# Brathwaite v. Barr

> District Court, W.D. New York · July 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10362645

## Case

- **Court:** District Court, W.D. New York
- **Decided:** July 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10362645

## How later opinions describe it (automated extraction)

- rejecting the argument that repeated petitions to the circuit court extends the removal period under 1231(a)(1)(C)

## Opinion text

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,

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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.
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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10362645. Public record. Not legal advice.