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Matacua v. Frank

United States District Court, D. Minnesota

April 18, 2018

Agustin Zacarias Matacua, Petitioner,
v.
Brian Frank, Sherburne County Jail Administrator; Joel Brott, Sherburne County Sheriff; Peter Berg, Field Office Director, ICE; Kirstjen Nielsen, Secretary of the Department of Homeland Security DHS; Jefferson B. Sessions, U.S. Attorney General; U.S. Department of Homeland Security, Respondents.

          Michael D. Reif, Esq., and Robins Kaplan LLP, and Benjamin Casper Sanchez, Esq., University of Minnesota Law School, counsel for petitioner.

          Ann Bildsten, United States Attorney's Office, counsel for respondents.

          ORDER

          David S. Doty, Judge United States District Court

         This 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.

         BACKGROUND

         Zacarias 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.[1] Id. Zacarias is the family's primary provider and has maintained the same job for nearly ten years. Id. ¶ 20.

         On March 11, 2017, Zacarias was charged with driving while intoxicated in Kandiyohi County.[2] 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.

         After 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. Id.

         On July 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.

         Zacarias 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.

         In the 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 proceeding.[3]

         DISCUSSION

         I. Subject Matter Jurisdiction

         Before 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.[4] Zacarias acknowledges that ยง 1226(e) ...


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