Constant v. Whitaker

ATES DIST,

FE FLED Ure.

UNITED STATES DISTRICT COURT S vA

WESTERN DISTRICT OF NEW YORK SEP 09 2019

STERN DisTRICT OF

LESLY CONSTANT,

Petitioner,

DECISION AND ORDER

V.

1:19-CV-00182 EAW

WILLIAM BARR, Attorney General!,

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

Respondent.

INTRODUCTION

Pro se petitioner Lesly Constant (“Petitioner”), an immigration detainee currently

detained at the Buffalo Federal Detention Facility in Batavia, New York, seeks a writ of

habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner argues that his continued

detention is unconstitutional and seeks immediate release, or, in the alternative, a bond

hearing before an immigration judge. (/d. at §§ 4-5). Petitioner also filed a motion to

Pursuant to Federal Rule of Civil Procedure 25(d), the Clerk of Court is directed to

substitute William Barr, Attorney General for the named Defendant, Matthew Whitaker,

Acting Attorney General. “An action does not abate when a public officer who is a party

in an official capacity dies, resigns, or otherwise ceases to hold office while the action is

pending. The officer’s successor is automatically substituted as a party.” Fed. R. Civ. P.

25(d).

= j=

appoint counsel. (Dkt. 2). For the reasons discussed below, the Petition is granted in part

and denied in part, and the motion to appoint counsel is denied as moot.

BACKGROUND

Petitioner was born in Haiti on February 6, 1983. (Dkt. 9 at J 1). When he was

three years old, he entered the United States on a B-2 visitor visa* which he overstayed,

and he has resided in the United States ever since? (Id. at § 2, 4).

On May 12, 2010, Petitioner pleaded guilty in New York State Supreme Court,

Kings County, to one count of first-degree manslaughter and one count of second-degree

attempted assault. (Dkt. 5-2 at 6-7). On June 2, 2010, Petitioner also pleaded guilty to four

counts of third-degree criminal sale of a firearm. (/d. at 8). On July 13, 2010, the state

court sentenced Petitioner to a prison term of 10 years for manslaughter, and one to three

years for attempted assault. (/d. at 6-7). Petitioner was also sentenced to five years for the

firearms charges on December 20, 2010. (d. at 8).

On April 1, 2013, Petitioner was issued a Notice to Appear (“NTA”) by the United

States Department of Homeland Security (“DHS”), charging him with being subject to

removal from the United States pursuant to the Immigration and Nationality Act (“INA”)

§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(), as an alien present in the United States

2 B-2 visitor visas are nonimmigrant visas for persons who want to enter the United

States temporarily for tourism. Visitor Visa, Bureau of Consular Affairs, U.S. Dep’t of

State, https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html (last

visited Aug. 6, 2019).

3 Respondents contend Petitioner “illegally entered the United States at an unknown

place, on an unknown date, without having been admitted or paroled after inspection by an

Immigration Officer.” (Dkt. 5-1 at J 5).

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without being admitted or paroled, and pursuant to INA § 212(a\2 8 U.S.C.

§ 1182(a)(2)(A)()(), as an alien who has been convicted of acts which constitute the

essential elements of a crime involving moral turpitude. (Dkt. 5-2 at 12). On August 5,

2016, Petitioner was charged with additional grounds of removal pursuant to 8 U.S.C.

§§ 237(a)(1)(B), 237(a)(2)(A)Gi), 237(a)(2)(C), and 237(a)(2)(A)Gii). Ud. at 15).

On July 26, 2017, an arrest warrant was issued by DHS to take Petitioner into

custody, and the next day DHS determined that Petitioner would be detained pending a

final administrative determination in his case. (/d. at 17-18). By August 7, 2017, custody

of Petitioner had been transferred from the New York State Department of Corrections and

Community Supervision (““DOCCS”) to Immigration and Customs Enforcement (“ICE”),

_ an agency within DHS, and ICE held Petitioner at the Buffalo Federal Detention Facility.*

(Id. at 21). Petitioner requested a review of the custody determination by an immigration

judge on August 7, 2017. (/d. at 18). Given Petitioner’s change of location from the

Gowanda Correctional Facility in Gowanda, New York to the Buffalo Federal Detention

Facility in Batavia, New York, DHS moved to change venue from the Immigration Court

at Napanoch, New York, to the Immigration Court at Batavia, New York. (/d. at 16, 20).

DHS’s motion was granted on August 21, 2017. Ud. at 23-25).

A removal hearing was scheduled for September 13, 2017, but Petitioner moved to

adjourn it until September 27, 2017, to give Petitioner time to prepare. (Dkt. 5-1 at § 12).

On September 27, 2017, the removal hearing was again rescheduled at Petitioner’s request

4 Petitioner alleges that he was taken into ICE custody on August 4, 2017 (Dkt. 1 at

{| 19), but the record is not clear as to the specific day his custody was transferred.

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for February 8, 2018, for a full day of trial to allow counsel for Petitioner to file an updated

country report and possibly file or amend an I-589 application.” (/d. at § 13). On February

2, 2018, Petitioner moved for a continuance of his immigration proceedings, which DHS

opposed. (Dkt. 5-2 at 28-35). Petitioner’s motion was granted; his bond hearing originally

scheduled to take place on February 2, 2018, was adjourned until February 28, 2018, and

his next trial date was set for May 24, 2018. (/d. at 36-37). On February 28, 2018,

Petitioner requested a continuance of his bond hearing in light of the issuance of Jennings

v. Rodriguez, 138 S. Ct. 830 (2018), and the bond hearing was adjourned until March 21,

2018. (Dkt. 5-1 at § 16).

On March 21, 2018, the Immigration Judge (“IJ”) denied Petitioner’s request for a

change in custody status, finding that the Supreme Court’s decision in Jennings divested

the Immigration Court of jurisdiction to grant bond. (Dkt. 5-2 at 38).

On May 24, 2018, counsel for Petitioner submitted evidence on Petitioner’s behalf.

(Dkt. 5-1 at { 19). The IJ requested an updated country report for Haiti. (/d.). The trial

was continued until July 25, 2018, and additional evidence was submitted by Petitioner as

well as a cross-examination of Petitioner conducted. (/d. at § 20). The trial was continued

until September 20, 2018, for further proceedings. (Id).

On September 20, 2018, Petitioner called an expert on conditions in Haiti as part of

Petitioner’s application for withholding of removal under the Convention Against Torture

(“CAT”). Ud. at 921). On that same date, the IJ orally denied the CAT claim and ordered

5 An I-589 application is an application for asylum and for withholding of removal.

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Petitioner removed from the United States to Haiti. (Dkt. 5-2 at 39). Petitioner’s

applications for withholding of removal and deferral of removal were also denied. (/d.).

Petitioner appealed the IJ’s order of removal to the Board of Immigration Appeals (“BIA”),

and his appeal remains pending before the BIA. (Dkt. 5-1 at 22). Petitioner remains in

custody at the Buffalo Federal Detention Facility. (Dkt. 1 at 1).

On February 8, 2019, Petitioner filed the instant Petition. (Dkt. 1). He also filed a

motion to appoint counsel on February 15, 2019. (Dkt. 2). Respondents submitted their

answer on April 4, 2019 (Dkt. 5; Dkt. 6), and Petitioner replied on April 25, 2019. (Dkt.

9).

DISCUSSION

I. Petition

A. Jurisdiction

The federal habeas corpus statute gives district courts jurisdiction to hear

immigration-related detention cases. See 28 U.S.C. § 2241(c)(3); Demore v. Kim, 538 U.S.

510, 517-18 (2003) (holding federal courts have jurisdiction to review challenges to pre-

removal detention); Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding Ҥ 2241 habeas

corpus proceedings remain available as a forum for statutory and constitutional challenges

to post-removal-period detention” in’ immigration cases). District courts do not have

jurisdiction over challenges to the legality of final orders of deportation, exclusion, and

removal; jurisdiction to review such challenges rests exclusively in circuit courts. See

Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005) (“[The REAL ID Act, 119 Stat. 231,

§ 106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of deportation,

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exclusion, and removal, providing instead for petitions of review . .. which circuit courts

alone can consider.’”’).

B. Due Process

The Petition challenges the constitutionality of 8 U.S.C. § 1226(c) as applied to

Petitioner. (Dkt. 1). In particular, Petitioner contends that his detention, which has now

extended for over two years (from on or about August 7, 2017, to the present), violates due

process. He requests immediate release, or, in the alternative, a bond hearing before an JJ.

(id. at 4-5). For the reasons that follow, the Court denies Petitioner’s request for

immediate release, but finds he is entitled to a bond hearing.

