Curry v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

FORBES W. CURRY,

Petitioner,

DECISION AND ORDER

v.

6:20-CV-06292 EAW

WILLIAM P. BARR, United States

Attorney General, et al.,

Respondents.

INTRODUCTION

Pro se petitioner Forbes W. Curry (“Petitioner”), an immigration detainee currently

detained at the Buffalo Federal Detention Facility (“BFDF”) in Batavia, New York, seeks

a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner argues that his

continued detention is unconstitutional and seeks immediate release or, in the alternative,

a bond hearing. (Id. at 19). For the reasons that follow, the Court denies and dismisses the

Petition.

BACKGROUND

Petitioner is a native and citizen of Turks and Caicos Islands. (Dkt. 3-1 at ¶ 5).

Petitioner entered the United States at Port Everglades, Florida, on or about April 4, 1983,

on a B-2 visitor visa.1 (Id.). On or about August 28, 1996, Petitioner’s immigration status

1 B-2 visitor visas are nonimmigrant visas for persons who want to enter the United

States temporarily for tourism. Visitor Visa, Bureau of Consular Affairs, U.S. Dep’t of

was adjusted to that of lawful permanent resident. (Id. at ¶ 6). On or about September 21,

1996, Petitioner was arrested and charged with criminal sale of a controlled substance in

the third degree, to which Petitioner pleaded guilty on April 10, 1997. (Id. at ¶¶ 7, 8).

Petitioner was sentenced to five years of probation and his driver’s license was suspended

for six months. (Id. at ¶ 8).

On March 28, 2012, DHS officers arrested Petitioner outside his residence pursuant

to a Warrant of Arrest of Alien. (Id. at ¶ 9). Petitioner was placed in immigration removal

proceedings by a Notice to Appear dated May 17, 2011, charging him as removable

pursuant to: Immigration and Nationality Act (“INA”) § 237(a)(2)(B)(i), as a

nonimmigrant who, at any time after admission, has been convicted of a violation (or a

conspiracy or attempt to violate) any law or regulation of a State, the United States, or a

foreign country relating to a controlled substance (as defined in Section 102 of the

Controlled Substances Act (“CSA”), 21 U.S.C. § 802), other than a single offense

involving possession for one’s own use of 30 grams or less of marijuana; and INA

§ 237(a)(2)(iii), as a nonimmigrant who has been convicted of an aggravated felony as

defined in INA § 101(a)(43)(B), an offense relating to the illicit trafficking of a controlled

substance. (Id.). Petitioner was released on an Order of Recognizance. (Id.).

On July 12, 2012, Petitioner appeared for an initial master calendar hearing before

an Immigration Judge (“IJ”). (Id. at ¶ 10). The proceeding was adjourned to allow

State, https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html (last

visited July 13, 2020).

Petitioner an opportunity to seek legal representation. (Id.). The proceedings were then

adjourned on January 24 and July 11, 2013, and January 23, 2014, to allow Petitioner time

to seek legal representation. (Id. at ¶¶ 11-13). On or about June 4, 2014, Petitioner was

arrested and charged with criminal possession of a controlled substance in the third degree

with intent to sell and criminal possession of a controlled substance in the fifth degree. (Id.

at ¶ 14). On June 26, 2014, Petitioner appeared, with counsel, for a master calendar hearing

before an IJ. (Id. at ¶ 15). The hearing was adjourned until January 15, 2015, to allow

Petitioner additional time to prepare. (Id.; Dkt. 3-4 at ¶ 7). At Petitioner’s request, the

January 15, 2015, hearing was adjourned until July 16, 2015. (Dkt. 3-1 at ¶ 16). On

February 24, 2015, Petitioner pleaded guilty to disorderly conduct and the drug charges

were dismissed. (Id. at ¶ 17).

On July 16, 2015, Petitioner appeared, with counsel, for a master calendar hearing

before an IJ. (Id. at ¶ 18). The proceedings were continued until August 29, 2017, for an

individual merits hearing. (Id.; Dkt. 3-4 at ¶ 9). On or about June 11, 2016, Petitioner was

arrested and charged with criminal possession of a controlled substance in the fourth degree

and loitering – unlawful use of a controlled substance. (Dkt. 3-1 at ¶ 19). On or about

July 28, 2016, Petitioner was arrested and charged with criminal possession of a controlled

substance in the seventh degree. (Id. at ¶ 20).

On or about August 3, 2016, Petitioner was arrested and charged with: criminal

possession of a controlled substance in the third degree with intent to sell; two counts of

criminal possession of a controlled substance in the fourth degree; criminal possession of

a weapon in the third degree; previous conviction in violation of N.Y. Penal Law

§ 265.02(1); and criminal possession of a controlled substance in the fifth degree with

intent to sell. (Id. at ¶ 21). On or about July 14, 2017, Petitioner pleaded guilty to criminal

possession of a controlled substance in the fourth degree, in addition to charges stemming

from his August 3, 2016, arrest (id. at ¶¶ 21-22), and was sentenced to time served (one

year) (id. at ¶ 22).

On August 29, 2017, Petitioner failed to appear in Immigration Court for a hearing.

(Id. at ¶ 23). The proceedings were adjourned until June 5, 2018, and were further

adjourned until March 29, 2019. (Id.). On September 28, 2017, DHS lodged Additional

Charges of Inadmissibility/Deportability against Petitioner, charging him as removable

pursuant to INA § 237(a)(2)(B)(i), as a nonimmigrant, who, at any time after admission,

had been convicted of a violation (or a conspiracy or attempt to violate) any law or

regulation of a State, the United States, or a foreign country relating to a controlled

substance (as defined in Section 102 of the CSA, 21 U.S.C. § 802), other than a single

offense involving possession for one’s own use of 30 grams or less of marijuana. (Id. at

¶ 24).

On or about August 14, 2018, Petitioner was arrested and charged with: criminal

possession of a controlled substance in the third degree with intent to sell; criminal

possession of a controlled substance in the fourth degree; criminal possession of a weapon

in the third degree; previous conviction in violation of N.Y. Penal Law § 265.02(3); and

criminal use of drug paraphernalia in the second degree. (Id. at ¶ 25). On or about

November 20, 2018, Petitioner pleaded guilty to these charges, with the exception of

previous conviction in violation of N.Y. Penal Law § 265.02(3). (See id. at ¶ 26). Plaintiff

was sentenced to a term of imprisonment of three years and a term of post-release parole

supervision of three years. (Id.).

On March 18, 2019, Petitioner was placed in DHS custody after being released from

New York State Department of Corrections and Community Supervision. (Id. at ¶ 27).

DHS served Petitioner with a Notice of Custody Determination, which notified Petitioner

that he would be detained pending a final administrative determination of his case. (Id. at

¶ 28). Petitioner requested that an IJ review the custody determination. (Id.). On April 8,

2019, Petitioner appeared, with counsel, for a bond hearing before an IJ. (Id. at ¶ 29). The

IJ denied Petitioner’s request for bond as moot. (Id.). On May 6, 2019, Petitioner appeared,

with counsel, for a master calendar hearing and a bond hearing before an IJ. (Id. at ¶ 30).

DHS requested additional time to prepare and the master calendar hearing was adjourned

until May 20, 2019, and Petitioner’s bond request was denied as moot. (Id.; Dkt. 3-4 at

¶ 15).

On May 20, 2019, Petitioner appeared, with counsel, before an IJ. (Dkt. 3-1 at ¶ 31).

To allow Petitioner time to prepare, the hearing was adjourned until July 8, 2019, and

Petitioner’s bond request was denied as moot. (Id.; Dkt. 3-4 at ¶ 16). On July 8, 2019,

Petitioner appeared, with counsel, before an IJ for a master calendar hearing. (Dkt. 3-1 at

¶ 32). To allow Petitioner additional time to prepare, the master calendar hearing was

adjourned until July 30, 2019, Petitioner’s bond request was denied as moot, and the

proceedings were further adjourned until August 9, 2019. (Id.). On August 9, 2019,

Petitioner appeared before an IJ for a master calendar hearing. (Id. at ¶ 33). The hearing

was rescheduled for September 25, 2019, due to Petitioner’s counsel’s failure to appear.

(Id.). On September 25, 2019, the proceedings were adjourned until October 15, 2019,

again due to Petitioner’s counsel’s failure to appear. (Id. at ¶ 34).

On October 15, 2019, Petitioner appeared, with counsel, for an individual hearing

before an IJ. (Id. at ¶ 35). Petitioner requested additional time to prepare and the hearing

was adjourned until November 25, 2019. (Id.; Dkt. 3-4 at ¶ 20). On November 25, 2019,

Petitioner appeared for a master calendar hearing. (Dkt. 3-1 at ¶ 36). The hearing was

continued until March 17, 2020, for an individual merits hearing. (Id.). On February 3,

2020, Petitioner’s counsel filed a motion for continuance of the March 17, 2020, hearing

date, which was granted by an IJ. (Id. at ¶ 37). Due to closure of the Immigration Court,

the hearing was further adjourned until April 16, 2020. (Id.).

On April 16, 2020, Petitioner appeared, with counsel, for an individual merits

hearing. (Id. at ¶ 38). Petitioner’s application for relief from removal was pretermitted

based on his November 20, 2018, conviction for possession of a controlled substance in

the third degree. (Id.; see Dkt. 3-2 at 25). The IJ ordered Petitioner removed from the

United States to Turks and Caicos. (Dkt. 3-1 at ¶ 38). On May 4, 2020, Petitioner filed

the instant Petition. (Dkt. 1). On May 13, 2020, Petitioner filed an appeal of the IJ’s order

of removal to the Board of Immigration Appeals (“BIA”). (Id. at ¶ 39). Based on the

record before the Court, Petitioner’s appeal remains pending before the BIA.2 (Id.).

2 In his Reply, Plaintiff indicates that he has an appeal of his final order of removal

pending before the Second Circuit. (Dkt. 5 at 5 (“Petitioner . . . is subject to mandatory

detention while he awaits judicial review of his final order of removal from the Court of

Appeals in [the] Second Circuit.”), 11 (“Petitioner has a stay of removal from [the] court

Respondents submitted their answer on June 25, 2020 (Dkt. 3; Dkt. 4), and Petitioner

replied on July 20, 2020 (Dkt. 5).

DISCUSSION

I. Jurisdiction

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.”). Therefore, to the extent that Petitioner asks this Court to stay his

removal (see Dkt. 1 at 13-14), the Court lacks jurisdiction to consider that request.

of appeals pending judicial review.”)). However, the Court could not confirm the appeal

through a search of the Public Access to Court Electronic Records (“PACER”) database.

II. Named Respondents

The Government contends that Jeffrey J. Searls, Officer in Charge of the BFDF, is

the only respondent with immediate custody over Petitioner, and consequently the only

proper respondent. (Dkt. 4 at 20-21). 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[.]”))),

reconsideration denied, 2019 WL 6037275 (W.D.N.Y. Nov. 14, 2019); 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. Petitioner’s Claims

Petitioner challenges the constitutionality of his continued detention under

§ 1226(c). (Dkt. 1).3 In particular, Petitioner contends that his detention violates his right

to due process. Petitioner seeks immediate release or, in the alternative, a bond hearing.

(See id. at 10-14). For the reasons that follow, the Court denies the Petition.

In prior decisions, this Court has set forth the history regarding the constitutionality

of the mandatory detention provided for by § 1226(c), in the wake of the Supreme Court’s

decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), including the distinctions

between substantive and procedural due process challenges, and it will not repeat that

discussion here. See, e.g., Ranchinskiy v. Barr, 422 F. Supp. 3d 789, 793-94 (W.D.N.Y.

2019). Rather, the Court will turn directly to Petitioner’s substantive and procedural due

process challenges.

A. Substantive Due Process

“[A]liens . . . have a substantive due process right to be free of arbitrary confinement

pending deportation proceedings.” Doherty v. Thornburgh, 943 F.2d 204, 209 (1991). “It

is axiomatic, however, that an alien’s right to be at liberty during the course of deportation

proceedings is circumscribed by considerations of the national interest.” Id. If the

3 Petitioner falls within the purview of § 1226(c) as he was ordered removed due to

his November 20, 2018, conviction for possession of a controlled substance in the third

degree. (Dkt. 3-1 at ¶ 38). Respondents agree that Petitioner has been accordingly held in

detention throughout the pendency of his removal proceedings pursuant to § 1226(c). (See

Dkt. 4 at 6 (“Petitioner . . . is detained under a mandatory detention statute . . . § 1226(c),

pending the completion of his removal proceedings.”)).

infringement on an alien’s “liberty interest results from a proper exercise of discretion,”

then a prolonged detention “is not conduct that goes beyond the range of government

activity permitted by the Constitution.” Id. at 211. “[D]etention of an alien ‘once removal

is no longer reasonably foreseeable’ . . . violates the Due Process Clause.” Wang v.

Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003). “[O]nce the alien provides good reason to

believe that there is no significant likelihood of removal in the reasonably foreseeable

future, the Government must respond with evidence sufficient to rebut that showing.”

Zadvydas, 533 U.S. at 701.

In the instant matter, Petitioner has failed to demonstrate that his removal is not

reasonably foreseeable. To the contrary, Petitioner would be removed if he withdrew his

appeal of the IJ’s decision presently before the BIA. Petitioner “may not rely on the extra

time resulting” from his appeal “to claim that [his] prolonged detention violates substantive

due process.” Doherty, 943 F.2d at 211; Thompson v. Lynch, No. 16 CV 6608 (CJS), 2017

WL 344970, at *7 (W.D.N.Y. Jan. 24, 2017) (“Unless and until the circuit court vacates

the removal order or otherwise rules in petitioner’s favor on the petition for review,

petitioner remains a criminal alien subject to removal and subject to lawful mandatory

detention in DHS custody under the authority of the INA.”). Accordingly, the Court denies

the portion of the Petition that rests on substantive due process grounds as well as

Petitioner’s associated request for immediate release.

B. Procedural Due Process

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), 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 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 (S.D.N.Y. 2018). However, these factors

cannot be applied in a rigid fashion, and each individual’s detention circumstance must be

evaluated on a case-by-case basis to determine whether it has become unreasonable or

unjustified, consistent with the flexible nature of due process. Jennings, 138 S. Ct. at 852.

The case-by-case approach is an “as-applied, fact-based analysis . . . derived from the

Supreme Court’s decisions in Zadvydas and Demore[.]” Sajous, 2018 WL 2357266, at

*10.

In this case, Petitioner has been detained in immigration custody since March 18,

2019. (Dkt. 3-1 at ¶ 27). “[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 receiving an individualized determination as to whether he should remain

confined for the duration of his immigration proceedings, and that the initial determination

he did receive did not provide him with meaningful process. Indeed, while the record

before the Court shows Petitioner requested that an IJ review the initial custody

determination (Dkt. 3-1 at ¶¶ 28-29), the record does not show that Petitioner ever received

such review or that he had any opportunity to advocate for his release from custody while

his immigration proceedings were ongoing. Accordingly, Petitioner’s time in custody,

along with the nature of his confinement in a facility that this Court has previously

recognized as akin to at least a low-security penal institution for criminal detention, Singh

v. Barr, No. 1:19-CV-01096 EAW, 2020 WL 1064848, at *10 (W.D.N.Y. Mar. 2, 2020),

weighs in Petitioner’s favor.

However, there are several additional factors that compel the Court to conclude that

procedural due process does not mandate a bond hearing in this case. The Court agrees

with Respondent’s assessment that “Petitioner has caused significant delays in his removal

proceedings.” (Dkt. 4 at 18). Indeed, a substantial portion of the delay can be attributed

to requests for adjournment made by Petitioner. (Dkt 3-1 at ¶¶ 10-13, 31, 32, 36; Dkt. 3-4

at ¶ 20). The proceedings were also delayed for more than two months because Petitioner’s

counsel failed to appear on multiple occasions. (Dkt. 3-1 at ¶¶ 33-34).

Moreover, Petitioner does not appear to have any legitimate defense to removal.

Petitioner seeks cancellation of removal under section 240A(b)(1) of 8 U.S.C.

§ 1229b(b)(1). (Dkt. 3-2 at 25). However, the Court agrees with Respondent that this

defense is highly unlikely to be successful because “as the IJ held, [Petitioner] is not

eligible for cancellation of removal based on his 2018 conviction pursuant to PL § 220.16.”

(Id.). Although this Court has previously acknowledged that it need not inquire into the

strength of a petitioner’s defenses when weighing this factor, see Singh, 2020 WL 1064848,

at *10; Rodriguez-Figueroa v. Barr, No. 6:19-CV-06366 EAW, 2020 WL 967486, *12

(W.D.N.Y. Feb. 28, 2020), in this case Petitioner’s defense to removal appears patently

insufficient on its face. 8 U.S.C. § 1229b(b)(1)(c) prohibits the cancellation of removal of

aliens who have been convicted of certain offenses, including convictions for “an offense

under [8 U.S.C.] § 1227(a)(2).” In turn, § 1227(a)(2)(B)(i) provides that “[a]ny alien who

at any time after admission has been convicted of a violation of (or a conspiracy or attempt

to violate) any law or regulation of a State . . . relating to a controlled substance . . ., other

than a single offense involving possession for one’s own use of 30 grams or less of

marijuana, is deportable.” As such, it seems apparent that the IJ correctly found that

Petitioner’s November 2018 conviction under N.Y. Penal Law § 220.16 for possession of

a controlled substance in the third degree, rendered Petitioner ineligible for cancellation of

removal under § 1229b(b)(1)(c). (See Dkt. 3-2 at 25); see also Camara v. New York, No.

11-CV-8235 (KMK), 2012 WL 3242697, at *4 n.7 (S.D.N.Y. Aug. 9, 2012) (finding that

the petitioner’s 2009 federal narcotics conviction rendered the petitioner ineligible for

cancellation of removal pursuant to § 1229b(b)(1)(c)). This factor weighs strongly against

Petitioner.

In addition, while the 16-month term that Petitioner has been detained in

immigration custody is not insignificant, it does not approach the amount of time that he

spent in prison for the crime that made him removable. Petitioner was sentenced to a term

of imprisonment of one year (time served) in 2017 (Dkt. 3-1 at ¶ 22), and three years in

2018 (id. at ¶ 26), a total of four years. Moreover, Petitioner pleaded guilty to multiple

drug-related criminal offenses, a majority of which occurred during the pendency of his

removal proceedings. (See Dkt. 3-1 at ¶¶ 8, 17, 22, 26). See Cabral, 331 F. Supp. 3d at

263 (“Based on his multiple convictions, [the sixth] factor weighs in favor of the

respondents.”). Further, in the event Petitioner ultimately files a petition for review in the

Second Circuit, the nature of this case does not support the conclusion that such

proceedings would be lengthy or complicated.

In sum, while the Court acknowledges that Petitioner has been in custody for

roughly 16 months, and that “detention that has lasted longer than six months is more likely

to be ‘unreasonable,’ and thus contrary to due process, than detention of less than six

months,” Sajous, 2018 WL 2357266, at *10 (collecting cases), under the particular facts

of this case the Court concludes that due process does not mandate a bond hearing. This

is not to suggest that at some future point in time, with an even further amount of time

spent in custody, that due process may not mandate a bond hearing—but based on the

Court’s analysis, that point has not yet been reached in this case.

CONCLUSION

For the foregoing reasons, the Petition (Dkt. 1) is denied and dismissed. The Clerk

of Court is instructed to close this case.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

United States District Judge

Dated: August 3, 2020

Rochester, New York