Lopez Vazques v. Garland

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

____________________________________

GILBERTO ALEXANDER LOPEZ

VAZQUES,

Petitioner,

DECISION AND ORDER

v.

1:21-CV-00477 EAW

MR. MERRICK GARLAND, United States

Attorney General, et al.,

Respondents.

____________________________________

INTRODUCTION

Petitioner Gilberto Alexander Lopez Vazques (“Petitioner”), a civil immigration

detainee currently held at the Buffalo Federal Detention Facility (“BFDF”) in Batavia, New

York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Respondents

previously moved to dismiss the petition as premature. (Dkt. 4). The Court denied

Respondents’ motion to dismiss (Dkt. 8), and Respondents thereafter opposed the petition.

(Dkt. 9).

BACKGROUND

Petitioner is a native and citizen of Colombia who was admitted to the United States

on or about May 10, 2010, as a lawful permanent resident. (Dkt. 4-1 at ¶ 5). Petitioner

was a minor at the time of his admission. (Id.).

Petitioner was subsequently convicted of multiple drug crimes. (Id. at ¶¶ 6-9). On

February 19, 2020, the Department of Homeland Security (“DHS”) issued an immigration

detainer to the Wyoming Correctional Facility, where Petitioner was then incarcerated,

requiring notification if Petitioner was released from the custody of the New York State

Department of Corrections and Community Supervision. (Id. at ¶ 10). Petitioner was

placed into removal proceedings on March 3, 2020, via service of a Warrant for Arrest of

Alien and Notice to Appear charging Petitioner with being removable pursuant to

§ 237(a)(2)(A)(iii) and (a)(2)(B)(i) of the Immigration and Nationality Act (the “INA”).

(Dkt. 4-1 at ¶ 11).

An immigration judge (“IJ”) ordered Petitioner removed to Colombia on September

24, 2020. (Id. at ¶ 15). Petitioner appealed the IJ’s decision to the Board of Immigration

Appeals (the “BIA”). (Id. at ¶ 17).

Petitioner was transferred into DHS’s custody on September 30, 2020, and advised

that he would be detained during the pendency of his removal proceedings. (Id. at ¶ 16).

The BIA affirmed Petitioner’s removal order on March 25, 2021. (Id. at ¶ 19).

Petitioner filed the instant action challenging his continued detention on April 8, 2021.

(Dkt. 1). Petitioner then filed a petition for review (“PFR”) and a motion for stay of

removal with the Court of Appeals for the Second Circuit, which was docketed on April

15, 2021, two weeks prior to his scheduled removal date. (Dkt. 4-1 at ¶ 24). The matter

remains pending before the Second Circuit.

On June 17, 2021, DHS issued a decision to continue Petitioner’s detention after

conducting a ninety-day custody review. (Dkt. 9-1 at ¶ 19).

DISCUSSION

I. Jurisdiction and Legal Standard

The federal habeas corpus statute gives district courts jurisdiction to hear

immigration-related detention cases. See 28 U.S.C. § 2241(c)(3); Demore v. Kim, 538 U.S.

510, 517-18 (2003) (holding federal courts have jurisdiction to review challenges to pre-

removal detention); Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding Ҥ 2241 habeas

corpus proceedings remain available as a forum for statutory and constitutional challenges

to post-removal-period detention” in immigration cases). District courts do not have

jurisdiction over challenges to the legality of final orders of deportation, exclusion, and

removal; jurisdiction to review such challenges rests exclusively in circuit courts. See

Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005) (“[The REAL ID Act, 119 Stat. 231,

§ 106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of deportation,

exclusion, and removal, providing instead for petitions of review . . . which circuit courts

alone can consider.”).

“When a petitioner brings a habeas petition pursuant to § 2241, the petitioner ‘bears

the burden of proving that he is being held contrary to law; and because the habeas

proceeding is civil in nature, the petitioner must satisfy his burden of proof by a

preponderance of the evidence.’” Dzhabrailov v. Decker, No. 20-CV-3118 (PMH), 2020

WL 2731966, at *3 (S.D.N.Y. May 26, 2020) (quoting Skaftouros v. United States, 667

F.3d 144, 158 (2d Cir. 2011)); see Cruz v. Decker, No. 18-CV-9948 (GBD) (OTW), 2019

WL 7572975, at *3 (S.D.N.Y. Aug. 27, 2019) (“To obtain [ ] relief [under § 2241], the

petitioner must show violation of his rights by a preponderance of the evidence.” (citing

Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997))), report and recommendation adopted,

2019 WL 6318627 (S.D.N.Y. Nov. 26, 2019).

II. Procedural Due Process Claim

The Court has determined that Petitioner is detained pursuant to 8 U.S.C. §1226(c).

(Dkt. 8 at 6). Petitioner argues that his continued detention is a violation of: (1) the INA;

(2) his right to substantive due process; (3) his right to procedural due process. (Dkt. 1).

The Court considers first Petitioner’s procedural due process claim. As set forth below,

the Court agrees that Petitioner has not been afforded procedural due process but rejects

Petitioner’s argument he is entitled to immediate release. Instead, the Court orders the

government to provide Petitioner with a bond hearing at which: (1) the government must

demonstrate dangerousness or flight risk by clear and convincing evidence; and (2) the IJ

must consider non-bond alternatives to detention or, if setting a bond, ability to pay.

As the Second Circuit has held, unreasonably prolonged immigration detention

without appropriate procedural protections may constitute a due process violation. Velasco

Lopez v. Decker, 978 F.3d 842, 846 (2d Cir. 2020). For the reasons previously articulated,

see, e.g., Constant v. Barr, 409 F. Supp. 3d 159, 167-68 (W.D.N.Y. 2019), this Court agrees

with the overwhelming majority of courts in this Circuit that the multi-factor approach

articulated by the court in Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266,

at *1 (S.D.N.Y. May 23, 2018), and other courts within this Circuit, is a useful tool for

addressing procedural due process claims for aliens—like Petitioner—who are detained

pursuant to § 1226(c). Those non-exclusive factors are 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.

As to the first factor, Petitioner has been in immigration detention since September

30, 2020, or for more than 21 months. Thus, “[t]he first and ‘most important’ . . . factor

weighs heavily in favor of granting the petition.” Bermudez Paiz v. Decker, No. 18-CV-

4759 (GHW) (BCM), 2018 WL 6928794, at *13 (S.D.N.Y. Dec. 27, 2018) (citation

omitted). “[C]ourts in this Circuit have generally been skeptical of prolonged detention of

removable immigrants, without process, lasting over six months,” Lett v. Decker, 346 F.

Supp. 3d 379, 387 (S.D.N.Y. 2018) (quoting Lopez v. Sessions, No. 18 Civ. 4189 (RWS),

2018 WL 2932726, at *14 (S.D.N.Y. June 12, 2018)), and “courts have found detention

shorter than a year to be unreasonably prolonged as part of procedural due process

analysis,” Rosado Valerio v. Barr, No. 19-CV-519, 2019 WL 3017412, at *4 (W.D.N.Y.

July 10, 2019) (collecting cases).

Respondents contend that the second factor in the analysis—which party is

responsible for the delay—undercuts a finding of an unreasonable length of detention in

Petitioner’s case because “[t]he government has caused no significant delays in the

proceedings, and Petitioner himself has caused some delay.” (Dkt. 9-4 at 17). For

procedural due process claims, when “considering whether [Petitioner] or the Government

is responsible for the prolonged proceedings, the Court may examine the record to

determine whether the alien sought repeated or unnecessary continuances, or filed frivolous

claims and appeals.” Vallejo v. Decker, No. 18-CV-5649, 2018 WL 3738947, at *4

(S.D.N.Y. Aug. 7, 2018) (quotation omitted)); see Sajous, 2018 WL 2357266, at *11

(“[A]liens who are merely gaming the system to delay their removal should not be

rewarded with a bond hearing that they would not otherwise get under the statute.” (quoting

Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 476 (3d Cir. 2015))). “[C]ourts

should keep in mind that ‘aliens should not be punished for pursuing avenues of relief and

appeals[,]’ but evidence of bad faith delays may cut against them.” Hernandez v. Decker,

No. 18-CV-5026 (ALC), 2018 WL 3579108, at *7 (S.D.N.Y. July 25, 2018) (quotation

omitted).

Here, the record does not show Petitioner engaged in any bad faith delay tactics.

The only argument Respondents make in this regard is that Petitioner made a “decision to

continue litigating even after being denied relief by the IJ and BIA.” (Dkt. 9-4 at 18).

However, the Court does not find it appropriate to penalize Petitioner for pursuing an

appeal to which he was entitled. See Hechavarria, 891 F.3d at 56 n.6 (noting the Supreme

Court has given weight to a petitioner’s decision to pursue review of a removal order in the

“context only of an immigrant who has ‘substantially prolonged his stay by abusing the

processes provided to him,’ Nken v. Holder, 556 U.S. 418, 436 (2009)—not of an

immigrant who simply made use of the statutorily permitted appeals process”). This factor

accordingly favors Petitioner.

As for the third factor, Respondents argue that “Petitioner does not even argue that

he has meritorious defenses to removal” and that “he advanced arguments for cancellation

of removal that fly in the face of a vast majority of legal precedent.” (Dkt. 9-4 at 18). It is

true that Petitioner has failed to articulate why he believes his defenses to removal are

meritorious. However, the record reveals that the argument Petitioner advanced before the

IJ and the BIA in opposition to removal was that his 2018 criminal conviction for criminal

sale of a controlled substance in the third degree in violation of New York Penal Law

(“NYPL”) § 220.39(1) was not a controlled substance offense under § 237(a)(2)(B) of the

INA, nor an aggravated felony under §§ 101(a)(43)(B) and 237(a)(2)(A)(iii) of the INA.

(Dkt. 9-2 at 66). The BIA rejected this argument (see id. at 67) because the Second Circuit

has previously held that a conviction under NYPL § 220.39 constitutes an aggravated

felony under § 101(a)(43)(B) of the INA. See Pascual v. Holder, 707 F.3d 403, 405 (2d

Cir. 2013), adhered to on reh’g, 723 F.3d 156 (2d Cir. 2013); see also Austin v. Sessions,

700 F. App’x 34, 36 (2d Cir. 2017) (“We held in Pascual I that a conviction under NYPL

§ 220.39 is categorically an aggravated felony drug trafficking crime.”).

However, Petitioner specifically raised an argument that NYPL § 220.39(1)

“regulates all possible isomers of cocaine, opiates, and opium derivates, naldemedine,

naloxegol, and both optical and geometric isomers of 3-methylfentanyl,” while the federal

Controlled Substances Act (“CSA”) “regulates only optical and geometric isomers of

cocaine, the optical isomers of opium and opium derivatives, and the optical isomers of 3-

methylfentanyl, and excepts naldemedine and naloxegol.” (Dkt. 9-2 at 66). This “narcotic

drug—controlled substance mismatch issue was not presented to the Pascual panel.”

United States v. Holmes, No. 21-CR-147 (NGG), 2022 WL 1036631, at *6 n.5 (E.D.N.Y.

Apr. 6, 2022). At least two courts in this Circuit have recently held that there is a

categorical mismatch between the definition of narcotic drug used in NYPL § 220.39(1)

and the definition of a controlled substance in the CSA, and accordingly convictions under

NYPL § 220.39(1) “are not aggravated felonies within the meaning of the INA.” Id. at

*11; see also United States v. Gutierrez-Campos, No. 21 CR. 40 (JPC), 2022 WL 281582,

at *16 (S.D.N.Y. Jan. 31, 2022). The Court thus cannot say that Petitioner’s arguments are

without merit, and this factor weighs in favor of Petitioner.

The fourth factor is at best neutral. Petitioner was in criminal custody from February

of 2019 to September of 2020, or for approximately 19 months. He has been detained by

DHS since September of 2020, or for approximately 21 months. These are roughly

equivalent time periods, with Petitioner’s immigration detention now exceeding the time

he was incarcerated.

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

penal institution for criminal detention—is also at best neutral. As this Court has noted in

past cases, while the BFDF provides detainees with amenities not normally available in a

prison setting, it is ultimately a detention facility that severely curtails the liberties of the

individuals detained therein. See, e.g., Mycoo v. Warden of Batavia Fed. Det. Facility, No.

6:20-CV-06405 EAW, 2020 WL 5800920, at *7 (W.D.N.Y. Sept. 29, 2020).

The sixth factor, the nature of the crime(s) Petitioner was convicted of, weighs in

favor of Respondents. Petitioner has been convicted of selling cocaine, which is a serious

crime that poses a danger to society.

The final factor, whether Petitioner’s detention is near conclusion, weighs in

Petitioner’s favor. Petitioner’s PFR is still pending, and it is unclear when the Second

Circuit will issue its decision. See Ranchinskiy, 422 F. Supp. 3d at 799.

On balance, and considering all the circumstances, the Court finds that Petitioner’s

continued detention without a procedurally proper bond hearing is constitutionally

unjustified. See Arce-Ipanaque v. Decker, No. 19-CV-1076 (JMF), 2019 WL 2136727, at

*2 (S.D.N.Y. May 15, 2019) (“At bottom, the minimal burden that a bond hearing would

place on the Government is far outweighed by [the petitioner]’s interest in ensuring that

his continued detention is justified.” (quotation and original alteration omitted)).

The Court further finds, for reasons it has articulated at length in previous cases,

that due process requires that Petitioner receive a bond hearing where the government must

demonstrate dangerousness or flight risk by clear and convincing evidence, where the IJ

considers whether less-restrictive alternatives to detention could mitigate that risk, and

where the IJ considers ability to pay and alternative conditions of release in setting bond.

See Velasco Lopez, 978 F.3d at 856-57; Mycoo, 2020 WL 5800920, at *7-8; Abdi v.

Nielsen, 287 F. Supp. 3d 327, 335-39 (W.D.N.Y. 2018); see also Hernandez v. Sessions,

872 F.3d 976, 991 & n.4 (9th Cir. 2017) (“A bond determination that does not include

consideration of financial circumstances and alternative release conditions is unlikely to

result in a bond amount that is reasonably related to the government’s legitimate

interests.”); Arce-Ipanaque, 2019 WL 2136727, at *3 (collecting cases).

However, the Court rejects Petitioner’s contention that this Court should simply

order his release. “[D]istrict courts rightly favor conditional grants [of habeas corpus

relief], which give the executive branch the opportunity to cure its constitutional errors and

which appropriately recognize comity among the co-equal branches.” Hechavarria, 358

F. Supp. 3d at 234-35 (quotations and original alterations omitted). The IJ is the

appropriate individual to assess in the first instance, consistent with the procedures set forth

above, whether release is warranted and what conditions are appropriate.

III. Substantive Due Process and Statutory Violation Claims

Petitioner also claims a violation of his Fifth Amendment right to substantive due

process. (Dkt. 1 at 4). “In order to establish a violation of a right to substantive due process,

a plaintiff must demonstrate not only government action but also that the government

action was so ‘egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience.’” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) (quoting

County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). As this Court has explained

in prior cases, an immigration detainee asserting a substantive due process violation must

establish that his removal is not “reasonably foreseeable,” and that standard is not satisfied

where a petitioner “would be removed if he withdrew his petition for review.”

Ranchinskiy, 422 F. Supp. 3d at 789; see also Doherty v. Thornburgh, 943 F.2d 204, 211

(2d Cir. 1991) (a petitioner “may not rely on the extra time resulting” from his appeal “to

claim that his prolonged detention violates substantive due process”); Rodriguez v.

Garland, No. 21-CV-373-LJV, 2021 WL 5495397, at *4 (W.D.N.Y. Nov. 23, 2021)

(“Although there comes a time when the length of a noncitizen’s detention pending

removal violates due process regardless of the procedural protections afforded, . . . that

time has not yet come here.”). Petitioner has not demonstrated a substantive due process

violation in this case.

As to Petitioner’s assertion that his ongoing detention violates the INA (see Dkt. 1

at 3-4), “the INA does not itself create a cause of action or federally-protected right.” Lopez

Canas v. Whitaker, No. 6:19-CV-06031-MAT, 2019 WL 2287789, at *4 (W.D.N.Y. May

29, 2019) (quotation omitted). Accordingly, Petitioner’s claim for a statutory violation

fails.

IV. Named Respondents

The government contends that Jeffrey Searls, Facility Acting Director of the BFDF,

is the only respondent with immediate custody over Petitioner, and consequently the only

proper respondent. (Dkt. 9-4 at 23-24). The Court agrees with the government and

dismisses all respondents except for Jeffrey Searls from the instant action. See Rodriguez

v. Barr, No. 6:18-cv-06757-MAT, 2019 WL 2192516, at *3 n.3 (W.D.N.Y. May 21, 2019)

(“Searls is the only proper respondent in this § 2241 proceeding as he is the person with

direct control over Petitioner’s detention.” (citing Rumsfeld v. Padilla, 542 U.S. 426, 435

(2004) (“[I]n habeas challenges to present physical confinement . . . the default rule is that

the proper respondent is the warden of the facility where the prisoner is being held[.]”))),

reconsideration denied, 2019 WL 6037275 (W.D.N.Y. Nov. 14, 2019); Hassoun v.

Sessions, No. 18-CV-586-FPG, 2019 WL 78984, at *7 (W.D.N.Y. Jan. 2, 2019) (“The

majority view in the Second Circuit requires the ‘immediate custodian,’ generally the

prison warden, to be named as a respondent in ‘core’ immigration habeas proceedings—

i.e., those challenging present physical confinement.” (quotation omitted)); see also S.N.C.

v. Sessions, 325 F. Supp. 3d 401, 407 (S.D.N.Y. 2018) (“If, on the other hand, the petition

challenges a broader form of legal, non-physical custody, then the proper respondent is the

person with legal authority to effect that custody.”).

CONCLUSION

For the foregoing reasons, the Court: (1) grants the petition (Dkt. 1) in part to the

extent that the Court orders the government to afford Petitioner an individualized bond

hearing consistent with the procedures outlined in this Decision and Order within 21 days

of its entry; (2) denies the petition without prejudice in all other respects, including

Petitioner’s request for immediate release; and (3) dismisses all respondents except Jeffrey

Searls, Facility Acting Director of the BFDF, from the matter.

If Petitioner requests a continuance that results in a bond hearing date outside the

21-day deadline set forth above, such a continuance will be in compliance with the instant

Decision and Order, as long as the new date falls within a reasonable time period.

Respondent is directed to file a status update with the Court within three (3) days of the

date of a decision concerning Petitioner’s bond hearing regarding the outcome of the

hearing. The Clerk of Court is directed to enter judgment and close this case.

SO ORDERED.

_______________________________

ELIZABETH A. WOLFORD

Chief Judge

United States District Court

Dated: July 6, 2022

Rochester, New