# Smith v. Garland

> District Court, W.D. New York · April 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10364885

## Case

- **Court:** District Court, W.D. New York
- **Decided:** April 25, 2022
- **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/10364885

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364885. Public record. Not legal advice.