Rasel v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MOHAMMAD RASEL,

Petitioner,

v. 19-CV-1603

DECISION & ORDER

WILLIAM P. BARR, Attorney General, et

al.,

Respondents.

On June 19, 2018, a border patrol agent found the petitioner, Mohammad Rasel,

in Texas not far from the international border between the United States and Mexico.

He had crossed the border the previous day, and he claimed that he was fleeing

political persecution in Bangladesh.

The Department of Homeland Security (“DHS”), Immigrations and Customs

Enforcement (“ICE”), has detained Rasel since then—more than twenty-two months.

He has petitioned this Court, for a second time, for a writ of habeas corpus, seeking his

release from detention. Docket Item 1.

For the following reasons, Rasel’s petition is granted in part.

BACKGROUND

The following facts, taken from the record, come largely from filings with DHS.

Other facts, provided by Rasel, are undisputed.

Rasel is a thirty-one-year-old citizen and native of Bangladesh. Docket Item 1 at

3; Docket Item 8-2 at 2. DHS is not certain exactly where or when Rasel entered the

United States, but he did so from Mexico on or about June 18, 2018. Docket Item 8-2 at

2. The next day, a border patrol agent found Rasel in the Rio Grande Valley and placed

him in detention. Id.; Docket Item 8-3 at 2-3. Rasel was “processed for [e]xpedited

[r]emoval with [c]redible [f]ear.” Docket Item 8-3 at 3. On August 7, 2018, an asylum

officer concluded that Rasel had established a credible fear of persecution in

Bangladesh because of his political opinion. Id. at 9.

On August 15, 2018, DHS served Rasel with a notice to appear, charging that he

was removable as an immigrant who did not have a valid entry document at the time of

entry, see 8 U.S.C. § (a)(7)(A)(i)(I), and as a noncitizen present in the United States

without having been admitted or paroled, see id. § 1182(a)(6)(A)(i). Docket Item 8-3 at

4. The notice also informed Rasel that he was “an alien present in the United States

who ha[d] not been admitted or paroled”—that is, “an applicant for admission.” Id. That

same day, DHS reached the conflicting determination that Rasel would be detained

“[p]ursuant to the authority contained in section 236 of the Immigration and Nationality

Act,” 8 U.S.C. § 1226—which governs the detention of removable noncitizens already

present in the Untied States—“pending final administrative determination of [his] case.”

Docket Item 8-3 at 11. On August 29, 2018, DHS initiated removal proceedings against

Rasel. Docket Item 8-2 at 3.

On October 2, 2018, Rasel, though counsel, appeared before an Immigration

Judge (“IJ”). See Docket Item 8-3 at 12-21. He admitted the facts and allegations in

the notice to appear and conceded removal. Id. at 15. The IJ extended Rasel’s time to

file an asylum application to November 1, 2018, and set a hearing for November 14,

2018. Id. at 17.

On October 23, 2018, an IJ denied Rasel’s request under 8 C.F.R. § 236.1(c) for

a change in custody. Id. at 23.

Rasel did not meet the deadline to apply for relief from removal,1 and, on

November 13, 2018, the IJ granted DHS’s motion to deem the application abandoned.2

Id. at 33-34. The IJ therefore ordered Rasel removed to Bangladesh. Id. at 35.

On February 5, 2019, DHS denied Rasel’s request that he be released on

humanitarian parole. Id. at 38.

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

(“BIA”), which denied the appeal on April 30, 2019. Id. at 39-40. On May 16, 2019,

Rasel filed a petition for review of the BIA’s decision with the United States Court of

Appeals for the Second Circuit. See Rasel v. Barr, No. 19-1433 (2d Cir. May 16, 2019).

On October 21, 2019, the Second Circuit granted Rasel’s motion for a stay of removal.

Motion Order, Rasel v. Barr, No. 19-1433, Docket Item 56 (2d Cir. July 8, 2019).

Rasel’s petition remains pending before the Second Circuit.

On June 10, 2019, DHS notified Rasel that it would review his custody status on

July 19, 2019. Docket Item 8-3 at 44. More specifically, DHS advised Rasel that

“[r]elease . . . is dependent on your demonstrating by ‘clear and convincing evidence’

that you will not pose a danger to the community and will not be a significant flight

risk.” Id. (emphasis in original). And “[y]ou must also demonstrate that a travel

1 On November 8, 2018, the IJ granted the motion of Rasel’s counsel to withdraw

from representation. Id. at 28.

2 The IJ signed the order on November 13, 2018. See id. at 8-3. But he also

held the scheduling hearing the following day and entered an oral decision explaining

his rationale. See id. at 36-37.

document is not available in the reasonable [sic] foreseeable future to effect your

removal from the United States.” Id.

On July 25, 2019, Darius Reeves, ICE Deputy Field Office Director, Batavia, NY,

issued a “Decision to Continue Detention.” Id. at 45-46. Reeves found that Rasel

[has] limited education, familial support, and employment prospects.

[Rasel] entered the United States without proper legal documents or a valid

entry document and admitted to illegally crossing the international boundary

without being inspected by an Immigration Officer. Given these factors, ICE

considers that [Rasel] may pose a risk of flight.

Id. at 46. On November 14, 2019, DHS denied Rasel’s second request that he be

released on humanitarian parole. Id. at 59.

In the meantime, Rasel filed a petition for a writ of habeas corpus with this Court

on April 8, 2019. Rasel v. Barr (“Rasel I”), No. 19-cv-458, Docket Item 1. This Court

denied that petition on September 9, 2019. See Rasel I, Docket Item 13. As this Court

explained, “even assuming that Rasel’s detention [was] unreasonably prolonged, the

government ha[d] not violated his procedural due process rights,” id. at 7, because

Rasel was entitled only to a “searching and periodic ’rigorous review of his eligibility for

release’ based on individualized findings.” Id. at 12-13 (quoting Clerveaux v. Searls,

397 F. Supp. 3d. 299, 321 (W.D.N.Y. 2019)). The October 2018 bond hearing, along

with the July 2019 custody status review, met that standard. Id. at 13. But the Court

cautioned that it “expect[ed]” that Rasel would continue to “’receive searching periodic’

and ‘rigorous review[s] of his eligibility’ for release from detention to ensure that he

remains free from prolonged arbitrary imprisonment,” Chi Thon Ngo v. I.N.S., 192 F.3d

390, 399 (3d Cir. 1999), and that, “[i]f he does not, he [could] again seek relief.” Id. at

15.

On November 25, 2019, Rasel filed a second petition for a writ of habeas corpus

under 28 U.S.C. § 2241. See Docket Item 1. The respondents answered on January

31, 2020, see Docket Item 8; and on February 25, 2020, Rasel replied, see Docket Item

9.

DISCUSSION

28 U.S.C. § 2241 “authorizes a district court to grant a writ of habeas corpus

whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of

the United States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28

U.S.C. § 2241(c)(3)). Rasel argues that his detention is unreasonably prolonged and

therefore violates his rights to due process under the Fifth Amendment to the United

States Constitution. See Docket Item 1 at 13-14. He also argues that the

“government’s categorical denial of bail to certain non-citizens violates” the Excessive

Bail Clause of the Eighth Amendment to the United States Constitution. Id. at 14.

I. STATUTORY BASIS FOR RASEL’S DETENTION

The petitioner and the respondents disagree as to the statutory basis for Rasel’s

detention. Although the respondents argued in their opposition to Rasel’s first petition

that Rasel’s detention was valid under 8 U.S.C. § 1226(a),3 which governs the detention

3 “Broadly speaking, [28 U.S.C. § 1226] governs the detention of immigrants

[already present in the United States] who are not immediately deportable.”

Hechavarria v. Sessions, 891 F.3d 49, 57 (2d Cir. 2018). Section 1226(a) provides that

the Attorney General “may continue to detain [an] arrested alien” but also “may release”

the noncitizen on bond or parole. Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018).

“Federal regulations provide that [noncitizens] detained under [section] 1226(a) receive

bond hearings at the outset of detention.” Id. at 847 (citing 8 C.F.R. §§ 236.1(d)(1),

of removable noncitizens (that is, those already present in the United States), it now

argues that Rasel’s detention is valid under 8 U.S.C. § 1225(b),4 which governs the

detention of unadmitted noncitizens (that is, “applicants for admission”). Compare

Rasel I, Docket Item 8-3 at 11, Docket Item 10 at 3, and Docket Item 11 at 2, 6 & n.4,

with Docket Item 8-1 at 9. Rasel opposes this shift in position, arguing that, as a matter

of both administrative law and principles of equity, the respondents are bound by their

prior representations. See Docket Item 9 at 10-16.

This Court need not decide this issue, as Rasel challenges the constitutionality of

his detention—not, for example, the proper application of a certain statutory or

regulatory scheme. See Docket Item 1. And “due process protections . . . are ‘not to be

avoided by the simple label [the government] chooses to fasten upon its conduct or its

statute.’” Sessions v. Dimaya, 138 S. Ct. 1204, 1229 (2018) (Gorsuch, J., concurring)

(quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966)). Indeed, Rasel concedes

as much: “[W]hether the Court agrees with Mr. Rasel or [the r]espondents about the

statutory authority for his detention, all that is really required is to determine whether

procedures in which Mr. Rasel is forced to justify his own release can satisfy due

process.” See Docket Item 9 at 18; see also id. at 19 (“[T]o a great extent, the statutory

1236.1(d)(1)). Otherwise, section 1226(a) detainees are not statutorily entitled to

periodic bond hearings. Id.

4 “[A noncitizen] who ‘arrives in the United States,’ or ‘is present’ in this country

but ‘has not been admitted,’ is treated as ‘an applicant for admission.’” Jennings v.

Rodriguez, 138 S. Ct. 830, 836 (2018) (quoting § 1225(a)(1)). Section 1225(b)(2)

“mandate[s] detention of applicants for admission . . . for ‘removal proceedings.’” Id. at

842 (quoting § 1225(b)(2)) (internal alterations omitted); see also id. at 844 (“With a few

exceptions not relevant here, the Attorney General may ‘for urgent humanitarian

reasons or significant public benefit’ temporarily parole [noncitizens] detained

under [section § 1225(b)].” (quoting 8 U.S.C. § 1182(d)(5)(A)).

text is irrelevant. Rather, this Court must be concerned with what the Constitution—not

the [Immigration and Nationality Act]—says about prolonged detention.”). Because

there is no dispute that Rasel is held under one of the two pre-removal order statutes,5

this Court will not decide whether he, as a statutory matter, is an unadmitted or

removable noncitizen. It turns instead to the merits of Rasel’s constitutional claims.

II. DUE PROCESS

Rasel argues that his continued detention violates the Due Process Clause. See

Docket Item 1 at 13-14. The Fifth Amendment’s Due Process Clause prohibits the

federal government from depriving any “person . . . of . . . liberty without due process of

law.” U.S. Const. amend. V. The Supreme Court “has held that the Due Process

Clause protects individuals against two types of government action.” United States v.

Salerno, 481 U.S. 739, 746 (1987). “So called ‘substantive due process’ prevents the

5 In deciding prior habeas petitions brought by immigration detainees, this Court

has sometimes begun by determining whether the petitioner was held in pre- or post-

final-removal-order detention. See, e.g., Hemans v. Searls, 2019 WL 955353, at *3

(W.D.N.Y. Feb. 27, 2019); Sankara v. Whitaker, 2019 WL 266462, at *4-*5 (W.D.N.Y.

Jan. 18, 2019). That distinction was significant because the Supreme Court, using the

doctrine of of constitutional avoidance, has interpreted the post-final-removal-order

detention statute, 8 U.S.C. § 1231(a), as including an implied limit on the length of

detention. See Zadvydas v. Davis, 533 U.S. 678, 697 (2001). Thus, in the case of

post-final-removal-order detention, the statutory and constitutional issues are

inextricably intertwined. But the Supreme Court expressly has declined to read the

same sort of limit into the two pre-final-removal-order statutes, sections 1225 and 1226,

because, unlike section 1231(a) which could provide for indefinite detention if the

individual cannot be removed, sections 1225 and 1226 “provide for detention for a

specific period of time”—namely, the completion of removal proceedings. See

Jennings, 138 S. Ct. at 844, 846, 850. And so determination of the statutory basis of

Rasel’s detention—whether section 1225 or 1226—is not similarly intertwined with the

constitutional challenges he brings in the instant petition. To the extent Rasel’s petition

might be read to claim that his detention violates section 1231(a) as interpreted by the

Supreme Court in Zadvydas, that claim is denied because his removal order is not final

due to his pending Second Circuit appeal.

government from engaging in conduct that shocks the conscience, . . . or interferes with

rights implicit in the concept of ordered liberty.” Id. (citations omitted). “When

government action depriving a person of life, liberty, or property survives substantive

due process scrutiny, it must still be implemented in a fair manner.” Id. “This

requirement has traditionally been referred to as ‘procedural’ due process.” Id.

“Freedom from imprisonment—from government custody, detention, or other

forms of physical restraint—lies at the heart of the liberty that Clause protects.”

Zadvydas v. Davis, 533 U.S. 678, 690 (2001). “[G]overnment detention violates that

Clause unless the detention is ordered in a criminal proceeding with adequate

procedural protections . . . or, in certain special and narrow nonpunitive circumstances,

. . . where a special justification, such as harm-threatening mental illness, outweighs the

individual’s constitutionally protected interest in avoiding physical restraint.” Id.

(emphasis in original) (citations omitted). Other than those unique, special, and narrow

circumstances, “[o]nly a jury, acting on proof beyond a reasonable doubt, may take a

person’s liberty. That promise stands as one of the Constitution’s most vital protections

against arbitrary government.” United States v. Haymond, 139 S. Ct. 2369, 2373

(2019).

“[Noncitizens,] even [noncitizens] whose presence in this country is unlawful,

have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and

Fourteenth Amendments.” Plyler v. Doe, 457 U.S. 202, 210 (1982); see also Mathews

v. Diaz, 426 U.S. 67, 69 (1976) (“Even one whose presence in this country is unlawful,

involuntary, or transitory is entitled to [Fifth and Fourteenth Amendment] protection[s].”).

At the same time, Congress has “broad power over naturalization and immigration,

[permitting it to] make[ ] rules that would be unacceptable if applied to citizens.”

Demore v. Kim, 538 U.S. 510, 521 (2003) (quoting Mathews, 426 U.S. at 79-80); see

also Mathews, 426 U.S. at 81 (“For reasons long recognized as valid, the responsibility

for regulating the relationship between the United States and our [noncitizen] visitors

has been committed to the political branches of the Federal Government.”).

A. Substantive Due Process

Rasel argues that his detention violates his right to substantive due process.

Docket Item 1 at 13. He has been detained by DHS since June 18, 2018—more than

twenty-two months. Docket Item 8-2 at 2. But this Court cannot say that detention that

long violates due process. See Sanusi v. I.N.S., 100 F. App’x 49, 51 (2d Cir. 2004)

(summary order) (determining that six-year detention did not violate due process).

Indeed, detention may serve the government’s compelling interest in “preser[ving] [its]

ability to later carry out its broader responsibilities over immigration matters.” Doherty v.

Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991). Although there comes a time when the

length of a noncitizen’s detention pending removal violates due process regardless of

the procedural protections afforded, see Salerno, 481 U.S. at 747 n.4, that time has not

yet come here.

B. Procedural Due Process

Rasel also argues that his ongoing detention violates his right to procedural due

process. See Docket Item 1 at 13. The Due Process Clause is not offended by the

mandatory detention of noncitizens for the “brief period necessary for their removal

proceedings,” Demore, 538 U.S. at 513 (emphasis added), but may be violated by

detention beyond that “brief” period, depending on the balance of the individual’s and

the government’s interests, see, e.g., id. at 532 (Kennedy, J., concurring) (“[A] lawful

permanent resident . . . could be entitled to an individualized determination as to his risk

of flight and dangerousness if the continued detention bec[omes] unreasonable or

unjustified.”); see also Landon v. Plasencia, 459 U.S. 21, 34 (1982) (“The constitutional

sufficiency of procedures provided in any situation, of course, varies with the

circumstances.”).

For that reason, this Court “has evaluated procedural due process challenges to

immigration detention with a two-step inquiry.” Hemans v. Searls, 2019 WL 955353, at

*5 (W.D.N.Y. Feb. 27, 2019). “At the first step, the Court considers whether the

[noncitizen]’s detention has been unreasonably prolonged.” Id. “If it has not, then there

is no procedural due process violation.” Id. “But if it has, the Court proceeds to step

two and ‘identifies the specific dictates of due process.’” Id. (quoting Mathews v.

Eldridge, 424 U.S. 319, 335 (1976)). If the government has not provided the procedural

safeguards required by the Due Process Clause to a noncitizen subject to unreasonably

prolonged detention, “then his continued detention violates procedural due process.” Id.

1. Rasel’s Detention

“[W]hen weighing the lawfulness of continued detention of a[ noncitizen] under

the Due Process Clause,” several factors determine whether the detention is

unreasonably prolonged. Jamal A. v. Whitaker, 2019 WL 549722, at *3 (D. Minn. Jan.

22, 2019). This Court, for example, has considered “(1) the total length of detention to

date; (2) the conditions of detention; (3) delays in the removal proceedings caused by

the parties; and (4) the likelihood that the removal proceedings will result in a final order

of removal.” Hemans, 2019 WL 955353, at *6.

First, and most important, courts consider the length of detention. Rasel has

been in DHS custody since June 18, 2018—more than twenty-two months. See Docket

Item 8-3 at 2-3. “As detention continues past a year, courts become extremely wary of

permitting continued custody absent a bond hearing.” Muse v. Sessions, 2018 WL

4466052, at *4 (D. Minn. Sept. 18, 2018) (and cases cited therein). In fact, courts have

found detention even shorter than a year to be unreasonably prolonged as part of a

procedural due process analysis.6

In Demore, in upholding the constitutionality of mandatory detention under

section 1226(c), the Supreme Court relied on the fact that there was a “very limited time

of . . . detention at stake,” noting that “in the majority of cases[, section 1226(c)

detention] lasts less than the 90 days . . . considered presumptively valid in Zadvydas.”

Demore, 538 U.S. at 529 & n.12; see also id. (“[I]n 85% of the cases in which aliens are

detained pursuant to [section] 1226(c), removal proceedings are completed in an

average time of 47 days and a median of 30 days. In the remaining 15% of cases, in

which the alien appeals the decision of the Immigration Judge to the Board of

Immigration Appeals, appeal takes an average of four months, with a median time that

is slightly shorter.” (citations omitted)).

6 See, e.g., Vargas v. Beth, 2019 WL 1320330, at *8 (E.D. Wis. Mar. 22, 2019)

(“approximately nine and a half months”); Cabral v. Decker, 331 F. Supp. 3d 255, 261

(S.D.N.Y. 2018) (“over seven months” and “over nine months” by the next removal-

related hearing); Hernandez v. Decker, 2018 WL 3579108, at *1, *12 (S.D.N.Y. July 25,

2018) (nine months); Sajous v. Decker, 2018 WL 2357266, at *1, *12 (S.D.N.Y. May 23,

2018) (over eight months); Jarpa v. Mumford, 211 F. Supp. 3d 706, 720 (D. Md. 2016)

(exceeding ten months); see also Sopo v. U.S. Attorney General, 825 F.3d 1199, 1218

(11th Cir. 2016) (“[A] criminal alien’s detention without a bond hearing may often

become unreasonable by the one-year mark, depending on the facts of the case.”).

Rasel’s twenty-two-month detention far exceeds the four-month average cited in

Demore. The length of Rasel’s detention therefore supports his argument that his

detention has been unreasonably prolonged.

Second, courts consider the conditions of detention. Whether “the facility for the

civil immigration detention is meaningfully different from a penal institution for criminal

detention” factors into the reasonableness of Rasel’s detention. Sajous v. Decker, 2018

WL 2357266, at *11 (S.D.N.Y. May 23, 2018). “The more that the conditions under

which the alien is being held resemble penal confinement, the stronger his argument

that he is entitled to a bond hearing.” Muse, 2018 WL 4466052, at *5. Neither party

has supplied the Court with details about the conditions that Rasel faces at the Buffalo

Federal Detention Facility. So this Court cannot address that factor.

Third, courts consider whether the detainee has prolonged his own detention.

The Second Circuit has found that this factor weighs against finding detention

unreasonable when a noncitizen has “substantially prolonged his stay by abusing the

processes provided to him” but not when “an immigrant . . . simply [has] made use of

the statutorily permitted appeals process.” Hechavarria, 891 F.3d at 56 n.6 (first quoting

Nken v. Holder, 556 U.S. 418, 436 (2009)). As the Sixth Circuit has noted, “appeals

and petitions for relief are to be expected as a natural part of the process. [A

noncitizen] who would not normally be subject to indefinite detention cannot be so

detained merely because he seeks to explore avenues of relief that the law makes

available to him.” Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003) (cited in

Hechavarria, 891 F.3d at 56 n.6). Indeed,

although [a noncitizen] may be responsible for seeking relief, he is not

responsible for the amount of time that such determinations may take. The

mere fact that [a noncitizen] has sought relief from deportation does not

authorize the [government] to drag its heels indefinitely in making a

decision. The entire process, not merely the original deportation hearing, is

subject to the constitutional requirement of reasonability.

Id.

Here, DHS took Rasel into custody in June 2018. Docket Item 8-3 at 2-3. Rasel

sought one adjournment to file applications for relief from removal, after which the IJ

ordered him removed in November 2018. See Docket Item 8-3 at 17. Since that time,

he has appealed the IJ’s decision to the BIA and then to the Second Circuit, where his

appeal remains pending. Although Rasel has caused some of the delay in his removal,

he certainly has not “abus[ed] the processes provided to him.” See Hechavarria, 891

F.3d at 56 n.6 (quoting Nken, 556 U.S. at 436). In fact, he has done no more than

challenge his removal and “ma[k]e use of the statutorily permitted appeals process.” Id.

at 56 n.6. Therefore, the third factor weighs in neither side’s favor.

Finally, courts consider the likelihood that the removal proceedings will result in a

final order of removal. This Court declines to weigh the merits of Rasel’s claims

pending before the Second Circuit.

After weighing all these factors, this Court finds that Rasel’s detention has been

unreasonably prolonged. Therefore, this Court turns to the second step of the two-part

inquiry to determine what remedy his unreasonably-prolonged detention demands.

2. The Process Due to Rasel

“The fundamental requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at 333 (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[I]dentification of the specific dictates

of due process generally requires consideration of three distinct factors,” id. at 335,

namely: “(A) the private interest affected; (B) the risk of erroneous deprivation of that

interest through the procedures used; and (C) the governmental interest at stake,”

Nelson v. Colorado, 137 S. Ct. 1249, 1255 (2017). Here, that analysis leads to the

conclusion that Rasel’s continued detention without an opportunity for at least an annual

review of his custody status, as well as an opportunity to contest an adverse

determination through a personal interview, fails to “comport with the ‘fundamental

fairness’ demanded by the Due Process Clause,” see Schall v. Martin, 467 U.S. 253,

263 (1984).

When analyzing the process due to noncitizens, the nature of the protection “may

vary depending upon [a noncitizen’s] status and circumstance.” Zadvydas, 533 U.S. at

694. For example, there is a relevant “distinction between [a noncitizen] who has

effected an entry into the United States and one who has never entered.” Id. at 693.

After all, if release from physical confinement means that noncitizens who have never

“entered” our country “be released into American society,” Chi Thon Ngo, 192 F.3d at

394 (quoting Barrera-Echavarria v. Rison, 44 F.3d 1441, 1448 (9th Cir. 1995)), release

may “ultimately result in our losing control over our borders,” id. (quoting Jean v.

Nelson, 727 F.2d 957, 975 (11th Cir. 1984)).

For that reason, with respect to noncitizens apprehended “at a port of entry, . . .

Congress has plenary power, and . . . the process prescribed by Congress constitutes

due process.” United States v. Raya-Vaca, 771 F.3d 1195, 1203 n.5 (9th Cir. 2014)

(citing Kleindienst v. Mandel, 408 U.S. 753, 766 (1972); United States ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 544 (1950)). With respect to noncitizens apprehended

within the United States, however, Congress has “broad”—but not absolute—“power,”

Demore, 538 U.S. at 521 (quoting Mathews, 426 U.S. at 79-80), and those noncitizens

“may be expelled only after proceedings conforming to traditional standards of fairness

encompassed in due process of law,” Shaughnessey v. United States ex rel. Mezei, 345

U.S. 206, 212 (1954); see also Zadvydas, 533 U.S. at 721 (Kennedy, J., dissenting)

(“Removable and [arriving noncitizens] are situated differently before an order of

removal is entered; the removable [noncitizen], by virtue of his continued presence

here, possesses an interest in remaining, while the [arriving noncitizen] seeks only the

privilege of entry.”); United States ex. rel. Kordic v. Esperdy, 386 F.2d 232, 235 (2d Cir.

1967) (explaining that noncitizens detained within the United States are entitled to

“additional rights and privileges not extended to those . . . who are ‘merely on the

threshold of initial entry’” (quoting Leng May Ma v. Barber, 357 U.S. 185, 187 (1958))).

But “entry” is a far more flexible, fact-intensive determination than advanced by

the respondents. For example, a “‘parolee,’ even though physically in the country, is not

regarded as having ‘entered’ and thus has not acquired the full protection of the

Constitution. If he is required to leave the United States, he is being excluded, not

expelled.” Esperdy, 386 F.2d at 235; see also Padilla v. Immigration & Customs Enf’t,

953 F.3d 1134, 1146 (9th Cir. 2020) (describing “the peculiar constitutional status of

noncitizens apprehended at a port-of-entry, but permitted to temporarily enter the United

States under specific conditions”). Conversely, a noncitizen “who has run some fifty

yards into the United States has entered the country,” Raya-Vaca, 771 F.3d at 1203

(citations omitted), and is entitled to certain protections under the Due Process Clause.

See also Padilla, 953 F.3d at 1146 (“[O]nce a person is standing on U.S. soil—

regardless of the legality of his or her entry—he or she is entitled to due process.”).

Here, Rasel was in the United States when the border patrol found him. His

presence “on U.S. soil” therefore entitles him to greater procedural protections than

those available to arriving noncitizens. See id. Nevertheless, the degree of additional

protections due to Rasel is not substantial. Rasel is someone “who has been here for

too brief a period to have become, in any real sense, a part of our population, before his

right to remain [was] disputed.” Yamataya v. Fisher, 189 U.S. 86, 100 (1903). And

Congress’s power with respect to someone apprehended within a day of entry and

close to the border falls decidedly closer to “plenary” than “broad.”

This Court’s position therefore remains unchanged that, as a noncitizen

apprehended shortly after his entry, Rasel is entitled only to a “searching and periodic

’rigorous review of [his] eligibility for release’ based on individualized findings.” Rasel I,

Docket Item 13 at 12-13 (quoting Clerveaux, 397 F. Supp. 3d. at 321). But this Court is

not persuaded that Rasel has been provided such process.

As this Court explained in Clerveaux, the government might provide a noncitizen “a

periodic individualized ‘rigorous review of [his] eligibility’ for release” by using

“procedures at least as favorable to [noncitizens] as those examined in Chi Thon Ngo or

Guzman [v. Tippy, 130 F.3d 64 (2d Cir. 1997)].” 397 F. Supp. 3d at 320, 322 (quoting

Chi Thon Ngo, 192 F.3d at 399). In Chi Thon Ngo, the arriving noncitizen was provided:

(1) written notice . . . thirty days prior to the custody review advising that he

may present information supporting [his] release; (2) the right to representation

by counsel or other individuals; (3) the opportunity for an annual personal

interview; (4) written explanations for a custody decision; (5) the opportunity for

review by [Immigration and Nationality Service] headquarters; (6) reviews

every six months; (7) a refusal to presume continued detention based on

criminal history; and other provisions.

Id. at 320 (quoting Chi Thon Ngo, 192 F.3d at 399). And in Guzman, the arriving noncitizen

was provided “[an] annual evaluation . . . to reassess [his] eligibility for parole.” Id. at

*13 (quoting Guzman, 130 F.3d at 66). If during that review the “[Immigration and

Nationality Service] review panel [found] that [the noncitizen was] (1) currently

nonviolent; (2) likely to remain nonviolent; (3) not likely to be a threat to the community;

and (4) not likely to violate the conditions of parole, he [would] be recommended for

release.” Id. (quoting Guzman, 130 F.3d at 66 (citing See 8 C.F.R. § 212.12(d)(2))). If

not “granted parole after a review of the record,” the noncitizen would be “entitled to a

personal interview with the review panel.” Id. (quoting Guzman, 130 F.3d at 66 (citing 8

C.F.R. § 212.12(d)(4)(ii))).

Here, an IJ held an individualized bond hearing in October 2018 and determined

that Rasel would remain detained because he had not presented clear and convincing

evidence that he was not a flight risk. See Docket Item 8-3 at 22-23. And in July 2019,

a DHS Field Office Director completed a review of Rasel’s custody under 8 C.F.R.

§ 241.4(h). Id. at 44-46. Rasel was provided at least 30 days’ notice of the review;

offered an opportunity to submit written evidence, on his own or through counsel; and

given a written explanation for DHS’s decision to continue his detention:

[Rasel has] limited education, familial support, and employment prospects.

[Rasel] entered the United States without proper legal documents or a valid

entry document and admitted to illegally crossing the international boundary

without being inspected by an Immigration Officer. Given these factors,

[ICE] considers that [Rasel] may pose a risk of flight.

Id. at 46. DHS also has twice reviewed and denied, via written letters, his applications

for humanitarian parole in February and November 2019. See id. at 23, 59.

Although these procedures provide Rasel some of the process due to him, 7 they

fail in two critical respects. First, there is no evidence that Rasel, like the noncitizens in

7 Even if Rasel is being held under section 1225(b) and his detention therefore is

covered by the nationwide injunction entered in Padilla v. Immigration & Customs Enf’t,

Chi Thon Ngo and Guzman, has been provided an opportunity for a personal interview

to contest his adverse custody determination. See also 8 C.F.R. § 241.4(h)(1) (“[T]he

[Field Office Director] may in his or her discretion schedule a personal or telephonic

interview with the alien as part of this custody determination.” (emphasis added)). And

second, it appears that DHS will provide Rasel with less-than-annual reviews of his

custody status. In the July 2019 decision to continue Rasel’s detention, the DHS Field

Office Director noted that “[i]f [Rasel has] not been removed from the United States by

July 28, 2020, ICE will review the custody decision [i]n [his] case in accordance with

current ICE policy. [His] case will be reviewed on an annual basis while a judicial stay is

in place.” Docket Item 8-3 at 46. Yet Rasel’s next opportunity for “annual” review is

October 2020—more than fifteen months after his previous review. See Docket Item 8-

2 at 9.

The respondents therefore have failed to provide Rasel with all the process due

to him in light of his unreasonably prolonged detention. As such, his continued

detention violates the Due Process Clause. Rasel must be released unless, no later

than July 29, 2020, he receives both an individualized review of his custody status

under 8 C.F.R. § 241.4 and, if needed, an opportunity to challenge an adverse custody

determination through a personal interview with DHS officials, as provided in 8 C.F.R.

§ 241.4(i)(3).

387 F. Supp. 3d 1219 (W.D. Wash. 2019), DHS has provided Rasel with all the process

due to him under that portion of the injunction recently upheld by the Ninth Circuit Court

of Appeals. See Padilla, 953 F.3d at 1142, 1152 (upholding portion of the injunction

“requiring that [section 1225(b)(1)(B)(ii)] detainees receive bond hearings” but

remanding for “further factual development and consideration of the procedures that

must be followed with respect to the required bond hearings”).

III. EXCESSIVE BAIL CLAUSE

Rasel argues that the “government’s categorical denial of bail to certain non-

citizens violates the right to bail encompassed by the Eighth Amendment.” Docket Item

1 at 14. For the following reasons, Rasel lacks standing to adjudicate this claim.

“An important component of the Article III jurisdictional limit of federal courts to

deciding ‘cases’ or ‘controversies’ is standing.” All. for Envtl. Renewal, Inc. v. Pyramid

Crossgates Co., 436 F.3d 82, 85 (2d Cir. 2006). To establish standing, the party must

allege (1) an “injury in fact,” (2) “a causal connection between the injury and the conduct

complained of”; and (3) a likelihood “that the injury will be redressed by a favorable

decision.” Lujan v. Defenders of Wildlife, 503 U.S. 555, 560 (1992) (internal citations

omitted).

In this case, Rasel’s injury—the denial of his liberty—does not bear “a causal

connection” to “the conduct complained of.” Id. Rasel does not deny that he had a

bond hearing where an IJ denied bail based on individualized findings. Therefore,

regardless of whether he is correct in his claim that the “government’s categorical denial

of bail to certain non-citizens violates the right to bail encompassed by the Eighth

Amendment,” Docket Item 1 at 14, the government did not categorically deny him bail.

It denied him bail based on individualized findings at a bond hearing. Rasel’s injury thus

lacks a causal connection to the conduct complained of, and he lacks standing to bring

this claim.

CONCLUSION

For the reasons stated above, Rasel’s petition, Docket Item 1, is GRANTED IN

PART and DENIED IN PART. No later than July 29, 2020, the respondents must

release Rasel from detention unless he has received both an individualized review of

his custody status under 8 C.F.R. § 241.4 and, if needed, an opportunity to challenge an

adverse custody determination through a personal interview with DHS officials, as

provided in 8 C.F.R. § 241.4(i)(3).

ORDER

In light of the above, IT IS HEREBY

ORDERED that no later than July 29, 2020, the government must release

Rasel from detention unless he has received both an individualized review of his

custody status under 8 C.F.R. § 241.4 and, if needed, an opportunity to challenge an

adverse custody determination through a personal interview with DHS officials, as

provided in 8 C.F.R. § 241.4(i)(3); and it is further

ORDERED that no later than August 29, 2020, the respondents shall file and

serve an affidavit certifying their compliance with this order. That affidavit should

include a written copy of DHS’s decision(s).

SO ORDERED.

Dated: April 17, 2020

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE