Brathwaite v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ALDWIN BRATHWAITE,

Petitioner,

v. 20-CV-174 (JLS)

WILLIAM BARR, in his official

capacity as Attorney General, U.S.

Department of Justice, et al.,

Respondents.!

DECISION AND ORDER

Aldwin Brathwaite is a native and citizen of Trinidad and Tobago. He has

been detained since January 2019 at the Buffalo Federal Detention Facility in

Batavia, New York pending removal proceedings. His order of removal became

administratively final in December 2019, and his petition for review (“PFR”) is

pending at the Second Circuit. He now petitions this Court for a writ of habeas

corpus, pursuant to 28 U.S.C. § 2241. Brathwaite argues that the mandatory

detention statutes of the Immigration and Nationality Act are unconstitutional as

applied to him. He asks the Court to order Respondents (hereinafter “the

1 The Government argues, and this Court agrees, that the only proper Respondent

in this case is Jeffrey Searls, the Assistant Officer in Charge of the Buffalo Federal

Detention Facility, because he is the only Respondent with immediate custody over

Brathwaite. Dkt. 9, at 1 n.1; see, e.g., Rodriguez v. Barr, No. 6:18-cv-06757-MAT,

2019 WL 2192516, at *3 n.3 (W.D.N.Y. May 21, 2019) (citing Rumsfeld v. Padilla,

542 U.S. 426, 435 (2004) (“Searls is the only proper respondent in this [Section]

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

Government”) to hold a constitutionally adequate bond hearing at which he may

contest his continued detention and at which the Department of Homeland Security

(“DHS”) must establish, by clear and convincing evidence, that his continued

detention is justified.

For the reasons that follow, this Court concludes that Brathwaite is detained

under 8 U.S.C. § 1231—not Section 1226(c). And because the forbearance policy

does not qualify as a court-ordered stay under Section 1231(a)(1)(B)(ii), it does not

interrupt or toll the removal period. Finally, under Zadvydas v. Davis, 533 U.S. 678

(2001), the relief requested in Brathwaite’ petition for writ of habeas corpus is

denied because he fails to show there is no significant likelihood of his removal in

the reasonably foreseeable future.

BACKGROUND

I, TIMELINE OF RELEVANT EVENTS

Brathwaite entered the United States in 1979 as a lawful permanent resident

from Trinidad and Tobago. Dkt. 1, at 6 J 26.2

On January 31, 2018, Brathwaite was convicted of the following offenses in

the New York County Supreme Court: (1) New York Penal Law § 190.80(8), Identity

Theft in the first degree; (2) New York Penal Law § 110-155.40(1), Attempted Grand

Larceny in the second degree; (3) New York Penal Law § 165.45(2), Possession of

2 Page references and citations to the parties’ written submissions—including the

petition, answer, declarations, and other briefing—are to the page numbers

reflected on the documents themselves. However, citations to the parties’ attached

exhibits (specifically in Dkt. 1-1 and Dkt. 8) will use the pagination automatically

generated by CM/ECF.

Stolen Property in the fourth degree; (4) New York Penal Law § 110-190.80(1),

Attempted Identity Theft in the first degree; (5) New York Penal Law § 155.30(1),

Grand Larceny in the fourth degree; and (6) New York Penal Law § 190.79(3),

Identity Theft in the second degree. See Dkt. 1, at 6 § 27; Dkt. 1-1, at 4 (Exh. A).

As a result, Brathwaite was sentenced to a minimum of two years and maximum of

four years in prison. See Dkt. 1, at 6 | 27; Dkt 1-1, at 8 (Exh. B).

On October 11, 2018, while Brathwaite was incarcerated, DHS determined

that Brathwaite was removable because of his convictions and issued a Notice to

Appear (“NTA”) as well as a Warrant for Arrest of Alien. Dkt. 1-1, at 2 (Exh. A);

Dkt. 8, at 36 (Exh. A). DHS served Brathwaite with the NTA on November 7, 2018.

Dkt. 8, Smith Decl. at 4 21. The NTA charged Brathwaite with removability,

under 8 U.S.C. § □□□□□□□□□□□□□□□□□□□□□□□□ based on his convictions of the following: (1)

an aggravated felony relating to a theft offense, as defined by INA §§

237(a)(2)(A)(ii1) and 101(a)(43)(G); (2) an aggravated felony relating to an attempt

or conspiracy to commit another aggravated felony, as defined by INA §§

237(a)(2)(A)(i1) and 101(a)(43)(U); (8) an aggravated felony relating to a fraud or

deceit offense in which the loss to the victim or victims exceeds $10,000, as defined

by INA §§ 237(a)(2)(A)(iii) and 101(a)(43)(M); and (4) two crimes involving moral

turpitude, as outlined by INA § 237(a)(2)(A)Gi). Dkt. 1-1, at 4-5 (Exh. A).

On January 18, 2019, Brathwaite received a Notice of Custody

Determination, which informed him that he would be detained by DHS pending a

final administrative determination in his case. Dkt. 9, at 3.

On May 28, 2019, Brathwaite filed a motion with the New York State

Supreme Court, Appellate Division, First Department, requesting leave to file a late

notice of appeal of his underlying criminal convictions, and the First Department

granted the motion. Dkt. 1, at 7 { 32; Dkt. 8, Smith Decl. at 5 ¥ 26.

Brathwaite also filed a motion in Batavia Immigration Court to terminate his

removal proceedings based on a pending criminal appeal. Dkt. 8, at 49-55 (Exh. A).

The immigration judge denied the motion on June 7, 2019, and ordered Brathwaite

removed to Trinidad and Tobago on June 11, 2019. See Dkt. 1-1, at 18-19 (Exh. E);

Dkt. 8, at 47, 73 (Exh. A). Brathwaite appealed this order to the Board of

Immigration Appeals (“BIA”), which affirmed the immigration judge’s decision on

December 11, 2019. Dkt. 1, at 7-8 J 33; Dkt. 1-1, at 22-25 (Exh. F).

On December 17, 2019, Deportation Officer Brandon Smith served

Brathwaite with a Warning for Failure to Depart. Dkt. 8, Smith Decl. at 6 4 34;

Dkt. 8, at 82-84 (Exh. A). Brathwaite signed and acknowledged receipt of this

document, which warned him of the consequences of his failure to comply with the

administrative removal order. Dkt. 8, at 4 4 9; Dkt. 8, at 82-84 (Exh. A).

Brathwaite also received a document listing the required steps he had to take to

assist in obtaining travel documents. Dkt. 8, at 4-5 4 9; Dkt. 8, at 83-84 (Exh. A).

Brathwaite filed an application form for Trinidad and Tobago Emergency Travel

Document, as well as a visa application form for Trinidad and Tobago. Dkt. 8, at 5

q 10; Dkt. 8, at 88-94 (Exh. A).

On December 18, 2019, ICE issued a Warrant of Removal/Deportation. Dkt.

8, at 5 J 11; Dkt. 8, at 22 (Exh. A). The next day, ICE requested the issuance of a

travel document from the Consulate of Trinidad and Tobago in order to facilitate

Brathwaite’s return. Dkt. 8, at 5 7 12; Dkt. 8, at 85-86 (Exh. A).

On January 6, 2020, Brathwaite filed a petition for review (“PFR’) of the

BIA’s December 11, 2019 decision with the United States Court of Appeals for the

Second Circuit. See Brathwaite v. Barr, No. 20-27 (2d Cir. filed Jan. 6, 2020), Dkt.

1; see also Dkt. 1-1, at 27-29 (Exh. G). And on February 2, 2020, he filed a motion to

stay his removal. See Dkt. 1-1, at 32-58 (Exh. H). Both of these items remain

pending at the Second Circuit. The parties acknowledge that, due to an agreement

between DHS and the Second Circuit (the “forbearance policy”), DHS will not

enforce Brathwaite’s removal order until the Second Circuit rules on his motion for

a stay or otherwise disposes of his PFR. Dkt. 1, at 8 J 34; Dkt 9, at 4.

II. PROCEDURAL HISTORY

On February 8, 2020, Brathwaite filed this Petition for a Writ of Habeas

Corpus challenging his detention at the Buffalo Federal Detention Facility. Dkt. 1.

The Government answered and filed a memorandum and declarations in opposition,

on April 9, 2020. Dkts. 8, 9. Brathwaite replied on April 28, 2020. Dkt. 11.

On July 7, 2020, this Court ordered supplemental briefing to address

Brathwaite’s argument that the COVID-19 pandemic and travel restrictions have

curtailed efforts to remove him in the reasonably foreseeable future. Dkt. 12. The

Government responded on July 16, 2020. Dkt. 138. Brathwaite declined to file an

additional substantive reply, indicating he would rely on his previous arguments.

Dkt. 14.

DISCUSSION

I. JURISDICTION

Habeas corpus review is available to persons who are “in custody in violation

of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

Circuit courts have jurisdiction, to the exclusion of district courts, over challenges to

the legality of final orders of deportation, exclusion, and removal. 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.”). District courts, however, can review

claims by aliens challenging the constitutionality of their pre-removal detention.

See Demore v. Kim, 538 U.S. 510, 516-17 (2003).

In this case, Brathwaite asserts that his “unreasonably prolonged” detention,

without any adversarial hearing at which he could challenge his custody, violates

the Fifth Amendment’s due process clause. Dkt. 1, at 1 9 3-6; Dkt. 1, at 17 9 60-

66. Therefore, Brathwaite asks this Court to order the Government to provide “a

constitutionally adequate, individualized hearing before an impartial adjudicator at

which Respondents bear the burden of establishing by clear and convincing

evidence” that he is a “danger to the community or such a flight risk that no

alternatives to detention could reasonably secure his future compliance with the

orders of immigration officials.” Dkt. 1, at 16-17.

II. STATUTORY BASIS FOR PETITIONER’S DETENTION

At the outset, this Court must determine the statutory basis for Brathwaite’s

detention. Whether his detention is governed by 8 U.S.C. § 1226 or 8 U.S.C. § 1231

potentially impacts whether he is entitled to relief and, if so, the form of that relief.

See Narain v. Searls, No. 19-CV-6361 (CJS), 2020 WL 95425, at *2 (W.D.N-Y. Jan.

8, 2020) (citing Enoh v. Sessions, 236 F. Supp. 3d 787, 791 (W.D.N.Y. 2017)).

A. Section 1226 versus Section 1231

8 U.S.C. § 1226 governs the detention of aliens before the removal period—

broadly speaking, the detention of those aliens who “are not immediately

deportable.” Hechavarria v. Sessions, 891 F.3d 49, 57 (2d Cir. 2018). Section

1226(c) specifically governs the arrest and detention of ahens who have committed

certain criminal offenses enumerated in 8 U.S.C. § 1227. 8 U.S.C. § 1226(c). This

section provides, in relevant part, that the “Attorney General shall take into

custody any alien who . . . is deportable by reason of having committed any offense

covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title.” Id.

§ 1226(c)(1)(B). Thus, detention of certain criminal aliens pending removal

proceedings is mandatory.

8 U.S.C. § 1231 governs the detention of aliens during and after the removal

period—namely, those who are subject to final orders of removal. This period is

derived from the statute, which allows DHS 90 days to effectuate a removal from

the United States following the entry of a final order of deportation or removal. Id.

§ 1231(a)(1)(A).

In particular, Section 1231(a)(1)(B) states that the removal period begins at

the latest of the following events:

(i) The date the order of removal becomes administratively final.

Gi) Ifthe 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.

@ii) Ifthe alien is detained or confined (except under an immigration

process), the date the alien is released from detention or confinement.

Id. § 1231(a)(1)(B).

During the 90-day removal period, detention is mandatory. Id. § 1231(a)(2).

Once this removal period is over, detention is discretionary: an alien may be

detained beyond the removal period if, among other things, he or she is removable

under certain provisions of 8 U.S.C. § 1227. See id. § 1231(a)(6).

Brathwaite argues that the statutory basis for his detention is 8 U.S.C. §

1226(c). Dkt. 1, at 4 20-21. Brathwaite does not dispute his detention would be

mandated under Section 1226(c). Dkt. 1, at 1 7 38. He argues instead that, once a

detention has become unreasonably prolonged, a noncitizen—including one

statutorily subjected to mandatory detention— is constitutionally entitled to a bond

hearing at which the government must justify further detention. Dkt. 1, at 10 4 42.

Brathwaite maintains he is not detained under Section 1231 because his removal is

effectively stayed by the Second Circuit’s forbearance policy and, thus, the removal

period under Section 1231 has not begun under Section 1231(a)(1)(B)(ii). Dkt. 11, at

1-5.

The Government disagrees and argues that Brathwaite is detained under 8

U.S.C. § 1231. Dkt. 9, at 9. The Government argues that Brathwaite is subject to

an administratively final order of removal, no stay of removal has been issued, and

the forbearance policy is not a formal judicial order of a stay of removal. Dkt. 9, at

10-11. According to the Government, Brathwaite is lawfully detained beyond the

90-day period under Section 1231(a)(6) as an alien removable pursuant to 8 U.S.C. §

1227(a)(2)(A)(ii) and (iii). Dkt. 9, at 10.3

Here, the crux of the parties’ disagreement is whether Section 1226 or

Section 1231 authorizes the detention of aliens, such as Brathwaite, whose ordered-

removal is prevented by the forbearance policy between the Second Circuit and the

Government rather than by a judicially-ordered stay of removal. As explained

below, because Brathwaite’s order of removal is “administratively final,” and

because the forbearance “policy” is not a “stay of removal,” Brathwaite’s detention is

governed by Section 1231.

In particular, Brathwaite’s order of removal has become administratively

final pursuant to 8 U.S.C. § 1231(a)(1)(B)(i). Under 8 C.F.R. § 1241.1(a), an order of

removal made by an immigration judge “shall become final . . . [uJpon dismissal of

an appeal by the Board of Immigration Appeals.” Brathwaite’s order of removal

became administratively final when the BIA dismissed his appeal—affirming the

3 As discussed further below, the Government alternatively argues that Brathwaite

remains detained under Section 1231(a)(2) because the forbearance policy tolled his

removal period. Dkt. 9, at 12-18.

immigration judge’s order of removal—on December 11, 2019. See Dkt. 1-1, at 22-

25 (Exh. F).

The question remains whether Brathwaite’s PFR and pending stay motion to

the Second Circuit operate to postpone the removal period such that Brathwaite’s

detention is actually under Section 1226(c), not Section 1231. They do not.

To be sure, the Second Circuit in Hechevarria held that the “unambiguous

language” of 8 U.S.C. § 1231(a)(1)(B)(Gi) clearly states that an alien subject to an

administratively final order of removal cannot be detained under Section 1231 when

he or she has filed a petition for review with the court of appeals and received a stay

from that court. 891 F. 3d at 55-56. In such circumstances, the “removal period”

under Section 1231 would not begin until the Second Circuit issued its final order.

Id.

Here, Brathwaite’s administratively final removal order is under judicial

review, and he has moved the Second Circuit for a stay of removal. See Motion for

Stay of Removal, Brathwaite v. Barr, No. 20-27 (2d Cir Feb. 2, 2020), Dkt. 11; see

also Dkt. 1-1, at 32-58 (Exh. H). But, to date, the Second Circuit has not ordered a

stay of removal in Brathwaite’s case, as it did in Hechavarria. Thus, of the three

scenarios that can trigger the start of the removal period, only the first—an

administratively final order of removal—has occurred. 8 U.S.C. § 1231(a)(1)(B)(i)-

(ii). Neither of the other two triggering events has occurred: no court has ordered a

stay of Brathwaite’s removal, nor has Brathwaite been released from detention or

10

confinement. See Narain, 2020 WL 95425, at *3 (citing 8 U.S.C. § 1231(a)(1)(B)(ii)-

(iii)).

. As a result, Brathwaite urges this Court to deem the forbearance policy

between the Second Circuit and DHS—triggered by the filing of a PFR with a

motion for stay of removal—to be the equivalent of a court-ordered stay of removal

under Section 1231(a)(1)(B)(ii). Brathwaite’s argument fails and, thus, his

detention is governed by Section 1231.

B. The Meaning of “Stay” in Section 1231(a)(1)(B)(ii) Does Not

Encompass the DHS-Second Circuit Forbearance Agreement

Whether Section 1226 or Section 1231 applies here turns on the meaning of

the word “stay” in Section 1231(a)(1)(B)(ii). As discussed below, the forbearance is

not a stay.

A stay is “[t]he postponement or halting of a proceeding, judgment, or the

like” or “[a]n order to suspend all or part of a judicial proceeding or a judgment

resulting from that proceeding.” Stay, Black’s Law Dictionary (11 ed. 2019). A

party seeking a stay of a judgment or order pending appeal must make a motion for

such relief, ordinarily in the district court first. See Fed. R. App. P. 8(a). A stay is

an “intrusion into the ordinary processes of administration and judicial review” and,

accordingly, “is not a matter of right, even if irreparable injury might otherwise

result to the appellant.” Nken v. Holder, 556 U.S. 418, 427 (2009) (first quoting

Virginia Petroleum Jobbers Assn. v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958); then

quoting Virginian R. Co. v. United States, 272 U.S. 658, 672 (1926)).

11

Beyond having the practical effect of preventing some action, a stay “operates

upon the judicial proceeding itself’ by “temporarily suspending the source of

authority to act.” Nken, 556 U.S. at 428-29. In the context of an alien awaiting

adjudication of a PFR, a stay is “a temporary setting aside of the Government’s

authority to remove,” and a return to the status quo—namely, before the removal

order was entered. Id. at 429.

In contrast, the forbearance “understanding” at issue here—whereby aliens

filing PFRs and stay motions will not be removed until the Second Circuit rules—

represents a “voluntary decision” on the part of the Executive Branch, and is subject

to change. See Letter from the Hon. Jon O. Newman, United States Circuit Judge,

United States Court of Appeals for the Second Circuit, to David M. McConnell,

Director, Office of Immigration Litigation (Mar. 16, 2009). Indeed, the

understanding between the Second Circuit and the Executive Branch acknowledges

that it is something different from a stay, which stay nevertheless can be obtained

as the Second Circuit deems appropriate. See generally Letter from David M.

McConnell, Deputy Director, Office of Immigration Litigation, to the Hon. Jon O.

Newman, United States Circuit Judge, United States Court of Appeals for the

Second Circuit (Apr. 8, 2009). And the Government has specifically noted that

there are “circumstances that arise that fall outside the scope of the forbearance

arrangement.” Id. at 2. The arrangement represents the Executive Branch’s

current approach in this area, and the Executive Branch is free to review its current

practices and notify the Second Circuit upon “determin[ing] a different approach is

12

warranted.” Letter from Thomas W. Hussey, Director, Office of Immigration

Litigation, to the Hon. Dennis Jacobs, Chief Judge, United States Court of Appeals

for the Second Circuit (Jan. 26, 2007).

In sum, this policy, or agreement, or understanding is not and does not

purport to be a stay. Rather, it is, by its terms, in contrast to a “stay.” Whatever it

is, itis not a “stay” as that term is used in Section 1231.

Courts looking to understand a law must “accept and apply the presumption

that lawmakers use words in ‘their natural and ordinary signification.” King v.

Burwell, 135 8. Ct. 2480, 2497 (2015) (Scalia, J., dissenting) (quoting Pensacola

Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1, 12 (1878)). Usually the

contextual evidence must be compelling to overcome the “ordinary connotation” and

more natural interpretation of a law. Id. Reading the phrase, “if a court orders a

stay of the removal of the alien,” in Section 1231(a)(1)(B)(ii) to include the effect of

an informal, Executive Branch policy not to remove aliens in certain situations is

unnatural. The ordinary meaning of this statutory, court-ordered stay provision

requires that a court actually order a stay of removal.4

4 The statutory context of Section 1231 reinforces its ordinary meaning. As the

Supreme Court discussed in Nken, Congress repealed the presumption of an

automatic stay pending judicial review of an alien’s petition when it passed the

Immigration Reform and Immigrant Responsibility Act of 1996. 556 U.S. at 424-

425. With this change, Congress “intentionally eliminated the presumption of an

automatic stay for aliens seeking judicial review of their order of removal, and

replaced that presumption with the requirement that the court of appeals expressly

order a stay.” Narain, 2020 WL 95425, at *4 (citing 8 U.S.C. § 1252(b)(3)(B)

(“Service of the petition on the officer or employee does not stay the removal of an

alien pending the court’s decision on the petition, unless the court orders

otherwise.”)). In this context, as the court in Narain noted, the DHS-Second Circuit

13

Brathwaite would have this Court read “stay” to mean something that is not

a stay because such a reading supposedly yields more sensible outcomes. This

reasoning is flawed.

Even if it were true that Brathwaite’s interpretation leads to more sensible

outcomes, the ordinary meaning of the term results in a supposed “oddity” only in

the context of the Second Circuit’s forbearance arrangement—it is not a statutory

“ambiguity.” See King, 135 S. Ct. at 2500. Courts do not “revise legislation . . . just

because the text as written creates an apparent anomaly as to some subject it does

not address.” Mich. v. Bay Mills Indian Cmty., 572 U.S. 782, 794 (2014).

Nor should a court correct even a drafting error that leads to an absurd result

unless it is “patently obviously to a reasonable reader that a drafting mistake has

occurred.” King, 1385S. Ct. at 2504-05. The standard for absurd results in this

context—“a consequence so monstrous, that all mankind would, without hesitation,

unite in rejecting the application”—is not met here. Jd. at 2505 (internal quotation

and citation omitted). The Court’s reading of this stay provision is, at the very

least, a plausible interpretation. The alleged absurd result Brathwaite suggests is

not enough to overcome the ordinary meaning of Section 1231(a)(1)(B)(ii). This case

presents no occasion for error-correction to prevent absurd results. The Court

forbearance policy “does not rise to the level of a court-ordered stay.” Id. at *4; see

also Jean A. v. Dep’t of Homeland Sec., No. 19-18951 (SDW), 2019 WL 6318305, at

*2 (D.N.J. Nov. 26, 2019) (“That the forbearance agreement has the effect of

preventing removal during the pendency of a petition for review is immaterial—as

it is not a court order entering a stay, it cannot revert an alien’s detention to pre-

final order status.”).

14

possesses only the power to “pronounce the law as Congress has enacted it,” and

lacks the “prerogative to repair laws that do not work out in practice.” Id.

It may be true that, in practice, two detained petitioners in nearly identical

procedural positions could be treated differently due to the forbearance policy in the

Second Circuit. See Falodun v. Sessions, No. 6:18-cv-06133-MAT, 2019 WL

6522855, at *6 (W.D.N.Y. Dec. 4, 2019) (hypothetically comparing two aliens who

moved for a stay of removal, but were detained under different statutes based on

the government’s litigation decisions and the forbearance policy). But the fact that

a statute leads to different results does not make the statute “absurd.” See Gibbons

vu. Bristol-Meyers Squibb Co., 919 F.3d 699, 705 (2d Cir. 2019) (“[A] statute is not

‘absurd’ merely because it produces results that a court or litigant finds anomalous

or perhaps unwise.”). Rather, under the canon against absurdity, courts ought to

look beyond the statutory text “only where the result of applying the plain language

would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress

could have intended the result and where the alleged absurdity is so clear as to be

obvious to most anyone.” Jd. at 705-06 (internal quotations omitted) (quoting

Catskill Mountains Chapter of Trout Unlimited, Inc. v. Envtl. Prot. Agency, 846 F.3d

492, 517 (2d Cir. 2017)).

Moreover, statutory purpose and design are relevant only to the extent they

help clarify an otherwise ambiguous provision. But “even the most formidable

argument concerning the statute’s purposes” cannot “overcome the clarity [of] the

statute’s text.” Kloeckner v. Solis, 568 U.S. 41, 55 n.4 (2012). The result here—that

15

Brathwaite is detained under Section 1231, not 1226(c)—is clearly authorized by

the text of Section 1231(a)(1)(B)(i), and is “neither absurd nor fundamentally

unfair.” Gibbons, 919 F.3d at 707 (concluding that it is not “absurd” under 28

U.S.C. § 1441(b)(2) that a home-state defendant may in limited circumstances

remove actions filed in state court on the basis of diversity of citizenship).

In sum, the question is not what Congress would have or may have wanted,

but what it enacted. See Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618

(1992). A court-ordered stay is a court-ordered stay. And no stay has been granted

here. The forbearance policy coupled with a pending motion for a stay do not equal

such a stay. Close enough is not good enough. Section 1231 applies.5

5 District courts in this Circuit, both before and after Hechavarria, have been

divided on this question. Many have determined that, given the reasoning of

Hechavarria, the forbearance policy must be equivalent to a court-ordered stay and

evaluated the detention of aliens with pending PFRs and pending stay motions with

the Second Circuit under Section 1226. See, e.g., Sankara v. Whitaker, No. 18-CV-

1066, 2019 WL 266462, at *4-5 (W.D.N.Y. Jan. 18, 2019) (collecting cases);

Ranchinskiy v. Barr, 422 F. Supp. 3d 789, 796 (W.D.N.Y. 2019) (“[T]he

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

agreement amounts to a ‘court-order[ed] stay of the removal of the alien’ and that

detainees with a pending petition for review are detained pursuant to § 1226.”).

Other courts have concluded the opposite—that the detention of an alien subject to

a final order of removal is governed by Section 1231, notwithstanding the

forbearance agreement. See Narain, 2020 WL 95425, at *4-5; Mathews v. Philips,

No. 13-cv-339-JTC, 2013 WL 5288166, at *8 (W.D.N.Y. Sept. 18, 2013); Leslie v.

Herron, No. 10-CV-00515(A)(M), 2010 WL 4226561, at *2 (W.D.N.Y. Oct. 26, 2010).

And courts outside the Second Circuit examining this same forbearance policy have

agreed that Section 1231 applies. See Rone v. Aviles, Civ. No. 15-3798 (KM), 2016

WL 158521, at *5 (D.N.J. Jan. 13, 2016) (“Several district courts within the Third

Circuit have found that the Second Circuit’s forbearance policy does not convert a

petitioner’s immigration detention status from Section 1231 to Section 1226.”)

(collecting cases). Hechavarria, which did not address the situation presented by

these cases, does not mandate a different result. See 891 F.3d at 54n.3 (“Because

we review [petitioner’s] habeas petition after this Court has issued a stay of removal

16

For these reasons, Brathwaite is an alien subject to a final order of removal

pursuant to 8 U.S.C. § 1231. Therefore, this Court will review the merits of his

claims under the Section 1231 criteria set forth by the Supreme Court in Zadvydas

v. Davis, 533 U.S. 678 (2001).

Ill. BRATHWAITE’S DUE PROCESS CLAIMS

Brathwaite argues that his continued detention violates his due process

rights under the Fifth Amendment. Dkt. 1, at 16 74 60-65. He argues that, even if

he is detained under Section 1231, his detention has become unreasonably long, and

procedural due process requires that DHS provide him with a hearing at which

DHS must justify his continued detention. Dkt. 1, at 1 | 6; Dkt. 1, at 16 9] 62-65.

The Government argues that Brathwaite’s filing of the PFR and a motion for

a stay, together with the forbearance policy, tolls the removal period. Dkt. 9, at 11.

Alternatively, the Government argues that Brathwaite has failed to show, under

Zadvydas, that there is no significant likelihood of his removal in the reasonably

foreseeable future. Dkt. 9, at 15-16.

In Zadvydas, the Supreme Court considered how 8 U.S.C. § 1231, and its

“apparent authorization of indefinite executive detention,” interacts with the Fifth

Amendment's prohibition against depriving a person of their liberty without due

process. See Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003). The Supreme

Court determined that Section 1231(a) authorizes detention after a final order of

in his underlying petition for review, we need not decide the contours of judicial

review during detention pursuant to the government’s forbearance policy in this

Circuit.”).

17

removal for a period “reasonably necessary” to effectuate the alien’s removal from

the United States. See Zadvydas, 533 U.S. at 699-700. In other words, once

removal is no longer reasonably foreseeable, continued detention is no longer

authorized by the statute. See id. The Court ruled that a six-month period of

detention pending removal is presumptively reasonable. Jd. at 701. After six

months, a detained noncitizen may seek release by demonstrating that his or her

removal is not likely to occur in the reasonably foreseeable future. Id. at 699-700.

A. Whether the Removal Period is Tolled by the Forbearance Policy

As discussed above, Brathwaite’s mandatory 90-day removal period began on

December 11, 2019—the day the BIA dismissed his appeal of the immigration

judge’s removal order and that removal order became administratively final. Dkt.

1-1, at 22-25 (Exh. F); 8 U.S.C. § 1231(a)(1)(B)@). Beginning on that date,

Brathwaite’s detention became mandatory under Section 1231(a)(2). 8 U.S.C. §

1231(a)(2) (“During the removal period, the Attorney General shall detain the

alien.”). Brathwaite filed his petition for review in the Second Circuit on January 4,

2020, and filed a motion for a stay of removal on February 2, 2020. Dkt. 1-1, at 27-

58 (Exhs. G, H); see Petition, Motion for Stay of Removal, Brathwaite v. Barr, No.

20-27 (2d Cir Feb. 2, 2020), Dkts. 1, 11. Both parties agree that, because he filed a

PFR and a motion for a stay of removal, Brathwaite is protected by the forbearance

policy, which ensures DHS will not enforce his removal order before the Second

Circuit rules on the motion for a stay or dismisses the PFR. Dkt. 1, at 8 34; Dkt.

9, at 4.

18

Also as discussed above, the forbearance policy does not qualify as a court-

ordered stay. But the question remains whether the forbearance policy

nevertheless affects the calculation of the mandatory removal period. The

Government argues that the Second Circuit’s forbearance policy tolls the running of

the removal period, such that Brathwaite’s removal period was “effectively stayed”

when he sought judicial review of his removal order. Dkt. 9, at 12-13. To support

this argument, the Government relies primarily on a case from this district,

Beckford v. Lynch, 168 F. Supp. 3d 533 (W.D.N.Y. 2016). In Beckford, the court

noted that numerous courts in this circuit have held that the filing of a PFR of a

final order of removal, accompanied by a motion for a stay of removal, triggers the

aforementioned forbearance policy that prevents an alien’s removal while his or her

PFR is pending. 168 F. Supp. 3d at 538. Pursuant to this policy, the court

concluded that the removal period was “effectively stayed” from the date of filing

the PFR with the Second Circuit to the date the Second Circuit dismissed the PFR.

Id. Applied to Brathwaite, the Government calculates that only twenty-six days of

Brathwaite’s removal period have passed: the period began on December 11, 2019

but was “effectively stayed” as of January 6, 2020, when Brathwaite filed the PFR.§

Dkt. 9, at 12. :

6 The Court notes that if it were to adopt Beckford’s and the Government’s

reasoning here, this calculation is likely incorrect. The basis of this argument is

that the forbearance policy “pauses” or tolls the running of the removal period. But

as Beckford and other cases have stated, the forbearance policy is not triggered by a

filing of a PFR alone: rather, it is the filing of a PFR and a motion for a stay of

removal that triggers the forbearance policy. Beckford, 168 F. Supp. 3d at 538; see

also Yusuf v. Edwards, No. 18-CV-3605 (GBD) (BCM), 2019 WL 4198798, at *5 n.4

19

The Court is not persuaded—by Beckford or the Government’s argument—

that tolling is appropriate here. First, the Court acknowledges that courts in this

circuit and others disagree about whether the forbearance policy tolls the removal

period. Compare Barua v. Aviles, No. 15-3768 (ES), 2016 WL 4161099, at *3 (D.NJ.

Aug. 4, 2016) (petitioner’s detention was governed by § 1231, and Zaduydas

presumptively reasonable six-month period was tolled by Second Circuit’s

forbearance policy); Severin v. Aviles, No. 15-3711 (CCC), 2016 WL 1450550, at *3

n.3 (D.N.J. Apr. 12, 2016) (petitioner's Zadvydas period was tolled while the

petitioner’s motion for a stay was pending in the Second Circuit); Beckford, 168 F.

Supp. 3d at 538 (removal period was “effectively stayed” by seeking review before

Second Circuit and forbearance policy); Phrance v. Johnson, No. 14-7693 (CCC),

2015 WL 8361780, at *2 (D.N.J. Dec. 8, 2015) (petitioner’s Zaduydas period was

tolled while the petitioner’s motion for a stay was pending in the Second Circuit),

with Jean A., 2019 WL 6318305, at *2-3 (not tolling the removal or Zadvydas six-

month period for petitioner whose motion to stay was pending before Second

Circuit); Medrano v. Taylor, No. 17-5521 (ES), 2018 WL 2175774, at *3-4 (D.N.J.

May 11, 2018) (concluding that, if the forbearance policy is not the equivalent of a

(S.D.N.Y. July 2, 2019) (collecting S.D.N.Y. cases). In this case, as in Beckford, the

PFR and motion for a stay were filed on different days. See Dkt. 1-1, at 27-58

(Exhs. G, H); Beckford, 168 F. Supp. 3d at 535 (citing the forbearance policy as

being triggered by the filing of a PFR and a stay motion, but calculating the tolling

of the petitioner’s removal period from the date of the PFR filing). Thus, if the

Court were inclined to agree that the forbearance policy tolled the removal period,

Brathwaite’s removal period would have run from December 11, 2019 through

February 2, 2020.

20

stay, the removal period runs, uninterrupted, from the date of petitioner’s

administratively final order of removal); Mathews, 2013 WL 5288166, at *3

(concluding that the petitioner’s 90-day removal period was not tolled by petitioner’s

pending motions or the forbearance agreement, where petitioner had an

administratively final order of removal); Leslie, 2010 WL 4226561, at *4 (concluding

the forbearance policy does not toll the removal period); D’Alessandro v. Mukasey,

628 F. Supp. 2d 368, 386 (W.D.N.Y. 2009) (rejecting the government’s argument

“that an application for a stay ‘act[s] as a temporary waiver of constitutional due

process protections [so as to] . . . permit [the Government] to forego the statutory

and regulatory procedures for justifying continued detention.”) (quoting petitioner’s

brief); Shenxing Zeng v. Tripp, No. CV 07-0682 JB/WPL, 2007 WL 9729144, at *4

(D.N.M. Oct. 3, 2007) (rejecting the government’s argument that judicial review of a

removal order tolls the removal period but declining to decide specifically whether

the forbearance policy tolls the running of the removal period).?

7 Some courts, in analyzing the statutory basis for detention in light of the

forbearance agreement, use the language “toll the removal period” to mean delaying

the start of the removal period under Section 1231. See Argueta Anariba v.

Shanahan, 190 F. Supp. 3d 344, 349 (S.D.N.Y. 2016) (“District courts in this Circuit

are divided as to whether the mere filing of a motion for a stay of removal, when

combined with the forbearance policy, serves to toll the removal period and thus

locate the movant within § 1226 rather than § 1231.”). To avoid confusion, this

Court has cited to cases where the court agreed that a petitioner in Brathwaite’s

position is detained under Section 1231, not Section 1226. Similarly, cases in which

tolling was discussed, but in the context where the circuit court actually granted a

stay and therefore “statutorily tolled” the removal period, are not helpful on this

issue. See, e.g., Brodyak v. Davies, No. 14-4851 (JLL), 2015 WL 1197535, at *3

(D.N.J. Mar. 16, 2015) (citing, for the proposition that “the six month reasonable

period ...is tolled when an alien requests judicial review of a removal order,”

several cases in which the court of appeals actually had ordered a stay of removal).

21

The statutory language does not justify a conclusion that the forbearance

policy acts to toll Brathwaite’s removal period. In fact, as the Shenxing Zeng court

noted in its analysis of the statute, 8 U.S.C. § 1231(a)(1)(B) “provides that judicial

review of a removal order does not delay the running of the removal period unless a

court issues a stay of removal.” 2007 WL 9729144, at *4 (citing Martinez v.

Gonzales, 504 F. Supp. 2d 887, 893 (C.D. Cal. 2007)). Brathwaite has only met one

of the conditions listed Section 1231(a)(1)(B)(ii): he has sought judicial review of his

removal order, but the Second Circuit has not issued him a stay. 8 U.S.C. §

1231(a)(1)(B)(@ii). Unless and until the Second Circuit grants the stay of removal,

thereby triggering Section 1231(a)(1)(B)Gi), neither the judicial review of his

removal order nor the forbearance policy affects the running of the removal period.

Neither does Section 1231(a)(1)(C), entitled “Suspension of period,”

incorporate a pause of the removal period because of the forbearance policy.

Section 1231(a)(1)(C) provides the following:

The removal period shall be extended beyond a period of 90 days and

the alien may remain in detention during such extended period if

the alien fails or refuses to make timely application in good faith for

travel or other documents necessary to the alien’s departure or conspires

or acts to prevent the alien’s removal subject to an order of removal.

8 U.S.C. § 1231(a)(1)(C). Decisions addressing this provision suggest a narrow

interpretation, with courts upholding detention and tolling the removal period

under Section 1231(a)(1)(C) for those noncitizens who have “demonstrated some sort

of bad faith failure to cooperate”—-such as providing false or inconsistent

information or refusing to complete the requisite travel documents relating to the

22

execution of their removal. See Farez-Espinoza v. Chertoff, 600 F. Supp. 2d 488, 501

(S.D.N.Y. 2009) (collecting cases where petitioner hampered agency efforts or

refused to cooperate); see also Diouf v. Mukasey, 542 F.3d 1222, 1231-32 (9th Cir.

2008) (rejecting the argument that repeated petitions to the circuit court extends

the removal period under 1231(a)(1)(C)).

A few courts have concluded that an alien “acts to prevent” his or her removal

under 1231(a)(1)(C) by seeking judicial review of removal orders. See, e.g., Bini v.

Aljets, 36 Fed. App’x 868, 869 (8th Cir. 2002) (petitioner’s removal period was

extended under Section 1231(a)(1)(C) by his obtaining a stay); Flores v. Hassell, No.:

4:18-cv-01493-CA-HNJ, 2019 WL 296729, at *2 (N.D. Ala. Jan. 23, 2019) (“The

Eleventh Circuit ... interprets the filing of a motion for stay of deportation as

extending the removal period under 8 U.S.C. § 1231(a)(1)(C).”), report and

recommendation adopted by 2019 WL 958403 (N.D. Ala. Feb. 27, 2019).

But most courts recognize that the removal period is not extended under this

provision for noncitizens who are making use of—not exploiting—the judicial

processes available to them. See, e.g., Singh v. Whitaker, 362 F. Supp. 3d 93, 101

n.6 (W.D.N.Y. 2019) “Courts have interpreted this provision to mean that

‘Zadvydas does not save an alien who fails to provide requested documentation to

effectuate his removal.”); D'Alessandro, 628 F. Supp. 2d at 387 (“It seems fairly

plain to this Court that the section contemplates acts of obstruction by the detainee

that constitute willful refusal to cooperate with immigration authorities, not efforts

to seek legally available judicial remedies.”); Shenxing Zeng, 2007 WL 9729144, at

23

*4 (“[T]he language of 8 U.S.C. § 1231(a)(1)(C) suggests that it applies only to acts

of bad faith or dishonesty, not to the exercise of legal rights.”).

The Government has not argued that this section applies to extend

Brathwaite’s removal period. See generally Dkts. 9, 18. Nor is there anything in

the record to suggest Brathwaite has acted in bad faith or failed to cooperate with

the Government in securing documents. Brathwaite has made use of the available

PFR process to obtain review of his removal order, which triggered the forbearance

policy. Based on the case law and record here, neither Brathwaite’s decision to seek

judicial review in the circuit court nor the forbearance policy suspends the removal

period in the way Section 1231(a)(1)(C) provides.

Indeed, Section 1231(a)(1)(C) is the statutory toll provision, and it does not

apply. A judicially-imposed toll here, where the statutory toll does not apply, is

improper. Based on the arguments presented, the Court concludes that the

forbearance policy does not toll the statutory 90-day period or the presumptively-

reasonable removal period under Zadvydas. Thus, Brathwaite’s statutory removal

period expired 90 days after his order became administratively final—ending on

8 This conclusion accords with the Second Circuit’s comments in Hechavarria. 891

F.3d at 56 n.6. In a footnote, the Second Circuit observed that it did not have to

address the issue of whether Zadvydas applied to a petitioner’s lengthy detention

while the petitioner sought review of his removal order. Jd. But the Court noted

that “the Supreme Court has spoken in a hypothetical, related context only of an

immigrant who has substantially prolonged his stay by abusing the processes

provided to him—not of an immigrant who merely made use of the statutorily

permitted appeals process.” Jd. (internal citations and quotations omitted) (first

quoting Nken, 556 U.S. at 436; then citing Ly v. Hansen, 351 F.3d 263, 272 (6th Cir.

2008)).

24

March 10, 2020. And his period of presumptively reasonable detention under

Zadvydas ended on June 11, 2020.9

B. Brathwaite Has Not Established He Is Entitled to Relief Under

Zadvydas

1. Procedural Due Process

Brathwaite argues that his prolonged detention without an adequate process

for review violates his right to procedural due process. Dkt. 1, at 16 4 62-63. In

particular, Brathwaite argues that, if he is detained under 8 U.S.C. § 1231,!9 he

should receive a custody determination hearing because the 90-day removal period

has lapsed. Dkt. 11, at 10. And he argues that, because of the COVID-19 pandemic

and travel restrictions to Trinidad and Tobago, there is not a significant likelihood

that he can be removed to Trinidad and Tobago in the reasonably foreseeable

future. Dkt. 11, at 11-12.

The Government maintains that Brathwaite’s continued detention is lawful

under Section 1231(a)(6) and Zadvydas and, therefore, does not offend due process.

Dkt. 9, at 15, 17. The Government argues that Brathwaite has not met his burden

of demonstrating there is no significant likelihood of his removal in the reasonably

9 This Court, like most courts in this circuit, reads Zadvydas to mean that the six-

month presumptively reasonable period of detention starts after the entry of a final

order of removal, not after the expiration of the statutory 90-day removal period.

See, e.g., Callendar v. Shanahan, 281 F. Supp. 3d 428, 486 n.7 (S.D.N.Y. 2017)

(collecting cases).

10 Brathwaite is no longer detained pending his removal proceedings. Therefore,

“[t]o the extent that [Brathwaite] previously may have had a cognizable due process

argument [when he was detained] under [§ 1226], that claim has been rendered

moot.” Wang, 320 F.3d at 147. Thus, the Court makes no conclusions about

detention under Section 1226.

25

foreseeable future. Dkt. 9, at 15-17. And in its supplemental response, the

Government indicates that it can still secure travel documents and arrange for

Brathwaite’s removal, despite the COVID-19 travel restrictions, once Brathwaite’s

Second Circuit case concludes. Dkt. 13, at 2-8. The Government also notes that

Brathwaite has a pending 180-day Post Order Custody Review with ICE

Headquarters, presumably in accordance with DHS regulations. Dkt. 13-1,

Marchewka Decl. at 2 8.

After expiration of the 90-day removal period, if the removal period has not

been extended, 8 U.S.C. § 1231(a)(6) gives the Government the discretion to

continue detaining certain categories of aliens. See 8 U.S.C. § 1231(a)(6) (‘An alien

ordered removed who is. . . removable under section 1227(a)(1)(C), 1227(a)(2), or

1227(a)(4) of this title ... may be detained beyond the removal period.”). In

Zadvydas, the Supreme Court determined that Section 1231(a)(6) does not permit

indefinite detention: rather, there is an “implicit limitation” on an alien’s post-

removal-period detention under Section 1231(a)(6) “to a period reasonably necessary

to bring about that alien’s removal from the United States.” 533 U.S. at 689.

As discussed above, the first six months of an alien’s post-removal detention

under Section 1231 is “presumptively reasonable.” See id. at 701. Under Zadvydas,

once the presumptively reasonable six-month period has passed, an alien may be

released if he can establish that his removal is not reasonably foreseeable:

After this [six]-month period, once 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. And for detention to remain

26

reasonable, as the period of prior postremoval confinement grows, what

counts as “reasonably foreseeable future” conversely would have to

shrink. This [six]-month presumption, of course, does not mean that

every alien not removed must be released after six months. To the

contrary, an alien may be held in confinement until it has been

determined that there is no significant likelihood of removal in the

reasonably foreseeable future.

Id.1! The Second Circuit has explained that this “reasonable foreseeability” test

“articulates the outer bounds of the Government’s ability to detain aliens (other

than those serving criminal sentences) without jeopardizing their due process

rights.” Wang, 320 F.3d at 146.

Brathwaite’s six-month, presumptively reasonable period of detention

expired less than two months ago. Because Brathwaite was ordered removed under

8 U.S.C. § 1227(a)(2), the Government had authority to detain him beyond the

removal period, as provided in Section 1231(a)(6). See 8 U.S.C. § 1227(a)(2)(A).

Although Brathwaite’s detention has surpassed the presumptively reasonable

period of six months, he is not entitled to be released on this basis alone. See

Zadvydas, 533 U.S. at 701. Brathwaite is only entitled to relief under Zadvydas if

he provides good reason to believe there is no significant likelihood of removal in the

reasonably foreseeable future, and the Government fails to respond with evidence

sufficient to rebut that showing. See Almonte v. Holder, 983 F. Supp. 2d 234, 240

(W.D.N.Y. 2013) (citing Zadvydas, 533. U.S. at 701).

11 In light of Zadvydas, DHS issued regulations providing for custody status review

of noncitizens who have been detained for more than six months after a final order

of removal is issued. See, e.g., 8 C.F.R. § 241.13; Dkt. 9, at 7-8.

27

Brathwaite presents two possible obstacles to his removal in the reasonably

foreseeable future: first, the Second Circuit’s pending review of his final order of

removal, which (with his stay motion) has triggered the forbearance policy; and,

second, the COVID-19 pandemic, which has significantly restricted international

travel, including to Trinidad and Tobago. See Dkt. 11, at 11-16. Brathwaite has

failed to sustain his initial burden under Zadvydas.

The mere passage of time beyond the six-month presumptively reasonable

period, while Brathwaite awaits the resolution of his PFR, does not satisfy his

burden under Zadvuydas. See Almonte, 983 F. Supp. 2d at 240 (“[S]everal cases

decided within this district have found the habeas petitioner’s assertion as to the

unforeseeability of removal, supported only by the mere passage of time, insufficient

to meet the petitioner’s initial burden to demonstrate no significant likelihood of

removal under the Supreme Court’s holding in Zadvydas.”) (collecting cases).

Brathwaite is, of course, entitled to pursue judicial review of his final order of

removal. But, as several courts have observed, “because the detention challenged

by the habeas petition in this action has been prolonged by petitioner’s own pursuit

of judicial review of the final order of removal, the duration of his detention cannot

be found to constitute a violation of his rights under the due process clause of the

Fifth Amendment.” Beckford, 168 F. Supp. 3d at 538-39; see also Almonte, 983 F.

Supp. 2d at 241 (“[The] petitioner may not rely on the delay resulting from his

request for circuit court review of the final order of removal to claim that his

prolonged detention violates substantive due process.”).

28

The exact timing as to the resolution of Brathwaite’s PFR before the Second

Circuit is unknown. Nevertheless, the Court assumes that the Second Circuit will

issue its decision without unnecessary delay. Thus, the judicial review of his order

of removal does not give Brathwaite a basis to argue that there is no significant

likelihood of removal in the reasonably foreseeable future under Zadvuydas. See,

e.g., Soberanes v. Comfort, 388 F.3d 1305, 1311 (10th Cir. 2004) (concluding that

petitioner’s detention was not indefinite or potentially permanent by Zaduydas

standards because it was “directly associated with a judicial review process that has

a definite and evidently impending termination point”); see also Urrutia v. Lynch,

No. 15-CV-513-JTC, 2015 WL 7288698, at *6 (W.D.N.Y. Nov. 16, 2015) (citing

Soberanes, 388 F.3d at 1311) (“Detention during an appellate stay of removal,

whether formal or in accordance with the Second Circuit forbearance policy, is not

indefinite because the end of the litigation provides a definite end point.”).

Further, the Court recognizes that the COVID-19 pandemic may complicate

the circumstances of removal for petitioners like Brathwaite. Brathwaite is correct,

and the Government acknowledges, that the government of Trinidad and Tobago

has restricted international air travel due to the COVID-19 outbreak. Dkt. 11, at

12; Dkt. 13-1, Marchewka Decl. at 3 7 10. But Brathwaite has not shown that the

Government will be unable to remove him within a reasonable time after the

resolution of his petition for review—even with the travel restrictions and

uncertainties caused by COVID-19. Brathwaite has not provided any facts to

29

support his claim that he cannot be removed to Trinidad and Tobago once the recent

travel restrictions due to the COVID-19 pandemic are lifted.

Indeed—-and “critical to the analysis of reasonably foreseeable removal under

Zadvydas”—the record suggests that the Government will be able to obtain travel

documents and facilitate Brathwaite’s removal shortly after the Second Circuit

resolves his petition and motion for a stay of removal. See Dover v. Holder, No. 11-

CV-508A, 2011 WL 4054952, at *4 (W.D.N.Y. Sept. 12, 2011).

First, the Government maintains, in both its initial answer and supplemental

response, that there are no institutional barriers to Brathwaite’s removal to

Trinidad and Tobago. Dkt. 8, Smith Decl. at 7-8 { 43-44.; Dkt. 13-1, Marchewka

Decl. at 2-3 7 9. ICE requested travel documents for Brathwaite from the

Consulate of Trinidad and Tobago in December 2019, shortly after the BIA

dismissed his appeal. Dkt. 8, Smith Decl. at 6 J 37. The Government’s records

show that the Consulate communicated with ICE to request additional information

about Brathwaite. Dkt. 8, Smith Decl. at 6-7 § 38. Around the same time,

Brathwaite filed his petition for review and motion for a stay of removal with the

Second Circuit. Dkt. 8, Smith Decl. at 7 | 39-40.

Second, statistical evidence reveals that DHS has succeeded in repatriating a

number of aliens to Trinidad and Tobago in recent years. For example, DHS

reports indicate 1t repatriated 125 aliens to Trinidad and Tobago in the fiscal year

2016; 143 aliens in the fiscal year 2017; and 118 aliens in the fiscal year 2018. See

Dkt. 8, Smith Decl. at 7-8 44; Dkt. 13-1, Marchewka Decl. at 2-3 4 9 (citing DHS

30

Yearbook of Immigration Statistics, available at https://www.dhs.gov/immigration-

statistics/yearbook.). Indeed, as the Government argues, the only obstacle to

Brathwaite’s immediate removal is the forbearance policy in place while Brathwaite

pursues judicial review of his removal order.

Moreover, subsequent briefing by the Government does not alter the

expectation that, even with the travel restrictions related to the COVID-19

pandemic, Brathwaite’s removal is significantly likely to occur in the reasonably

foreseeable future—after the Second Circuit resolves his petition and motion for a

stay of removal. In its supplemental response, the Government reveals that ICE

has taken additional concrete steps to remove Brathwaite. See Dkt. 13, at 3. On

June 19, 2020, DHS received travel documents for Brathwaite that were valid for

travel to Trinidad and Tobago on or about June 25, 2020. Dkt. 13-1, Marchewka

Decl. at 29 6. And on June 25, 2020, DHS ran an ICE charter flight to Trinidad

and Tobago; Brathwaite was scheduled to be on this flight. Dkt. 13-1, Marchewka

Decl. at 24 7. But, due to Brathwaite’s pending case before the Second Circuit and

the forbearance policy, DHS did not remove Brathwaite on this flight. Dkt. 13-1,

Marchewka Decl. at 2 | 7. Thus, even with the possible delays caused by the

COVID-19 pandemic, the Government argues it can easily resume its efforts to

remove Brathwaite, and that there are no reasons it would not be successful in

doing so, once any travel restrictions are lifted. Dkt. 13, at 3; Dkt. 13-1, Marchewka

Decl. at 3 { 10. Brathwaite has presented no relevant facts to contradict this

expectation. See Dkt. 14.

31

Several other courts facing similar arguments—that the COVID-19 pandemic

and ensuing travel restrictions curtail the likelihood of a petitioner’s removal in the

reasonably foreseeable future—have denied Zadvuydas relief when, as here, there

are no significant impediments to prevent the petitioner’s removal. See Ramirez v.

Searls, No. 20-cv-6018 (CJS), 2020 WL 2748203, at *3 (W.D.N.Y. May 27, 2020);

Jaime F. v. Barr, No. 19-20706 (ES), 2020 WL 2316487, at *5 (D.N.J. May 11, 2020);

Francis S.M. v. Decker, No. 19-8053 (MCA), 2020 WL 1956058, at *4 (D.N.J. Apr.

23, 2020).

In Jaime F., the respondents had obtained multiple sets of travel documents

for the petitioner and had scheduled the petitioner’s removal for the next available

flight to Venezuela. 2020 WL 2316487, at *5. Thus, the court determined there

were “no impediments to prevent Petitioner’s removal as soon as the national

quarantine in Venezuela ends.” Jd. Similarly, in Francis S.M., the court denied the

petitioner’s Zadvydas claim because, “[a]lthough travel to India is currently

restricted, ICE asserts that it intends to schedule Petitioner on the earliest flight

available to India.” 2020 WL 1956053, at *4-5. And in an analogous case in this

district, the court concluded that the government had rebutted the petitioner's

claim where it had obtained travel documents but was unable to remove the

petitioner in March as planned due to COVID-19 related travel restrictions. See

Ramirez, 2020 WL 2748208, at *3.

Here, the Government received travel documents, and even scheduled

Brathwaite on a chartered removal flight for late-June of this year. Dkt. 13-1,

32

Marchewka Decl. at 2 6-7. These efforts occurred in the midst of the COVID-19

pandemic. Indeed, the Government was still able to obtain travel documents from

Trinidad and Tobago and charter a flight there, despite the borders being closed—

and was only thwarted because of Brathwaite’s pending PFR and motion for a stay

with the Second Circuit. Dkt. 13-1, Marchewka Decl. at 2-3 6-7, 9-10. Thus,

even if this Court were to conclude that Brathwaite had presented sufficient

evidence to show there is no significant likelihood of his removal in the reasonably

foreseeable future, the Government has rebutted that evidence. Where, as here, the

Government indicates it has plans to remove Brathwaite after his Second Circuit

case is resolved, provided it can do so consistent with COVID-19 travel restrictions,

Brathwaite’s claim fails.12 See Ramirez, 2020 WL 2748203, at *3.

In sum, Brathwaite has not met his burden to provide good reason to believe

there is no significant likelihood of removal in the reasonably foreseeable future—

that is, he has not shown that the Government will be unable to remove him within

a reasonable time after the resolution of his PFR. Therefore, Brathwaite is not

entitled to habeas relief under Zadvydas, and the petition is dismissed.13

12 The Government has further indicated that Brathwaite has a 180-day Post Order

Custody Review pending. Dkt. 13-1, Marchewka Decl. at 2 8. Brathwaite has not

alleged that this pending review, presumably pursuant to DHS regulations, is

inadequate or deficient in any way—indeed, Brathwaite has declined to address the

additional arguments and assertions made in the Government’s supplemental reply.

See Dkt. 14.

13 The denial of this claim, at this time and on these facts, does not prevent

Brathwaite from filing a petition in the future, in the event he is able to show his

removal is no longer reasonably foreseeable under Zaduydas.

33

2. Substantive Due Process

Brathwaite’s petition does not explicitly allege a violation of his substantive

due process rights. Rather, he argues his detention has become “unreasonably

prolonged” and his “continued detention without a constitutionally adequate bond

proceeding will erroneously deprive him of his ‘strong interest in liberty.” Dkt. 1, at

16 ¥ 62.

To the extent that Brathwaite makes a substantive due process claim, that,

too, must fail. Pursuant to Zadvydas, Brathwaite’s substantive due process rights

“are not jeopardized by his continued detention as long as his removal remains

reasonably foreseeable.” Wang, 320 F.3d at 146. An alien may be held in

confinement until it has been determined that there is no significant likelihood of

removal in the reasonably foreseeable future. See Zadvydas, 533 U.S. at 701. At

this time, the Court has not determined that there is no significant likelihood of

Brathwaite’s removal in the reasonably foreseeable future. Thus, Brathwaite’s

substantive due process rights have not been violated.

34

CONCLUSION

For the foregoing reasons, the relief requested in Brathwaite’s petition for a

writ of habeas corpus is denied. His petition is dismissed—without prejudice to the

filing of any new petition in the future based on new and different facts and

consistent with the analysis above. The Clerk of Court is directed to close this case.

SO ORDERED.

Dated: July 31, 2020

Buffalo, New York

C) A, ; □

JOHN L. SINATRA,JR. —

UNITED STATES DISTRICT JUDGE

35