Rasel v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MOHAMMAD RASEL,

Petitioner,

v. 19-CV-458

DECISION AND ORDER

WILLIAM BARR;

THOMAS FEELEY,

Field Office Director for Detention and

Removal, Buffalo Field Office, Bureau of

Immigration and Customs Enforcement;

JEFFREY SEARLS,

Facility Acting Director Buffalo Federal

Detention Facility,

Respondents.

On June 19, 2018, a border patrol agent found the pro se petitioner, Mohammad

Rasel, in Texas not far from the international border between the United States and

Mexico. He had crossed the border the previous day, and he claimed that he was

fleeing political persecution in Bangladesh.

The Department of Homeland Security (“DHS”) has detained Rasel since that

border patrol agent found him nearly fifteen months ago. He now petitions this Court for

a writ of habeas corpus, seeking release from his detention. For the following reasons,

Rasel’s petition is denied.

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 Rasel, are undisputed.

IMMIGRATION HISTORY, ASYLUM APPLICATION, AND REMOVAL

PROCEEDINGS

Rasel is a thirty-one-year-old man who is a citizen and native of Bangladesh.

Docket Item 1 at 3; Docket Item 10-1 at 2. He came to the United States “seeking

refuge and a better future.” Docket Item 1 at 3. His cousin is a citizen of the United

States who lives in Brooklyn, New York, with a wife and two children, all United States

citizens. Docket Item 1 at 33.

DHS is not certain exactly where or when Rasel entered the United States, but

he did so from Mexico on or about June 18, 2018. Docket Item 10-1 at 2. The next

day, a border patrol agent found Rasel in the Rio Grande Valley and placed him in

detention. Id. On August 7, 2018, an asylum officer concluded that Rasel had

established a credible fear of persecution in Bangladesh because of his political opinion.

Id.

REMOVAL PROCEEDINGS

On August 29, 2018, DHS began removal proceedings against Rasel. Id. at 3.

According to an immigration judge, on November 14, 2018, “by and though his counsel[,

Rasel] admitted to the facts and allegations in the Notice to Appear and conceded

removal.” Docket Item 10-2 at 17. The immigration judge gave Rasel until November 1,

2018, to file an application for asylum and withholding of removal, but Rasel did not do

so. Id. After the government moved to “deem the request for relief abandoned and

dismissed for lack of prosecution,” the immigration judge held a hearing on November

14, 2018, and determined that Rasel did not show “good cause” for missing the

deadline. Id. at 17-18. Therefore, the immigration judge ordered Rasel removed to

Bangladesh. Id. at 18.

The Board of Immigration Appeals (“BIA”) denied Rasel’s appeal on April 30,

2019. Id. at 20-21. On May 10, 2019, DHS sent a letter to the Embassy of the People’s

Republic of Bangladesh requesting that it provide Rasel and DHS with a travel

document within thirty days authorizing Rasel to return to that country. Id. at 22-23.

On May 16, 2019, Rasel filed a petition for review of the BIA’s decision with the

Second Circuit. Petition, Rasel v. Barr, No. 19-1433 (2d Cir. May 16, 2019). The

Second Circuit granted Rasel’s motion for a stay of removal on July 8, 2019. Motion

Order, Rasel v. Barr, No. 19-1433 (2d Cir. July 8, 2019). Rasel’s petition remains

pending before the Second Circuit.

DETENTION-RELATED PROCEEDINGS

On August 15, 2018, DHS determined that Rasel was detained under 8 U.S.C.

§ 1226(a) and that his detention would continue pending a final administrative decision

in his case. Id. About three months later, an immigration judge denied Rasel’s request

under 8 C.F.R. § 236.1(c) for a change in custody. Docket Item 10-2 at 13.1 Rasel later

1 The government has submitted a declaration from Brandon M. Smith, a

deportation officer employed by DHS, Docket Item 10-1. Smith declares that an

immigration judge “also held Petitioner’s bond hearing on October 2, 2018.” Id. at 4.

But Smith does not cite any pages in the DHS file, Docket Item 10-2, supporting that

statement. This Court has reviewed the file and cannot find evidence of any bond

hearing other than the custody change request that was denied on October 23, 2018.

requested that he be released on humanitarian parole. On February 5, 2019, a DHS

agent denied that request. Docket Item 10-2 at 19.

