“Under the doctrine of exhaustion of administrative remedies, ‘a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself.’ ”
How later courts described this case
- “Under the doctrine of exhaustion of administrative remedies, ‘a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself.’ ”
- “[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.”
- A petition under § 2241 is the basic method for statutory and constitutional challenges to detention following order of removal
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,
Petitioner,
-vs- DECISION and ORDER
19-CV-6326 CJS
JEFFREY SEARLS, Field Office Director
Buffalo Federal Detention Facility ("BFDF"),
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”)
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 Petition is denied.
BACKGROUND
Unless otherwise noted, the facts as set forth below are taken from the petition
and administrative record in this action.
1
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.1 Petitioner
overstayed his visa and has remained in the United States illegally since that time.2
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.3
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.4
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
1 ECF No. 4-1 at p. 13.
2 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.
3 ECF No. 4-2 at p. 22.
4 ECF No. 4-2 at pp. 24, 26.
2
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 § 221.05.5 A
Grand Jury subsequently returned a three-count indictment accusing Petitioner of those
same offenses.6 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
satisfaction of the charges.7 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. Petitioner was sentenced as a Second Felony Offender to an
indeterminate sentence of eighteen months-to-three years.8 At that same time, on his
plea of guilty to violating probation (in connection with the earlier Robbery 3rd
conviction), Petitioner was sentenced 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.9
5 ECF No. 4-1 at p. 14.
6 ECF No. 4-1 at pp. 16–17.
7 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.
8 ECF No. 4-1 at p. 26.
9 ECF No. 4-1 at p. 25; ECF No. 4-2 at pp. 19–20, 26, 29.
3
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”).10
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
10 ECF No. 4-1 at p. 19.
4
Department, granted Petitioner leave to file a late direct appeal.11 Significantly,
though, neither Petitioner nor DHS learned of that fact until many months later, in
November 2018, as discussed further below. Indeed, Petitioner’s former attorney
indicates that he first met with Petitioner in September 2018, at which time Petitioner
was unaware that his request for permission to file a late appeal had been granted.12
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.13
In June 2018, DHS checked to see whether Petitioner had filed any appeal of his
robbery conviction pending with the New York State Courts and found none.
Consequently, DHS proceeded with expedited removal.14
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
11 ECF No. 4-1 at p. 33.
12 , Ronner Declaration, ECF No. 10 at ¶ 5.
13 ECF No. 4-1 at p 28.
14 ECF No. 9 at p. 2.
15 ECF No. 4-1 at p. 37.
5
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 As a result, 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
“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
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
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.
6
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
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. §§
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
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
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
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.
28 ECF No. 4-1 at p. 43.
29 ECF No. 4-2 at p. 6.
30 ECF No. 4-2 at p. 6.
8
“interlocutory appeal” to the Board of Immigration Appeals (“BIA”) of the denial of the
motion to change venue.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.
In or about “mid to late November 2018,” Petitioner’s attorney learned that the
New York State Supreme Court, Appellate Division First Department, had granted
Petitioner’s request to pursue a late appeal of his criminal convictions.33 Thereafter, on
or about November 26, 2018, Petitioner filed a motion to reconsider and rescind the
removal order on the grounds that his convictions were not final. As part of this
application, Petitioner submitted paperwork indicating that he had a pending appeal of
his criminal convictions. According to the Government, this was the first notice that
DHS received that Petitioner was appealing the convictions which supplied the basis for
his expedited removal.34
31 ECF No. 4-1 at pp. 6, 51.
32 ECF No. 4-1 at pp 48–49.
33 ECF No. 10 at ¶ 6.
34 ECF No. 9 at pp. 2-3.
9
On November 27, 2018, DHS denied Petitioner’s request to re-open the Final
Administrative Removal Order. In that regard, DHS indicated that Plaintiff had not
shown that his receipt of permission to file a late appeal affected the “finality” of his
criminal convictions for purposes of removal, citing Matter of J.M. Acosta, 27 I.&N. Dec.