The Fifth Amendment to the United States Constitution provides that “[n]o person

shall . . . be deprived of life, liberty or property, without due process of law.” U.S. Const.

amend. V. “It is well-settled that aliens have rights of procedural due process.” Doherty

v. Thornburgh, 943 F.2d 204, 209 (2d Cir. 1991). “These protections extend even to

aliens .. . ‘whose presence in this country is unlawful.’” Jd. (quoting Mathews v. Diaz,

426 U.S. 67, 77 (1976)).

In this case, Petitioner has been detained pursuant to § 1226(c) (Dkt. 1 at 3), which

“provides for mandatory detention of criminal aliens,” Mapp v. Reno, 241 F.3d 221, 224

(2d Cir. 2001). An alien detained pursuant to § 1226(c) may seek discretionary release

from DHS only if “he is a witness, a potential witness, a cooperator, or an immediate family

member or close associate of someone who is acting as a witness, potential witness, or

cooperator in an investigation into major criminal activity. No other category of

discretionary release exists under the statute.” Sajous v. Decker, No. 18-CV-2447 (AJN),

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2018 WL 2357266, at *1 (S.D.N.Y. May 23, 2018), appeal withdrawn, 2019 WL 4137822

(2d Cir. May 7, 2019); see Jennings, 138 S. Ct. at 847 (Ҥ 1226(c) mandates detention of

any alien falling within its scope and that detention may end prior to the conclusion of

removal proceedings ‘only if the alien is released for witness-protection purposes.”).

The law regarding the constitutionality of the mandatory detention provided for

under § 1226(c) is somewhat unsettled. In Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015),

the Second Circuit considered an as-applied challenge to § 1226(c) and joined the Third,

Sixth, and Ninth Circuits in concluding that, to avoid “serious constitutional concerns,”

§ 1226(c) must be read to include a temporal limitation on detention. /d. at 613. The Lora

court reasoned that, under Demore, “for detention under the statute to be reasonable, it

must be for a brief period of time.” Jd. at 614. As such, the Lora court adopted a bright-

line rule that “an immigrant detained pursuant to section 1226(c) must be afforded a bail

hearing before an immigration judge within six months of his or her detention.” Lora, 804

F.3d at 616. The Second Circuit further held that the detainee “must be admitted to bail

unless the government establishes by clear and convincing evidence that the immigrant

poses a risk of flight or a risk of danger to the community.” /d. (citing Rodriguez, 715 F.3d

at 1131).

Subsequently, on February 27, 2018, the Supreme Court issued Jennings, 138 S. Ct.

830, which rejected the Ninth Circuit’s analysis of § 1226(c). The Jennings Court held

that it was not a “plausible statutory construction” to interpret § 1226(c) “to include an

implicit 6-month time limit on the length of mandatory detention,” and concluded that

1226(c) mandates detention of any alien falling within its scope and that detention may

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end prior to the conclusion of removal proceedings ‘only if the alien is released for

witness-protection purposes.” Jd. at 846-47. Because reversal of the underlying Ninth

Circuit decision was mandated on statutory grounds, the Jennings Court expressly declined

to reach the petitioner’s constitutional claims on the merits, instead remanding to the court

of appeals for consideration of those claims in the first instance. Jd. at 851.°

On March 5, 2018, in light of its decision in Jennings, the Supreme Court granted

certiorari in Lora, vacated the judgment in that matter, and remanded the matter to the

Second Circuit for further consideration. See Shanahan v. Lora, 138 S. Ct. 1260 (2018).

On remand, the Second Circuit dismissed the case as moot because the petitioner in that

matter had been granted a cancellation of removal. See Lora v. Shanahan, 719 F. App’x

79, 80 (2d Cir. 2018).

Following Jennings, numerous courts in the Second Circuit have addressed as-

applied constitutional challenges to immigration detention. These courts have noted that

an important difference exists between substantive and procedural due process challenges

to an immigrant’s confinement. In substantive due process challenges, the court considers

whether the length of detention “is so manifestly unreasonable that [the petitioner’s] release

is required regardless of whether the government has evidence that he is, for example, a

danger or a flight risk.” Clerveaux v. Searls, No. 18-CV-1131, 2019 WL 3457105, at *4

6 The Ninth Circuit, in turn, has remanded those issues to the district court for it to

consider in the first instance. See Rodriguez v. Marin, 909 F.3d 252, 257 (9th Cir. 2018).

As of yet, the district court has not issued a subsequent decision addressing the parties’

constitutional arguments.

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n.3 (W.D.N.Y. July 31, 2019); see Doherty, 943 F.2d at 209 (“[The petitioner] does not

argue that the process under which he was denied bail was unfair or inadequate, but rather,

that the very fact that he has been subjected to prolonged detention without bail violates

his substantive right to liberty.”). In other words, if successful with a substantive due

process claim, the petitioner is entitled to be released from custody.

