# De La Rosa v. Barr

> District Court, W.D. New York · November 7, 2019

URL: https://www.frixlaw.com/law-library/cases/10361506

## Case

- **Court:** District Court, W.D. New York
- **Decided:** November 7, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361506. Public record. Not legal advice.