Singh v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

BALJINDER SINGH,

Petitioner,

v. 19-CV-732

DECISION AND ORDER

WILLIAM P. BARR,

Attorney General;

THOMAS FEELEY,

Field Officer Director for Detention and

Removal, Buffalo Field Office, Bureau of

Immigration and Customs Enforcement;

JEFFEREY SEARLS,

Facility Acting Director of Buffalo Federal

Detention Facility,

Respondents.

On June 7, 2018, the pro se petitioner, Baljinder Singh, crossed the fence

separating the United States and Mexico near Otay Mesa, California. Docket Item 1 at

5; Docket Item 4 at 2. That same day, a border patrol agent found him not far from

there. Docket Item 4 at 2; Docket Item 1 at 5. The Department of Homeland Security

(“DHS”) has detained Singh since then—that is, for about fifteen months. Docket Item 1

at 5. He now petitions this Court for a writ of habeas corpus, seeking release from

detention. Docket Item 1.

For the following reasons, Singh’s petition is denied.

BACKGROUND

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

Other facts, provided by Singh, are undisputed.

I. IMMIGRATION HISTORY AND TIES TO THE UNITED STATES

Singh is a twenty-year-old man who is a citizen and native of India. Docket Item

4 at 2; Docket Item 3-2 at 1. He “left his country because he had a fear of persecution”

from the “Congress Party Worker’s” due to his religion and political opinion. Docket

Item 1 at 5. The “Congress Party Worker’s” twice “attacked and threat[e]ned” Singh. Id.

Police and government officials “turned a complete blind eye to his complaints and gave

no help, leaving [Singh] no other option than to fle[e] from India to save his life.” Id.

Singh says that an unspecified non-profit organization “and some family friends and

relatives in the United States” have “offered to support him while he . . . pursue[s] and

seeks” asylum status. Id.

After Singh crossed the border and was arrested, he was transferred to a border

patrol station where he claimed “credible fear of returning back to his home country.”

Docket Item 3-2 at 2-3 He was “advised of his right to speak with a Consular Official

from India,” but he “stated he would like to speak with an official at a later time.” Id. at 3.

II. REMOVAL PROCEEDINGS

On August 28, 2018, DHS charged Singh with being subject to removal. Docket

Item 4 at 2-3.

On January 2, 2019, an immigration judge (“IJ”) determined that based on

Singh’s admissions, his removal was “established by clear, convincing and unequivocal

evidence.” Docket Item 3-2 at 18. With respect to Singh’s application for asylum,

withholding, and relief under the U.N. Convention against Torture, the IJ had set

December 14, 2018, as a deadline, but as of January 2, 2019, Singh “still [did] not have

that application.” Id. at 19. Therefore, the IJ “deemed abandoned and dismissed for

lack of prosecution” Singh’s asylum claim and other requests for discretionary relief

from removal. Id.

Singh appealed that decision to the Board of Immigration Appeals (“BIA”) on

February 4, 2019, Docket Item 4 at 4, and on June 11, 2019, the BIA denied the appeal,

Docket Item 3-2 at 22-23. The BIA explained that “[a]t the removal hearing on

December 4, 2018, [Singh] was provided with a Form I-589 and directed to file it with

the Immigration Court on or before December 14, 2018.” Id. at 22. Although Singh

filled out the form, he said he was directed by an attorney not to submit it. Id. The BIA

determined that “the [IJ] properly concluded that [Singh] had abandoned his opportunity

to apply for asylum, withholding of removal, and protection under the Convention

Against Torture.” Id. 22-23.

Singh has not asked the Second Circuit to review the BIA’s decision. Docket

Item 4 at 4. His deadline for doing so was July 11, 2019. Id.; see 8 U.S.C.§ 1252(b)(1)

(“The petition for review must be filed not later than 30 days after the date of the final

order of removal”).

Since Singh’s final order of removal, “DHS has contacted the Consulate of India

to secure travel documents for [his] removal.” Docket Item 4 at 5. “There are no

institutional bars to Singh’s removal.” Id.

