El Hor v. Searls

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_________________________________________

ABDELHAK EL HOR,

Petitioner,

-vs- DECISION and ORDER

20-CV-6862 CJS

WILLIAM P. BARR, Attorney General of the United States,

THOMAS E. FEELEY, Field Office Director for Detention

and Removal, Buffalo Field Office, Bureau of Immigration

and Customs Enforcement, DEPARTMENT of

HOMELAND SECURITY,

Respondents.

_________________________________________

INTRODUCTION

Proceeding pro se, Abdelhak El Hor (“Petitioner”) (A 060-339-617) commenced this

habeas proceeding pursuant to 28 U.S.C. § 2241 (“Section 2241”) challenging his

continued detention, as a criminal alien pursuant to 8 U.S.C. § 1226(c), by the United

States Department of Homeland Security (“DHS”), Immigration and Customs Enforcement

(“ICE”), pending the completion of removal proceedings against him. For the reasons

discussed below, the application is denied.

BACKGROUND

Unless otherwise noted, the facts as set forth below are taken from the petition and

administrative record in this action.

1

Petitioner is a native and citizen of Morocco. On or about October 16, 2009,

Petitioner was admitted to the United States and granted the status of a Lawful Permanent

Resident (“LPR”). However, within five years thereafter, Petitioner pled guilty, in New

York State Supreme Court, Queens County, to Assault in the Second Degree in violation

of New York Penal Law § 120.05(1).1 In particular, the charge to which Petitioner pled

guilty arose during an argument with another man, when Petitioner poured a pot of hot

soup on the man, injuring him.

Petitioner was originally sentenced to four months of imprisonment followed by five

years of probation, but he was later convicted of violating probation and sentenced to three

years in prison. The probation violation involved, inter alia, Petitioner shoving his

probation officer.

On February 5, 2015, DHS issued a Notice to Appear charging Petitioner with being

removable pursuant to INA § 237(a)(2)(A)(i) based on a conviction, within five years of

admission, for a crime of moral turpitude for which a sentence of one year or longer could

be imposed. (ECF No. 6-2 at p. 122).

On July 28, 2015, an Immigration Judge terminated the removal proceedings,

finding that Petitioner’s conviction was not final because it was being appealed. (ECF No.

6-2 at pp. 102, 155).

1 New York Penal Law § 120.05(1) states that “A person is guilty of assault in the second degree when:

1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a

third person[.]”

2

On June 12, 2019, the New York State Supreme Court, Appellate Division Second

Department, affirmed Petitioner’s conviction.

On January 3, 2020, DHS lodged an immigration detainer with the New York State

Department of Corrections and Community Supervision (“DOCCS”) concerning Petitioner,

who was still in state custody, finishing his 3-year sentence. (ECF No. 6-2 at p. 158).

Later that same month, Petitioner belatedly filed an appeal in New York State court

of the (almost-completed) three-year sentence that he had received for his violation of

probation. (ECF No. 6 at p. 4).

On March 25, 2020, a DHS officer determined that Petitioner would be detained

pending removal proceedings pursuant to INA § 236. (ECF No. 6-2 at p. 106).

On March 27, 2020, Petitioner was taken into DHS custody, upon the completion of

his state prison sentence. (ECF No. 6 at p. 4).

On April 29, 2020, and May 13, 2020, Petitioner appeared before an Immigration

Judge and requested adjournments to allow him to consult with an attorney. (ECF No. 6 at

p. 4).

On June 18, 2020, Petitioner filed a motion to terminate the removal proceeding

insofar as it was based on INA § 237(a)(2)(A)(iii) (aggravated felony, crime of violence),

arguing that his conviction for Assault in the Second Degree was not an aggravated felony.

DHS opposed that application. On June 30, 2020, the Immigration Judge denied

Petitioner’s application.

3

On July 1, 2020, Petitioner filed a motion to terminate the removal proceedings on

the grounds that his criminal conviction was not final, as he was belatedly appealing his

sentence.

On July 14, 2020, DHS added an additional ground for Petitioner’s removal, based

on INA § 237(a)(2)(A)(i) (conviction, within five years of admission, for a crime of moral

turpitude for which a sentence of one year or longer could be imposed).

On July 15, 2020, the Immigration Judge terminated the removal proceeding based

on the aggravated felony ground, but sustained the charge of removability based on a

conviction for a crime of moral turpitude, namely, Assault in the Second Degree. (ECF No.

6-2 at p. 71). On August 12, 2020, the Immigration Judge found that Petitioner was

removable under INA § 237(a)(2)(A)(i).

On September 2, 2020, the Immigration Judge ordered that Petitioner be removed

to Morocco. (ECF No. 6-2 at p. 3).

Petitioner filed an appeal to the Board of Immigration Appeals (“BIA”), and his

original briefing deadline was November 27, 2020, but Petitioner obtained an extension of

that deadline until December 18, 2020. (ECF No. 6-2 at p. 239).

On October 19, 2020, Petitioner filed the subject action, alleging that he had been

detained since March 27, 2020. Liberally construed, the Petition purports to assert the

following claims: 1) violation of Petitioner’s Fifth Amendment Substantive Due Process

rights based on “indefinite detention” without a sufficient justification; and 2) violation of

Petitioner’s Fifth Amendment Procedural Due Process rights based on his detention for

4

more than six months without a hearing at which the Government was required to prove by

clear and convincing evidence that he is a flight risk or a danger to the community.2 As

for relief, the Petition requests, inter alia, that the Court grant him “release or, at a

minimum, a constitutionally adequate bond hearing.”

On December 16, 2020, DHS asked the BIA to grant summary affirmance of the

removal order. On December 17, 2020, Petitioner filed his appeal brief with the BIA.

Evidently the appeal is still pending, as the Court has not been told otherwise.

On January 13, 2021, the Government filed its response to the subject Petition,

asserting the following arguments: 1) the Petition fails to identify a proper respondent and

should therefore be dismissed; 2) insofar as the Petition is based on Zadvydas v. Davis,

533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (“Zadvydas”), it should be

dismissed since Petitioner’s removal order is on appeal and is therefore not final; 3) any

delay in the removal proceedings has been caused by Petitioner; and 4) Petitioner’s

detention is not unreasonably prolonged so as to cause a due process violation.

On February 18, 2021, Petitioner filed a reply in which he reiterates the arguments

in the Petition and contends that according to Demore v. Kim, 538 U.S. 510, 523, 123 S.

Ct. 1708, 1717, 155 L. Ed. 2d 724 (2003), “detention [under INA § 236(c)] without a bond

2 The Petition also contains references to other types of claims, but these sections of the pleading seems to

have been copied and pasted from other petitions or court decisions that have no relevance to the facts of

Petitioner’s case. For example, as discussed further below, the Petition discusses a claim, but

is not relevant to Petitioner since his order of removal has not yet become final.

5

hearing is unconstitutional when it exceeds six months.”3 Petitioner also asserts that he

is neither a flight risk nor a danger to the community.

The Court has considered the record and the parties’ submissions.

DISCUSSION

Petitioner has filed the subject petition pursuant to 28 U.S.C. § 2241, proceeding

pro se, and consequently the Court has construed his submissions liberally, “to raise the

strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.

1994). “[F]ederal courts have jurisdiction under § 2241 to grant writs of habeas corpus to

aliens when those aliens are ‘in custody in violation of the Constitution or laws or treaties

of the United States.’ 28 U.S.C. § 2241.” Henderson v. I.N.S., 157 F.3d 106, 122 (2d Cir.

1998).

The Proper Respondent

The Government first contends that the Court should dismiss the Petition due to

Petitioner’s failure to sue a proper respondent, stating:

The federal habeas statute mandates that the only proper respondent to a

habeas petition is “the person who has custody over” the petitioner. 28

U.S.C. § 2242. Likewise, the Supreme Court has confirmed “that there is

generally only one proper respondent to a . . . habeas petition.” Rumsfeld v.

Padilla, 542 U.S. 426, 434 (2004). This Court, too, has repeatedly recognized

that the only proper Respondent in an immigration habeas proceeding

relating to detention at the Buffalo Federal Detention Facility is Jeffrey

Searls, the person with direct control over Petitioner’s detention.

3 Reply, ECF No. 10 at pp. 7-8.

6

ECF No. 6 at p. 6. The Government contends that respondents named in the Petition

should be dismissed.

The Court agrees that Searls is the only proper respondent in this action. See,

Gutierrez v. Barr, No. 20-CV-6078-FPG, 2020 WL 2059845, at *3 (W.D.N.Y. Apr. 29,

2020) (“[T]he only proper respondent is Jeffrey Searls, Officer in Charge at the Buffalo

Federal Detention Facility. See ECF No. 5 at 20. 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)).”). Accordingly,

the Court will dismiss the other named respondents in this action and direct the Clerk of

the Court to amend the caption to list Searls as the respondent.

Any Claim Under Zadvydas is Premature

The Government next contends that to the extent Petitioner is asserting a claim

under Zadvydas v. Davis, it should be dismissed as premature since his removal order has

not yet become final.4 The Court again agrees. See, Fremont v. Barr, No. 18-CV-1128,

4 , Respondent’s Memo of Law, ECF No. 6 at p. 10 (“Although Petitioner cites repeatedly in the

Petition, does not applyto his case. , 533 U.S. 678, 699 (2001).

applies to Section 1231cases in which a removal order has become final, the ninety-day removal period has

passed, an additional presumptively reasonable six months has passed, and a petitioner meets his burden to

7

2019 WL 1471006, at *3 (W.D.N.Y. Apr. 3, 2019) (“Fremont now is detained under 8

U.S.C. § 1226(c). Because Fremont is not detained under § 1231(a), this Court rejects

his argument that his detention violates that provision as interpreted by the Supreme Court

in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).”).

Petitioner Is Subject to Mandatory Detention Under the Relevant Statute

Respondent maintains, and Petitioner has not disputed, that Petitioner’s continued

detention is required by statute, namely, 8 U.S.C. § 1226(c). In this regard, 8 U.S.C. §

1226(c)(1)(C) states in pertinent part that “[t]he Attorney General shall take into custody

any alien who-- . . . (C) is deportable under section 1227(a)(2)(A)(i) of this title on the

basis of an offense for which the alien has been sentence[d] to a term of imprisonment of

at least 1 year[.]” Further, 8 U.S.C. § 1227(a)(2)(A)(i) states: “Any alien who-- (I) is

convicted of a crime involving moral turpitude committed within five years (or 10 years in

the case of an alien provided lawful permanent resident status under section 1255(j) of this

title) after the date of admission, and (II) is convicted of a crime for which a sentence of

one year or longer may be imposed, is deportable.”

Here, there is no dispute that within five years of his admission to the U.S.,

Petitioner was convicted, upon his plea of guilty, to Assault in the Second Degree, a crime

for which a sentence of greater than one year can be imposed. In particular, Petitioner was

show an insufficient likelihood of removal. Because Petitioner’s case is on appeal to the BIA, his removal

order is not final. does not apply and cannot form the basis for a due process claim.”).

8

convicted of violating Penal Law § 120.05(1), intentionally causing serious injury to

another. Petitioner does not argue in this action that he was not convicted of a crime of

moral turpitude, and it appears that a violation of Penal Law § 120.05(1) is such a crime.

See, e.g., Singh v. U.S. Dep't of Homeland Sec., 526 F.3d 72, 79 (2d Cir. 2008) (“Here,

the IJ relied upon three documents in evidence to conclude that Singh had been convicted

of second degree assault under N.Y.P.L. § 120.05(1)—a crime that Singh does not

challenge here as being one of moral turpitude for purposes of his removal proceedings.”).

Consequently, Petitioner is properly subject to mandatory detention under 8 U.S.C. §

1226(c) pending the completion of removal proceedings.

Petitioner’s Substantive Due Process Claim Lacks Merit

Petitioner contends that his substantive due process rights are being violated since

he is subject to “indefinite detention” without a sufficient justification. However, the Court

disagrees.

“[D]etention during deportation proceedings [i]s a constitutionally valid aspect of the

deportation process.” Demore v. Kim, 538 U.S. at 523, 123 S. Ct. at 1717 (“Demore”).

The Supreme Court has long held that “the Government may constitutionally detain

deportable aliens during the limited period necessary for their removal proceedings.” Id.

This includes detention of lawful permanent resident aliens (“LPRs”). See, id., 538 U.S. at

513, 123 S. Ct. at 1712 (The alien, Kim, was a lawful permanent resident). In Demore,

the Supreme Court noted that, in many cases, detention pending removal lasts only a few

months. However, the Court indicated that longer detention may occur, and is still

9

acceptable, where the alien requests continuances of removal proceedings. See, id., 538

U.S. at 530–31, 123 S. Ct. at 1721 (“[R]espondent was detained for somewhat longer than

the average—spending six months in INS custody prior to the District Court's order

granting habeas relief, but respondent himself had requested a continuance of his removal

hearing.”) (footnote omitted).

A substantive due process violation may occur where an alien who has been

detained pending removal can establish that his removal is not reasonably foreseeable.

See, Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003) (Observing that in Zadvydas, “[i]n

order to save § 241 from unconstitutionality, the Supreme Court held that “once removal is

no longer reasonably foreseeable, continued detention is no longer authorized by statute.

. . . Under Zadvydas, then, detention of an alien ‘once removal is no longer reasonably

foreseeable’ not only violates § 241, it also violates the Due Process Clause.”). However,

there is no due process violation where removal remains reasonably foreseeable. See, id.

(“Wang's due process rights are not jeopardized by his continued detention as long as his

removal remains reasonably foreseeable.”).

In the instant case, Petitioner has not made any showing that his removal is unlikely

to occur in the near future. To the contrary, as already discussed, Petitioner was

admittedly convicted of crime that appears to constitute a crime of moral turpitude, and, if

the BIA upholds the Immigration Judge’s determination on that point, Petitioner has not

identified any obstacles to his removal, other than any continued legal challenges that he

may assert. Petitioner’s detention is not indefinite or potentially permanent; rather it will

10

end once his removal proceedings are complete. Although Petitioner’s removal

proceedings have been going on for more than a year now, that fact, without more, does

not result in a substantive due process violation. See, e.g., Beqir v. Clark, 220 F. App'x

469, 471 (9th Cir. 2007) (“Krasniqi has made no showing that his removal is not practically

attainable. While his detention has been lengthy, its length is attributable to the

administrative and judicial processes. Moreover, his detention has a definite termination

point. Upon completion of judicial review of his petition, our stay of the removal order will

be lifted. Thus, Krasniqi's detention meets substantive due process requirements.”); see

also, Perez v. Aviles, 188 F. Supp. 3d 328, 332–33 (S.D.N.Y. 2016) (“Perez's detention

has not been arbitrary or unreasonable. While Perez's detention has been lengthy, there is

no indication of an ‘unreasonable delay’ by DHS in pursuing or completing Perez's

removal. Rather, the length of Perez's detention has largely been due to his own

appeals. Although Perez has acted within his rights in challenging his removal orders, he

may not rely on the extra time resulting therefrom to claim that his prolonged detention

violates substantive due process.”) (citations omitted).

Consequently, Petitioner’s substantive due process claim lacks merit and is denied.

Petitioner’s Procedural Due Process Claim Lacks Merit

The remaining question is whether Petitioner’s detention, since March 27, 2020,

without a bond hearing, violates his procedural due process rights.5 Recently, another

5 As mentioned earlier, Petitioner maintains that his detention since March 2020, while he appeals the IJ’s

11

judge of this District provided a comprehensive description of the current state of the law in

this Circuit concerning as-applied procedural due process challenges under 8 U.S.C. §

1226(c) following the Supreme Court’s ruling in Jennings:

[Prior to the Supreme Court’s decision in Jennings,] the Ninth Circuit required

bond hearings to be held for aliens detained pursuant to 8 U.S.C. § 1226(c)

and 8 U.S.C. § 1225(b), as a matter of statutory interpretation. See

Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013). Moreover, the

Second Circuit had adopted the Ninth Circuit's approach—at least as it

pertained to aliens detained pursuant to § 1226(c)—and imposed a bright-

line rule that those alien detainees be afforded a bond hearing after six

months of immigration detention. See Lora v. Shanahan, 804 F.3d 601, 616

(2d Cir. 2015) (“[I]n order to avoid the constitutional concerns raised by

indefinite detention, an immigrant detained pursuant to section 1226(c) must

be afforded a bail hearing before an immigration judge within six months of

his or her detention.”), cert. granted, judgment vacated, ––– U.S. ––––, 138

S. Ct. 1260, 200 L.Ed.2d 415 (2018).

***

Jennings held that § 1225(b) does not contain an implicit six-month time limit

at which point a bond hearing must be held, thus eliminating the statutory six-

month bright-line rule formulated in Rodriguez and adopted by Lora. 138 S.

Ct. at 844. As a result, the Supreme Court subsequently granted certiorari in

Lora, vacated the judgment, and remanded the case for “further

consideration” in light of its decision in Jennings. Shanahan v. Lora, ––– U.S.

order of removal, and without a bond hearing, violates his rights to substantive due process and procedural

due process under the Fifth Amendment to the U.S. Constitution. The Petition does not make any assertions

about the conditions of Petitioner’s confinement at the BFDF, nor does it purport to argue the likelihood of

him winning his appeal. Rather, the Petition simply expresses the belief that once mandatory detention

under 8 U.S.C. § 1226(c) exceeds six months in duration, it becomes “indefinite,” thereby violating due

process and entitling him to additional procedural protections, namely a hearing at which the Government

must show by clear and convincing evidence that he is a flight risk or a danger to the community. See,

Petition at ¶ ¶ 6, 8.

12

––––, 138 S. Ct. 1260, 200 L.Ed.2d 415 (2018). On remand, the Second

Circuit dismissed the case as moot because the petitioner in that matter had

been granted a cancellation of removal. See Lora v. Shanahan, 719 F. App'x

79, 80 (2d Cir. 2018).

The Second Circuit has not addressed, post-Jennings and post-Lora, the

standard to be utilized by courts in addressing procedural due process claims

for aliens detained in the immigrant habeas context. However, the

overwhelming majority of district courts within the Circuit to have addressed

the issue in the context of 8 U.S.C. § 1226(c)—pertaining to the detention of

criminal aliens—have adopted a case-by-case approach where “courts

examine each individual's detention circumstances to determine whether it

has become ‘unreasonable or unjustified.’” Cabral v. Decker, 331 F. Supp. 3d

255, 261 (S.D.N.Y. 2018) (quoting Demore v. Kim, 538 U.S. 510, 532, 123

S.Ct. 1708, 155 L.Ed.2d 724 (2003)). The case-by-case approach is an “as-

applied, fact-based analysis ... derived from the Supreme Court's decisions

in [Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653

(2001)] and Demore.” Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL

2357266, at *10 (S.D.N.Y. May 23, 2018); see Gomes Herbert v. Decker, No.

19-CV-760 (JPO), 2019 WL 1434272, at *2 (S.D.N.Y. Apr. 1, 2019) (noting

that the Sajous framework has been “overwhelmingly adopted” in the

Southern District of New York (quotation omitted)); Dukuray v. Decker, No.

18 CV 2898 (VB), 2018 WL 5292130, at *3 (S.D.N.Y. Oct. 25, 2018) (same);

c.f. Hechavarria v. Sessions, No. 15-CV-1058, 2018 WL 5776421, at *7-9

(W.D.N.Y. Nov. 2, 2018) (utilizing both a multi-factor test and the traditional

procedural due process analysis articulated in Mathews v. Eldridge, 424 U.S.

319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)), enforcement granted sub nom.

Hechavarria v. Whitaker, 358 F. Supp. 3d 227 (W.D.N.Y. 2019); Joseph v.

Decker, No. 18-CV-2640(RA), 2018 WL 6075067, at *10 n.7 (S.D.N.Y. Nov.

21, 2018) (concluding that “[t]he Mathews test is consistent with the

approach of ... considering immigration-specific factors for the procedural

due process analysis,” and the majority of courts in this Circuit seem to have

adopted the fact-based inquiry approach), appeal withdrawn, No. 19-245,

2019 WL 3334802 (2d Cir. May 1, 2019).

The factors set forth by district courts in this Circuit for a court to consider in

13

determining whether an alien's length of detention has become unreasonable

or unjustified in the § 1226(c) context can be summed up as follows:

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

responsible for the delay; (3) 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.

Cabral, 331 F. Supp. 3d at 261. These factors require consideration of

multiple variables in determining whether a detainee has been held for an

unreasonably lengthy period of time. While “detention that has lasted longer

than six months is more likely to be ‘unreasonable,’ and thus contrary to due

process, than detention of less than six months,” Sajous, 2018 WL 2357266,

at *10, “the sheer length of the proceedings is not alone determinative of

reasonableness,” Vallejo v. Decker, No. 18-CV-5649 (JMF), 2018 WL

3738947, at *3 (S.D.N.Y. Aug. 7, 2018) (quoting Young v. Aviles, No. 15-CV-

4545 (JMF), 2015 WL 4579204, at *1 (S.D.N.Y. July 29, 2015)), appeal

withdrawn, No. 18-2881, 2019 WL 1503029 (2d Cir. Mar. 25, 2019). For

example, while “‘aliens should not be punished for pursuing avenues of relief

and appeals[,]’ ... evidence of bad faith delays may cut against them.”

Hernandez v. Decker, No. 18-CV-5026 (ALC), 2018 WL 3579108, at *7

(S.D.N.Y. July 25, 2018) (first alteration in original) (quoting Sopo v. U.S.

Attorney Gen., 825 F.3d 1199, 1218 (11th Cir. 2016), vacated, 890 F.3d 952

(11th Cir. 2018)), appeal withdrawn, No. 18-2824, 2019 WL 1377025 (2d Cir.

Feb. 5, 2019).

Abdi v. McAleenan, 405 F. Supp. 3d 467, 475–77 (W.D.N.Y. 2019) (Wolford, J.).

As the foregoing discussion indicates, the question now before this Court is

whether, in light of the factors set forth above, Petitioner’s continued detention under §

1226(c) without a bond hearing has become “unreasonable or unjustified,” such that it

14

violates his right to procedural due process. The analysis must start, however, with the

recognition that in general the detention of criminal aliens like Petitioner, without a bond

hearing, for the entire period of their removal proceedings does not violate due process.

See, Demore, 538 U.S. at 531, 123 S.Ct. at 1721-1722 (“Detention during removal

proceedings is a constitutionally permissible part of that process.”).

As it has been interpreted, Demore merely leaves the door open to as-applied

challenges to continued detention where the detention has truly become unreasonable or

unjustified.6 It may be true that some “judges in this district have routinely held that . . .

prolonged mandatory detention [of criminal aliens] pending removal proceedings, without a

bond hearing, ‘will – at some point – violate the right to due process.’” Yusuf v. Edwards,

No. 18CV3605GBDBCM, 2019 WL 4198798, at *7 (S.D.N.Y. July 2, 2019) (collecting

cases). However, this Court does not agree with the idea that such mandatory detention

will inevitably become unreasonable or unjustified after a certain amount of time,7 since it

is contrary to Demore.8 Provided that removal proceedings are progressing toward

6 , No. 5:19-CV-51, 2020 WL 1042293, at *6 (S.D. Ga. Jan. 29, 2020) (“In ,

the United States Supreme Court held that § 1226(c) does not—on its face—violate the due process rights of

criminal aliens who are detained for the limited period of their removal proceedings. However, the Court left

open the possibility of as-applied procedural due process challenges to § 1226(c) detention, where continued

detention becomes unreasonable or unjustified. . at 531–33 (Kennedy, J., concurring)”), report and

recommendation adopted, No. 5:19-CV-51, 2020 WL 1046796 (S.D. Ga. Mar. 3, 2020).

7 The notion that such detention will violate due process “at some point” is a reference to the passage of

time, primarily.

8 Although the Supreme Court in discussed the average length of time that removal proceedings

15

completion, even if slowly, continued mandatory detention without a bond hearing does not

violate due process unless the detention, beyond the fact of the delay, has become

unreasonable or unjustified on the Government’s part.9

Under the particular facts and circumstances of this action, the Court finds that

Petitioner’s continued detention without a hearing does not violate his procedural due

process rights. According to Demore, Petitioner’s detention is generally unobjectionable

from a due process standpoint, and nothing about the particulars of his case make such

detention unreasonable or unjustified. Assuming arguendo that the so-called Sajous

factors are the appropriate ones to apply here, the only factor which weighs in Petitioner’s

favor is the length of time that he has been detained pending removal proceedings – a

year.10 However, it does not appear to the Court that there has been any notable “delays”

were then taking in the year 2003, it did not suggest that removal proceedings taking longer than that would

result in due process violations. It is a mistake, in the Court’s view, to use that discussion as a yardstick for

determining a due process violation. , No. 18CV3605GBDBCM, 2019 WL 4198798,

at *8 (S.D.N.Y. July 2, 2019) (“The first and “most important” factor, 2018 WL 2357266, at *10, weighs

heavily in favor of granting the petition here. Yusuf has now been continuously detained for almost sixteen

months – well beyond the “brief period” (averaging “about five months” when the alien “chooses to appeal”)

deemed reasonable in , 538 U.S. at 530, and longer than in most of the post- cases cited

above.”). The point of that discussion in was not to set a particular outer limit for such detention,

but to emphasize that detention pending removal proceedings, unlike the detention found to be

unconstitutional in , has a “definite termination point” and is therefore neither “indefinite” nor

“potentially permanent.” , 538 U.S. at 529, 123 S. Ct. at 1720.

9Volume-related litigation delays are a regrettable fact of life, and do not entitle an otherwise detainable

criminal alien to gain release pending removal proceedings.

10 This does not exceed the period of incarceration that Petitioner served for the crimes for which the IJ

16

in the removal proceedings, nor has Petitioner alleged that there has been. Moreover, to

the extent that the removal proceedings have been “delayed,” Petitioner is the only party to

have requested adjournments or extensions of time.

Continuing with the Sajous factors, neither party has devoted argument to whether

the conditions of confinement at the Buffalo Federal Detention Facility in Batavia, New

York, are significantly better than, worse than, or the same as, those at a penal institution.

Additionally, Petitioner’s crime of conviction involved the violent act of pouring hot soup on

someone.11 And finally, Petitioner’s detention under § 1226(c) appears to be nearing its

conclusion, since he has already been ordered removed, and all that remains is the

completion of his appeal process.

Having considered all of the various facts and circumstances discussed above, the

Court finds that Petitioner’s procedural due process claim lacks merit, since he has not

shown that his continued detention as a criminal alien pending his removal proceedings is

either so unreasonable or unjustified as to entitle him to a hearing, at which the

Government must prove by clear and convincing evidence that he is either a flight risk or a

danger to the community.

found him to be removable, which was more than three years.

11 After receiving a four-month jail sentence for this act, Petitioner was re-sentenced to three years in prison

for, among other things, shoving his probation officer.

17

CONCLUSION

The habeas petition is denied, and this action is dismissed. The Clerk is directed

to amend the caption to list “JEFFREY SEARLS, in his official capacity as Acting Assistant

Field Office Director and Administrator of the Buffalo Federal Detention Facility,” as the

sole respondent to this action and to dismiss the other named respondents. The Court

hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Decision

and Order would not be taken in good faith and leave to appeal to the Court of Appeals as

a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further

requests to proceed on appeal in forma pauperis should be directed on motion to the

United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the

Federal Rules of Appellate Procedure.

So Ordered.

Dated: Rochester, New York

April 15, 2021

ENTER:

/s/ Charles J. Siragusa

CHARLES J. SIRAGUSA

United States District Judge

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