Minaya-Rodriguez v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ELVIN M. MINAYA-RODRIGUEZ,

Petitioner,

v. 20-cv-98 (JLS)

WILLIAM P. BARR, in his official

capacity as United States Attorney

General,

CHAD WOLF, in his official capacity as

Acting Secretary, U.S. Department of

Homeland Security,

THOMAS FEELEY, in his official

capacity as Field Office Director,

Buffalo Field Office, U.S. Immigration

& Customs Enforcement,

JEFFREY SEARLS, in his official

capacity as Acting Assistant Field

Office Director and Administrator,

Buffalo Federal Detention Facility,

Respondents.

DECISION AND ORDER

Elvin M. Minaya-Rodriguez is a native and citizen of the Dominican Republic

and a lawful permanent resident of the United States. He has been detained at the

Buffalo Federal Detention Facility pending removal proceedings since April 25,

2019, and petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241.

Minaya-Rodriguez is currently detained under 8 U.S.C. § 1226(c). Section

1226(c) requires detention of aliens convicted of certain crimes pending removal

proceedings and does not afford a hearing at which the alien may advocate for

release. Minaya-Rodriguez argues that Section 1226(c), as applied to him, violates

his Fifth Amendment procedural due process rights because it requires continued

detention pending a final removal order without a bond hearing. He asks the Court

to order the government to hold a bond hearing at which he may contest his

continued detention. If the Court grants this request, Minaya-Rodriguez asks that

the Department of Homeland Security (“DHS”) establish, by clear and convincing

evidence, that his continued detention is necessary and justified.

As detailed below, the government’s year-long detention of Minaya-Rodriguez

has not violated his procedural due process rights. Thus, the Court denies the relief

Minaya-Rodriguez requests and dismisses his petition without prejudice.

BACKGROUND

I. Timeline of Relevant Events.

Minaya-Rodriguez entered the United States as a non-immigrant visitor on

November 6, 2010, and became a conditional lawful permanent resident on January

28, 2015. Dkt. 1, at 7 ¶ 29. On February 8, 2018, the conditions on his status were

removed. Id. Since then, Minaya-Rodriguez has been a lawful permanent resident

of the United States. Id.

On September 7, 2018, Minaya-Rodriguez pled guilty to Criminal Possession

of a Controlled Substance in the Third Degree, in violation of New York Penal Law

§ 220.16(12)—a felony offense involving fentanyl—in New York State Supreme

Court, New York County. See Dkt. 1, at 7 ¶ 30; Dkt. 2, at 171 (Ex. D). That court

sentenced Minaya-Rodriguez to serve 18 to 24 months in prison. See Dkt. 1, at 7

¶ 30. A couple of weeks later, Immigration & Customs Enforcement officers

interviewed Minaya-Rodriguez at Ulster Correctional Facility. See Dkt. 5-1, at 2

¶ 9. The officers determined that Minaya-Rodriguez was removable from the

United States because he was convicted of a controlled substance offense;

accordingly, on January 18, 2019, DHS issued a Notice to Appear, charging that

Minaya-Rodriguez was removable as an alien convicted of a controlled substance

offense. See Dkt. 1, at 8 ¶ 35; Dkt. 5-1, at 2 ¶ 9. DHS lodged an immigration

detainer on January 22, 2019, asking to be notified before Minaya-Rodriguez was

released from state custody. See Dkt. 5-1, at 3 ¶ 12; Dkt. 5-2, at 3.

On March 29, 2019, Minaya-Rodriguez appeared with counsel before

Immigration Judge (“IJ”) Roger F. Sagerman at Ulster Immigration Court for the

first hearing in his removal proceedings. See Dkt. 1, at 8 ¶ 36; Dkt. 2, at 23 (Ex. G).

His lawyer addressed the pleadings, admitting certain allegations but denying that

Minaya-Rodriguez was removable as an alien convicted of a controlled substance

offense. See Dkt. 2, at 26 (Ex. G). His lawyer asked for 30 days to brief the issue—

1 Page references to Dkt. 2 are to the pagination automatically generated by

CM/ECF.

i.e., that Minaya-Rodriguez was not convicted of a removable offense because New

York Penal Law defined “narcotic drug” broader than federal immigration law. See

id. at 27-28. The government asked for 15 days to respond. See id. at 28. IJ

Sagerman adopted this briefing schedule and set the next hearing for May 15, 2019.

See id. at 29-30. Minaya-Rodriguez’s lawyer moved to terminate proceedings,

consistent with the IJ’s schedule. See Dkt. 5-1, at 4 ¶ 15.

While Minaya-Rodriguez was still in state custody, on April 17, 2019, DHS

determined that it would detain Minaya-Rodriguez pending a final order in his

removal proceedings. See Dkt. 1, at 8 ¶ 32; Dkt. 2, at 8 (Ex. B). Minaya-Rodriguez

was released from state custody into DHS custody on April 25, 2019—7.5 months

into his 18 to 24 month sentence.2 See Dkt. 1, at 2, ¶ 2; id. at 7 ¶ 31; Dkt. 2, at 19-

20 (Ex. F). The next day, Minaya-Rodriguez acknowledged receipt of DHS’s custody

determination and requested IJ review. See Dkt. 5-1, at 4 ¶ 17. He withdrew this

request after the IJ determined that he would be detained as a criminal alien

ineligible for discretionary release. See id.

IJ Joy A. Merriman3 denied Minaya-Rodriguez’s motion to terminate in a

June 6, 2019 written order. See Dkt. 2, at 41 (Ex. H). On June 10, 2019, the parties

2 The record does not establish whether Minaya-Rodriguez had been detained in

state custody before pleading guilty.

3 On May 21, 2019, venue changed from Ulster Immigration Court to Batavia

Immigration Court, likely based on Minaya-Rodriguez’s transfer from state custody

to the Buffalo Federal Detention Facility in Batavia, New York. See Dkt. 5-1, at 4

¶ 18; see also Dkt. 1, at 8 ¶¶ 33-34 (alleging that Minaya-Rodriguez has been

detained in Batavia since April 2019).

appeared before IJ Merriman. See Dkt. 1, at 9 ¶ 38; Dkt. 2, at 33-34 (Ex. G). They

discussed IJ Merriman’s order, which Minaya-Rodriguez said he intended to appeal

to the Board of Immigration Appeals (“BIA”). See Dkt. 2, at 34-35 (Ex. G). IJ

Merriman ordered Minaya-Rodriguez removed from the United States to the

Dominican Republic. See id.; Dkt. 2, at 39 (Ex. H). Minaya-Rodriguez appealed this

removal order on July 8, 2019. See Dkt. 1, at 9 ¶ 39; Dkt. 2, at 39 (Ex. H); Dkt. 5-1,

at 5 ¶ 21.

On August 1, 2019, Minaya-Rodriguez filed a motion with the New York

State Supreme Court, Appellate Division, First Department, requesting (among

other things) an extension of time to notice an appeal of his underlying conviction.

See Dkt. 2, at 78 (Ex. J). Also in August, Minaya-Rodriguez asked for, and

obtained, a three-week extension to file his brief to the BIA. See Dkt. 2, at 43

(Ex. I). He timely filed his BIA appeal brief, arguing that “narcotic drug” under

New York law is overbroad as compared to federal immigration law. See Dkt. 2, at

45-63 (Ex. I). While this BIA appeal was pending, the First Department granted

Minaya-Rodriguez’s motion to extend the time to notice an appeal of his underlying

criminal conviction. See Dkt. 2, at 97 (Ex. J).

On November 22, 2019, Minaya-Rodriguez renewed his motion to terminate

proceedings based on the “new facts and . . . material evidence that was not

available and could not have been discovered or presented at prior hearings before

the Immigration Court”—i.e., the First Department’s extension of time for him to

appeal his underlying criminal conviction. See Dkt. 1, at 9 ¶ 40; Dkt. 2, at 66-67

(Ex. J). The BIA remanded on December 6, 2019, instructing the IJ to: (1) “address

whether [Minaya-Rodriguez] has met his burden to demonstrate that there is a

realistic probability that New York prosecutes anyone for criminally possessing

isomers of methylfentanyl or the two prescription laxatives at issue”; and (2) “apply

Matter of J.M. Acosta, 27 I&N Dec. 420 (BIA 2018) to determine whether [Minaya-

Rodriguez]’s conviction is final for immigration purposes.” Dkt. 2, at 101-03 (Ex. K).

The parties appeared before an IJ on February 3, 2020, and Minaya-

Rodriguez moved to terminate proceedings. See Dkt. 5-1, at 5 ¶ 24. The IJ

scheduled another hearing for March 2, to allow the parties to brief the issues

raised. See id. On March 2, the IJ denied Minaya-Rodriguez’s motion but did not

decide whether this denial was a final order from which Minaya-Rodriguez could

appeal; instead, the IJ scheduled oral argument on the finality issue for March 11.

See id. at 5 ¶ 25.4

The parties’ accounts of these events vary in detail but agree on the basic

timeline set forth above.

II. Procedural History.

Minaya-Rodriguez is detained at the Buffalo Federal Detention Facility. See

Dkt. 1, at 9 ¶ 42; Dkt 5-1, at 5 ¶ 26. He filed this petition, with supporting exhibits,

on January 26, 2020. Dkts. 1, 2. The government answered the petition, and filed a

memorandum and declarations in opposition, on March 9, 2020. Dkts. 5, 6.

4 The Court has no further information about the status of Minaya-Rodriguez’s

immigration proceedings or his appeal to the First Department.

Minaya-Rodriguez replied on April 3, 2020. Dkt. 7. His Section 1226(c) detention,

which began on April 25, 2019, is now in its thirteenth month.

ANALYSIS

I. Jurisdiction.

Jurisdiction over substantive challenges to final deportation, exclusion, and

removal orders resides with the circuit courts; district courts lack jurisdiction over

the merits of such orders. See Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005)

(holding that the REAL ID Act “eliminates habeas jurisdiction over final orders of

deportation, exclusion, and removal, providing instead for petitions of review . . . ,

which circuit courts alone can consider”). District courts can, however, review

claims that pre-removal detention is unconstitutional. See Demore v. Kim, 538 U.S.

510, 516-17 (2003). In this way, habeas corpus review is available to persons “in

custody in violation of the Constitution or laws or treaties of the United States.”

See 28 U.S.C. § 2241(c)(3).

Minaya-Rodriguez claims that his detention is unconstitutional based on its

duration. See Dkt. 1, at 2 ¶¶ 2, 4. Specifically, he claims that his now year-long

detention under Section 1226(c) without a bond hearing violates his Fifth

Amendment procedural due process rights. See id. at 10 ¶¶ 45-46, 18 ¶¶ 79-80.

The government does not dispute the Court’s jurisdiction here. See Dkt. 5, at 2 ¶ 1.

II. Constitutionality of Section 1226(c).5

Minaya-Rodriguez’s detention is mandatory under 8 U.S.C. § 1226(c), which

provides that the Attorney General “shall take into custody any alien who . . . is

deportable by reason of having committed” certain criminal offenses—including, as

relevant here, a controlled substance offense. See 8 U.S.C. § 1226(c)(1)(B);6 8 U.S.C.

§ 1227(A)(2)(B)(i) (“Any alien who at any time after admission has been convicted of

a violation of . . . any law . . . of a State . . . relating to a controlled substance (as

defined in section 802 of title 21) . . . is deportable.”).

The Supreme Court has addressed Section 1226(c), rejecting a constitutional

challenge and holding that “Congress, justifiably concerned that deportable

criminal aliens who are not detained continue to engage in crime and fail to appear

5 Minaya-Rodriguez concedes, for purposes of this habeas corpus proceeding, that he

is detained under Section 1226(c), see, e.g., Dkt. 1, at 9 ¶ 44, although he is

challenging the criminal conviction underlying his detention and removal order, see

id. at 2 ¶ 3 n.1. Because Minaya-Rodriguez “has conceded that he is deportable for

purposes of his habeas corpus challenge to § 1226(c),” the Court “decide[s] the case

on that basis.” See Demore, 538 U.S. at 522 n.6 (deciding issue related to habeas

petition as though Section 1226(c) was the basis for detention, even though habeas

petitioner declared his intent to argue in later immigration proceedings that his

underlying conviction did not support removal or mandatory detention under

Section 1226(c)).

6 If an alien meets these criteria, the Attorney General may order release “only if”:

(1) release is necessary for certain witness-protection purposes; and (2) the alien

“will not pose a danger to the safety of other persons or of property and is likely to

appear for any scheduled proceeding.” 8 U.S.C. § 1226(c)(2); see also Jennings v.

Rodriguez, — U.S. — , 138 S. Ct. 830, 837-38 (2018) (explaining that “Section

1226(c) . . . carves out a statutory category of aliens who may not be released under

§ 1226(a)” and summarizing Section 1226(c)’s detention and release requirements).

The Attorney General also must consider the severity of the criminal offense. See 8

U.S.C. § 1226(c)(2).

for their removal hearings in large numbers, may require that persons . . . be

detained for the brief period necessary for their removal proceedings.” Demore, 538

U.S. at 513.

The Court’s holding in Demore aligns with its prior recognition that “the

responsibility for regulating the relationship between the United States and [its]

alien visitors [is] committed to the political branches of the Federal Government.”

Mathews v. Diaz, 426 U.S. 67, 81 (1976). Indeed, “over no conceivable subject is the

legislative power of Congress more complete.” Reno v. Flores, 507 U.S. 292, 305

(1993) (internal quotations and citations omitted). Because decisions regarding

immigration “may implicate [the United States’] relations with foreign powers, and

[because] a wide variety of classifications must be defined in the light of changing

political and economic circumstances, such decisions are frequently . . . more

appropriate [for] either the Legislature or the Executive than [for] the Judiciary.”

Diaz, 426 U.S. at 81. And, in Demore, the Court reiterated that, “in the exercise of

its broad power over naturalization and immigration, Congress regularly makes

rules that would be unacceptable if applied to citizens.” Demore, 538 U.S. at 521

(quoting Diaz, 426 U.S. at 79-80) (internal quotations omitted).

Against this backdrop, courts routinely review constitutional challenges to

Section 1226(c) detention. A lawful permanent resident detained under Section

1226(c), like Minaya-Rodriguez, “could be entitled to an individualized

determination as to his risk of flight and dangerousness if the continued detention

became unreasonable or unjustified”—such as if there were “an unreasonable delay

by the [government] in pursuing and completing deportation proceedings.” See

Demore, 538 U.S. at 532 (Kennedy, J., concurring) (citations omitted); see also Diop

v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011) (“[C]ourts reviewing

petitions for writ of habeas corpus must exercise their independent judgment as to

what is reasonable.”), abrogated on other grounds, Jennings, — U.S. —, 138 S. Ct.

830 (2018); Garcia v. Whitaker, No. 18-cv-6836, 2019 WL 3802536, at *8 (W.D.N.Y.

Aug. 13, 2019) (“Jennings left open the possibility that individual detentions

without bond hearings might eventually violate due process.”). In this endeavor,

however, courts must employ “a narrow standard of review of decisions made by the

Congress or the President” and must exercise “the greatest caution” in evaluating

constitutional claims that implicate those decisions. See Diaz, 426 U.S. at 81-82.

In sum, the Court must decide whether Section 1226(c), as applied here,

violates Minaya-Rodriguez’s Fifth Amendment procedural due process rights.

III. Evaluating Section 1226(c) Procedural Due Process Claims.

It is beyond dispute that “[t]he Fifth Amendment . . . , protects [aliens

present in the United States] from deprivation of life, liberty, or property without

due process of law.” See Diaz, 426 U.S. at 77; see also Flores, 507 U.S. at 306 (“It is

well established that the Fifth Amendment entitles aliens to due process of law in

deportation proceedings.”). Equally clear are the “constraints on governmental

decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the

meaning of the Due Process Clause of the Fifth . . . Amendment.” See Mathews v.

Eldridge, 424 U.S. 319, 332 (1976).

And when a petitioner raises a procedural due process challenge to his or her

detention pending immigration proceedings, courts do “not consider what the

substantive outcome of the case should be—i.e., whether the petitioner should be

released.” Ranchinskiy v. Barr, 422 F. Supp. 3d 789, 794 (W.D.N.Y. 2019).

Instead, they “consider[] whether the petitioner is entitled to some sort of process,

such as a bond hearing.” Id.

A. The Two-Step Inquiry.

Since Jennings, the Second Circuit “has not addressed . . . the standard to be

utilized by courts in addressing procedural due process claims for aliens detained

pursuant to § 1226(c) in the immigrant habeas context.” Ranchinskiy, 422 F. Supp.

3d at 796-97. Absent such guidance, this Court adopts the “case-by-case approach”

used by “the overwhelming majority of district courts within this Circuit,” which, in

its first step, considers whether the petitioner’s “length of detention has become

unreasonable or unjustified.” See id. at 797; Garcia, 2019 WL 3802536, at *8

(“Since Jennings called into question whether due process requires a six-month

bright-line limitation on the detention of aliens under § 1226(c), district courts in

this Circuit and other circuits have applied a ‘fact-based analysis’ to determine

whether mandatory detention under Section 1226(c) has become unreasonable.”