III. DETENTION-RELATED PROCEEDINGS

On September 4, 2018, DHS determined that it would keep Singh in custody

pending a final administrative determination in his immigration proceeding. Docket Item

4 at 3. Singh requested a hearing before an IJ and release on bond. Id. A bond

hearing was scheduled for November 13, 2018, but on that date, Singh’s attorney failed

to appear and the hearing was rescheduled for December 4, 2018. Id.

On November 29, 2018, Singh was transferred to the Buffalo Federal Detention

Facility in Batavia, New York. Id. at 4. On December 4, 2018, an IJ held the scheduled

bond hearing, id., and on December 6, 2018, the IJ issued a written order denying “the

request for a change in custody status . . . pursuant to 8 CFR 236.1(c).” Docket Item 3-2

at 15. The IJ determined that Singh presented a risk of flight because (1) he has no

close family ties, (2) he has no bank accounts, (3) he has no real or personal property,

(4) he has no fixed address, and (5) he used a smuggler to enter the United States. Id.

Singh did not appeal the IJ’s order. Docket Item 4 at 4.

On June 5, 2019, Singh filed this petition for a writ of habeas corpus seeking

release from his detention. Docket Item 1. On August 5, 2019, the government

responded. Docket Items 3-6. Singh has not replied, and his time to do so now has

expired. See Docket Item 2.

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 Singh is validly detained under 8

U.S.C. § 1231(a). Docket Item 5 at 7-10.1 Docket Item 10 at 5. Singh makes several

arguments to the contrary. Docket Item 1 at 7, 16. First, he argues that “his detention

violates § 1226(a) without a proper bond hearing.” Id. at 7. Second, he argues that his

“ongoing detention” is not justified by individualized findings made in “proceedings

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

Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (quoting Shaughnessy v. United States

ex. rel Mezei, 345 U.S. 206, 212 (1953)). See id. at 7, 16. Specifically, he argues that

“[t]o justify [his] ongoing detention, due process requires that the government establish,

at an individualized hearing before a neutral decision maker, that [his] detention is

justified by clear and convincing evidence of flight risk or danger, even after

consideration whether alternatives to detention could sufficiently mitigate that risk.” Id.;

see also id. at 7 (Singh “argues that his prolonged detention more than eleven months

without a meaningful review of his detention . . . violates his” procedural due process

rights); id. at 9-10. Third, Singh argues that his “prolonged detention more than six

months violates his right to substantive due process.” Id. at 7; see also id. at 9. Fourth,

he argues that the “government’s categorical denial of bail to certain non-citizens

violates” the Excessive Bail Clause. Id.

1 The government filed a motion to dismiss Singh’s petition. Docket Item 3. In its

“Notice of Motion,” the government claims “that the Court lacks jurisdiction and fails to

state a claim pursuant to 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.”

Id. But in its memorandum of law, the government fails to clearly articulate its reasoning

regarding that jurisdictional claim. See Docket Item 5. In any event, that motion is

denied as moot.

Because Singh 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).

I. 8 U.S.C. § 1226(a)

Singh contends that “his detention violates § 1226(a) without a proper bond

hearing.” Docket Item 1 at 7. Although Singh may have been detained under 8 U.S.C.

§ 1226(a) when he filed his petition, the BIA now has ruled on his appeal of his removal

order, and Singh has not sought review of that decision. Therefore, he now is detained

under 8 U.S.C. § 1231, see Hechavarria v. Sessions, 891 F.3d 49, 54-55 (2d Cir. 2018),

and his detention cannot violate § 1226(a).

II. DUE PROCESS CLAUSE

The Fifth Amendment’s Due Process Clause prohibits 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, 533 U.S. at 690.

The Supreme Court “has held that the Due Process Clause protects individuals

against two types of government action.” United States v. Salerno, 481 U.S. 739, 746

(1987). “So called ‘substantive due process’ prevents the government from engaging in

conduct that ‘shocks the conscience,’ . . . or interferes with rights ‘implicit in the concept

of ordered liberty.’” Id. (internal citations omitted). “When government action depriving

a person of . . . liberty . . . survives substantive due process scrutiny, it must still be

implemented in a fair manner.” Id. “This requirement has traditionally been referred to

as ‘procedural’ due process.” Id.

