Smith v. Garland

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_________________________________________

DWIGHT ANDRAE SMITH,

Petitioner, DECISION and ORDER

-vs-

21-CV-6455 (CJS)

MERRICK B. GARLAND, in his official capacity as

Attorney General of the United States,

ALEJANDRO MAYORKAS, in his official capacity as

Secretary, U.S. Department of Homeland Security,

THOMAS FEELEY, in his official capacity as Field

Office Director, Buffalo Field Office, U.S. Immigration &

Customs Enforcement, and

JEFFREY J. SEARLS, in his official capacity as

Acting Assistant Field Office Director and Administrator,

Buffalo Federal Detention Facility,

Respondents.

_________________________________________

Dwight Andrae Smith (“Petitioner”), through counsel, commenced this habeas

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

detention 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. Pet., June 21, 2021, ECF No. 1. For the reasons

discussed below, the Court finds that Petitioner has failed to demonstrate that his detention

has been unreasonably prolonged, and his application for habeas relief [ECF No. 1] is

therefore denied.

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In addition, purely as a procedural matter and notwithstanding Petitioner’s argument

to the contrary, the Court notes that the only proper respondent in this matter is Jeffrey

Searls, the Assistant Field Office Director and Administrator of the Buffalo Federal Detention

Facility. “As the person with direct control over Petitioner’s detention, he is the proper

respondent given Petitioner’s requested relief.” Quintanilla Mejia v. Barr, No. 20-CV-6434-

FPG, 2020 WL 5947139, at *4 (W.D.N.Y. Oct. 7, 2020) (citing Hassoun v. Sessions, No. 18-

CV-586, 2019 WL 78984, at *7 (W.D.N.Y. Jan. 2, 2019)). Accordingly, the Clerk of Court 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.

BACKGROUND1

Petitioner is a native of Jamaica who “arrived in the United States at or near an

unknown place, on or about an unknown date.” Pet. at ¶ 23. Between 2010 and 2017, he

had multiple contacts with the criminal justice system in this country, including being placed

on probation as a juvenile delinquent twice in 2010, and being convicted in New York state

courts of disorderly conduct (2011), trespass (2011, 2012, and twice in 2013), forcible

touching (2013), attempted robbery in the third degree (2017), and attempted criminal

1 Consistent with 28 U.S.C. § 2243 through § 2247, courts hearing an application under § 2241 may consider

affidavits and documentary evidence such as records from any underlying proceeding. See Hamdi v. Rumsfeld,

542 U.S. 507, 525 (2004). The following background is drawn from Petitioner’s submission, as well as

Respondent’s submissions of affidavits from ICE Deportation Officer Silvestre Talavera, an individual familiar

with the facts and circumstances of Petitioner’s immigration proceedings, and Michael K. Ball, Assistant Officer

in Charge of the Buffalo, NY Field Office, as well as records from the underlying proceedings themselves.

Talavera Decl., Aug. 23, 2021, ECF No. 4-1; Ball Decl., Aug. 23, 2021, ECF No. 4-3; Resp. (Ex. A), Aug. 23,

2021, ECF No. 4-2.

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possession of a weapon in the second degree (2017). Talavera Decl., ¶ 6–17, Aug. 23,

2021, ECF No. 4-1. For his attempted robbery conviction, Petitioner received an

indeterminate sentence of one to three years imprisonment; for his attempted criminal

possession of a weapon conviction, he was sentenced to four years, six months

imprisonment followed by four years post-release supervision to run concurrent with the

sentence for attempted robbery. Talavera Decl. at ¶ 17.

While Petitioner was still serving prison time on his New York state convictions, DHS

initiated removal proceedings by serving him with a “Notice to Appear.” Pet. (Ex. 4), June 21,

2021, ECF No. 1-4. The notice alleged that Petitioner is not a citizen or national of the United

States; is a native and citizen of Jamaica; arrived in the United States at or near an unknown

place, on or about an unknown date; was not admitted to or paroled into the United States

after inspection by an immigration officer; and was convicted of the crime of attempted

robbery in the third degree. Pet. (Ex. 4) at 4. On the basis of those allegations, Petitioner

was charged with being subject to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien

who has been convicted of a crime of moral turpitude, and under 8 U.S.C. § 1182(a)(6)(A)(i)

for being an alien present in the United States without being admitted or paroled. Pet. (Ex.

4) at 4.

On November 6, 2020, Petitioner was released from New York state custody and

taken into custody by DHS. Pet. at ¶ 26. Since that time, he has been detained at the Buffalo

Federal Detention Facility (“BFDF”). Pet. at ¶ 26. On December 7, 2020, DHS conducted a

review of the totality of circumstances of Petitioner’s case and determined that he would

remain detained because of his conviction for, among other things, attempted felony

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robbery. Resp. (Ex. A), 113, Aug. 23, 2021, ECF No. 4-2. Petitioner requested that the

Immigration Judge (“IJ”) review the custody determination, but there is no indication in the

record as to whether such a review occurred. Id. On December 23, 2020, the IJ rendered a

decision on Petitioner’s application for asylum or, in the alternative, deferral of his removal

under the Convention Against Torture (“C.A.T.”). Resp. (Ex. A) at 125–134. The IJ found

that Petitioner was barred from eligibility for asylum because he did not file his application

within one year of arriving in the United States, and because he committed an aggravated

felony. Resp. (Ex. A) at 126. The IJ also denied Petitioner’s application for deferral of

removal under the C.A.T. because each of the three bases for Petitioner’s assertions that

he would be tortured upon removal to Jamaica – his mental health issues, the fact that he is

HIV positive, and his bi-sexuality – are without merit. Resp. (Ex. A) at 134. Petitioner was

therefore ordered removed from this country. Resp. (Ex. A) at 122.

Petitioner appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). On

August 12, 2021, the BIA found that the IJ’s analysis of Petitioner’s claims under the C.A.T.

was flawed, and remanded the matter for reconsideration under the proper standard. Resp.

(Ex. A) at 148–151. After reconsidering the matter, the IJ again ordered Petitioner removed.

Letter, Mar. 24, 2022, ECF No. 7. Petitioner appealed the IJ’s order of removal a second

time, and the BIA remanded the matter back to the IJ on March 24, 2022. Id. To the Court’s

knowledge, there have been no further procedural developments in his removal proceedings

since that time.

Now before the Court is Petitioner’s application for habeas relief pursuant to 28

U.S.C. § 2241. Specifically, Petitioner maintains that his detention “has become

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unreasonably prolonged and continued detention without a constitutionally adequate bond

proceeding will erroneously deprive him of his strong interest in liberty,” and violates his right

to procedural due process. Pet. at ¶ 57–58 (internal quotation marks and citation omitted).

Consequently, Petitioner asks the Court to “issue a conditional writ of habeas corpus

requiring Respondents to provide Petitioner with a constitutionally adequate, individualized

hearing before an impartial adjudicator at which Respondents bear the burden of

establishing by clear and convincing evidence that the Petitioner is a danger to the

community or a flight risk . . . .” Respondents oppose the petition, and maintain the petition

should be denied “[b]ecause noncitizens have no right to remain in the United States, and

certainly no right to be free while challenging their removal following their unlawful entry . . .

.” Resp., 2, Aug. 23, 2021, ECF No. 5.

LEGAL STANDARD

The Immigration and Nationality Act is codified in title 8 of the United States Code.

With respect to immigration matters such as those underlying the present habeas

application, 8 U.S.C. § 1229a(a)(1) authorizes an Immigration Judge to conduct

proceedings on behalf of the Attorney General to decide upon the inadmissibility or

deportability of an alien. An alien placed in such removal proceedings may be charged with

any applicable ground of inadmissibility under § 1182(a), or any applicable ground of

deportability under § 1227. § 1229a(a)(2). An alien ordered removed has the right to appeal

the IJ’s decision to the Board of Immigration Appeals, “except that no appeal shall lie from

an order of removal entered in absentia.” 8 C.F.R. § 1240.15. Judicial review of removal

orders is available exclusively through filing a “petition for review” in a Circuit Court pursuant

to 8 U.S.C. § 1252.

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Federal district courts, then, have limited jurisdiction with respect to matters involving

removal proceedings. In particular, district courts retain jurisdiction under 28 U.S.C. § 2241

to review “purely legal statutory and constitutional claims” regarding removal proceedings,

but jurisdiction does not extend to “discretionary determinations” by Immigration Judges and

the Board of Immigration Appeals. Sol v. I.N.S., 274 F.3d 648, 651 (2d Cir. 2001). District

courts are authorized to grant habeas relief under § 2241 only to prisoners or detainees who

are “in custody in violation of the Constitution or laws or treaties of the United States.”

DISCUSSION

There is no dispute here that Petitioner’s detention is statutorily required on two

grounds identified by 8 U.S.C. § 1226(c): having committed an offense involving moral

turpitude covered by § 1182(a)(2), and being inadmissible under § 1182(a)(3)(B). See, e.g.,

Pet. at ¶ 3–4 (Petitioner “is currently subjected to mandatory to immigration detention . . . .

[He] petitions this Court to challenge the constitutionality of the statutory provisions that

mandate his detention.”). As the Supreme Court has explained:

Section 1226(c) was enacted as part of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, and it sprang from a “concer[n] that

deportable criminal aliens who are not detained continue to engage in crime

and fail to appear for their removal hearings in large numbers.” Demore v. Kim,

538 U.S. 510, 513 (2003). To address this problem, Congress mandated that

aliens who were thought to pose a heightened risk be arrested and detained

without a chance to apply for release on bond or parole.

Section 1226(c) consists of two paragraphs, one on the decision to take an

alien into “[c]ustody” and another on the alien’s subsequent “[r]elease.” The

first paragraph (on custody) sets out four categories of covered aliens, namely,

those who are inadmissible or deportable on specified grounds. It then

provides that the Secretary must take any alien falling into one of these

categories “into custody” “when the alien is released” from criminal custody.

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The second paragraph (on release from immigration custody) states that “an

alien described in paragraph (1)” may be released “only if [the Secretary]

decides” that release is “necessary to provide protection” for witnesses or

others cooperating with a criminal investigation, or their relatives or associates.

Nielsen v. Preap, 139 S. Ct. 954, 960 (2019) (footnote omitted). Thus, Petitioner argues not

that his detention violates the statute, but that his prolonged detention while he awaits the

outcome of his removal proceedings is unconstitutional.

Legal Principles

The analysis must start with the recognition that in general the detention of criminal

aliens like Petitioner under § 1226(c), without a bond hearing, for the entire period of their

removal proceedings does not violate due process. See Demore, 538 U.S. at 526 (indicating

that it has been the Supreme Court’s “longstanding view that the Government may

constitutionally detain deportable aliens during the limited period necessary for their removal

proceedings.”). Indeed, the Supreme Court in Demore stated that “this Court has firmly and

repeatedly endorsed the proposition that Congress may make rules as to aliens that would

be unacceptable if applied to citizens.” Demore, 538 U.S. at 522. In emphasizing that aliens

do not have the same due process rights as citizens, the Court stated:

It is well established that the Fifth Amendment entitles aliens to due process

of law in deportation proceedings. At the same time, however, this Court has

recognized detention during deportation proceedings as a constitutionally valid

aspect of the deportation process. As we said more than a century ago,

deportation proceedings would be [in] vain if those accused could not be held

in custody pending the inquiry into their true character.

Demore, 538 U.S. at 523 (citations and internal quotation marks omitted).

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In 2015, the Second Circuit held that “in order to avoid significant constitutional

concerns surrounding the application of section 1226(c), it must be read to contain an implicit

temporal limitation,” and that “mandatory detention longer than six months without a bond

hearing affronts due process.” Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir. 2015). The

Circuit Court indicated that after six months of detention under § 1226(c), an alien “must be

admitted to bail unless the government establishes by clear and convincing evidence that

the immigrant poses a risk of flight or a risk of danger to the community.” Lora, 804 F.3d at

616. The Lora panel also suggested that Demore’s holding, which found no procedural due

process violation, was somewhat limited to its facts (i.e., a relatively brief detention), and

stated that that the length of time it was taking the government to complete removal

proceedings had significantly increased since Demore was decided. Lora, 804 F.3d at 605.

However, in Jennings v. Rodriguez, 138 S.Ct. 830 (2018), the Supreme Court found

that the Immigration and Nationality Act does not contain an implicit six-month time limit at

which point a bond hearing must be held. Jennings, 138 S.Ct. at 844. As a result, the

Supreme Court granted certiorari in Lora, vacated the judgment, and remanded the case for

“further consideration” in light of its decision in Jennings. Shanahan v. Lora, 138 S. Ct. 1260

(2018).

Subsequently, another judge of this district described the post-Jennings and post-

Lora state of the law in this Circuit concerning procedural due process challenges under 8

U.S.C. § 1226(c) as follows:

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

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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.’ . . . .

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

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 [v. Decker, 331 F. Supp.3d 255, 261 (S.D.N.Y. 2018)]. 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 . . . the sheer

length of the proceedings is not alone determinative of reasonableness . . . .

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

and quotation marks omitted).

Application

With these principles in mind, the question now before this Court is whether, in light

of the factors set forth above, Petitioner’s continued detention since November 6, 2020

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

that it violates his right to procedural due process, and, if so, what remedy is due. With regard

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to the first issue, the Court applies the multi-factor test discussed above.

Applying this test, the Court finds that the first factor, the length of time the petitioner

has been detained, is neutral. Petitioner has been detained for over seventeen months,

which is obviously a significant amount of time. See, e.g., Zadvydas v. Davis, 533 U.S. 678,

701 (2001) (“as the period of . . . confinement grows” so do the required procedural

protections). On the other hand, Petitioner’s detention at the BFDF is ultimately the product

of his undisputed multiple criminal convictions in New York state court, including one for

attempted robbery, which he conceded to the IJ to be “a particularly serious crime.” Resp.

(Ex. A) at 126. Petitioner’s extensive criminal history, and of his admitted unlawful entry into

the United States (Pet. at ¶ 23), each indicate voluntary conduct which placed Petitioner in

a class of mandatory detainees under § 1226(c).

The second factor, the party responsible for the delay, is neutral since neither

Petitioner nor Respondent has done anything to improperly delay the completion of removal

proceedings. Rather, the majority of the delay appears attributable to the length of time it

has taken the BIA to decide Petitioner’s appeals, which is out of the parties’ control.

The third factor, whether Petitioner has asserted a defense to his removal, weighs in

favor of Petitioner, since he contends that he is entitled to a deferral of his removal under

the C.A.T.

The fourth factor, the length of Petitioner’s detention in relation to his criminal

sentence, weighs in Respondents’ favor, since Petitioner has thus far been detained for only

approximately one-third of the length of his imprisonment for his criminal convictions.

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The fifth factor, whether the detention facility is meaningfully different from a penal

institution, also weighs slightly in Respondents’ favor. In his affidavit, Officer Michael K. Ball

states that “[p]ersons held at BFDF do not face the same level of restrictions typical of prison

restrictions on inmates.” Ball Decl. at ¶ 9. For instance, detainees can obtain employment,

and move throughout the facility without being required to wear handcuffs or legcuffs. Ball

Decl. at ¶ 9, 16. Compare Velasco Lopez v. Decker, 978 F.3d 842, 850–51 (2d Cir. 2020)

(finding no meaningful difference where the petitioner, detained at the discretion of the IJ

under § 1226(a), was “incarcerated under conditions indistinguishable from those imposed

on criminal defendants” but with far less procedural protection). Nevertheless, the conditions

at BFDF weigh only slightly in Respondents’ favor because, as Petitioner notes in his reply

brief, BFDF does still place significant restriction on his liberties.

The sixth factor, the nature of the crimes committed by the petitioner, weighs against

Petitioner, since they involve multiple instances of serious conduct and a pattern of disregard

for the law and the property rights of others dating back to his illegal entry into this country,

or at least as far back as his juvenile delinquency in 2010.

Lastly, the seventh factor, whether Petitioner’s detention is near conclusion, is

neutral. At present, the matter is once again before the IJ who, historically in this case, has

acted quickly to adjudicate Petitioner’s case. Although Petitioner may of right choose to

prolong his detention by pursuing legitimate avenues of appeal before either the BIA or the

Second Circuit, it is also true that Petitioner could opt to end his detention by consenting to

his removal.

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CONCLUSION

Having weighed and considered all of the factors, the Court finds that Petitioner has

failed to demonstrate that his detention has become unreasonably prolonged. Therefore, it

is hereby

ORDERED, Petitioner’s application for habeas relief [ECF No. 1] is denied without

prejudice; and it is further

ORDERED, that the Clerk of the Court 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; and it is further

ORDERED that the Clerk of the Court enter judgment and close this case.

So Ordered.

Dated: Rochester, New York

April 25, 2022

ENTER:

Neg ase.

CHARLESW. SIRAGG

United States DistricNludge

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