420 (BIA 2018).35
On December 7, 2018, BIA denied the interlocutory appeal of the IJ’s denial of
Petitioner’s motion for change of venue.36 In that decision, BIA observed that
Petitioner “apparently d[id] not dispute his removability,”37 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.”38
On December 13, 2018, DHS notified Petitioner of its intent to conduct a further
custody review on December 20, 2018.39 Petitioner requested that the review be
conducted by in-person interview, with his attorney present.40 In connection with that
35 Evidently it was not until May 2019 that Petitioner informed the Immigration Court of the grounds for
his appeal. ECF No. 10 at ¶ 9.
36 ECF No. 4-2 at p. 6.
37 ECF No. 4-2 at p. 6.
38 ECF No. 4-2 at p. 6. In this regard, DHS was again apparently relying on its reading of
, 27 I.&N. Dec. 420 (BIA 2018) to conclude that Petitioner’s late-filed appeal was nevertheless final
for purposes of removal. See, ECF No. 9 at p. 3.
39 Docket No. 4-2 at pp. 8–9.
40 ECF No. 4-2 at p. 9.
10
custody review, Petitioner completed a written questionnaire41 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.”42 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.”43
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.44 Regarding that
hearing, DHS filed various evidence purporting to show that Petitioner should remain
detained.45 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.
41 ECF No. 4-2 at pp. 10–15.
42 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.
43 ECF No. 4-2 at p. 12.
44 ECF No. 4-2 at p. 33.
45 ECF No. 4-2 at pp. 16–31.
11
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,46 and that subsequently Petitioner had “remained at large for approximately
seven years.”47 Additionally, the PSR had “strongly” recommended that Petitioner be
incarcerated for his crimes.48
On January 18, 2019, the IJ issued a Custody Decision and Order denying
Petitioner’s request for release on bond.49 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.50
46 ECF No. 4-2 at p. 24.
47 ECF No. 4-2 at p. 26.
48 ECF No. 4-2 at p. 26.
49 ECF No. 4-2 at pp. 33–35.
50 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.
12
***
[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 § 236(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 & 2.51 As indicated, the IJ agreed with DHS 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.52 The IJ found,
based on Petitioner’s criminal history, that Petitioner posed a danger to the
community.53 Petitioner did not appeal this ruling.
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
51 Respondent contends that in this regard the IJ “concluded that [Petitioner] was not subject to
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.”).
52 Answer and Return, ECF No 4 at p. 6 (Acknowledging that the IJ put the burden on Petitioner,
“pursuant to the regulations.”).
53 ECF No. 4-2 at p. 35.
13
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, 2019.54
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.”55 In
this regard, the IJ evidently concluded that Petitioner’s convictions were not final, based
on the fact that he had been granted leave to file a late appeal.56 In the alternative, the
IJ denied Petitioner’s request for withholding of removal.57
In response to this ruling, rather than appealing the IJ’s decision 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.58
On April 15, 2019, DHS issued a further Notice of Custody Determination,
indicating that Petitioner’s detention would be continued.59
54 ECF No. 4-2 at p. 36.
55 ECF No. 4-2 at p. 40.
56 Evidently it was not until May 2019 that Petitioner’s appellate attorney advised the Immigration Court
of the legal grounds for Petitioner’s appeal. ECF No. 10 at ¶ 9.
57 ECF No. 4-2 at p. 40.
58 ECF No. 4 at p. 8.
59 ECF No. 4-2 at p. 41.
14
On April 16, 2019, 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
burglary offense with minimum one year imprisonment).60 This notice to appear was
apparently intended to supersede the notice to appear filed the day before. An
immigration judge subsequently found that removal proceedings could proceed on all
three grounds.61
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”;62 or when the detention has become
60 ECF No. 1 at pp. 21–23.
61 ECF No. 9 at p. 5.
62 The Court expresses no opinion as to whether Petitioner is correct on this point, but notes that,
15
“unreasonably prolonged.”63 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 that even if the
Government does so, it cannot detain the alien without first demonstrating that less-
restrictive alternatives to detention are inadequate to achieve the Government’s
objectives.64
As for factual allegations specific to Petitioner, the Petition alleges that Petitioner
has been in 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.”65 (Although, as detailed above,
an Immigration Judge did, in fact, conduct such a hearing in January, 2019.) The
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.