A. Substantive Due Process

Singh argues that his “prolonged detention more than six months violates his

right to substantive due process.” Docket Item 1 at 7. In fact, he has now been

detained for about fifteen months. There may be a “point at which detention in a

particular case might become excessively prolonged, and therefore punitive, in relation

to Congress’ regulatory goal.” Salerno, 481 U.S. at 747 n.4. Nevertheless, this Court

cannot say that fifteen months of detention necessarily violates due process. See

Sanusi v. I.N.S., 100 F. App’x 49, 51 (2d Cir. 2004) (summary order) (determining that

six-year detention of excludable alien did not violate due process).

As noted above, 8 U.S.C. § 1231 governs Singh’s detention. In Zadvydas, the

Supreme Court determined that § 1231 “limits an alien’s post-removal-period detention

to a period reasonably necessary to bring about that alien’s removal from the United

States.” 533 U.S. at 689. “Because the Zadvydas Court set forth this [limit] in order to

prevent § [1231] from violating the Due Process Clause, . . . detention of an alien [after

that point] not only violates § [1231], it also violates the Due Process Clause.” Wang,

320 F.3d at 146. Conversely, if detention is valid under Zadvydas, it cannot violate

substantive due process. See id.; see also Zadvydas, 533 U.S. at 699.

Section 1231 “addresses immigrants in the ‘removal period,’ the term used in the

statute to describe the 90-day period following an order of removal during which ‘the

Attorney General shall remove the alien.’” Hechavarria, 891 F.3d at 54 (quoting 8

U.S.C. § 1231(a)(1)(A)). That statute explicitly defines the beginning of the removal

period as occurring “on the latest of the following:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay

of the removal of the alien, the date of the court’s final order.

(iii) If the alien is detained or confined (except under an immigration

process), the date the alien is released from detention or

confinement.”

Id. at 54-55 (quoting 8 U.S.C. § 1231(a)(1)(B)). After the ninety-day removal period,

“the Government ‘may’ continue to detain an alien who still remains here or release that

alien under supervision.” Zadvydas, 533 U.S. at 683 (quoting § 1231(a)(6)). During the

first six months of an alien’s § 1231(a) detention pending removal, the detention is

“presumptively reasonable.” Id. at 701; see also Akinwale v. Ashcroft, 287 F.3d 1050,

1052 n.3 (11th Cir. 2002) (and cases cited therein) (“presumptively reasonable ‘[six]-

month period’ for detention pending removal . . . commences at the beginning of the

removal period.”).

Singh’s removal period began on June 11, 2019, the day his removal order

became administratively final. See Docket Item 4 at 4-5; see also 8 U.S.C.

§ 1231(a)(1)(B)(i). The government does not argue that Singh’s removal period was

suspended under 8 U.S.C. § 1231(a)(1)(C).2 See Docket Item 5. Therefore, Singh’s

2 Under 8 U.S.C. § 1231(a)(1)(C):

The removal period shall be extended beyond a period of 90 days and the

alien may remain in detention during such extended period if the alien fails

or refuses to make timely application in good faith for travel or other

documents necessary to the alien's departure or conspires or acts to

prevent the alien's removal subject to an order of removal.

removal period expired ninety days later—on September 9, 2019. But his period of

“presumptively reasonable” detention pending removal will not expire until about three

months after that—that is, on December 11, 2019.

Moreover, the government has advised that there “are no institutional bars to

Singh’s removal” and that DHS removes “hundreds of aliens to India” each year.

Docket Item 4 at 5. In light of that data and without any indication that his case is

unique, Singh cannot overcome the presumption that his detention is reasonable and

that his removal remains reasonably foreseeable. Because Singh’s detention has not

yet violated § 1231(a) as interpreted by Zadvydas, it does not violate his substantive

due process rights. See Wang, 320 F.3d at 146.

B. Procedural Due Process

Singh also argues that his ongoing detention violates his right to procedural due

process. Docket Item 1 at 7, 16. “[G]overnment detention violates [the Due Process]

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.’” Zadvydas, 533 U.S. at 690. (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). At the same time, Congress

has “broad power over naturalization and immigration, [permitting it to] make[] rules that

would be unacceptable if applied to citizens.” Demore v. Kim, 538 U.S. 510, 521 (2003)

(quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)). The Due Process Clause is not

offended by the mandatory detention of aliens for the “brief period necessary for their

removal proceedings,” id. at 513 (emphasis added), but a detained alien “could be

entitled to an individualized determination as to his risk of flight and dangerousness if

the continued detention bec[omes] unreasonable or unjustified.” id. at 532 (Kennedy, J.,

concurring).

Singh is no longer detained pending his removal proceedings, however.

Therefore, “[t]o the extent that [Singh] previously may have had a cognizable due

process argument [when he was detained] under [§ 1226], that claim has been

rendered moot.” Wang, 320 F.3d at 147. Now that Singh’s removal proceedings are

complete and there are “no remaining barriers preventing [his] immediate removal,”

Hechavarria, 891 F.3d at 57, the government must be given a reasonable period of time

to “bring about [his] removal from the United States” while he is detained. See

Zadvydas, 533 U.S. at 689; see also Demore, 538 U.S. at 521.

This Court has determined that § 1231(a)(6) requires an alien to receive a bond

hearing at which the government must prove by clear and convincing evidence that the

alien is a danger or a flight risk to permit continued custody after 180 days of § 1231(a)

custody. Senor v. Barr, 2019 WL 3821756, at *4 (W.D.N.Y. Aug. 15, 2019); see also

Guerrero-Sanchez v. Warden York Cty Prison, 905 F.3d 208, 224 (3d Cir. 2018)

(same); Diouf v. Napolitano, 634 F.3d 1081, 1092 (9th Cir. 2011) (same). But Singh

has not been detained under § 1231 for that long yet. Therefore, Singh’s detention

does not violate the implicit bond hearing requirements of § 1231(a)(6) or his right to

procedural due process.

III. EXCESSIVE BAIL CLAUSE3

Singh argues that the “government’s categorical denial of bail to certain non-

citizens violates” the Excessive Bail Clause. Docket Item 1 at 16. But Singh lacks

standing to adjudicate that claim because he was not categorically denied bail.

“An important component of the Article III jurisdictional limit of federal courts to

deciding ‘cases’ or ‘controversies’ is standing.” All. for Envtl. Renewal, Inc. v. Pyramid

3 The government argues that the Eighth Amendment does not apply to civil

confinement. Docket Item 5 at 10-11. This Court disagrees. “[T]he Bail Clause may be

implicated in civil deportation proceedings.” Browning-Ferris Indus. of Vt., Inc. v. Kelco

Disposal, Inc., 492 U.S. 257, 263 n.3 (1989). This Court addressed this issue in

Sankara v. Barr, 2019 WL 1922069, at *9 n.9 (W.D.N.Y. Apr. 30, 2019). Moreover, the

government’s argument runs contrary to the Supreme Court’s opinion in Austin v.

United States, 509 U.S. 602, 608-09 (1993). It is true that “[s]ome provisions of the Bill

of Rights are expressly limited to criminal cases.” Id. at 607. But “the text of the Eighth

Amendment includes no similar limitation” with respect to the Excessive Fines Clause

and the Excessive Bail Clause. Id. at 608. “Nor does the history of the Eighth

Amendment require such a limitation.” Id. At the time our nation was founded,

defendants in civil actions could be arrested and required to post bail to ensure their

appearance for resolution of the civil claims. See Ryan v. U.S. Immigration and

Customs Enf’t, 382 F. Supp. 3d 142, 155 (D. Mass. 2019) (“In England, for many

centuries prior to the founding of the United States, civil litigants commenced their suits

by having a civil defendant arrested.”). And courts in this country have long recognized

that excessive bail clauses apply to these civil arrests. See, e.g., Jones v. Kelly, 17

Mass. 116, 116 (1821) (applying Massachusetts Declaration of Rights Article 26)

(“[P]arties complaining of wrongs of any kind may allege their damages, and demand

sureties to any amount. When excessive bail is demanded, it is a proper case for the

interposition of this Court.”).

Crossgates Co., 436 F.3d 82, 85 (2d Cir. 2006). To establish standing, a party must

allege (1) an “injury in fact,” (2) “a causal connection between the injury and the conduct

complained of”; and (3) a likelihood “that the injury will be redressed by a favorable

decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations

omitted). In this case, Singh’s injury—the denial of his liberty—does not bear “a causal

connection” to “the conduct complained of.” See id. Singh had a bond hearing where

an IJ denied bail based on individualized findings. Therefore, regardless of whether

Singh is correct that the “government’s categorical denial of bail to certain non-citizens

violates the right to bail encompassed by the Eighth Amendment,” Docket Item 1 at 16,

the government did not categorically deny him bail. Therefore, Singh’s injury lacks a

causal connection to the conduct complained of, and he lacks standing to bring this

claim.

Pro se submissions “should be read ‘to raise the strongest arguments they

suggest.’” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v.

Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). Read liberally, the petition alleges that

Singh’s individual denial of bail also violates the Excessive Bail Clause. Even when

“there is no absolute federal constitutional right to bail[,] . . . once a [government]

provides for bail,” the Eighth Amendment “impose[s] certain limitations on the

[adjudicator’s] discretion to grant or refuse bail.” Brown v. Wilmot, 572 F.2d 404, 405

(2d Cir. 1978). Indeed, the Second Circuit has held that there is “no constitutional

distinction between requiring excessive bail and denying bail altogether in the absence

of legitimate reasons.” United States ex rel. Goodman v. Kehl, 456 F.2d 863, 868 (2d

Cir. 1972).

To establish that an individualized denial of bail violates the Excessive Bail

Clause, the detainee must show “that there is no rational basis in the record for the

denial of bail.” Finetti v. Harris, 609 F.2d 594, 601 (2d Cir. 1979);4 see also Serrano-

Vargas v. Lowe, 2019 WL 3003382, at *4 (M.D. Pa July 10, 2019) (applying Finetti to

IJ’s decision to deny bond); Chajchic v. Rowley, 2017 WL 4401895, at *5 (M.D. Pa. July

25, 2017) (same). Here, Singh has offered nothing more than a conclusory allegation

that the IJ violated his rights under the Excessive Bail Clause. See Danylocke v.

Dalsheim, 662 F. Supp. 961, 963 (S.D.N.Y. 1987), aff’d, 842 F.2d 1287 (2d Cir. 1988).

He “adds nothing of substance to rebut the presumption of validity that [this Court] must

give to the [IJ’s] decision.” Id. at 964. Accordingly, this Court “decline[s] to review the

. . . record” to determine whether there is a rational basis for denial of bail. See id.

Singh’s individualized Excessive Bail Clause claim fails.

4 This test is rooted in the “considerations of comity and federalism” that apply

when reviewing state court denials of bail, see Finetti v. Harris, 609 F.2d 594, 601 (2d

Cir. 1979)—considerations that do not apply with respect to immigration detention by

the federal executive. Nevertheless, “[i]n the exercise of its broad power over

naturalization and immigration, Congress regularly makes rules that would be

unacceptable if applied to citizens.” Demore v. Kim, 538 U.S. 510, 521 (2003) (quoting

Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)). Therefore, there is good reason to apply

this lenient standard here—at least with respect to a detainee like Singh who was

“merely on the threshold of initial entry” into this country when DHS encountered and

detained him. United States ex rel. Kordic v. Esperdy, 386 F.2d 232, 235 (2d Cir. 1967)

(quoting Leng May Ma v. Barber, 357 U.S. 185, 187 (1958)); see Trump v. Hawaii, 138

S. Ct. 2392, 2420 (2018) (applying rational basis review to uphold policy regarding

admission and exclusion of foreign nationals).

CONCLUSION

For the foregoing reasons, Singh’s petition for a writ of habeas corpus, Docket

Item 1, is DENIED without prejudice. The government’s motion to dismiss, Docket Item

3, is DENIED as moot.

SO ORDERED.

Dated: September 16, 2019

Buffalo, New York

s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE