or about February 2, 2002, at the age of 17, and has remained in the United States since that time. Mr. Garcia has previously worked as a mechanic and for Market Basket. He has a son who is six years old, as well as other family members in the area who support his release. Mr. Garcia was arrested by the Lawrence police three times from 2004 to 2006 for crimes including assault and battery, leaving a scene after property damage, and threatening and false license. Each of these cases was dismissed.

         On March 21, 2010, Mr. Garcia was violently attacked by members of a gang in Lawrence, Massachusetts. He was kidnapped by gang members, pushed down a flight of stairs, beaten with brass knuckles, and burned repeatedly with an iron, before being left for dead. He survived the attack and has been cooperating with the Government in the investigation and prosecution of members of the gang. Mr. Garcia's cooperation with the Government continues to the present, and he is a potential witness at a trial scheduled to begin later this fall.

         On July 28, 2011, Mr. Garcia was arrested for possession of cocaine with intent to sell and possession of a firearm without an FID card. He pled guilty to conspiracy to distribute cocaine and possession with intent to distribute and received a 66-month sentence, which was completed on November 4, 2015. On June 9, 2015, prior to the end of his criminal sentence, Mr. Garcia was served by ICE with a Form I-851, Notice of Intent to Issue a Final Administrative Removal. This led to the entry of a final removal order against Mr. Garcia on June 15, 2015 based on his criminal history.

         After completing his sentence on November 4, 2015, Mr. Garcia remained in detention until he was taken into ICE custody on November 23, 2015. On November 25, 2015, Mr. Garcia told ICE that he feared returning to Guatemala. The United States Customs and Immigration Service (“USCIS”) then interviewed Mr. Garcia and found that he did not have a credible fear of returning to Guatemala.

         On December 14, 2015, Mr. Garcia was transferred, through a writ of habeas corpus, to the physical custody of the United States Marshals Service (“USMS”) in connection with his ongoing cooperation with the gang-related investigation and then returned to the custody of ICE on March 8, 2016, where he has remained since. Despite the change in the location of Mr. Garcia's confinement between December 14, 2015 and March 8, 2016, it appears that he remained in detention pursuant to ICE's immigration detention authority or this Court has not been made aware of any basis for his ongoing detention other than his immigration status.

         On March 31, 2016, Mr. Garcia filed an application for a U visa. According to USCIS, “[t]he U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.” Mr. Garcia appears to at least facially meet this criteria given that he was a victim of a violent crime and is assisting the government with a related investigation. A U visa requires a certification from a government officer that the applicant provided assistance to the government. In Mr. Garcia's case, United States Attorney Carmen Ortiz signed his U visa application personally. According to the U.S. Attorney's Office certification, “Mr. Garcia was extremely helpful in assisting the FBI to identify and target members of an organized kidnapping crew in Lawrence, MA” and “[t]he government prosecuted over 20 members of this gang.”

         In May 2016, USCIS denied Mr. Garcia's application for relief from removal based on fear of returning to Guatemala and referred him to an Immigration Judge for further proceedings. The Immigration Judge then overturned the previous determination that Mr. Garcia did not have a credible fear of returning to Guatemala and held that Mr. Garcia's fear of return was credible. As a result of this finding, Mr. Garcia was placed in withholding of removal proceedings.

         According to Mr. Garcia, he was denied a bond hearing by the Immigration Judge on June 3, 2016. The Government responds that the Immigration Judge requested briefing on whether bond was appropriate on June 15, 2016, but that such briefing was not submitted. In any event, Mr. Garcia was scheduled for a merits hearing on his withholding of removal petition before Immigration Judge Paul Gagnon on September 14, 2016, but this date was rescheduled by Judge Gagnon and a new date has not yet been confirmed. Counsel for Mr. Garcia also ...


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