63 Petition, ECF No. 1 at pp. 4, 6–7.
64 , 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
mitigate [danger to the community and] risk of flight.”) (citations omitted).
65 ECF No. 1 at p. 1.
16
Petition contends that the Government cannot continue to detain Petitioner unless it first
provides him with a hearing and demonstrates by clear and convincing evidence that he
poses a danger to society or a risk of flight and that less-restrictive alternatives to
detention would be inadequate.
The Petition also baldly asserts that Petitioner is innocent of the crimes for which
he was convicted, despite the facts set forth above66 and despite the fact that
66 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
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.).
17
Petitioner’s criminal appeal seems to argue not that he was actually innocent of the
crimes to which he pled guilty, but that he was not properly advised of the potential
immigration consequences of pleading guilty.67 Nevertheless, the Petition does not
dispute that Petitioner is removable due to having overstayed his visa, even without
regard to the criminal convictions.
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,68 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).69 At the same time, DHS determined that it would continue detaining
Petitioner pending a final administrative determination.70
67 As support for this assertion, the Courts takes judicial notice of a decision (Slip Op 02731) of the New
York State Supreme Court, Appellate Division First Department, dated May 7, 2020, wherein the court
remanded the action to allow Petitioner an opportunity to move to withdraw his guilty plea, stating in
pertinent part: “When defendant, a noncitizen, pleaded guilty to criminal possession of a firearm, the
court did not advise him that if he was not a citizen, he could be deported as a consequence of his plea.”
68 An IJ dismissed the prior NTA, which had been filed on April 17, 2019, on procedural grounds. ECF No.
4-2 at p. 45.
69 ECF No. 4-2 at pp. 47–49.
70 ECF No. 4-2 at p. 50.
18
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.”71 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).”72 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.”73 Respondent contends, though, that Petitioner’s
71 ECF No. 4 at p. 11.
72 ECF No. 4 at p. 10.
73 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.”).
19
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.74 On this point,
Respondent states that administrative exhaustion is not required by statute, but is
generally required “as a prudential matter.”75
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.”76 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
74 , 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).
75 ECF No. 5 at p. 17.
76 ECF No. 5 at p. 21.
20
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, 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. . . Presently, and in line with the Notice to Appear,
Petitioner is currently being held for overstaying his bounds in the United States.”).
Additionally, the Reply now admits that Petitioner received a bond hearing.
However, the Reply maintains that Petitioner’s detention has become
unreasonably prolonged77 and that the procedures at the bond hearing were
“constitutionally and statutorily infirm” insofar as they required him to bear the burden of
proof. In this regard the Reply refers to violations of both procedural and substantive
due process. As for the need to exhaust administrative remedies, the Reply contends
that such exhaustion would be futile in Petitioner’s case since he is raising constitutional
claims, which neither an IJ nor the BIA can consider. For all of these reasons, the
Reply contends that Petitioner is entitled to “another bond hearing”78 at which the
Government must bear the burden of proof by clear and convincing evidence.
77 The Reply asserts that to the extent that removal proceedings have been prolonged by Petitioner’s
litigation of the issues in this case, he should not be “punished for exercising his rights.” ECF No. 6 at p.
11.
78 ECF No. 6 at p. 8.
21
On December 17, 2019, and IJ issued a new order of removal against
Petitioner.79 In that regard, the IJ found, based on additional information that the
Petitioner had just provided concerning his criminal appeal, that Petitioner’s convictions
were not final for immigration purposes and could not be used to support a final order of
removal.80 The IJ, though, issued an order of removal based on Petitioner overstaying
his visa.81
It is unclear whether Petitioner appealed that determination. However, as of the
date of the Government’s last status report to the Court, Petitioner’s removal order had
not become final, and he remained in custody pursuant to 8 U.S.C. § 1226(a),
presumably while he appeals the removal order and/or seeks relief from removal.82
The Court has considered the record and the parties’ submissions.83
DISCUSSION
Petitioner challenges his continued detention by way of habeas corpus review
under 28 U.S.C. § 2241, which “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.
79 ECF No. 9-1 at pp. 58-65.
80 See, ECF No. 9-1 at pp. 50-51.
81 ECF No. 9-1 at p. 65.
82 ECF No. 7 at p. 3.
83 This includes the submissions (ECF Nos. 9-11)that were received in response to the Court’s order
requesting additional briefing, ECF No. 8.
22
§ 2241(c)(3)); see also Zadvydas v. Davis, 533 U.S. 678, 687 (2001) (A petition under §
2241 is the basic method for statutory and constitutional challenges to detention following
order of removal).
Petitioner has filed the subject petition 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). Construing the
Petition in this manner, it first asserts that Petitioner has been in DHS’s custody since
May 2018 without any type of bond hearing.84 However, that assertion is clearly
incorrect. Petitioner had a custody hearing before an IJ at which he was represented
by counsel and had the opportunity to submit evidence showing that he was neither a
danger to the community nor a risk of flight. In addition to that, Petitioner has received
several reviews “on paper” of his custody situation. Accordingly, insofar as the Petition
contends that Petitioner has been denied any type of hearing whatsoever it plainly lacks
merit.
The real thrust of the Petition is, rather, that Petitioner has been detained for an
unreasonably prolonged period and is therefore entitled to a bond hearing at which the
Government must bear the burden of proof by clear and convincing evidence, with
detention being allowed only after a finding that less restrictive alternatives would not be
adequate to protect the Government’s interests. Petitioner contends that his bond
84 Petition, ECF No. 1 at ¶ ¶ 2-3.
23
hearing did not comport with those requirements, and that his federal due process rights
have therefore been violated. With regard to the duration of Petitioner’s confinement,
the Petition maintains that it is unreasonably prolonged either because it has exceeded
six months in duration, or because it was prolonged unnecessarily while DHS pursued
removal proceedings based on criminal convictions that were not “final” for immigration
purposes.85 Finally, the Petition alleges that Petitioner’s rights under the 8th
Amendment’s excessive bail clause were violated.
The Eighth Amendment “Excessive Bail” Claim Lacks Merit
As just mentioned, the Petition alleges an Eighth Amendment “excessive bail”
constitutional violation, based on the same facts that form the basis of the due process
claims. In that regard, the Petition states that
Petitioner’s prolonged detention without a hearing on danger and flight risk
violates . . . the Eighth Amendment’s Excessive Bail Clause.
***
The Eighth Amendment prohibits “[e]xcessive bail.” U.S. Const. Amend.
XIII. The government’s categorical denial of bail to certain noncitizens
violates the right to bail encompassed by the Eighth Amendment. See,
Jennings, 2018 WL 1054878 at *29 (Breyer, J., dissenting).
Petition, ECF No. 1 at pp. 1, 10. In response, Respondent argues that since
85 This latter argument has two aspects: First, that the initial expedited removal proceeding was
maintained after Petitioner was granted permission to file a late notice of appeal; and, second, that after
the initial removal order was cancelled, the Government instituted new removal proceedings that were
based in part on the same criminal convictions.
24
Petitioner’s bond request “was denied, he does not have a viable excessive bail claim,”
citing Mugiraneza v. Whitaker, No. 6:19-CV-6140, 2019 WL 2395316 at *5 (W.D.N.Y.
Jun. 6, 2019) (“Here, Petitioner has not been granted release on bond; thus, he has no
basis for arguing that the Government is asking him to pay an excessive amount of bail
in order to be released from custody.”).
Petitioner’s Reply does not acknowledge or dispute Respondent’s argument on
this point, nor does it mention the Eighth Amendment at all, though it repeatedly
references the Fifth Amendment. Accordingly, it appears that Petitioner has
abandoned the claim. However, even if Petitioner has not abandoned the claim, it
lacks merit since Petitioner has not made any showing whatsoever to support the bare
suggestion in the Petition that there is a government policy of “categorical denial of bail
to certain noncitizens” that injured him. Rather, the record indicates that Petitioner’s
bond request was considered and denied based on the particular facts of his case
which, the IJ found, made him a danger to the community. Accordingly, to the extent
that Petitioner has not abandoned the Eighth Amendment claim, it is denied.
The Due Process Claims
Petitioner maintains that his continued detention has become “indefinite” or
“unreasonably prolonged,” and that he is therefore entitled, under the Fifth
Amendment’s Due Process Clause, to an individualized hearing at which the
Government must bear the burden of proof to show, by clear and convincing evidence,
that he is a flight risk or a danger to society. Petitioner contends that his continued
25
detention without such a hearing violates both substantive due process and procedural
due process.
Substantive Due Process
A substantive due process violation may occur where an alien who has been
detained pending removal can establish that his removal is not reasonably foreseeable.
See, Wang v. Ashcroft, 320 F.3d at 146 (Observing that in Zadvydas, “[i]n order to save
§ 241 from unconstitutionality, the Supreme Court held that “once removal is no longer
reasonably foreseeable, continued detention is no longer authorized by statute. ...
Under Zadvydas, then, detention of an alien ‘once removal is no longer reasonably
foreseeable’ not only violates § 241, it also violates the Due Process Clause.”).
However, there is no due process violation where removal remains reasonably
foreseeable. See, id. (“Wang's due process rights are not jeopardized by his continued
detention as long as his removal remains reasonably foreseeable.”).
In the instant case, the Petition refers in passing to a substantive due process
violation, but Petitioner has not made any showing that his removal is unlikely to occur
in the near future. Consequently, to the extent that the Petition is attempting to assert
a substantive due process claim, it lacks merit and is denied.
Procedural Due Process
As mentioned earlier, Petitioner contends that an alien detained pending the
completion of removal proceedings becomes entitled to a bond hearing at which the
Government bears the burden of proof whenever detention exceeds six months; or,
26
when the alien has “a substantial defense to removal”; or when the detention has
become “unreasonably prolonged.” The Government responds that such an alien may
become entitled to a bond hearing at which the Government bears the burden of proof if
the detention becomes “indefinite.” The Government maintains, though, that
Petitioner’s detention is not indefinite. Further, the Government contends 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.
As a preliminary matter, the Court agrees that any claim arising from the bond
hearing conducted January 14, 2019 is unexhausted.86 Moreover, as already
86 “A habeas petitioner must normally exhaust administrative remedies before seeking federal court
intervention.” , 279 F. Supp.3d 487, 495 (S.D.N.Y. 2018) (citations omitted). While
Section 2241 does not include a statutory exhaustion requirement, courts have generally required
exhaustion as a “ ‘prudential matter.’ ” , 279 F. Supp.3d at 495 (quoting ,
No. 16-CV-8496(JPO), 2017 WL 281751, at *1 (S.D.N.Y. Jan. 23, 2017) (citing – , 35
F. Supp.3d 533, 538 (S.D.N.Y. 2014)); , 72 F.3d 288, 291 (2d Cir. 1995) (“Under the doctrine of
exhaustion of administrative remedies, ‘a party may not seek federal judicial review of an adverse
administrative determination until the party has first sought all possible relief within the agency itself.’ ”)
(quoting , 967 F.2d 737, 740 (2d Cir. 1992))). Although, “if an exhaustion
requirement is judicially imposed instead of statutorily imposed, a number of exceptions apply that allow
courts to excuse a party’s failure to exhaust administrative remedies[:] ... (1) available remedies provide no
genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief;
(3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial
constitutional question.” , 329 F.3d 51, 62 (2d Cir. 2003), as amended (July 24, 2003)
(quotation omitted).
27
explained Petitioner spent the entire Petition (ECF No. 1) claiming that he had never
received a bond hearing, when in fact he had. Consequently, any purported claim
involving the procedures employed at the original hearing is raised for the first time in
the Reply, and need not be considered.87 The issue before the Court is whether
Petitioner now has a procedural due process right to another hearing.
The Court answers this question in the negative, since it finds that Petitioner’s
detention is not unreasonably prolonged.88 The applicable law on this point has been
summarized as follows:
“Aliens, even aliens 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 Mezei, 345 U.S. at 212 (“It is true that aliens who have once
passed through our gates, even illegally, may be expelled only after
proceedings conforming to traditional standards of fairness encompassed
in due process of law.”). 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 v. Diaz, 426 U.S. 67, 79-80 (1976)).
The Due Process Clause is not offended by the mandatory detention of
aliens for the “brief period necessary for their removal proceedings,” id. at
513 (emphasis added), but a detained alien “could be entitled to an
individualized determination as to his risk of flight and dangerousness if
87 , 258 F. Supp. 3d 372, 380, n. 11 (S.D.N.Y. 2017) (“To the extent that the
petitioner intended to challenge the constitutionality of the October 17, 2016 decision by the Acting Field
Office Director from Immigration and Customs Enforcement to continue detention, he has waived that
argument by raising it for the first time in his reply brief.”).
88 The parties seem to agree that the existence of a procedural due process violation in this case turns, in
the first instance, on whether Petitioner’s detention has become unreasonably prolonged.
28
the continued detention bec[omes] unreasonable or unjustified.” id. at 532
(Kennedy, J., concurring).
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). “As the first
step, the Court considers whether the alien’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 an alien
subject to unreasonably prolonged detention, “then his continued
detention violates procedural due process.” Id.
Rasel v. Barr, No. 19-CV-458, 2019 WL 4257408, at *3 (W.D.N.Y. Sept. 9, 2019).
“When weighing the lawfulness of continued detention of a noncitizen under the
Due Process Clause, several factors determine whether the detention is unreasonably
prolonged. [Courts,] for example, ha[ve] 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.” Rasel v. Barr, No. 19-CV-1603, 2020 WL 1905243, at *5 (W.D.N.Y. Apr.
17, 2020) (citations and internal quotation marks omitted).
Applying these factors, the Court finds at the outset that the second and fourth
factors do not weigh in favor of finding unreasonable delay. In this regard, Petitioner
has made little if any showing concerning either the conditions of his detention or the
likelihood that his removal proceedings will result in a final order of removal. Petitioner
29
has made bald assertions that he is actually innocent of the crimes for which he was
convicted, but as already mentioned that statement is strongly belied by the record, and
Petitioner’s state court appeal is primarily focused not on whether he is actually
innocent, but on whether he was properly advised of the potential immigration
consequences of his guilty plea. In sum, it appears that if Petitioner’s appeal succeeds
it will not be for the reason that he has proffered to this Court. More importantly,
Petitioner concedes that he is removable for another reason, namely, that he is in the
USA illegally after having overstayed his visa. Indeed, a removal order has now been
issued on that basis. Against that, Petitioner makes only vague references to the fact
that he is pursuing withholding or cancellation of removal, but has not shown that he is
likely to avoid removal. Accordingly, in the absence of any showing to the contrary, it
seems likely that removal proceedings will result in a final order of removal.
Turning to the first factor --the length of the detention-- the Court notes that
Petitioner has been detained now slightly more than two years, since May 2018.
Obviously, this is a considerable amount of time. Nevertheless, in light the Court’s
discussion below concerning the reason for this delay, the Court cannot say that this
period of delay is indicative of unreasonable conduct on the Government’s part.
With regard to the third and final factor --delays in the removal proceedings
caused by the parties-- the Court finds that to the extent that there have been unusual
delays in Petitioner’s removal proceedings, Petitioner is at fault.
On this point, the Court notes that when it initially reviewed the record it was
30
concerned that the Government may have unreasonably delayed the proceedings by
pursuing expedited removal on the basis of Petitioner’s felony convictions, even though
the convictions were not final for immigration purposes. Accordingly, the Court had the
parties make additional submissions addressing what they knew about Petitioner’s
criminal appeal and when they knew it.