On the other hand, in procedural due process challenges the court does not consider

what the substantive outcome of the case should be—i.e., whether the petitioner should be

released—but rather considers whether the petitioner is entitled to some sort of process,

such as a bond hearing. See Clerveaux, 2019 WL 3457105, at *4 n.3 (“[T]his Court

considers only whether—seventeen months into [the petitioner]’s detention—the

government must finally demonstrate to someone that there is some evidence that [the

petitioner]’s detention serves some purpose.”); Vallejo v. Decker, No. 18-CV-5649 (JMF),

2018 WL 3738947, at *4 (S.D.N.Y. Aug. 7, 2018) (“[T]he Court is compelled to conclude

that [the petitioner]’s continued detention without another individualized bond hearing

violates his due process rights.”), appeal withdrawn, 2019 WL 1503029 (2d Cir. Mar. 25,

2019). In this case, Petitioner has raised both substantive and procedural due process

challenges. The Court addresses both in turn.

1. Substantive Due Process

Petitioner alleges that his prolonged detention has resulted in the violation of his

right to substantive due process and requests that he be immediately released. The Court

denies the Petition on this ground for the reasons that follow.

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“[Al]liens . . . have a substantive due process right to be free of arbitrary confinement

pending deportation proceedings.” Doherty, 943 F.2d at 209. “It is axiomatic, however,

that an alien’s right to be at liberty during the course of deportation proceedings is

circumscribed by considerations of the national interest.” Jd. If the infringement on an

alien’s “liberty interest results from a proper exercise of discretion,” then a prolonged

detention “is not conduct that goes beyond the range of government activity permitted by

the Constitution.” Jd. at 211. “[DJetention 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). “[O]nce the alien provides good reason to believe that there is no

significant likelihood of removal in the reasonably foreseeable future, the Government

must respond with evidence sufficient to rebut that showing.” Zadvydas, 533 U.S. at 701.

In the instant matter, Petitioner has failed to demonstrate that his removal is not

reasonably foreseeable. To the contrary, the IJ entered an order of removal against

Petitioner, which he appealed to the BIA (Dkt. 5-1 at § 22), and he would be removed if he

withdrew his appeal. Petitioner “may not rely on the extra time resulting” from his appeal

“to claim that his prolonged detention violates substantive due process.” Doherty, 943 F.2d

at 211; see Thompson v. Lynch, No. 16-CV-6608 (CJS), 2017 WL 344970, at *7 (W.D.N.Y.

Jan. 24, 2017) (“Unless and until the circuit court vacates the removal order or otherwise

rules in petitioner’s favor on the petition for review, petitioner remains a criminal alien

subject to removal and subject to lawful mandatory detention in DHS custody under the

authority of the INA.”). Accordingly, the Court denies the portion of the Petition that rests

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on substantive due process grounds as well as Petitioner’s associated request for immediate

release.

2. Procedural Due Process

Petitioner also asserts that his procedural due process rights have been violated and

requests a bond hearing. For the following reasons, the Court grants the Petition on this

ground.

The Second Circuit has not addressed, post-Jennings and post-Lora, the standard to

be utilized by courts in addressing procedural due process claims for aliens detained

pursuant to § 1226(c) in the immigrant habeas context. However, the overwhelming

majority of district courts within the Circuit to have addressed the issue have adopted a

case-by-case approach where “courts examine each individual’s detention circumstances

to determine whether it has become ‘unreasonable or unjustified.’” Cabral v. Decker, 331

F. Supp. 3d 255, 261 (S.D.N.Y. 2018) (quoting Demore, 538 U.S. at 532). The case-by-

case approach is an “as-applied, fact-based analysis . . . derived from the Supreme Court’s

decisions in Zadvydas and Demore[.]” Sajous, 2018 WL 2357266, at *10; c.f Hechavarria

v. Sessions, No. 15-CV-1058, 2018 WL 5776421, at *7-9 (W.D.N.Y. Nov. 2, 2018)

(utilizing both a multi-factor test and the traditional procedural due process analysis

articulated in Mathews v. Eldridge, 424 U.S. 319 (1976)), enforcement granted sub nom.

Hechavarria v. Whitaker, 358 F. Supp. 3d 227 (W.D.N.Y. 2019); see Joseph v. Decker,

No. 18-CV-2640(RA), 2018 WL 6075067, at *10 n.7 (S.D.N.Y. Nov. 21, 2018)

(concluding that “[t]he Mathews test is consistent with the approach of... considering

immigration-specific factors for the procedural due process analysis,” and the majority of

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courts in this Circuit seem to have adopted the fact-based inquiry approach), appeal

withdrawn, No. 19-245, 2019 WL 3334802 (2d Cir. May 1, 2019).