On June 10, 2019, DHS told Rasel that it would review his custody status on July

19, 2019. Docket Item 10-1 at 6; Docket Item 10-2 at 25. More specifically, DHS

advised Rasel that “[r]elease . . . is dependent on your demonstrating by ‘clear and

convincing evidence’ that you will not pose a danger to the community and will not be

a significant flight risk.” Id. (emphasis in original). And “[y]ou must also demonstrate

that a travel document is not available in the reasonable [sic] foreseeable future to effect

your removal from the United States.” Id.

On July 25, 2019, after its review of Rasel’s custody status, DHS issued a

“Decision to Continue Detention.” Docket Item 10-2 at 26-27. In its decision, DHS

found that Rasel has

limited education, familial support, and employment prospects. [Rasel]

entered the United States without proper legal documents or a valid entry

document and admitted to illegally crossing the international boundary

without being inspected by an Immigration Officer. Given these factors,

[Immigration and Customs Enforcement (“ICE”)] considers that [Rasel] may

pose a risk of flight.

Id. at 27.

In the meantime, Rasel filed a petition for a writ of habeas corpus with this Court

on April 8, 2019. Docket Item 1. On August 2, 2019, the government responded,

Docket Items 10, 11; and on August 15, 2019, Rasel replied, Docket Item 12.

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 Rasel is validly detained under 8

U.S.C. § 1226(a) and that his “constitutional rights have [not] been violated.” Docket

Item 10 at 5. Rasel makes two arguments to the contrary. Docket Item 1 at 8. First, he

argues that his prolonged 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, 694 (2001) (quoting Shaughnessy v.

United States ex. rel Mezei, 345 U.S. 206, 212 (1953)). See id. Second, he argues that

the “government’s categorical denial of bail to certain non citizens violates” the

Excessive Bail Clause. Id.

Because Rasel 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. PROCEDURAL DUE PROCESS

Rasel 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.” Docket Item 1 at 8.

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. “[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 Mezei, 345 U.S. at

212 (“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.”). 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).

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). “As the first step, the Court considers whether the alien’s

detention has been unreasonably prolonged.” Id. “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.

In this case, even assuming that Rasel’s detention is unreasonably prolonged,

the government has not violated his procedural due process rights. “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 lead to the conclusion that Rasel’s due process rights

have not been violated because of the § 1226(a) bond hearing that he received.

A. The Private Interest Affected

Rasel’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). Rasel 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. Here, however, his interest “is not liberty in the abstract, but liberty in the

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

original). In that regard, the Second Circuit has stayed Rasel’s removal in light of its

review of the BIA’s removal decision, and he therefore is being denied his freedom

while he litigates his “right ‘to stay and live and work in this land of freedom.’” Landon v.

Plasencia, 459 U.S. 21, 34 (1982) (quoting Bridges v. Wixon, 326 U.S. 135, 154

(1945)).

Other than his cousin, who is a United States citizen and who has offered Rasel

a place to live, Rasel’s petition provides little information about any ties to the United

States that strengthen his interest in being free from detention in this country as

opposed to being free from detention elsewhere. Cf. id. (losing “the right to rejoin

[one’s] immediate family [is] a right that ranks high among the interests of the

individual”). And because Rasel was in the United States for only one day before the

border patrol found him, he is someone “who has entered the country clandestinely, and

who has been here for too brief a period to have become, in any real sense, a part of

our population, before his right to remain [was] disputed.” Yamataya v. Fisher, 189 U.S.

86, 100 (1903). See Docket Item 10-1. Nevertheless, because of Rasel’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,”

Joseph v. Barr, 2019 WL 3842359, at *8 (W.D.N.Y. Aug. 15, 2019) (quoting Fremont v.

Barr, 2019 WL 1471006, at *6 n.7 (W.D.N.Y. Apr. 3, 2019)), the Court presumes that

Rasel has a substantial interest in release from detention in the United States. And that

interest is elevated given Rasel’s claims of persecution in his home country of

Bangladesh.

B. The Government’s Interests at Stake

The government may have several interests in detaining Rasel. First, because a

DHS border agent found Rasel on the border between the United States and Mexico

within a day of when he crossed the territorial boundary, his detention implicates the

government’s interest in managing who may enter the country. Furthermore, the

government may have interests in preventing risk of Rasel’s flight or his danger to the

community pending the conclusion of his immigration proceedings. This Court

addresses each of these interests in turn.

