Faces life-threatening medical issues, care he needs not available in Jamaica
By Bennett Loudon
BridgeTower Media Newswires
ROCHESTER, NY — A Jamaican man who has been held in a federal detention facility for more than five years while awaiting possible deportation has been released by a federal judge.
In a 26-page decision and order filed Jan. 16, U.S. District Court Judge Lawrence J. Vilardo ordered the release of Joseph E. Hechavarria “as soon as practicable, but no later than fourteen days from the date of this order, under reasonable and appropriate conditions of supervision.”
Joseph E. Hechavarria had been held at the Buffalo Federal Detention Facility (BFDF) in Batavia, Genesee County since 2013.
“The holding of aliens for years and years and years at Batavia without a bond hearing … while they fight to remain in the country is a continuing constitutional issue and problem,” according to Timothy W. Hoover, a partner at Hodgson Russ LLP in Buffalo, one of Hechavarria’s attorneys.
In November, Vilardo issued an order for Hechavarria’s release “unless a neutral decision-maker conducts and individualized hearing to determine whether his continued detention is justified.”
“At any such hearing, the government has the burden of demonstrating by clear and convincing evidence that Hechavarria’s continued detention is necessary to serve a compelling regulatory purpose,” Vilardo wrote.
The November decision also required that “a less restrictive alternative to detention” be considered.
The hearing was held on Nov. 6, but Vilardo found that it did not comply with his November order.
Hechavarria received conditional permanent resident status in 1987. Because of a drug arrest in 1988 that status was revoked, but he was not detained. Instead he was released under the DHS Alternatives to Detention program.
In December 2010 an arrest warrant was issued accusing Hechavarria of rape and assault in Cheektowaga. Hechavarria was picked up in New York City by DHS agents who took him to Cheektowaga to face the charges.
Hechavarria pleaded guilty to second-degree assault, but not the rape charge, and he was sentenced to three years in state prison and two years of post-release supervision.
Hechavarria was released from prison in July 2013 and immediately taken to the BFDF, where he stayed until Vilardo ordered his release.
In 2015, while still in the BFDF, Hechavarria was ordered to be deported.
Hechavarria has renal disease. He had a kidney transplant in 2008, but he continues to face life-threatening medical issues and the care he needs is not available in Jamaica
In December 2016, the U.S. Court of Appeals for the Second Circuit granted a stay of the removal order.
Hechavarria’s lawyers argued that a bond hearing should have been held within six months while the U.S. Attorney’s Office claims there is no specific time limit.
Vilardo wrote in the November decision that he “has serious doubt that the due process clause imposes a six-month bright-line rule,” but “the five-year detention here is simply too long to survive due process scrutiny.”
“The length of Hechavarria’s detention without a hearing is substantially longer than the prolonged ... detention in several recent cases where district courts have found that due process demands a bond hearing,” Vilardo wrote in the November decision.
The government essentially blamed Hechavarria for the lengthy detention by arguing that detention without a bond hearing does not violate the due process clause of the Constitution when the detainee appeals a removal order.
But Vilardo pointed out that the government has never claimed that Hechavarria filed frivolous appeals to delay deportation. The delays in the deportation case are the result of the amount of time it has taken for decisions by the Supreme Court of the United States “that increase (Hechavarria’s) likelihood of success,” Vilardo wrote in the November decision.
Hechavarria’s bond hearing was held on Nov. 6. On Nov. 14, immigration judge Philip J. Montante Jr. issued a written order denying Hechavarria’s request for bond.
The U.S. Attorney’s Office told Montante that Hechavarria had been convicted of assault for cutting his girlfriend and she also accused him of having non-consensual intercourse with her. Government lawyers also claimed that Hechavarria went to New York City to avoid the charges in Cheektowaga, which shows he would be a flight risk.
Actually, Hechavarria sought and received permission from officials in the Alternatives to Detention program to travel to New York City, according to documents his lawyers provided to Montante.
Vilardo rule that Montante did not apply the “clear and convincing evidence standard” in reaching his decision. And Montante did not consider less restrictive alternatives to detention, Vilardo wrote in his Jan. 16 decision.
“The clear and convincing standard requires the evidence to demonstrate that a factual contention is ‘highly probable.’ And under no fair reading of (Montante’s) opinion could it be said that (Montante) determined that it was ‘highly probable’ that detention was necessary,” Vilardo wrote.
“Whether or not the (Montante) applied the correct burden of proof is ultimately irrelevant, however, because there is absolutely no doubt that he failed to consider any plausible, less restrictive alternative to continued detention as required by this Court’s prior order,” Vilardo wrote.
The government has the responsibility to prove alternatives to detention would be ineffective.
“Without a doubt, that did not happen here,” Vilardo wrote.