Now, as supplemented, the record indicates the following chronology: Petitioner
initially did not file a timely appeal of his convictions. Thereafter, toward the end of his
prison sentence, Petitioner applied for permission to file a late appeal. On May 15,
2018, the New York State Supreme Court, Appellate Division First Department granted
Petitioner leave to file a late appeal. Significantly, though, Petitioner did not actually
file the appeal until almost a year later. In the meantime, DHS checked to see whether
Petitioner had appealed his convictions and found that he had not. Further, Petitioner
himself did not learn that his request to file a late appeal had been granted until mid- to
late-November 2018. Upon learning of that fact, Petitioner notified DHS that he had
been granted leave to file a late appeal, but did not indicate the proposed basis for the
appeal. DHS, for its part, and relying on relevant administrative caselaw, concluded
that while Petitioner may have been granted leave to file a late appeal, he had not
shown that his convictions were anything other than final. See, Matter of Acosta, 27 I. &
N. Dec. 420, 432 (BIA 2018) (“[O]nce the DHS has established that a respondent has a
criminal conviction at the trial level and that the time for filing a direct appeal has
passed, a presumption arises that the conviction is final for immigration purposes. To
31
rebut that presumption, a respondent must come forward with evidence that an appeal
has been filed within the prescribed deadline, including any extensions or permissive
filings granted by the appellate court. He or she must also present evidence that the
appeal relates to the issue of guilt or innocence or concerns a substantive defect in the
criminal proceedings.”) (citations and footnote omitted).
Thereafter, an IJ concluded that the convictions were not final for immigration
purposes, though the basis for that finding is not explained. In response, DHS elected
not to appeal and to instead initiate a new removal proceeding based in part on
Petitioner’s overstay of his visa. DHS also included the felony convictions in the new
Notice to Appear, but there is no indication that the inclusions of those grounds caused
any delay in the proceedings, and ultimately an IJ issued a removal order based solely
on Petitioner’s visa overstay. Petitioner remains detained while he appeals the
removal order and/or seeks relief from removal.
Considering all these facts, the Court finds the delay occasioned by the
Government’s aborted pursuit of expedited removal, amounting to approximately one
year, is attributable to Petitioner. Once the time to file an appeal from Petitioner’s
convictions expired, which would have been in 2017, a presumption arose that the
convictions were final for immigration purposes, and the burden was on Petitioner to
overcome that presumption. Petitioner was in the best position to know the status and
grounds of his criminal appeal. Since Petitioner himself was unaware throughout most
of 2018 that he had been granted permission to file a late appeal, he can hardly fault the
32
Government for being similarly unaware. Moreover, even after Petitioner notified DHS
that he had been granted permission to file a late appeal, he did not provide additional
information about the nature of the appeal until several months later.
The Government reasonably relied on the information that it had, which indicated
that the convictions were final. Once the IJ ruled that the convictions were not final,
the Government did not drag matters out by appealing, but, instead, cancelled the
removal order and promptly reinstituted removal proceedings on the basis of Petitioner’s
visa overstay.
Based on the foregoing, the Court finds, on the particular and unusual facts of
this case,89 that Petitioner has not shown that his continued detention has become
“unreasonably prolonged” in a constitutional sense. Accordingly, the Court denies
Petitioner’s procedural due process claim.
CONCLUSION
The Petition is denied, and this action is dismissed. The Court hereby certifies,
pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in
good faith, and leave to appeal to the Court of Appeals as a poor person is denied.
Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal
in forma pauperis should be directed on motion to the United States Court of Appeals for
the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate
89 In which, for example, the Government’s attempt to use an expedited process to complete removal
proceedings resulted instead in a delay.
33
Procedure. The Clerk of the Court is directed to close this action.
So Ordered.
Dated: Rochester, New York
June 11, 2020
ENTER:
________________________
CHARLES J. SIRAGUSA
United States District Judge
34