1. The Government’s Interest in Controlling Admission to the

United States

When analyzing the process due to noncitizens, there is a relevant “distinction

between an alien who has effected an entry into the United States and one who has

never entered.” Zadvydas, 533 U.S. at 693. After all, if release from physical

confinement means that noncitizens who have never “entered” our country “be released

into American society,” Chi Thon Ngo v. I.N.S., 192 F.3d 390, 394 (3d Cir. 1999)

(quoting Barrera-Echavarria v. Rison, 44 F.3d 1441, 1448 (9th Cir. 1995)), release may

“‘ultimately result in our losing control over our borders,’” id. (quoting Jean v. Nelson,

727 F.2d 957, 975 (11th Cir. 1984)). Therefore, the nature of protection under the Due

Process Clause “may vary depending upon [a noncitizen’s] status and circumstance.”

Zadvydas, 533 U.S. at 694. As the Second Circuit once explained:

A “parolee,” even though physically in the country, is not regarded as having

‘entered’ and thus has not acquired the full protection of the Constitution. If

he is required to leave the United States, he is being excluded, not expelled.

. . . Conversely, an alien whose initial physical presence here was illegal,

but whose presence is recognized as an “entry” in law, is said to be subject

to expulsion, not exclusion. He is entitled to “additional rights and privileges

not extended to those in the former category who are ‘merely on the

threshold of initial entry.’” [Leng May Ma v. Barber, 357 U.S. 185,] 187

[(1958)].

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

Rasel has a paradoxical argument that because he was an “illegal entrant,” he

may be “accorded many more procedural and substantive rights than aliens who

properly petition for entry” at a port of entry. See Augustin v. Sava, 735 F.2d 32, 36

n.11. In other words, government’s interest in controlling his admission to the country is

lessened because, in fact, he did enter the country. But this heightened status based

on circumstance is reserved for those noncitizens who entered this country illegally and

then spent some time becoming part of the community. In contrast, Rasel was spotted

along the border within a day of entering the United States. So he is someone “who has

entered the country clandestinely, and who has been here for too brief a period to have

become, in any real sense, a part of our population, before his right to remain [was]

disputed.” Yamataya, 189 U.S. at 100. Stated another way, Rasel was “‘merely on the

threshold of initial entry’” when he was first detained. Kordic, 386 F.2d at 235 (quoting

Leng May Ma, 357 U.S. at 187. Therefore, the government continues to maintain a

strong interest in controlling Rasel’s admission to this country; in fact, the government

has a heightened interest that is quite similar to that when it detains someone at a port-

of-entry.

2. The Government’s Other Interests in Detention

The government may have other strong interests in Rasel’s detention. “The

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

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

C. The Risk of Erroneous Deprivation of Rasel’s Interests Through the

Procedures Used

There is a serious risk of erroneous deprivation of Rasel’s liberty interests from

the procedures used thus far. Rasel did receive an individualized custody hearing

before an immigration judge, but that hearing tilted the balance in the government’s

favor. Under the applicable regulations, “[a]n alien who seeks a change in custody

status must establish to the satisfaction of the Immigration Judge and the [BIA] that he

is not ‘a threat to national security, a danger to the community at large, likely to

abscond, or otherwise a poor bail risk.’” Matter of Hussam Fatahi, 26 I & N Dec. 791,

793 (BIA 2016) (quoting Matter of Guerra, 24 I & N 37, 40 (BIA 2006)). So even when

the government has no evidence that there is any reason to deprive an alien of his or

her liberty, the alien will remain detained because the alien bears the burden of proof.

What is more, a detained alien, often proceeding pro se, will have an extraordinarily

difficult time obtaining evidence—such as letters from the community or medical

records—that might demonstrate that he or she is not a flight risk or a danger. And

even if that were not so, proving a negative can be next to impossible.

The fact that the burden of proof is simply “to the satisfaction of the Immigration

Judge”—as opposed to a more traditional, defined standard such as by clear and

convincing evidence—only increases the likelihood of arbitrary decision-making. What

might satisfy one immigration judge might not satisfy another. And even if evidentiary

burdens can be fickle from a legal-realist perspective, at least they reflect an attempt to

remove some arbitrariness from the consideration of evidence. The standard of proof in

§ 1226(a) bond hearings, however, makes no such attempt.