This Court agrees with the overwhelming majority of courts in this Circuit that the

multi-factor approach articulated by the court in Sajous and other courts within this Circuit

is a useful tool for addressing procedural due process claims for aliens detained pursuant

to § 1226(c) in the immigrant habeas context. See Gomes Herbert v. Decker, No. 19-CV-

760 (JPO), 2019 WL 1434272, at *2 (S.D.N.Y. Apr. 1, 2019) (noting that the Sajous

framework has been “overwhelmingly adopted” in the Southern District of New York

(quotation omitted)); Dukuray v. Decker, No. 18 CV 2898 (VB), 2018 WL 5292130, at *3

(S.D.N.Y. Oct. 25, 2018) (same). The factors set forth by district courts in this Circuit for

a court to consider in determining whether an alien’s length of detention has become

unreasonable or unjustified, can be summed up as follows:

(1) the length of time the petitioner has been detained; (2) the party

responsible for the delay; (3) whether the petitioner has asserted defenses to

removal; (4) whether the detention will exceed the time the petitioner spent

in prison for the crime that made him removable; (5) whether the detention

facility is meaningfully different from a penal institution for criminal

detention; (6) the nature of the crimes committed by the petitioner; and (7)

whether the petitioner’s detention is near conclusion.’

Cabral, 331 F. Supp. 3d at 261.

As to the first factor, Petitioner has been detained in immigration custody since

August 2017. Thus, “[t]he first and ‘most important’ . . . factor weighs heavily in favor of

7 This is not to suggest that other factors cannot be considered by a court in the

appropriate case. In other words, it would be inconsistent with the flexible nature of due

process, Jennings, 138 S. Ct. at 852, to restrict the analysis to hard-and-fast factors with no

ability to adapt those factors to the particular facts of a case.

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granting the petition.” Bermudez Paiz v. Decker, No. 18-CV-4759 (GHW) (BCM), 2018

WL 6928794, at *13 (S.D.N.Y. Dec. 27, 2018) (citation omitted). “[C]ourts in this Circuit

have generally been skeptical of prolonged detention of removable immigrants, without

process, lasting over six months,” Lett v. Decker, 346 F. Supp. 3d 379, 387 (S.D.N.Y. 2018)

(quoting Lopez v. Sessions, No. 18 Civ. 4189 (RWS), 2018 WL 2932726, at *14 (S.D.N.Y.

June 12, 2018)), appeal filed, No. 18-3714 (2d Cir. Dec. 11, 2018), and “courts have found

detention shorter than a year to be unreasonably prolonged as part of procedural due

process analysis,” Rosado Valerio v. Barr, No. 19-CV-519, 2019 WL 3017412, at *4 ©

(W.D.N.Y. July 10, 2019) (collecting cases).

The record before the Court shows Petitioner has been detained for over two years

without ever receiving an individualized review of his detention. On July 27, 2017, DHS

issued a Notice of Custody Determination stating that Petitioner would be detained pending

a final administrative determination in his case without listing the reasons why this

determination was made. (Dkt. 5-2 at 18). By August 7, 2017, Petitioner had been taken

into ICE custody (id. at 21), and on that day Petitioner requested that an IJ review the

custody determination (id. at 18). The record before the Court does not indicate that

Petitioner ever received that individualized review. Although a bond hearing was

scheduled to take place on March 21, 2018, the IJ denied Petitioner’s request fora change _

in custody status, finding that the Supreme Court’s decision in Jennings divested the

immigration court of jurisdiction to grant bond. (/d. at 38). There is no other evidence

before this Court that an individual determination was provided to Petitioner listing specific

reasons for his detention. In other words, the record before the Court shows that Petitioner

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has been detained for over two years without any individualized determination. This factor

weighs heavily in Petitioner’s favor.

