Rodriguez v. Sessions

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

NELSON RODRIGUEZ,

No. 6:18-cv-06757-MAT

Petitioner, DECISION AND ORDER

-vs-

WILLIAM P. BARR, United States

Attorney General; and JEFFREY J.

SEARLS, Director of the Buffalo

Federal Detention Facility,

Respondents.

I. Introduction

Proceeding pro se, Nelson Rodriguez (“Rodriguez” or

“Petitioner”) commenced this habeas proceeding pursuant to

28 U.S.C. § 2241 (“§ 2241”) challenging his continued detention in

the custody of the United States Department of Homeland Security

(“DHS”), Immigration and Customs Enforcement (“ICE”). On May 5,

2019, the Petition (Docket No. 1) was dismissed. On May 31,

Rodriguez filed a pleading styled as a Motion for Reconsideration

(Docket No. 20) which is, in sum and substance, simply another

habeas petition. For the reasons discussed below, the Motion for

Reconsideration is denied.

II. Factual Background and Procedural History

Rodriguez is a citizen and national of El Salvador. He was

last admitted to the United States on December 13, 1983, on an IR-2

immigrant visa. On or about March 13, 2009, a grand jury in Kings

County, New York State indicted Rodriguez on eleven counts

including one count of Rape in the First Degree (N.Y. Penal Law

(“P.L.”) § 130.35(3)), six counts of Sexual Abuse in the First

Degree (P.L. § 130.65(3)), three counts of Committing a Criminal

Sexual Act in the First Degree (P.L. § 130.50(3)), and one count of

Endangering the Welfare of a Child (P.L. § 260.10(1)).

On November 4, 2010, Rodriguez pleaded guilty to one count of

Sexual Abuse in the First Degree (P.L. § 130.65(3)), and one count

of Endangering the Welfare of a Child (P.L. § 260.10(1)). Rodriguez

was sentenced to, among other restrictions, ten years of probation

on the first conviction and three years of probation on the second

conviction. On January 19, 2012, a judge in Kings County New York

found that Rodriguez had violated the conditions of his probation

and accordingly resentenced him to concurrent terms of two years in

prison for the first-degree sexual abuse conviction and one year in

prison for the endangering the welfare of a child conviction.

After DHS concluded that Rodriguez did not present a viable

claim of derivative citizenship, he was served, on August 24, 2016,

with a Notice to Appear (“NTA”). The NTA charged him with being

subject to removal from the United States because he was convicted

of an aggravated felony pursuant to 8 U.S.C. §§ 1101(a)(43)(A),

1227(a)(2)(A)(iii), as well as a crime of child abuse, neglect, or

abandonment pursuant to 8 U.S.C. § 1227(a)(2)(E)(i).

Rodriguez was taken into DHS custody on January 13, 2017. On

June 28, 2017, Rodriguez had a custodial determination hearing

before an immigration judge pursuant to Lora v. Shanahan, 804 F.3d

601 (2d Cir. 2015) (as a matter of first impression, an immigrant

detained pursuant to statute requiring mandatory detention of

certain aliens awaiting removal proceedings must be afforded a bail

hearing before an immigration judge within six months of his or her

detention), vacated, 138 S. Ct. 1260 (2018). In accordance with

Lora, the IJ held DHS to the burden of proving, by clear and

convincing evidence, that Rodriguez should not be admitted to bail.

After finding that DHS had established by clear and convincing

evidence that Rodriguez is a danger to the community, the IJ denied

Rodriguez’s request to change his custodial status. On November 9,

2017, the IJ judge found Rodriguez removable as charged. The IJ

further found that, because of Rodriguez’s aggravated felony

conviction, he was statutorily ineligible for asylum or

cancellation of removal for certain permanent residents; and that

because Rodriguez had committed a particularly serious crime, he

was ineligible for withholding of removal. In addition, the IJ

declined to grant Rodriguez’s request for deferral of removal to El

Salvador under the regulations implementing the Convention Against

Torture (“CAT”). The IJ ordered that Rodriguez be removed to El

Salvador.

Rodriguez filed an appeal with the Board of Immigration

Appeals (“BIA”), which dismissed his appeal on April 2, 2018. On

April 13, 2018, Rodriguez filed a pro se petition for review with

the United States Court of Appeals for the Second Circuit, along

with an emergency motion for a stay of removal and a motion to

appoint counsel. See Rodriguez v. Barr, 18-1070 (2d Cir. Apr. 13,

2018). On April 23, 2018, the United States Attorney General

opposed Rodriguez’s stay motion.

On July 2, 2018, and October 19, 2018, DHS conducted

additional custodial reviews and determined to continue Rodriguez’s

detention. On October 22, 2018, Rodriguez filed the instant

Petition.

On November 30, 2018, the Attorney General filed a motion with

the Second Circuit to expedite adjudication of Rodriguez’s stay

motion. While this motion was pending, DHS conducted another

custodial review on January 7, 2019, and determined that Rodriguez

should remain in custody. On January 11, 2019, the Second Circuit

granted the Attorney General’s motion to expedite, granted

Rodriguez’s stay motion, and granted Rodriguez’s request to appoint

pro bono counsel.

In his Petition, Rodriguez contended that DHS failed to

investigate the possibility that he had derived citizenship. He

also asserted that he is entitled to release from DHS custody

because he has not received regular reviews of his custodial

status, he has been detained for an unreasonable period of time,

and that his detention has no reasonably foreseeable endpoint.

In a Decision and Order dated May 5, 2019 the Court found that

it did not have jurisdiction to consider his claim of derivative

citizenship; that his detention under 8 U.S.C. § 1226(c) did not

violate due process; and that he had no viable claim under Zadvydas

v. Davis, 533 U.S. 678 (2001), because he was not detained under

8 U.S.C. § 1231.

On May 31, 2019, Rodriguez filed a pleading captioned as a

“Reconsediration [sic] and Verified Petition for Writ of Habeas

Corpus Under 28 U.S.C. § 2241 By a Person in Custody.” Motion for

Reconsideration (Docket No. 20) at 1. In it, he “petitions this

Court for a writ of habeas corpus to remedy for ‘Stay of Removal’,

and to enjoin his continued detention by the Respondents.” Id.

Rodriguez reiterates his arguments raised in his original Petition

as to why his detention is unconstitutional and also adds a new

claim a new claim based on the Eighth Amendment’s excessive bail

clause

The Government filed a Memorandum of Law in opposition, and

Rodriguez filed a Response. Again, Rodriguez’s Response is simply

another petition for habeas corpus which re-asserts the same due

process claims previously raised and asserts a new Eighth Amendment

claim.

III. Discussion

“[W]here a post-judgment motion is timely filed and ‘calls

into question the correctness of that judgment it should be treated

as a motion under FRCP 59(e), however it may be formally styled.’”

Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir. 1982)

(quoting Dove v. Codesco, 569 F.2d 807, 809 (4th Cir. 1978)). The

Second Circuit has explained that “[t]he standard for granting a

[motion for reconsideration] is strict, and reconsideration will

generally be denied unless the moving party can point to

controlling decisions or data that the court overlooked—matters, in

other words, that might reasonably be expected to alter the

conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70

F.3d 255, 257 (2d Cir. 1995) (citing Schonberger v. Serchuk, 742

F. Supp. 108, 119 (S.D.N.Y. 1990); Adams v. United States, 686

F. Supp. 417, 418 (S.D.N.Y. 1988)). A motion for reconsideration

may not be used merely as a vehicle for rearguing the merits of the

challenged decision. Fleming v. New York Univ., 865 F.2d 478, 484

(2d Cir. 1989).

Rodriguez has not pointed to any controlling legal decisions

or material evidence that the Court overlooked in reaching its

original decision. Rather, he presents the same arguments that this

Court has already considered and rejected. See Garcia v. Dep’t of

Homeland Sec., No. 10-CV-246 (MAT), 2010 WL 1630412, at *2

(W.D.N.Y. Apr. 21, 2010) (denying reconsideration where detained

alien did not substantiate claim that he was entitled to relief

under Fed. R. Civ. P. 60(b) based on “new evidence”; petitioner

“simply re-argu[ed] his status as a removable alien and his

continued detention, and in doing so, present[ed] the same

arguments that this Court has already twice considered and

rejected”), aff’d, 422 F. App’x 7 (2d Cir. 2011).

With regard to his new claim that his detention violates the

Excessive Bail Clause of the Eighth Amendment to the United States

Constitution, Rodriguez has not explained why he did not raise this

argument in his original petition. In any event, the argument is

not one which would not “alter the conclusion reached by the

court.” Garcia, 2010 WL 1630412, at *2 n.2. Because Rodriguez “has

not been granted release on bond,” he “has no basis for arguing

that the Government is asking him to pay an excessive amount of

bail in order to be released from custody.” Mugiraneza v. Whitaker,

No. 6:19-cv-06140-MAT, 2019 WL 2395316, at *5 (W.D.N.Y. June 6,

2019). Moreover, there is “little reason to believe that the

Excessive Bail Clause might provide relief for mandatory detention

that has become ‘unreasonably prolonged’ when the Due Process

Clause does not.” Sankara v. Barr, No. 19-cv-174, 2019 WL 1922069,

at *9 (Apr. 30, 2019).

IV. Conclusion

For the reasons discussed above, Rodriguez’s Reconsideration

Motion is denied.

SO ORDERED.

S/Michael A. Telesca

HON. MICHAEL A. TELESCA

United States District Judge

Dated: November 14, 2019

Rochester, New York.