(citation omitted)); see also Diop, 656 F.3d at 233 (holding that analysis of Section

1226(c) procedural due process claims “will necessarily be a fact-dependent inquiry

that will vary depending on individual circumstances”).

Under this fact-based analysis, courts have considered factors such as:

(1) the length of time the petitioner has been detained; (2) the party

responsible for the delay; (3) whether the petitioner has asserted

defenses to removal; (4) whether the detention will exceed the time

the petitioner spent in prison for the crime that made him removable;

(5) whether the detention facility is meaningfully different from a

penal institution for criminal detention; (6) the nature of the crimes

committed by the petitioner; and (7) whether the petitioner’s

detention is near conclusion.

Ranchinskiy, 422 F. Supp. 3d at 797; see also Garcia, 2019 WL 3802536, at *8

(examining factors considered in Sajous v. Decker, No. 18-cv-2447, 2018 WL

2357266, at *10-*11 (S.D.N.Y. May 23, 2018), and other cases). If this analysis

reveals that the detention is not unreasonably prolonged, there is no procedural due

process violation, and the analysis ends. See Kabba v. Barr, 403 F. Supp. 3d 180,

185 (W.D.N.Y. 2019).

If, however, the Court concludes that the alien’s detention is unreasonably

prolonged, its next step considers what process the petitioner is due—i.e., whether

the government has “provided the procedural safeguards required by the Due

Process Clause.” See Kabba, 403 F. Supp. 3d at 185. To determine the safeguards

necessary to ensure that a petitioner receives “the opportunity to be heard at a

meaningful time and in a meaningful manner,” the Court considers: (1) the private

interest that will be affected by the official action; (2) the risk of an erroneous

deprivation of that interest through the procedures used, plus the likely value, if

any, of other procedural safeguards; and (3) the government’s interest, including the

function at issue and the burden that any other procedural requirement would

impose. See Eldridge, 424 U.S. at 333, 335 (internal quotations and citation

omitted); see also Kabba, 403 F. Supp. 3d at 188 (citing Eldridge factors at “the

second step of the two-part inquiry—the process constitutionally due to

[petitioner]”). At that point, the Court considers which party bears the burden at a

bond hearing, the standard by which that burden is assessed, and the factors, if

any, that the government must consider. See Kabba, 403 F. Supp. 3d at 190; see also

Ranchinskiy, 422 F. Supp. 3d at 800-01 (discussing requirements for bond hearings

under Section 1226(c)).

B. Guideposts Relevant to the Reasonableness of Section 1226(c)

Detention.

Because the inquiry at step one of the procedural due process analysis is fact-

and case-specific, decisions addressing Section 1226(c) due process challenges in

similar circumstances reveal certain helpful guideposts.

For example, procedural due process claims by petitioners detained for 6 to

approximately 12 months while awaiting final orders in their immigration

proceedings generally do not succeed—unless the government caused extreme delay

or engaged in dilatory conduct. Compare Demore, 538 U.S. at 530-31 (detention for

6 months did not violate Fifth Amendment), and Dryden v. Green, 321 F. Supp. 3d

496, 502 (D.N.J. 2018) (denying bond hearing where petitioner was detained for

“just over a year” and “delay was not the result of any apparent inaction or

unreasonable delay on the part of the Government”), with Hernandez v. Decker, No.

18-cv-5026, 2018 WL 3579108, at *2, *8, *10 (S.D.N.Y. July 25, 2018) (granting

bond hearing where petitioner was detained “just over nine months,” petitioner

“attempted to speed things along” but waited more than a month for an initial

appearance, and the IJ sua sponte adjourned a merits hearing for two months), and

Sajous, 2018 WL 2357266, at *1, *11 (granting bond hearing where petitioner was

detained for “over eight months” and delay in removal proceedings was “largely

attributable to immigration officials’ failure to process and send [Petitioner]’s A-file

to his counsel”).

Generally, petitions based on 15 to 21 months’ detention are denied where

some reasonableness factors favor the petitioner, some factors favor the

government, and neither party bears greater responsibility for delay in removal

proceedings. See, e.g., Garcia, 2019 WL 3802536, at *8-*9 (denying bond hearing

where petitioner was detained for 17 months, there was “no evidence that the

proceedings [were] prolonged by dilatory tactics on the part of the Government, and

“neither party [was] at fault for any delay, which appear[ed] largely due to the

burgeoning case docket of the Immigration Court in Batavia”);7 Lway Mu v.

