United States District Court, D. Massachusetts
ORDER ON MISCELLANEOUS MOTIONS
L. CABELL, U.S.M.J.
November 2018 Marvin Escobar Barrera (Barrera) was being
detained in custody by Immigration and Customs Enforcement
(ICE) at the Plymouth County Correctional Facility.
Contending that his detention was unlawful, Barrera filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. Among other things, Barrera sought a bond
hearing where the government would bear the burden of proving
that he should be detained as a flight or danger risk as
opposed to Barrera bearing the burden of proving that he
would not. The immigration court subsequently granted Barrera
the bond hearing he was seeking, but still imposed the burden
of proof on him rather than on the government. Nonetheless,
the immigration court determined that Barrera met his burden
and released him in June 2019 on conditions. Barrera’s
relief was short-lived, however, and he was returned to
custody after ICE requested that the Board of Immigration
Appeals (BIA) stay his release pending the government’s
motions pend against this backdrop, including: (1)
Barrera’s petition for habeas relief (D. 1); (2) the
respondents’ motion to dismiss the petition for failure
to state a claim (D. 9); and (3) Barrera’s motion to
consolidate this case with another case pending in this
session (D. 42). For the reasons discussed below, the court
finds that Barrera’s June 2019 release by the
immigration court mooted the basis for his initial petition.
The habeas petition will therefore be DENIED as
moot. Consequently, the government’s motion to dismiss
and Barrera’s motion to consolidate are also moot and
for that reason will be DENIED.
time Barrera filed the instant petition on November 25, 2018,
he was facing removal proceedings and had already been held
in ICE custody for approximately 25 months, pursuant to 8
U.S.C. § 1226(a). (D. 1). Barrera claimed, inter
alia, that his detention was unconstitutional because
the immigration court during his bond redetermination
hearing wrongfully placed the burden on Barrera to
show that he was neither a flight risk nor a danger to the
community. (Id. ¶¶ 29-34). The respondents
moved to dismiss on the ground, inter alia, that the
burden of proof is properly placed on the detainee in a bond
hearing under § 1226(a). (D. 9-10).
3, 2019, this court heard argument on the pending petition
and motion. In June of 2019, and while the matter was
pending, the immigration court did two things: it granted
Barrera lawful permanent resident status –something he
had been seeking, and also granted him a new bond
redetermination hearing. As noted above, the court continued
to place on Barrera the burden of demonstrating his
entitlement to release. Nonetheless, Barrera prevailed under
this more difficult burden and was released on bond with
various conditions, on June 10, 2019.
appealed the immigration court’s order to the BIA and
also filed an emergency motion for discretionary stay of the
order pending resolution of the appeal. (D. 32, pp. 9-19).
The BIA granted the stay and Barrera was taken back into ICE
custody on July 18, 2019. (D. 35). Barrera on the same day
filed an emergency motion with this court, asking that the
respondents be required to show cause why he should not be
released immediately from custody. (D. 36).
29, 2019, this court convened a hearing on the
petitioner’s emergency motion. Among other things, the
court raised with the parties (but did not decide) the
question of whether the original habeas petition had been
mooted by the immigration court’s ruling releasing
Barrera from custody and granting him LPR status. Ultimately,
the court denied the emergency motion to show cause,
principally on the ground that the motion was premature where
the matter was pending before the BIA. (D. 40).
August 29, 2019, the petitioner filed a motion to consolidate
this matter with Brito v. Barr, No. 19-cv-11314-PBS
(D. Mass. filed June 13, 2019), which involves the issue of
what constitutes constitutionally adequate bond
redetermination hearings in immigration proceedings. (D. 42).
In Brito, the court has granted class certification
for, inter alia, “all individuals who 1) are
or will be detained pursuant to 8 U.S.C. § 1226(a), 2)
are held in immigration detention in Massachusetts or are
otherwise subject to the jurisdiction of the Boston
Immigration Court, and 3) have received a bond hearing before
an immigration judge.” The respondent opposes
consolidation. (D. 43).
federal judicial power conferred by Article III, section 2 of
the Constitution extends only to cases and controversies.
Pagán v. Calderón, 448 F.3d 16, 27
(1st Cir. 2006). If during the pendency of a matter (1) the
issues presented are no longer live, (2) the parties lack a
legally cognizable interest in the outcome, (3) the court
cannot give effectual relief to the potentially prevailing
party, or (4) events have occurred that would make the
court’s determination merely advisory, the matter is
deemed moot. ACLU v. United States Conference of Catholic
Bishops, 705 F.3d 44, 52-53 (1st Cir. 2013).
“‘When a case is moot -- that is, when the issues
presented are no longer live or when the parties lack a
legally cognizable interest in the outcome -- a case or
controversy ceases to exist, and dismissal of the action is
compulsory.’” Castillo v.
Gillen, 881 F.Supp.2d 226, 228 (D. Mass. 2012) (emphasis
added) (quoting Cruz v. Farquharson, 252 F.3d 530,
533 (1st Cir. 2001)).
petition before this court, Barrera sought either his
immediate release from custody or a bond redetermination
hearing at which the government would have to establish by
clear and convincing evidence that he was either a flight
risk or a danger to the community. (D. 1, ¶ D). Although
the immigration court in granting Barrera a bond
redetermination hearing still placed the burden on him rather
than on the government, Barrera prevailed; the immigration
judge found that he met his burden and granted him the same
relief sought in the present petition.
court, it would appear that Barrera’s petition was
mooted by the immigration court’s ruling, particularly
where the immigration court gave Barrera the principal relief
he sought, release from custody. Barrera disagrees and posits
three reasons why the matter remains justiciable here. First,
this court has broad discretion to consider liberty claims
under § 2241 and Barrera still has not received a
constitutionally adequate bond redetermination hearing, that
is, a hearing where the government bears the burden of proof
on detention. Second, the BIA almost certainly will overturn
the immigration judge’s ruling because its prior
decisions strongly suggest that it does not approve of
release/bond on conditions (as opposed to straight