D. Balancing the Competing Interests At Stake

Nevertheless, “the question remains what process is due.” Morrissey v. Brewer,

408 U.S. 471, 481 (1972). “[N]ot all situations calling for procedural safeguards call for

the same kind of procedure.” Id. “[A] balancing of the competing interests at stake” and

a comparison to similar cases dictate the appropriate process due. See Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).

There is no doubt that both Rasel’s and the government’s interests are very

strong. But even though Rasel challenges the procedures addressing his detention and

not his admission, those two actions—while distinct—are sufficiently related in this case

that the government’s interests outweigh any risk of erroneous deprivation of his liberty

associated with the procedures it has used. See Fiallo v. Bell, 430 U.S. 787, 792 (1977)

(quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)) (“‘[O]ver no

conceivable subject is the legislative power of Congress more complete than it is over’

the admission of aliens.”). This Court has recently balanced similar competing interests

for an entering alien and determined that the balance requires a searching and periodic

“‘rigorous review of [the alien’s] eligibility for’ release” based on individualized findings.

Clerveaux v. Searls, 2019 WL 3457105, at *16 (W.D.N.Y. July 31, 2019) (quoting Chi

Thon Ngo, 192 F.3d at 399). At least at this point in Rasel’s detention, this Court cannot

say that his § 1226(a) bond hearing was a facially invalid process for meeting that

standard. And Rasel does not argue that his individual § 1226(a) bond hearing,

notwithstanding its serious risk for error, failed to satisfy this standard.2 Therefore,

Rasel was provided an appropriately “meaningful opportunity to invoke the discretion of

the decisionmaker,” Laudermill, 470 U.S. at 543, and his procedural due process claim

fails.

II. EXCESSIVE BAIL CLAUSE

Rasel argues 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 8. For the following reasons, Rasel lacks standing to adjudicate this claim.

“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

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

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

2 A § 1226(a) bond hearing at which an arriving alien detainee like Rasel

received only a “grudging and perfunctory review” of his eligibility for release from

prolonged detention may not satisfy the requirements of due process. See Chi Thon

Ngo v. I.N.S., 192 F.3d 390, 398 (3d Cir. 1999). Although pro se submissions, “should

be read ‘to raise the strongest arguments that 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)), Rasel explicitly emphasizes in his reply that he is “not challenging the

Immigration Judge’s weighing of the evidence presented at his bond hearing or the

Immigration Judge’s discretionary decision to deny bond but rather asserts that the

procedures that bond hearing followed were constitutionally and statutorily infirmed.”

Docket Item 12 at 3. Although he mentions a statutory claim in his reply, this Court

finds no such claim in his petition. See Docket Item 1.

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

decision.” Lujan v. Defenders of Wildlife, 503 U.S. 555, 560 (1992) (internal citations

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

connection” to “the conduct complained of.” Id. Rasel does not deny that he had a bond

hearing where an immigration judge denied bail based on individualized findings.

Therefore, regardless of whether he is correct in his claim 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 8, the government did not categorically

deny him bail. It denied him bail based on individualized findings at a bond hearing.

Therefore, Rasel’s injury lacks a causal connection to the conduct complained of, and

he lacks standing to bring this claim.3

3 Of course, this Court must liberally construe pro se submissions, and the

Excessive Bail Clause requires that any individualized denial of bail at least be

supported by a rational basis in the record, Finetti v. Harris, 609 F.2d 594, 601 (2d Cir.

1979). But Rasel has explicitly disclaimed any argument that he is challenging the

constitutionality of the immigration judge’s decision to deny him bail. See note 2, supra

(citing Docket Item 12 at 3).

CONCLUSION

At nearly fifteen months, Rasel’s detention likely is unreasonably prolonged. This

Court therefore expects that Rasel “will receive searching periodic” and “rigorous

review[s] of his eligibility” for release from detention to ensure that he remains free from

prolonged arbitrary imprisonment. Chi Thon Ngo v. I.N.S., 192 F.3d 390, 399 (3d Cir.

1999). If he does not, he may again seek relief. But for the foregoing reasons, the

specific claims raised in Rasel’s petition for a writ of habeas corpus are denied.

SO ORDERED.

Dated: September 9, 2019

Buffalo, New York

s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE