“[A] conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived.”
How later courts described this case
- “[A] conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
ANDRE PAUL PINNOCK PERRY,
aka ANDRE PINNOCK, aka ANDRE
PAUL PINNOCK,1
Petitioner,
-vs- DECISION and ORDER
19-CV-6332 CJS
JEFFREY SEARLS, Field Office Director
Buffalo Federal Detention Facility ("BFDF"),2
Respondent.
_________________________________________
INTRODUCTION
Andre Paul Pinnock Perry (“Petitioner”) (A-208-910-422), proceeding pro se,
commenced this habeas proceeding pursuant to 28 U.S.C. § 2241 (“Section 2241”)
1 Petitioner has used, and/or been referred to by, these names interchangeably. For example, the New
York State Department of Corrections and Community Supervision (“DOCCS”) refers to Petitioner as
Andre Pinnock, DIN # 17R1264.
2 , No. 20-CV-6078-FPG, 2020 WL 2059845, at *3 (W.D.N.Y. Apr. 29, 2020) (“[T]he only
proper respondent is Jeffrey Searls, Officer in Charge at the Buffalo Federal Detention Facility. See ECF No.
5 at 20. As the “person with direct control” over Petitioner’s detention, id., he is the proper respondent
given Petitioner’s requested relief. , No. 18-CV-586, 2019 WL 78984, at *7
(W.D.N.Y. Jan. 2, 2019) (“The majority view in the Second Circuit requires the immediate custodian,
generally the prison warden, to be named as a respondent in core immigration habeas proceedings—i.e.,
those challenging present physical confinement.” (quotation omitted)).”).
1
against Respondent (”Respondent” or “the Government”), challenging his continued
detention in the custody of the United States Department of Homeland Security (“DHS”),
Immigration and Customs Enforcement (“ICE”) pending the completion of removal
proceedings against him. For the reasons discussed below, the Court will delay
issuing a decision on the Petition until it has received supplemental submissions.
BACKGROUND
Unless otherwise noted, the facts as set forth below are taken from the petition
and administrative record in this action.
Petitioner is a native and citizen of Jamaica. On July 28, 1990, Petitioner
entered the United States pursuant to a six-month B2 visitor visa.3 Petitioner
overstayed his visa and has remained in the United States illegally since that time.4
On January 17, 2006, Petitioner was arrested by the New York City Police and
charged with Robbery in the First Degree, in violation of New York Penal Law (“PL”) §
160.15 and Criminal Possession of a Weapon in the Second Degree in violation of PL §
265.03. The Pre-Sentence Investigation Report (“PSR”) indicated that Petitioner and
an accomplice had robbed a livery cab driver while holding a gun to the driver’s head.5
3 ECF No. 4-1 at p. 13.
4 Petitioner indicates that while he considers himself an American, he has “come to understand that” he is
“in the United States illegally.” Certified Record of Proceedings, , Circuit Court Case No. 18-
3797 (2d Cir.), Docket No. 30.
5 ECF No. 4-2 at p. 22.
2
Petitioner pled guilty in New York State Supreme Court, Bronx County, to Robbery in
the Third Degree (New York Penal Law (“PL”) § 160.05) in satisfaction of the charges.
For his plea, Petitioner received a sentence of five years’ probation. However,
Petitioner never reported to Probation, and the Court issued a bench warrant for his
arrest.6
On August 4, 2015, Petitioner was arrested by the New York City Police and
charged with Assault in the Second Degree in violation of PL § 120.05 and Menacing in
the Second Degree in violation of PL § 120.14. The record does not indicate a
disposition of that charge.
On or about November 10, 2016, Petitioner was arrested by New York City
Police and charged with Criminal Possession of a Weapon in the Second Degree in
violation of PL § 265.03; Criminal Possession of a Firearm in violation of PL § 265.01-
b(1); and Unlawful Possession of Marijuana in violation of Penal Law § 221.05.7 A
Grand Jury subsequently returned a three-count indictment accusing Petitioner of those
same offenses.8 The PSR indicated that Petitioner had been arrested with a loaded
.32 caliber pistol in his waistband, extra ammunition in his sock, and a small quantity of
marijuana. On or about May 2, 2017, Petitioner pled guilty in New York State Supreme
Court, Bronx County, to Criminal Possession of a Firearm ( PL § 265.01-b) in
6 ECF No. 4-2 at pp. 24, 26.
7 ECF No. 4-1 at p. 14.
8 ECF No. 4-1 at pp. 16–17.
3
satisfaction of the charges.9 Petitioner was sentenced as a Second Felony Offender to
an indeterminate sentence of eighteen months-to-three years.10 At that same time,
Petitioner was sentenced for his violation of probation (in connection with the earlier
Robbery 3rd conviction) to an indeterminate term of one-to-three years, with the
sentence to run concurrent with the sentence imposed for the conviction for Criminal
Possession of a Firearm.11
Petitioner subsequently began serving his prison sentence in the custody of the
New York State Department of Corrections and Community Supervision (“DOCCS”).
On June 26, 2017, the Department of Homeland Security (“DHS”) commenced
administrative removal proceedings against Petitioner based on INA § 237(a)(1)(B)
(“nonimmigrant overstay”), INA § 237(a)(2)(C) (“firearms conviction”), INA §
237(a)(2)(A)(iii) (“aggravated felony”) and INA § 237(a)(2)(A)(iii) (“theft or burglary
offense with minimum one year imprisonment”).12
9 The PSR quotes Petitioner as stating that he pled guilty to the crime because he had been caught “red
handed.” ECF No. 4-2 at p. 29.
10 ECF No. 4-1 at p. 26.
11 ECF No. 4-1 at p. 25; ECF No. 4-2 at pp. 19–20, 26, 29.
12 ECF No. 4-1 at p. 19.
4
In this regard, DHS elected to proceed by way of expedited removal order
pursuant to INA § 238(b), 8 U.S.C. § 1228(b), entitled “Expedited removal of aliens
convicted of committing aggravated felonies.” This expedited removal process for aliens
convicted of aggravated felonies does not require that an Immigration Judge (“IJ”) issue
the removal order. See, generally, Osuna-Gutierrez v. Johnson, 838 F.3d 1030, 1033–
34 (10th Cir. 2016) (“Congress gave power to the AG to create an expedited removal
program, which the AG created within INS, and Congress later transferred that power to
DHS. Therefore, DHS properly has authority to initiate expedited removal proceedings
for aggravated felons . . . . Nothing in § 1228 requires that an IJ preside over the
expedited removal process.”).
Regarding Petitioner’s felony convictions, he did not file a timely notice of appeal.
However, on May 15, 2018, the New York State Supreme Court, Appellate Division First
Department, granted Petitioner leave to file a late direct appeal.13
On May 25, 2018, DOCCS transferred custody of Petitioner to DHS. At that
time, DHS indicated that Petitioner would be detained pending the completion of his
removal proceedings.14
13 ECF No. 4-1 at p. 33.
14 ECF No. 4-1 at p 28.
5
On June 15, 2018, DHS issued a Final Administrative Removal Order finding that
Petitioner was deportable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) as
an alien having been convicted of aggravated felonies as defined in 8 U.S.C. §
1101(a)(43)(F) & (G).15 The removal order was issued by a DHS official pursuant to
the expedited removal procedures contained in INA § 238(b) for aliens convicted of
committing aggravated felonies.16
When Petitioner was initially interviewed by DHS officials in 2017, he had not
expressed any fear of returning to Jamaica. Rather, Petitioner had indicated only that
he had been young (seven years of age) when he came to the United States.17
However, Petitioner subsequently alleged a fear of “persecution or torture” that an
asylum officer found credible.18 Because of that, on or about August 8, 2018, pursuant
to 8 CFR § 208.31(e) DHS referred the matter to an Immigration Judge (“IJ”) for a
determination of withholding of removal.19 That is, DHS placed Petitioner in
15 ECF No. 4-1 at p. 37.
16 ECF No. 4-1 at p. 36.
17 ECF No. 4-1 at p. 21 (“Pinnock claims no credible fear of returning to Jamaica, citing only that he left
when was young.”).
18 ECF No. 4-1 at pp. 38, 43.
19 ECF No. 4-1 at p. 38; , Withholding of removal, 2 Immigration Law Service 2d §
10:231 (“While the granting of asylum is discretionary, withholding of removal to a particular country is
mandatory if the government determines that the applicant's life or freedom would be threatened in that
country. . . . A grant of withholding of removal does not give the applicant an automatic right to remain
in the United States nor does it give him or her the right to apply for lawful permanent resident status,
obtain many federal benefits and assistance, or bring his or her family to the United States. Further, a
6
“withholding only” proceedings,20 pursuant to INA § 241(b)(3)(B) and 8 C.F.R. § 208.16,
to determine whether, despite the fact that he was removable, removal to Jamaica
should be withheld.21
On August 10, 2018, a DHS official indicated that Petitioner should continue to
be detained pending a final administrative determination in his case.22 In that regard,
although DHS had issued a removal order, the order was not “final,” due to the
pendency of the “withholding only” proceeding, and Petitioner therefore remained
detained pursuant to 8 U.S.C. § 1226, not 8 U.S.C. § 1231. See, Guerra v. Shanahan,
831 F.3d 59, 64 (2d Cir. 2016) (“Guerra’s removal order is not final during the pendency
of his withholding-only proceedings . . . . Accordingly, the language and structure of the
statutes dictate the conclusion that Guerra’s detention during the pendency of his
withholding-only proceedings is detention pursuant to 8 U.S.C. § 1226(a).”).23
noncitizen who is granted withholding of removal may be removed to a third country in which he or she
would not face persecution if the United States is able to identify such a country willing to accept him or
her.”).
20 ECF No. 4-1 at p. 43.
21 , 526 U.S. 415, 419, 119 S. Ct. 1439, 1443, 143 L. Ed. 2d 590 (1999 (“Under
the immigration laws, withholding is distinct from asylum, although the two forms of relief serve similar
purposes. Whereas withholding only bars deporting an alien to a particular country or countries, a grant
of asylum permits an alien to remain in the United States and to apply for permanent residency after one
year.”).
22 ECF No. 4-1 at p. 40.
23 , No. 219CV02135KJDDJA, 2020 WL 1929842 at *3 (D. Nev. Apr. 21,
2020) (“The INA provides a “complex statutory framework of detention authority,” codified at 8 U.S.C. §§
7
On August 30, 2018, DHS served on Petitioner a “Notice to Alien of File Custody
Review.”24 The notice indicated that DHS would conduct a file review of Petitioner’s
custody on September 27, 2018. The notice further indicated that in order to obtain
release on an Order of Supervision, Petitioner would need to demonstrate by clear and
convincing documentary evidence that he was neither dangerous nor a flight risk.25
On October 17, 2018, DHS issued a “Decision to Continue Detention.”26 The
decision indicated that DHS had reviewed the circumstances of Petitioner’s case and
had determined that he should remain detained. In that regard, DHS indicated that
Petitioner’s criminal record indicated that he had a “wanton disregard for the laws of the
United States.”27 Additionally, the decision observed that Petitioner had provided DHS
with only minimal information about any community ties. DHS concluded that
1226 and 1231. , 534 F.3d 1053, 1057 (9th Cir. 2008). Where a non-citizen falls
within the statutory scheme “can affect whether his detention is mandatory or discretionary, as well as the
kind of review process available to him if he wishes to contest the necessity of his detention.” . In
general, § 1226(a) governs detention during the pendency of a non-citizen's removal proceedings, and §
1231 governs detention following the issuance of a final removal order. DHS has discretionary authority
under § 1226(a) to determine whether a non-citizen should be detained, released on bond, or released on
conditional parole pending the completion of removal proceedings, unless the non-citizen falls within one
of the categories of criminals described in § 1226(c), for whom detention is mandatory.”) (footnote
omitted).
24 ECF No. 4-1 at p. 41.
25 ECF No. 4-1 at p. 41.
26 ECF No. 4-1 at pp. 42–43.
27 ECF No. 4-1 at p. 43.
8
Petitioner was both a danger to the community and a flight risk.28
On or about November 1, 2018, Petitioner made a motion for a change of venue
from Batavia, New York, to New York City.29 On November 1, 2018, the IJ denied the
application for change of venue.30 On November 5, 2018, Petitioner filed an
“interlocutory appeal” to the Board of Immigration Appeals (“BIA”) relating to the
“withholding only” proceeding.31
On November 7, 2018, DHS issued another “Decision to Continue Detention,”
again finding that Petitioner’s detention should continue pending the completion of his
“withholding only” proceeding, since he posed a danger to the community and a risk of
flight.32 The decision further noted that Petitioner was scheduled to appear before an
IJ on 13, 2018 for a “withholding only” proceeding, and that he was scheduled to receive
another custody review on December 26, 2018.
On November 27, 2018, DHS denied Petitioner’s request to re-open the Final
Administrative Removal Order.
On December 7, 2018, BIA denied the interlocutory appeal of the IJ’s denial of
Petitioner’s motion for change of venue.33 In that decision, BIA observed that
28 ECF No. 4-1 at p. 43.
29 ECF No. 4-2 at p. 6.
30 ECF No. 4-2 at p. 6.
31 ECF No. 4-1 at p. 51.
32 ECF No. 4-1 at pp 48–49.
33 ECF No. 4-2 at p. 6.
9
Petitioner “apparently d[id] not dispute his removability,”34 though he was requesting
withholding of removal to Jamaica. Additionally, BIA indicated that to the extent
Petitioner was challenging his underlying criminal convictions, such challenge was
“speculative.”35
On December 13, 2018, DHS notified Petitioner of its intent to conduct a further
custody review on December 20, 2018.36 Petitioner requested that the review be
conducted by in-person interview, with his attorney present.37 In connection with that
custody review, Petitioner completed a written questionnaire38 in which he attempted to
demonstrate his ties to the community in the United States by listing his employer and
various family and friends. Regarding his criminal convictions, Petitioner asserted that
he was currently released on parole by the State of New York. Additionally, Petitioner
stated: “I was convicted of Robbery 3rd, but did not commit the crime. Because of this I
was convicted of Criminal Possession of a Firearm.”39 Petitioner also admitted that he
had previously failed to appear for proceedings in connection with his state criminal
charges, but blamed it on that fact that he had needed to care for his “ailing fiancé.”40
34 ECF No. 4-2 at p. 6.
35 ECF No. 4-2 at p. 6.
36 Docket No. 4-2 at pp. 8–9.
37 ECF No. 4-2 at p. 9.
38 ECF No. 4-2 at pp. 10–15.
39 ECF No. 4-2 at p. 11. This statement by Petitioner, in addition to being nonsensical, is contradicted by
the record as discussed further below.
40 ECF No. 4-2 at p. 12.
10
On December 21, 2018, Petitioner filed a petition for review with the United
States Court of Appeals for the Second Circuit, challenging DHS’s decision not to re-
open the Final Administrative Removal Order.
On January 14, 2019, an IJ conducted a bond hearing.41 In connection with that
hearing DHS filed various evidence purporting to show that Petitioner should remain
detained.42 Such evidence included the state-court judgments and commitment orders
evidencing Petitioner’s convictions for Robbery in the Third Degree and Criminal
Possession of a Firearm. DHS also submitted the PSRs relating to those convictions.
In that regard, the PSR relating to the robbery conviction stated, as noted earlier, that
Petitioner had originally been sentenced to probation upon his conviction after pleading
guilty, but that he never reported to probation, resulting in the issuance of a bench
warrant,43 and that subsequently Petitioner had “remained at large for approximately
seven years.”44 Additionally, the PSR had “strongly” recommended that Petitioner be
incarcerated for his crimes.45
41 ECF No. 4-2 at p. 33.
42 ECF No. 4-2 at pp. 16–31.
43 ECF No. 4-2 at p. 24.
44 ECF No. 4-2 at p. 26.
45 ECF No. 4-2 at p. 26.
11
On January 18, 2019, the IJ issued a Custody Decision and Order denying
Petitioner’s request for release on bond.46 As a preliminary matter, the IJ rejected the
argument by DHS that Petitioner was subject to mandatory detention as a criminal alien
under INA § 236(c). Instead, the IJ found that Petitioner was detained pursuant to
236(a) and was therefore at least eligible to be released on bond. On this point, the IJ
referenced the Second Circuit decision Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016)
and stated:
On December 28, 2018, [Petitioner] filed a motion for a custody
redetermination hearing or alternatively, a ‘Joseph-style’ hearing pursuant
to Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). The Court concludes
that [the hearing] should be deemed a Guerra hearing.47
***
[Petitioner] argued that because his underlying convictions are now on
direct appeal, they are no longer final for immigration purposes.
Therefore, he concluded that he is not subject to INA § 236(c) mandatory
custody, but rather INA § 236(a) custody. The DHS argued that
[Petitioner] was subject to mandatory custody under INA § 236(c). In the
alternative, the DHS argued that if the custody hearing was held according
to Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016), and [Petitioner] was
therefore subject to INA § 23.6(a) custody, he would still be a danger in
the community. The Court agrees with the latter DHS argument.
ECF No. 4-2 at pp. 33–34, notes 1 & 2.48 As indicated, though, the IJ agreed with DHS
46 ECF No. 4-2 at pp. 33–35.
47 In referring to a “ hearing,” it is unclear to the Court whether the IJ was referring to
or to , 24 I. & N. Dec. 37 (BIA 2006). , Respondent’s Memo of Law, ECF No.
5 at pp. 12, 13 n. 4.
48 Respondent contends that in this regard the IJ “concluded that [Petitioner] was not subject to
12
that bond should be denied since Petitioner posed a danger to the community. In that
regard, the IJ noted that pursuant to 8 C.F.R. § 1236.1(c)(8), Petitioner had the burden
to prove that he was neither a flight risk nor a danger to the community.49 The IJ found,
based on Petitioner’s criminal history, that Petitioner posed a danger to the
community.50
On April 2, 2019, DHS notified Petitioner that it had conducted a further custody
review and had decided to keep him detained. With respect to this decision, the notice
again referred to Petitioner’s criminal history and to the fact that a final order of removal
had been issued on June 29, 2018. The notice stated that due to Petitioner’s “claim of
fear of returning to Jamaica,” “ICE [had been] unable to move forward with [his]
removal,” but that a hearing was scheduled for April 4, 2019.51
mandatory detention under 8 U.S.C. § 1226(c) because his conviction is now on direct appeal.” ECF No. 4
at p. 6. The Court assumes that Respondent is correct as to the IJ’s thought process, even though the IJ
actually never explained the basis for his finding. , 27 I. & N. Dec. 420, 432 (BIA 2018)
(“[A] conviction does not attain a sufficient degree of finality for immigration purposes until the right to
direct appellate review on the merits of the conviction has been exhausted or waived.”).
49 Answer and Return, ECF No 4 at p. 6 (Acknowledging that the IJ put the burden on Petitioner,
“pursuant to the regulations.”).
50 ECF No. 4-2 at p. 35.
51 ECF No. 4-2 at p. 36.
13
On April 12, 2019, an IJ dismissed the “withholding only” proceedings, “based on
the government’s failure to establish a ‘final’ conviction for immigration purposes.”52 In
the alternative, the IJ denied Petitioner’s request for withholding of removal.53 In
response to this ruling, DHS elected to cancel the administrative removal order (that
had been issued under INA § 238(b), 8 U.S.C. § 1228(b)) and to pursue a new removal
order under INA § 240, 8 U.S.C. § 1229a.54
On April 15, 2019, DHS issued a further Notice of Custody Determination,
indicating that Petitioner’s detention would be continued.55
On April 16, 2019, following the IJ’s dismissal of the withholding proceeding due
to DHS’s failure to establish that Petitioner’s criminal convictions were final, DHS filed a
new Notice to Appear (“NTA”), charging Petitioner with being removable under INA §
240 based solely on INA § 237(a)(1)(B) (nonimmigrant overstay).
The following day, April 17, 2019, DHS filed another notice to appear, this time
charging Petitioner with being removable under Section 240 based on three grounds: 1)
INA § 237(a)(1)(B) (nonimmigrant overstay); 2) INA § 237(a)(2)(A)(iii) (aggravated
felony – crime of violence); and 3) INA § 237(a)(2)(A)(iii) (aggravated felony -theft or
52 ECF No. 4-2 at p. 40.
53 ECF No. 4-2 at p. 40.
54 ECF No. 4 at p. 8.
55 ECF No. 4-2 at p. 41.
14
burglary offense with minimum one year imprisonment).56 This notice to appear was
apparently intended to supersede the notice to appear filed the day before.
On May 3, 2019, Petitioner commenced this action by filing the subject § 2241
habeas petition, proceeding pro se. Petitioner drafted the Petition using a fill-in-the-
blank form that contains many pages of boilerplate legal argument. The gist of this legal
argument is that aliens detained pending removal proceedings are entitled to
individualized bond hearings (to determine whether they pose a danger to the
community or a risk of flight) whenever detention exceeds six months; or, when the
alien has “a substantial defense to removal”;57 or when the detention has become
“unreasonably prolonged.”58 The Petition further contends that at any such bond
hearing, the Government must bear the burden of proof, by clear and convincing
evidence, to show that the alien is either dangerous or likely to flee, and to show that
less-restrictive alternatives to detention are inadequate to achieve the Government’s
objectives.59 As for factual allegations, the Petition alleges that Petitioner has been in
56 ECF No. 1 at pp. 21–23.
57 The Court expresses no opinion as to whether Petitioner is correct on this point, but notes that,
regardless, he has not made any showing that he has a “substantial defense” to removal. Rather, he
merely states, in his Reply, that he has an unspecified claim for cancellation of removal that is “viable and
non-frivolous.” ECF No. 6 at p. 12.
58 Petition, ECF No. 1 at pp. 4, 6–7.
59 , Petition (ECF No. 1 at pp. 6,9) (“[T]he Supreme Court has recognized only two valid purposes for
civil detention – to mitigate the risks of danger to the community and to prevent flight. . . . Detention
is not reasonably related to th[ese] purpose[s] if there are alternative conditions of release that could
15
DHS custody since May 25, 2018, without a custody hearing, which, the Petition
maintains, violates Petitioner’s rights under the Due Process Clause of the Fifth
Amendment, and the Excessive Bail Clause of the Eighth Amendment, to the U.S.
Constitution. The Petition asserts that during the period of Petitioner’s detention by
DHS, no “immigration judge has conducted a hearing to determine whether lengthy
incarceration is warranted based on danger or flight.”60 Although, as detailed above,
an Immigration Judge did, in fact, conduct such a hearing in January, 2019.
Nevertheless, the Petition further maintains that the Government cannot continue to
detain Petitioner unless it demonstrates by clear and convincing evidence that he poses
a danger to society or a risk of flight. The Petition also asserts that Petitioner is
innocent of the crimes for which he was convicted, despite the fact its bald statements
in that regard are contradicted by the record as set forth above.61
mitigate [danger to the community and] risk of flight.”) (citations omitted).
60 ECF No. 1 at p. 1.
61 As discussed earlier, state court records indicate that in 2006 Petitioner pled guilty to Robbery in the
Third Degree in satisfaction of several other charges and was sentenced to five year’s probation.
However, Petitioner never reported to probation and bench warrant was issued for his arrest, though he
was not arrested on that warrant until seven years later. State Court records further show that in 2016
Petitioner pled guilty Criminal Possession of a Firearm in satisfaction of several charges, and was
sentenced to one-to-three years in prison, and at that same time was re-sentenced for his Robbery
conviction and violation of probation. The PSRs related to those convictions indicate that Plaintiff
admitted to actually committing the crimes to which he pled guilty, and, indeed, with regard to the latter
conviction, admitted that he was caught “red handed.” ECF No. -2 at p. 29. However, in his argument to
the IJ in support of his request for a bond hearing, Petitioner asserted that he was unaware that he had
16
On May 30, 2019, Petitioner and the Government stipulated to withdraw the
Petition for Review filed with the Second Circuit, since DHS had already cancelled the
administrative removal order entered under INA § 238(b).
On June 24, 2019, DHS served Petitioner with yet another NTA,62 again alleging
that he is subject to removal on three grounds: 1) INA § 237(a)(1)(B) (nonimmigrant
overstay); 2) INA § 237(a)(2)(A)(iii) (aggravated felony – crime of violence); and 3) INA
§ 237(a)(2)(A)(iii) (aggravated felony -theft or burglary offense with minimum one year
imprisonment).63 At the same time, DHS determined that it would continue detaining
Petitioner pending a final administrative determination.64
been convicted of Robbery, stating, “In 2006 I missed a date after being released by a grand jury, because
I had to care for my ailing fiance.” ECF No. 4-2 at p. 12. Similarly, before this Court, Petitioner now claims
that he believed the robbery charge against him had been dismissed. , Petition, ECF No. 1 at p. 4 (“The
Bronx County Grand Jury appeared to have dismissed this action, but Petitioner was again apprehended
and detained for this same crime in 2016.”). The Petition also baldly asserts that Petitioner was innocent
of the crimes to which he pled. , Petition, ECF No. 1 at p. 4 (“Petitioner was unaware of his
nonimmigrant status and pled guilty to a crime he did not commit because the plea bargain allowed him
to leave jail[.]”). However, in light of the entire administrative record, the Petition’s assertions on these
points are not plausible. At most, the record suggests that Petitioner may have been unaware of the
immigration consequences of his guilty pleas. , Petition (ECF No. 1) at ¶ 21 (Stating that “Petitioner
was unaware of his nonimmigrant status” when he pled guilty.).
62 An IJ dismissed the prior NTA, which had been filed on April 17, 2019, on procedural grounds. ECF No.
4-2 at p. 45.
63 ECF No. 4-2 at pp. 47–49.
64 ECF No. 4-2 at p. 50.
17
On July 5, 2019, Respondent filed an answer to the subject habeas petition.
Preliminarily, Respondent indicates that contrary to what the Petition alleges, Petitioner
received a bond hearing before an IJ, in which the IJ followed the procedures for bond
hearings for aliens detained under § 1226(a) as set forth in 8 C.F.R. § 1236.1(d)(1), 8
C.F.R. § 236.1(c)(8)&(d)(1) and Matter of Guerra, 24 I.&N. Dec. 37 (BIA 2006).
Further, Respondent contends that Petitioner has “received regular custody review
determinations by the DHS.”65 Accordingly, Respondent contends that insofar as the
Petition demands a hearing, it is moot.
More generally, Respondent contends that Petitioner is detained pursuant to 8
U.S.C. § 1226(a), and that “his continued detention under 8 U.S.C. § 1226(a) is lawful
under Jennings v. Rodriguez, 138 S.Ct. 830 (2018) and Demore v. Kim, 538 U.S. 510
(2003).”66 With regard to who must bear the burden of proof at a bond hearing,
Respondent maintains that by statute, the alien must bear the burden at the initial bond
hearing, but that as a matter of due process, the burden may shift to the Government if
the detention becomes “indefinite.”67 Respondent contends, though, that Petitioner’s
65 ECF No. 4 at p. 11.
66 ECF No. 4 at p. 10.
67 ECF No. 5 at p. 3 (“As a matter of the statutory requirements, , 138 S.Ct. 830
(2018), the Supreme Court abrogated contrary Second Circuit law and held that the statute does not place
the burden on the government to show that an alien seeking release on bond is a danger to the
community. Moreover, as a matter of due process, Pinnock Perry does not show that his detention –
which is not indefinite in nature, and has thus far fun thirteen months – requires shifting the burden to the
Government.”).
18
detention is not indefinite and that the Government therefore did not violate Petitioner’s
due process rights by making him bear the burden of proof at the bond hearing.
Additionally, Respondent states that insofar as Petitioner is claiming that it violated his
Due Process rights to have to bear the burden at the bond hearing, that argument is
unexhausted since Petitioner never appealed the IJ’s custody ruling.68 On this point,
Respondent states that administrative exhaustion is not required by statute, but is
generally required “as a prudential matter.”69
Further, Respondent contends that the process that Petitioner has received
satisfies the Due Process test under Mathews v. Eldridge, 424 U.S. 319 (1976), since
“Section 1226(a), it’s implementing regulations, and BIA precedent provide extensive
safeguards to protect against arbitrary deprivations of liberty while also protecting the
Government’s interest in ensuring that aliens do not flee or commit crimes while
removal proceedings are ongoing.”70 Respondent further contends that due process
does not require the consideration of less-restrictive alternatives to detention, since
“when the Government deals with deportable aliens, the Due Process Clause does not
require it to employ the least burdensome means to accomplish its goal,” citing Demore
68 , Respondent’s Memo of Law (ECF No. 5 at p. 16) (“He could have appealed the [IJ]s] decision to the
Board, but did not do so. 8 C.F.R. § 1236.1(d)(3).”). Nor did Petitioner pursue a further bond hearing
under regulations permitting such hearings under certain circumstances. , Respondent’s Memo of Law
(ECF No. 5 at pp. 13–14, 22).
69 ECF No. 5 at p. 17.
70 ECF No. 5 at p. 21.
19
v. Kim. Finally, Respondent contends that Petitioner cannot maintain an 8th
Amendment “excessive bail” claim since he was denied bond.
On November 7, 2019, Petitioner filed a Reply. (ECF No. 6). At the outset,
despite the various grounds that DHS has asserted for removing Petitioner from the
U.S., the Reply indicates that Petitioner is being detained based on his removability for
having overstayed his nonimmigrant visa. (EFC No. 6 at p. 3) (“Presently and in line
with the Notice to Appear, Petitioner is currently being held for overstaying his bounds in
[the] United States.”). The Court interprets this statement to mean that Petitioner
concedes that there is a valid basis for his removal proceedings, though he maintains
that his detention pending those proceedings is unconstitutional. Beyond that, the
Reply reiterates that it was a violation of Due Process to require Petitioner to bear the
burden of proof at his bond hearing, and, further, that his detention for longer than six
months “violates his rights to substantive due process.”71 As for the need to exhaust
administrative remedies, Petitioner contends that such exhaustion would be futile in his
case since he is raising constitutional claims, and neither an IJ nor the BIA can consider
constitutional claims. The Reply further asserts that to the extent that removal
proceedings have been prolonged due to Petitioner’s active litigation of the issues in
this case, he should not be “punished for exercising his rights.”72
71 ECF No. 6 at p. 4.
72 ECF No. 6 at p. 11.
20
Finally, the Reply acknowledges that Petitioner is presently in the U.S. illegally.
(ECF No. 6 at p. 3) (“Petitioner came into the United States on or about July 29, 1990,
legitimately with a B1/B2 visa but overstayed. He remained in the United States
without authorization and spent about 32 years before he was moved into custody of Ice
in 2017. [This date is incorrect, as the Petition admits that Petitioner came into the
custody of Ice on May 25, 2018.] Presently, and in line with the Notice to Appear,
Petitioner is currently being held for overstaying his bounds in the United States.”).
On December 17, 2019, and IJ issued a new order of removal against Petitioner.
It is unclear whether Petitioner appealed that determination.
On March 18, 2020, the New York State Supreme Court, Appellate Division First
Department, was scheduled to, and presumably did, hear oral argument on Petitioner’s
appeal of his criminal convictions. (Case No. 2019-3989, Indictment No. 3547/16,
People v. Andre Pinnock).
The Court has considered the record and the parties’ submissions
DISCUSSION
“[F]ederal courts have jurisdiction under § 2241 to grant writs of habeas corpus
to aliens when those aliens are ‘in custody in violation of the Constitution or laws or
treaties of the United States.’ 28 U.S.C. § 2241.” Henderson v. I.N.S., 157 F.3d 106,
122 (2d Cir. 1998).
21
It is of course well settled that “detention during deportation proceedings [i]s a
constitutionally valid aspect of the deportation process.” Demore v. Kim, 538 U.S. 510,
523, 123 S. Ct. 1708, 1717, 155 L. Ed. 2d 724 (2003) (“Demore”). However, a
constitutional violation may arise where such detention becomes unreasonable or
unjustified. On this point, courts frequently cite Justice Kennedy’s concurring opinion
in Demore, which stated:
[S]ince the Due Process Clause prohibits arbitrary deprivations of liberty,
[an alien detained pending removal proceedings] could be entitled to an
individualized determination as to his risk of flight and dangerousness if
the continued detention became unreasonable or unjustified. Were there
to be an unreasonable delay by the INS in pursuing and completing
deportation proceedings, it could become necessary then to inquire
whether the detention is not to facilitate deportation, or to protect against
risk of flight or dangerousness, but to incarcerate for other reasons.
Demore, 123 S.Ct.. at 1722 (Kennedy, concurring) (citations omitted).
Petitioner has filed the subject petition pursuant to 28 U.S.C. § 2241, proceeding
pro se, and consequently the Court has construed his submissions liberally, “to raise the
strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994). In this regard, the Petition suggests, in part, that DHS improperly prolonged
Petitioner’s removal proceedings, and his time of detention, by pursuing removal based
on Petitioner’s convictions for aggravated felonies, when those convictions were not
“final” for immigration purposes.
22
8 U.S.C. § 1101(a)(48)(A), states that “[t]he term “conviction” means, with
respect to an alien, a formal judgment of guilt of the alien entered by a court or, if
adjudication of guilt has been withheld, where-- (i) a judge or jury has found the alien
guilty or the alien has entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of
punishment, penalty, or restraint on the alien's liberty to be imposed.” This definition
says nothing about the effect, if any, of an appeal of the alien’s criminal conviction.
However, BIA has interpreted the relevant statute and regulations to mean that a
conviction is not “final” for immigration purposes while a direct appeal is pending. See,
Matter of Acosta, 27 I. & N. Dec. 420, 432 (BIA 2018) (“[A] conviction does not attain a
sufficient degree of finality for immigration purposes until the right to direct appellate
review on the merits of the conviction has been exhausted or waived.”); see also, Rivas
v. I.N.S., No. 02 CIV. 6778 (DLC), 2003 WL 192556, at *2 (S.D.N.Y. Jan. 27, 2003) (“A
conviction is final and may be relied upon in removal proceedings when review of the
conviction on direct appeal has concluded.”).
As discussed earlier, the record indicates that between May, 2018, and
approximately May 2019, Petitioner was detained while DHS pursued expedited
removal proceedings against him under INA § 238(b), 8 U.S.C. § 1228(b), which is
entitled “Expedited removal of aliens convicted of committing aggravated felonies.”
(emphasis added). The basis of that proceeding was Petitioner’s felony convictions.
However, the record also indicates that Petitioner’s convictions were not actually “final”
23
for immigration purposes. In that regard, on April 12, 2019, an IJ dismissed the
withholding-only proceeding precisely because Petitioner’s criminal convictions were not
final for immigration purposes, and DHS responded by cancelling the removal order that
had been issued under INA § 238(b).
It is unclear exactly when DHS became aware that Petitioner’s convictions were
not final. The record indicates that as of November 26, 2018, Petitioner’s attorney had
advised DHS that an appeal was pending, but DHS disputed that claim for some
reason. See, ECF No. 4-2 at p. 3 ("On November 26, 2018, Mr. Barry Ronner, the
attorney of record for PINNOCK, Andre requested through ERO73 that his client be
released from ICE custody as he alleged that his client’s criminal conviction was on
direct appeal. After review, the Office of Chief Counsel (OCC) refuted this claim[.]’).
As late as January 2019, DHS maintained that Petitioner was subject to mandatory
detention under INA § 236(c) as a criminal alien, even though Petitioner maintained that
he was appealing his convictions.74 Furthermore, even after the IJ dismissed the
proceeding and DHS agreed to cancel the final removal order under INA § 238(b)
because Petitioner’s convictions were not final, DHS re-instituted removal proceedings
under INA § 240 that were again based in part on Petitioner’s criminal convictions, even
though those convictions were still being challenged on direct appeal.
73 Enforcement and Removal Operations.
74 ECF No. 4-2 at p. 33, n. 2.
24
The practical effect of all of this seems to be that the entire first year of
Petitioner’s detention by DHS may have been unnecessary insofar as DHS spent that
year pursuing relief that it ultimately could not have obtained. That is, DHS could not
remove Petitioner under INA § 238(b) since his convictions were not final. These facts
may be relevant to a determination of whether Petitioner’s detention had become
“unreasonable or unjustified” for due process purposes as of the date of his bond
hearing.75
However, whether DHS acted reasonably or unreasonably in this regard is
unclear from the record. For example, the record gives no explanation for why DHS
reportedly disputed the assertion by Petitioner’s counsel that a criminal appeal was
pending. Nor does the record indicate why DHS re-instituted removal proceedings
based on aggravated felony convictions after an IJ had already determined that those
convictions were not final for immigration purposes. Although these issues were
apparent from the record and from Petitioner’s submissions, Respondent’s papers do
not address them.
Accordingly, the Court will direct Respondent to file and serve a supplemental
submission addressing the points raised by the Court above. Specifically, the
supplemental submission should address the issue framed above by the Court, i.e.,
whether Petitioner’s detention had become unreasonable or unjustified as of the date of
75 The parties agree that Petitioner’s claims rise or fall on this issue.
25
his bond hearing, in light of the fact that DHS was pursuing removal under INA § 238(b)
based on convictions that were not final for immigration purposes. The supplemental
submission should indicate when DHS was first advised that Petitioner was appealing
his convictions, and why DHS disputed the representation of Petitioner’s counsel on that
point. The supplemental submission should further indicate why, after an IJ had ruled
that Petitioner’s convictions were not final, DHS commenced removal proceedings
under INA § 240 based in part on those same convictions. Additionally, the
supplemental submission should indicate why, if DHS believed that Petitioner was
subject to “mandatory custody” as a criminal alien under § 236(c),76 DHS had
previously notified Petitioner that he was eligible for release on an Order of
Supervision.77
CONCLUSION
For the reasons discussed above the Court will withhold issuing a ruling on the
subject petition until after Respondent has filed the supplemental submission detailed
above. Respondent shall file and serve the supplemental submission on or before May
22, 2020. Such submission shall not exceed fifteen (15) pages in length. Thereafter,
Petitioner may file and serve any further response on or before June 5, 2020.78 Such
76 ECF No. 4-2 at p. 33.
77 ECF No. 4-1 at pp. 41, 48–49; ECF No. 4-2 at pp. 8–9.
78 In this regard, Petitioner may wish to contact his former attorney, Mr. Ronner, to ascertain when Ronner
maintains that DHS was made aware of Petitioner’s appeal of his felony convictions. To the extent that
26
response shall not exceed ten (10) pages in length. The Clerk of the Court is directed
to amend the docket to reflect the caption above. All respondents besides Searls are
dismissed from the action.
So Ordered.
Dated: Rochester, New York
May 11, 2020
ENTER:
Henle) saan
CHARLES J. SIRAGYS
United States DistrictJudge
Ronner has any information on that point it should be submitted to the Court in the form of a sworn
affirmation from Ronner.
27