Vides v. Wolf

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

____________________________________

RENEN VIDES,

Petitioner,

DECISION AND ORDER

v.

6:20-CV-06293 EAW

CHAD WOLF, in his official capacity as

Acting Secretary, U.S. Department of

Homeland Security, et al.,

Respondents.

____________________________________

INTRODUCTION

Petitioner Renen Vides (“Petitioner”), an immigration detainee represented by

counsel and currently detained at the Buffalo Federal Detention Facility (“BFDF”), seeks

an emergency writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner

seeks immediate release, alleging that he faces imminent danger due to his potential

exposure to COVID-19 while in custody, or, in the alternative, he seeks a bond hearing

before an immigration judge. (Id. at 26-27). For the reasons discussed below, the Petition

is granted in part and denied without prejudice in part.

BACKGROUND

I. Petitioner’s Factual Background

The following facts are taken from the Petition, Respondents’ Answer, and their

supporting documents. Where the parties specifically controvert particular facts, the Court

has noted the disagreement.

Petitioner was born on December 30, 1985, in Guatemala. (Id. at ¶ 15). When he

was nine years old, his mother died, and he moved to Guatemala City to live with his father

and stepmother. (Id. at ¶ 16). His father and stepmother beat him with braided electrical

cords and forced him to perform domestic labor. (Id.). Petitioner ran away at 14,

eventually living with his aunt and uncle. (Id.). In 2002, his cousin, whose parents

Petitioner was living with, was shot and killed by narco-traffickers. (Id. at ¶ 17). The

narco-traffickers began making threatening calls and visits to Petitioner’s home, and

Petitioner fled to the United States in 2003 with his entire immediate family. (Id. at

¶¶ 17-18). Petitioner entered the United States illegally, without admission or inspection,

at an unknown time and place. (Dkt. 10 at ¶ 3). Shortly after arriving in New York,

Petitioner met his partner with whom he had a son. (Dkt. 1 at ¶ 18).

In the United States, Petitioner was diagnosed with a seizure disorder and prescribed

medication. (Id. at ¶ 19). Due to the infrequency of his seizures, and the expense and

ineffectiveness of the medication, Petitioner stopped taking the medicine. (Id.). On their

ten-year anniversary, Petitioner and his partner went to breakfast with their son, who was

then four years old. (Id. at ¶ 20). Petitioner had a seizure while driving the car, and his

partner and son were both killed. (Id.). On December 2, 2016, Petitioner pled guilty to

two counts of manslaughter in the second degree, and was sentenced to five years

probation. (Id. at ¶ 21; Dkt. 10 at ¶ 4; Dkt. 10-2 at 6).

A Warrant for Arrest of Alien was issued on October 3, 2018 (id. at ¶ 5), and on

March 28, 2019, Petitioner was detained at the Bergen County Jail in Hackensack, New

Jersey, and placed into removal proceedings. (Dkt. 1 at ¶ 22; Dkt. 10 at ¶¶ 5-6). Petitioner

received a Notice of Custody Determination from the Department of Homeland Security

(“DHS”), advising him that he would be detained pending an outcome in his removal

proceedings. (Dkt. 10 at ¶ 8). On April 8, 2019, Petitioner appeared before an immigration

judge (“IJ”) for a removal hearing. (Dkt. 1 at ¶ 49; Dkt. 10 at ¶ 9). The IJ allowed an

attorney to appear as a friend of the court and granted an adjournment until May 1, 2019,

so that Petitioner could retain counsel. (Dkt. 1 at ¶ 49; Dkt. 10 at ¶ 9). At the May 1

hearing, the same attorney appeared on behalf of Petitioner and was served with the

evidence in his case. (Dkt. 1 at ¶ 50; Dkt. 10 at ¶ 10). The hearing was again adjourned to

June 17, 2019, to give Petitioner’s counsel an opportunity to prepare. (Dkt. 1 at ¶ 50; Dkt.

10 at ¶ 10).

At the June 17 hearing, Petitioner moved to suppress evidence in his removal

hearing and to terminate the proceedings. Counsel for United States Immigration and

Customs Enforcement (“ICE”) requested two weeks to respond to the motion, and a

hearing was set for July 22, 2019. (Dkt. 1 at ¶ 51; Dkt. 10 at ¶ 11). Both parties requested

two-week adjournments, and the hearing was reset for August 5, 2019. (Dkt. 1 at ¶ 51;

Dkt. 10 at ¶¶ 12-14). At the hearing, the IJ denied Petitioner’s motions, Petitioner filed an

I-589 application for asylum, withholding or removal, and relief under the Convention

Against Torture based on his fear of return to Guatemala due to his cousin’s murder and

continued threats to his family. (Dkt. 1 at ¶ 51; Dkt. 10 at ¶ 15). His removal hearing was

scheduled for September 5, 2019. (Dkt. 1 at ¶ 51; Dkt. 10 at ¶ 15).

On August 25, 2019, Petitioner contends that he was attacked by a detainee at the

Bergen County Jail involved with the Mara Salvatrucha gang, commonly referred to as

MS-13. (Dkt. 1 at ¶ 23). The detainee and other gang members had previously bullied

Petitioner because of his seizure condition. (Dkt. 11-1 at ¶ 4). Petitioner also contends

that gang members threatened to “jump” him and to send gang members in Guatemala to

kill Petitioner if he was deported. (Dkt. 1 at ¶ 23). Respondents contend that Petitioner

was involved in a fight, which caused another detainee to be sent to the hospital. (Dkt. 10

at ¶ 15). The encounter resulted in ten days of disciplinary segregation for Petitioner (id.;

Dkt. 11-1 at ¶ 6), of which Petitioner only served one or two days (Dkt. 11-1 at ¶ 6). After

the incident, Petitioner was moved to the Orange County Jail. (Dkt. 1 at ¶ 23).

Before the September 5, 2019, hearing, Petitioner’s counsel filed a motion to

produce so that Petitioner could be present for the proceedings, which the IJ initially

denied. (Id. at ¶ 54). Petitioner’s counsel moved for reconsideration at the September 5,

2019, hearing, citing concerns of using video teleconferencing in light of Petitioner’s

seizure condition. (Dkt. 1 at ¶ 54; Dkt. 10 at ¶ 17). The IJ granted the motion, and the

hearing was scheduled for September 26, 2019, so Petitioner could appear in person. (Dkt.

1 at ¶ 54; Dkt. 10 at ¶ 17). The hearing began on September 26, and was continued until

October 17, 2019. (Dkt. 1 at ¶ 55; Dkt. 10 at ¶ 18). On November 20, 2019, the IJ issued

a written decision ordering Petitioner removed from the United States. (Dkt. 1 at ¶ 56; Dkt.

10 at ¶ 20).

Petitioner appealed the decision to the Board of Immigration Appeals (“BIA”) on

December 18, 2019, and did not receive a transcript of the proceedings or briefing schedule

from the BIA for almost three months. (Dkt. 1 at ¶¶ 57-58; Dkt. 10 at ¶ 21). On March

16, 2020, Petitioner was granted an extension of time within which to file his appellate

brief, and his brief was filed on April 15, 2020. (Dkt. 1 at ¶ 58; Dkt. 10 at ¶ 21).

On March 12, 2020, Petitioner was transferred to the BFDF without his counsel

receiving notification. (Dkt. 1 at ¶ 24; Dkt. 11-1 at ¶ 8). On April 3, 2020, Petitioner’s

counsel filed a request for release with ICE’s New York City Field Office in light of the

COVID-19 pandemic. (Dkt. 1 at ¶ 60). The New York City Field Office stated that it

lacked jurisdiction over the request, and forwarded it to the Buffalo Field Office on April

14, 2020. (Id.). Petitioner’s request was denied. (Dkt. 10 at ¶ 24). On April 28, 2020,

ICE again reviewed Petitioner’s medical and criminal history and determined that

continued detention was warranted. (Id. at ¶¶ 22-23).

On June 2, 2020, the BIA dismissed Petitioner’s appeal. (Dkt. 14-2). A petition for

review was filed with the Second Circuit on June 30, 2020, Pet. for Review of Agency

Order, Vides v. Barr, No. 20-2076, Dkt. 1 (2d Cir. June 30, 2020), and a motion for stay of

removal was filed on July 2, 2020, Mot. for Stay of Removal, Vides v. Barr, No. 20-2076,

Dkt. 8 (2d Cir. July 2, 2020). Petitioner remains detained at the BFDF. (Dkt. 1 at ¶ 3; Dkt.

10 at ¶ 28).

II. COVID-19 and the BFDF

COVID-19 has caused a global pandemic and public health emergency. According

to the World Health Organization, as of July 14, 2020, there were 12,929,306 confirmed

cases of COVID-19 worldwide, with 569,738 confirmed deaths and 216 countries, areas,

or territories impacted. See Coronavirus Disease (COVID-19) Pandemic, World Health

Org., https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last visited July

14, 2020). According to reports in the New York Times, as of the morning of July 14, 2020,

the U.S. tallies include at least 3,379,900 people who have tested positive for the virus and

at least 135,400 patients with the virus who have died. See Sarah Alkmukhtar, et al.,

Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times,

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last visited July

14, 2020).

On March 7, 2020, Governor Andrew Cuomo declared a state of emergency for all

of New York State related to COVID-19. See N.Y. Exec. Order No. 202 (Mar. 7, 2020),

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.pdf. The

World Health Organization characterized COVID-19 a pandemic on March 11, 2020.

Coronavirus Disease 2019 (COVID-19) Situation Report 51, World Health Org. (Mar. 11,

2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200311-

sitrep-51-covid-19.pdf?sfvrsn=1ba62e57_10. On March 13, 2020, President Donald

Trump declared a national emergency. Proclamation No. 9994, 85 Fed. Reg. 15337 (Mar.

13, 2020).

To aid efforts to halt the spread of COVID-19, the Centers for Disease Control and

Prevention (the “CDC”) advise the public to engage in “social distancing,” to limit

community movement, and to cancel non-essential travel (including work travel).

Implementation of Mitigation Strategies for Communities with Local COVID-19

Transmission, Ctrs. for Disease Control & Prevention (Mar. 12, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.

pdf.

Although much remains unknown about COVID-19, the available data indicates

that it poses a greater risk to older individuals and individuals with underlying health

conditions such as type 2 diabetes mellitus, chronic kidney disease, and obesity, and may

pose a greater risk for individuals with asthma, cerebrovascular disease, and neurological

conditions such as dementia. See Coronavirus Disease 2019 (COVID-19): People Who

Need to Take Extra Precautions, Ctrs. for Disease Control & Prevention (July 2, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-

risk.html. There is also concern that correctional and detention facilities pose particular

challenges in halting the spread of the virus. See Interim Guidance on Management of

Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for

Disease Control & Prevention (May 7, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/community/correction-detention/guidance-correctional-detention.html (discussing

that correctional facilities present “unique challenges for control of COVID-19

transmission among incarcerated/detained persons, staff, and visitors”).

New York State has adopted extreme measures to address the COVID-19 pandemic.

On March 20, 2020, Governor Cuomo signed the “New York State on PAUSE” Executive

Order, which, among other things, mandated a 100% closure of non-essential businesses

statewide and temporarily banned all non-essential gatherings of individuals of any size for

any reason other than the provision of essential services. New York State on PAUSE, New

York State, https://coronavirus.health.ny.gov/new-york-state-pause (last visited July 14,

2020). On May 15, 2020, the Finger Lakes Region, in which the BFDF is located, began

Phase 1 of New York’s four phase re-opening plan. Phase 1 of Reopening Underway in

Rochester, WHEC (May 14, 2020, 9:22 AM), https://www.whec.com/news/phase-one-of-

reopening-underway-in-rochester/5730419/. The Finger Lakes Region has steadily

progressed through the phases, and entered Phase 4 on June 26, 2020. Randy Gorbman,

Finger Lakes “On Target” to Enter Phase 4 of Reopening on Friday, WXXI News (June

23, 2020), https://www.wxxinews.org/post/finger-lakes-target-enter-phase-4-reopening-

friday. As of July 14, 2020, Genesee County, the county housing the BFDF, has reported

250 cases of COVID-19 and 5 deaths. Coronavirus in Our Community, Rochester

Regional Health, https://www.rochesterregional.org/coronavirus-covid19 (last visited July

14, 2020).

III. Petitioner’s Conditions of Confinement

As previously discussed, Petitioner suffers from a seizure disorder. (Dkt. 1 at ¶ 45).

He has had several seizures while in ICE custody, most recently on March 11, 2020, and

April 6, 2020. (Id.). Petitioner contends that he has had these seizures despite taking his

seizure medication daily (id.), while Respondents contend that he has a history of refusing

to take his seizure medication (Dkt. 10-3 at ¶ 4). Additionally, Petitioner represents that

he has a history of asthma (Dkt. 1 at ¶ 48), but Respondents contend his medical records

do not support a diagnosis of asthma and that Petitioner denied a history of asthma during

his initial medical intake (Dkt. 10-3 at 3). Petitioner also states that his access to medical

care has become more limited since the spread of COVID-19 within BFDF. (Dkt. 1 at

¶ 44).

Petitioner is presently housed in a celled dormitory unit with another individual in

his cell. (Dkt. 14-1 at ¶ 3). The cell has two beds and its own toilet and sink. (Id.).

Petitioner maintains that he cannot be six feet apart from his cellmate, particularly because

they share the toilet. (Dkt. 15-1 at ¶ 5). Petitioner shares two showers with 40 people.

(Dkt. 1 at ¶ 44). Respondents contend that there is a schedule for shower times for each

cell so that detainees may shower in isolation, and that detainees have access to cleaning

supplies and disinfectant so that they may clean the showers and other surfaces before or

after using them. (Dkt. 10-4 at ¶¶ 4, 8; Dkt. 14-1 at ¶ 5).

Detainees may eat their meals in their cells to facilitate social distancing. (Dkt. 10-4

at ¶ 5; Dkt. 14-1 at ¶ 6). All employees and staff wear masks when interacting with

detainees, and masks are provided to detainees in their housing units. (Dkt. 10-4 at ¶ 7;

Dkt. 14-1 at ¶ 7). Posters and signs are posted in multiple languages to advise of the

dangers of COVID-19 and the importance of social distancing and other exposure

mitigation techniques. (Dkt. 10-3 at ¶ 9; Dkt. 14-1 at ¶ 8).

As of April 28, 2020, there were 49 confirmed cases of COVID-19 in the BFDF.

(Dkt. 1 at ¶ 43; Dkt. 14-1 at ¶ 10). However, no new known COVID-19 cases have

emerged at the BFDF since April 21, 2020: over 150 tests have been performed since that

date, all with negative results. (Dkt. 14-1 at ¶ 10). Additionally, all detainees may receive

a COVID-19 test upon request. (Id. at ¶ 9). Both Petitioner and his roommate were tested

on June 30, 2020, and their tests came back negative. (Id. at ¶ 12).

The BFDF has not been fully closed to the public because it houses the Batavia

Immigration Court. (Dkt. 1 at ¶ 41). IJs, court personnel, facility personnel, attorneys,

noncitizens’ family members, and others continue to enter and exit BFDF daily. (Id.). The

BFDF has implemented various procedures to address the continued foot traffic: the

Government represented at oral argument that when new detainees first enter the facility,

they are tested for COVID-19 and quarantined for 14 days, and that every person who

comes onto BFDF property is temperature screened.

IV. Procedural History

Petitioner filed the instant emergency Petition with this Court on May 5, 2020. (Dkt.

1). On June 2, 2020, Respondents filed their Answer and response (Dkt. 10), and Petitioner

replied on June 8, 2020 (Dkt. 11). On June 20, 2020, Petitioner filed a supplemental letter

informing the Court that the BIA had issued its decision, and that Petitioner had filed a

petition for review with the Second Circuit. (Dkt. 12). The Court ordered supplemental

briefing (Dkt. 13), which Respondents submitted on July 7, 2020 (Dkt. 14), and Petitioner

on July 10, 2020 (Dkt. 15). Oral argument was held telephonically before the undersigned

on July 13, 2020. (Dkt. 13).

DISCUSSION

I. Legal Standard

The federal habeas corpus statute gives district courts jurisdiction to hear

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

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

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

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

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

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

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

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

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

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

alone can consider.”).

“When a petitioner brings a habeas petition pursuant to § 2241, the petitioner ‘bears

the burden of proving that he is being held contrary to law; and because the habeas

proceeding is civil in nature, the petitioner must satisfy his burden of proof by a

preponderance of the evidence.’” Dzhabrailov v. Decker, No. 20-CV-3118 (PMH), 2020

WL 2731966, at *3 (S.D.N.Y. May 26, 2020) (quoting Skaftouros v. United States, 667

F.3d 144, 158 (2d Cir. 2011)); see Cruz v. Decker, No. 18-CV-9948 (GBD) (OTW), 2019

WL 7572975, at *3 (S.D.N.Y. Aug. 27, 2019) (“To obtain [ ] relief [under § 2241], the

petitioner must show violation of his rights by a preponderance of the evidence.” (citing

Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997))), report and recommendation adopted,

2019 WL 6318627 (S.D.N.Y. Nov. 26, 2019).

II. Named Respondents

As a preliminary matter, the Government contends that Jeffrey J. Searls, Officer in

Charge of the Buffalo Federal Detention Facility, is the only respondent with immediate

custody over Petitioner, and consequently the only proper respondent. (Dkt. 10-6 at 15).

