Hossain v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MAMUN HOSSAIN,

No. 6:19-cv-06389-MAT

Petitioner, DECISION AND ORDER

-vs-

WILLIAM P. BARR, Attorney General; ;

THOMAS FEELEY, Field Office Director

for Detention and Removal Buffalo

Field Office Bureau of Immigration

and Customs Enforcement Department of

Homeland Security; and JEFFREY

SEARLS, Facility Director, Buffalo

Federal Detention Facility,

Respondents.

I. Introduction

Proceeding pro se, Mamun Hossain (“Hossain” or “Petitioner”)

commenced this habeas proceeding pursuant to 28 U.S.C. § 2241

(“§ 2241”) against the named Respondents (hereinafter, “the

Government”) challenging his continued detention in the custody of

the United States Department of Homeland Security (“DHS”),

Immigration and Customs Enforcement (“ICE”). For the reasons

discussed below, the request for a writ of habeas corpus is denied

and the petition is dismissed without prejudice.

II. Factual Background and Procedural History

Hossain, a native and citizen of Bangladesh, encountered a

Border Patrol Agent on June 23, 2018, after entering the

United States from Mexico. Hossain was arrested, and he admitted

entering the united States without being inspected by an

immigration officer and lacking the necessary legal documents to

enter, pass through, or remain in the United States. Because

Hossain was encountered by border authorities within 100 miles of

the border and within fourteen days of his entry into the

United States, he was statutorily subject to expedited removal

proceedings.

However, Hossain claimed a fear of persecution if he were

returned to Bangladesh. He was afforded an interview with an asylum

officer who determined his fear was credible. Accordingly, Hosassin

was transferred from expedited removal proceedings to standard

immigration removal proceedings by means of a a Notice to Appear

(“NTA”) served on September 18, 2018. The NTA charged him with

subject to removal pursuant to Immigration and Nationality Act

(“INA”) § 212(a)(7)(A)(i)(I) as an immigrant who, at the time of

application for admission, is not in possession of a valid

unexpired immigrant visa, reentry permit, border crossing card, or

other valid entry document required by the INA, a valid unexpired

passport, or other suitable travel document, or document of

identity and nationality as required under the regulations issued

by the Attorney General, and § 212(a)(6)(A)(i) as an alien present

in the United States without being admitted or paroled, or who has

arrived in the United States at any time or place other than as

designated by the Attorney General. A removal hearing was scheduled

for October 31, 2018.

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Also on September 18, 2018, Hossain was notified that,

following a custody determination, DHS would continue to detain

Petitioner pending a final administrative determination in his

immigration proceedings. Hossain signed the custody determination

form notifying him of the decision but did not request or waive

review of DHS’s determination by an immigration judge (“IJ”).

Nonetheless, on September 24, 2018, DHS accepted for filing

Hossain’s motion for an individualized bond hearing before an IJ.

The requested bond hearing was held on October 30, 2018, after

which the IJ denied bond. DHS records indicate that Hossain never

appealed the bond decision to the Board of Immigration Appeals

(“BIA”).

Hossain’s removal hearing, scheduled for October 30, 2018, was

adjourned at his request so that he could retain counsel. The

hearing was rescheduled to November 20, 2018.

On November 16, 2018, Petitioner was transferred to the

Buffalo Federal Detention Facility, in Batavia, New York.

When he appeared on November 20, 2018, before the IJ, Hossain

indicated his intention to file a Form I-589 Application for Asylum

and Withholding of Removal. The IJ adjourned the merits hearing to

allow Hossain to file his Form I-589, and rescheduled the hearing

to February 11, 2019.

On December 21, 2018, Hossain’s counsel requested that the

hearing scheduled for February 11, 2019, be adjourned due to a

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scheduling conflict. The IJ granted the motion and adjourned the

hearing.

The Executive Office of Immigration Review (“EOIR”) cancelled

the April 1, 2019 hearing date and set a new hearing date for

April 23, 2019.

DHS received Hossain’s amended Form I-589 Application for

Asylum and Withholding of Removal on March 13, 2019.

At the merits hearing on April 23, 2019, the IJ denied Hossain’s

applications for relief from removal and ordered him removed to

Bangladesh. On May 17, 2019, Hossain appealed the IJ’s order of

removal to the BIA.

Hossain filed the instant petition (Docket No. 1) on May 23,

2019. The Government filed an answer and return with supporting

exhibits (Docket No. 4) and memorandum of law in opposition (Docket

No. 5). Hossain filed a reply on July 25, 2019 (Docket No. 6).

Hossain’s immigration counsel filed a notice of appearance on

August 22, 2019. Hossain filed a pro se motion for miscellaneous

relief (Docket No. 8) in which he sought to file additional

exhibits and also requested immediate release from custody. On

October 3, 2019, the Court issued a text order (Docket No. 10)

granting the motion solely to the extent that Hossain sought

permission to submit additional exhibits.

On October 8, 2019, Hossain’s immigration attorney filed a

letter (Docket No. 11) attaching a copy of the BIA’s order

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reversing the IJ’s decision denying Hossain’s applications for

relief from removal. The BIA concluded that Hossain established

that he has suffered past persecution (beatings and death threats

by Awami League Members) on account of a protected ground, namely,

his political opinion (as a supporter of the Bangladesh National

Party) and his imputed political opinion (as a close associate of

a prominent BNP member). The BIA accordingly remanded the record

for DHS to rebut the regulatory presumption of future persecution,

either by proving that there has been a fundamental change in

circumstances in Bangladesh such that Hossain no longer has a

well-founded fear of persecution on account of a ground protected,

or that he could avoid future persecution by relocating to another

part of Bangladesh and that, under all the circumstances, it would

be reasonable to expect him to do so. In addition, the BIA directed

the IJ to consider Bangladesh’s government’s “willingness and

ability to protect [Hossain] for asylum and withholding purposes,

or a public official’s ‘acquiescence’ in likely torture for

protection purposes.” Docket No. 11-1, p. 4 of 4. Finally, the IJ

was directed to reassess Hossan’s application for protection under

Article III of the United Nation’s Convention Against Torture

(“CAT”).

III. Scope of Review

Title 28 U.S.C. § 2241 grants this Court jurisdiction to hear

habeas corpus petitions from aliens claiming they are held “in

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violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678,

687 (2001) (citing 28 U.S.C. § 2241(c)(3)). However, the REAL ID

Act of 2005, Pub. L. No. 109-13, § 106(a), 199 Stat. 231 (May 11,

2005) amended the Immigration and Nationality Act (“INA”) to

provide that petitions for review filed in the appropriate Courts

of Appeals were to be the “sole and exclusive means for judicial

review” of final orders of removal. Ruiz-Martinez v. Mukasey, 516

F.3d 102, 113 (2d Cir. 2008) (citing REAL ID Act § 106(c); 8 U.S.C.

§ 1252(a)(5)). In other words, the REAL ID Act “strips district

courts of jurisdiction to hear habeas petitions challenging final

orders of deportation. . . .” De Ping Wang v. Dep’t of Homeland

Sec., 484 F.3d 615, 615-16 (2d Cir. 2007). District courts still

are empowered to grant relief under § 2241 to claims by aliens

under a final order of removal who allege that their post-removal-

period detention and supervision are unconstitutional. See

Zadvydas, 533 U.S. at 687-88; see also Hernandez v. Gonzales, 424

F.3d 42, 42–43 (1st Cir. 2005) (“The Real ID Act deprives the

district courts of habeas jurisdiction to review orders of removal,

. . . [but] those provisions were not intended to ‘preclude habeas

review over challenges to detention that are independent of

challenges to removal orders.’”) (quoting H.R. Cong. Rep.

No. 109-72, at *43 2873 (May 3, 2005)).

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Although this Court has jurisdiction to decide statutory and

constitutional challenges to civil immigration detention, it does

not have jurisdiction to review the discretionary decisions of the

Attorney General. Zadvydas, 533 U.S. at 688 (citing 8 U.S.C.

§ 1252(a)(2)(B)(ii)) (“[N]o court shall have jurisdiction to review

. . . any other decision or action of the Attorney General . . .

the authority of which is specified under this subchapter to be in

the discretion of the Attorney General.”). “[W]hether the district

court has jurisdiction will turn on the substance of the relief

that a [petitioner] is seeking.” Delgado v. Quarantillo, 643 F.3d

52, 55 (2d Cir. 2011) (per curiam).

IV. Discussion

A. Overview of Petitioner’s Claims

Because Hossain 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).

Hossain asserts that, contrary to the Government’s assertion, he is

detained under 8 U.S.C. § 1226(a) rather than id. § 1225(b), and

that he is entitled to relief under Section 2241 on the following

grounds: (1) his detention violates 8 U.S.C. § 1226(a); (2) his

detention without a hearing at which the Government demonstrates by

clear and convincing evidence that he is a flight risk or a danger

to the community violates his right to procedural due process under

the Fifth Amendment; (3) his prolonged detention violates his right

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to substantive due process under the Fifth Amendment; and (4) his

detention violates the Eighth Amendment’s Excessive Bail Clause.

The Government contends that the claims relating to the adequacy of

the bond hearing Hossain received are unexhausted and without

merit, and that his detention has not become unreasonably

prolonged. Hossain has not responded to the Government’s exhaustion

argument.

B. Prudential Exhaustion Requirement

“A habeas petitioner must normally exhaust administrative

remedies before seeking federal court intervention.” Michalski v.

Decker, 279 F. Supp.3d 487, 495 (S.D.N.Y. 2018) (citing Monestime

v. Reilly, 704 F. Supp.2d 453, 456 (S.D.N.Y. 2010) (further

citations omitted)). While Section 2241 does not include a

statutory exhaustion requirement, courts have generally required

exhaustion as a “‘prudential matter.’” Michalski, 279 F. Supp.3d at

495 (quoting Paz Nativi v. Shanahan, No. 16-CV-8496(JPO), 2017 WL

281751, at *1 (S.D.N.Y. Jan. 23, 2017) (citing Araujo–Cortes v.

Shanahan, 35 F. Supp.3d 533, 538 (S.D.N.Y. 2014); Howell v. INS,

72 F.3d 288, 291 (2d Cir. 1995) (“Under the doctrine of exhaustion

of administrative remedies, ‘a party may not seek federal judicial

review of an adverse administrative determination until the party

has first sought all possible relief within the agency itself.’”)

(quoting Guitard v. U.S. Sec’y of Navy, 967 F.2d 737, 740 (2d Cir.

1992))). Likewise, the immigration regulations relating to bond do

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not contain an exhaustion requirement. Rather, when an IJ denies an

immigrant release on bond, that decision may be appealed to the

BIA. See 8 C.F.R. § 1236.1(d)(3) (“An appeal relating to bond and

custody determinations may be filed to the Board of Immigration

Appeals. . . .”); 8 C.F.R. § 1003.19(f) (“An appeal from the

determination by an Immigration Judge may be taken to the Board of

Immigration Appeals pursuant to § 1003.38.”); 8 C.F.R. § 1003.38(b)

(“The Notice of Appeal to the Board of Immigration Appeals of

Decision of Immigration Judge (Form EOIR–26) shall be filed

directly with the Board of Immigration Appeals within 30 calendar

days after the stating of an Immigration Judge’s oral decision or

the mailing of an Immigration Judge’s written decision. . . . A

Notice of Appeal (Form EOIR–26) may not be filed by any party who

has waived appeal.”).

The Government asserts that there is no evidence that Hossain

ever appealed IJ’s decision denying bond to the BIA. See

Declaration of Deportation Officer Keith Oliveri (Docket No. 4-1)

¶ 11 (“There is no indication in DHS records that Petitioner ever

appealed the IJ’s decision regarding bond, and therefore no formal

written memorandum was generated with respect to the hearing. If

Petitioner had appealed the bond decision, a notice of appeal and

a notice of receipt of the appeal by the Board of Immigration

Appeals (“BIA”) would have been received and stored by DHS.”).

Hossain does not dispute this assertion.

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The Court finds that it is inappropriate to waive the

prudential exhaustion requirement in this case. “Courts may require

prudential exhaustion if ‘(1) agency expertise makes agency

consideration necessary to generate a proper record and reach a

proper decision; (2) relaxation of the requirement would encourage

the deliberate bypass of the administrative scheme; and

(3) administrative review is likely to allow the agency to correct

its own mistakes and to preclude the need for judicial review.’”

Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (quotation and

citation omitted); see also, e.g., Weinberger v. Salfi, 422 U.S.

749, 765 (1975). The first factor weights in favor of requiring

exhaustion because there is a clearly established administrative

scheme for dealing with custodial determinations, including an

appeals process to the BIA. Resendiz v. Holder, No. C 12-04850 WHA,

2012 WL 5451162, at *4 (N.D. Cal. Nov. 7, 2012). And, consideration

of the bond claim by the BIA is necessary to generate a proper

record. Because there was no bond memorandum generated due to

Hossain’s failure to appeal the IJ’s decision to the BIA, the only

document in the record regarding the bond hearing is a check-the-

box form indicating that bond was denied and that Hossain had

reserved his right to appeal. There is no explanation whatsoever as

to why the IJ denied bond which leaves the Court unable to conduct

a meaningful review of Hossain’s claim that the wrong standard of

proof was applied at the bond hearing.

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The second factor also weighs in favor of requiring exhaustion

as a prudential matter. “To allow petitioners to circumvent the

appeals procedure and petition the district court for the same

relief that could have been sought before the BIA would ‘encourage

the deliberate bypass of the administrative scheme.’” Resendiz,

2012 WL 5451162, at *4 (quoting Puga, 488 F.3d at 815).

Where, as here, “an exhaustion requirement is judicially

imposed instead of statutorily imposed, a number of exceptions

apply that allow courts to excuse a party’s failure to exhaust

administrative remedies[:] . . . (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.” Beharry v. Ashcroft,

329 F.3d 51, 62 (2d Cir. 2003), as amended (July 24, 2003)

(quotation omitted). “However, merely because exhaustion

requirements are prudential does not mean that they are without

teeth. Even prudential exhaustion requirements will only be excused

in a narrow set of circumstances.” Wilson v. MVM, Inc., 475 F.3d

166, 175 (3d Cir. 2007). In particular, “to invoke the futility

exception to exhaustion, a party must ‘provide a clear showing’ of

futility before the District Court.” Id. (quoting D’Amico v. CBS

Corp., 297 F.3d 287, 293 (3d Cir. 2002)).

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Notably, neither Hossain nor his immigration attorney (who has

appeared in this matter but has not filed any substantive

pleadings) has asserted any reason why he should be excused from

the prudential exhaustion requirement, much less made a “clear

showing” that exhaustion would be futile. The Court observes that

even if Hossain believes that his arguments on administrative

appeal are unlikely to persuade the BIA to reverse the IJ’s custody

determination, that is not enough to establish futility. Torres v.

Decker, No. 18-CV-10026 (VEC), 2018 WL 6649609, at *3 (S.D.N.Y.

Dec. 19, 2018 (citing Beharry, 329 F.3d at 62 (“That [petitioner’s]

argument would likely have failed [before the BIA] is not

tantamount to stating that it would have been futile to raise it.

. . .”)).

Further, even assuming that an appeal to the BIA more than

likely would be rejected as untimely,1 the Court cannot find that

futility has been established. For instance, were the BIA to

dismiss his appeal as untimely, Hossain could file a motion to have

the BIA reconsider the timeliness finding. See In Re Edilzar

Lopez, 22 I. & N. Dec. 16, 16 (BIA 1998) (“Where the Board of

Immigration Appeals dismisses an appeal as untimely, without

1

See, e.g., In Re: Juan Carlos Ramirez Romero, No. : AXX XX1

137 - LOS, 2004 WL 2374862, at *1 (DCBABR Aug. 26, 2004) (per

curiam) (unpublished opn.) (dismissing appeal of IJ’s oral

decision because it was filed more than 30 calendar days after the

issuance of the ruling) (citing 8 C.F.R. § 1003.38(b)(c)).

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adjudication on the merits, the Board retains jurisdiction over a

motion to reconsider its dismissal of the untimely appeal to the

extent that the motion challenges the finding of untimeliness or

requests consideration of the reasons for untimeliness[, such as

ineffectiveness of counsel].”); see also In Re: Juan Carlos Ramirez

Romero, 2004 WL 2374862, at *1 (noting that because it “dismissed

the appeal for lack of jurisdiction, either party wishing to file

a motion in this case should follow the following guidelines: If

you wish to file a motion to reconsider challenging the finding

that the appeal was untimely, you must file your motion with the

Board. However, if you are challenging any other finding or seek to

reopen your case, you must file your motion with the Immigration

Court.”) (citations omitted). It is therefore possible that the BIA

ultimately could accept a late appeal and find that the evidence

proffered at Hossain’s bond hearing was insufficient to establish

he is a flight risk and thus could grant him release on bond,

thereby mooting the constitutional and statutory challenges he

raises here. Torres, 2018 WL 6649609, at *2 (citing Michalski v.

Decker, 279 F. Supp.3d 487, 496 (S.D.N.Y. 2018) (“And even if the

immigration judge denies bond, [the] petition could be mooted if

the Board of Immigration Appeals reverses that determination.”);

Cepeda v. Shanahan, No. 15-CV-09446, 2016 WL 3144394, at *2

(S.D.N.Y. Apr. 22, 2016) (“The BIA may find that the evidence

proffered at [Petitioner’s] bond hearing did not sufficiently

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establish his danger to the public, rendering [his] claim in this

Court moot.”)). An “administrative appeal, therefore, provides a

‘genuine opportunity for adequate relief,’” Torres, 2018 WL

6649609, at *2 (quoting Beharry, 329 F.3d at 62 (citation omitted

in original)), “that would render unnecessary ‘a new [bond] hearing

for [Petitioner] that meets the standards demanded in his

petition[.]’” Id. (quotation to record omitted).

To the extent the petition can be read to suggest that he

will suffer irreparable harm from his continued detention, thereby

excusing him from exhaustion, there is “much authority” foreclosing

this argument. Torres v. Decker, 2018 WL 6649609, at *3 (citing

Michalski, 279 F. Supp.3d at 496 (“[Petitioner’s] claim that

prolonged detention constitutes an irreparable injury that may

excuse exhaustion has been rejected by courts in this District.”);

Giwah v. McElroy, No. 97-CV-2524, 1997 WL 782078, at *4 (S.D.N.Y.

Dec. 19, 1997) (“If incarceration alone were the irreparable injury

complained of, then the exception would swallow the rule that the

INS administrative remedies must be exhausted before resorting to

the federal courts.”); other citation omitted).

In sum, the Court finds that Hossain has not established any

of the exceptions to prudential exhaustion and that the purposes

underlying the prudential exhaustion requirement would be disserved

by entertaining the petition at this juncture. Therefore, the

petition is dismissed without prejudice.

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V. Conclusion

For the foregoing reasons, the petition is dismissed due to

Petitioner’s failure to exhaust administrative remedies. The

dismissal is without prejudice. The Clerk of Court is directed to

close this case.

SO ORDERED.

S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA

United States District Judge

Dated: November 13, 2019

Rochester, New York.

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