Whitaker, No. 18-cv-6924, 2019 WL 2373883, at *4 (W.D.N.Y. June 4, 2019)

7 In this district, courts’ analyses of the delay factor have diverged if delays in

removal proceedings result from a backlog in Batavia’s Immigration Court. See

Kabba, 403 F. Supp. 3d at 187 n.6 (granting bond hearing where petitioner was

detained for more than 18 months, noting that “to the extent that there is a backlog,

responsibility for its impact falls on the government” and that “if there is a

burgeoning case docket at the Batavia Immigration Court, that is a problem caused

by Congress, the executive branch, or both . . . [b]ut it is certainly not a problem

caused by detained aliens”). This Court agrees with the Garcia court’s view and

attributes responsibility for docket-based delays to neither party. See Garcia, 2019

WL 3802536, at *9.

(denying bond hearing where petitioner was detained for 19 months, some delays

were “attributable to strategic decisions by [petitioner] and his attorney, other

delays did not result from petitioner’s litigation strategy, and there was “no

evidence . . that the government ha[d] unreasonably prolonged [petitioner]’s

removal proceedings); Sigal v. Searls, No. 18-cv-389, 2018 WL 5831326, at *6, *7

(W.D.N.Y. Nov. 7, 2018) (denying petition where petitioner was detained “for more

than 16 months,” noting that “courts in this Circuit considering habeas

corpus claims related to § 1226(c) have found that delays attributable to normal

consideration of an alien’s appeal of adverse decisions do not render unreasonable

the consequent delay of his ability to gain release into his home country” (internal

quotations and citations omitted)); Thompson v. Lynch, No. 16-cv-6608, 2017 WL

344970, at *6 (W.D.N.Y. Jan. 24, 2017) (denying bond hearing where detention

reached 21 months, noting that “petitioner’s removal ha[d] been delayed by his own

actions in pursuit of relief in the federal courts,” so “neither his detention . . . nor its

duration” established a due process violation); Johnson v. Orsino, 942 F. Supp. 2d

396, 408-09 (S.D.N.Y. 2013) (denying bond hearing where petitioner was detained

for 15 months, noting that petitioner remained in custody solely because he “chose

to appeal the IJ’s removal order,” as he was entitled to, and that “delay caused by

his actions [did] not make continued detention unreasonable or unjustified”

(internal quotations and citations omitted)); Johnson v. Phillips, No. 10-cv-480,

2010 WL 6512350, at *6-*7 (W.D.N.Y. Dec. 20, 2010) (recommending denying bond

hearing where petitioner was detained for 17 months, the record did “not indicate

any delay or foot dragging by the Government,” and the “only significant delay” was

the roughly 9 months petitioner’s appeal was pending with the BIA),

recommendation adopted, 2011 WL 1465448 (W.D.N.Y. Apr. 18, 2011); Adler v. U.S.

Dep’t of Homeland Sec., No. 09-cv-4093, 2009 WL 3029328, at *1-*2 (S.D.N.Y. Sept.

22, 2009) (denying bond hearing where petitioner was detained for over 15 months,

recognizing that detention was “more than twice as long as the maximum duration

contemplated by the Demore Court” but noting there was “no evidence in the record

that the government ha[d] dragged its feet”). But see Ranchinskiy, 422 F. Supp. 3d

at 798-800 (granting petition where detention reached 21 months, some delay was

attributable each party, and “on balance and particularly in view of the length of

the detention and the circumstances surrounding that detention, . . .

continued detention without a bond hearing [was] constitutionally unjustified”);

Vallejo v. Decker, No. 18-cv-5649, 2018 WL 3738947, at *4 (S.D.N.Y. Aug. 7, 2018)

(granting bond hearing where petitioner was detained for “almost seventeen

months” without a hearing, principally because the government was responsible for

delays in removal proceedings that had “no constitutionally acceptable reason”).

When detention exceeds 24 months, the petitioner generally prevails if some

reasonableness factors favor the petitioner and some favor the government. See,

e.g., Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 470, 477 (3d Cir.

2015) (granting bond hearing where petitioner was detained for 34 months and

“neither the Government nor [petitioner] caused any extraordinary delays” and the

parties “act[ed] in good faith”), abrogated on other grounds, Guerrero-Sanchez v.

Warden York Cnty. Prison, 905 F.3d 208 (3d Cir. 2018); Leslie v. Att’y Gen. of the

U.S., 678 F.3d 265, 266, 270-71 (3d Cir. 2012) (granting bond hearing where

petitioner was detained for almost 48 months and delay resulted from a

combination of government conduct and petitioner’s successful efforts to contest

removal); Constant v. Barr, 409 F. Supp. 3d 159, 163, 169 (W.D.N.Y. 2019) (granting

bond hearing where petitioner was detained for 25 months and “the record [did] not

show that Petitioner was engaging in bad faith delay tactics”).

Petitioners detained for more than 24 months may not prevail if they employ

a litigation strategy that can be viewed as dilatory or unusual compared to similarly

situated detainees. See, e.g., Dor v. Dist. Dir., I.N.S., 891 F.2d 997, 999, 1003 (2d

Cir. 1989) (holding that no procedural due process violation existed where petitioner

was detained for 60 months because “his sustained detention” resulted from “the

simple fact that—at his urgent request and by [a] stay—[the court] allowed his

application to be exhaustively adjudicated” by the government”); Manley v.

Delmonte, No. 17-cv-953, 2018 WL 2155890, at *1-*2 (W.D.N.Y. May 9, 2018)

(denying petition where detention exceeded 24 months, petitioner asked the Second

Circuit to defer consideration of his immigration appeal until a state appeal of his

criminal conviction concluded, and noting that most delays were at petitioner or his

attorney’s request); Luna-Aponte v. Holder, 743 F. Supp. 2d 189, 190, 199 (W.D.N.Y.

2010) (denying bond hearing where petitioner was detained for “approximately 39

months” and filed an untimely appeal to the Second Circuit).

These guideposts, though not dispositive, inform the Court’s analysis of

Minaya-Rodriguez’s request for a bond hearing here.

IV. Minaya-Rodriguez’s Detention Comports with the Fifth Amendment.

Minaya-Rodriguez challenges his continued detention on procedural due

process grounds, arguing that his now year-long detention is unreasonable and that

the government must provide him a bond hearing. Considered against the factors

identified above, on these facts, his challenge lacks merit. See Section III.A, supra;

Ranchinskiy, 422 F. Supp. 3d at 797 (discussing reasonableness factors).

First, the Court considers the length of Minaya-Rodriguez’s immigration

detention. Minaya-Rodriguez had been in DHS custody for nine months when he

filed his petition, see Dkt. 1, at 3 ¶ 6, and has now been in DHS custody for a little

over twelve months, see id. at 7 ¶ 31. The Court recognizes that detention of “longer

than six months is more likely to be ‘unreasonable,’ and thus contrary to due

process, than detention of less than six months.” See Sajous, 2018 WL 2357266, at

*10. But the length of detention “is not to be considered in isolation.” See Garcia,

2019 WL 3802536, at *10; see also Dryden, 321 F. Supp. 3d at 502 (holding that it

was “insufficient that Petitioner’s detention ha[d] merely become suspect by

reaching this six month to a year threshold,” and that petitioner “must show that

his ongoing detention is so unreasonable or arbitrary that it has actually violated

his rights under the Due Process Clause”). Nor does the length of detention here

stand out against the guideposts discussed above.

As it must, the Court considers the other factors, as well. See Phillips, 2010

WL 6512350, at *7 (“The Supreme Court in Demore noted the average time for

conducting a removal proceeding (including appeal), but it did not set the outer

limit for how long an alien may be detained while awaiting determination of his or

her removal proceeding.” (citation omitted)); Orsino, 942 F. Supp. 2d at 409 (noting

that “the Supreme Court did not set a bright-line outer limit for what constitutes a

permissible period of detention” and that courts “must assess the duration of the

detention in proper context”).

Also relevant on this point is the length of Minaya-Rodriguez’s detention in

DHS custody compared to the time he spent in state custody for the underlying

criminal offense. Minaya-Rodriguez spent approximately 7.5 months in state

custody, from the date he pled guilty to the date he was transferred to DHS custody.

See Background, Section I, supra. He therefore has been in DHS custody longer

than he was in state custody for the underlying offense. But Minaya-Rodriguez’s 12

months in DHS custody is less than the criminal sentence he received.8 This

comparison moderates the length of immigration detention factor. See Garcia, 2019

WL 3802536, at *8 (noting that 17-month immigration detention weighed in

petitioner’s favor but fact that 17 months was less than criminal detention favored

the government).

8 The sentence Minaya-Rodriguez received also is relevant to another factor: the

nature of the underlying offense. Minaya-Rodriguez was convicted of a drug offense

involving fentanyl. On this overall record, the Court does not give much weight to

this factor because the record lacks detail about the conduct supporting the

conviction and because Minaya-Rodriguez is appealing this conviction.

Next, the Court considers which party—if any—is responsible for the delay in

Minaya-Rodriguez’s removal proceedings. This factor may become dispositive if

dilatory, bad-faith conduct by the government or delay-motivated litigation strategy

by the petitioner exists. Neither exists here. The government commenced removal

proceedings while Minaya-Rodriguez was still in state custody, see Dkt. 5-1, at 2

¶ 9, and generally has not delayed removal proceedings, see Background, Section I,

supra. Minaya-Rodriguez does not argue otherwise. And Minaya-Rodriguez has

contested his removal in two venues—his immigration proceedings and his

underlying criminal case—with some success.9 See Background, Section I, supra.

But he has not pursued this relief in bad faith, and the Court does not attribute the

resulting delay to him. Accordingly, neither party is responsible for any delay here,

and this factor is neutral. See Garcia, 2019 WL 3802536, at *9.

Finally, the Court considers whether Minaya-Rodriguez’s detention is near

conclusion.10 To the Court’s knowledge, Minaya-Rodriguez’s immigration case is

still pending before the IJ, and his criminal appeal is still pending at the First

Department. There appears to be a question about whether Minaya-Rodriguez may

9 The Court notes that this fact also bears on another factor—Minaya-Rodriguez’s

defenses to removal—and demonstrates that he has asserted defenses. This factor

favors Minaya-Rodriguez.

10 The Court recognizes that there is another factor: whether the immigration

detention facility is meaningfully different from an institution for criminal

detention. The government provided a declaration explaining how the Buffalo

Federal Detention Facility is different from a prison, and Minaya-Rodriguez

explained that individuals detained under Section 1226(c), like he is, may not take

full advantage of these distinctions. This factor does not alter the Court’s analysis.

appeal the IJ’s most recent adverse decision to the BIA. For purposes of this

analysis, the Court will assume that Minaya-Rodriguez can appeal to the BIA and

that such an appeal would extend his time in DHS custody. On the other hand, the

record does not indicate that Minaya-Rodriguez’s “continued detention will last

indefinitely or that his ultimate removal is unlikely,” and “if . . . a final order of

removal is entered against him, there do not appear to be any institutional or other

barriers to his deportation.” See Lway Mu, 2019 WL 2373883, at *5. Even if this

factor favored Minaya-Rodriguez, the harm that would result if detention continued

for an unreasonable amount of time is mitigated by the opportunity to file a new

petition if the facts meaningfully change.

On balance, Minaya-Rodriguez’s detention without a bond hearing comports

with the Fifth Amendment. The duration of his detention is neither exceptional nor

unreasonable. Neither party bears responsibility for the length of removal

proceedings, and time spent in DHS custody is within the range of Minaya-

Rodriguez’s sentence for the underlying criminal offense. Under these

circumstances, this Court concludes—as have others on similar facts11—that

Minaya-Rodriguez’s continued detention without a bond hearing does not violate

procedural due process. Because Minaya-Rodriguez’s detention is not unreasonable

11 The Court has considered where Minaya-Rodriguez’s detention falls among the

guideposts discussed above. See Section III.B, supra. That consideration

supplements—but does not replace—the Court’s consideration of the other relevant

factors.

and he is not due any process at this time, the Court does not decide what process

might be due.12

CONCLUSION

For these reasons, the relief requested in Minaya-Rodriguez’s petition for a

writ of habeas corpus is denied. His petition is dismissed without prejudice to filing

a new petition in the future based on new and different facts, consistent with the

analysis above. The Clerk of Court is directed to close this case.

SO ORDERED.

Dated: May 10, 2020

Buffalo, New York

s/John L. Sinatra, Jr.

JOHN L. SINATRA, JR.

UNITED STATES DISTRICT JUDGE

12 The Court also declines to decide which respondents are proper parties. See Dkt.

6, at 2 n.1.