De La Rosa v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

WANDER DURAN DE LA ROSA,

No. 6:19-cv-06418-MAT

Petitioner, DECISION AND ORDER

-vs-

WILLIAM P. BARR, U.S. Attorney

General; THOMAS E. FEELEY, Field

Office Director for Detention

and Removal, Buffalo Field Office,

Bureau of Immigration and Customs

Enforcement; and JEFFREY J. SEARLS,

Facility Director, Buffalo Federal

Detention Facility,

Respondents.

I. Introduction

Proceeding pro se, Wander De La Rosa (“De La Rosa” 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”). For the

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

denied, and the Petition (Docket No. 1) is dismissed.

II. Factual Background and Procedural History

De La Rosa, a native and citizen of the Dominican Republic,

was admitted to the United States at the New York, New York port of

entry on May 25, 2002, as a lawful permanent resident (“LPR”).

On June 28, 2006, De La Rosa was convicted by guilty plea in

New York State Supreme Court, New York County (“New York County

Supreme Court”) of one count of Criminal Sale of a Controlled

Substance (“CSCS”) in the Third Degree (New York Penal Law (“P.L.”)

§ 220.39(1), for which he was sentenced to three and one-half

years’ imprisonment and two years post-release supervision (“PRS”).

On September 14, 2006, De La Rosa was served with a Notice to

Appear (“NTA”) charging him with being subject to removal pursuant

to Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(iii),

8 U.S.C. § 1227(a)(2)(a)(iii), as an alien who, at any time after

admission, has been convicted of an aggravated felony offense as

defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), namely,

an offense relating to the illicit trafficking in a controlled

substance; and pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C.

§ 1227(a)(2)(B)(i), as an alien who has been convicted of a

controlled substance offense.

However, on January 4, 2007, an immigration judge (“IJ”)

terminated De La Rosa’s removal proceedings in light of his appeal

of his 2006 criminal conviction. On December 2, 2008, the Appellate

Division, First Department, of New York State Supreme Court

unanimously affirmed De La Rosa’s conviction without opinion.

People v. De La Rosa, 57 A.D.3d 220, 869 N.Y.S.2d 844 (1st Dep’t

2008). Leave to appeal was denied by the New York Court of Appeals

on August 12, 2009.

For reasons which are not explained by the Government,

De La Rosa’s guilty plea to third-degree CSCS was subsequently

vacated. On September 13, 2010, De La Rosa entered a guilty plea in

New York County Supreme Court to one count of Criminal Possession

of a Controlled Substance (“CPCS”) in the Third Degree (P.L.

§ 220.16(1)) for which he was sentenced to a term of 42 months’

imprisonment and two years’ PRS.

On February 14, 2018, De La Rosa was convicted in New York

County Supreme Court of third degree CPCS and received a sentence

of two years’ imprisonment and 18 months’ PRS.

Upon being released from the custody of the New York State

Department of Corrections and Community Supervision on November 15,

2018, De La Rosa was taken into DHS custody and placed in removal

proceedings via a NTA. The NTA charged him with being subject to

removal pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C.

§ 1227(a)(2)(B)(i), as an alien who has been convicted of a

controlled substance offense, based on his February 2018 conviction

for third-degree CPCS.

On November 13, 2018, and November 19, 2018, DHS determined to

continue De La Rosa’s detention pending a final administrative

decision in his removal proceeding. De La Rosa requested that an IJ

review DHS’s custody determination.

On November 30, 2018, DHS filed Additional Charges of

Inadmissibility/Deportability against De La Rosa, charging him with

being subject to removal pursuant to INA § 237(a)(2)(B)(i),

8 U.S.C. § 1227(a)(2)(B)(i), as an alien who has been convicted of

a controlled substance offense based on his September 2010

conviction for third-degree CPCS.

De La Rosa’s removal proceedings were continued at his

attorney’s request on several occasions. On December 12, 2018,

counsel obtained an adjournment until January 7, 2019. On

January 7, 2019, the proceedings were further adjourned until

January 28, 2019, to allow additional time for counsel to prepare.

At the Joseph hearing1 on January 28, 2019, an IJ determined that

De La Rosa was subject to mandatory detention under INA § 236(c),

8 U.S.C. § 1226(c) and statutorily ineligible for bond. De La Rosa

waived his right to appeal the IJ’s decision. Also at the

January 28th hearing, De La Rosa conceded that he is removable and

was given an opportunity to file applications for relief from

removal. The proceedings were continued until March 19, 2019, for

that purpose. On February 12, 2019, De La Rosa’s counsel filed a

motion to adjourn the March 19, 2019 hearing, which was granted.

The matter was rescheduled for April 9, 2019.

On April 9, 2019, and May 3, 2019, an IJ conducted hearings

regarding De La Rosa’s application for withholding and deferral of

1

While the applicable statute and regulations prohibit an IJ from releasing

an individual detained pursuant to Section 1226(c), see 8 C.F.R.

§ 1003.19(h)(2)(i)(D), a person detained under § 1226(c) may request a hearing

before an IJ to assess whether he or she is actually subject to mandatory

detention under the statute. 8 C.F.R. § 1003.19(a), (b), and (h)(2)(ii); Matter

of Joseph, 22 I. & N. Dec. 799 (BIA 1999)). A Joseph hearing charges ICE with

the initial burden of showing there is “reason to believe” that the alien is

deportable or inadmissible under a ground listed in Section 1226(c)(1)(A)-(D).

Matter of Joseph, 22 I. & N. Dec. at 803-04; citing Matter of U-H-, 23 I. & N.

Dec. 355, 356 (BIA 2002) (“reason to believe” standard is equivalent to “probable

cause” standard)). Once the Government has carried that burden, an individual

detained under § 1226(c) may secure a bond hearing only if he or she is able to

affirmatively demonstrate that the Government’s charges are meritless, and

therefore, he or she is not “properly included” under § 1226(c). Matter of

Joseph, 22 I. & N. Dec. at 806-07.

removal under Article III of the Convention Against Torture

(“CAT”). At the hearings, De La Rosa testified regarding his fear

of persecution in the Dominican Republic and called an expert

witness, a former agent with the Drug Enforcement Administration.

On June 21, 2019, the IJ issued an unfavorable decision on the

application for relief under the CAT and ordered De La Rosa removed

from the United States to the Dominican Republic. De La Rosa

appealed the IJ’s decision to the Board of Immigration Appeals

(“BIA”) on July 10, 2019.

De La Rosa commenced the instant proceeding on, asserting that

his detention without a bond hearing violates the Fifth Amendment’s

Due Process Clause and the Eighth Amendment’s Excessive Bail

Clause. The Government, on August 16, 2019, filed an answer and

return (Docket No. 3) along with supporting declarations and

exhibits (Docket Nos. 3-1 to 3-5) and a memorandum of law (Docket

No. 4). At the time of the Government’s response to the petition,

De La Rosa’s appeal to the BIA remained pending. On August 27,

2019, De La Rosa filed two replies (Docket Nos. 6 & 7), one of

which (Docket No. 7) appended letters of support from friends and

relatives and records from his state court criminal proceedings.

The matter was transferred to the undersigned on October 2, 2019.

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

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 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)).

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. Claim One: Fifth Amendment Due Process

De La Rosa asserts that his ongoing prolonged detention

without an individualized hearing before a neutral decisionmaker

violates his procedural due process rights under the Fifth

Amendment.

“[I]n a series of decisions since 2001, the Supreme Court . .

. ha[s] grappled in piece-meal fashion with whether the various

immigration detention statutes may authorize indefinite or

prolonged detention of detainees and, if so, may do so without

providing a bond hearing.” Rodriguez v. Robbins, 804 F.3d 1060,

1067 (9th Cir. 2015), rev’d on other grounds sub nom Jennings v.

Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018).

Of particular relevance here is Demore v. Kim, 538 U.S. 510 (2003),

wherein the Supreme Court considered a due process challenge to

§ 1226(c), the statute pursuant to which De La Rosa is presently

detained. Section 1226(c), which mandates detention during removal

proceedings for noncitizens convicted of certain crimes, was

Congress’s response to the high rates of crime and flight by

certain removable noncitizens, including those convicted of an

aggravated felony. Demore, 538 U.S. at 517-18. The Supreme Court

found that § 1226(c) as applied to the detainee in that case was

not unconstitutional because “the Government may constitutionally

detain deportable [noncitizens] during the limited period necessary

for their removal proceedings.” Id. at 518-21, 526. In so holding,

the Supreme Court stressed the “brief” nature of the mandatory

detention under § 1226(c), which has “a definite termination point”

that, in the vast majority of cases, resulted in a period of

detention lasting less than five months. Id. at 529-30. The

concurring opinion by Justice Kennedy, which created the majority

in Demore, reasoned that under the Due Process Clause, a noncitizen

could be entitled to “an individualized determination as to his

risk of flight and dangerousness if the continued detention became

unreasonable or unjustified.” Id. at 532 (concurring opn., Kennedy,

J.) (emphasis supplied).

In 2015, the Second Circuit held that, as a matter of

statutory interpretation, § 1226(c) entitled detainees to a bond

hearing before a neutral arbiter once their detention reached six

months. Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), cert.

granted, judgment vacated, 138 S. Ct. 1260 (2018), on remand to 719

F. App’x 79 (2d Cir. 2018) (appeal dismissed as moot). However,

Lora—along with similar decisions from a number of other

circuits—were vacated by Jennings v. Rodriguez, 138 S. Ct. 830

(2018), which held that § 1226(c) contains no temporal limitation

on detention. See id. at 846 (“[Section] 1226(c) does not on its

face limit the length of the detention it authorizes. In fact, by

allowing aliens to be released ‘only if’ the Attorney General

decides that certain conditions are met, § 1226(c) reinforces the

conclusion that aliens detained under its authority are not

entitled to be released under any circumstances other than those

expressly recognized by the statute. And together with § 1226(a),

§ 1226(c) makes clear that detention of aliens within its scope

must continue ‘pending a decision on whether the alien is to be

removed from the United States.’ § 1226(a).”) (emphasis in

original). The Supreme Court ruled only on the alien’s statutory

interpretation claims and expressly declined to consider their Due

Process arguments, on which the lower courts had not yet spoken.

Id. at 851.

In the wake of Jennings, district courts all over the country

have struggled with how to address Due Process challenges to

mandatory detention under § 1226(c). The Court agrees with the

district courts in this Circuit “‘that have found that, at some

point, detention without a hearing offends the Due Process

Clause[.]’” Lett v. Decker, 346 F. Supp.3d 379, 387 (S.D.N.Y. 2018)

(quoting Young v. Aviles, 99 F. Supp.3d 443, 455 (S.D.N.Y. 2015)),

“and that ‘“determining whether mandatory detention has become

unreasonable “is a fact-dependent inquiry requiring an assessment

of all the circumstances of a given case,”’” id. (quoting Perez v.

Decker, No. 18-CV-5279(VEC), 2018 WL 3991497, at *4 (S.D.N.Y.

Aug. 20, 2018) (quoting Sajous v. Decker, No. 18-CV-2447 (AJN),

2018 WL 2357266, at *10 (S.D.N.Y. May 23, 2018)); see also, e.g.,

Sankara v. Barr, No. 19-CV-174, 2019 WL 1922069, at *6 (W.D.N.Y.

Apr. 30, 2019). The majority of these district courts have engaged

in a case-specific analysis that involves consideration of several

factors derived from, e.g., the Supreme Court’s decision in Demore,

and pre-Jennings decisions from the First, Third, Sixth, and

Eleventh Circuits regarding the reasonableness of prolonged

detention under § 1226(c). See, e.g., Sajous, 2018 WL 2357266, at

*10-*11 (factors to be considered are (1) the length of time the

alien has already been detained, the “first, and most important”

factor; (2) the extent to which the alien is responsible for the

delay; (3) the extent to which the Government is responsible for

the delay; and (4) whether the alien has asserted any defenses to

removal, i.e., the likelihood that the removal proceedings will

result in a final order of removal; other factors that “may be

relevant” are the length of an alien’s criminal sentence versus the

length of the civil detention and whether the facility is

meaningfully different than a penal institution) (citations

omitted).

Here, after considering the above-referenced factors, the

Court concludes that De La Rosa’s detention without a bond hearing

has not become unreasonably prolonged so as to violate Due Process.

De La Rosa has been in DHS custody since November 15, 2018, just

shy of one year. The length of his proceedings to date is not

insignificant and, accordingly, it tends to weigh in his favor. On

the other hand, 12 months does not exceed the time De La Rosa spent

in prison for the crimes that have rendered him deportable. As

discussed above, De La Rosa’s drug-related convictions in 2006,

2010, and 2018 subjected him to terms of imprisonment of three and

one-half years, 42 months, and two years, respectively. While it

does not appear that he served the full length of those sentences,

the aggregate time he spent incarcerated is greater than the time

he has been civilly detained. This factor weighs against finding a

due process violation.

Also, “the sheer length of the proceedings is not alone

determinative of reasonableness.” Debel v. Dubois, No. 13-CV-6028

(LTS)(JLC), 2014 WL 1689042, at *5 (S.D.N.Y. Apr. 24, 2014). Courts

in this Circuit routinely have found periods of detention

comparable to or greater than De La Rosa’s to be constitutional.

See, e.g., Richardson v. Shanahan, No. 15 CIV. 4405 AJP, 2015 WL

5813330, at *6 (S.D.N.Y. Oct. 6, 2015) (citing Hylton v. Shanahan,

15 Civ. 1243, 2015 WL 36044328, at *1, *5–6 (S.D.N.Y. June 9, 2015)

(23-month detention constitutional); Baker v. Johnson, 2015 WL

2359251, at *13 (11-month detention at time of filing and likely 15

to 17-month total detention constitutional); Vaskovska v. Holder,

No. 14–CV–270, 2014 WL 4659316, at *1–*4 (W.D.N.Y. Sept. 17, 2014)

(15 month detention by date opinion issued constitutional); Debel,

2014 WL 1689042, at *6 (18-month detention constitutional even

though total detention time ultimately was “likely” to exceed

2 years); Johnson, 942 F. Supp.2d, at 408–10 (15-month detention

constitutional); Johnson v. Phillips, No. 10–CV–480, 2010 WL

6512350 at *6–*7 (W.D.N.Y. Dec. 20, 2010) (17-month detention),

report & rec. adopted, 2011 WL 1465448 (W.D.N.Y. Apr. 18, 2011);

Luna–Aponte v. Holder, 743 F. Supp.2d 189, 197 (W.D.N.Y. 2010)

(detention for over 3 years constitutional); Adreenko v. Holder, 09

Civ. 8535, 2010 WL 2900363, at *3–*4 (S.D.N.Y. June 25, 2010)

(13-month detention constitutional); Adler v. U.S. Dep’t of

Homeland Sec., 09 Civ. 4093, 2009 WL 3029328, at *2 (S.D.N.Y.

Sept. 22, 2009) (15-month detention constitutional)).

