Hernandez-Hernandez v. Feeley

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

EDWIN A. HERNANDEZ-HERNANDEZ,

Petitioner,

DECISION AND ORDER

v.

1:20-CV-01161 EAW

THOMAS E. FEELEY, in his official

capacity as Field Office Director, Buffalo

Field Office, U.S. Immigration & Customs

Enforcement, et al.,

Respondents.

INTRODUCTION

Petitioner Edwin A. Hernandez-Hernandez (“Petitioner”), an immigration detainee

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

York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner

argues that his continued detention violates his rights to both substantive and procedural

due process, and seeks immediate release under appropriate conditions of supervision or,

in the alternative, a bond hearing with appropriate procedural protections. For the reasons

set forth below, the Court denies the petition without prejudice, on the basis that (1)

Petitioner’s request for a bond hearing has been mooted and (2) Petitioner has failed to

exhaust his administrative remedies with respect to his request for immediate release.

BACKGROUND

Petitioner is a native and citizen of El Salvador. (Dkt. 8-1 at ¶ 5). On or about June

23, 2015, when he was 16 years old, Petitioner unlawfully crossed the border between the

United States and Mexico as an unaccompanied minor. (Id.). Petitioner was taken into

custody and interviewed. (Id. at ¶ 6). Petitioner reported that he had an uncle who lived

at an unknown address in Houston, Texas, and provided a phone number. (Id. at ¶ 7).

Attempts to reach Petitioner’s uncle at that phone number were unsuccessful. (Id.).

On June 23, 2015, a Notice of Custody Determination was issued to Petitioner

informing him that he would be held in detention pending a final determination in his

immigration proceedings. (Id. at ¶ 10). Petitioner requested that an immigration judge

(“IJ”) review the determination. (Id.).

A master calendar hearing was held on March 2, 2016. (Id. at ¶¶ 14-15). Petitioner

appeared with counsel and requested an adjournment until September 7, 2016, to allow for

preparation of applications for asylum and Special Immigrant Juvenile classification. (Id.

at ¶ 15). The request was granted, but the adjourned hearing was subsequently rescheduled

from September 7, 2016, first to December 7, 2016, then to March 1, 2017, and finally to

March 8, 2017. (Id. at ¶¶ 15-16, 18, 24).

Through December 19, 2016, Petitioner was in the custody of the Office of Refugee

Resettlement (“ORR”), which is an agency within the United States Department of Health

and Human Services. (Id. at ¶ 13). While in ORR custody, Petitioner admitted to being

an associate of Mara Salvatrucha, “an international criminal gang commonly known as

MS-13.” (Id. at ¶ 19). Petitioner reported having participated in five murders while a

member of the gang. (Id.).

The Department of Homeland Security (“DHS”) took custody of Petitioner upon his

release from ORR. (Id. at ¶ 22). Another custody determination was made, and Petitioner

was again advised that he would remain in custody pending a final determination in his

removal proceedings. (Id.). Petitioner again requested IJ review of the custody

determination. (Id.).

On March 7, 2017, United States Citizenship and Immigration Services (“USCIS”)

advised Petitioner by letter than he was not eligible for asylum because he had not

established past or future persecution, but further advised that he could still request asylum

before an IJ during his immigration proceedings. (Id. at ¶ 25).

At Petitioner’s request, his individual hearing was rescheduled to May 12, 2017.

(Id. at ¶ 26). A subsequent request for a continuance by Petitioner was denied on April 21,

2017. (Id.). However, on May 12, 2017, the IJ ordered that venue be transferred, and

Petitioner’s hearing was rescheduled for June 5, 2017, in Batavia. (Id. at ¶ 27). Then, on

June 5, 2017, Petitioner’s hearing was rescheduled to October 12, 2017. (Id. at ¶ 28).

Petitioner’s hearing went forward on October 12, 2017, and opening statements

were made and testimony was taken. (Id. at ¶ 32). The hearing was continued to November

15, 2017, at which time additional expert testimony was taken, the parties made their

closing arguments, and the IJ reserved decision. (Id. at ¶¶ 32-33).

On December 21, 2017, the IJ issued a decision denying Petitioner’s applications

for asylum, withholding of removal, and protection under the Convention Against Torture,

and ordering Petitioner removed. (Id. at ¶ 34). Petitioner appealed the IJ’s decision to the

Board of Immigration Appeals (“BIA”), which dismissed the appeal on June 18, 2018. (Id.

at ¶¶ 35, 37). On June 28, 2018, Petitioner filed a Petition for Review (“PFR”) in the

United States Court of Appeals for the Second Circuit, as well as a motion to stay his

removal. (Id. at ¶ 38).

Petitioner’s custody status was periodically reviewed, and he was advised on

September 10, 2018, December 19, 2018, April 4, 2019, and June 24, 2019, that his custody

would be continued due to his criminal history. (Id. at ¶¶ 39-43, 47).

United States Immigration and Customs Enforcement (“ICE”) attempted to obtain

travel documents to effect Petitioner’s removal to El Salvador in the event that his PFR

was denied. (Id. at ¶ 44). However, Petitioner repeatedly refused to speak with the

consulate of El Salvador, resulting in the issuance of a Form I-299(a) Warning for Failure

to Depart on July 15, 2019, advising Petitioner of his obligation to assist in his removal.

(Id. at ¶¶ 45-49). Petitioner continued to refuse to speak to the consulate of El Salvador,

resulting in the issuance of a Notice of Failure to Comply Pursuant to 8 C.F.R. § 241.4(g)

on August 12, 2019. (Id. at ¶¶ 50-52).

Petitioner’s immigration proceedings were remanded to the BIA by the Second

Circuit. (Id. at ¶ 54). Specifically, on October 24, 2019, the Second Circuit issued a

decision granting the PFR because: (1) the BIA failed to adequately consider whether

Petitioner qualified for the duress exception to the bar on asylum and withholding of

removal for individuals who committed serious nonpolitical crimes; (2) the IJ failed to

adequately explain why MS-13 is not a de facto state actor; (3) the IJ applied the incorrect

legal standard regarding governmental acquiescence under the Convention Against

Torture; and (4) the IJ “overlooked the relevant fact that upon [Petitioner’s] removal, the

U.S. government will inform the Salvadoran government of his former gang affiliation.”

Hernandez-Hernandez v. Barr, 789 F. App’x 898, 900-02 (2d Cir. 2019).

Petitioner was advised of the remand on November 1, 2019. (Dkt. 8-1 at ¶ 54).

Petitioner again requested release, but was advised that his request had been denied on

April 24, 2020, “because ICE was not convinced that [he] was not a flight risk and was

not a danger to the community.” (Id. at ¶ 55). On May 1, 2020, an IJ issued a decision

finding that Petitioner “was detained as a criminal alien due to his admissions of

committing numerous crimes involving moral turpitude” and denying bond. (Id. at ¶ 56).

Petitioner appealed the IJ’s denial of bond to the BIA. (Id. at ¶ 57).

On June 4, 2020, the BIA remanded the record to the IJ for further proceedings as

to Petitioner’s application for protection from removal under the CAT. (Id. at ¶ 58).

Testimony was taken and further briefing was ordered. (Id. at ¶¶ 59-60). The record before

the Court does not reflect any further developments in the merits determinations on

Petitioner’s application for protection from removal.

The BIA sustained Petitioner’s appeal of the IJ’s bond denial. (Dkt. 17 at 15 n.2).

On March 15, 2021, Petitioner appeared before an IJ for a bond hearing. (Dkt. 19 at 1).

On March 17, 2021, the IJ issued a written decision in which she found the following: (1)

Petitioner is not inadmissible for a conviction or admission to committing a crime of moral

turpitude and is accordingly detained pursuant to 28 U.S.C. § 1226(a) and not 28 U.S.C.

§ 1226(c)1; (2) because he is detained pursuant to § 1226(a), Petitioner was entitled,

1 “[T]here are two distinct provisions governing an alien’s detention while removal

proceedings are pending. The first provision—8 U.S.C. § 1226(a)—provides for

pursuant to this Court’s decision in Onosamba-Ohindo v. Barr, 483 F.Supp.3d 159

(W.D.N.Y. Sept. 2, 2020), to a bond hearing at which the government bears the burden of

proving by clear and convincing evidence that he is either a danger to the community or a

risk of flight; (3) the government had not met its burden of showing by clear and convincing

evidence that Petitioner was a danger to the community but had shown by clear and

convincing evidence that Petitioner was a flight risk, based on his lack of any ties to or

family in the United States, the uncertainty in the status of his application, and his having

stated in the past that he would “rather die than go back to El Salvador”; (4) the government

had not met its burden of showing by clear and convincing evidence that no amount of

bond could mitigate the risk of flight or that alternatives to detention could not mitigate the

substantial risk of flight posed by Petitioner; and (5) taking into account Petitioner’s ability

to pay and alternative conditions to release, Petitioner would be released on $60,000 bond

and would be required to enroll in “a supervision requirement and/or an ankle monitoring.”

(Dkt. 19 at 4-8).

DHS appealed the IJ’s bond decision to the BIA. (Dkt. 20 at 4-13). The record

before the Court does not reflect any decision by the BIA on that appeal.

discretionary detention during removal proceedings subject to an individualized bond

hearing. Under the second provision—8 U.S.C. § 1226(c)—which is entitled ‘Detention

of criminal aliens,’ aliens falling within certain enumerated categories ‘shall’ be

mandatorily detained without a hearing.” Nguti v. Sessions, 259 F. Supp. 3d 6, 9-10

(W.D.N.Y. 2017) (quotations, citations, and original alteration omitted).

DISCUSSION

I. Jurisdiction

The federal habeas corpus statute gives district courts jurisdiction to hear

immigration-related detention cases. See 28 U.S.C. § 2241(c)(3); Demore v. Kim, 538 U.S.

510, 517-18 (2003) (holding federal courts have jurisdiction to review challenges to pre-

removal detention); Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding Ҥ 2241 habeas

corpus proceedings remain available as a forum for statutory and constitutional challenges

to post-removal-period detention” in immigration cases). District courts do not have

jurisdiction over challenges to the legality of final orders of deportation, exclusion, and

removal; jurisdiction to review such challenges rests exclusively in circuit courts. See

Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005) (“[The REAL ID Act, 119 Stat. 231,

§ 106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of deportation,

exclusion, and removal, providing instead for petitions of review . . . which circuit courts

alone can consider.”).

II. Petitioner’s Claims

Petitioner asserts that his continuing detention violations his rights to both

procedural and substantive due process. For the reasons set forth below, the Court finds

denial of these claims without prejudice is required.

A. Procedural Due Process

As the procedural history set forth above reflects, there is a dispute in this matter as

to whether Petitioner is detained pursuant to § 1226(a) or § 1226(c). However, this Court

need not resolve that dispute, because regardless of the statutory provision pursuant to

which he is detained, Petitioner has received all the procedure to which he could potentially

be entitled, and his procedural due process claim has accordingly been rendered moot.

In Onosamba-Ohindo, this Court held that individuals detained pursuant to

§ 1226(a) have a procedural due process right to a bond hearing at which the government

bears the burden of demonstrating dangerousness or risk of flight by clear and convincing

evidence and at which the IJ considers ability to pay and alternative conditions of release

in setting bond. 483 F. Supp. 3d at 183-84. Similarly, the Court has found that individuals

held pursuant to § 1226(c) are entitled to an individualized bond hearing with the same

procedural protections when their detention has become unreasonably prolonged. See, e.g.,

Concepcion v. Barr, No. 6:20-CV-06080 EAW, 2021 WL 202680, at *8 (W.D.N.Y. Jan.

21, 2021).

Here, in March of 2021 (after the petition was filed), Petitioner received a bond

hearing at which the IJ expressly held the government to the clear and convincing evidence

standard and considered alternative conditions and Petitioner’s ability to pay in setting

bond. (Dkt. 19 at 4-8). Thus, Petitioner has received precisely the process that the Court

has previously found the Constitution requires. Although Petitioner has made a cursory

contention that the amount of bond set by the IJ was “exorbitant and arbitrary” (id. at 1),

he has not offered any supporting arguments for that contention, and it is not the role of

this Court to independently reweigh the evidence considered by the IJ in making her

determination. See Blandon v. Barr, 434 F. Supp. 3d 30, 36 (W.D.N.Y. 2020) (while the

Court may consider whether the IJ complied with the Court-ordered procedural protections,

it does not reweigh the evidence nor consider whether it would made the same

determination as the IJ). To be clear, the Court is not suggesting that judicial relief is never

available to challenge the conditions of release set at a bond hearing, but on the record

before the Court, Petitioner’s argument in this regard is cursory and, thus, there is simply

no live controversy regarding the procedural protections afforded to Petitioner2, and

Petitioner’s procedural due process claim is accordingly denied without prejudice as moot.

B. Substantive Due Process

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

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

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

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

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

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

activity permitted by the Constitution.” Id. at 211. However, “[i]mmigration detainees

can establish a [substantive] due process violation for unconstitutional conditions of

2 Petitioner has filed a letter in which he states that “[d]espite being afforded a bond

hearing, Petitioner contends that his Petition for habeas corpus is still live. Petitioner

primarily requested immediate release under reasonable conditions of supervision, and

Petitioner has not received that relief.” (Dkt. 19 at 1). The Court understands Petitioner to

be arguing that his petition still presents a live controversy because he has argued that his

continued detention violates his right to substantive due process regardless of the

procedural protections provided and that he accordingly is entitled to immediate release on

appropriate conditions. The Court addresses Petitioner’s substantive due process claim

below. To the extent Petitioner is contending that he has a viable procedural due process

claim despite having been afforded a bond hearing pursuant to Onosamba-Ohindo, the

Court disagrees, for the reasons set forth above.

confinement by showing that a government official ‘knew, or should have known’ of a

condition that ‘posed an excessive risk to health,’ and failed to take appropriate action.”

Basank v. Decker, 449 F. Supp. 3d 205, 214 (S.D.N.Y. 2020) (quoting Darnell v. Pineiro,

849 F.3d 17, 35 (2d Cir. 2017))3. As another court in this Circuit has explained:

a petitioner establishes a claim for deliberate indifference by “prov[ing] that

the defendant-official acted intentionally to impose the alleged condition, or

recklessly failed to act with reasonable care to mitigate the risk that the

condition posed to the pretrial detainee even though the defendant-official

knew, or should have known, that the condition posed an excessive risk to

health or safety.”

Coronel v. Decker, 449 F. Supp. 3d 274, 284 (S.D.N.Y. 2020) (alteration in original and

quoting Darnell, 849 F.3d at 35).

Here, Petitioner contends that “the conditions he has endured during his five-year

detention constitute unconstitutional punitive detention” and seeks release on appropriate

conditions as a result. (Dkt. 1-1 at 13). However, as Respondents point out in opposition

to the petition, Petitioner has not exhausted his administrative remedies with respect to his

request for release. At this point in time, as set forth above, Petitioner has actually been

granted bond by an IJ, and the BIA’s review of the IJ’s decision is ongoing.

3 On February 8, 2021, the Court ordered the parties to submit supplemental briefing

as to whether Petitioner had ever effected a legal entry into the United States and, if he had

not, the impact of his status as on the threshold of initial entry on his conditions of

confinement claim. (Dkt. 15). The government’s supplemental submission contended that

it was unclear whether Petitioner’s placement in ORR custody constituted an entry into this

country, but conceded that in any event, Petitioner would have the right to challenge the

conditions of his confinement. (Dkt. 16).

“A habeas petitioner must normally exhaust administrative remedies before seeking

federal court intervention.” Michalski v. Decker, 279 F. Supp.3d 487, 495 (S.D.N.Y.

2018). Although there is no statutory exhaustion requirement for a habeas petition brought

by a civil immigration detainee, “courts have generally required exhaustion as a prudential

matter.” Hossain v. Barr, No. 6:19-CV-06389-MAT, 2019 WL 5964678, at *3 (W.D.N.Y.

Nov. 13, 2019) (quotation omitted). The Court will waive the prudential exhaustion

requirement where “(1) available remedies provide no genuine opportunity for adequate

relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative

appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial

constitutional question.” Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003) (quotation

omitted). However, “[e]xhaustion is the rule, waiver the exception.” Abbey v. Sullivan,

978 F.2d 37, 44 (2d Cir. 1992).

This Court has previously found that the prudential exhaustion requirement should

be waived where the issue before it is the standard of proof to be applied at a bond hearing,

holding that “the available administrative remedies provide no genuine opportunity for

adequate relief because the burden of proof the IJ would use at a bond hearing in the

absence of an order from this Court does not comply with due process.” Blandon v. Barr,

No. 6:18-CV-06941 EAW, 2019 WL 7759228, at *4 (W.D.N.Y. Oct. 28, 2019). Other

judges in this District have agreed. See, e.g., Lopez v. Barr, 458 F. Supp. 3d 171, 176

(W.D.N.Y. 2020) (“The Court will not require exhaustion here. Lopez’s petition argues

that § 1226(a) and the Constitution require the government to bear the burden of proof

during a bond hearing. Such statutory and constitutional questions cannot be decided by an

immigration judge or the BIA, and accordingly Lopez was not required to exhaust his

administrative remedies before bringing this claim in federal court.” (quotation and

alterations omitted)). The Court continues to be of the view that where a constitutionally

inadequate bond hearing (or no bond hearing at all) has been provided, prudential

exhaustion is generally not required.

Here, however, the issue is not the burden of proof to be applied at a bond hearing

nor whether such a hearing should be provided—to the contrary, as set forth above,

Petitioner’s use of his available administrative remedies has already resulted in his receipt

of a bond hearing at which the required procedural protections were provided. Instead, the

only issue remaining before the Court is whether Petitioner should be released from

custody. On these unusual facts, none of the exceptions to prudential exhaustion apply.

First, the available administrative remedies provide a genuine opportunity for relief,

in that if the BIA upholds the IJ’s decision, Petitioner will be immediately eligible for

release on bond. As previously discussed, this fact distinguishes the instant matter from

cases in which the only potential administrative relief was an additional bond hearing with

an incorrect burden of proof applied.

Second, Petitioner has made no showing of irreparable harm without immediate

judicial release. In this regard, there is “much authority foreclosing” the argument that

continued detention, standing alone, is insufficient to constitute irreparable harm. Hossain,

2019 WL 5964678, at *5 (quotation omitted); see also Roman v. Decker, No. 20-CV-3752

(JGK), 2020 WL 4273823, at *7 (S.D.N.Y. July 24, 2020) (“The risk of prolonged

detention does not constitute an irreparable injury that excuses the prudential exhaustion

requirement.”); Dembele v. Decker, No. 18-CV-5070 (JPO), 2018 WL 4960234, at *3

(S.D.N.Y. Oct. 9, 2018) (“[I]t is well established that continued detention, standing alone,

is insufficient to qualify as irreparable injury justifying non-exhaustion.” (quotations

omitted)). Moreover, while Petitioner has identified past purported failures to provide

appropriate medical treatment, the record before the Court does not support the conclusion

that those claimed failures exist now or that Petitioner’s health is in immediate danger.

Third, administrative appeal clearly is not futile inasmuch as Petitioner will

immediately be eligible for release without another bond hearing if the IJ’s determination

is sustained on appeal. See Torres v. Decker, No. 18-CV-10026 (VEC), 2018 WL

6649609, at *3 (S.D.N.Y. Dec. 19, 2018) (finding futility exception to prudential

exhaustion requirement not satisfied because “it is . . . possible that Petitioner will get the

relief he really wants—release on bond pending resolution of his removal proceedings—if

his administrative appeal is successful”); cf. Joseph v. Decker, No. 18-CV-2640(RA), 2018

WL 6075067, at *6 (S.D.N.Y. Nov. 21, 2018) (finding futility exception established where

“[t]he two remedies Petitioner seeks in the alternative from this Court—immediate release

without another bond hearing or a supplemental bond hearing with the burden of proof on

the Government—are foreclosed at the BIA based on existing administrative precedent”).

The Court notes that while Petitioner has complained that the amount of bond required by

the IJ is “exorbitant” (Dkt. 19 at 1), he has not indicated that he lacks access to the resources

necessary to pay it.

Finally, while Petitioner has presented a constitutional question, “[m]ere existence

of a constitutional issue . . . does not create an automatic exception to an exhaustion

requirement.” Monterosa v. Decker, No. 1:20-CV-02653-MKV, 2020 WL 1847771, at *5

(S.D.N.Y. Apr. 11, 2020). “[T]he purpose of the exhaustion requirement is to facilitate

administrative resolution of issues that might render judicial review unnecessary.” Roman,

2020 WL 4273823, at *7 (S.D.N.Y. July 24, 2020) (quotation omitted). Accordingly,

“[c]ourts will endeavor to avoid deciding a constitutional issue if the case might be resolved

on a narrower factual basis.” Id. (quoting Monterosa, 2020 WL 1847771, at *5). In other

words, “[b]ecause the petitioner’s claims can be mooted by the possibility of the

petitioner’s being released on bond after exhausting his administrative remedies, the

petitioner has failed to show that the fourth exception to the prudential exhaustion

requirement applies.” Id.; see also Monterosa, 2020 WL 1847771, at *5 (“[T]he

‘constitutional question’ exception to prudential exhaustion does not apply here for the

reasons discussed above—namely, that answering the constitutional questions may be

entirely unnecessary if the BIA were to decide to release Monterosa based on the

evidentiary record.”).

Of course, in the event that the BIA reverses the IJ’s bond decision or Petitioner is

otherwise unable to secure his release on the completion of his administrative proceedings,

Petitioner can bring another habeas petition. See Michalski, 279 F.Supp.3d at 497 (“[I]f

Michalski remains detained as a result of his bond hearing and any appeal to the Board of

Immigration Appeals, he may file another habeas petition.”).

CONCLUSION

For the foregoing reasons, the petition (Dkt. 1) is denied and dismissed without

prejudice. The Clerk of Court is instructed to close this case.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

United States District Judge

Dated: April 21, 2021

Rochester, New York