Sosa Rodriguez v. Barr

UNITED STATES DISTRICT COURT SSiAteS DISTRICFE

WESTERN DISTRICT OF NEW YORK EE RIEEO □□

DEC 15 2020

Ly

NELSON SOSA RODRIGUEZ, yer inewenastl

TERN DISTRICLS

Petitioner,

v. 20-CV-97 (JLS)

THOMAS FEELEY, in his official

capacity as Field Office Director,

Buffalo Field Office, U.S. Immigration

& Customs Enforcement,

JEFFREY SEARLS, in his official

capacity as Acting Assistant Field

Office Director and Administrator,

Buffalo Federal Detention Facility,

KEVIN K. MCALEENAN, in his official

capacity as Acting Secretary, U.S.

Department of Homeland Security!

WILLIAM P. BARR, in his official

capacity as Attorney General, U.S.

Department of Justice,

Respondents.

DECISION AND ORDER

1 In his initial petition, Sosa Rodriguez sued Kevin K. McAleenan in his official

capacity as Acting Secretary of the Department of Homeland Security. Dkt. 1, at 3-

4. His and the government’s subsequent submissions name Chad F. Wolf as the

respondent in that capacity. See, e.g., Dkts. 4-6. This substitution aside, the parties

dispute which respondents are proper parties. See Dkt. 5, at 21-22; Dkt. 6, at 13-15.

The Court declines to decide this issue in light of its decision below.

Nelson Sosa Rodriguez 1s a native and citizen of El Salvador who entered the

United States in March 2013. He has been detained at the Buffalo Federal

Detention Facility pending removal proceedings for approximately 27 months, and

petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.2

Sosa Rodriguez is currently detained under 8 U.S.C. § 1226(c). Section

1226(c) requires detention of aliens convicted of certain crimes pending removal

proceedings and does not afford a hearing at which the alien may advocate for

release. Sosa Rodriguez argues that Section 1226(c), as applied to him, violates his

Fifth Amendment procedural due process rights because it requires his continued

detention, without a bond hearing, pending a final removal order. Sosa Rodriguez

also argues that his continued detention violates the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 706(2)(A), (E). In addition, he argues that he has not received

adequate medical care while detained by the United States Department of

Homeland Security, Immigration and Customs Enforcement (“DHS”), in violation of

the Rehabilitation Act, 29 U.S.C. § 794.

Sosa Rodriguez seeks “immediate[] release.” Dkt. 1, at 15.3 In the

alternative, Sosa Rodriguez asks that the Court order the government to hold a

bond hearing at which he may contest his continued detention. Ifthe Court grants

this request, Sosa Rodriguez asks that DHS establish, by clear and convincing

2 Sosa Rodriguez filed this petition on January 24, 2020. Thereafter, this case was

assigned to the Honorable Lawrence J. Vilardo. On May 4, 2020, this case was

reassigned to the undersigned. Dkt. 7.

3 All page references are to the pagination automatically generated by CM/ECF.

evidence, that his continued detention is necessary and justified. Jd. He also asks

this Court to enjoin the government from transferring him outside of this district

during the pendency of his petition. Id.

For the reasons that follow, the Court denies the relief Sosa Rodriguez

requests and dismisses his petition without prejudice.

BACKGROUND

I, Background and Detention

It is unclear when and where Sosa Rodriguez entered the United States, but

he did so without inspection. Dkt. 4, at 2 §] 3; Dkt. 4-1, at 2 § 5. By Sosa

Rodriguez’s account, it was at some point in March 2013. Dkt. 1, at 7 4 34. His

father, according to Sosa Rodriguez, is a “prominent military figure” in El] Salvador.

Id. at 7 §] 32. Sosa Rodriguez fled El Salvador because he was “attacked and

threatened by MS-13 gang members, who sought [his] military intelligence, skills,

and influence.” Jd. at 7 § 33.

According to the government, Sosa Rodriguez has been criminally convicted

three times since entering the United States. He was first convicted on November

17, 2016, in Nassau County First District Court, of violating New York State’s

Vehicle and Traffic Law (“VTL”) § 1192.2, which prohibits operating a motor vehicle

while intoxicated. Dkt. 4, at 3 § 5; Dkt. 5, at 3-4. The court granted a conditional

discharge, imposed a fine, and (despite that Sosa Rodriguez never had a New York

State driver’s license) “revoked” his license. Dkt. 4, at 3 §/ 5; Dkt. 5, at 4.n.2.

Sosa Rodriguez's second and third convictions resulted from a car accident on

April 16, 2016. Dkt. 1, at 7 §[| 36-37; Dkt. 4, at 3 §/ 6; Dkt. 5, at 4. That day, Sosa

Rodriguez lost control of the car that he was driving and hit a tree. The car “split

into two pieces.” Dkt. 4, at 3 6. The accident seriously injured Sosa Rodriguez,

who lost one of his legs as a result. Id.; see also Dkt. 1, at 7 {| 36. The passenger in

the car died from his injuries. Jd. On March 1, 2018, Sosa Rodriguez was convicted

in the Supreme Court of New York, Nassau County, of manslaughter in the second

degree, 1n violation of New York State Penal Law § 125.15(1), and sentenced to a

term of imprisonment of one to three years. Dkt. 4, at 3-4 §] 8; Dkt. 1, at 7 § 37.

Sosa Rodriguez was also convicted of “Aggravated Unlicensed Operation of a Motor

Vehicle in the Second Degree” in violation of VTL § 511.2. Dkt. 4, at 44 8. He was

fined and sentenced to six months’ imprisonment. Id.

DHS lodged an Immigration Detainer on May 8, 2018, asking to be notified

before Sosa Rodriguez was released from state custody. Dkt. 4, at 4 4 9; Dkt. 4-1, at

4411; Dkt. 4-2, Ex. A at 10. On May 380, 2018, Sosa Rodriguez was placed in

immigration removal proceedings by a Notice to Appear (“NTA”). Dkt. 4, at 4 § 10;

Dkt. 4-1, at 4 4 12; Dkt. 4-2, Ex. A at 11-138.

The NTA charged Sosa Rodriguez as being a native and citizen of El

Salvador, subject to removal pursuant to Immigration and Nationality Act (“INA”) §

212(a)(6)(A)(), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States

without being admitted or paroled, or who arrived in the United States at any time

or place other than as designated by the Attorney General. See Dkt. 4, at 4 | 10;

Dkt. 4-1, at 4 § 12; Dkt. 4-2, Ex. A at 13. The NTA also charged him pursuant to

INA § 212(a)(2)(A)G)(), 8 U.S.C. § 1182(a)(2)(A)(D, as an alien who has been

convicted of a crime involving moral turpitude. Jd. Sosa Rodriguez appeared before

the Ulster, New York, Immigration Court on August 27, 2018, at which point his

counsel requested an adjournment to further prepare. Dkt. 4, at 4 4/§ 11-12; Dkt. 4-

1,at49§ 13-14.

On or about September 9, 2018, Sosa Rodriguez was released from the New

York State Department of Corrections and Community Supervision and placed in

DHS custody. Dkt. 4, at 4 4 13; Dkt. 4-1, at 4 4 15. His case was then transferred

to the Batavia, New York, Immigration Court. Id.

On September 11, 2018, DHS determined that Sosa Rodriguez would remain

in its custody pending a final administrative determination of his case. Dkt. 4, at 5

{| 14; Dkt. 4-1, at 4-5 § 16. Sosa Rodriguez requested that an Immigration Judge

(“IJ”) review this custody determination, but “refused to sign” the Notice of Custody

Determination form. Id.; see also Dkt. 4-2, Ex. A at 17.

Sosa Rodriguez appeared before the IJ on October 30, 2018 for a master

calendar hearing, where he “admitted the factual allegations in the NTA and

conceded each charge of removability.” Dkt. 4, at 5 4 15. Counsel for Sosa

Rodriguez indicated he would apply for relief from removal, and proceedings were

continued until December 19, 2018. Id.

Also on October 30, 2018, an IJ reviewed Sosa Rodriguez’s custody status.

Counsel for Sosa Rodriguez conceded that he “was not eligible for bond given that

he had been convicted of a crim[e] of moral turpitude and substance to mandatory

detention” under 8 U.S.C. § 1226(c). See Dkt. 4, at 5 § 16; see also Dkt. 4-4, Ex. A at

36 (“I don’t believe that [he] is eligible for bond. I believe he’s subject to mandatory

detention under [INA §] 236(c).”). Accordingly, the IJ denied his request for a

change in custody status. See Dkt. 4, at 5 §] 16; see also Dkt. 1, at 7 § 38 (“[T]he IJ

found that Petitioner was subject to mandatory detention under INA [§] 236(c)

because of the conviction he suffered in 2018.”). Sosa Rodriguez's counsel reserved

his right to appeal the IJ’s decision to the Board of Immigration Appeals (“BIA”),

but did not do so. Dkt. 4, at 5 § 16; Dkt. 4-1, at 5 § 18; Dkt. 4-4, Ex. A at 36-37.

Sosa Rodriguez maintains that this hearing was “not a bond hearing,” and

that he “was provided no further opportunity to address whether or not he was a

flight risk or a danger to the community, and the Department of Homeland Security

was not required to provide any evidence.” Dkt. 6, at 2. The government, in

response, argues that Sosa Rodriguez is not entitled to a “new hearing” because he

“has been afforded the process he is due.” Dkt. 5, at 10-11. The government states

that Sosa Rodriguez was “provided an opportunity to challenge the basis of his

custody” at the October 30, 2018 hearing, and that “[h]is decision not to challenge

his detention should not be held against the government.” Id.

Proceedings on December 19, 2018 were continued to February 26, 2019, at

which point Sosa Rodriguez and his counsel appeared before the IJ. Dkt. 4, at 6 4/4

19-20. The IJ denied Sosa Rodriguez’s applications for relief from removal and

ordered him removed from the United States to El Salvador. See id.; Dkt. 1, at 9 4

47; Dkt. 4-1, at 5 9] 20-21; Dkt. 4-2, Ex. A at 25-44.

Sosa Rodriguez appealed the IJ’s order of removal to the BIA on March 28,

2019. Dkt. 4, at 6 4 20. After Sosa Rodriguez's counsel requested an extension, the

IJ set a briefing deadline of June 12, 2019. Dkt. 4, at 6 § 21; Dkt. 4-1, at 6 4 22. On

August 22, 2019, the BIA remanded the case to the Immigration Court for further

proceedings. Dkt. 1, at 9 §] 48; Dkt. 4, at 6 §] 22; Dkt. 4-1, at 6 4 25; Dkt. 4-3, Ex. A

at 17-21. The IJ again denied Sosa Rodriguez's applications for relief from removal

on December 5, 2019, and ordered him removed to El Salvador. Dkt. 1, at 10 4 50;

Dkt. 4, at 6 24.

Sosa Rodriguez appealed the IJ’s decision to the BIA. See Dkt. 1, at 10 □□ 51;

Dkt. 4, at 6 | 25. His appeal remains pending. Jd.!_ He maintains he “is not

expected to be removed to El Salvador anytime in the near future, because his

removal proceedings remain pending before the Board.” Dkt. 1, at 9 4 46.

Sosa Rodriguez is being held at the Buffalo Federal Detention Facility

pending completion of immigration removal proceedings. See Dkt. 1, at 2 § 1; Dkt.

4, at 7 § 26. He has been detained by DHS since September 10, 2018, except for

“the times he was hospitalized or receiving medical care off-site.” Dkt. 1, at 8 4 39.

4 The Court has no further information about the status of Sosa Rodriguez’s

immigration proceedings.

The parties’ accounts of these events vary in detail but agree on the basic

timeline set forth above.

Il. Medical Conditions

As discussed, Sosa Rodriguez sustained “life-threatening injuries’ because of

the April 2016 car accident. Dkt. 1, at 7 4 36. He is an amputee and “requires the

use of a wheelchair to ambulate.” Jd. at 2 4 2. Sosa Rodriguez “suffers from various

physical and neurological conditions related to his disabilities.” Jd. He alleges his

disabilities “have been exacerbated by the falls and lack of medical care he has

endured while in detention.” Id.; see also id. at 3 {| 9 (alleging that his falls and

“other medical complications” while in detention have “significantly worsened his

physical and cognitive health”).

Sosa Rodriguez alleges he fell three times while detained. First, Sosa

Rodriguez fell when his shower chair collapsed beneath him at Wende Correctional

Facility during his transfer to DHS custody. Dkt. 1, at 8 § 40. He alleges he did not

recelve x-rays despite recalling “significant pain in his back” when he arrived at the

Buffalo Federal Detention Center. Id.; see also id., Ex. D at 27 (recommending x-

rays “[MJonday morning pending... progress throughout the weekend”). Then, on

October 18, 2018, Sosa Rodriguez “fell in his cell while attempting to ambulate, and

cracked his head open on the corner of a metal table.” Jd. at 8 41. He was treated

at Erie County Medical Center. Jd. Sosa Rodriguez was again injured on October

19, 2019, when he “tried to catch himself from falling by bearing weight on his

remaining foot.” Id. at 8 §] 42. X-rays provided on December 9, 2019 revealed

“unhealed fractures” in his foot. Id.

Sosa Rodriguez suffers “from the loss of his limb and significant pain...

diffuse traumatic brain injury with memory/processing impairment, phantom limb

syndrome with pain, primary open-angle glaucoma, major depressive disorder, and

several other conditions.” Dkt. 1, at 9 § 43. He maintains his conditions have

“worsened significantly since he was transferred to ICE custody.” Id. at 9 4 44.

Since his transfer to DHS custody, Sosa Rodriguez has been “diagnosed with

traumatic brain injury and memory/processing impairment, and the fractures in his

foot that were once healed are now unhealed.” Id. at 9 44-45.

iI. Procedural History

Sosa Rodriguez filed this petition on January 24, 2020. Dkt. 1. The

government answered and filed a memorandum and declarations in opposition.

‘Dkts. 4, 5. Sosa Rodriguez replied. Dkt. 6. His Section 1226(c) detention, which

began in September 2018, has lasted 27 months to date.' See Dkt. 1, at 8 {J 39; Dkt.

4,at4 413.

5 On or about September 9, 2018, venue changed from Ulster Immigration Court to

Batavia Immigration Court, likely based on Sosa Rodriguez's transfer from state

custody to the Buffalo Federal Detention Facility in Batavia, New York. See Dkt. 4-

1, at 4 9 14-15; see also Dkt. 1, at 8 § 39 (alleging Sosa Rodriguez has been

detained in Batavia since September 10, 2018).

ANALYSIS

I, Sosa Rodriguez’s Constitutional Claims

A. Jurisdiction

Jurisdiction over substantive challenges to final deportation, exclusion, and

removal orders resides with the circuit courts; district courts lack jurisdiction over

the merits of such orders. See Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005)

(holding that the REAL ID Act “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 can, however, review

claims that pre-removal detention is unconstitutional. See Demore v. Kim, 538 U.S.

510, 516-17 (2003). In this way, habeas corpus review is available to persons “in

custody in violation of the Constitution or laws or treaties of the United States.”

See 28 U.S.C. § 2241(c)(8).

Sosa Rodriguez claims that his detention is unconstitutional based on its

duration. Specifically, he claims that his now 27-month detention under Section

1226(c) without a bond hearing violates his Fifth Amendment procedural due

process rights. See, e.g., Dkt. 1, at 2 | 3-4; id. at 6 | 29; 1d. at 14 4 69. The

government does not dispute that the Court has jurisdiction over Sosa Rodriguez's

“challenge to his continued detention in custody.” See Dkt. 4, at 2 { 1.

10

B. Constitutionality of Section 1226(c)®

It is beyond dispute that the Fifth Amendment “protects [aliens like Sosa

Rodriguez] from deprivation of life, liberty, or property without due process of law.”

See Mathews v. Diaz, 426 U.S. 67, 77 (1976); see also Reno v. Flores, 507 U.S. 292,

306 (1993) (“It 1s well established that the Fifth Amendment entitles aliens to due

process of law in deportation proceedings.”). Equally clear are the “constraints on

governmental decisions which deprive individuals of ‘liberty or ‘property interests

within the meaning of the Due Process Clause of the Fifth ... Amendment.”

Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

Sosa Rodriguez's detention is mandatory under 8 U.S.C. § 1226(c), which

provides that the Attorney General “shall take into custody any alien who... is

deportable by reason of having committed” certain criminal offenses—including, as

relevant here, a crime of moral turpitude committed within five years of admission

6 Sosa Rodriguez concedes detention under Section 1226(c). See, e.g., Dkt. 6, at 2.

He similarly conceded that he was “subject to mandatory detention” at a hearing

before the IJ on October 30, 2018. Dkt. 4-4, Ex. A at 36. Sosa Rodriguez argues

that the October 30 hearing “[w]as [n]Jot [c]onstitutionally [a]dequate” because the

IJ did not “address whether or not he was a flight risk or a danger to the

community” and did not require DHS to “provide any evidence.” Dkt. 6, at 2. The

Court need not reach this issue because Sosa Rodriguez is not entitled to a bond

hearing; his detention has not become unreasonably prolonged. Nonetheless, Sosa

Rodriguez has not articulated clear deficiencies with the October 30 hearing—where

the IJ adjourned only after Sosa Rodriguez conceded mandatory detention; the IJ

specifically stated he wanted to provide the “opportunity to address that [issue]”;

and counsel for Sosa Rodriguez noted nothing further besides “reserv[ing] appeal.”

Dkt. 4-4, Ex. A at 36-37. See Demore, 538 U.S. at 514 (“In conceding that he was

deportable, respondent forwent a hearing at which he would have been entitled to

raise any nonfrivolous argument available to demonstrate that he was not properly

included in a mandatory detention category.” (citing 8 CFR § 3.19(h)(2)(1) (2002);

Matter of Joseph, 221. & N. Dec. 799, 1999 WL 339053 (BIA 1999)).

11

into the United States, for which the alien may be sentenced to a term of

imprisonment of at least one year. See 8 U.S.C. § 1226(c)(1)(C);7 8 U.S.C.

§ 1227(a)(2)(A)G) “Any alien who . . . is convicted of a crime involving moral

turpitude committed within five years... after the date of admission, and...is

convicted of a crime for which a sentence of one year or longer may be imposed, is

deportable.”).

The Supreme Court rejected a constitutional challenge to Section 1226(c) in

United States v. Demore, where it held that “Congress, justifiably concerned that

deportable criminal aliens who are not detained continue to engage in crime and fail

to appear for their removal hearings in large numbers, may require that persons...

be detained for the brief period necessary for their removal proceedings.” 538 U.S.

at 513. In so holding, the Court reiterated the “fundamental premise of

immigration law” that, “[i]Jn the exercise of its broad power over naturalization and

immigration, Congress regularly makes rules that would be unacceptable if applied

to citizens.” Jd. at 521 (quoting Diaz, 426 U.S. at 79-80) (internal quotations

omitted).

“Tf an alien meets these criteria, the Attorney General may order release “only if”:

(1) release is necessary for certain witness-protection purposes; and (2) the ahen

“will not pose a danger to the safety of other persons or of property and 1s likely to

appear for any scheduled proceeding.” 8 U.S.C. § 1226(c)(2); see also Jennings v.

Rodriguez, — U.S. — , 1388 S. Ct. 830, 837-38 (2018) (explaining that “Section

1226(c) ... carves out a statutory category of aliens who may not be released under

§ 1226(a)” and summarizing Section 1226(c)’s detention and release requirements).

The Attorney General also must consider the severity of the criminal offense. See 8

U.S.C. § 1226(c)(2).

12

The Court's holding in Demore aligns with its prior recognition that “the

responsibility for regulating the relationship between the United States and [its]

alien visitors [is] committed to the political branches of the Federal Government.”

Diaz, 426 U.S. at 81. Indeed, “[o]ver no conceivable subject is the legislative power

of Congress more complete.” Flores, 507 U.S. at 305 (internal quotations and

citations omitted). Because decisions regarding immigration “may implicate [the

United States’] relations with foreign powers, and [because] a wide variety of

classifications must be defined in the light of changing political and economic

circumstances, such decisions are frequently ... more appropriate [for] either the

Legislature or the Executive than [for] the Judiciary.” Diaz, 426 U.S. at 81.

Against this backdrop, courts must give particular care to the constitutional

interests, governance concerns, and individual rights involved on these weighty

questions. Indeed, courts must employ “a narrow standard of review of decisions

made by the Congress or the President” and must exercise “the greatest caution” in

evaluating constitutional claims that implicate those decisions. See Diaz, 426 U.S.

at 81-82. In this way, courts strive for the proper constitutional balance in Section

1226(c) cases. See Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011)

(“[C]ourts reviewing petitions for writ of habeas corpus must exercise their

independent judgment as to what is reasonable.”), abrogated on other grounds,

Jennings, — U.S. —, 138 S. Ct. 880 (2018); Garcia v. Whitaker, No. 6:18-cv-06836-

MAT, 2019 WL 3802536, at *8 (W.D.N.Y. Aug. 18, 2019) (“Jennings left open the

13

possibility that individual detentions without bond hearings might eventually

violate due process.”).

Detention during removal proceedings “is a constitutionally permissible part

of that process.” Demore, 538 U.S. at 531. There is no bright-line rule as to when a

period of detention under Section 1226(c) may violate due process. See Johnson v.

Orsino, 942 F. Supp. 2d 396, 409 (S.D.N.Y. 2013) (noting that “the Supreme Court

did not set a bright-line outer limit for what constitutes a permissible period of

detention” and that courts “must assess the duration of the detention in proper

context”); Johnson v. Phillips, No. 10-CV-480A, 2010 WL 6512350, at *7 (W.D.N.Y.

Dec. 20, 2010) (“The Supreme Court in Demore noted the average time for

conducting a removal proceeding (including appeal), but it did not set the outer

limit for how long an alien may be detained while awaiting determination of his or

her removal proceeding.” (citation omitted)). In Demore, the Court reiterated its

“longstanding view that the Government may constitutionally detain deportable

aliens during the limited period necessary for their removal proceedings.” See 538

U.S. at 526; see also id. at 513 (alien’s detention under Section 1226(c) “for the brief

period necessary for their removal proceedings’ was constitutional).

Detention pending a determination of removability has a “definite

termination point.” Demore, 538 U.S. at 529. Where a petitioner appeals the IJ’s

decision to the BIA, such detention ends with a BIA determination and, if

applicable, a final order of removal. See, e.g., id. at 529. Other delays attributable

to a petitioner may also permissibly extend the termination point. See id. at 530

14

(identifying delay in petitioner’s request for a continuance of his removal hearing);

id. at 5381 n.14 (concluding, where petitioner argued that “the length of detention

required to appeal may deter aliens from exercising their right to do so,” that “the

legal system ... is replete with situations requiring the making of difficult

judgments as to which course to follow, and, even in the criminal context, there is

no constitutional prohibition against requiring parties to make such choices”

(internal quotations and citations omitted)).

Because the Due Process Clause prohibits “arbitrary” deprivations of liberty,

a detainee “could be entitled to an individualized determination as to his risk of

flight and dangerousness if the continued detention became unreasonable or

unjustified.” Demore, 538 U.S. at 532 (Kennedy, J., concurring). For instance, an

“unreasonable delay by the [government] in pursuing and completing deportation

proceedings” may suggest that detention is being used “not to facilitate deportation,

or to protect against risk of flight or dangerousness, but to incarcerate for other

reasons.” Id. at 532-33. That analysis depends on “the circumstances of [the] case.”

Id. at 533.

Demore also highlights the “process” that has been built into a mandatory

detention under Section 1226(c)—for example, that Section 1226(c) applies to

detainees whose convictions were generally “obtained following the full procedural

protections [the] criminal justice system offers.” See 538 U.S. at 513; 1d. at 525 n.9

(noting that “respondent became ‘deportable’ under § 1226(c) only following criminal

convictions that were secured following full procedural protections’); Velasco Lopez

15

v. Decker, 978 F.3d 842, 850 n.7 (2d Cir. 2020) (finding a “sharp contrast” between

procedural protections afforded to criminal defendants who are later detained under

Section 1226(c) and those afforded to Section 1226(a) detainees); see also Demore,

538 U.S. at 531-32 (Kennedy, J., concurring) (describing process available pursuant

to Matter of Joseph, 22 1. & N. Dec. 799, 1999 WL 339053 (BIA 1999)).

C. Guideposts Relevant to the Reasonableness of Section 1226(c)

Detention

Since Jennings, the Second Circuit “has not addressed... the standard to be

utilized by courts in addressing procedural due process claims for aliens detained

pursuant to § 1226(c) in the immigrant habeas context.” Ranchinskiy v. Barr, 422

F. Supp. 3d 789, 796-97 (W.D.N.Y. 2019). District courts in this Circuit, in

determining whether the petitioner’s “length of detention has become unreasonable

or unjustified,” have considered factors such as:

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

responsible for the delay; (8) whether the petitioner has asserted

defenses to removal; (4) whether the detention will exceed the time

the petitioner spent in prison for the crime that made him removable;

(5) whether the detention facility is meaningfully different from a

penal institution for criminal detention; (6) the nature of the crimes

committed by the petitioner; and (7) whether the petitioner's

detention is near conclusion.

Id. at 797. If this analysis reveals that the detention is not unreasonably prolonged,

there is no procedural due process violation, and the analysis ends. See Kabba v.

Barr, 403 F. Supp. 3d 180, 185 (W.D.N.Y. 2019). If, however, a court concludes that

the alien’s detention is unreasonably prolonged, its next step considers what process

16

petitioner is due—t.e., whether the government has “provided the procedural

safeguards required by the Due Process Clause.” Id.8

Because a procedural due process analysis is fact- and case-specific, decisions

addressing Section 1226(c) due process challenges in similar circumstances reveal

certain helpful guideposts. See Minaya-Rodriguez v. Barr, 459 F. Supp. 3d 488,

497-499 (W.D.N.Y. May 10, 2020).

For example, procedural due process claims by petitioners detained for 6 to

approximately 12 months while awaiting final orders in their immigration

proceedings generally do not succeed—unless the government caused extreme delay

or engaged in dilatory conduct. Compare Demore, 538 U.S. at 530-31 (detention for

six months did not violate Fifth Amendment), and Dryden v. Green, 321 F. Supp. 3d

496, 502 (D.N.J. 2018) (denying bond hearing where petitioner was detained for

“just over a year” and “delay was not the result of any apparent inaction or

unreasonable delay on the part of the Government”), with Hernandez v. Decker, No.

18-CV-5026 (ALC), 2018 WL 3579108, at *2, *8, *10 (S.D.N.Y. July 25, 2018)

determine the safeguards necessary to ensure that a petitioner receives “the

opportunity to be heard at a meaningful time and in a meaningful manner,” the

Court considers: (1) the private interest that will be affected by the official action;

(2) the risk of an erroneous deprivation of that interest through the procedures

used, plus the likely value, if any, of other procedural safeguards; and (8) the

government’s interest, including the function at issue and the burden that any other

procedural requirement would impose. See Eldridge, 424 U.S. at 338, 335 (internal

quotations and citation omitted); see also Kabba, 403 F. Supp. 3d at 188 (citing

Eldridge factors at “the second step of the two-part inquiry—the process

constitutionally due to [petitioner]”).

17

(granting bond hearing where petitioner was detained “just over nine months,”

petitioner “attempted to speed things along” but waited more than a month for an

initial appearance, and the IJ sua sponte adjourned a merits hearing for two

months), and Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *1, *11

(granting bond hearing where petitioner was detained for “over eight months” and

delay in removal proceedings was “largely attributable to immigration officials’

failure to process and send [petitioner]’s A-file to his counsel’).

Generally, petitions based on 15 to 21 months’ detention are denied where

some reasonableness factors favor the petitioner, some factors favor the

government, and neither party bears greater responsibility for delay in removal

proceedings. See, e.g., Garcia, 2019 WL 3802536, at *8-*9 (denying bond hearing

where petitioner was detained for 17 months, there was “no evidence that the

proceedings [were] prolonged by dilatory tactics on the part of the Government,”

and “neither party [was] at fault for any delay, which appear[ed] largely due to the

burgeoning case docket of the Immigration Court in Batavia’);9 Lway Mu v.

Whitaker, No. 6:18-cv-06924-MAT, 2019 WL 2373883, at *4 (W.D.N.Y. June 4, 2019)

(denying bond hearing where petitioner was detained for 19 months, some delays

this district, courts’ analyses of the delay factor have diverged if delays in

removal proceedings result from a backlog in Batavia’s Immigration Court. See

Kabba, 403 F. Supp. 3d at 187 n.6 (finding that “to the extent that there is a

backlog, responsibility for its impact falls on the government” and that “if there is a

burgeoning case docket at the Batavia Immigration Court, that is a problem caused

by Congress, the executive branch, or both... [b]ut it is certainly not a problem

caused by detained aliens’). This Court agrees with the Garcia court’s view and

attributes responsibility for docket-based delays to neither party. See Garcia, 2019

WL 3802536, at *9; see also Minaya-Rodriguez, 459 F. Supp. 3d at 498 n.7.

18

were “attributable to strategic decisions by [petitioner] and his attorney,” other

delays did not result from petitioner’s litigation strategy, and there was “no

evidence . . that the Government ha[d] unreasonably prolonged [petitioner]’s

removal proceedings); Sigal v. Searls, No. 1:18-CV-00889 EAW, 2018 WL 5831326,

at *6, *7 (W.D.N.Y. Nov. 7, 2018) (denying bond hearing where petitioner was

detained “for more than 16 months,” noting that “courts in this Circuit

considering habeas corpus claims related to § 1226(c) have found that delays

attributable to normal consideration of an alien’s appeal of adverse decisions do not

render unreasonable the consequent delay of his ability to gain release into his

home country” (internal quotations and citations omitted)); Thompson v. Lynch, No.

16-CV-6608 (CJS), 2017 WL 344970, at *6 (W.D.N.Y. Jan. 24, 2017) (denying bond

hearing where detention reached 21 months and “petitioner’s removal ha[d] been

delayed by his own actions in pursuit of relief in the federal courts,” so “neither his

detention ... nor its duration” established a due process violation); Orsino, 942 F.

Supp. 2d at 408-09 (denying bond hearing where petitioner was detained for 15

months and remained in custody solely because he “chose to appeal the IJ’s removal

order,” as he was entitled to, and that “delay caused by his actions [did] not make

continued detention unreasonable or unjustified” (internal quotations and citations

omitted)); Phillips, 2010 WL 6512350, at *6-*7 (recommending denying bond

hearing where petitioner was detained for 17 months, the record did “not indicate

any delay or foot dragging by the Government,” and the “only significant delay” was

the roughly nine months petitioner’s appeal was pending with the BIA),

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recommendation adopted, 2011 WL 1465448 (W.D.N.Y. Apr. 18, 2011); Adler v. U.S.

Dep’t of Homeland Sec., No. 09 Civ. 4093(SAS), 2009 WL 3029328, at *1-*2

(S.D.N.Y. Sept. 22, 2009) (denying bond hearing where petitioner was detained for

over 15 months—‘“more than twice as long as the maximum duration contemplated

by the Demore Court”—but there was “no evidence in the record that the

government ha[d] dragged its feet”). But see Ranchinskiy, 422 F. Supp. 3d at 798-

801 (granting bond hearing where detention reached 21 months, some delay was

attributable each party, and “on balance and particularly in view of the length of

the detention and the circumstances surrounding that detention, ...

continued detention without a bond hearing [was] constitutionally unjustified”);

Vallejo v. Decker, No. 18-CV-5649 (JMF), 2018 WL 3738947, at *4 (S.D.N.Y. Aug. 7,

2018) (granting bond hearing where petitioner was detained for almost 17 months

without a hearing, principally because the government was responsible for delays in

removal proceedings that had “no constitutionally acceptable reason’).

When detention exceeds 24 months, the petitioner generally prevails if some

reasonableness factors favor the petitioner and some favor the government. See,

e.g., Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 470, 477 (3d Cir.

2015) (granting bond hearing where petitioner was detained for 34 months and

“neither the Government nor [petitioner] caused any extraordinary delays” and the

parties “act[ed] in good faith”), abrogated in part and on other grounds, Jennings,

138 S. Ct. 830; Leslie v. Att’y Gen. of the U.S., 678 F.3d 265, 266, 270-71 (3d Cir.

2012) (granting bond hearing where petitioner was detained for almost 48 months

20

and delay resulted from a combination of government conduct and petitioner's

successful efforts to contest removal), abrogated in part and on other grounds,

Jennings, 138 S. Ct. 830; Constant v. Barr, 409 F. Supp. 3d 159, 163, 169 (W.D.N.Y.

2019) (granting bond hearing where petitioner was detained for 25 months and “the

record [did] not show that Petitioner was engaging in bad faith delay tactics”).

Petitioners detained for more than 24 months may not prevail if they employ

a litigation strategy that can be viewed as dilatory or unusual compared to similarly

situated detainees. See, e.g., Dor v. Dist. Dir., IL.N.S., 891 F.2d 997, 999, 1003 (2d

Cir. 1989) (holding that no procedural due process violation existed where petitioner

was detained for 60 months because “his sustained detention” resulted from “the

simple fact that—at his urgent request and by [a] stay—I[the court] allowed his

application to be exhaustively adjudicated” by the government’); Manley v.

Delmonte, No. 17-CV-953, 2018 WL 2155890, at *1-*2 (W.D.N.Y. May 9, 2018)

(denying petition where detention exceeded 24 months, petitioner asked the Second

Circuit to defer consideration of his immigration appeal until a state appeal of his

criminal conviction concluded, and most delays were at petitioner or his attorney's

request); Luna-Aponte v. Holder, 743 F. Supp. 2d 189, 190, 199 (W.D.N.Y. 2010)

(denying bond hearing where petitioner was detained for approximately 39 months

and filed an untimely appeal to the Second Circuit).

These guideposts, though not dispositive, inform the Court’s analysis of Sosa

Rodriguez's request for a bond hearing.

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D. Sosa Rodriguez’s Detention Comports with the Fifth

Amendment.

Sosa Rodriguez challenges his continued detention on procedural due process

grounds, arguing that his now 27-month detention has become unreasonably

prolonged, and that the government must provide an individualized bond hearing.

The Supreme Court’s holding and rationale in Demore provide the baseline for this

Court’s analysis. And the multi-factor test applied by district courts within this

Circuit provides an additional framework. Based on this baseline and framework,

the Court concludes that Sosa Rodriguez’s detention has not been unreasonably

prolonged in violation of his due process rights.

The critical issue 1s whether Sosa Rodriguez’s 27-month detention pending

determination of his removal proceedings is unconstitutional beyond the “limited

period” contemplated in Demore. 538 U.S. at 526. The length of Sosa Rodriguez's

detention is significant. And he argues that he does “not expect[] to be removed...

anytime in the near future, because his removal proceedings remain pending before

the Board [of Immigration Appeals].” Dkt. 1, at 9 4 46; see also Dkt. 6, at 8-10.

Without more, however, his pending appeal to the BIA does not impermissibly

extend his detention.

According to the government, “[o]ther than [Sosa Rodriguez’s] appeal [of the

IJ’s removal order], there are no barriers to his removal.” Dkt. 5, at 9. Sosa

Rodriguez’s detention appears to be near conclusion; the record does not indicate

that Sosa Rodriguez’s “continued detention will last indefinitely or that his ultimate

removal is unlikely,” and “if... final order of removal is entered against him,

22

there do not appear to be any institutional or other barriers to his deportation.” See

Lway Mu, 2019 WL 2373888, at *5. The government expects the BIA to resolve

Sosa Rodriguez's appeal “in the reasonably foreseeable future.” Dkt. 5, at 17. Sosa

Rodriguez’s Section 1226(c) detention “will come to an end, one way or another,

upon the disposition of his appeal.” Sigal, 2018 WL 5831326, at *6. In addition, the

harm that would result if detention continued for an unreasonable amount of time

is mitigated by Sosa Rodriguez’s ability to file a new petition if the facts

meaningfully change.

Indeed, the length of detention “is not to be considered in isolation.” See

Garcia, 2019 WL 3802536, at *10; see also Dryden, 321 F. Supp. 3d at 502 (holding

that it was “insufficient that Petitioner’s detention ha[d] merely become suspect by

reaching this six month to a year threshold,” and that petitioner “must show that

his ongoing detention is so unreasonable or arbitrary that it has actually violated

his rights under the Due Process Clause”). As stated elsewhere, “the sheer length of

the proceedings is not alone determinative of reasonableness.” De La Rosa v. Barr,

No. 6:19-cv-06418-MAT, 2019 WL 5842906, at *5 (W.D.N.Y. Nov. 7, 2019)

(quotations and citations omitted).

Demore allows the Court to examine the reason for any delay in Sosa

Rodriguez's removal. See Demore, 538 U.S. at 530-31 n.14-15; see also Ranchinskiy.

422 F. Supp. 3d at 797. At least 90 days of delay are attributable to Sosa

Rodriguez’s counsel’s requests for extensions during his immigration proceedings.

See Background, Section I, supra; see also Dkt. 5, at 6 (discussing a continued

23

proceeding in 2018 and an extension request in 2019). In addition, Sosa Rodriguez

chose to pursue an appeal to contest his removal.

To be sure, Sosa Rodriguez is permitted to request extensions from the IJ,

just as he may avail himself of “process” by appealing at the BIA. But he cannot

expect any resulting delay to bolster his due process claim. If a petitioner could

delay enough and thereby earn release, he could defeat the process. See Demore,

538 U.S. at 531 n.14 (concluding “there is no constitutional prohibition against

requiring parties” to “mak[e]. . . difficult judgments,” such as whether to risk a

lengthier detention by exercising their right to appeal); 1d. at 530-31 n.15

(considering the delay resulting from the alien’s request for a continuance of his

removal hearing so he could obtain relevant documents); Doherty v. Thornburgh,

943 F.2d 204, 211 (2d Cir. 1991) (concluding that the alien’s “litigation strategy

[was] perfectly permissible” but that he could “not rely on the extra time resulting

therefore to claim that his prolonged detention violates substantive due process’);

Manley, 2018 WL 2155890, at *2 (denying bond hearing where petitioner was

“partly in control of the sequence of events that will end his detention and partly

responsible for the length of the proceedings that have extended it” because he or

his attorney “prolonged the finality of [his] removal order” by requesting extensions

and stays; “having that right does not mean it may be exercised without

consequence’).

Sosa Rodriguez’s due process claim also fails under the narrow test proposed

in Justice Kennedy's Demore concurrence. The circumstances of Sosa Rodriguez’s

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detention do not support an inference that his detention is arbitrary, unreasonable,

or unjustified. Demore, 538 U.S. at 532. There are no facts suggesting that DHS

seeks to detain Sosa Rodriguez for “other reasons” beyond facilitating deportation or

protecting against risk of flight or dangerousness.!9 Jd. at 532-33.

Under these circumstances, this Court concludes—as have others on similar

facts!!—that Sosa Rodriguez's continued detention comports with his procedural

due process rights.!2 If Sosa Rodriguez's detention were pursuant to Section

1226(a), the Court might have reached a different conclusion. See generally Velasco

Lopez, 978 F.3d 842. But upon review of Sosa Rodriguez’s Section 1226(c) detention

and the circumstances surrounding it, the Court finds no evidence that his

detention has become unjustified, unreasonable, or arbitrary—especially in light of

the nature of his conviction and the absence of any apparent inaction or bad faith on

10 The Court’s analysis of the nature of the underlying offense that resulted in Sosa

Rodriguez’s Section 1226(c) detention also supports this conclusion. Sosa Rodriguez

argues that he does not present a risk of dangerousness to the community because

his manslaughter conviction involved recklessness, not willfulness, and because he

is “confined to a wheelchair” with “serious medical conditions.” Dkt. 6, at 8. The

Court disagrees, and concludes that his conviction demonstrates a risk of

dangerousness to the community. This bears on the reasonableness of his

continued detention. See Ranchinskiy, 422 F. Supp. 3d at 797.

11 The Court has considered where Sosa Rodriguez’s detention falls among the

guideposts discussed above. See Analysis, Section I(C), supra. That consideration

supplements—but does not replace—the Court’s analysis of Demore and the

reasonableness factors applied by district courts in this Circuit.

12 As the government states, Sosa Rodriguez “does not allege a violation of his

substantive due process rights.” See Dkt. 5, at 9. Substantive due process

“prevents the government from engaging in conduct that shocks the conscience, .. .

or interferes with rights implicit in the concept of ordered liberty.” United States v.

Salerno, 481 U.S. 739, 746 (1987) (internal quotations and citations omitted). Sosa

Rodriguez's detention has not become so unreasonably prolonged so as to render his

confinement unconstitutional.

25

the part of the government. The Constitution and binding case law do not require a

contrary outcome at this time, no matter the somewhat sympathetic fact pattern

presented in this petition.

Il. Sosa Rodriguez’s Statutory Claims

A. Sosa Rodriguez’s Administrative Procedure Act Claim

Sosa Rodriguez alleges his “prolonged civil detention” and “[t]he procedures

employed in detaining [him]” violate the APA, 5 U.S.C. §§ 706(2)(A), (E). See Dkt. 1,

at 2 4 4; id. at 3 § 10; 7d. at 15 | 72-73. He requests release so he may seek

medical care. Jd. at 3 4 10. The Court rejects his APA claim. As an initial matter,

it is not clear that the Court has jurisdiction over this claim. See 5 U.S.C. § 701(a);

8 U.S.C. § 1226(e); see also Nikolic v. Decker, No. 19-CV-6047-LTS, 2019 WL

5887500, at *3 (S.D.N.Y. Nov. 12, 2019) (citing 8 U.S.C. § 1252(b)(9) and dismissing

detainee’s APA claim, which alleged that DHS failed to accommodate his disability,

for lack of subject matter jurisdiction). Regardless, Sosa Rodriguez fails to establish

an agency action or inaction within the context of 5 U.S.C. §§ 706(1) or (2).

B. Sosa Rodriguez’s Rehabilitation Act Claim

Sosa Rodriguez alleges his detention violates Section 504 of the

Rehabilitation Act. See Dkt. 1, at 15 4] 74-75 (citing 29 U.S.C. § 794). To assert a

claim under this Section, “a plaintiff must demonstrate that (1) he is a qualified

individual with a disability; (2) the defendant is subject to one of the Acts; and (3)

he was denied the opportunity to participate in or benefit from the defendant’s

services, programs, or activities, or was otherwise discriminated against by the

26

defendant because of his disability.” See McElwee v. Cnty. of Orange, 700 F.3d 635,

640 (2d Cir. 2012) (citation omitted). The parties focus on the third element. See,

e.g., Dkt. 5, at 20-21; Dkt. 6, at 12-13.

Sosa Rodriguez alleges that the government has “failed to provide necessary

medical care” and also has “prevented” him from “seeking appropriate medical care

for himself.” Dkt. 1, at 13 § 63. In support, Sosa Rodriguez points to the treatment

he received after falling three times. See Background, Section II, supra.

As the government argues, Sosa Rodriguez does not allege that he was denied

medical services, or otherwise discriminated against, because of his disability. Dkt.

5, at 21. Accordingly, the Court dismisses his Rehabilitation Act claim. See

Schnauder v. Gibens, 679 F. App’x 8, 11 (2d Cir. Feb. 10, 2017) (affirming dismissal

of Rehabilitation Act claim where plaintiff had “not pleaded facts showing that

denial of treatment was attributable to bias based on disability,” so “his pleadings

[did] not admit an inference of proscribed discrimination”); Montalvo v. Lamy, 139

F. Supp. 3d 597, 611 (W.D.N.Y. 2015) (dismissing Rehabilitation Act claim for

failure to state a claim where plaintiff did not “allege facts plausibly supporting the

inference that he was excluded on the basis of disability’). At most, Sosa Rodriguez

alleges that aspects of his recent medical care have been inadequate. See, e.g., Dkt.

1, at 15 § 75. But that is insufficient. See Thompson v. United States, No. 09-CV-

0964M, 2010 WL 1910298, at *38 (W.D.N.Y. May 7, 2010) (dismissing Rehabilitation

Act claim where plaintiff alleged that he was “denied adequate medical care at the

27

Federal Detention Facility, not that he [had] been denied access to programs or

benefits on account of a disability’).

CONCLUSION

For these reasons, the relief requested in Sosa Rodriguez’s petition for a writ

of habeas corpus is denied. His petition is dismissed without prejudice to filing a

new petition in the future based on new and different facts, consistent with the

analysis above. His request to enjoin the government from transferring him outside

of this district during the pendency of his petition is denied as moot. Because the

Court has dismissed all of Sosa Rodriguez’s claims, his request for costs and

attorney's fees pursuant to 28 U.S.C. § 2412 is denied. The Clerk of Court is

directed to close this case.

SO ORDERED.

Dated: December 15, 2020

Buffalo, New York eo

C YW. SL

JOHN L. SINATRA, J

UNITED STATES DISTRICT JUDGE

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