With regard to the factor that considers which party is

responsible for the delay, it appears that any delays have been

attributable to De La Rosa’s requests for adjournments. As noted

above, De La Rosa was taken into DHS custody on November 15, 2018;

DHS filed additional charges of deportability on November 30, 2018;

and his first hearing before an IJ was scheduled for December 21,

2018. However, on December 12, 2018, De La Rosa’s counsel obtained

an adjournment of the hearing until January 28, 2019. Thereafter,

counsel sought additional adjournments until April 9, 2019, for

various reasons, including a scheduling conflict, the need to

investigate De La Rosa’s case, and the necessity of preparing

applications for relief from removal after De La Rosa conceded his

removability at the January 28, 2019 Joseph hearing. There is no

suggestion that any of these adjournments were motivated by

dilatory tactics on the part of De La Rosa’s counsel; at the same

time, there is no evidence that the proceedings have been prolonged

by dilatory tactics on the part of the Government. See Debel v.

Dubois, 2014 WL 1689042, at *5 (“[T]he principal factor considered

in constitutional review of detention pending removal proceedings

is the degree to which the proceedings have been prolonged by

unreasonable government action.”) (comparing Adler v. U.S. Dep’t of

Homeland Sec., No. 09 Civ. 4093(SAS), 2009 WL 3029328, at *2

(S.D.N.Y. Sept. 22, 2009) (15–month detention reasonable because

there was “no evidence . . . that the government ha[d] dragged its

feet”), with Ly v. Hansen, 351 F.3d 263, 272–73 (6th Cir. 2003)

(detention unreasonable because INS “drag[ged] its heels

indefinitely in making a decision”)). Under these circumstances, it

appears that De La Rosa’s detention, at this point, is still

serving the legitimate purpose of facilitating his appearance for

his removal proceedings. Cf. Demore, 538 U.S. at 532–33 (Kennedy,

J., concurring) (“Were there to be an unreasonable delay by the INS

in pursuing and completing deportation proceedings, it could become

necessary then to inquire whether the detention [under § 1226(c)]

is not to facilitate deportation, or to protect against risk of

flight or dangerousness, but to incarcerate for other reasons. . .

.”); see also Dryden v. Green, 321 F. Supp. 3d 496, 503 (D.N.J.

2018) (given petitioner’s decisions to seek multiple continuances

in that matter, the relatively swift course of his removal

proceedings following his filing of requests for relief from

removal, the lack of bad faith or dilatoriness by the Government,

district court could not conclude that detention for just over a

year under § 1226(c) had become so prolonged as to arbitrary or

unconstitutionally unreasonable; it fully appeared that detention

still served the purposes of § 1226(c)—specifically ensuring that

petitioner appears for his immigration proceedings). Therefore,

De La Rosa has failed to demonstrate that § 1226(c) is

unconstitutional as applied to him, and his habeas petition must be

denied without prejudice at this time. E.g., Dryden, 321 F. Supp.3d

at 503.

B. Claim Two: Eighth Amendment’s Excessive Bail Clause

In his second claim for relief, De La Rosaa asserts that his

prolonged detention violates the Eighth Amendment which prohibits

“excessive bail.” Pet. ¶ 41 (quoting U.S. CONST., amend. VIII). The

Eighth Amendment states, “Excessive bail shall not be required . .

. .” U.S. CONST., amend. VIII. The Excessive Bail Clause does not

“accord a right to bail in all cases, but merely [provides] that

bail shall not be excessive in those cases where it is proper to

grant bail.” Carlson v. Landon, 342 U.S. 524, 545 (1952); see also

Leader v. Blackman, 744 F. Supp. 500, 509 (S.D.N.Y. 1990) (“It is

well settled that bail may be denied under many circumstances,

including deportation cases, without violating any constitutional

rights.”). Petitioner fails to point to any authority establishing

that it is proper to grant him bail under the Eighth Amendment.

Therefore, the Court denies this claim. Banda v. McAleenan, 385

F. Supp.3d 1099, 1121 (W.D. Wash. 2019).

V. Conclusion

For the foregoing reasons, the request for a writ of habeas

corpus is denied, and the Petition (Docket No. 1) is dismissed

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 7, 2019

Rochester, New York.

-15-