# Rosales v. Searls

> District Court, W.D. New York · May 17, 2021

URL: https://www.frixlaw.com/law-library/cases/10363832

## Case

- **Court:** District Court, W.D. New York
- **Decided:** May 17, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10363832

## How later opinions describe it (automated extraction)

- explaining that Congress found that “deportable criminal [noncitizens] who remained in the United States often committed more crimes before being removed” and that “20% of deportable criminal [noncitizens] failed to appear for their removal hearings”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ELVIS JOSE ROSALES ROSALES,

Petitioner,

v. 20-CV-1444-LJV
DECISION & ORDER
JEFFERY SEARLS,
Facility Director, Buffalo Federal
Detention Facility, and

MERRICK GARLAND,1
Attorney General, United States,

Respondents.2

Elvis Jose Rosales Rosales has been detained in the custody of the United
States Department of Homeland Security since March 17, 2020—fourteen months.
Docket Item 4-2 at 18. On October 6, 2020, Rosales Rosales filed a pro se petition for
a writ of habeas corpus under 28 U.S.C. § 2241, challenging the validity of his detention
at the Buffalo Federal Detention Facility (“BFDF”) in Batavia, New York. Docket Item 1.

1 The caption has been updated under Federal Rule of Civil Procedure 25(d).
The Clerk of the Court shall substitute Merrick Garland for William Barr on the docket.

2 In its memorandum of law, the government argues that the only proper
respondent in this matter is Jeffrey Searls, “the person with direct control over [Rosales
Rosales].” Docket Item 7 at 6. “Because resolution of who is the proper respondent will
not affect the disposition of this petition, the Court will not address it further.” Khemlal v.
Shanahan, 2014 WL 5020596, at *2 n.3 (S.D.N.Y. Oct. 8, 2014). It is clear that, at the
very least, Searls “has the immediate custody of the party detained, with the power to
produce the body of such party before the court or judge, [so] that he may be liberated if
no sufficient reason is shown to the contrary.” Rumsfeld v. Padilla, 542 U.S. 426, 435
(2004) (emphasis in original) (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)).
On November 23, 2020, the respondents answered the petition, Docket Items 4, 6; and
on January 4, 2021, Rosales Rosales replied, Docket Item 9.
For the reasons that follow, this Court grants Rosales Rosales’s petition in part.

FACTUAL AND PROCEDURAL BACKGROUND
The following facts, taken from the record, come largely from filings with the
United States Department of Homeland Security (“DHS”), Immigration and Customs

Enforcement (“ICE”).
Rosales Rosales is a native and citizen of Costa Rica. See Docket Item 4-1 at 2.
He last entered the United States on August 17, 2017, id., but he has lived in the United
States since at least June 2015, see Docket Item 4-2 at 9 (noting that Rosales Rosales
lived in New Jersey beginning in June 2015).
On October 15, 2018, Rosales Rosales was arrested after he helped an
undocumented immigrant enter the United States from Canada. Docket Item 4-1 at 2;
see also 4-2 at 19-20. On March 16, 2020, Rosales Rosales was convicted of
“[b]ringing in and harboring certain aliens” under 8 U.S.C. § 1423(a)(2)(A) and

sentenced to time served. Docket Item 4-2 at 27.
On March 17, 2020, Rosales Rosales was held at “the Clinton County Jail to
await immigration proceedings,” id. at 20, and on April 1, 2020, he was transferred to
BFDF, Docket Item 4-1 at 3. In the meantime, on March 27, 2020, DHS issued a
“Notice to Appear,” charging that Rosales Rosales was subject to removal from the
United States under various provisions of the Immigration and Nationality Act (“INA”), 8
U.S.C. §§ 1101-1537. More specifically, DHS charged that Rosales Rosales was
subject to removal under section 1227(a)(2)(A)(iii) for having been convicted of an
aggravated felony “relating to alien smuggling,” see id. § 1101(a)(43)(N). Docket Item
4-2 at 27.
On September 25, 2020, an Immigration Judge (“IJ”) ordered Rosales Rosales
removed from the United States. Docket Item 4-1 at 4. On October 23, 2020, Rosales
Rosales appealed the IJ’s order of removal to the Board of Immigration Appeals (“BIA”).

Id. That appeal remains pending. Id.
DISCUSSION

I. HABEAS PETITION
28 U.S.C. § 2241 “authorizes a district court to grant a writ of habeas corpus
whenever a petitioner is ‘in custody in violation of the laws or treaties of the United
States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C.
§ 2241(c)(3)). The government maintains that Rosales Rosales is validly detained
under 8 U.S.C. § 1226(c) as a noncitizen with pending removal proceedings who has
been convicted of crimes relating to alien smuggling. Docket Item 7 at 5.
Rosales Rosales disagrees on three grounds.3 First, he argues that his
detention for more than six months is greater than the “period reasonably necessary to

secure [his] removal” and that “his removal is not significantly likely to occur in the
reasonably foreseeable future.” Docket Item 1 at 8 (citing Zadvydas v. Davis, 533 U.S.
678, 701 (2001)). Second, he argues that his “prolonged” detention “violates his right to
substantive due process” under the Fifth Amendment to the United States Constitution.

3 Because Rosales Rosales is proceeding pro se, this Court holds his
submissions “to less stringent standards than formal pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519, 520 (1972).
Id. at 7. And third, he argues that his detention without “the opportunity to be heard ‘at a
meaningful time and in a meaningful manner’” violates his right to procedural due
process under the Fifth Amendment. Id. at 6-7.

II. STATUTORY CHALLENGE
Rosales Rosales first argues that his detention for more than six months is
greater than the “period reasonably necessary to secure [his] removal” and that “his
removal is not significantly likely to occur in the reasonably foreseeable future.” Docket
Item 1 at 8. This Court construes that as a challenge to his detention under 8 U.S.C.
§ 1231 as interpreted by the Supreme Court in Zadvydas, 533 U.S. at 701. Therefore,
the Court begins by considering the statutory basis for Rosales Rosales’s detention so

that it can evaluate the section 1231 challenge.
“Broadly speaking, section 1226 governs the detention of immigrants who are not
immediately deportable.” Hechavarria v. Sessions, 891 F.3d 49, 57 (2d Cir. 2018).
Section 1231, on the other hand, “addresses the ‘removal period’ for immigrants facing
deportation.” Id. at 53. “[T]he ‘removal period’ [is] the term used in the statute to
describe the 90-day period following an order of removal during which ‘the Attorney
General shall remove the [noncitizen].’” Id. at 54 (quoting 8 U.S.C. § 1231(a)(1)(A)).
Here, the government and Rosales Rosales seem to agree that Rosales
Rosales’s detention is governed by 8 U.S.C. § 1226(c), not section 1231. See Docket
Item 7 at 6; Docket Item 1 at 3. This Court agrees as well.

Rosales Rosales is not subject to a final order of removal because his appeal of
the IJ’s decision denying relief from removal still is pending before the BIA, Docket Item
4-1 at 4; his detention therefore is governed by 8 U.S.C. § 1226(c), not section 1231.
Because Rosales Rosales is not detained under section 1231(a), this Court rejects his
argument that his detention violates that provision as interpreted by the Supreme Court
in Zadvydas.

III. DUE PROCESS
Rosales Rosales also alleges that his continued detention violates the Due
Process Clause. See Docket Item 1 at 6-7. The Fifth Amendment’s Due Process
Clause forbids the federal government from depriving any “person . . . of . . . liberty . . .
without due process of law.” U.S. Const. amend. V. The Supreme Court “has held that
the Due Process Clause protects individuals against two types of government action.”
United States v. Salerno, 481 U.S. 739, 746 (1987). “So-called ‘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.” Id. (citations
omitted). “When government action depriving a person of life, liberty, or property
survives substantive due process scrutiny, it must still be implemented in a fair manner.”
Id. “This requirement has traditionally been referred to as ‘procedural’ due process.” Id.
“Freedom from imprisonment—from government custody, detention, or other
forms of physical restraint—lies at the heart of the liberty that Clause protects.”
Zadvydas, 533 U.S. at 690. “[G]overnment detention violates that Clause unless the
detention is ordered in a criminal proceeding with adequate procedural protections . . .
or, in certain special and narrow nonpunitive circumstances, . . . where a special

justification, such as harm-threatening mental illness, outweighs the individual’s
constitutionally protected interest in avoiding physical restraint.” Id. (emphasis in
original) (citations omitted). Other than those unique, special, and narrow
circumstances, “[o]nly a jury, acting on proof beyond a reasonable doubt, may take a
person’s liberty. That promise stands as one of the Constitution’s most vital protections
against arbitrary government.” United States v. Haymond, 139 S. Ct. 2369, 2373
(2019).
“[Noncitizens], even [noncitizens] whose presence in this country is unlawful,

have long been recognized as ‘persons’ guaranteed due process of law by the Fifth . . .
Amendment[].” Plyer v. Doe, 457 U.S. 202, 210 (1982); see also Shaughnessey v.
United States ex rel. Mezei, 345 U.S. 206, 212 (1954) (“It is true that [noncitizens] who
have once passed through our gates, even illegally, may be expelled only after
proceedings conforming to traditional standards of fairness encompassed in due
process of law.”). At the same time, Congress has “broad power over naturalization and
immigration, [permitting it to] make[] rules that would be unacceptable if applied to
citizens.” Demore v. Kim, 538 U.S. 510, 521 (2003) (quoting Mathews v. Diaz, 426 U.S.
67, 79-80 (1976)).

A. Substantive Due Process
Rosales Rosales argues that his detention violates his right to substantive due
process. Docket Item 1 at 7. He has been in DHS custody since March 17, 2020—
fourteen months. See Docket Item 4-2 at 18. But this Court cannot say that detention
that long violates due process. See Sanusi v. I.N.S., 100 F. App’x 49, 51 (2d Cir. 2004)
(summary order) (determining that six-year detention did not violate due process).

Indeed, detention under section 1226 may serve the government’s compelling interests
in both “preser[ving] the government’s ability to later carry out its broader responsibilities
over immigration matters,” Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991),
and preventing crime by arrestees who pose a danger to the safety of the community,
see Salerno, 481 U.S. at 749. Although there comes a time when the length of a
noncitizen’s detention pending removal violates due process regardless of the
procedural protections afforded, see Salerno, 481 U.S. at 747 n.4, that time has not yet
come here.

B. Procedural Due Process
Rosales Rosales also challenges the procedural safeguards that apply to his
continued detention. Docket Item 1 at 5-7. The Due Process Clause is not offended by
the mandatory detention of noncitizens for the “brief period necessary for their removal
proceedings,” Demore, 538 U.S. at 513 (emphasis added), but may be violated by

detention beyond that “brief” period, depending on the balance of the individual’s and
the government’s interests, see, e.g., id. at 532 (Kennedy, J., concurring) (“[A] lawful
permanent resident . . . could be entitled to an individualized determination as to his risk
of flight and dangerousness if the continued detention bec[omes] unreasonable or
unjustified.”); see also Landon v. Plasencia, 459 U.S. 21, 34 (1982) (“The constitutional
sufficiency of procedures provided in any situation, of course, varies with the
circumstances.”).
For that reason, this Court “has evaluated procedural due process challenges to
immigration detention with a two-step inquiry.” Hemans, 2019 WL 955353, at *5. “A[t]
the first step, the Court considers whether the [noncitizen’s] detention has been

unreasonably prolonged.” Id. “If it has not, then there is no procedural due process
violation.” Id. “But if it has, the Court proceeds to step two and ‘identifies the specific
dictates of due process’ by considering the Mathews v. Eldridge factors.” Id. (quoting
Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). “If the government has not provided
the procedural safeguards dictated by the Mathews factors to a [noncitizen] subject to
unreasonably prolonged detention, then his continued detention violates procedural due
process.” Id.

1. Rosales Rosales’s Detention
“[W]hen weighing the lawfulness of continued detention of a [noncitizen] under
the Due Process Clause,” several factors determine whether detention is unreasonably
prolonged. Jamal A. v. Whitaker, 2019 WL 549722, at *3 (D. Minn. Jan. 22, 2019). For
example, this Court has considered “(1) the total length of detention to date; (2) the
conditions of detention; (3) delays in the removal proceedings caused by the parties;

and (4) the likelihood that the removal proceedings will result in a final order of
removal.” Hemans, 2019 WL 955353, at *6.
First, and most important, courts consider the length of detention. Rosales
Rosales has been in DHS custody since March 17, 2020—fourteen months. See
Docket Item 4-2 at 18. “As detention continues past a year, courts become extremely
wary of permitting continued custody absent a bond hearing.” Muse v. Sessions, 2018
WL 4466052, at *4 (D. Minn. Sept. 18, 2018) (and cases cited therein). In fact, courts
have found detention even shorter than a year to be unreasonably prolonged as part of
a procedural due process analysis.4

4 See, e.g., Sophia v. Decker, 2020 WL 764279, at *4 (S.D.N.Y. Feb. 14, 2020)
(approximately seven months); Vargas v. Beth, 2019 WL 1320330, at *8 (E.D. Wis. Mar.
22, 2019) (approximately nine-and-a-half months); Cabral v. Decker, 331 F. Supp. 3d
255, 261 (S.D.N.Y. 2018) (over seven months and over nine months by the next
removal-related hearing); Hernandez v. Decker, 2018 WL 3579108, at *1, *12 (S.D.N.Y.
July 25, 2018) (nine months); Sajous v. Decker, 2018 WL 2357266, at *1, *12 (S.D.N.Y.
May 23, 2018) (over eight months); Jarpa v. Mumford, 211 F. Supp. 3d 706, 720 (D.
In Demore, the Supreme Court upheld the constitutionality of section 1226(c),
relying on the “very limited time of . . . detention at stake” and noting that “in the majority
of cases[, section 1226(c) detention] lasts less than the 90 days . . . considered
presumptively valid in Zadvydas.” Demore, 538 U.S. at 529 & n.12; see also id. (“[I]n
85% of the cases in which [noncitizens] are detained pursuant to [section] 1226(c),

removal proceedings are completed in an average time of 47 days and a median of 30
days. In the remaining 15% of cases, in which the [noncitizen] appeals the decision of
the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of
four months, with a median time that is slightly shorter.” (citations omitted)).
Rosales Rosales’s fourteen-month detention is more than triple the four-month
average cited in Demore. The length of Rosales Rosales’s detention therefore supports
his argument that his detention without an individualized bond hearing has been
unreasonably prolonged.
Second, courts consider the conditions of detention. Whether “the facility for the

civil immigration detention is meaningfully different from a penal institution for criminal
detention” factors into the reasonableness of Rosales Rosales’s detention. See Sajous
v. Decker, 2018 WL 2357266, at *11 (S.D.N.Y. May 23, 2018). “The more that the
conditions under which the [noncitizen] is being held resemble penal confinement, the

Md. 2016) (exceeding ten months); see also Sopo v. U.S. Attorney General, 825 F.3d
1199, 1218 (11th Cir. 2016) (“[A] criminal [noncitizen’s] detention without a bond hearing
may often become unreasonable by the one-year mark, depending on the facts of the
case.”). But cf. Minaya-Rodriguez v. Barr, 459 F. Supp. 3d 488, 497 (W.D.N.Y. 2020)
(noting that “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”).
stronger his argument that he is entitled to a bond hearing.” Muse, 2018 WL 4466052,
at *5.
The respondents do not offer any information about the conditions at BFDF, but
Rosales Rosales does. He asserts that the conditions he faces are “repressive and
difficult,” Docket Item 9 at 6-7—in fact, “worse” than in a prison, Docket Item 1 at 9-10.

He says that he is locked in a cell for “eighteen hours daily”; that he has “face[d] ridicule
and harassment” because of his sexual orientation; and that he “has had multiple issues
with the lack[ of and ]availability of timely and focused medical treatment.” Docket Item
9 at 6.
Because of Rosales Rosales’s confinement to a cell and the other conditions he
describes, conditions for him at BFDF certainly “resemble penal confinement.” See
Muse, 2018 WL 4466052, at *5. Moreover, this Court has previously found that
conditions at BFDF are akin to prison conditions, especially for detainees, such as
Rosales Rosales, who have criminal records. See Barrie v. Barr, 2020 WL 1877706, at

*5 (W.D.N.Y. Apr. 15, 2020). This factor therefore weighs in Rosales Rosales’s favor as
well.
Third, courts consider whether the detainee has prolonged his own detention.
The Second Circuit has found that this factor weighs against finding detention
unreasonable when a noncitizen has “substantially prolonged his stay by abusing the
processes provided to him” but not when “an immigrant . . . [has] simply made use of
the statutorily permitted appeals process.” Hechavarria, 891 F.3d at 56 n.6 (first quoting
Nken v. Holder, 556 U.S. 418, 436 (2009)). As the Sixth Circuit has noted, “appeals
and petitions for relief are to be expected as a natural part of the process. A
[noncitizen] who would not normally be subject to indefinite detention cannot be so
detained merely because he seeks to explore avenues of relief that the law makes
available to him.” Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003) (cited in
Hechavarria, 891 F.3d at 56 n.6). Indeed,
although a [noncitizen] may be responsible for seeking relief, he is not
responsible for the amount of time that such determinations may take. The
mere fact that a [noncitizen] has sought relief from deportation does not
authorize the [government] to drag its heels indefinitely in making a
decision. The entire process, not merely the original deportation hearing, is
subject to the constitutional requirement of reasonability.
Id.
The respondents argue that Rosales Rosales is responsible for the delay here.
See Docket Item 7 at 2-3. This Court disagrees.
On April 22, 2020, Rosales Rosales appeared with counsel for a master calendar
hearing. Docket Item 4-1 at 3. Rosales Rosales requested an adjournment so that his
counsel could prepare, “as he had only been hired shortly prior to that date.” Docket
Item 9 at 2. The hearing therefore was adjourned until May 6, 2020, but because
Rosales Rosales’s counsel failed to file the necessary paperwork, it was rescheduled to
May 27, 2020. See Docket Item 4-1 at 3; Docket Item 9 at 2. On May 27, 2020,
Rosales Rosales appeared for the hearing, but his counsel again failed to file the
necessary paperwork. Id. On May 29, 2020, Rosales Rosales then filed an I-589
application seeking withholding of removal and a claim under the Convention Against
Torture. Docket Item 4-1 at 3; Docket Item 4-2 at 6.
On August 13, 2020, an IJ held that Rosales Rosales’s conviction was for a
particularly serious crime, and she denied his request to file for re-adjustment of his
status and for a waiver of inadmissibility. Id.; Docket Item 4-2 at 15. On September 25,
2020, the IJ ordered Rosales Rosales removed. Docket Item 4-1 at 3. On October 23,
2020, Rosales Rosales appealed the IJ’s order of removal to the BIA. Id. at 4.
Although Rosales Rosales may have caused some of the delay in his removal
process, he certainly has not “abus[ed] the processes provided to him.” See
Hechavarria, 891 F.3d at 56 n.6 (quoting Nken, 556 U.S. at 436). Other than the first

continuance, it appears that any other delay was the result of circumstances outside
Rosales Rosales’s control—namely, the repeated failures of his immigration attorney to
file the appropriate paperwork on time.5 But even attributing counsel’s delays to
Rosales Rosales, that still would amount to a delay of only about one month. And even
excluding that time, Rosales Rosales still has been detained for more than a year.
Therefore, the third factor also weighs in Rosales Rosales’s favor.
Finally, courts consider the likelihood that the removal proceedings will result in a
final order of removal. This Court declines to weigh the merits of Rosales Rosales’s
claims currently pending before the BIA.

After balancing all these factors, this Court finds that Rosales Rosales’s
detention has been unreasonably prolonged. Therefore, this Court turns to the second
step of the two-part inquiry to determine what remedy his unreasonably-prolonged
detention demands.
2. The Process Due to Rosales Rosales
“The fundamental requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at 333 (quoting

5 Indeed, one of the grounds for Rosales Rosales’s appeal to the BIA is
ineffective assistance of counsel. Docket Item 4-2 at 2.
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[I]dentification of the specific dictates
of due process generally requires consideration of three distinct factors,” id. at 335,
namely: “(A) the private interest affected; (B) the risk of erroneous deprivation of that
interest through the procedures used; and (C) the governmental interest at stake.”
Nelson v. Colorado, 137 S. Ct. 1249, 1255 (2017). Here, that analysis leads to the

conclusion that Rosales Rosales’s continued detention without an individualized
hearing, at which the government must justify his continued detention by clear and
convincing evidence, fails to “comport with the ‘fundamental fairness’ demanded by the
Due Process Clause.” See Schall v. Martin, 467 U.S. 253, 263 (1984).
Rosales Rosales’s interest in his freedom pending the conclusion of his removal
proceedings deserves great “weight and gravity.” Addington v. Texas, 441 U.S. 418,
427 (1979). Rosales Rosales has an obvious interest in his “[f]reedom from
imprisonment—from government custody, detention, or other forms of physical
restraint.” Zadvydas, 533 U.S. at 690. Moreover, while “[t]he private interest here is not

liberty in the abstract, but liberty in the United States,” Parra v. Perryman, 172 F.3d 954,
958 (7th Cir. 1999) (emphasis in original), Rosales Rosales has not conceded his
deportability, and the resolution of that issue remains pending before the BIA. In fact,
his interest in liberty in the United States must indeed be strong for him to subject
himself to unreasonably-prolonged detention while contesting his deportability. See
Fremont v. Barr, 2019 WL 1471006, at *6 n.7 (W.D.N.Y. Apr. 3, 2019).
And there appears to be good reason for that strong interest. Rosales Rosales
says that his husband of five years is a United States citizen. See Docket Item 9 at 9;
see also Docket Item 4-1 at 7. Rosales Rosales’s husband lives not in Costa Rica,
where the government wishes to send him, but in the United States, where Rosales
Rosales has lived for the last six years. See id. Thus, if Rosales Rosales chose not to
challenge his removal, he would “lose the right to rejoin [his] immediate family, a right
that ranks high among the interests of the individual.” Landon, 459 U.S. at 34.
This Court recognizes that the government’s interest in detaining Rosales

Rosales also may be strong. In fact, Rosales Rosales is detained under 8 U.S.C.
§ 1226(c), which applies to noncitizens who fall “into one of several enumerated
categories involving criminal offenses and terrorist activities.” Jennings, 138 S. Ct. at
837. “[Noncitizens] detained under [that] authority are not entitled to be released under
any circumstances other than those expressly recognized by the statute.”6 Id. at 846.
Thus, in mandating the detention of criminal noncitizens, the statute reflects a
congressional purpose of reducing the risk of flight and danger to the community. See
Demore, 538 U.S. at 518-19 (explaining that Congress found that “deportable criminal
[noncitizens] who remained in the United States often committed more crimes before

being removed” and that “20% of deportable criminal [noncitizens] failed to appear for
their removal hearings”).7 “The government’s interest in preventing crime by arrestees
is both legitimate and compelling.” Salerno, 481 U.S. at 749. And general concerns
about the risk of flight highlight the government’s compelling interest in preserving its

6 The exception from mandatory detention is a “limited authorization for release
for witness-protection purposes,” Jennings, 138 S. Ct. at 846, not applicable here.
7 The Court noted that this number included noncitizens who were released from
custody without an individualized bond hearing. Demore, 538 U.S. at 519 n.4
(“Although the Attorney General had the authority to release these [noncitizens] on
bond, it is not clear that all of the [noncitizens] released were in fact given individualized
bond hearings.” (emphasis in original)).
“ability to later carry out its broader responsibilities over immigration matters.” Doherty,
943 F.2d at 211.

3. The Procedures Used
When Rosales Rosales was taken into custody, a border patrol agent signed a
form indicating that Rosales Rosales would be detained without bond during the
pendency of his removal proceedings. See Docket Item 4-2 at 20. And there is no
indication in the record that Rosales Rosales has been given an opportunity to
challenge that decision. This Court concludes that in light of the procedures used thus
far, there is a significant risk of an erroneous deprivation to Rosales Rosales’s liberty
interests. Moreover, section 1226(c) prohibits the government from offering a detainee

the opportunity to challenge at a hearing whether he is, in fact, a danger or a flight risk.
Jennings, 138 S. Ct. at 846. Now that Rosales Rosales’s detention has become
unreasonably prolonged, due process requires some opportunity to be heard “at a
meaningful time and in a meaningful manner,” see Armstrong, 380 U.S. at 552, to
challenge the statute’s assumptions as applied to him.
An opportunity to be heard in a meaningful manner necessarily requires a
hearing that “satisfies the constitutional minimum of fundamental fairness.” Santosky v.
Kramer, 455 U.S. 745, 756 n.8 (1982) (citation omitted). When the government seeks
the civil detention of a person to effect a compelling regulatory purpose, it must show by
clear and convincing evidence that such detention is necessary to serve that compelling

interest. See Foucha v. Louisiana, 504 U.S. 71, 81-83 (1992); Addington, 441 U.S. at
432-33; see also Santosky, 455 U.S. at 756 (explaining that the “clear and convincing
evidence” standard applies “when the individual interests at stake in a . . . proceeding
are both ‘particularly important’ and ‘more substantial than mere loss of money’”
(quoting Addington, 441 U.S. at 424)). That standard applies equally here.
To sustain the prolonged detention of a noncitizen subject to removal
proceedings based on its general interests in immigration detention, the “[g]overnment
[is] required, in a ‘full-blown adversary hearing,’ to convince a neutral decisionmaker by

clear and convincing evidence that no conditions of release can reasonably assure the
safety of the community or any person,” Foucha, 504 U.S. at 81 (quoting Salerno, 481
U.S. at 751), or ensure that the noncitizen will appear for any future proceeding.8 This
requires consideration of less-restrictive alternatives to detention. See id.; cf. United
States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) (“When a plausible, less
restrictive alternative is offered to a” regulation burdening a constitutional right, “it is the
Government’s obligation to prove that the alternative will be ineffective to achieve its
goals.”).

C. Conclusion
Rosales Rosales’s section 1226(c) detention has been unreasonably prolonged.
Because section 1226(c) does not require an individualized hearing in which the
government must demonstrate by clear and convincing evidence that no conditions of
release can reasonably serve the government’s compelling regulatory interests in
detaining him, it is unconstitutional as applied to him. As such, his continued detention
violates the Due Process Clause.

8 As this Court explained in Hemans, 2019 WL 955353, at *8 n.7, a pretrial
detainee’s right to a speedy trial distinguishes the interests supporting the evidentiary
standard traditionally applicable to flight-risk determinations for pretrial detention
purposes from what is required after an unreasonably-prolonged immigration detention.
Rosales Rosales must be released unless, no later than fourteen calendar days
from the date of this decision and order, the government demonstrates by clear and
convincing evidence before a neutral decisionmaker that Rosales Rosales’s continued
detention is necessary to serve a compelling regulatory purpose—such as preventing
flight or protecting others or the community. The decisionmaker also must consider—

and must address in any decision—whether there is clear and convincing evidence that
there are no less-restrictive alternatives to physical detention, including release on bond
in an amount the petitioner can reasonably afford, with or without conditions, that also
would reasonably address those same regulatory purposes.
ORDER

In light of the above, IT IS HEREBY
ORDERED that within fourteen calendar days of the date of this decision
and order, the government must release Rosales Rosales from detention unless a
neutral decisionmaker conducts an individualized hearing to determine whether his
continued detention is justified; and it is further

ORDERED that at any such hearing, the government has the burden of
demonstrating by clear and convincing evidence that Rosales Rosales’s continued
detention is necessary to serve a compelling regulatory purpose, such as minimizing
risk of flight or danger to the community. Whether detention is necessary to serve a
compelling regulatory purpose requires consideration of whether a less-restrictive
alternative to detention would also address the government’s interests. In other words,
the decisionmaker must find that no condition or combination of conditions of release
can reasonably ensure Rosales Rosales’s appearance and the safety of the
community—that is, even with conditions, Rosales Rosales presents an identified and
articulable risk of flight or a threat to an individual or the community; and it is further
ORDERED that within thirty days of the date of this decision and order, the
government shall file an affidavit certifying compliance with this order. That affidavit
should include a copy of the bond hearing order.

SO ORDERED.

Dated: May 17, 2021
Buffalo, New York

U) lacko
ken J. VILARDO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10363832. Public record. Not legal advice.