Joseph v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

SELWYN JOSEPH,

Petitioner,

v. 19-CV-565

DECISION AND ORDER

WILLIAM P. BARR,

U.S. Attorney General;

KEVIN McALEENAN,

Acting Secretary, United States

Department of Homeland Security; and

JEFFREY J. SEARLS,

Facility Director,

Buffalo Federal Detention Facility,

Respondents.

Selwyn Joseph is a citizen of Guyana who is detained while he awaits judicial

review of his final order of removal. He has been in federal immigration detention for

more than a year without an individualized hearing regarding his risk of flight or

dangerousness. On May 1, 2019, Joseph filed a pro se petition for a writ of habeas

corpus under 28 U.S.C. § 2241, challenging the validity of his detention at the Buffalo

Federal Detention Facility in Batavia, New York, Docket Item 1; on July 15, 2019, the

government responded, Docket Item 7; and on August 1, 2019, Joseph replied, Docket

Item 8.

For the reasons that follow, the Court conditionally grants Joseph’s petition.

FACTUAL BACKGROUND

The following facts, taken from the record, come largely from filings with the

United States Department of Homeland Security, Immigration and Customs

Enforcement (“DHS”). Other facts, provided by Joseph, are undisputed.

IMMIGRATION HISTORY, TIES TO THE UNITED STATES, AND CRIMINAL

PROCEEDINGS

Joseph is a thirty-two-year-old man who was born in Guyana. Docket Items 1 at

3 and 7 at 10. On March 31, 2005, Joseph lawfully entered the United States on a

nonimmigrant B2 visitor visa. Docket Item 7 at 10. His visa permitted him to remain in

the United States temporarily—until September 29, 2005—unless he was given further

authorization. Id. at 64. But Joseph did not comply with the conditions of his visa: In his

words, he “became an overstayer and has never returned to his native country.” Docket

Item 1 at 3.

In 2012, Joseph was arrested. Id. Although he originally was charged with petit

larceny, on March 3, 2014, he pleaded guilty to one count of attempted petit larceny, a

Class B misdemeanor, in a New York state court. Docket Item 7 at 53. For that charge,

a judge sentenced Joseph to seven days’ custody, thirty-five hours of community

service, and a $250 fine. Id.

In the meantime, in 2013, Joseph was arrested for possession of a forged

instrument. Docket Item 1 at 3. On March 3, 2015, Joseph was convicted after a jury

trial in a New York state court of one count of second-degree possession of a forged

instrument. Id. at 52. He was sentenced to a one-year term of imprisonment. Id.1

According to Joseph, in 2016, he again was arrested for possession of a forged

instrument. Docket Item 1 at 3. He says he was convicted and sentenced to “six

months SHOCK incarceration at the Lakeview Correctional Facility.” Id.2 DHS files

indicate that Joseph pleaded guilty to second degree possession of a forged instrument

on August 7, 2017, and that he was sentenced to a term of two to four years’

imprisonment on October 19, 2017. Docket Item 7 at 49.

REMOVAL PROCEEDINGS

On November 8, 2012, DHS agents found Joseph while he was detained in the

Nassau County Jail in East Meadow, New York, after his arrest for petit larceny. Id. at

10. “After confirming his immigration status, DHS identified Joseph as a noncitizen

amenable to removal from the United States.” Id. On November 14, 2012, DHS served

Joseph with a Notice to Appear, charging him with being subject to removal for having

remained in the United States for longer than authorized. Id. at 11. On February 25,

2016, DHS served Joseph with additional charges of removability for conviction of an

aggravated felony forgery offense. Id.

1 Joseph says he was sentenced to a term of eight months’ imprisonment for this

crime. Docket Item 1 at 3.

2 “The New York State Department of Corrections and Community Supervision

(DOCCS) administers a Shock Incarceration Program. This program provides selected

inmates a special six-month program of shock incarceration, stressing a highly

structured routine of discipline, intensive regimentation, exercise, and work therapy,

together with substance abuse treatment, education, pre-release counseling, and life

skills counseling.” New York State Department of Corrections and Community

Supervision Directive #0086, http://www.doccs.ny.gov/Directives/0086.pdf.

On March 4, 2016, an immigration judge ordered Joseph removed from the

United States to Guyana, in absentia, after Joseph failed to appear for his removal

hearing. Id. According to Joseph, he was detained in the shock incarceration treatment

program at the time of his hearing. Docket Item 1 at 3.

On October 2, 2018, the government of Guyana provided DHS with a travel

document permitting DHS to deport Joseph to that country. Docket Item 7 at 36, 38-39.

On October 19, 2019, Joseph moved to reopen his removal proceedings and requested

that an immigration judge stay his removal. Id. The immigration judge granted the stay

while he considered Joseph’s motion to reopen, id. at 37, but on November 6, 2018, the

immigration judge denied the motion to reopen, id. at 33-34.

On December 7, 2018, Joseph appealed the immigration judge’s decision to the

Board of Immigration Appeals (“BIA”), id. at 13, and, on April 23, 2019, the appeal was

denied, id. at 20-21. In the meantime, on December 12, 2018, while Joseph’s appeal

was pending before the BIA, DHS attempted to remove him from the United States. Id.

at 13. But DHS says that “he willfully refused to be removed,” and Joseph was returned

to the Buffalo Federal Detention Facility. Id.

On May 9, 2019, Joseph sought review of the BIA’s decision by the United States

Court of Appeals for the Second Circuit and requested that the Second Circuit stay his

removal. See Joseph v. Barr, No. 19-1372 (2d Cir.), Docket Items 1, 4. On July 8,

2019, a Second Circuit panel issued an order staying Joseph’s removal pending its

consideration of his claims. Order, Joseph v. Barr, No. 19-1372 (2d Cir. July 8, 2019),

Docket Item 67.

DETENTION-RELATED PROCEEDINGS

On July 16, 2018, Joseph was taken into DHS custody after his release from the

custody of the New York State Department of Corrections and Community Supervision.

Docket Item 7 at 36. On October 29 and December 21, 2018, and again on March 14,

2019, DHS provided Joseph with a notice that, among other things, “informed [him] that

his custody status has been reviewed and it has been determined that [he] will not be

released from the custody of the U.S. Immigration and Customs Enforcement (ICE) at

this time.” Id. at 13, 22-23, 25-26, 35-36. Each notice said “[t]his decision has been

made based on a review of your file and/or your personal interview and consideration of

any information you submitted to ICE’s reviewing officials.” Id.

Joseph remains detained at the Buffalo Federal Detention Facility.

CONDITIONS OF CONFINEMENT

In his petition, Joseph provides the following information about his confinement at

the Buffalo Federal Detention Facility, comparing it with the conditions in the New York

State prisons where he had served his sentences:

Petitioner, as many others, are in lockdown for about eighteen hours daily.

Petitioner is confined with another inmate, being forced to perform his

ablutions and waste eliminations with another man in the same cell. In the

penal institution Petitioner was confined in, inmates are confined to single

cells or a dorm with appropriate hygiene facilities. The penal institutions

with dorms, all have individual cubes. There are communal washrooms and

showers. There are no lockdowns, except in the case of disturbances.

Inmates have the ability to be in the recreation yards, even in the midst of

winter.

Yes, at BFDF this Petitioner’s detention is indeed meaningfully different and

stressful, compared to his New York State detention.

Docket Item 1 at 7-8. For its part, DHS submitted an affidavit from a DHS deportation

officer attesting to the following conditions of confinement at the Buffalo Federal

Detention Facility:

As a noncitizen in DHS custody, Joseph is permitted to be out of his cell

during the day and permitted to move about in the common area within his

unit in the detention facility.

Docket Item 7 at 15.

DISCUSSION

28 U.S.C. § 2241 “authorizes a district court to grant a writ of habeas corpus

whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of

the United States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28

U.S.C. § 2241(c)(3)). The government maintains that Joseph is validly detained under 8

U.S.C. § 1226(c). Docket Item 7-1 at 8. Joseph does not necessarily dispute that he is

detained under the mandatory detention provisions in that statute, Docket Item 1 at 4,

but he and the government disagree as to whether his detention under the statute

“comport[s] with the ‘fundamental fairness’ demanded by the Due Process Clause,”

Schall v. Martin, 467 U.S. 253, 263 (1984) (quoting Breed v. Jones, 421 U.S. 519, 531

(1975)). Docket Items 1 at 4, 6, 8; 7-1 at 9-11. Joseph argues that DHS has “willfully

chosen to subject [him] to enforced prolonged and languishing illegal detention,

bordering on incarceration, and has violated the laws, Constitution and treaties of the

United States, by never allowing [him] a Bond Hearing.” Docket Item 1 at 1. He also

argues that his detention has been unreasonably prolonged, id. at 6-8, and he asks this

Court to “order that a bond hearing be granted [him], before an impartial adjudicator of

facts, within fourteen days of this Court’s order,” id. at 8.

Because Joseph is proceeding pro se this Court holds his submissions “to less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404

U.S. 519, 520 (1972).

The Fifth Amendment’s Due Process Clause forbids the federal government from

depriving any “person . . . of . . . liberty . . . without due process of law.” U.S. Const.

amend. V. “Freedom from imprisonment—from government custody, detention, or other

forms of physical restraint—lies at the heart of the liberty that Clause protects.”

Zadvydas v. Davis, 533 U.S. 678, 690 (2001). “[G]overnment detention violates that

Clause unless the detention is ordered in a criminal proceeding with adequate

procedural protections . . . or, in certain special and ‘narrow’ nonpunitive

‘circumstances,’ . . . where a special justification, such as harm-threatening mental

illness, outweighs the ‘individual’s constitutionally protected interest in avoiding physical

restraint.’” Id. (internal citations omitted) (emphasis in original). Other than those

unique, special, and narrow circumstances, “[o]nly a jury, acting on proof beyond a

reasonable doubt, may take a person’s liberty. That promise stands as one of the

Constitution’s most vital protections against arbitrary government.” United States v.

Haymond, 139 S. Ct. 2369, 2373 (2019) (Gorsuch, J., announcing the judgment of the

Court and delivering an opinion).

“Aliens, even aliens whose presence in this country is unlawful, have long been

recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth

Amendments.” Plyler v. Doe, 457 U.S. 202, 210 (1982); see also Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“It is true that aliens who have

once passed through our gates, even illegally, may be expelled only after proceedings

conforming to traditional standards of fairness encompassed in due process of law.”).

The Due Process Clause is not offended by the mandatory detention of aliens for

the “brief period necessary for their removal proceedings,” Demore v. Kim, 538 U.S.

510, 513 (2003) (emphasis added), but it may be if that “continued detention bec[omes]

unreasonable or unjustified.” id. at 532 (Kennedy, J., concurring). For that reason, this

Court “has evaluated procedural due process challenges to immigration detention with a

two-step inquiry.” Hemans v. Searls, 2019 WL 955353, at *5 (W.D.N.Y. Feb. 27, 2019);

see, e.g., Clerveaux v. Searls, 2019 WL 3457105, at *3 (W.D.N.Y July 31, 2018);

Rosado Valerio v. Barr, 2019 WL 3017412, at *3 (W.D.N.Y. July 10, 2019); Fallatah v.

Barr, 2019 WL 2569592, at *3 (W.D.N.Y. June 21, 2019); Campbell v. Barr, 2019 WL

2106387, at *4 (W.D.N.Y. May 14, 2019); Sankara v. Barr, 2019 WL 1922069, at *6

(W.D.N.Y. Apr. 30, 2019); Fremont v. Barr, 2019 WL 1471006, at *4 (W.D.N.Y. Apr. 3,

2019); Hechavarria v. Sessions, 2018 WL 5776421, at *9 (W.D.N.Y. Nov. 2, 2018). “As

the first step, the Court considers whether the alien’s detention has been unreasonably

prolonged.” Hemans, 2019 WL 955353, at *5. “If it has not, then there is no procedural

due process violation.” Id. “But if it has, the Court proceeds to step two and ‘identifies

the specific dictates of due process.’” Id. (quoting Mathews v. Eldridge, 424 U.S. 319,

335 (1976)). If the government has not provided the procedural safeguards required by

the Due Process Clause to an alien subject to unreasonably prolonged detention, “then

his continued detention violates procedural due process.” Id.

I. JOSEPH’S UNREASONABLY PROLONGED DETENTION

In Demore, the Court explicitly noted that “in the majority of cases [that the Court

analyzed involving detention pending a determination of removability, detention] lasts

less than the 90 days . . . considered presumptively valid in Zadvydas.” 538 U.S. at

529. Diving even deeper, the Court noted that “in 85% of the cases in which [those]

aliens are detained . . . removal proceedings are completed in an average time of 47

days and a median of 30 days.” Id. And “[i]n the remaining 15% of cases, in which the

alien appeals the decision of the Immigration Judge to the [BIA], appeal takes an

average of four months, with a median time that is slightly shorter.” Id. Although there

is no bright-line rule in determining whether detention has become unreasonably

prolonged, see Hechavarria, 2018 WL 5776421, at *5-*6, “courts become extremely

wary” of concluding that detention is not unreasonably prolonged “[a]s detention

continues past a year.” See Muse v. Sessions, 2018 WL 4466052, at *4 (D. Minn. Sept.

18, 2018); see also Reid v. Donelan, 2019 WL 2959085, at *9-*10 (D. Mass. July 9,

2019) (“detention is likely to be unreasonable if it lasts for more than one year during

removal proceedings before the agency, excluding any delays due to the alien’s dilatory

tactics,” but “[t]his one-year period is not a bright line.”).

“[W]hen weighing the lawfulness of continued detention of an alien under the Due

Process Clause,” several factors determine whether detention is unreasonably

prolonged. Jamal A. v. Whitaker, 358 F. Supp. 3d. 853, 858-59 (D. Minn. 2019). For

example, this Court has considered “(1) the total length of detention to date; (2) the

conditions of detention; (3) delays in the removal proceedings caused by the parties;

and (4) the likelihood that the removal proceedings will result in a final order of

removal.” Hemans, 2019 WL 955353, at *6.

First and most important, courts consider the length of detention. “The total

length of the detention is the most important factor.” Reid, 2019 WL 2959085, at *9.

Joseph has been in DHS custody since July 16, 2018—more than a year and much

longer than the four-month average period contemplated in Demore. See 538 U.S. at

529; see also Jennings v. Rodriguez, 138 S. Ct. 830, 864 (2018) (Breyer, J., dissenting)

(individuals with mental illness “dangerous to themselves or to others may be confined

involuntarily . . . [with] the right to review the circumstances at least annually.”). As this

Court has noted, “courts have found detention shorter than a year to be unreasonably

prolonged as part of a procedural due process analysis.” Fremont, 2019 WL 1471006,

at *4 (and cases cited therein). Because Joseph’s detention has surpassed the one-

year period by which time “detention is likely to be unreasonable,” Reid, 2019 WL

2959085, at *9, this factor supports his argument that his detention without an

individualized hearing has been unreasonably prolonged.

Second, courts consider the conditions of detention. “Whether ‘the facility for the

civil immigration detention is meaningfully different from a penal institution for criminal

detention’ factors into the reasonableness of [Joseph’s] detention.” Jamal A., 358 F.

Supp. 3d at 860 (quoting Sajous v. Decker, 2018 WL 2357266, at *11 (S.D.N.Y. May

23, 2018)). “The more that the conditions under which the alien is being held resemble

penal confinement, the stronger his argument that he is entitled to a bond hearing.” Id.

(quoting Muse, 2018 WL 4466052, at *5).

This factor also favors a determination that Joseph’s detention has been

unreasonably prolonged. The government concedes that Joseph is detained in a “cell,”

and although the government says that he “is permitted to be out of his cell during the

day and permitted to move about in the common area within his unit in the detention

facility,” Docket Item 7 at 15, it does not dispute Joseph’s claim that he is “in lockdown

for about eighteen hours daily,” Docket Item 1 at 7. Nor does it dispute Joseph’s claim

that he must use the bathroom without privacy “with another man in the same cell.” Id.

at 7. For what it is worth, Joseph subjectively feels that his current detention is worse

than his New York State incarceration, complaining that it is “indeed meaningfully

different and stressful, compared to his New York State detention.” Id. at 8. In light of

all that, the record suggests that Joseph’s confinement at the BFDF “is

‘indistinguishable from penal confinement.’” Jamal A., 358 F. Supp. 3d at 860 (quoting

Muse, 2018 WL 4466052, at *5).

Third, courts consider whether either side is responsible for delay. The Second

Circuit has indicated that this factor weighs against finding detention unreasonably

prolonged when an alien has “‘substantially prolonged his stay by abusing the

processes provided to him,’” but not when “an immigrant . . . [has] simply made use of

the statutorily permitted appeals process.” Hechavarria v. Sessions, 891 F.3d 49, 56

n.6 (2d Cir. 2018) (quoting Nken v. Holder, 556 U.S. 418, 436 (2009)).

In this case, on March 4, 2016, after Joseph did not appear for his hearing, an

immigration judge ordered Joseph removed to Guyana. Docket Item 7 at 11. Joseph

did not appeal that decision to the BIA. See id. Instead, on October 19, 2018, after

Guyana provided Joseph’s travel documents to DHS, Joseph asked an immigration

judge to reopen his removal proceedings. Id. at 36, 38-39. On November 6, 2018, the

immigration judge denied that motion, id. at 33-34, and on December 7, 2018, Joseph

filed an appeal with the BIA, id. at 13. The BIA denied his appeal on April 23, 2019, id.

at 20-21, and on May 9, 2019, Joseph sought judicial review of the BIA’s decision,

Joseph v. Barr, No. 19-1372 (2d Cir.), Docket Item 1. Joseph now awaits a decision by

the Second Circuit.

As the government observes, “Joseph’s continued detention is largely

attributable to Joseph’s . . . own litigation strategy.” Docket Item 7-1 at 9. On the other

hand, “appeals and petitions for relief are to be expected as a natural part of the

process. An alien who would not normally be subject to indefinite detention cannot be

so detained merely because he seeks to explore avenues of relief that the law makes

available to him.” Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003) (cited in

Hechavarria, 891 F.3d at 56 n.6). Indeed,

although an alien may be responsible for seeking relief, he is not

responsible for the amount of time that such determinations may take. The

mere fact that an alien has sought relief from deportation does not authorize

the [government] to drag its heels indefinitely in making a decision. The

entire process, not merely the original deportation hearing, is subject to the

constitutional requirement of reasonability.

Id.

It is true that Joseph did not show up for his original removal hearing in 2016 and

was therefore ordered removed in absentia. And it also is true that Joseph did not

appeal that decision; instead, he collaterally attacked that removal order and sought to

reopen those proceedings. If Joseph actually received notice of the hearing and was

able to be there, his failure to show up and to timely appeal that decision may be good

reason to find that his continued detention without a hearing is reasonable. But this is

not a case where the alien “has not provided an explanation why” he failed to show up

for his removal hearing and to appeal his initial removal order. See e.g, Sankara, 2019

WL 1922069, at *7. Indeed, the reason Joseph argues that his removal proceedings

should be reopened is precisely that “he did not appear in [immigration] court because

he was incarcerated.” Docket Item 7 at 33.

What is more, the immigration judge who denied Joseph’s motion to reopen

acknowledged that if Joseph was unable to appear at his removal hearing because he

was incarcerated, then under the applicable regulations and the Immigration and

Nationality Act the removal proceeding might well need to be reopened, see id. (citing 8

C.F.R. § 1003.23(b)(4)(ii)). But the immigration judge found that Joseph provided

“insufficient evidence” that he was incarcerated at the time. Docket Item 7 at 34. The

BIA affirmed the immigration judge’s reasoning, see id. at 20-21, and whether the BIA

validly decided to do just that is the question now pending before the Second Circuit.

Given all that, this Court declines to resolve issues that overlap closely with questions

pending before the Second Circuit.

On the other hand, it is unclear why Joseph waited three months to move to

reopen his removal proceedings. Joseph has been in DHS custody since his release

from state custody on July 16, 2018, Docket Item 7 at 36, but he waited until October to

ask an immigration judge to reopen his removal proceedings. Even considering

Joseph’s pro se status, the three-month delay in asking an immigration judge to reopen

his case should count against him.

Although the immigration judge acted swiftly in denying Joseph’s motion (and

Joseph quickly appealed that decision to the BIA), the BIA then took more than four

months to decide Joseph’s appeal, and Joseph cannot be held responsible for that time.

See Ly, 351 F.3d at 272. Likewise, Joseph is not responsible for the time that his

petition has been pending before the Second Circuit. See id. So while Joseph may be

responsible for part of the delay, that part is relatively short.

The larger context—the context of what precisely is being litigated before the

Second Circuit—also factors into the analysis. Basically, the government is refusing

Joseph a hearing where he will be able to argue against his deportation. The

government has now spent about ten months litigating with Joseph over its authority to

deny him that hearing. If the Second Circuit decides that the agency abused its

discretion in denying Joseph’s motion to reopen, then the agency will find itself back at

square one: Joseph will get a hearing and additional opportunities to seek review of any

adverse decisions. On the other hand, had DHS simply not opposed the hearing that

Joseph requested and instead argued about the merits, DHS would avoid two rounds of

litigation and the additional cost of Joseph’s lengthy detention.3 In other words, the

government could have simply provided Joseph with the merits hearing he requested,

gotten it over with, and expedited this whole process, instead of choosing to litigate for

many months about its decision to deny him that hearing. If Joseph’s decision to fight

his removal cuts against him, then this factor certainly weighs against the government

and in favor of a finding that Joseph’s detention has been unreasonably prolonged.

Finally, courts consider the likelihood that the removal proceedings will result in a

final order of removal. In this case, as addressed above, Joseph did not appeal his final

order of removal directly to the BIA or to the Second Circuit. Therefore, Joseph must

first convince the Second Circuit that the agency erred in denying his motion to reopen;

3 And, at least in the federal courts, there is generally a “strong ‘preference for

resolving disputes on the merits.’” New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)

(quoting Powerserve Int’l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001)).

only if he is successful in that endeavor will he be able to make his case against

removal. Because immigration judges have “broad discretion . . . ‘to grant or deny a

motion to reopen,’” Kucana v. Holder, 558 U.S. 233, 250 (2010) (quoting 8 C.F.R.

§ 1003.2), and because Joseph must win twice to succeed, this factor weighs against

finding that Joseph’s detention has been unreasonably prolonged.

Nevertheless, after weighing all the factors, and especially the length of

detention, this Court finds that Joseph’s detention has been unreasonably prolonged.

Therefore, this Court turns to the second step of the two-part inquiry to determine what

remedy, if any, that demands.

II. THE PROCESS DUE TO JOSEPH

“The fundamental requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at 333 (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[I]dentification of the specific dictates

of due process generally requires consideration of three distinct factors,” id. at 335, “(A)

the private interest affected; (B) the risk of erroneous deprivation of that interest through

the procedures used; and (C) the governmental interest at stake,” Nelson v. Colorado,

137 S. Ct. 1249, 1255 (2017). Here, that analysis leads to the conclusion that Joseph’s

continued detention without a robust hearing fails to “comport with the ‘fundamental

fairness’ demanded by the Due Process Clause.” Schall, 467 U.S. at 263 (quoting

Breed, 421 U.S. at 531).

A. The Interests at Stake

Joseph’s interest in his freedom pending the conclusion of his removal

proceedings deserves great “weight and gravity.” Addington v. Texas, 441 U.S. 418,

427 (1979). Joseph has an obvious interest in his “[f]reedom from imprisonment—from

government custody, detention, or other forms of physical restraint.” Zadvydas, 533

U.S. at 690. Moreover, while “[t]he private interest here is not liberty in the abstract, but

liberty in the United States,” Joseph has not “concede[d] all elements that require

removal.” Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999) (emphasis in original).

Indeed, Joseph is litigating over an opportunity to present those claims to a neutral

decision maker.

Joseph’s petition provides little information about his ties to the United States that

strengthen his liberty interests in being free from detention in this country as opposed to

being free from detention in Guyana. See Landon v. Plasencia, 459 U.S. 21, 34 (1982)

(losing “the right to rejoin [one’s] immediate family [is] a right that ranks high among the

interests of the individual”). But the government does not argue that Joseph lacks any

such ties. Because of Joseph’s pro se status, and because “[t]his Court has come to

believe that no rational person would subject himself or herself to unreasonably

prolonged detention in a jail-like detention facility unless that person’s liberty interests in

remaining in the United States are quite strong,” Fremont, 2019 WL 1471006, at *6 n.7,

the Court presumes that Joseph has a substantial interest in release from detention in

the United States.

The government’s interests in detaining Joseph also may be strong. The

government argues that “the justification for 8 U.S.C. § 1226(c) [detention] is based

upon the Government’s concerns over the risks of flight and danger to the community.”

Docket Item 7-1 at 10 (quoting Demore, 538 U.S. at 531). And the government notes

that “Joseph stands convicted of . . . three crimes,” suggesting that its interest in

detaining him is based on the risk he poses of danger to society. Id. “The

government’s interest in preventing crimes by arrestees is both legitimate and

compelling.” United States v. Salerno, 481 U.S. 739, 749 (1987). In addition, general

concerns about the risk of flight highlight the government’s compelling interest in

preserving its “ability to later carry out its broader responsibilities over immigration

matters.” Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991). If Joseph’s

detention serves these legitimate and compelling ends, they “outweigh[ his]

‘constitutionally protected interest in avoiding [prolonged] physical restraint.’” Zadvydas,

533 U.S. at 690 (quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)).

B. The Risk of Erroneous Deprivation of Liberty

In light of the procedures used thus far, there is a significant risk of an erroneous

deprivation of Joseph’s liberty interests. DHS reviewed Joseph’s custody when the

government believed that he was detained under 8 U.S.C. § 1231(a). In one decision to

continue detention, DHS recited Joseph’s nonviolent offenses and concluded that he

has “shown a wanton disregard for the laws of the United States.” Docket Item 7 at 35-

36. “Due process is not satisfied, however, by rubberstamp denials based on

temporally distant offenses.” Chi Thon Ngo v. I.N.S., 192 F.3d 390, 398 (3d Cir. 1999).

“The process due even to excludable aliens requires an opportunity for an evaluation of

the individual’s current threat to the community and his risk of flight.” Id. And in its

other decisions to continue detention, DHS determined that Joseph’s detention was

warranted because he “failed to comply with ICE’s efforts to remove [him] to [his] native

country.” Docket Item 7 at 22-23, 25-26. But that does nothing more than acknowledge

that Joseph does not want to be removed pending a final decision on his case; it does

not address why detention is warranted while he fights his removal.

C. The Remedy

The Due Process Clause requires a hearing that “satisfies the constitutional

minimum of fundamental fairness,” Santosky v. Kramer, 455 U.S. 745, 756 n.8 (1982)

(internal citations omitted), with respect to whether a “special [compelling] justification

. . . outweighs ‘[Joseph’s] constitutionally protected interest in avoiding [unreasonably

prolonged] physical restraint,” Zadvydas, 533 U.S. at 690 (quoting Hendricks, 521 U.S.

at 356). To sustain the prolonged detention of an alien who has been admitted to the

country and is subject to removal proceedings, “the [g]overnment [is] required, in a ‘full-

blown adversary hearing,’ to convince a neutral decisionmaker by clear and convincing

evidence that no conditions of release can reasonably assure the safety of the

community or any person,’” Foucha, 504 U.S. at 81 (quoting Salerno, 481 U.S. at 751),

or ensure that the alien will appear for any future proceeding.4 This requires

consideration of less restrictive alternatives to detention. See id. Cf. United States v.

Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) (“When a plausible, less restrictive

alternative is offered to a” regulation burdening a constitutional right, “it is the

4 As this Court explained in Hemans v. Searls, 2019 WL 955353, at *8 n.7

(W.D.N.Y. Feb. 27, 2019), a pretrial detainee’s right to a speedy trial distinguishes the

interests supporting the evidentiary standard traditionally applied to flight risk

determinations for pretrial detention purposes from what is required after an

unreasonably prolonged immigration detention. See Santosky v. Kramer, 455 U.S. 745,

756 (1982) (quoting Addington v. Texas, 441 U.S. 418, 424 (1979)) (“clear and

convincing evidence” standard applies “when the individual interests at stake in a . . .

proceeding are both ‘particularly important’ and ‘more important than mere loss of

money’”).

Government’s obligation to prove that the alternative will be ineffective to achieve its

goals.”); see also Doherty v. Thornburgh, 750 F. Supp. 131, 139 (S.D.N.Y. 1990), aff’d,

943 F.2d 204 (“evidence is overwhelming that [alien], if released, would pose such a

substantial risk of flight that no conditions of bail could reasonably assure his surrender

for deportation.”).

Joseph’s § 1226(c) detention has been unreasonably prolonged, and § 1226(c)

does not require an individualized hearing where the government must demonstrate by

clear and convincing evidence that no conditions of release can reasonably serve the

government’s compelling regulatory interests in detaining him. See Jennings, 138 S.

Ct. at 846-47. The statute therefore is unconstitutional as applied to him, and his

continued detention violates the Due Process Clause.5

5 Joseph’s petition also seeks his immediate release because “there is no

likelihood that he will be removed to Guyana in the reasonably foreseeable future.”

Docket Item 1 at 8. “[D]etention of an alien ‘once removal is no longer reasonably

foreseeable’ . . . violates the Due Process Clause.” Wang v. Ashcroft, 320 F.3d 130,

146 (2d Cir. 2003) (quoting Zadvydas v. Davis, 533 U.S. 678, 699 (2001)). But because

Joseph “has been granted a stay of removal while his petition for review is pending”

before the Second Circuit, the clearest “impediment to his removal” is “review by [that]

Court.” Hechavarria v. Sessions, 891 F.3d 49, 57 (2d Cir. 2018). Joseph’s § 1226(c)

detention “has ‘a definite termination point’: the conclusion of removal proceedings.”

Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018) (quoting Demore v. Kim, 538 U.S.

510, 529 (2003)). And there is nothing in the record to indicate that the Second Circuit

will resolve his claims at a point beyond the reasonably foreseeable future. “Given the

fact that . . . review [of Joseph’s claims before the Second Circuit have] not been

completed, it would make no sense to” analyze the reasonableness of his detention

under the same parameters as those for “aliens who have no remaining [legal] barriers

preventing their immediate removal.” Hechavarria, 891 F.3d at 57. Therefore, to the

extent Josephs makes this substantive due process argument in favor of his immediate

release, it is denied.

CONCLUSION

For the reasons stated above, Joseph’s petition, Docket Item 1, is conditionally

GRANTED. Within fourteen days of the date of this decision and order, the

government must release Joseph from detention unless a neutral decision maker

conducts an 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 Joseph’s continued detention is necessary to serve

a compelling regulatory purpose, such as protecting against danger to the community or

risk of flight. Whether detention is necessary to serve a compelling regulatory purpose

requires consideration of whether a less restrictive alternative to detention would also

address the government’s interests. In other words, Joseph must be released unless a

neutral decision maker finds by clear and convincing evidence that no condition or

combination of conditions of release can reasonably assure Joseph’s appearance and

the safety of the community or any persons.

SO ORDERED.

Dated: August 15, 2019

Buffalo, New York

s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE