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Arellano v. Sessions

United States District Court, E.D. Texas

July 26, 2019

JEFFERSON B. SESSIONS, III, Attorney General of the United States;[1] KIRSTJEN NIELSEN, Secretary of the Department of Homeland Security; THOMAS E. FEELEY, Field Office Director, Buffalo Field Office Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; and JEFFREY J. SEARLS, Facility Director, Buffalo Federal Detention Facility, Respondents.



         I. Introduction

         Represented by counsel, Abigail Hernandez Arellano (“Hernandez Arellano” or “Petitioner”) commenced this habeas proceeding pursuant to 28 U.S.C. § 2241 (“§ 2241”) against the named Respondents (hereinafter, “the Government”) challenging her continued detention in the custody of the United States Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”). For the reasons discussed below, the request for a writ of habeas corpus is granted.

         II. Factual Background

         The following factual summary is drawn from the Declaration of Deportation Officer Robert Morris (“Morris Decl.”) (Docket No. 4-1) and attached Exhibits (Docket Nos. 4-2 & 4-3).

         Hernandez Arellano, a native and citizen of Mexico, arrived in the United States at an unknown place, on an unknown date, without being admitted or paroled after inspection by an Immigration Officer. On November 15, 2016, United States Citizenship and Immigration Services (“USCIS”) approved Hernandez Arellano's Application for Employment Authorization (Form I-765) and application for Consideration of Deferred Action for Childhood Arrivals (“DACA”). Her DACA status was due to expire on November 14, 2018.

         On February 15, 2018, the Rochester City School District (“City School District”) reported to the Rochester Police Department (“RPD”) that someone had made a social media post threatening a mass shooting at East High School (“East High”). A Facebook user allegedly named “Martin Doll” posted on East High's Facebook page the following statements: “I'm coming tomorrow morning, ” and “I'm going to shoot all of ya bitches.” After further investigation, the RPD traced the user account to Hernandez Arellano, a former East Hight student who was then studying at a different City School District school. Upon questioning by the RPD on February 16, 2018, Hernandez Arellano admitted creating the Facebook user account and making the post. She explained that she did not get along with many students at East High because they were mean to her.

         On February 20, 2018, the RPD arrested Hernandez Arellano at her parents' home. A Monroe County grand jury returned an indictment charging her with two counts of Making a Terroristic Threat, in violation of N.Y. Penal Law § 490.20(1).

         On February 21, 2018, DHS officers encountered Hernandez Arellano at the Monroe County Jail (“MCJ”) where she was being held. After confirming her immigration status, DHS identified her as an alien subject to removal from the United States, and an immigration detainer was lodged against her at the MCJ.

         After posting bond in connection with her State court criminal proceeding on February 21, 2018, Hernandez Arellano was taken into DHS custody. That same date, she was served with a Notice to Appear (“NTA”), charging her with being subject to removal from the United States, pursuant to Immigration and Nationality Act (“INA”) § 272(a)(6)(A)(1), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled.[2]

         On February 27, 2018, DHS reviewed Hernandez Arellano's custody status and determined that she would remain in DHS custody pending a final determination of her immigration case. Hernandez Arellano requested review of DHS's custody decision by an immigration judge (“IJ”).

         On February 23, 2018, USCIS notified Arellano that her DACA status and employment authorization terminated automatically on the date the NTA was issued, February 21, 2018.

         On March 19, 2018, Petitioner and her immigration attorney appeared for a master calendar hearing and a bond hearing before an IJ. The IJ denied her request for a change in custody status on the basis that she failed to prove she did not pose a danger to the community. Hernandez Arellano waived her right to appeal the bond decision.

         On March 22, 2018, Petitioner's custody was transferred from DHS to the custody of the Monroe County Sheriff's Department (“MCSD”), and she was remanded to the MCJ in connection with her criminal proceedings in Monroe County Court, New York State.

         On April 9, 2018, the IJ administratively closed Hernandez Arellano's immigration removal proceedings since she was no longer in DHS custody due to her pending State court criminal proceeding.

         On June 27, 2018, Hernandez Arellano appeared with her defense attorney and pleaded guilty in Monroe County Court (DiNolfo, J.) to one count of Falsely Reporting an Incident under N.Y. Penal Law § 240.05(1), a Class A misdemeanor. She was sentenced to a term of three years' probation. That same day, Hernandez Arellano's custody was transferred to DHS, and her immigration case was returned to the Immigration Court's active docket.

         On June 28, 2018, Hernandez Arellano's immigration attorney filed a written request for bond redetermination pursuant to 8 C.F.R. § 1236.1(d). On July 13, 2018, the IJ denied the request for bond because he “continue[d] to consider [Hernandez Arellano] a danger to the community due to her February 2018 social media postings in which she threatened to shoot students at a school.” IJ's Order dated 07/13/2018 (Docket No. 4-2, pp. 18-19 of 60) at 1-2. On August 22, 2018, Hernandez Arellano filed another bond determination request. On October 11, 2018, the IJ again denied bond for the same reasons. IJ's Order dated 10/11/2018 (Docket No. 4-2, pp. 14-15 of 60) at 1-2.

         On August 27, 2018, Hernandez Arellano appealed the IJ's first bond decision to the Board of Immigration Appeals (“BIA”).

         On November 2, 2018, Hernandez Arellano appeared with her immigration attorney before the IJ for a merits hearing on her applications for relief from removal (i.e., asylum pursuant to INA § 208(a), 8 U.S.C. § 101(a)(42), based on membership in a social group comprised of “Mexican individuals with intellectual disabilities who lack adequate family protection”; withholding of removal pursuant to INA § 241(b)(3); and protection under Article III of the Convention Against Torture (“CAT”) and 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1), 1208.18(a)(7)).

         In a decision and order dated November 2, 2018 (“IJ's Removal Order”) (Docket No. 4-3, pp. 23-47 of 48), the IJ noted that Hernandez Arellano had entered a pleading to the NTA admitting to all relevant factual allegations. IJ's Removal Order at 2. Accordingly, based on her admissions, the IJ found that removability had been established by clear and convincing evidence. Id.

         The IJ then analyzed Hernandez Arellano's applications for relief, beginning with her request for asylum. While recognizing that she was a “young person who has been found to suffer from intellectual disabilities, ” IJ's Removal Order at 7, the IJ determined that she gave “lucid testimony” and responded appropriately to questions posed by her attorney, DHS counsel, and the IJ. The IJ noted that Hernandez Arellano's attorney did not argue that her client could not meaningfully participate or assist in the preparation of her applications. Further, although Hernandez Arellano received individualized education program in school to assist with her broad-based cognitive and adaptive delays, [3] there was no evidence that she suffered from a mental illness or had received any professional psychiatric care for any mental disability. Id. at 7-9. Tho ug h h er ca se w as “ extremely sympathetic, ” id. at 9, the IJ found Hernandez Arellano had not established entitlement to asylum. First, the IJ determined that Hernandez Arellano had not adduced clear and convincing evidence that she applied for asylum within one year after her arrival in the United States, and therefore her application was untimely under INA § 208(a)(2)(B). Second, although the one-year deadline would not attach to Hernandez Arellano during her years of minority, the IJ noted that she reached age 18 in December of 2014. See IJ's Removal Order at 9-10.

         The IJ further found that even assuming that the asylum application had been timely filed, Hernandez Arellano was statutorily ineligible due to her criminal conviction. While recognizing that Hernandez Arellano ultimately pleaded guilty to a minor level offense under New York State law, the IJ found that the circumstances underpinning the conviction comprised a “particularly serious crime” and, as such, rendered her statutorily ineligible for asylum under INA § 208, withholding of removal under INA § 241(b)(3), or withholding of removal under CAT. See IJ's Removal Order at 11-14.

         Even if Hernandez Arellano were statutorily eligible to advance her asylum application, the IJ determined she nevertheless failed to carry her burden of proving she had a well-founded fear of future persecution on account of membership in a protected group. The IJ found that the delineation of the alleged social group-“Mexican individuals with intellectual disabilities who lack adequate family protection”-was not established for several reasons. While Hernandez Arellano did have intellectual disabilities, the IJ found she did not “lack adequate family protection” since the hearing testimony reflected a “willingness and a unity of this family group, including [her] stepfather to potentially return to Mexico with [her].” Also, Hernandez Arellano's grandmother recently visited the United States and, after, assessing that Hernandez Arellano had “made positive strides in her development, ” had returned to, and still was residing in, Mexico. Thus, the IJ determined, the record showed Hernandez Arellano had family support already existing in Mexico and also persons in the United States who testified that they would potentially relocate with her should she be removed. See IJ's Removal Order at 14-20.

         Finally, the IJ denied her asylum application as a matter of discretion, noting he was “left with a strong sense of unpredictability, ” id. at 20, about Hernandez Arellano's future. Because the IJ found her to be “someone of an unpredictable personality, ” he “would err on the side of caution and deny . . . [her] asylum application as an exercise of . . . discretion” even if it had been timely filed. Id. at 21.

         In light of his finding that Hernandez Arellano had failed to meet the lower burden required of asylum applicants, the IJ accordingly denied her application for withholding of removal under INA § 241(b)(3), which sets a more stringent standard. With regard to the CAT application, the IJ found that, on the present record, Hernandez Arellano did not demonstrate that it is more likely than not the Mexican government would act with intentionality to detain, harm or torture her on account of her intellectual disabilities. See IJ's Removal Order at 22-26. Since Hernandez Arellano had not established any basis for relief from or withholding of removal, the IJ ordered her removed from the United States to Mexico. Id. at 26-27. Hernandez Arellano appealed the IJ's decision to the BIA.

         By an Order dated February 22, 2019, the BIA dismissed the appeal of the IJ's July 13, 2018 order denying Hernandez Arellano's June 28, 2018 motion for a custody redetermination hearing. The BIA noted that in support of the appeal, Hernandez Arellano submitted new evidence; the BIA therefore construed the application, in the alternative, as a motion to remand. With regard to the appeal, the BIA found “no dispute” that Hernandez Arellano continued to be detained pursuant to the February 21, 2018 Form I-286, which had already been reviewed by the IJ, and the “regulations do not provide for a second, initial custody redetermination.” BIA Order Denying Bond Appeal (Docket No. 4-2, pp. 6-7 of 60) at 1 (citation omitted). Rather, the IJ “properly determined [that] . . . the procedure and requirements for subsequent bond redeterminations under 8 ...

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