Respondents contend the second factor in the analysis—which party is responsible

for the delay—undercuts a finding of an unreasonable length of detention in Petitioner’s

case because “Petitioner’s continued detention is of his own volition.” (Dkt. 6 at 14). For

procedural due process claims, when “considering whether [Petitioner] or the Government

is responsible for the prolonged proceedings, the Court ‘may examine the record to

determine whether the alien sought repeated or unnecessary continuances, or filed frivolous

claims and appeals.’” Vallejo, 2018 WL 3738947, at *4 (quoting Sopo v. U.S. Att’y Gen.,

825 F.3d 1199, 1218 (11th Cir. 2016), vacated on other grounds, 890 F.3d 952 (11th Cir.

2018)); see Sajous, 2018 WL 2357266, at *11 (“[A]liens who are merely gaming the

system to delay their removal should not be rewarded with a bond hearing that they would

not otherwise get under the statute.” (quoting Chavez-Alvarez v. Warden York Cty. Prison,

783 F.3d 469, 476 (3d Cir. 2015))). “[C]ourts should keep in mind that ‘aliens should not

be punished for pursuing avenues of relief and appeals[,]’ but evidence of bad faith delays

may cut against them.” Hernandez v. Decker, No. 18-CV-5026 (ALC), 2018 WL 3579108,

at *7 (S.D.N.Y. July 25, 2018) (quotation omitted), appeal withdrawn, No. 18-2824, 2019

WL 1377025 (2d Cir. Feb. 5, 2019).

In this case, the record supports a conclusion that a significant portion of the delay

between September 13, 2017 (when Petitioner’s removal hearing was initially scheduled)

and September 20, 2018 (when the IJ issued an order of removal), can be attributed to

requests for adjournment made by Petitioner. However, the record does not show that

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Petitioner was engaging in bad faith delay tactics. To the contrary, Petitioner’s initial

requests for continuances were made by his counsel to help him prepare for Petitioner’s

hearings or to allow for consideration of changes in the law. (See Dkt. 5-1 at Jf 12-16).

As such, it would not be appropriate to utilize these requests for adjournment to penalize

Plaintiff. See, e.g., Sopo, 825 F.3d at 1218; Vallejo, 2018 WL 3738947, at *4; Hernandez,

2018 WL 3579108, at *7; Sajous, 2018 WL 2357266, at *11. Moreover, since the order

of removal was issued in September 2018, the delay appears attributable to the BIA’s

consideration of Petitioner’s appeal as opposed to any adjournment requests by Petitioner.

(See Dkt. 6 at 2 (“Petitioner’s appeal to the [BIA] remains pending[.]”)).

Respondents cite to this Court’s decision in Sigal v. Searls, No. 1:18-CV-00389

EAW, 2018 WL 5831326, at *6 (W.D.N.Y. Nov. 7, 2018), to support their argument that

“Petitioner may end his detention at any time by withdrawing his appeal and complying

with the removal order.” (Dkt. 6 at 14). However, Sigal is distinguishable from the instant

matter. The Court’s decision in Sigal focused on the petitioner’s substantive due process

arguments because the forms of relief the petitioner sought in his petition and briefing were

for immediate release or for the Court to actually conduct a bond hearing. (See Sigal v.

Searls, No. 1:18-cv-00389-EAW, Dkt. 1 at {37 (W.D.N.Y. Mar. 28, 2018) (alleging in

petition that “Petitioner is therefore entitled to immediate release on his own recognizance

or under bond, by order of this court”)); see also Doherty, 943 F.2d at 209 (“[The

petitioner] does not argue that the process under which he was denied bail was unfair or

inadequate, but rather, that the very fact that he has been subjected to prolonged detention

without bail violates his substantive right to liberty.”’).

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Moreover, the facts in Sigal are easily distinguishable from this case. The Sigal

petitioner had been ordered removed by an IJ before ever being taken into DHS custody,

and the BIA affirmed the IJ’s decision within about a week after the Sigal petitioner was

taken into DHS custody. 2018 WL 5831326 at *2. As a result, the entire length of the

Sigal petitioner’s custody in DHS was directly related to his pursuit of an appeal before the

Second Circuit with a corresponding stay of removal. As this Court noted in Sigal, while

a petitioner should not be punished for seeking review of administrative or judicial

decisions, “that right does not mean it may be exercised without consequence,” id. at *6

(citation and quotation omitted), and in fact, the Sigal petitioner’s removal would not have

prevented his pursuit of relief before the Second Circuit, id. at *6 n. 5. Thus, the Court in

Sigal was persuaded that the petitioner’s litigation strategy was largely responsible for the

length of his detention. In fact, shortly after this Court issued its decision in Sigal, the

petitioner discontinued his appeal before the Second Circuit, see Sigal v. Whitaker, No. 17-

2197, Dkt. 92, thus further confirming the Court’s opinion concerning the petitioner’s

litigation strategy. Here, the Court is not similarly persuaded that Petitioner is engaging in

a litigation strategy meant to prolong his immigration proceedings—instead, he appears to

be legitimately contesting the validity of those immigration proceedings.®

As for the third factor, Petitioner has asserted defenses to removal in the

immigration proceedings. He has asked for relief under the CAT, applied for asylum, and

8 This distinction is further highlighted by the fact that the Sigal petitioner received

an individualized review of his detention setting forth “specific, individualized

considerations supporting the decision not to release him from custody,” Sigal, 2018 WL

5831326, at *7, while Petitioner in the instant matter, as previously discussed, has not.

