United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS, Chief United States District Judge
Samuel Pensamiento, who was born in Guatemala, is married to
a United States citizen, with whom he recently had a child.
He has been in Immigration and Customs Enforcement
(“ICE”) custody since January 31, 2018, when he
reported to Chelsea District Court for a pretrial hearing on
misdemeanor criminal charges. ICE was waiting at the
courthouse and detained him. Pensamiento filed a habeas
petition pursuant to 28 U.S.C. § 2241, claiming that ICE
was refusing to transport him to his criminal proceedings in
state court and that his detention was unlawful because he
had not received a constitutionally adequate bond hearing in
March 15, 2018, the judge on emergency duty (Burroughs, J.)
entered a temporary restraining order and ordered ICE to
deliver Pensamiento to his next hearing on the misdemeanor
charges. See Docket No. 17 at 1-2. The order
disposed of Counts I and II in Pensamiento's habeas
petition. The only remaining claim for relief is Count III,
in which Petitioner seeks release from detention, or, at the
least, a detention hearing before this Court at which the
government is required to prove by clear and convincing
evidence that he is a danger to others or a flight risk.
Respondents have moved to dismiss pursuant to Rules 12(b)(1)
and 12(b)(6), and Petitioner opposed on April 6, 2018.
hearing on April 25, 2018, on the motion to dismiss and the
merits of the habeas petition, the government agreed to
release Pensamiento for 30 days so that he could be present
for the birth of his child. However, the parties agreed he
would be placed back in detention unless the Court allowed
his habeas petition.
review of the briefs, the Court
DENIES Respondents' motion to
dismiss (Docket No. 12). The Court
ALLOWS the habeas petition, and
ORDERS that Petitioner not be
detained again unless the immigration court holds a bond
hearing where the government bears the burden of proving that
Pensamiento must be detained because he is dangerous or a
is a 26-year-old Guatemalan national who arrived in the
United States in 2013 after fleeing persecution in his home
country. Pet. (Docket No. 1) ¶¶ 9, 12. He was
apprehended, began asylum proceedings, and was released on
bond in September 2013. Pet. ¶ 13. Petitioner was
authorized to work during the pendency of his removal
proceedings and received a Massachusetts driver's
license. Pet. ¶ 14.
Yaritza Moreno, a United States citizen, while they were
working in the same restaurant and while his asylum
application was pending. Pet. ¶¶ 10, 15.
Pensamiento and Moreno married in August 2016. Pet. ¶
15. Moreno filed a Form I-130 petition to sponsor Pensamiento
to become a lawful permanent resident, which was approved by
the U.S. Citizenship and Immigration Service
(“USCIS”) on March 9, 2017. Pet. ¶ 16. Based
on that approval, which provides a pathway to becoming a
permanent resident, the Immigration Judge (“IJ”)
administratively closed Pensamiento's removal proceedings
on September 20, 2017. Pet. ¶ 18.
Chelsea police arrested Petitioner on December 17, 2017,
after a car accident and charged him with two misdemeanor
counts: (1) leaving the scene of an accident resulting in
property damage, and (2) leaving the scene of an accident
resulting in personal injury. Pet. ¶ 20. He was
arraigned on December 18, 2017, and released on personal
recognizance. Pet. ¶¶ 20-21. Pensamiento had a
pretrial hearing scheduled for January 31, 2018. Pet. ¶
22. After the hearing, he was arrested by ICE at the
courthouse and detained. Pet. ¶ 22. Pensamiento's
removal proceedings have been re-calendared since his arrest.
Pet. ¶ 23. They remain pending, and no final order of
removal has been entered. See Pet. ¶ 23.
initial custody redetermination hearing was held on February
13, 2018. Pet. ¶ 24. The IJ required Pensamiento to
prove that he was not dangerous or a flight risk by clear and
convincing evidence. Pet. ¶ 24. Based on the police
report of the then-pending misdemeanor charges, the IJ found
that Petitioner had not carried his burden on the
dangerousness inquiry and denied him bond. Pet. ¶ 24.
March 19, 2018, Petitioner pleaded guilty to leaving the
scene of an accident resulting in property damage and was
ordered to pay a $200 fine. Docket No. 26-1 at 8. Other than
the guilty plea for this misdemeanor, Pensamiento has no
criminal record anywhere in the world. See Pet.
¶ 11. The Commonwealth dismissed the charge of leaving
the scene of an accident resulting in personal injury. Docket
No. 26-1 at 8.
had a second bond hearing on April 3, 2018, after the charges
were resolved. Docket No. 26-2 ¶ 5. Again, the IJ placed
the clear-and-convincing burden on Petitioner and denied his
request for release. Docket No. 26-2 ¶ 7. There is no
evidence that Pensamiento has appealed either of the IJ's
bond decisions to the Board of Immigration Appeals
(“BIA”). See Docket No. 26 at 6 n.2.
the hearing on April 25, 2018, the parties reached an
agreement to temporarily release Pensamiento on a GPS
tracking device for 30 days so that he could be present for
the birth of his child. See Docket No. 33. It is the
Court's understanding that he has been released on these