The Court agrees with the Government and dismisses all respondents except for Jeffrey

Searls from the instant action. See Rodriguez v. Barr, No. 6:18-cv-06757-MAT, 2019 WL

2192516, at *3 n.3 (W.D.N.Y. May 21, 2019) (“Searls is the only proper respondent in this

§ 2241 proceeding as he is the person with direct control over Petitioner’s detention.”

(citing Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“[I]n habeas challenges to present

physical confinement . . . the default rule is that the proper respondent is the warden of the

facility where the prisoner is being held[.]”))); Hassoun v. Sessions, No. 18-CV-586-FPG,

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)); see also S.N.C. v. Sessions, 325 F. Supp. 3d

401, 407 (S.D.N.Y. 2018) (“If, on the other hand, the petition challenges a broader form of

legal, non-physical custody, then the proper respondent is the person with legal authority

to effect that custody.”).

III. Procedural Due Process

Petitioner argues that his continued detention without a bond hearing is a violation

of his procedural due process rights. For the following reasons, the Court finds that

Petitioner is entitled to a bond hearing where the Government bears the burden of proving

by clear and convincing evidence that Petitioner poses either a danger to the community or

a risk of flight.

A. Statutory Provision of Detention

As a preliminary matter, the Court must determine which statutory provision

Petitioner is presently detained under. Respondent contends that Petitioner is currently

detained pursuant to 8 U.S.C. § 1231. (Dkt. 14). Petitioner maintains that he is currently

detained pursuant to 8 U.S.C. § 1226(c).1 (Dkt. 15).

“The distinction between § 1226 and § 1231 essentially comes down to whether an

alien is subject to a final order of removal.” Enoh v. Sessions, 236 F. Supp. 3d 787, 793

(W.D.N.Y. 2017), appeal withdrawn, No. 17-1236, 2017 WL 6947858 (2d Cir. Dec. 7,

2017). Section 1231 of the INA addresses detention of “immigrants in the ‘removal

period,’ the term used in the statute to describe the 90-day period following an order of

removal during which ‘the Attorney General shall remove the alien.’” Hechavarria v.

Sessions, 891 F.3d 49, 54 (2d Cir. 2018) (quoting 8 U.S.C. § 1231(a)(1)(A)). The removal

period begins “on the latest of the following”: (1) “[t]he date the order of removal becomes

administratively final”; (2) “[i]f the removal order is judicially reviewed and if a court

orders a stay of the removal of the alien, the date of the court’s final order”; and (3) “[i]f

the alien is detained or confined (except under an immigration process), the date the alien

is released from detention or confinement.” 8 U.S.C. § 1231(a)(1)(B).

In 2012, DHS and the Second Circuit entered into a forbearance agreement wherein

the Government “has assured that removal will not occur” while the detainee has a petition

for review pending before the Second Circuit. In re Immigration Petitions for Review

Pending in U.S. Court of Appeals for Second Circuit, 702 F.3d 160, 162 (2d Cir. 2012).

The overwhelming majority of courts in this Circuit have found that the forbearance

1 Respondent previously represented that Petitioner was initially detained pursuant to

8 U.S.C. § 1226(a). (Dkt. 10-6 at 11). However, at oral argument both parties agreed that

prior to the BIA’s denial of Petitioner’s appeal, Petitioner was detained pursuant to

§ 1226(c).

agreement amounts to a “court order[ed] stay of the removal of the alien” and that detainees

with a pending petition for review and motion to stay are not detained pursuant to § 1231.

See Sankara v. Whitaker, No. 18-CV-1066, 2019 WL 266462, at *4 (W.D.N.Y. Jan. 18,

2019) (collecting cases); see, e.g., Yusuf v. Edwards, No. 18-CV-3605 (GBD) (BCM), 2019

WL 4198798, at *5 & n.4 (S.D.N.Y. July 2, 2019) (“[B]ecause of the government’s

forbearance policy, an alien who files a PFR and a stay motion in the Second Circuit obtains

‘the functional equivalent of a stay order,’ such that § 1231 no longer governs his detention

and he ‘may not be denied a bond hearing on that basis.’” (collecting S.D.N.Y. cases)).

For the reasons that this Court previously articulated in Ranchinskiy v. Barr, 422 F. Supp.

3d 789, 795-96 (W.D.N.Y. 2019), including based upon the Second Circuit’s reasoning in

Hechavarria, it agrees that § 1231 does not apply here.

Respondent contends that reliance on the Second Circuit’s decision in Hechavarria

is misplaced because the Second Circuit did not reach the issue of the forbearance

agreement. (Dkt. 14 at 3). It is true that in Hechavarria, the Circuit had granted the

petitioner’s stay of removal while his petition for review was pending. Id. at 57. However,

in the decision the Circuit held the petitioner was detained under § 1226(c) because “there

remains a very clear impediment to his removal—review by this Court” and reasoned that

“[g]iven the fact that such review has not been completed, it would make no sense to

classify [the petitioner] in the same section of the statute that governs the removal of aliens

who have no remaining barriers preventing their immediate removal.” Id. Based on that

same reasoning, courts have concluded that “the forbearance agreement amounts to a ‘court

order[ed] stay of the removal of the alien.’” Sankara, 2019 WL 266462, at *4 (alteration

in original) (quoting Hechavarria, 891 F.3d at 49); see Ranchinskiy, 422 F. Supp. 3d at

795-96; see also Yusuf, 2019 WL 4198798, at *5 & n.4; Alexandre v. Decker, No. 17 Civ.

5706 (GBD) (KHP), 2019 WL 1407353, at *5-6 (S.D.N.Y. Mar. 28, 2019) (“[T]he Second

Circuit’s forbearance policy is an insurmountable substantive impediment to Petitioner’s

removal until that Court issues a decision on his motion to stay.”). But see Narain v. Searls,

No. 19-CV-6361 (CJS), 2020 WL 95425, at *3-4 (W.D.N.Y. Jan. 8, 2020) (finding

petitioner was detained pursuant to § 1231); Nunez v. Searls, No. 18-CV-6463 CJS, 2019

WL 2524308, at *2-3 (W.D.N.Y. June 19, 2019) (same), appeal dismissed, No. 19-2114

(2d Cir. June 26, 2020).

Respondent argues that the forbearance agreement differs from a stay because

pursuant to the forbearance agreement, the Government may engage in removal after

providing a 21-day notice to the Circuit, whereas if a stay has been ordered removal cannot

occur until the Second Circuit decides the petition for review or vacates the stay. (Dkt. 14

at 4-5). The Court is not persuaded by this distinction. First, the Government has not filed

a notice of intent to remove in Petitioner’s case, so the forbearance agreement remains an

impediment to removal. Second, even with the 21-day notice provision, the forbearance

agreement still amounts to an impediment to removal just like a formal stay—albeit an

impediment with arguably a shorter life span if the government takes the necessary steps

to serve the requisite notice. In other words, the 21-day notice requirement is also a

“barrier[] preventing . . . immediate removal,” Hechavarria, 891 F.3d at 57, and the

forbearance agreement effectively constitutes a consent order staying removal, which

nonetheless can be lifted if the requisite notice is served and 21 days elapses without entry

of a temporary or formal stay. The practical impact of the forbearance agreement is

illustrated by a case cited by Respondent wherein the Second Circuit granted a temporary

stay two days after receiving the Government’s notice of intent to remove. See Yusuf, 2019

WL 4198798, at *3.

For all these reasons, the Court finds that § 1231 does not apply, and Petitioner is

presently detained pursuant to § 1226(c).

B. Petitioner Is Entitled to a Bond Hearing

For the reasons previously articulated in other decisions by this Court, see, e.g.,

Ranchinskiy, 422 F. Supp. 3d at 797; Constant v. Barr, 409 F. Supp. 3d 159, 167-68

(W.D.N.Y. 2019), this Court agrees with the overwhelming majority of courts in this

Circuit that the multi-factor approach articulated by the court in Sajous v. Decker, No. 18-

CV-2447 (AJN), 2018 WL 2357266, at *1 (S.D.N.Y. May 23, 2018), appeal withdrawn,

No. 18-2591, 2019 WL 4137822 (2d Cir. May 7, 2019), and other courts within this Circuit,

is a useful tool for addressing procedural due process claims for aliens detained pursuant

to § 1226(c) in the immigrant habeas context. Those non-inclusive factors are as follows:

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

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

removal; (4) whether the detention will exceed the time the petitioner spent

in prison for the crime that made him removable; (5) whether the detention

facility is meaningfully different from a penal institution for criminal

detention; (6) the nature of the crimes committed by the petitioner; and (7)

whether the petitioner’s detention is near conclusion.

Cabral v. Decker, 331 F. Supp. 3d 255, 261.

As to the first factor, Petitioner has been detained in immigration custody since

March 28, 2019. Thus, “[t]he first and ‘most important’ . . . factor weighs heavily in favor

of granting the petition.” Bermudez Paiz v. Decker, No. 18-CV-4759 (GHW) (BCM), 2018

WL 6928794, at *13 (S.D.N.Y. Dec. 27, 2018) (citation omitted). “[C]ourts in this Circuit

have generally been skeptical of prolonged detention of removable immigrants, without

process, lasting over six months,” Lett v. Decker, 346 F. Supp. 3d 379, 387 (S.D.N.Y. 2018)

(quoting Lopez v. Sessions, No. 18 Civ. 4189 (RWS), 2018 WL 2932726, at *14 (S.D.N.Y.

June 12, 2018)), appeal filed, No. 18-3714 (2d Cir. Dec. 11, 2018), and “courts have found

detention shorter than a year to be unreasonably prolonged as part of procedural due

process analysis,” Rosado Valerio v. Barr, No. 19-CV-519, 2019 WL 3017412, at *4

(W.D.N.Y. July 10, 2019) (collecting cases), appeal dismissed, No. 19-2848, 2020 WL

1126526 (2d Cir. Jan. 9, 2020).

The record before the Court shows that Petitioner has been detained for roughly 16

months without meaningful process. Petitioner received an initial custody determination

in March 2019 and he requested an IJ to review the determination but never received such

review. (Dkt. 10-2 at 19). Additionally, ICE reviewed Petitioner’s detention in April 2020,

but found that Petitioner “ha[d] not established to ICE’s satisfaction that [he] is not a flight

risk” or “danger to the community.” The April 2020 custody determination makes clear

that the burden of proof was on Petitioner to prove he is not a flight risk or danger to the

community, and as discussed below, the Court finds that due process requires the

Government to bear this burden. Consequently, the first factor weighs heavily in

Petitioner’s favor. See, e.g., Bermudez Paiz, 2018 WL 6928794, at *30 (first factor

weighed heavily in petitioner’s favor where petitioner had been detained for more than 16

months since his parole had been revoked); Joseph v. Decker, No. 18-CV-2640(RA), 2018

WL 6070567, at *11 (S.D.N.Y. Nov. 21, 2018) (first factor weighed in petitioner’s favor

where petitioner had been detained for over 14 months).

Respondent contends that the second factor in the analysis—which party is

responsible for the delay—undercuts a finding of an unreasonable length of detention in

Petitioner’s case because “Petitioner’s detention is due to his own actions.” (Dkt. 10-6 at

12). For procedural due process claims, when “considering whether [Petitioner] or the

Government is responsible for the prolonged proceedings, the Court ‘may examine the

record to determine whether the alien sought repeated or unnecessary continuances, or filed

frivolous claims and appeals.’” Vallejo v. Decker, No. 18-CV-5649, 2018 WL 3738947,

at *4 (S.D.N.Y. Aug. 7, 2018) (quoting Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1218 (11th

Cir. 2016), vacated on other grounds, 890 F.3d 952 (11th Cir. 2018)); see Sajous, 2018

WL 2357266, at *11 (“[A]liens who are merely gaming the system to delay their removal

should not be rewarded with a bond hearing that they would not otherwise get under the

statute.” (quoting Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 476 (3d Cir.

2015))). “[C]ourts should keep in mind that ‘aliens should not be punished for pursuing

avenues of relief and appeals[,]’ but evidence of bad faith delays may cut against them.”

Hernandez v. Decker, No. 18-CV-5026 (ALC), 2018 WL 3579108, at *7 (S.D.N.Y. July

25, 2018) (quotation omitted), appeal withdrawn, No. 18-2824, 2019 WL 1377025 (2d Cir.

Feb. 5, 2019).

Here, a significant portion of the delay between April 2019 (when Petitioner

requested a continuance to seek counsel) and September 2019 (when the merits hearing

before the IJ began), can be attributed to requests for adjournment made by Petitioner.

However, the record does not show that Petitioner was engaging in bad faith delay tactics.

To the contrary, Petitioner’s requests for continuances were made to obtain counsel, for

counsel to prepare for the merits hearing, and for Petitioner to appear in person for his

merits hearing instead of via videoconference due to concerns regarding his seizure

disorder. (Dkt. 1 at ¶¶ 49-54; Dkt. 10 at ¶¶ 9-17). Further, the record indicates that the

proceedings were then adjourned multiple times due to the pending adjudication of the

motion to suppress evidence and of Petitioner’s I-589 application for asylum, withholding

of removal, and relief under the Convention Against Torture. (Dkt. 1 at ¶¶ 49-54; Dkt. 10

at ¶¶ 9-17). As such, it would not be appropriate to utilize these requests for adjournment

to penalize Petitioner. See, e.g., Sopo, 825 F.3d at 1218; Vallejo, 2018 WL 3738947, at

*4; Hernandez, 2018 WL 3579108, at *7; Sajous, 2018 WL 2357266, at *11. On the other

hand, it is apparent that Petitioner’s continued detention and stay of removal has been

triggered by the pending appeal, although the Court cannot state that Petitioner’s appeal is

frivolous or in bad faith. See Hechavarria, 891 F.3d at 56 n.6 (noting the Supreme Court

has given weight to a petitioner’s decision to pursue review of a removal order in the

“context only of an immigrant who has ‘substantially prolonged his stay by abusing the

processes provided to him,’ Nken v. Holder, 556 U.S. 418, 436 (2009)—not of an

immigrant who simply made use of the statutorily permitted appeals process”). Thus, while

much of the delay rests with Petitioner’s litigation strategy, the Court cannot conclude that

that strategy has been employed for purposes of creating delay.

As for the third factor, Petitioner has asserted defenses to removal in his

immigration proceedings. He has asked for relief under the CAT, has applied for asylum,

and contends that the IJ improperly did not require DHS to authenticate evidence at the

merits hearing and did not properly consider the evidence presented by Petitioner. (Dkt. 1

at 19). “The Court need not inquire into the strength of [Petitioner’s] defenses—it is

sufficient to note their existence and the resulting possibility that the Petitioner will

ultimately not be removed, which diminishes the ultimate purpose of detaining the

Petitioner pending a final determination as to whether he is removable.” Sajous, 2018 WL

2357266, at *11; see Cabral, 331 F. Supp. 3d at 261-62 (finding the third factor weighed

in petitioner’s favor because he asserted several defenses to his removal “including

asylum . . . and relief under the Convention Against Torture”); Perez v. Decker, No. 18-

CV-5279 (VEC), 2018 WL 3991497, at *5 (S.D.N.Y. Aug. 20, 2018) (“Petitioner has made

a claim for asylum that could be a defense to his removal, again tilting the scales toward

his unreviewed detention being unreasonable.”). Accordingly, this factor weighs in

Petitioner’s favor.

The fourth factor also weighs in Petitioner’s favor. His detention has been

significantly longer than the time that he spent in prison for the crime that made him

removable—Petitioner was not sentenced to any time in prison as a result of his

convictions. (Dkt. 10 at ¶ 4; Dkt. 10-2 at 6).

The fifth factor—whether the detention facility is meaningfully different from a

penal institution for criminal detention—is at best neutral. Respondent has submitted a

declaration describing the conditions of confinement at the BFDF as not consisting of “the

same level of restrictions typical for someone held at a prison.” (Dkt. 11-7 at ¶ 7).

However, even with the amenities, such as entertainment and “arts & crafts,” detailed in

that declaration (id. at ¶¶ 6-7), the reality is that the facility houses individuals against their

will with various restrictions on their freedom of movement. Indeed, Respondent’s

declaration also notes that the BFDF is required to comply with the Prison Rape

Elimination Act. (Id. at ¶ 12). Thus, while perhaps not akin to a maximum-security prison,

for many individuals, even crediting the description set forth in the declaration, the facility

does not seem meaningfully different from at least a low-security penal institution for

criminal detention.

The sixth factor, the nature of the crime Petitioner was convicted of, weighs against

Petitioner on its face, but the underlying facts are certainly unique. In December 2016,

Petitioner pleaded guilty to a violent crime—manslaughter in the second degree. See

Constant, 409 F. Supp. 3d at 171 (finding sixth factor weighed against the petitioner where

he had pleaded guilty to committing the violent crimes of manslaughter and attempted

assault, as well as trafficking firearms). However, the Court notes that while past criminal

convictions, particularly of violent offenses, are critical to evaluating a petitioner’s risk of

danger to the community, “[t]he process due even to excludable aliens requires an

opportunity for an evaluation of the individual’s current threat to the community and his

risk of flight.” Hechavarria v. Whitaker, 358 F. Supp. 3d 227, 240 (W.D.N.Y. 2019)

(quoting Chi Thon Ngo v. I.N.S., 192 F.3d 390, 398 (3d Cir. 1999)). Moreover, the

conviction in this case represents no ordinary manslaughter conviction, given the

underlying tragic facts and circumstances. Also, there is no evidence in the record showing

that Petitioner poses a current threat to the community—indeed, he was sentenced to no

incarceration for the manslaughter conviction. Thus, on the whole, the Court considers

this factor as neutral.