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purports to advance a derivative citizenship claim. (Dkt. 9 at 2-3). “The Court need not

inquire into the strength of [Petitioner’s] defenses—it is sufficient to note their existence

and the resulting possibility that the Petitioner will ultimately not be removed, which

diminishes the ultimate purpose of detaining the Petitioner pending a final determination

as to whether he is removable.” Sajous, 2018 WL 2357266, at *11; see Cabral, 331 F.

Supp. 3d at 261-62 (finding the third factor weighed in petitioner’s favor because he

asserted several defenses to his removal). Accordingly, this factor weighs in Petitioner’s

favor.

The fourth factor on the other hand weighs against Petitioner—his detention has not

been longer than the time that he spent in prison for the crimes that made him removable.

Petitioner was in prison for seven-and-a-half years (Dkt. 5-2 at 17-18), which reflects “the

state’s judgment of his dangerousness.” Hernandez, 2018 WL 3579108, at *10.

As far as the fifth factor is concerned, Petitioner contends his confinement at the

Buffalo Federal Detention Facility is penal in nature. He alleges several ways in which his

detention at the Buffalo Federal Detention Facility is more severe than the state prison

where he was previously confined. For example, he contends that visits with family

members such as his wife and daughter are limited to one hour no-contact visits at the

Buffalo Federal Detention Facility, whereas his visits when confined by DOCCS were

much lengthier contact visits. (Dkt. 9 at 7). Additionally, “Respondents have failed to

rebut [Petitioner]’s contention that his ongoing detention at this facility is indistinguishable

from criminal incarceration.” Gomes Herbert v. Decker, No. 19-CV-760 (JPO), 2019 WL

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1434272, at *3 (S.D.N.Y. Apr. 1, 2019). Accordingly, this factor weighs in Petitioner’s

favor.

The sixth factor, the nature of the crimes Petitioner was convicted of, weighs against

Petitioner. Petitioner pleaded guilty to committing the violent crimes of manslaughter and

attempted assault, as well as to trafficking firearms. See Cabral, 331 F. Supp. 3d at 262

(finding sixth factor weighed against petitioner when convicted multiple times and crimes

included attempted robbery and criminal possession of a weapon).

However, the final factor, whether the petitioner’s detention is near conclusion,

weighs in Petitioner’s favor. To the Court’s knowledge, the BIA has not yet issued a ruling

on Petitioner’s appeal, and there is no indication of when it will do so. See Dukuray, 2018

WL 5292130, at *5 (“[T]here is ‘significant reason to believe that [petitioner’s detention]

will continue . . . because . . . he would remain detained throughout the course of an appeal

by either side.’” (second alteration in original) (quoting Lett, 346 F. Supp. 3d at 387)).

Thus, the Court acknowledges that some of the factors favor Petitioner and some do

not. However, on balance and particularly in view of the length of the detention and the

circumstances surrounding that detention, the Court finds that Petitioner’s continued

detention without a bond hearing is constitutionally unjustified. See Arce-Ipanaque v.

Decker, No. 19-CV-1076 (JMF), 2019 WL 2136727, at *2 (S.D.N.Y. May 15, 2019) (“At

bottom, the minimal burden that a bond hearing would place on the Government is far

outweighed by [the petitioner]’s interest in ensuring that his continued detention is

justified.” (quotation and original alteration omitted)).

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3. Process Due to Petitioner

It is well established within this Circuit that when a court determines the length of

a petitioner’s detention pursuant to § 1226(c) is unjustified, due process requires that he be

given a bond hearing where an individualized determination can be made as to whether he

should remain confined for the duration of his immigration proceedings. See, e.g.,

Bermudez Paiz, 2018 WL 6928794, at *14 (holding petitioner was entitled to a bond

hearing after finding his detention was unreasonably prolonged); Cabral, 331 F. Supp. 3d

at 262-63 (same); Hernandez, 2018 WL 3579108, at *10 (same). “The only remaining

question concerns the burden of proof at the bond hearing.” Bermudez Paiz, 2018 WL

6928794, at *15.

