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Doe v. Smith

United States District Court, D. Massachusetts

December 19, 2017

JOHN DOE, Petitioner,
YOLANDA SMITH, Respondents.



         Congress has granted the Executive Branch broad authority to detain noncitizens facing removal proceedings in order to ensure their appearance in immigration court and availability for removal, as well as to prevent danger to the community. 8 U.S.C. § 1226; Demore v. Kim, 538 U.S. 510, 517-30 (2003). “But that power is subject to important constitutional limitations.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001). The Fifth Amendment's prohibition on deprivation of liberty without due process of law means that “the constitutionality of [detaining noncitizens facing removal proceedings] is a function of the length of the detention.” Diop v. ICE/Homeland Sec., 656 F.3d 221, 232 (3d Cir. 2011); accord Reid v. Donelan, 819 F.3d 486, 494 (1st Cir. 2016). “Were there to be an unreasonable delay by the [government] in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.” Demore, 538 U.S. at 532-33 (Kennedy, J., concurring). There was such a delay here.

         John Doe[1] is a citizen of Kenya who was detained for nearly a year, most recently at the Suffolk County House of Corrections in Boston, Massachusetts, while removal proceedings were pending against him. He petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, asserting that his detention violated the Due Process Clause. Doc. No. 1. After the Court denied the respondents' request to dismiss the petition, the parties briefed the merits of Doe's constitutional claims and the Court heard oral argument. On December 7, 2017, the Court entered an Order granting Doe's petition and ordering his release the next day subject to various conditions supervised by the United States Probation Office. Doc. No. 59. This Memorandum explains the Court's reasons for resolving Doe's constitutional claims in his favor and ordering his release.

         I. BACKGROUND[2]

         Doe lawfully came to the United States from Kenya as a high-school exchange student in 2004, then lawfully returned in 2006 on a student visa to attend Yale University. Doc. No. 1 at ¶ 10; see Doc. No. 21-3 at 2. While he was visiting family in Kenya during winter break in December 2007, two of his loved ones were killed in post-election violence there. Doc. No. 1 at ¶ 10; see Doc. No. 33 at 1-2 (stating Doe “suffered the loss of a child, as well as a close friend”). Doe returned to Yale in January 2008, completed his sophomore year, then studied abroad at the London School of Economics and renewed his student visa during the summer of 2008. Doc. No. 1 at ¶ 10. In March of 2009, Doe was arrested in Connecticut while drunk at a college party; the charges against him were dismissed. Doc. No. 1 at ¶ 11; Doc. No. 21-2 at 3-4. After struggling with depression in the wake of the losses he had experienced in Kenya, Doe withdrew from Yale in 2010, months before his anticipated graduation. Doc. No. 1 at ¶ 10. He returned to Kenya, sought mental health treatment, and used his computer science training to create an online platform for people seeking justice for loved ones lost to the same post-election violence his family had experienced. Doc. No. 1 at ¶ 10; see Doc. No. 21-3 at 2. Doe's involvement in this cause led to his arrest and torture in April 2013 by individuals associated with the Kenyan government. Doc. No. 1 at ¶ 10; see Doc. No. 21-3 at 3.

         In July of 2013, Doe returned to the United States and resumed his studies at Yale. Doc. No. 1 at ¶ 10. He has been in the United States continuously since that time, remaining after his most recent visa expired. Doc. No. 1 at ¶ 10; Doc. No. 21-3 at 3. On March 4, 2014, Doe was arrested in Connecticut and charged with assaulting a female companion. Doc. No. 21-2 at 4; Doc. No. 36-1 at 4; see Doc. No. 1 at ¶ 11. According to Doe, the charges arose from an altercation following his discovery that the alleged complainant had drugged and robbed him with the help of two other women. Doc. No. 36-1 at 4; Doc. No. 1-1 at 14, 16-18, 21-22; see Doc. No. 1 at ¶ 11. The charges against Doe were dismissed. Doc. No. 1 at ¶ 11; cf. Doc. No. 21-2 at 4; Doc. No. 36-1 at 4. Doe graduated from Yale in May of 2014. Doc. No. 1 at ¶ 10. Thereafter, he lived with his brother in Worcester, Massachusetts, and worked as a computer programmer. Doc. No. 1-1 at 15, 24-25; see Doc. No. 15-1 at 3-4.

         In November 2016, Doe was charged in New Hampshire with possessing marijuana, disobeying a police officer, and driving without a valid license. Doc. No. 1 at ¶ 11; Doc. No. 21-2 at 4. He was released on bond by the state court, but was detained by Immigration and Customs Enforcement (“ICE”) when he appeared for a court date in New Hampshire on December 19, 2016. Doc. No. 1 at ¶¶ 9, 11. The New Hampshire charges remain pending. Doc. No. 1 at ¶ 11; Doc. No. 21-2 at 4.

         Once in immigration custody, Doe requested and received a bond hearing. Doc. No. 1 at ¶ 13. Immediately following the January 11, 2017 hearing, the presiding Immigration Judge (“IJ”) denied bond, Doc. No. 15-1 at 5, explaining that he “was unable to find that [Doe had] satisfied [his] burden” of “prov[ing] that he [was] not a danger to the community, ” Doc. No. 21-2 at 2-3. Doe appealed. Doc. No. 15-1 at 3.

         On March 16, 2017, after a hearing at which Doe testified, the IJ found Doe removable and denied his application for asylum, finding it untimely. Doc. No. 1 at ¶¶ 6, 9; Doc. No. 33-1 at 2; Doc. No. 33-2 at 3; see Doc. No. 21-3 at 1-2. However, the IJ granted Doe's application for withholding of removal on two grounds: pursuant to section 241(b)(3) of the Immigration and Naturalization Act (“INA”), and under the Convention Against Torture (“CAT”). Doc. No. 33-1 at 2; Doc. No. 33-2 at 3-4. In doing so, the IJ concluded that Doe's testimony established “a clear probability that he would be tortured if he were removed to” Kenya. Doc. No. 21-3 at 2. Such relief from removal is rarely granted. See Doc. No. 33 at 3 & nn. 3-4 (citing statistics, which the respondents have not contested, showing CAT withholding is granted in about 1% of cases seeking it, and INA withholding is granted in about 7% of cases seeking it).

         The Department of Homeland Security (“DHS”) appealed the IJ's order withholding removal. Although the only Notice of Appeal in the record here is dated March 14, 2017-two days before the IJ held the hearing and issued the ruling being appealed-a BIA filing receipt reflects that the appeal was submitted a month later, on April 17, 2017. Compare Doc. No. 33-4, with Doc. No. 33-5. Meanwhile, Doe remained in custody. On April 25, 2017, Doe sent a motion to the immigration court requesting a custody redetermination and seeking his release, citing the IJ's decision granting him withholding of removal and responding to the IJ's characterization of his prior arrests that formed the basis for the initial decision to deny bond. Doc. No. 1-1 at 14-25. In the motion, Doe explicitly stated he was “incarcerated in Stafford County Jail, Dover, NH . . . by ICE.” Id. at 14. The respondents have neither argued nor submitted evidence that this request for redetermination was ever considered by the IJ or anyone else on behalf of the agency. Cf. Doc. No. 36-1 at 2 (reflecting the IJ did not reference Doe's filing in a later decision regarding bond).

         The respondents have submitted evidence that someone acting on their behalf told the IJ that Doe had been released from custody, though he plainly had not been released. At some unidentified point in time after the IJ's decision granting Doe's request for withholding of removal, an unknown representative of DHS erroneously notified the immigration court that Doe had been released by ICE.[3] Doc. No. 36-1 at 2; see Doc. No. 33-7 at 3 (asserting on behalf of DHS that a form “incorrectly indicat[ing] that [Doe] had been released from ICE custody” had been “filed by DHS with the Immigration Court” “[t]hrough inadvertence”).

