Adegor-Ederaine v. Garland

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

OGHENETCHOUWE ADEGOR-EDERAINE,

Petitioner,

Case # 22-CV-6109-FPG

v.

DECISION AND ORDER

MR. GARLAND, United States Attorney General, et al.,

Respondents.

INTRODUCTION

Pro se Petitioner Oghenetchouwe Adegor-Ederaine, a civil immigration detainee detained

at the Buffalo Federal Detention Facility, has filed a petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2241. ECF No. 1. He argues that his continued detention is unconstitutional. The

government opposes the petition. ECF No. 4. Having reviewed the record and the briefing, the

Court finds that a hearing is unnecessary to resolve the petition. For the reasons that follow, the

petition is GRANTED IN PART and DENIED IN PART.

BACKGROUND

The following facts are drawn from the record. Petitioner is a citizen and native of Nigeria.

ECF No. 4 at 15. In 2004, Petitioner was admitted into the United States as a lawful permanent

resident. Id. In March 2019, Petitioner pleaded guilty to a money laundering conspiracy and

aggravated identity theft. Id. Thereafter, the Department of Homeland Security (“DHS”) served

a Notice to Appear on Petitioner seeking his removal, and on June 23, 2021, Petitioner was taken

into DHS custody. Id. at 16.

On October 8, 2021, an immigration judge ordered Petitioner’s removal to Nigeria, a

determination which Petitioner appealed. Id. at 74-75. On March 7, 2022, Petitioner filed the

present action. ECF No. 1. On April 5, 2022, the Board of Immigration Appeals remanded

Petitioner’s case to the immigration judge for further review. See id. at 100-02.

Petitioner has been in DHS custody for more than one year, and his removal proceedings

remain pending.

DISCUSSION

Under several theories, Petitioner argues that his continued detention without a bond

hearing is unconstitutional. See ECF No. 1 at 4. However, because it is dispositive, the Court

need only address Petitioner’s procedural due process claim.1

In several provisions, the Immigration and Nationality Act (“INA”) authorizes the

detention of aliens pending removal. Relevant here is 8 U.S.C. § 1226, which gives immigration

officials the authority to arrest and detain an alien “pending a decision on whether the alien is to

be removed from the United States.” 8 U.S.C. § 1226(a). In other words, “section 1226 governs

the detention of immigrants who are not immediately deportable.” Hechavarria v. Sessions, 891

F.3d 49, 57 (2d Cir. 2018). The default rule is that officials may release aliens on bond or

conditional parole while removal proceedings are pending. See Jennings v. Rodriguez, 138 S. Ct.

830, 837 (2018). “Section 1226(c), however, carves out a statutory category of aliens who may not

be released.” Id. The parties agree that Petitioner falls within the ambit of Section 1226(c). See

ECF No. 1 at 4, 8; ECF No. 4-1 at 5-6.

1 Insofar as Petitioner raises a substantive due process claim, he is not entitled to relief. Courts have

recognized that an alien’s detention may continue for such a long period as to violate his substantive due

process rights, “regardless of the procedural protections afforded.” Fallatah v. Barr, No. 19-CV-379, 2019

WL 2569592, at *3 (W.D.N.Y. June 21, 2019). The length of Petitioner’s detention does not meet that

onerous standard, however. See Sanusi v. INS, 100 F. App’x 49, 51 (2d Cir. 2004) (summary order) (six-

year detention did not violate due process); Hemans v. Searls, No. 18-CV-1154, 2019 WL 955353, at *5

(W.D.N.Y. Feb. 27, 2019) (detention lasting more than two years and three months insufficient to violate

substantive due process).

By its plain terms, Section 1226(c) “mandates detention of any alien falling within its

scope” and does not contemplate periodic bond hearings for said aliens. Jennings, 138 S. Ct. at

842, 847. But this Court has held that “mandatory detention under Section 1226(c) may violate

an alien’s [procedural] due process rights if the alien is held for an unreasonably long period.”

Frederick v. Feeley, No. 19-CV-6060, 2019 WL 1959485, at *2 (W.D.N.Y. May 2, 2019); see

generally Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020). To determine whether an alien’s

procedural due process rights have been violated as a result of his continued detention under

Section 1226, the Court first evaluates whether the “alien [has been] held for an unreasonably long

period.” Frederick, 2019 WL 1959485, at *2; see also Hemans v. Searls, No. 18-CV-1154, 2019

WL 955353, at *5 (W.D.N.Y. Feb. 27, 2019). If the alien has been detained for an unreasonably

long period, the Court proceeds to analyze whether the alien has received sufficient process to

justify such detention. Hemans, 2019 WL 955353, at *5.

Applying this standard, Petitioner is entitled to a bond hearing. First, Petitioner’s detention

has been unreasonably prolonged: he has been detained for over twelve months. See, e.g., Fremont

v. Barr, No. 18-CV-1128, 2019 WL 1471006, at *4 (W.D.N.Y. Apr. 3, 2019) (collecting cases and

noting that, after twelve months, courts “become extremely wary of permitting continued custody

absent a bond hearing”). Furthermore, Petitioner cannot be faulted for the delays attendant to the

normal administrative and appeals process, as he has not abused the processes available to him or

otherwise maliciously delayed proceedings. See Hechavarria, 891 F.3d at 56 n.6 (distinguishing

between aliens who have “substantially prolonged [their] stay by abusing the processes provided

to [them]” and those who have “simply made use of the statutorily permitted appeals process”);

Brissett v. Decker, 324 F. Supp. 3d 444, 453 (S.D.N.Y. 2018) (concluding that pursuit of relief

from removal “does not, in itself, undermine a claim that detention is unreasonably prolonged”).

Accordingly, Petitioner’s detention has been unreasonably prolonged, and he has passed the first

step.

Second, Petitioner has not received sufficient process to justify his continued detention, as

he has not received a bond hearing at which the government bears the burden of proving by clear

and convincing evidence that continued detention is justified. See Velasco Lopez, 978 F.3d at 855-

56.

In short, because Petitioner’s detention has been unreasonably prolonged, and because he

has not received sufficient process, the Court concludes that Petitioner’s continued detention

violates his procedural due process rights. He is entitled to relief in the form of a bond hearing

with proper procedural safeguards, as set forth below.

However, purely as a procedural matter, the Court notes that the only proper respondent is

Jeffrey Searls, Officer-in-Charge 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. See Hassoun v. Sessions, No. 18-CV-586, 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)).

CONCLUSION

For the reasons discussed above, Petitioner is entitled to habeas relief under 28 U.S.C. §

2241 and the petition (ECF No. 1) is GRANTED IN PART and DENIED IN PART. The petition

is granted against Respondent Searls and is denied with respect to the remaining respondents.

By August 15, 2022, Respondent Searls shall hold a bond hearing for Petitioner before an

immigration judge, at which the government bears the burden of proving by clear and convincing

evidence that Petitioner’s continued detention is justified based on his present risk of flight or

danger to the community. To conclude that detention is justified, the immigration judge must also

find that no less restrictive alternative to detention that could reasonably assure Petitioner’s

appearance and the safety of the community exists. Ifa bond hearing is not held by August 15,

2022, Respondent Searls shall release Petitioner immediately with appropriate conditions of

supervision. By August 18, 2022, Respondent Searls shall file a notice with this Court certifying

either (1) that a bond hearing was held by the applicable deadline, and the outcome thereof, or (2)

that no bond hearing was held and that Petitioner was released with appropriate conditions of

supervision. The Clerk of Court is directed to enter judgment and close the case.

IT IS SO ORDERED.

Dated: August 1, 2022

Rochester, New York Da

dé if P. dl JR.

United States District Judge

Western District of New York