Prior to Jennings, the Second Circuit required in bond hearings that “the government

establish[ ] by clear and convincing evidence that the immigrant poses a risk of flight or a

risk of danger to the community.” Lora, 804 F.3d at 616. In Jennings, the Supreme Court

held “that § 1226 itself does not require the government to carry the clear and convincing

evidence burden.... However, the Supreme Court left open the question of what the

Constitution requires for aliens detained pursuant to § 1226(c).” Cabral, 331 F. Supp. 3d

at 262 n.6 (citing Jennings, 138 S. Ct. at 847, 851). The vast majority of courts in this

Circuit to have considered this issue have found “that imposing a clear and convincing

standard would be most consistent with due process.” Hernandez, 2018 WL 3579108, at

*11; see Bermudez Paiz, 2018 WL 6928794, at *15 (“[T]he overwhelming consensus of

judges in this District—both before and after Jennings—is that once an alien’s immigration

detention has become unreasonably prolonged, he or she is entitled to a bond hearing at

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which the government bears the burden to demonstrate dangerousness or risk of flight by

clear and convincing evidence.” (quotation omitted)); see also Darko v. Sessions, 342 F.

Supp. 3d 429, 435 (S.D.N.Y. 2018) (collecting cases). “While Lora is no longer binding

authority, every court to have considered” the issue of who carries the burden at

immigration bond hearings “has agreed with [its] persuasive logic—under the Due Process

Clause of the Fifth Amendment, it is the Government’s burden to justify the detention of

an immigrant at a bond hearing[.]” Velasco Lopez v. Decker, No. 19-CV-2912 (ALC),

2019 WL 2655806, at *3 (S.D.N.Y. May 15, 2019) (collecting cases), appeal filed, No. 19-

2284 (2d Cir. July 23, 2019). This Court agrees and finds due process requires that

Petitioner is entitled to a bond hearing where the government must demonstrate

dangerousness or flight risk by clear and convincing evidence.

Additionally, the Court finds that both due process and BIA precedent require the

IJ to consider ability to pay and alternative conditions of release in setting bond. See Abdi

v. Nielsen, 287 F. Supp. 3d 327, 335-39 (W.D.N.Y. 2018); see also Hernandez v. Sessions,

872 F.3d 976, 991 & n.4 (9th Cir. 2017) (“A bond determination that does not include

consideration of financial circumstances and alternative release conditions is unlikely to

result in a bond amount that is reasonably related to the government’s legitimate

interests.”); Arce-Ipanaque, 2019 WL 2136727, at *3 (collecting cases); Lett, 346 F. Supp.

3d at 389 (“The Court agrees with Petitioner that an immigration bond hearing that fails to

consider ability to pay or alternative conditions of release is constitutionally inadequate.”);

Hernandez, 2018 WL 3579108, at *12 (“[T]he Due Process Clause requires than an IJ

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consider ability to pay and alternative conditions of release in setting bond.” (quotation and

alteration omitted)).

I. Motion to Appoint Counsel

Under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent

litigants, Sears, Roebuck & Co. v. Charles Sears Real Estate, Inc., 865 F.2d 22, 23-24 (2d

Cir. 1988), and the assignment of pro bono counsel in civil cases is within the trial court’s

discretion. Jn re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The court must

evaluate “the merits of [the] plaintiff's case, the plaintiff's ability to pay for private counsel,

his efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather

the facts and deal with the issues if unassisted by counsel.” Cooper v. A. Sargenti Co.,

Inc., 877 F.2d 170, 172 (2d Cir. 1989).

In the instant matter, the Court finds that Petitioner adequately gathered the facts

and dealt with the legal issues presented without the assistance of counsel as is

demonstrated by the Court granting the Petition in part. Further, assignment of counsel at

this juncture would be futile because the case will be closed upon issuance of this Decision

and Order. Accordingly, the Court denies Petitioner’s motion for appointment of counsel

as moot.

CONCLUSION

For the foregoing reasons, the Petition (Dkt. 1) is granted in part and denied in part,

and the motion to appoint counsel (Dkt. 2) is denied as moot. In order to comport with the

requirements of the Fifth Amendment’s Due Process Clause, the Court orders Respondents

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to afford Petitioner a bond hearing consistent with the procedures outlined in this Decision

and Order within 14 days of its entry. The Clerk of Court is instructed to close this case.

SO ORDERED.

CI

LZ / Sfp

Vs □□

ELIZABETH WOLFORD

nitéd States District Judge

Dated: September 9, 2019

Rochester, New York

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