“[R]espondent is entitled to judgment since it is clear that [Petitioner’s] continued detention is of his own making. He holds the keys to his release from custody by taking reasonable steps to obtain the necessary travel documents for his return to Jamaica.”
How later courts described this case
- “[R]espondent is entitled to judgment since it is clear that [Petitioner’s] continued detention is of his own making. He holds the keys to his release from custody by taking reasonable steps to obtain the necessary travel documents for his return to Jamaica.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HOWARD BRYAN, also known as,
PAUL SMITH,
Petitioner, 21-CV-6288-FPG
v.
DECISION AND ORDER
JEFFREY SEARLS, Facility Director,
Buffalo Federal Detention Facility,
Respondents.
INTRODUCTION
Petitioner Howard Bryan, a.k.a. Paul Smith, brought this pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241, challenging his continued detention at the Buffalo Federal
Detention Facility. ECF No. 1. Respondent Jeffrey Searls is the alleged custodian of Petitioner.
Responded filed a response to the petition on June 2, 2021.1 ECF No. 4. The Court’s scheduling
order, ECF No. 2, provided Petitioner with 25 days to reply to Respondent’s response but no reply
was received.
At the request of the Court, Respondent filed updated briefing on December 21, 2021. ECF
No. 10. Petitioner was given until January 26, 2022, to respond to that briefing but, to date, no
response or request for additional time to file has been received.
In his response and supplemental briefing, Respondent asserts that Petitioner has been
thwarting his removal such that his removal period should be tolled and his petition should be
1 Respondent’s response, which attaches signed declarations and other documentary evidence, addresses the merits of
the petition, but also purportedly seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). See generally
ECF No. 4. Accordingly, his motion is denied as moot. See Singh v. Barr, No. 19-CV-732, 2019 WL 4415152, at *2
n.1 (W.D.N.Y. Sept. 16, 2019).
denied. ECF No. 4-3 at 2, 7-9; ECF No. 10 at 1. For the reasons set forth below, the Petition is
DENIED WITHOUT PREJUDICE.
BACKGROUND
The following facts are drawn from the submissions of Petitioner and Respondent and are
undisputed unless otherwise indicated. Petitioner was born in, and is a citizen of, Jamaica. In
1988, he first arrived in the United States at 21 years old using a fraudulent passport. In April
1996, Petitioner was convicted of criminal possession of a loaded firearm and sentenced to seven
years’ imprisonment. In June 1996, Petitioner was convicted of “bail jumping” and sentenced to
one year of imprisonment.
In August 1996, Petitioner first encountered the Immigration and Naturalization Service
while in custody at Livingston Correctional Facility.2 In October 1996, Petitioner was convicted
of murder in Kings County Supreme Court and sentenced to life in prison. In November 1996,
Petitioner was served with a Form I-221 Order to Show Cause which charged him with being
removable pursuant to the Immigration and Nationality Act §§ 241(a)(1)(A) and 241(a)(2)(C).
In June 1997, an immigration judge ordered Petitioner removed from the United States.
Petitioner appealed that order in July 1997. The Board of Immigration Appeals dismissed the
appeal on December 18, 1997.
Petitioner served his sentence in New York State custody until, on December 24, 2020,
Immigration and Customs Enforcement (“ICE”) took custody of Petitioner following his release.
On January 5, 2021, a Warrant of Removal/Deportation was issued for Petitioner. On January 6,
2021, Petitioner informed ICE Deportation Officer Nicole Ballistrea that his real name is “Rupert
2 INS is a legacy agency to Immigration and Customs Enforcement.
Bryan,” despite his use of the name “Howard Bryan.”3 After learning this information, Ballistrea
contacted the ICE officials who handle removals to Jamaica in an attempt to obtain a birth
certificate for Petitioner—which is required in order for travel documents to issue from Jamacia.
In his petition, Petitioner asserts that he has truthfully provided his “correct name, date of birth as
well as his mother’s details.” See ECF No. 1 at 2.
On January 7, 2021, Petitioner was served with a “Warning for Failure to Depart,” which
“advis[ed] him of his obligation to depart from the United States, and further instruct[ed] him that
pursuant to Immigration and Nationality Act § 241(a)(1)(C) his statutory removal period may be
extended if he refused to make applications in good faith for travel documents or other documents
necessary for his removal, or if he conspired or acted to prevent his removal.” Petitioner failed to
sign this warning. At that time, Petitioner was also issued an “Instruction Sheet to Detainee
Regarding Requirement to Assist in Removal,” which advised him of his obligation to assist in
obtaining the documents required for his removal. Petitioner was also sent a “Notice to Alien of
File Custody Review,” which indicated that his detention would be reviewed for consideration of
whether he would be considered for release on an Order of Supervision.
On February 10, 2021, a representative of the Jamaican Consulate interviewed Petitioner.
At that time, Petitioner was served with another Warning—which he again refused to sign—and
another Instruction Sheet, which he also refused to sign. On February 12, 2021, DHS sent a
renewed request to the Jamaican Government for Petitioner’s birth certificate. In response, the
Jamaican Embassy requested additional photographs of the Petitioner. Petitioner informed DHS
that he would speak with his mother and sister about his birth certificate and about obtaining
3 Ballistrea is a Deportation Officer at the Buffalo Federal Detention Facility and submitted two signed declarations
to the Court. ECF No. 4-1; ECF No. 10 at 3-4.
additional photographs. On February 16, 2021, additional photographs of Petitioner were sent to
the Jamaican Embassy.
On March 18, 2021, Petitioner was issued a third Warning and another Instruction Sheet .
This time, Petitioner wrote the following on the signature line for each document: “Without
Prejudice UCC I-308; I-303.” That same day, ICE received a packet of documents from Petitioner
which did not include the birth certificate he stated he would obtain from family. On March 26,
2021, Petitioner was informed that ICE had reviewed his custodial status and determined that he
would not be released under an Order of Supervision. Specifically, ICE had determined that
Petitioner was a danger to the community based on his criminal history, which included a murder
conviction.
In addition to the name “Howard Bryan,” Petitioner has at least two other aliases and ICE
remains unsure which, if any, of the three names is Petitioner’s true legal name. Petitioner was
interviewed by a Jamaican official but refused to answer questions that would aid Jamaica in
uncovering his legal name and obtaining a travel document for his removal. In addition,
Respondent claims that Petitioner has instructed family members not to cooperate with officials
inquiring about his nationality or identity. See ECF No. 4-3 at 9; ECF No. 10 at 4. Despite
undertaking a genealogical investigation beginning in April 2021, Jamaican officials have been
unable to identify the Petitioner or locate a birth certificate. On June 25, 2021, DHS served
Petitioner with a Notice of Failure to Comply Pursuant to 8 C.F.R. § 241.4(g)(1)(ii). Since that
time, ICE has continued to work to verify Petitioner’s identity.
DISCUSSION
I. Applicable Statute
Respondent argues that Petitioner has acted to prevent his removal, such that his removal
period should be extended pursuant to 8 U.S.C. § 1231(a)(1)(C) and the petition denied See ECF
No. 4-3 at 7-9; ECF No. 10. Respondent asserts that Petitioner “had been providing false
information through January 6, 2021”; “has not taken affirmative actions to obtain a visa or
passport or birth certificate in his true name”; has “refused to answer questions that would aid the
country of Jamaica in ascertaining [his] identity and obtaining a travel document for his removal”;
and “has been in contact with family members and has advised them not to cooperate with any
officials inquiring about his nationality or identity.” ECF No. 4-3 at 9; ECF No. 10 at 4.
The Immigration and Nationality Act (the “INA”) authorizes the detention of aliens
pending removal. Section 1231 of the INA addresses detention of “immigrants in the ‘removal
period,’ 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 alien.’” Hechavarria v. Sessions, 891 F.3d
49, 54 (2d Cir. 2018). The removal period begins “on the latest of the following”: (1) “[t]he date
the order of removal becomes administratively final”; (2) “[i]f the removal order is judicially
reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final order”;
and (3) “[i]f the alien is detained or confined (except under an immigration process), the date the
alien is released from detention or confinement.” 8 U.S.C. § 1231(a)(1)(B).
Notwithstanding the statute’s time constraints for removal, under subsection (a)(1)(C), “the
removal period may be suspended if an alien fails or refuses to make application in good faith for
travel documents necessary to effect his removal and departure.” Leslie v. Herrion, 677 F.Supp.2d
651, 653 (W.D.N.Y. 2010). Section 1231(a)(1)(C) provides the following:
The removal period shall be extended beyond a period of 90 days and the alien may
remain in detention during such extended period if the alien fails or refuses to make
timely application in good faith for travel or other documents necessary to the
alien’s departure or conspires or acts to prevent the alien’s removal subject to an
order of removal.
8 U.S.C. § 1231(a)(1)(C).
II. Relief Sought
Petitioner asserts that: (1) his continued detention is not authorized by the INA and/or
violates the Fifth Amendment; (2) he is entitled to release under an order of supervision; (3)
continued detention without a hearing violates procedural due process; and (4) he is entitled to an
immediate hearing before an immigration. See ECF No. 1 at 12. In response, Respondent asserts
that Petitioner’s removal period should be tolled and that Petitioner has failed to meet his burden
to show that there is no significant likelihood of his removal in the reasonably foreseeable future.
ECF No. 4-3 at 7-11. Respondent further asserts that Petitioner’s continued detention is neither
contrary to regulations nor unconstitutional and his requests for release should be stricken. Id. at
11-12.
A. Extension of Removal Period Under Section 1231(a)(1)(C)
Petitioner’s continued detention is authorized by the INA. In determining whether aliens
have satisfied their obligations under § 1231(a)(1)(C), courts consider the following:
whether they have undertaken overt actions to thwart removal, whether they can or
have produced affidavits from friends and family to support their claims of
nationality, whether they have requested travel documents from the country of
intended removal, whether they have attempted to contact the country of intended
removal’s consulate, and/or whether they can or have provided the [DHS] with
requested documents.
Jiang v. Holder, No. 15–CV–48, 2015 WL 3649739 (W.D.N.Y. June 11, 2015).
Here, Petitioner’s 90-day statutory removal period began on December 24, 2020, when he
was received into Department of Homeland Security (“DHS”) custody from the New York State
Department of Corrections and Community Supervision. See ECF No. 4-1 at 2; ECF No. 4-3 at
9; 8 U.S.C. § 1231(a)(1)(B)(iii). As explained above, Petitioner has failed to cooperate with
Respondent’s requests to assist in obtaining the necessary travel documents for his removal. DHS
records indicate that he told officials that he would work with his family to obtain a birth certificate,
while at the same time instructing family members not to comply with requests regarding his
nationality or identity. ECF No. 4-3 at 2; ECF No 10 at 4. Additionally, Petitioner has been served
three times with a Warning for Failure to Depart and an Instruction Sheet to Detainee Regarding
Requirement to Assist in Removal advising him of his obligation to assist in his removal and
informed of the consequences for failing to do so. ECF No. 4-1 at 3-6. He has also been served
with a Notice of Failure to Comply and remains in “Failure to Comply” status. ECF No. 10 at 3-
4.
Based on these facts, Petitioner’s removal period is extended until such time as he can
demonstrate good faith compliance with the obligations under § 1231(a)(1)(C) and related
regulations. Indeed, other courts in this Circuit have reached the same conclusion on similar sets
of facts. See Jiang, 2015 WL 3649739, at *4 (finding petitioner had failed to show good faith
compliance with the obligations of § 1231(a)(1)(C) where records indicated that he had “failed to
provide the information and documentation requested by the Chinese Consulate in order to
complete the process for issuance of travel documents”; had “been served . . . with several
Warnings for Failure to Depart, advising him of his obligation to assist in his removal and comply
with the process, and warned of the consequences for failing to do so”; and was in Failure to
Comply status); see also Ricketts v. Mule, No. 07–CV–0138, 2009 WL 102953, at *6 (W.D.N.Y.
Jan. 13, 2009); Farez-Espinoza v. Chertoff, 600 F. Supp. 2d 488, 501 (S.D.N.Y. 2009) (collecting
cases).
B. Due Process Claims
Petitioner argues that his continued detention violates his due process rights under the Fifth
Amendment. More specifically, he argues that his detention has become unreasonably long and
that he is entitled to a hearing at which DHS must justify his continued detention. ECF No. 1 at
1, 12.
In Zadvydas v. Davis, 533 U.S. 678 (2001), “the Supreme Court considered how 8 U.S.C.
§ 1231, and its apparent authorization of indefinite executive detention, interacts with the Fifth
Amendment’s prohibition against depriving a person of their liberty without due process.”
Brathwaite v. Barr, 475 F. Supp. 3d 179, 189 (W.D.N.Y. 2020). “The Court ruled that a six-month
period of detention pending removal is presumptively reasonable.” Id. at 190 (citing Zadvydas
533 U.S. at 701). “After six months, a detained noncitizen may seek release by demonstrating that
his or her removal is not likely to occur in the reasonably foreseeable future.” Id. (citing Zadvydas
533 U.S. at 699-700).
Rather than attributable to the normal administrative process, the delay here is of
Petitioner’s own making. “[W]hen an alien refuses to cooperate fully and honestly with officials
to secure travel documents from a foreign government, the alien cannot meet his or her burden to
show there is no significant likelihood of removal in the reasonably foreseeable future.” Ricketts,
2009 WL 102953, at *6. Furthermore, Respondent has submitted evidence that Petitioner’s
removal to Jamaica is likely once his identity is established. See ECF No. 4-3 at 10 (“The statistics
with regard to Jamaica, show that between 2016-2018 DHS removed over three thousand
noncitizens, indicating that no institutional barriers prevent the removal of Petitioner, once he
provides accurate information to the [Jamaican] consulate) (citing DHS Yearbook of Immigration
Statistics 2018, Table 41: Aliens Removed by Criminal Status and Region and Country of
Nationality: Fiscal Year 2018). Additionally, Jamaica has not determined that it will not issue
Petitioner the required travel documents, rather it has only indicated that its investigation into
Petitioner’s identity remains ongoing. This, too, weighs in Respondent’s favor. See Ricketts, 2009
WL 102953, at *6.
Based on these facts, the Court finds that Petitioner has failed to sustain his initial burden
under Zadvydas to demonstrate that there is good reason to believe there is no significant likelihood
of removal in the reasonably foreseeable future. See Jiang, 2015 WL 3649739, at *6 (“DHS sent
the request for a travel document to the Chinese Consulate promptly upon taking petitioner into
custody, and the request remains pending subject to receipt of information from petitioner
confirming his identity as a Chinese citizen. There is nothing in the record before the court to
indicate that Chinese authorities are inclined to deny the request upon receipt of the required
information.”); see also Leslie, 677 F.Supp.2d at 653 (“[R]espondent is entitled to judgment since
it is clear that [Petitioner’s] continued detention is of his own making. He holds the keys to his
release from custody by taking reasonable steps to obtain the necessary travel documents for his
return to Jamaica.”).4
CONCLUSION
For the reasons discussed above, Petitioner’s petition for a writ of habeas corpus, ECF No.
1, is DISMISSED WITHOUT PREJUDICE. Petitioner may file a new petition in the future based
on new and different facts and consistent with the analysis above. Respondent’s motion to dismiss,
ECF No. 4, is DENIED AS MOOT.
The Clerk of Court is directed to enter judgment and close this case.
4 Petitioner’s substantive due process claim fails under Zadvydas because his rights “are not jeopardized by his
continued detention as long as his removal remains reasonably foreseeable.” Brathwaite, 475 F. Supp. 3d at 197-98
(citing Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003).
IT IS SO ORDERED.
Dated: February 14, 2022 | J
Rochester, New York Lift Xx Alen I
HON?ERANK P. GER AG. JR.
United States District Judge
Western District of New York
10