# Singh Johal v. Garland

> District Court, W.D. New York · November 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10364385

## Case

- **Court:** District Court, W.D. New York
- **Decided:** November 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SARANJIT SINGH JOHAL,1

Petitioner,
20-CV-1315-LJV
v. DECISION & ORDER

MERRICK B. GARLAND,2 United States
Attorney General, et al.,

Respondents.

Saranjit Singh Johal is a citizen of India who has been detained at the Buffalo
Federal Detention Facility (“BFDF”) in Batavia, New York, during his removal
proceedings. On September 16, 2020, Singh 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 BFDF.
Docket Item 1.
On December 16, 2020, this Court granted that petition in part and denied it in
part. Docket Item 8. More specifically, the Court ordered the government to “release
Singh from detention unless a neutral decisionmaker conduct[ed] an individualized
hearing to determine whether his continued detention is justified.” Id. at 17. At that
hearing, the burden of proof was to be on the government to demonstrate “by clear and

1 Although the case caption lists the petitioner’s name as “Johal Saranjit Singh,”
his counsel refers to him as “Saranjit Singh Johal (‘Mr. Singh’).” Docket Item 13-1 at 4.
The Court similarly will refer to the petitioner as Saranjit Singh Johal (“Singh”), and the
Clerk of the Court shall update the caption to read “Saranjit Singh Johal” on the docket.
2 The caption has been updated under Federal Rule of Civil Procedure 25(d).
The Clerk of the Court shall substitute Merrick B. Garland, United States Attorney
General, for William P. Barr, Acting Attorney General, on the docket.
convincing evidence that Singh’s continued detention is necessary to serve a
compelling regulatory purpose, such as minimizing risk of flight or danger to the
community.” Id. The Court further ordered that “[t]he 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.” Id. at
16.
Singh had a bond hearing before an immigration judge (“IJ”) on December 23,
2020. See Docket Item 13-3 at 1. At that hearing, the IJ found that the government had
“met its burden by clear and convincing evidence” of demonstrating that Singh “is a
danger to the community.” Id. at 23-24. The IJ then noted that because she “f[ound]
that [Singh] is a danger to the community,” she “d[id] not have to address whether or not
[he] is a flight risk.” Id. at 24. Nevertheless, the IJ determined that Singh also posed a

flight risk. Id. The IJ then concluded that there were no less-restrictive alternatives to
physical detention that would adequately address the government’s regulatory interest
in detaining Singh. Id. The IJ also issued a written decision reiterating those findings.
Docket Item 9-1.
On March 10, 2021, Singh, now represented by counsel, moved to enforce this
Court’s order of December 16, 2020. Docket Item 13. He claims that the bond hearing
that the government provided did not comport with the Court’s direction. Id.; Docket
Item 13-1. On March 24, 2021, the government responded to Singh’s motion, Docket
Item 14, and on April 14, 2021, Singh replied, Docket Item 18.
For the reasons that follow, the Court grants in part and denies in part Singh’s
motion to enforce. More specifically, the Court determines that the IJ did not appear to
run afoul of this Court’s order in evaluating the danger that Singh posed to the
community. But the IJ did not, as this Court ordered, determine that clear and

convincing evidence established that “no less-restrictive alternatives to physical
detention” could address any compelling regulatory interest in detaining him. Docket
Item 8 at 16. Accordingly, this Court orders that the government shall release Singh
unless, within fourteen days of the date of this order, he receives a bond hearing at
which the government demonstrates that clear and convincing evidence establishes that
“less-restrictive alternatives to physical detention” would not “reasonably address” the
compelling regulatory interest in detaining him, Docket Item 8 at 16, or the IJ clarifies
her decision by finding that “there is clear and convincing evidence that there are no
less-restrictive alternatives to physical detention . . . that also would reasonably address
those same regulatory purposes,” id. In any decision, the IJ also may, but need not,

address whether clear and convincing evidence establishes that Singh poses a risk of
flight.3

3 The Court assumes familiarity with the factual background in this case, which is
described in its decision and order on Singh’s petition. See Docket Item 8 at 2-3.
Accordingly, the Court will refer only to the facts necessary to explain its decision on this
motion.
DISCUSSION

I. EXHAUSTION
Before addressing the merits of Singh’s argument that his bond hearing did not
comport with this Court’s order, the Court must address a threshold jurisdictional issue.
The government argues that this Court cannot consider Singh’s motion because he has
not exhausted his administrative remedies. More specifically, the government argues
that Singh must first obtain a decision from the Board of Immigration Appeals (“BIA”) on
an appeal of the IJ’s bond decision he can seek relief in this Court. See Docket Item 14
at 3-5.
This Court disagrees. Administrative exhaustion is not required when this Court

is deciding only whether the petitioner received the relief that the Court already ordered.
See Blandon v. Barr, 434 F. Supp. 3d 30, 37 (W.D.N.Y. 2020). Moreover, Singh argues
in his motion that he did not receive a constitutionally adequate bond hearing—an issue
that “the BIA does not have jurisdiction to adjudicate.” Id. (quoting United States v.
Gonzalez-Roque, 301 F.3d 39, 48 (2d Cir. 2002)). And the government concedes that
under the doctrine they assert, exhaustion is “required [only] as a prudential matter.”
Docket Item 14 at 4. Under the circumstances, it would make little sense for this Court
to delay deciding Singh’s motion until the BIA decides any appeal.

II. JURISDICTION
The government also argues that Singh “asks this Court to substitute its own
judg[]ment for that of the immigration judge,” which the government contends is a
discretionary decision “protected from review . . . under 28 U.S.C. § 1226(e).” Id. at 5.
This Court agrees that it does not have jurisdiction to review discretionary decisions of
an IJ. But as this Court has previously explained, “a federal court always retains
jurisdiction to enforce its lawful judgments, including habeas judgments, [and] the court
has the authority to see that its judgment is fully effectuated.” Hechavarria v. Whitaker,
358 F. Supp. 3d 227, 325 (W.D.N.Y. 2019) (alteration in original) (quoting Gall v.

Scroggy, 603 F.3d 346, 352 (6th Cir. 2010)). In other words, this Court has jurisdiction
to decide the limited question of whether Singh’s bond hearing complied with its prior
order.
III. SINGH’S BOND HEARING
Singh argues that the IJ failed to comply with two different aspects of this Court’s
prior order. First, Singh contends that the IJ “impermissibly shifted the burden of proof

to Mr. Singh, requiring him to disprove dangerousness, flight risk, and inability to pay
bond.”4 Docket Item 13-1 at 9 (capitalization removed). Second, Singh argues that “the
IJ did not meaningfully consider alternatives to detention at Mr. Singh’s December 23
bond hearing.” Id. at 19.

4 Singh also argues that the IJ “erroneously applied Matter of J.M. Acosta, [27 I.
& N. Dec. 420 (BIA 2018)], [in] finding that Mr. Singh’s conviction is final, even though it
is pending on direct appeal.” Docket Item 13-1 at 11. At the hearing, the IJ determined
that because Singh had not submitted the “brief for [his] criminal appeal,” his conviction
was final for immigration purposes under Matter of J.M. Acosta. Id. at 24. After briefing
was completed on this motion to enforce, the Second Circuit decided that the Matter of
J.M. Acosta scheme—requiring noncitizens to “submit their appellate brief . . . to show
that their challenge is merits-based and . . . rebut the presumption that their conviction[]
[is] final”— was “arbitrary and unreasonable.” Brathwaite v. Garland, 3 F.4th 542, 555
(2d Cir. 2021). So Singh may be correct that his conviction is not yet “final.”
Regardless, Singh’s argument that the IJ’s determination on the finality of his conviction
affected her determination that he posed a flight risk, see Docket Item 13-1 at 11-14, is
moot because this Court finds that the IJ’s conclusion that Singh posed a flight risk did
not comply with this Court’s order for the reasons set forth below.
A. Dangerousness and Risk of Flight
To begin, “it is important to emphasize that the Court’s task is narrow: it is to
determine whether [the government] complied with the Decision and Order, not to
review the hearing evidence de novo and determine whether [Singh] is in fact a flight
risk” or a danger to the community. Apollinaire v. Barr, 2019 WL 4023560, at *3

(W.D.N.Y. Aug. 27, 2019). The question, therefore, is whether the immigration judge
“‘relied upon proof that could not possibly establish by clear and convincing evidence—
as a matter of law—that [Singh] is a danger to the community’ or a flight risk.”
Concepcion v. Barr, 2021 WL 1807870, at *4 (W.D.N.Y. May 6, 2021) (quoting Nguti v.
Sessions, 2017 WL 5891328, at *2 (W.D.N.Y. Nov. 29, 2017)).

1. Risk of Flight
Singh argues that the IJ’s determination that he posed a risk of flight is not
supported by clear and convincing evidence. Docket Item 13-1 at 12-16. Singh also
contends that in finding that his proposed bond—$15,000—could not mitigate that flight
risk, the IJ effectively “placed the burden on Mr. Singh to demonstrate his ability to pay
bond.” Id. at 15 (emphasis removed). The government effectively concedes that the IJ
did not comply with this Court’s order requiring that the government demonstrate by
clear and convincing evidence that Singh posed a flight risk. See Docket Item 14 at 9
n.5 (noting that “[a]dmittedly . . . the immigration judge did not explicitly state that she
found that the [g]overnment had met its burden by a clear and convincing standard that

[Singh] posed a risk of flight,” but arguing that “[t]his is largely immaterial” because the
IJ concluded that Singh “posed a danger to the community”). Because the IJ did not
determine that clear and convincing evidence established Singh’s risk of flight, his
continued detention cannot be justified by the IJ’s finding on this ground.

2. Danger to the Community
At the bond hearing, the IJ offered three reasons why Singh posed a danger to
the community. First, the IJ addressed Singh’s “recen[t]” and “sever[e]” conviction for
“an extremely serious crime”—conspiracy to sell heroin.5 Docket Item 13-3 at 23;
Docket Item 9-1 at 2. The IJ also looked at Singh’s “history of drug abuse,” which
began “back when he was 17 or approximately that age” and “was using marijuana.”
Docket Item 13-3 at 23. And the IJ determined that despite this “history of drug abuse”
and his prior conviction Singh had not “done anything to address his addiction other

than being incarcerated.” Id. at 23-24.
At the hearing, the IJ questioned Singh about his efforts to remain drug-free prior
to his incarceration. Id. at 9-11. Singh testified that he sought inpatient treatment for
his drug use in 2016 before clarifying that this treatment was “just . . . a detox”; he also
said that he resumed using heroin and marijuana and did not seek any further treatment

5 Singh contends that the IJ erred in admitting his pre-sentence investigation
report over his objections that it was obtained in violation of New York state law and that
it contained “inherently unreliable” evidence. Docket Item 13-1 at 11. But “even if it
were proper for the Court to consider the propriety of admitting certain pieces of
evidence during a bond hearing,” see Blandon, 434 F. Supp. 3d at 39 n.3, is it not clear
that the IJ relied on the factual narrative in the report in determining that Singh posed a
danger to the community. The IJ questioned Singh about his prior drug use and his
conviction—that is, facts contained in the report—and did not later mention the report in
her oral or written decision. See Docket Item 13-3; Docket Item 9-1. And Singh does
not specifically argue that the IJ incorrectly relied on any particular facts contained in the
report. Cf. Docket Item 13-1 at 11 (“To the extent that the IJ relied on any evidence
[from the report] in her decision, the admission of and reliance upon the [report] was
improper.” (emphasis added)).
afterward. Id. at 9-10. Singh testified that he continued to use heroin and marijuana
until “some day before” he was taken into custody for his state conviction in early 2018.
Id. at 9. He noted that he spoke to a counselor about his drug use while incarcerated in
state prison in 2018 but that he had not spoken to a doctor or psychiatrist while in
immigration detention.6 Id. at 11. He concluded by testifying that he was willing to take

“any kind of drug program” if he were released. Id. at 21.
Based on Singh’s prior conviction, his history of drug use, and his apparent lack
of rehabilitation prior to incarceration, the IJ determined that the government had
established, by clear and convincing evidence, that Singh posed a danger to the
community. Id. at 23-24. The IJ offered a clear rationale for that: In her written
decision, she stated that Singh “has a long history of drug use that ramped up until his
recent conviction in 2018 for conspiracy to sell heroin.” Docket Item 9-1 at 2. And in
her oral decision, the IJ found that Singh’s conviction was “recen[t]” and “sever[e],” and
concluded that drug trafficking was not a “victimless crime.” Docket Item 13-3 at 23.

Moreover, the IJ noted that Singh’s conviction and history of drug abuse involved
heroin, which the IJ correctly observed was a “particularly insidious drug.” Id.
The IJ also explicitly noted that she “d[id] not rely solely on [Singh’s] conviction”
in evaluating whether he was a danger to the community. Id. Instead, the IJ considered
Singh’s failure to “address his addiction” in any way “other than being incarcerated.” Id.
And in concluding that “[t]here is no evidence of rehabilitation other than [Singh’s]
hopeful words,” Docket Item 9-1 at 2, the IJ did not “shift[] the burden to Mr. Singh” to

6 Singh testified that he had not attended any meetings or counseling while at
BFDF, but he also noted that “[t]here[] [is] no counseling [there] at all.” Docket Item 13-
3 at 11.
disprove dangerousness, Docket Item 13-1 at 8. Indeed, the IJ explicitly noted that “it
was [not Singh’s] burden” to present evidence; that the United States Department of
Homeland Security (“DHS”) “ha[d] met its burden by clear and convincing evidence” to
establish that Singh posed a danger to the community; and that “the record [was]
lacking in any evidence” to indicate otherwise. Docket Item 13-3 at 24.7

Based on all that, it is clear that the IJ did not “rel[y] upon proof that could not
possibly establish by clear and convincing evidence . . . that [Singh] is a danger to the
community”—even if the opposite conclusion could be drawn on Singh’s
dangerousness. Concepcion, 2021 WL 1807870, at *4 (emphasis added) (quoting
Nguti, 2017 WL 5891328, at *2). Therefore, the IJ followed this Court’s direction on that
issue.

B. Alternatives to Detention
But contrary to this Court’s direction, the IJ did not “address . . . whether there is
clear and convincing evidence that there are no less-restrictive alternatives to physical
detention” that would “reasonably address” the government’s interest in detaining Singh.
Docket Item 8 at 16 (emphasis added).
At the outset, the Court notes that it is unclear whether the IJ believed that she
even had to consider alternatives to detention at all after finding that Singh posed a
danger to the community. In her oral decision, the IJ noted that because she had

7 Singh also argues that the “IJ was [] apparently not satisfied with the nature
and/or frequency of Mr. Singh’s past attempts, current success, and future desire to
stay clean and seek further treatment.” Docket Item 13-1 at 7. But this Court cannot
substitute its own view of the evidence for that of the IJ. See Adejola v. Barr, 2020 WL
994577, at *6 (W.D.N.Y. Feb. 14, 2020). And the IJ determined that Singh’s testimony
on this score was belied by his “lifelong history of drug use.” Docket Item 13-3 at 24.
already “found that [Singh] is a danger to the community,” she considered alternatives
to detention only out of an “abundance of caution.” Docket Item 13-3 at 24. That
suggests that the IJ viewed her finding of dangerousness as foreclosing any and all
alternatives to detention. On the other hand, the IJ also reasoned that alternatives to

detention like “an ankle monitor would not help because [Singh] could still easily get
drugs.” Id. So the IJ may have determined that any alternatives to detention could not
adequately address the danger the danger to the community that Singh posed.
Either way, however, the IJ did not determine that clear and convincing evidence
established that alternatives to detention could not address the danger Singh posed to
the community. In her oral decision, the IJ noted only that she “[was] looking at
alternative methods as well” and “needs to consider alternative methods to comply with
the regulatory interests.” Id. And in her written order, the IJ simply stated that
“[a]lternatives to detention would not address [Singh’s] addictions that led him into this
situation,”8 Docket Item 9-1 at 2, without mentioning the standard by which she made

that decision.
What is more, the IJ appeared to disregard some alternatives to detention solely
because she “ha[d] no teeth to order [them].” Docket Item 13-3 at 24. Before
dismissing these alternatives, the IJ did not ask DHS whether it could enforce
alternative conditions of release and, if so, address whether those enforceable
conditions might mitigate the danger that Singh posed to the community. The IJ’s

8 The government does not appear to contend that the IJ found, by clear and
convincing evidence, that alternatives to detention could not adequately address the
government’s compelling regulatory interests. Cf. Docket Item 14 at 10 (“The
immigration judge considered other alternatives to detention as well, but noted that they
would not prevent the harms at issue.” (emphasis added)).
failure to consider these alternatives stands in stark contrast to the many immigrants
across the country whom DHS regularly monitors on conditions of release. See, e.g.,
Hechavarria, 358 F. Supp. 3d at 244 n.13 (collecting cases) (allowing DHS to set
appropriate conditions of release because the agency would be the one to monitor the

petitioner).
The IJ therefore did not find by “clear and convincing evidence that there are no
less-restrictive alternatives to physical detention” that would address the regulatory
interests in detaining Singh. Docket Item 8 at 16 (emphasis added). So the IJ did not
make the necessary findings to justify Singh’s continued detention that this Court
deemed necessary under the Due Process Clause. Id.
Because the IJ failed to comply with this Court’s prior order, the question then
becomes the appropriate remedy. Singh argues that he should be released on
conditions. Docket Item 13-1 at 19. The government contends that this Court “should
remand the case to the immigration judge for clarification or rehearing, rather than order

[Singh’s] immediate release.” Docket Item 14 at 3. Under the circumstances here, the
Court finds that the latter remedy is appropriate.
As set forth above, the IJ considered whether Singh posed a danger to the
community and a risk of flight. And the IJ addressed whether alternatives to detention
could mitigate any danger to the community or risk of flight, even if she foreclosed
certain alternatives because she could not enforce them. Thus, this is not a case where
the IJ blatantly disregarded this Court’s order.9 Cf. Enoh v. Sessions, 2017 WL

9 Because the Court determines that the IJ did not blatantly disregard its prior
order, it does not pass on Singh’s request that the Court “admonish the IJ [to] ensure
future compliance.” Docket Item 18 at 12-13.
2080278, at *8, *11 (W.D.N.Y. May 15, 2017) (releasing the petitioner where the IJ
“chose to rely on general factual background in this Court’s order” and did not “make
any factual findings about exactly what happened” at the court-ordered bond hearing).
Instead, the IJ simply did not explicitly articulate and address the standard of proof

necessary to assess whether Singh posed a risk of flight and whether alternatives to
detention might adequately address the government’s regulatory interests in detaining
Singh.
Accordingly, this Court remands this case to the IJ. In any decision, the IJ should
clarify the evidence and standard of proof supporting her determination that possible
alternatives to detention would not adequately serve the government’s interests.

ORDER
For the reasons explained above, Singh’s motion to enforce, Docket Item 13, is
GRANTED in part and DENIED in part. The government shall release Singh unless,
within fourteen days of the date of this order, he receives a bond hearing at which
the government demonstrates that clear and convincing evidence establishes that “less-

restrictive alternatives to physical detention” would not “reasonably address” the
compelling regulatory interest in detaining him, Docket Item 8 at 16, or the IJ clarifies
her decision by finding that “there is clear and convincing evidence that there are no
less-restrictive alternatives to physical detention . . . that also would reasonably address
those same regulatory purposes,” id. In any decision, the IJ also may, but need not,
address whether clear and convincing evidence establishes that Singh poses a risk of
flight. The government shall file a declaration indicating that it has complied with this
order within twenty-one days of the date of this order.
SO ORDERED.

Dated: November 30, 2021
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364385. Public record. Not legal advice.