Khalili v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

BEHZAD KHALILI,

Petitioner, DECISION AND ORDER

v. 6:19-CV-06373 EAW

WILLIAM P. BARR, Attorney General,

et al.,

Respondents.

INTRODUCTION

Pro se petitioner Behzad Khalili (“Petitioner”), a civil immigration detainee

currently held at the Buffalo Federal Detention Facility in Batavia, New York, filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). The Court

issued a Decision and Order on October 28, 2019 (the “D & O”), finding that Petitioner

was entitled to an individualized bond hearing at which the Government bore the burden

of proving by clear and convincing evidence that Petitioner poses either a risk of flight or

a danger to the community. (Dkt. 11). Judgment granting the Petition in part pursuant to

the D & O was entered on October 30, 2019. (Dkt. 12). Presently before the Court is

Petitioner’s motion to enforce the Judgment (Dkt. 13) and motion for immediate release

(Dkt. 19). Petitioner’s motions are denied for the reasons that follow.

BACKGROUND

The factual background of this case is set forth in detail in the D & O, familiarity

with which is assumed for purposes of this Decision and Order. The Court has summarized

the key details below, and includes the relevant developments since the Court’s issuance

of the D & O.

Petitioner is a native and citizen of Iran whose application for lawful permanent

resident status was denied by U.S. Citizenship and Immigration Services (“USCIS”) on

June 24, 2017, after USCIS concluded that Petitioner obtained lawful permanent residence

in the United States by fraud and willful misrepresentation of material facts, including his

name, date of birth, and experiences in Iran, to obtain an immigration benefit. (Dkt. 5-1 at

¶¶ 5, 11, 13). Petitioner was arrested on July 23, 2018, and placed in immigration removal

proceedings by a Notice to Appear charging him with being subject to removal from the

United States pursuant to 8 U.S.C. § 1227(a)(1)(a). (Id. at ¶ 15).

On July 23, 2018, DHS determined that Petitioner would be detained in the custody

of the Department of Homeland Security (“DHS”) pending a final administrative

determination of his immigration case, and Petitioner requested that an immigration judge

(“IJ”) review the custody determination. (Id. at ¶ 16). A bond hearing was held on October

9, 2018, and the IJ denied Petitioner’s request for a change in custody status. (Id. at ¶ 17).

Petitioner appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). On

February 11, 2019, an IJ denied Petitioner’s applications for relief from removal from the

United States to Iran, a decision Petitioner also appealed to the BIA. (Id. at ¶ 23).

On March 11, 2019, the BIA dismissed Petitioner’s appeal of the IJ’s bond decision.

(Dkt. 5-2 at 111). Petitioner filed a motion to reconsider the BIA’s decision, which the

BIA denied on May 21, 2019. (Id. at ¶ 28). On July 9, 2019, the BIA dismissed Petitioner’s

appeal of the IJ’s order denying his applications for relief from removal and ordering his

removal from the United States. (Id. at ¶ 30). Petitioner filed a petition for review and

motion for stay of removal with the Second Circuit on July 19, 2019, which remain pending

before the Second Circuit. (Id. at ¶¶ 31-33); see generally Docket, Khalili v. Barr, No. 19-

2219 (2d Cir. July 19, 2019).

Petitioner filed the Petition in the instant matter on May 20, 2019 (Dkt. 1), and this

Court granted the Petition in part on October 28, 2019, finding that Petitioner was entitled

to a bond hearing pursuant to 8 U.S.C. § 1226(a) where the Government bore the burden

of demonstrating by clear and convincing evidence that Petitioner is either a risk of flight

or a danger to the community (Dkt. 11). The D & O was entered on October 29, 2019 (id.),

and a Judgment was entered on October 30, 2019 (Dkt. 12).

Petitioner’s bond hearing was held on November 6, 2019, and the IJ orally denied

bond at the conclusion of the hearing. (Dkt. 16 at ¶ 6; Dkt. 18-1 at 21-36). On November

21, 2019, Petitioner appealed the bond decision to the BIA, and the IJ issued a written

decision denying Petitioner’s release on bond on December 6, 2019. (Dkt. 16 at ¶ 7; Dkt.

16-4).

Petitioner filed the instant motion to enforce on December 5, 2019. (Dkt. 13). On

December 20, 2019, Respondents submitted their opposition (Dkt. 15), and Petitioner

replied on January 2, 2020 (Dkt. 17). On January 24, 2020, Respondents submitted a

supplemental declaration with a transcript of the November 6, 2019 bond hearing. (Dkt.

18). Petitioner filed his motion for immediate release on April 14, 2020. (Dkt. 19).

DISCUSSION

Petitioner contends that he did not receive a constitutionally adequate bond hearing

as required by the D & O and asks the Court to order that Respondents immediately release

him. (Dkt. 13 at 18). The Court finds Respondents afforded Petitioner a constitutionally

adequate bond hearing pursuant to the D & O for the reasons that follow.

I. Jurisdiction

The federal habeas corpus statute gives district courts jurisdiction to hear

immigration-related detention cases. See 28 U.S.C. § 2241(c)(3); Demore v. Kim, 538 U.S.

510, 517-18 (2003) (holding federal courts have jurisdiction to review challenges to pre-

removal detention); Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding Ҥ 2241 habeas

corpus proceedings remain available as a forum for statutory and constitutional challenges

to post-removal-period detention” in immigration cases). District courts do not have

jurisdiction over challenges to the legality of final orders of deportation, exclusion, and

removal; jurisdiction to review such challenges rests exclusively in circuit courts. See

Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005) (“[The REAL ID Act, 119 Stat. 231,

§ 106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of deportation,

exclusion, and removal, providing instead for petitions of review . . . which circuit courts

alone can consider.”).

Respondents rely on the language in 8 U.S.C. § 1226(e) to argue that the Court “has

limited subject matter jurisdiction to review the IJ’s bond denial.” (Dkt. 15 at 7-8).

Respondents contend that the Court cannot review certain discretionary decisions by the IJ

such as whether the government met its burden at the bond hearing or whether the IJ failed

to consider certain evidence. (Id.).

As an initial matter, it is not clear that 8 U.S.C. § 1226(e) applies here. Section

1226(e) states:

The Attorney General’s discretionary judgment regarding the application of

this section shall not be subject to review. No court may set aside any action

or decision by the Attorney General under this section regarding the

detention or release of any alien or the grant, revocation, or denial of bond or

parole.

8 U.S.C. § 1226(e) (emphases added). “The Court is skeptical that [Petitioner’s] bond

hearing constitutes a proceeding conducted under Section 1226; rather, it was a court-

ordered bond hearing that demanded procedural protections beyond those compelled by

the statute itself.” Gutierrez Cupido v. Barr, No. 19-CV-6367-FPG, 2020 WL 103477, at

*2 (W.D.N.Y. Jan. 9, 2020) (citing Jennings v. Rodriguez, 138 S. Ct. 830, 847-48 (2018));

see Darko v. Sessions, 342 F. Supp. 3d 429, 434-35 (S.D.N.Y. 2018) (“[W]hile the

Supreme Court held that § 1226(a) does not mandate that a clear and convincing evidence

burden be placed on the government in bond hearings, it left open the question of whether

the Due Process Clause does.”).

Even if the bond hearing ordered by the Court was a bond hearing pursuant to 8

U.S.C. § 1226, courts in this District, including this Court, have held that § 1226(e) does

not limit a district court’s jurisdiction to determine whether an IJ followed a court order

granting a bond hearing pursuant to the Fifth Amendment. See Apollinaire v. Barr, No.

19-CV-6285-FPG, 2019 WL 4023560, at *2 (W.D.N.Y. Aug. 27, 2019) (“[T]he statute

presents no obstacle to review because the Court is not reviewing an immigration judge’s

discretionary judgment, but whether its order was followed[.]”); Hechavarria v. Whitaker,

358 F. Supp. 3d 227, 235-36 (W.D.N.Y. 2019) (“[T]he Court is not reviewing a

discretionary judgment of the IJ under § 1226, and it is not ‘set[ting] aside any action or

decision by the Attorney General under § 1226. Nor is this Court simply reviewing, as the

government contends, how the IJ applied [the clear and convincing] burden to the facts

before it and weighed the evidence. Instead, the Court is determining whether the order it

issued on November 2, 2018, was followed—that is, whether [the petitioner] received the

due process to which he was entitled.” (alterations in original) (quotations, citation, and

footnote omitted)); see also Blandon v. Barr, __ F. Supp. 3d. __, No. 6:18-CV-06941

EAW, 2020 WL 465728, at *2-3 (W.D.N.Y. Jan. 22, 2020). In other words, it is not

§ 1226(e) that limits what the Court can review, but the contents of the D & O.

In the instant matter, the D & O required the Government to bear the burden of

proving by clear and convincing evidence that Petitioner poses either a risk of flight or

danger to the community justifying his continued detention without bond. (Dkt. 11 at 8).

Therefore, the Court is limited on this motion to reviewing whether the burden of proof

was in fact on the Government at Petitioner’s November 6, 2019 bond hearing. The Court

agrees with Respondents that this limitation means it cannot review the substance of the

IJ’s decision regarding whether the government met its burden; however, whether the IJ

failed to consider certain evidence without explanation is a procedural question that could

be relevant to determining whether a clear and convincing evidence burden was actually

applied at Petitioner’s bond hearing. The Court approaches Petitioner’s present motion

accordingly. See Apollinaire, 2019 WL 4023560, at *3 (“[I]t is important to emphasize

that the Court’s task is narrow: it is to determine whether Respondent complied with the

Decision and Order, not to review the hearing evidence de novo[.]”); see also Gutierrez

Cupido, 2020 WL 103477, at *3 (same); Hechavarria, 358 F. Supp. 3d at 236 (“[T]he

Court is determining whether the order it issued on November 2, 2018, was followed—that

is, whether Hechavarria received the due process to which he was entitled.”); Nguti v.

Sessions, No. 16-CV-6703, 2017 WL 5891328, at *2 (W.D.N.Y. Nov. 29, 2017) (“In

reviewing the government’s compliance with the May 2, 2017 order, this Court is careful

not to overstep its bounds and set aside an immigration judge’s bond determination on

discretionary or evidentiary grounds.”).

II. Compliance with the D & O

In the D & O, the Court ordered Respondents to provide Petitioner with a bond

hearing where the Government bore “the burden of proving by clear and convincing

evidence that Petitioner poses either a risk of flight or danger to the community justifying

his continued detention without bond.” (Dkt. 11 at 8). Accordingly, the Court must now

determine whether during Petitioner’s bond hearing the IJ “relied upon proof that could not

possibly establish by clear and convincing evidence—as a matter of law—that [Petitioner]

was a danger to the community” or a flight risk. Nguti, 2017 WL 5891328, at *2; see

Apollinaire, 2019 WL 4023560, at *3 (same).

“[C]lear and convincing evidence . . . means something more than ‘preponderance

of the evidence,’ and something less than ‘beyond a reasonable doubt.’” United States v.

Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985). “The clear-and-convincing burden of proof

‘requires the government to prove that a factual contention is highly probable.’”

Apollinaire, 2019 WL 4023560, at *3 (quoting Hechavarria, 358 F. Supp. 3d at 240); see

Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (discussing that clear and convincing

evidence requires presenting evidence that shows “the truth of its factual contentions are

‘highly probable’”). Courts in this Circuit have found that the clear and convincing

threshold is met when the IJ “review[s] the evidence, hear[s] arguments from both sides,

and c[omes] to a legally permissible conclusion in light of the available evidence.” Medley

v. Decker, No. 18-CV-7361 (AJN), 2020 WL 1033344, at *3 (S.D.N.Y. Mar. 3, 2020)

(quoting Apollinaire, 2019 WL 4023560, at *3).

The Court finds that on November 6, 2019, Respondents provided Petitioner with a

bond hearing where they bore the burden of proving by clear and convincing evidence that

Petitioner was a flight risk.1 In the bond hearing decision, the IJ found “that DHS has met

its burden of establishing by clear and convincing evidence that [Petitioner] . . .constitutes

a risk of flight.” (Dkt. 16-4 at 6). The IJ discussed Petitioner’s “extensive and well-

documented history of engaging in immigration fraud,” as well as the record evidence that

the IJ found demonstrates Petitioner “will undertake whatever is necessary to achieve his

objectives, including fraud against the United States government.” (Id. at 6-7).

Additionally, the IJ noted that “DHS has submitted substantial and persuasive evidence

demonstrating that [Petitioner] has engaged in multiple material misrepresentations and

1 Respondents also argue that Petitioner failed to exhaust his administrative remedies.

(Dkt. 15 at 5-7). However, the Court need not address this argument because it finds that

regardless, Respondents complied with the D & O.

omissions at various times to United States immigration officials,” as well as a “report

documenting the events when federal officials confronted [Petitioner]” describing

Petitioner’s statements as “inconsistent concerning his immigration history and personal

circumstances, and varied as he alternately admitted then denied using multiple names and

engaging in other inculpatory conduct.” (Id. at 7). The IJ also “reviewed the documents

submitted on behalf of [Petitioner],” finding their evidentiary value “limited” because they

were statements from individuals that discuss “a superficial relationship with [Petitioner]

using non-specific and generic phrases” that did not “reflect a clear understanding that

[Petitioner] was placed in immigration proceedings because immigration officials believed

that he provided false information.” (Id. at 7-8). Moreover, the IJ considered Petitioner’s

“claim of future persecution if returned to Iran as evidence mitigating against the risk of

flight,” finding the legitimacy of the claim questionable based on his obtaining an Iranian

passport “many years after his entry in to the United States as [a] refugee.” (Id. at 8).

Petitioner argues that the IJ should have considered that he has no history of illegal

entry into the United States or of missing immigration proceedings, as well as his “very

strong friend[] ties and community ties.” (Dkt. 13 at 3). However, the IJ specifically

addressed that Respondent had unlawfully entered the United States by falsifying

documents both at the hearing and in the written decision (Dkt. 16-4 at 7; Dkt. 18-1 at 31),

and that the statements from individuals submitted on Petitioner’s behalf were only

illustrative of a “superficial relationship” (Dkt. 16-4 at 7-8; Dkt. 18-1 at 33-34). “In short,

this is not a case where an immigration judge failed to rely on record evidence in making

a bond determination, or chose to rely on speculation.” Apollinaire, 2019 WL 4023560, at

*3 (citation omitted). While Petitioner may disagree with the IJ’s resolution of the factual

disputes, there was sufficient evidence for the IJ to determine by clear and convincing

evidence that Respondents demonstrated that Petitioner is a flight risk.

III. Motion for Immediate Release

On April 14, 2020, Petitioner filed a motion for immediate release due to the

national emergency and worldwide pandemic caused by the Coronavirus Disease-2019

(“COVID-19”). (Dkt. 19). Petitioner asks the Court to expedite its issuance of the instant

Decision and Order, or alternatively for the Court to order his immediate release. (Id. at

2). The Court interprets Petitioner’s motion as a challenge to his conditions of

confinement.

The Second Circuit has held that a challenge to conditions of confinement may be

brought in a habeas proceeding. See Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir.

2008) (“This court has long interpreted § 2241 as applying to challenges to the execution

of a federal sentence, including such matters as the administration of parole, prison

disciplinary actions, prison transfers, type of detention and prison conditions.” (quotation

and alteration omitted)). However, courts typically do not entertain motions in habeas

cases that reach issues beyond those raised in the petition, see Alonso Barrientos v. Barr,

No. 19-CV-6198-FPG, 2019 WL 3497055, at *1 (W.D.N.Y. Aug. 1, 2019), and Petitioner

did not challenge his conditions of confinement in his original Petition, which the Court

has already ruled on.

Even if the Court exercised its discretion to address Petitioner’s motion, it would

not find Petitioner’s release appropriate. Petitioner has not provided the Court with any

sort of description of the conditions he has been subject to at the Buffalo Federal Detention

Facility from which the Court could assess the lawfulness of Petitioner’s confinement.

Compare Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *1, *7 (W.D.N.Y. Apr. 2,

2020) (finding that “holding petitioners in the current conditions at the [Buffalo Federal

Detention Facility] during the COVID-19 epidemic violates their substantive Due Process

rights” based in part on the “heightened risk of contracting COVID-19” due to the

“communal-living style congregate setting”), with Hassoun v. Searls, __ F. Supp. 3d __,

No. 1:19-CV-00370 EAW, 2020 WL 1819670, at *1, *7 (W.D.N.Y. Apr. 10, 2020)

(denying the petitioner’s motion for release because the petitioner’s individual

circumstances at the Buffalo Federal Detention Facility “are particularly well-suited to

avoiding infection”). Accordingly, the Court denies Petitioner’s motion for immediate

release.

CONCLUSION

For the foregoing reasons, Petitioner’s motion to enforce (Dkt. 13) and motion for

immediate release (Dkt. 19) are denied.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

United States District Judge

Dated: April 15, 2020

Rochester, New York