         On May 8, 2017, Doe sent a motion seeking summary dismissal of DHS's appeal to the BIA, citing defective service, lack of merit, lack of jurisdiction, and bad faith. Doc. No. 1-1 at 1-13. The motion-a copy of which Doe mailed to DHS at ICE's Office of Chief Counsel in Boston-explicitly referenced Doe's continued detention. Id. at 1, 5, 13. It appears no action was taken as to this motion either. See Doc. No. 1 at ¶ 9. However, two days after Doe sent it, and despite the IJ's decision granting Doe withholding of removal, the BIA affirmed the IJ's January order denying bond, acknowledging the IJ's finding in favor of Doe as to withholding, but concluding the IJ had “properly determined that [Doe] did not meet his burden to establish that he does not pose a danger to the community.” Doc. No. 15-1 at 3. In particular, the BIA reasoned that Doe's “lengthy record of arrests, including for the violent offense of assault, demonstrates a disregard for the laws of the United States.” Id. Nothing in the BIA's decision reflects an awareness of Doe's motion for a bond redetermination, or of DHS's erroneous notice that Doe had been released. See generally Doc. No. 15-1 at 2-4.

         On June 26, 2017, after receiving no response to his filings with the immigration courts, and when there had been no steps taken to prosecute DHS's appeal to the BIA in the two months it had been pending, Doe completed and mailed his pro se federal habeas petition to this Court, Doc. No. 1 at 14; it was received and docketed a week later. In the petition, he asserted substantive and procedural due process claims arising under the United States Constitution and sought release from custody. Id. at 11-13. Pro bono counsel was appointed to represent Doe. Doc. No. 22.

         Within days of the docketing of Doe's federal petition, DHS asked the BIA to expedite its appeal in Doe's case, citing Doe's continued detention “at government expense” and referencing the pending habeas petition. Doc. No. 15-2. It then moved to dismiss the federal petition, arguing this Court lacked jurisdiction to consider Doe's challenges to his detention. Doc. No. 14. On July 21, 2017, DHS submitted a motion to the IJ requesting a bond redetermination for Doe. Doc. No. 33-7. In the motion, DHS referenced Doe's unanswered request for such a hearing following the IJ's March decision (evidencing its receipt of Doe's previous motion), noted the pending habeas petition, and appeared to concede that Doe was “eligible for a custody redetermination hearing” as a result of “materially changed circumstances” in the form of the IJ's order granting withholding of removal. Id. at 3. The motion also acknowledged DHS's erroneous filing regarding Doe's custody status, and attached a corrected form reflecting that Doe remained detained. Id. at 3, 5.

         On August 8, 2017-more than three months after Doe's request for a new bond hearing, and more than two weeks after DHS sought such a hearing-the IJ issued a notice scheduling a “custody redetermination hearing” for the following week. Doc. No. 33-8 at 2. At the hearing on August 16, 2017, Doe was represented by counsel; rather than ruling that day, the IJ took the matter under advisement. See Doc. No. 33 at 7.

         On August 23, 2017-more than four months after the BIA received DHS's notice of appeal, more than three months after Doe moved to have the appeal dismissed, and more than a month after DHS sought expedited consideration of the appeal-the BIA finally set a briefing schedule requiring simultaneous submissions by the parties within twenty-one days, by September 13, 2017. Doc. No. 33-6.

         On September 11, 2017-nearly four weeks after Doe's custody redetermination hearing-the IJ again denied bond in a written decision. Doc. No. 36-1. Recounting the procedural history of the matter, the IJ referenced DHS's inaccurate notice regarding Doe's custody status, as well as its subsequent correction of that notice and request for a new bond hearing. Id. at 2. The IJ did not acknowledge Doe's earlier request for a new bond hearing. In explaining his decision to deny bond, the IJ explained that the burden of proof remained on Doe to “establish to the [IJ's] satisfaction that he does not pose a danger to persons or property, is not a threat to national security, and does not pose a flight risk.” Id. at 3. The IJ discussed Doe's submissions regarding the circumstances of his March 2014 arrest for assault, noted instances in which Doe's submissions did not conclusively confirm his version of events, and concluded:

[T]he Court is not persuaded that [Doe] did not attack [the alleged victims of the 2014 charges]. As such, the Court remains unable to find that [Doe] is not a danger to the community. While the Court recognizes that [Doe] has been detained for a considerable amount of time, the duration of detention is not a factor that the Court may consider when determining if [Doe] should be released from custody. As the Court is unable to find ...

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