The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSE ELIAS GUTIERREZ CUPIDO,
Petitioner, Case # 19-CV-6367-FPG
v.
DECISION AND ORDER
WILLIAM P. BARR, et al.,
Respondents.
Pro se Petitioner Jose Elias Gutierrez Cupido brought this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, challenging his continued detention at the Buffalo Federal
Detention Facility. ECF No. 1. Respondents have answered and filed their opposition to the
petition. ECF Nos. 4, 5. Having reviewed the record and the briefing, the Court finds that a
hearing is unnecessary to resolve the petition. For the reasons that follow, the petition is
GRANTED IN PART and DENIED IN PART.
BACKGROUND
The following facts are taken from the record. Petitioner is a native and citizen of El
Salvador. On May 6, 2018, a border patrol agent discovered Petitioner unlawfully entering the
United States from Mexico. Petitioner was arrested and placed in removal proceedings. He was
subsequently transferred to the Buffalo Federal Detention Facility.
Petitioner’s removal hearing was initially scheduled for July 24, 2018, but it was adjourned
on Petitioner’s request. The next removal hearing, scheduled for September 26, 2018, was
continued when Petitioner’s counsel failed to appear. Petitioner’s removal hearing was finally
held on October 3, 2018, after which the immigration judge ordered him removed. The Board of
Immigration Appeals dismissed Petitioner’s appeal, and he filed a petition for review with the
Second Circuit, where the matter remains pending. The Second Circuit has granted Petitioner’s
motion for a stay of removal.
As of now, Petitioner has been detained for more than sixteen months. Immigration
authorities have reviewed Petitioner’s custody determination on two occasions—in July 2018 and
October 2018—and have decided to continue detention each time. Petitioner filed this petition in
May 2019.
DISCUSSION
Petitioner claims that his continued detention without a bond hearing violates his due
process rights and the Eighth Amendment’s prohibition against excessive bail. Because the Court
concludes that Petitioner is entitled to relief based on his procedural due process claim, it need not
address his other theories for relief.
As an initial matter, Respondents raise two threshold issues that the Court must address.
First, Respondents argue that Petitioner has only limited due process rights because he is an
“arriving alien” who is “legally considered to be outside of the United States.” ECF No. 5 at 12.
This Court has previously rejected that argument, and Respondents present no new consideration
that would undermine the Court’s conclusion. See Wang v. Brophy, No. 17-CV-6263, 2019 WL
112346, at *3 (W.D.N.Y. Jan. 4, 2019) (collecting cases for proposition that an arriving alien “has
sufficient due process rights to challenge his prolonged mandatory detention”).
Second, the Court disagrees with Respondents’ argument that Petitioner must exhaust his
administrative remedies before seeking relief. “Although there is no statutory requirement of
administrative exhaustion before immigration detention may be challenged in federal court by a
writ of habeas corpus, courts generally do require such exhaustion as a prudential matter.” Joseph
v. Decker, No. 18-CV-2640, 2018 WL 6075067, at *5 (S.D.N.Y. Nov. 21, 2018) (internal
quotation marks and brackets omitted). “This prudential exhaustion requirement aims to provide
the agency with a chance to correct its own errors, protect the authority of administrative agencies,
and otherwise conserve judicial resources by limiting interference in agency affairs, developing
the factual record to make judicial review more efficient, and resolving issues to render judicial
review unnecessary.” Id. (internal quotation marks and brackets omitted). “When these purposes
are not served by requiring exhaustion, exhaustion may be excused through four established
exceptions.” Id. (internal quotation marks omitted). “[E]xhaustion of administrative remedies
may not be required when: (1) available remedies provide no genuine opportunity for adequate
relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal
would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional
question.” Id. “The application of these exceptions must be guided by the policies underlying
the exhaustion requirement.” Id. (internal quotation marks omitted).
Here, exhaustion is not required because Petitioner presents a substantial constitutional
question that would be futile to pursue through administrative proceedings. As Respondents
concede, the “only statutory mechanism for release from § 1225(b) custody” is discretionary
parole. Abdi v. McAleenan, No. 17-CV-721, 2019 WL 4621898, at *5 (W.D.N.Y. Sept. 24, 2019);
see ECF No. 5 at 16. Immigration authorities may grant discretionary parole “for urgent
humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). By regulation,
immigration authorities have construed that phrase to include aliens with special circumstances,
like those who are pregnant, juveniles, or have serious medical conditions. See Clerveaux v.
Searls, No. 18-CV-1131, 2019 WL 3457105, at *10 (W.D.N.Y. July 31, 2019) (discussing 8
C.F.R. § 212.5).
Not only have Respondents failed to explain how Petitioner even arguably falls within the
class of aliens to whom discretionary parole is available, but there is no indication that Petitioner
would be able to litigate his constitutional claims through that mechanism. Immigration authorities
wield “extraordinarily broad discretion” over discretionary parole, but it is not a forum in which
an alien may press constitutional challenges to immigration statutes and regulations. Id.; see
Joseph, 2018 WL 6075067, at *6 (stating that a constitutional challenge is “unsuited to resolution
in administrative hearing procedures and, therefore, access to the courts is essential to deciding
[it]” (internal quotation marks omitted)). To be sure, some courts have held that an alien must
exhaust administrative avenues before bringing a habeas corpus petition, but those cases have
tended to involve challenges to particular administrative determinations, rather than broad attacks
on the constitutionality of the underlying statutes and regulations. See, e.g., Brevil v. Jones, No.
17-CV-1529, 2018 WL 5993731, at *3 (S.D.N.Y. Nov. 14, 2018) (collecting cases). The Court
concludes that the sounder, more efficient approach is to consider Petitioner’s claim on the merits.
Accord id.; Hemans v. Searls, No. 18-CV-1154, 2019 WL 955353, at *10 (W.D.N.Y. Feb. 27,
2019); Joseph, 2018 WL 6075067, at *7 (“[T]his Court is convinced that it is the only entity able
to address [the petitioner’s] substantial constitutional claims and that any attempt to receive relief
from the agency would pointlessly prolong a detention that is already pushing constitutional
bounds.”).
Several provisions of the Immigration and Nationality Act (“INA”) authorize the detention
of aliens pending removal. In this case, the relevant provision is 8 U.S.C. § 1225(b)(2)(A). See
ECF No. 5 at 6 n.3. Section 1225(b)(2)(A) requires immigration authorities to detain pending
removal any alien seeking admission to the United States if an examining immigration officer
determines that the alien “is not clearly and beyond a doubt entitled to be admitted.” The statute
mandates that such an alien be detained until removal proceedings have been completed, Jennings
v. Rodriguez, 138 S. Ct. 830, 842 (2018), and does not contemplate a right to a bond hearing or
otherwise impose a “limitation on the length of an individual’s detention.” Perez v. Decker, No.
18-CV-5279, 2018 WL 3991497, at *3 (S.D.N.Y. Aug. 20, 2018). Insofar as it permits prolonged
detention with few procedural safeguards, the statute is susceptible to constitutional challenge. See
id. (“It is . . . undisputed that freedom from imprisonment . . . lies at the heart of the liberty that
the Fifth Amendment’s Due Process Clause protects.”).
This Court, like other courts in this circuit, has concluded that prolonged detention under
§ 1225(b) without a bond hearing is unconstitutional as a matter of procedural due process. See
Wang, 2019 WL 112346, at *3; see also Bermudez Paiz v. Decker, No. 18-CV-4759, 2018 WL
6928794, at *10 (S.D.N.Y. Dec. 27, 2018) (“Most judges who have squarely faced the question
have [held] . . . that arriving aliens, like criminal aliens, cannot be detained for an unreasonably
prolonged period of time without a bond hearing.”). Pursuant to this case law, Petitioner is entitled
to relief.
Petitioner’s detention has been unreasonably prolonged. He has been detained over 16
months, which is beyond the point at which courts find detention unreasonably prolonged. See,
e.g., Fremont v. Barr, No. 18-CV-1128, 2019 WL 1471006, at *4 (W.D.N.Y. Apr. 3, 2019)
(collecting cases and noting that, after 12 months, courts “become extremely wary of permitting
continued custody absent a bond hearing”); Bermudez Paiz, 2018 WL 6928794, at *13 (finding
16-month detention unreasonable). Furthermore, the Court rejects Respondents’ attempt to place
blame for the delays on Petitioner. The delays appear to be largely attributable to the normal
administrative and appeals process, and the Second Circuit has made a distinction between aliens
who have “substantially prolonged [their] stay by abusing the processes provided to [them]” and
those who have “simply made use of the statutorily permitted appeals process.” Hechavarria v.
Sessions, 891 F.3d 49, 56 n.6 (2d Cir. 2018). Thus, the mere fact that Petitioner has exercised his
rights to pursue relief from removal “does not, in itself, undermine a claim that detention is
unreasonably prolonged.” Brissett v. Decker, 324 F. Supp. 3d 444, 453 (S.D.N.Y. 2018). The
only delays that can fairly be attributed to Petitioner are the adjournments he obtained during the
administrative process. But those delays amounted to a little over two months—not enough to
undercut the unreasonableness of Petitioner’s detention.
Accordingly, because Petitioner’s detention has been unreasonably prolonged, due process
requires that he receive a bond hearing with adequate procedural protections. Specifically, the
government, not Petitioner, must bear the burden of proving by clear and convincing evidence that
continued detention is justified due to flight risk or dangerousness and that no less restrictive
alternatives to detention would ameliorate that risk. See Brophy, 2019 WL 112346, at *3; Joseph
v. Barr, No. 19-CV-565, 2019 WL 3842359, at *9 (W.D.N.Y. Aug. 15, 2019). Because,
indisputably, Petitioner has not received such a hearing, he is entitled to relief.
However, purely as a technical matter, the Court agrees with Respondents that the only
proper respondent is Jeffrey Searls, the Assistant Field Office Director of the ICE Buffalo Field
Office. See ECF No. 5 at 1 n.1. As the “person with direct control” over Petitioner’s detention,
id., he is the proper respondent given Petitioner’s requested relief. See Hassoun v. Sessions, No.
18-CV-586, 2019 WL 78984, at *7 (W.D.N.Y. Jan. 2, 2019) (“The majority view in the Second
Circuit requires the immediate custodian, generally the prison warden, to be named as a respondent
in core immigration habeas proceedings—i.e., those challenging present physical confinement.”
(quotation omitted)). The Court will limit the ordered relief accordingly.
CONCLUSION
For the foregoing reasons, Petitioner is entitled to habeas relief under 28 U.S.C. § 2241 and
the petition (ECF No. 1) is GRANTED IN PART and DENIED IN PART. The petition is granted
against Respondent Searls and is denied with respect to the remaining respondents.
By October 15, 2019, Respondent Searls shall hold a bond hearing for Petitioner before an
immigration judge, at which the government bears the burden of proving by clear and convincing
evidence that Petitioner’s continued detention is justified based on risk of flight or danger to the
community. The immigration judge must consider whether less restrictive alternatives to detention
would ameliorate those risks. Respondent Searls shall release Petitioner unless the immigration
judge finds by clear and convincing evidence that no condition or combination of conditions of
release will reasonably assure Petitioner’s appearance and the safety of the community or any
persons.
If a bond hearing is not held by October 15, 2019, Respondent Searls shall release
Petitioner immediately with appropriate conditions of supervision. By October 17, 2019,
Respondent Searls shall file a notice with this Court certifying either (1) that a bond hearing was
held by the deadline, and the outcome thereof, or (2) that no bond hearing was held and that
Petitioner was released with appropriate conditions of supervision. The Clerk of Court is directed
to enter judgment and close this case.
IT IS SO ORDERED.
Dated: October 1, 2019
Rochester, New York
Chief Judge
United States District Court