United States District Court, D. Minnesota
Michael D. Reif, Esq., and Robins Kaplan LLP, and Benjamin
Casper Sanchez, Esq., University of Minnesota Law School,
counsel for petitioner.
Bildsten, United States Attorney's Office, counsel for
S. Doty, Judge United States District Court
matter is before the court upon the motion for a preliminary
injunction by petitioner Agustin Zacarias Matacua. Based on a
review of the file, record, and proceedings herein, and for
the following reasons, the motion is granted.
is a citizen of Mexico who entered the United States without
inspection on May 15, 2007. Am. Pet. ¶ 1. Since that
time, he has lived continuously in the United States.
Id. Zacarias presently lives in Willmar, Minnesota
with his long-term partner, Delma Caballero Sanchez, and
their two daughters. Id. Zacarias is the family's
primary provider and has maintained the same job for nearly
ten years. Id. ¶ 20.
March 11, 2017, Zacarias was charged with driving while
intoxicated in Kandiyohi County. Id. ¶ 21. He
pleaded guilty to that offense, a gross misdemeanor, on May
1, 2017. Id. The court sentenced him to 364 days in
jail, 334 of which were stayed for two years, and two years
of supervised probation. Id.; Am. Pet. Ex. B. The
terms of his probation include abstention from alcohol, daily
call-ins, random drug and alcohol testing, educational
programming, and 30 days of electronic alcohol monitoring.
Am. Pet. ¶ 21; id. Ex. B. Immigration and
Customs Enforcement (ICE) took Zacarias into custody
immediately after his release from Kandiyohi County on May
11, 2017, and the Department of Homeland Security (DHS)
commenced removal proceedings. Am. Pet. ¶ 22.
DHS determined that he was ineligible for bond pending
removal proceedings, Zacarias requested a bond
redetermination hearing before the immigration court.
Id. Ex. L. On June 19, 2017, Immigration Judge (IJ)
Kristin W. Olmanson held a bond hearing following which the
parties submitted additional briefing and evidence.
Id. Ex. A, at 1. On June 29, 2017, IJ Olmanson
issued a written decision granting Zacarias bond in the
amount of $5, 000. Id. at 3. IJ Olmanson held that
Zacarias had met his burden of establishing that he was
neither a danger to the community nor a flight risk.
Id. at 2. She reasoned that, although drunk driving
is a dangerous crime that represents a threat to public
safety, Zacarias's conviction was an
“aberration” and that “he is not a danger
to the community.” Id. at 3. She specifically
noted that Zacarias had no previous criminal convictions or
arrests, had been law abiding since his arrest, and was in
compliance with the conditions of his probation. Id.
She also concluded that he was not a flight risk given his
ties to the community, longstanding employment, and his
appearance at criminal proceedings in Kandiyohi County.
11, Zacarias posted bond and returned to his family and his
job. Am. Pet. ¶ 25. In August, DHS appealed the IJ's
decision to the Board of Immigration Appeals (BIA) arguing
that the decision was “inconsistent with her
acknowledgment of the danger that drunk driving poses”
and thus constituted clear error. Id. Ex. C, at 4.
On January 4, 2018, the BIA issued a one-page order vacating
the IJ's decision. Id. Ex. E. The BIA concluded
that Zacarias failed to meet his burden of establishing that
he is not a danger to the community, noting the danger of
drunk driving and the fact that Zacarias's blood alcohol
was twice the legal limit. Id. Zacarias filed a
petition for writ of habeas corpus with this court on
February 16 seeking to prevent his detention. Am. Pet. ¶
28. A few days later, ICE took Zacarias back into custody.
Id. ¶ 29.
then moved for a bond redetermination hearing arguing that
his circumstances had changed since the first bond hearing
with IJ Olmanson. Id. Ex. L ¶¶ 9, 10.
Specifically, Zacarias argued that IJ Olmanson's
predictive findings that he did not pose a threat to the
community or a flight risk were substantiated by his nearly
eight months of lawful behavior and compliance with the terms
of probation. Id. IJ Ryan R. Wood denied the motion
finding that the “passage of time and [Zacarias's]
compliance with probation terms is not enough to mitigate the
seriousness and recent nature of the offense.”
Id. Ex. M, at 3. Zacarias appealed IJ Wood's
determination to the BIA, which has yet to reach a decision.
Am. Pet. ¶ 32. A merits hearing in the underlying
removal proceeding is set for May 2, 2018.
petition before this court, Zacarias argues that the BIA
violated the constitution and applicable statutes and
regulations by (1) failing to apply the proper standard of
review in its assessment of IJ Olmanson's decision; (2)
instituting a per se finding of dangerousness for DWI
offenses; and (3) improperly shifting the burden of proof
from DHS to the detainee. Zacarias now moves for a
preliminary injunction enjoining DHS from detaining him while
he awaits final determination of his removal
Subject Matter Jurisdiction
turning to the merits of the Zacarias's motion, the court
must first decide whether it has jurisdiction over this
matter. See Mohamed v. Sessions, No. 17-5331, 2017
WL 6021293, at *1 (D. Minn. Dec. 5, 2017) (“[I]f a
court determines it lacks jurisdiction over the matter, it
need not analyze the Dataphase factors.”). The
government argues that 8 U.S.C. § 1226(e) strips the
court of jurisdiction to review the underlying bond
determination because it was a discretionary decision made by
the BIA. Zacarias acknowledges that § 1226(e)