The final factor, whether Petitioner’s detention is near conclusion, arguably weighs

in Petitioner’s favor. The merits of Petitioner’s petition for review have not yet been

briefed before the Second Circuit, and it is unclear when the Second Circuit will issue its

decision. See Dukuray v. Decker, No. 18 CV 2898 (VB), 2018 WL 5292130, at *5

(S.D.N.Y. Oct. 25, 2018) (“[T]here is ‘significant reason to believe that [petitioner’s

detention] will continue . . . because . . . he would remain detained throughout the course

of an appeal by either side.’” (second alteration in original) (quoting Lett, 346 F. Supp. 3d

at 387)).

Thus, on balance and particularly in view of the length of the detention and the

circumstances surrounding that detention, the Court finds that Petitioner’s continued

detention without a bond hearing is constitutionally unjustified. See Arce-Ipanaque v.

Decker, No. 19-CV-1076 (JMF), 2019 WL 2136727, at *2 (S.D.N.Y. May 15, 2019) (“At

bottom, the minimal burden that a bond hearing would place on the Government is far

outweighed by [the petitioner]’s interest in ensuring that his continued detention is

justified.” (quotation and original alteration omitted)).

Taking all of the above into consideration, the Court finds “the ‘minimal burden’

that a bond hearing would place on the Government is far outweighed by [Petitioner]’s

interest in ‘ensur[ing] that his continued detention is justified,’” Arce-Ipanaque, 2019 WL

2136727, at *2 (quoting Vallejo, 2018 WL 3738947, at *5), and due process requires that

Petitioner receive a bond hearing where the government must demonstrate dangerousness

or flight risk by clear and convincing evidence. Additionally, the Court finds that both due

process and BIA precedent require the IJ to consider ability to pay and alternative

conditions of release in setting bond. See Abdi v. Nielsen, 287 F. Supp. 3d 327, 335-39

(W.D.N.Y. 2018); see also Hernandez v. Sessions, 872 F.3d 976, 991 & n.4 (9th Cir. 2017)

(“A bond determination that does not include consideration of financial circumstances and

alternative release conditions is unlikely to result in a bond amount that is reasonably

related to the government’s legitimate interests.”); Arce-Ipanaque, 2019 WL 2136727, at

*3 (collecting cases); Lett, 346 F. Supp. 3d at 389 (“The Court agrees with Petitioner that

an immigration bond hearing that fails to consider ability to pay or alternative conditions

of release is constitutionally inadequate.”); Hernandez, 2018 WL 3579108, at *12 (“[T]he

Due Process Clause requires than an IJ consider ability to pay and alternative conditions of

release in setting bond.” (quotation and alteration omitted)).

IV. Substantive Due Process

Petitioner also claims that he is being held in unsafe conditions in violation of his

Fifth Amendment right to substantive due process. “In order to establish a violation of a

right to substantive due process, a plaintiff must demonstrate not only government action

but also that the government action was so ‘egregious, so outrageous, that it may fairly be

said to shock the contemporary conscience.’” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir.

2005) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)).

“Immigration detainees can establish a due process violation for unconstitutional

conditions of confinement by showing that a government official ‘knew, or should have

known’ of a condition that ‘posed an excessive risk to health,’ and failed to take appropriate

action.” Basank v. Decker, __ F. Supp. 3d __, No. 20 CIV. 2518 (AT), 2020 WL 1481503,

at *5 (S.D.N.Y. Mar. 26, 2020) (quoting Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir.

2017)); see also Coronel v. Decker, __ F. Supp. 3d __, No. 20-CV-2472 (AJN), 2020 WL

1487274, at *3 (S.D.N.Y. Mar. 27, 2020) (“The Due Process Clause . . . prohibits the

federal government from being deliberately indifferent to the medical needs of civil

detainees.”). As the Coronel court explained:

[A] petitioner establishes a claim for deliberate indifference by proving that

the defendant-official acted intentionally to impose the alleged condition, or

recklessly failed to act with reasonable care to mitigate the risk that the

condition posed to the pretrial detainee even though the defendant-official

knew, or should have known, that the condition posed an excessive risk to

health or safety.

2020 WL 1487274, at *4 (quotation and original alteration omitted).

Petitioner claims that his medical conditions place him at high risk from COVID-

19, and that the conditions at the BFDF are sufficiently serious as to pose a substantial risk

of serious harm to him. Respondent contends that Petitioner does not suffer from medical

conditions that make him high risk, and that the steps taken by Respondent to prevent the

spread of COVID-19 do not demonstrate deliberate indifference. (Dkt. 10-6 at 6-10). The

Court finds that Petitioner has failed to meet his burden of showing that he suffers from

medical conditions that make him vulnerable in the event that he contracts COVID-19 and

as a result has failed at this time to demonstrate that he has a serious medical need.

Courts in this Circuit have overwhelmingly, if not exclusively, found that

immigration detainees who suffer from medical conditions that put them at high risk if

infected with COVID-19 have a serious medical need for purposes of the deliberate

indifference analysis. See, e.g., Jones, 2020 WL 1643857, at *7-8; Basank, 2020 WL

1481503, at *3; Coronel, 2020 WL 1487274, at *5. The parties dispute several key aspects

of Petitioner’s claimed underlying medical conditions: (1) whether Petitioner’s asthma, if

he suffers from it, is severe enough to make him high-risk if infected with COVID-19; and

(2) whether Petitioner’s seizure disorder places him at a higher risk.

The Court finds Petitioner has not demonstrated by a preponderance of the evidence

that either of his alleged conditions makes him a vulnerable individual in the context of

COVID-19. Petitioner primarily relies on a four page, unsworn, unsigned document

purportedly written by Laura S. Boylan, M.D., wherein Dr. Boylan represents that her

review of Petitioner’s medical records shows that Petitioner “had pre-existing asthma and

was on inhalers prior to the accident,” as well as opines that Petitioner’s seizure disorder

places him at higher risk of complications from COVID-19. (Dkt. 11-4 at 3-4). However,

as noted, this statement from Dr. Boylan is unsworn and unsigned, and Petitioner has not

submitted any medical records to substantiate his claims. In contrast, Respondent has a

provided a sworn declaration by Captain Carlos Quinones, M.D., who states that

Petitioner’s medical records do not support a history of asthma. (Dkt. 10-3 at ¶ 7).

Respondent also points to CDC guidance which lists only moderate to severe asthma as

placing individuals at higher risk from COVID-19, and does not recognize seizures or

epilepsy as making an individual more susceptible to the disease. (Dkt. 10-6 at 9); see

Coronavirus Disease 2019 (COVID-19): People Who Need to Take Extra Precautions,

Ctrs. for Disease Control & Prevention (July 2, 2020), https://www.cdc.gov/coronavirus/

2019-ncov/need-extra-precautions/groups-at-higher-risk.html.

The Court finds that the document from Dr. Boylan to be an insufficient basis from

which the Court can determine whether Petitioner’s seizure disorder makes him a

vulnerable individual. Again, the document is unsworn and unsigned. See Estate of

Keenan v. Hoffman-Rosenfeld, No. 16CV0149SFJAYS, 2019 WL 3410006, at *17

(E.D.N.Y. July 29, 2019) (“[T]here is no notary jurat indicating that Dr. Peyster swore to

or affirmed the truthfulness of his declarations. Therefore, the Court need not consider

it.”); Jay v. Glob. Foundries U.S. Inc., No. 5:15-CV-1066, 2018 WL 1441297, at *3

(N.D.N.Y. Mar. 22, 2018) (“[D]efendant’s unsworn expert report will not be considered.”),

aff’d, 758 F. App’x 209 (2d Cir. 2019). Additionally, the document contains no citations

to scientific studies that support Dr. Boylan’s contentions. This lack of support is

particularly fatal in the present context where there does not appear to be a scientific

consensus as to whether a seizure disorder makes an individual prone to serious

complications from COVID-19. For example, the Epilepsy Foundation has represented

that epilepsy alone “[d]oes not increase the risk of getting COVID-19” and “[d]oes not

increase the severity of COVID-19,” COVID-19 and Epilepsy, Epilepsy Foundation of

Am., https://www.epilepsy.com/learn/covid-19-and-epilepsy (last visited July 11, 2020),

and the CDC has not listed seizures as a condition that makes an individual high risk.

Courts that have found that petitioners suffer from a serious medical need for purposes of

the deliberate indifference analysis in the context of the COVID-19 pandemic have done

so only for detainees suffering from conditions recognized by the CDC as placing

individuals at higher risk. See, e.g., Ramsundar v. Wolf, No. 20-CV-361, 2020 WL

1986923, at *2 (W.D.N.Y. Apr. 27, 2020) (“Because petitioners . . . did not meet the CDC

criteria for COVID-19 vulnerability, the Court found that the respondents were not acting

with deliberate indifference to their medical needs and consequently denied their

motions.”), amended, No. 20-CV-361, 2020 WL 2557832 (W.D.N.Y. May 20, 2020);

Basank, 2020 WL 1481503, at *3 (identifying health and safety risks posed by COVID-19

based on CDC guidance); Coronel, 2020 WL 1487274, at *5 (finding the petitioners, who

had major organs partially removed, type 2 diabetes, obesity, and hypertension, were

“particularly vulnerable to severe illness or death if infected by COVID-19”).

Petitioner argues that the CDC has identified neurological conditions as placing

individuals at higher risk. (Dkt. 1 at ¶ 27). However, the most recent CDC guidance

identifies “neurological conditions such as dementia” as potentially placing individuals at

higher risk, and does not mention seizure disorders. See Coronavirus Disease 2019

(COVID-19): People Who Need to Take Extra Precautions, Ctrs. for Disease Control &

Prevention (July 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-

precautions/groups-at-higher-risk.html (emphasis added). Nor has Petitioner produced

anything that demonstrates a relevant connection between dementia and seizures,

particularly as it relates to COVID-19. Such tenuous support is not sufficient to meet

Petitioner’s burden in the instant matter.

Moreover the Court cannot find on the record before it that Petitioner has

demonstrated by a preponderance of the evidence that his alleged asthma makes him a

vulnerable individual. Even if Petitioner’s medical record, which is not presently before

the Court, does indicate that Petitioner “had pre-existing asthma and was on inhalers prior

to the accident” (Dkt. 11-4 at 3-4), and the Court fully credits Petitioner’s declaration where

he states that he has “a history of asthma,” was “first diagnosed with asthma as a teenager

and was prescribed inhalers for a number of years” (Dkt. 11-1 at ¶ 2), this evidence does

not show that Petitioner presently suffers from asthma, or that any such asthma rises to the

level in the CDC guidance of moderate or severe.

Accordingly, the Court finds that Petitioner has not established based on the present

record that he is a vulnerable individual and denies his substantive due process claim. This

does not mean that Petitioner cannot show that he is a vulnerable individual—it is entirely

possible that Petitioner could present more substantial evidence that his seizure disorder

places him at high risk from a COVID-19 infection or that he presently suffers from

moderate to severe asthma. Therefore, the denial of this portion of the Petition is without

prejudice.

CONCLUSION

For the foregoing reasons, the Petition (Dkt. 1) is granted in part to the extent that

the Court orders Respondent to afford Petitioner an individualized bond hearing consistent

with the procedures outlined in this Decision and Order within 14 days of its entry. If

Petitioner requests a continuance that results in a bond hearing date outside the 14-day

deadline set forth above, such a continuance will be in compliance with the instant Decision

and Order, as long as the new date falls within a reasonable time period. Respondent is

directed to file a status update with the Court within three (3) days of the date of Petitioner’s

bond hearing regarding the outcome of the hearing, or on or before July 31, 2020,

whichever date is earlier. The Court denies Petitioner’s substantive due process claim

without prejudice. The Clerk of Court is directed to enter judgment and close this case.

SO ORDERED.

_______________________________

ELIZABETH A. WOLFORD

United States District Judge

Dated: July 14, 2020

Rochester, New York