The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHAHFEEZ MOHAMMED-BHOLA,
Petitioner,
Case # 20-CV-6365-FPG
v.
DECISION AND ORDER
WILLIAM P. BARR, United States Attorney General, et al.,
Respondents.
INTRODUCTION
Pro se Petitioner Shahfeez Mohammed-Bhola, a civil immigration detainee detained at the
Buffalo Federal Detention Facility, has filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. ECF No. 1. He claims that his continued detention is unconstitutional. The
government opposes the petition. Having reviewed the record and the briefing, the Court finds
that a hearing is unnecessary to resolve the petition. For the reasons that follow, the petition is
GRANTED IN PART and DENIED IN PART.
BACKGROUND
The following facts are drawn from the record. Petitioner is a citizen and native of Trinidad
and Tobago. He entered the United States in 1998 and later became a lawful permanent resident.
In 2016, Petitioner was convicted of criminal possession of a weapon in the second degree and
attempted burglary in the second degree in New York. ECF No. 8 at 2-3. In February 2017,
immigration authorities initiated removal proceedings against Petitioner. In June 2018, an
immigration judge ordered Petitioner removed. The Board of Immigration Appeals (“BIA”)
denied Petitioner’s appeal, and in December 2018, Petitioner sought review with the Second
Circuit.
On August 10, 2020, the parties entered a stipulation withdrawing the appeal and agreeing
to a remand to the BIA for further proceedings. The case is now pending before the BIA.
Petitioner has been detained by immigration authorities since May 2, 2019—over fifteen
months. During his detention, Petitioner has received two custody reviews—on July 24 and
November 12, 2019.
DISCUSSION
Under several theories, Petitioner argues that his continued detention without a bond
hearing is unlawful and unconstitutional. See ECF No. 10-13. However, because it is dispositive,
the Court need only address Petitioner’s procedural due process claim.
In several provisions, the Immigration and Nationality Act (“INA”) authorizes the
detention of aliens pending removal. Relevant here is 8 U.S.C. § 1226, which gives immigration
officials the authority to arrest and detain an alien “pending a decision on whether the alien is to
be removed from the United States.” 8 U.S.C. § 1226(a). In other words, “section 1226 governs
the detention of immigrants who are not immediately deportable.” Hechavarria v. Sessions, 891
F.3d 49, 57 (2d Cir. 2018). This includes aliens, like Petitioner, whose removal order is under
review at the BIA. See id. at 54-55. The default rule is that officials may release aliens on bond
or conditional parole while removal proceedings are pending. See Jennings v. Rodriguez, 138 S.
Ct. 830, 837 (2018). “Section 1226(c), however, carves out a statutory category of aliens who may
not be released,” including those who have committed certain serious offenses. Id. Respondents
argue that Petitioner is held under Section 1226(c), and the Court will assume for purposes of the
motion that this is the case. See ECF No. 8 at 17.
By its plain terms, Section 1226(c) “mandates detention of any alien falling within its
scope” and does not contemplate periodic bond hearings for said aliens. Jennings, 138 S. Ct. at
842, 847. Nevertheless, this Court has held that “mandatory detention under Section 1226(c) may
violate an alien’s due process rights if the alien is held for an unreasonably long period.” Frederick
v. Feeley, No. 19-CV-6060, 2019 WL 1959485, at *2 (W.D.N.Y. May 2, 2019). “Once the alien’s
detention exceeds a reasonable period, the alien may be entitled to relief, including the right to a
bond hearing with appropriate procedural safeguards.” Id.
To determine whether an alien’s due process rights have been violated as a result of his
continued detention under Section 1226, the Court first evaluates whether the “alien [has been]
held for an unreasonably long period.” Id.; see also Hemans v. Searls, No. 18-CV-1154, 2019 WL
955353, at *5 (W.D.N.Y. Feb. 27, 2019). If the alien has been detained for an unreasonably long
period, the Court proceeds to analyze whether the alien has received sufficient process to justify
his continued detention. Hemans, 2019 WL 955353, at *5. Applying this framework, the Court
concludes that Petitioner is entitled to relief.
First, Petitioner’s detention has been unreasonably prolonged. He has been detained for
over fifteen months. This Court has held that a fifteen-month detention is “beyond the point at
which courts find detention unreasonably prolonged.” Dutt v. Nielsen, No. 19-CV-155, ECF No.
21 at 4 (W.D.N.Y. May 7, 2019) (collecting cases). Furthermore, this delay appears to be
attributable to the normal administrative and appeals process. Although Petitioner has timely
appealed his order of removal—which inevitably extended his detention—Respondents do not
suggest that he has abused the processes available to him or otherwise maliciously delayed
proceedings. This is significant, as the Second Circuit has made a distinction between aliens who
have “substantially prolonged [their] stay by abusing the processes provided to [them]” and those
who have “simply made use of the statutorily permitted appeals process.” Hechavarria, 891 F.3d
at 56 n.6. In other words, pursuit of relief from removal “does not, in itself, undermine a claim
that detention is unreasonably prolonged.” Brissett v. Decker, 324 F. Supp. 3d 444, 453 (S.D.N.Y.
2018); see also Hemans, 2019 WL 955353, at *6. Thus, contrary to Respondents’ suggestion,
Petitioner cannot be faulted merely because he exercised his right to review. See ECF No. 8 at 20-
21. Accordingly, Petitioner has passed the first step.
Second, the process that Petitioner has been afforded is constitutionally inadequate. Courts
in this Circuit have frequently held that due process requires more than what immigration
authorities provide. The “consensus view” is that due process requires the government, not the
alien, to prove continued detention is justified by clear and convincing evidence. Darko v.
Sessions, 342 F. Supp. 3d 429, 435 (S.D.N.Y. 2018) (collecting cases); see also Martinez v.
Decker, No. 18-CV-6527, 2018 WL 5023946, at *5 (S.D.N.Y. Oct. 17, 2018). Respondents have
provided Petitioner with two “custody reviews,” but they do not dispute that such reviews do not
employ that high standard. See ECF No. 8 at 23-24, 50-51, 53-54. Therefore, because Petitioner’s
detention has been unreasonably prolonged, and because he has not yet been afforded a
constitutionally adequate bond hearing, his continued detention violates his due process rights.
He is entitled to relief in the form of a bond hearing with proper procedural safeguards.
However, purely as a procedural matter, the Court agrees with Respondents that the only
proper respondent is Jeffrey Searls, the Assistant Field Office Director of the ICE Buffalo Field
Office. See ECF No. 8 at 10 n.1. As the “person with direct control” over Petitioner’s detention,
id., he is the proper respondent given Petitioner’s requested relief. See Hassoun v. Sessions, No.
18-CV-586, 2019 WL 78984, at *7 (W.D.N.Y. Jan. 2, 2019) (“The majority view in the Second
Circuit requires the immediate custodian, generally the prison warden, to be named as a respondent
in core immigration habeas proceedings—i.e., those challenging present physical confinement.”
(quotation omitted)).
CONCLUSION
For the reasons discussed above, Petitioner is entitled to habeas relief under 28 U.S.C. §
2241 and the petition is GRANTED IN PART and DENIED IN PART. The petition is granted
against Respondent Searls and is denied with respect to the remaining respondents.
By September 15, 2020, Respondent Searls shall hold a bond hearing for Petitioner before
an immigration judge, at which the government bears the burden of proving by clear and
convincing evidence that Petitioner’s continued detention is justified based on his present risk of
flight or danger to the community. To conclude that detention is justified, the immigration judge
must also find that no less restrictive alternative to detention that could reasonably assure
Petitioner’s appearance and the safety of the community exists. If a bond hearing is not held by
September 15, 2020, Respondent Searls shall release Petitioner immediately with appropriate
conditions of supervision. By September 17, 2020, Respondent Searls shall file a notice with this
Court certifying either (1) that a bond hearing was held by the applicable deadline, and the outcome
thereof, or (2) that no bond hearing was held and that Petitioner was released with appropriate
conditions of supervision. The Clerk of Court is directed to enter judgment and close this case.
IT IS SO ORDERED.
Dated: September 1, 2020
Rochester, New York
Chief Judge
United States District Court