holding that detention under § 1231(a) violates due process only if removal is not “reasonably foreseeable”
How later courts described this case
- holding that detention under § 1231(a) violates due process only if removal is not “reasonably foreseeable”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
ADRIAN OMALIKI SEBASTIAN PRASS,
Petitioner, DECISION AND ORDER
-vs-
19-CV-6397 (CJS)
WILLIAM P. BARR, Attorney General
of the United States, et al.,
Respondents.
__________________________________________
This matter is before the Court on Respondents’ motion to dismiss Petitioner’s
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Mot. to Dismiss,
Feb. 6, 2020, ECF No. 10. Respondents argue that Petitioner’s application is moot
because Petitioner became subject to a final order of removal on January 27, 2020. Resp.
Mem. of Law at 2, Feb. 6, 2020, ECF No. 11. For the reasons that follow, Respondents’
motion to dismiss [ECF No. 10] is granted, Petitioner’s application for a writ of habeas
corpus [ECF No. 1] is dismissed without prejudice, and the Clerk is instructed to close
this case.
BACKGROUND
Petitioner is a native and citizen of Guyana, who was admitted to the United
States as a lawful permanent resident on May 22, 1997. Pet., ¶ 15, May 29, 2019, ECF
No. 1. He has been incarcerated seven times for violations of New York law. Pet. at ¶
23. In September 2010, Petitioner left the United States and did not return until October
2015. Mot. to Dismiss, Ex. 1 (Decision of the Board of Immigration Appeals), 1, Feb. 6,
2020, ECF No. 10-1.
Upon arrival in the United States in October 2015, Petitioner applied for
admission as a lawful permanent resident without a reentry permit or a document
allowing him to remain outside the United States for an extended period of time. Decl.
of Thomas J. Hannigan, ¶ 6, Aug. 29, 2019, ECF No. 7-1 (“Hannigan Decl”). After a
review by a Customs official, Petitioner was charged pursuant to 8 U.S.C. §
1182(a)(7)(A)(i)(I) as an arriving alien “who is not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing identification card, or other valid entry
document required by this chapter . . . .” Hannigan Decl. at ¶ 9. Nevertheless, he was
granted parole into the country. Id. at ¶ 10.
On November 14, 2017, Petitioner was apprehended trying to cross into Canada
from Buffalo, New York, and was transferred to Department of Homeland Security
(“DHS”) custody at the Buffalo Federal Detention Facility. Hannigan Decl. at ¶ 12. DHS
determined that Petitioner would be held without bail pending a hearing before an
Immigration Judge. Id. Petitioner alleges that he has never received a bail hearing to
determine whether he poses a flight risk. Pet. at ¶ 2.
Petitioner filed his application for a writ of habeas corpus on May 29, 2019
claiming that his prolonged detention violated his due process rights under the Fifth
Amendment, and that his ongoing detention without bail violated the Eighth
Amendment. Pet. at ¶ 46–53. On August 19, 2019, an Immigration Judge found that
Petitioner had abandoned his lawful permanent resident status during his five year
absence from this country, and that he was removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I).
Ex. 1 at 1. On January 27, 2020, the Board of Immigration Appeals (“BIA”) adopted the
Immigration Judge’s written decision, and dismissed Petitioner’s appeal. Id.
Respondents now move the Court to dismiss Petitioner’s application for a writ of
habeas corpus because the change in basis for Petitioner’s detention “renders Petitioner’s
claim to prolonged detention premature and warrants dismissal of this habeas
proceeding.” Resp. Mem. of Law at 2.
DISCUSSION
The parties seem to disagree as to the statutory basis for Petitioner’s detention
prior to the BIA’s dismissal of Petitioner’s appeal on January 27, 2020.1 However, it is
undisputed that the statutory basis changed to 8 U.S.C. § 1231 following the BIA’s
January 27, 2020 decision.
Section 1231(a) governs the detention of aliens during and after the 90 day
“removal period.” See Guerra v. Shanahan, 831 F.3d 59, 62 (2d Cir. 2016). § 1231(a)(1)(A)
provides that the removal period begins at the latest of the following events:
(i) The date the order of removal becomes administratively final;
(ii) If the removal order is judicially reviewed and if a court orders a stay
of the removal of the alien, the date of the court’s final order;
(iii) If the alien is detained or confined (except under an immigration
process), the date the alien is released from detention or
confinement.
Hechavarria v. Sessions, 891 F.3d 49, 55 (2d Cir. 2018), as amended (May 22, 2018)
(quoting 8 U.S.C. § 1231(a)(1)(B)). Under 8 C.F.R. § 1241.1(a), “[a]n order of removal
made by the immigration judge . . . shall become final . . . [u]pon dismissal of an appeal
by the” BIA. Therefore, Petitioner’s order of removal became “administratively final”
when the BIA dismissed his appeal on January 27, 2020.
During the 90-day removal period, detention of the alien is required. Guerra, 831
F.3d at 62 (citing 8 U.S.C. § 1231(a)(1)-(2)). After the removal period has expired,
detention is discretionary, but a bond hearing is not authorized if removal is “reasonably
foreseeable.” 8 U.S.C. § 1231(a)(6). See also Zadvydas v. Davis, 533 U.S. 678, 699 (2001)
(holding that detention under § 1231(a) violates due process only if removal is not
“reasonably foreseeable”).
1 Whereas Petitioner’s argument for his right to a bond hearing appears to be predicated on his
detention under 8 U.S.C. § 1226, Respondents argued the basis was § 1225(b). See, e.g., Pet. at ¶ 12;
Resp., 6, Aug. 29, 2019, ECF No. 8.
The Second Circuit Court of Appeals was faced with circumstances similar to the
present case in Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003). In that case, the petitioner
argued that his prolonged detention under 8 U.S.C. § 1226 violated his due process rights.
Wang, 320 F.3d at 146–147. However, the Second Circuit noted that because the
petitioner was subject to a final order of approval, his detention was governed by 8 U.S.C.
§ 1231. Id. at 147. The appeals court concluded that “[t]o the extent that Wang
previously may have had a cognizable due process argument under [§ 1226], that claim
has been rendered moot” by the final order of removal. Id. (citing Al Najjar v. Ashcroft,
273 F.3d 1330, 1338 (11th Cir.2001); United States ex rel. Spinella v. Savoretti, 201 F.2d
364 (5th Cir.1953)). See also Shiqi Xue v. Holder, 354 F. App'x 596, 597 (2d Cir. 2009).
Likewise, in this case the Court finds that, to the extent Petitioner may have had
a cognizable Fifth Amendment or Eighth Amendment argument prior to the BIA’s
January 27, 2020 dismissal of his appeal, that claim has been rendered moot. Wang, 320
F.3d at 147. Accordingly, it is hereby
ORDERED, that Respondents’ motion [ECF No. 10] is granted; and it is further
ORDERED, that Petitioner’s application [ECF No. 1] is dismissed without
prejudice. The Clerk of the Court is directed to terminate this action.
SO ORDERED.
Dated: March 26, 2020
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge