Ernest v. Garland

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

__________________________________________

SHERQUIL ERNEST, aka

SHERQUILLE ERNEST,

A#056-206-060,1

Petitioner, DECISION and ORDER

-vs-

22-CV-6330 (CJS)

JEFFREY J. SEARLS, Director

Buffalo Federal Detention

Facility,2

Respondent.

__________________________________________

INTRODUCTION

Sherquil Ernest (“Petitioner”), a citizen of Saint Lucia, is detained at the Buffalo

Federal Detention Facility (“BFDF”) as a criminal alien subject to a final order of removal.

Although Petitioner is not presently appealing his final removal order or opposing his

removal in any way, he has been in the custody of the Department of Homeland Security’s

(“DHS”) Immigration and Customs Enforcement (“ICE”) agency, awaiting removal, for

thirteen (13) months. In this action filed pursuant to 28 U.S.C. § 2241, Petitioner argues

that his continued detention is unreasonable and unlawful, based, inter alia, on the

Supreme Court's decision in Zadvydas v. I.N.S., 533 U.S. 678, 121 S.Ct. 2491 (2001)

(“Zadvydas”), since it is not likely that ICE will be able to remove him to Saint Lucia in the

1 Sherquille Ernest is the name under which Petitioner was prosecuted in the United States

District Court for the Middle District of Pennsylvania. See, USA v Ernest, 3:15-CR-00154-07.

2 The Petition names Merrick B. Garland, U.S. Attorney General, and Jeffrey J. Searls, Director

Buffalo Federal Detention Facility, as Respondents. However, Searls is the only proper respondent in

this action. See, Gutierrez v. Barr, No. 20-CV-6078-FPG, 2020 WL 2059845, at *3 (W.D.N.Y. Apr. 29,

2020) (“[T]he only proper respondent is Jeffrey Searls, Officer in Charge at the Buffalo Federal Detention

Facility. See ECF No. 5 at 20. As the “person with direct control” over Petitioner’s detention, id., 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)).”).

1

reasonably foreseeable future, as that nation has no record of his citizenship and is

consequently unwilling to issue him travel documents. For reasons discussed below,

the Petition is denied in part, and the Court reserves decision on the remainder to allow

Respondent an opportunity to submit additional evidence.

BACKGROUND

The facts concerning Petitioner’s case are generally not disputed. Briefly, as set

forth in Respondent’s Answer and Return, they are as follows:

On December 4, 2019, the Department of Homeland Security served

Petitioner with a Notice to Appear (“NTA”) asserting that [he] was subject to

removal pursuant to: (i) Section 237(a)(2)(A)(iii) of the Immigration and

Nationality Act (“INA”) for having been convicted of an aggravated felony,

an offense relating to the illicit trafficking in a controlled substance, including

a drug trafficking crime; (ii) INA § 237(a)(2)(A)(iii) for having been convicted

of an aggravated felony, a law relating to an attempt or conspiracy to commit

an offense described in INA § 101(a)(43); and iii) INA § 237(a)(2)(B)(i) for

having been convicted of a violation (or a conspiracy or attempt to violate)

and law or regulation relating to a controlled substance. Petitioner

[admitted the allegations and]3 was ordered removed from the United

States to St. Lucia by an Immigration Judge on December 7, 2020. On

May 20, 2021, the Board of Immigration Appeals (“BIA”) dismissed

Petitioner’s appeal of the denial of his claim to relief from removal. On

October 8, 2021, ICE took custody of Petitioner upon his release from the

Allenwood Federal Correctional Complex [where he had been serving his

criminal sentence.] On April 29, 2022, ICE transferred Petitioner to the

[BFDF, where he] is currently [being] held [pursuant to 8 U.S.C. §

1231(a)(6)] . . . pending his removal from the United States.

ECF No. 4 (citations and some internal quotation marks omitted). Except for this action,

Petitioner has no appeals or petitions pending relating to his immigration status, and there

is no procedural impediment to his removal.

3 See, ECF No. 4-2 at p. 25 (Decision of Immigration Judge).

2

ICE did not remove Petitioner during the 90-day removal period, and had, as of the

time briefing was complete, conducted two post-removal-period reviews of Petitioner’s

detention, one on April 20, 2022, and another on July 12, 2022. ECF No. 4-2 at pp. 22–

23.4 That is, in accordance with 8 C.F.R. § 241.4(k), the first review was conducted

approximately three months after the 90-day removal period ended, and the second

occurred approximately three months thereafter. In both instances, ICE’s Office of

Enforcement and Removal Operations decided to continue detaining Petitioner,

purportedly based on consideration of factors set forth in 8 C.F.R. § 241.4(e), (f) and (g).5

4 The Petition references only one “custody review,” that occurred on July 12, 2022.” ECF No. 1 at ¶ 4.

However, insofar as that reference suggests that was the only such review, it is inconsistent with the

documentary record, which shows two post-removal period reviews. Additionally, since neither party says

otherwise, the Court assumes that ICE also conducted a records review prior to the expiration of the

removal period as required by 8 C.F.R. § § 241.4(h) & (k)(1)(i).

5 See, 8 C.F.R. § 241.4 (e), (f) & (g):

(e) Criteria for release. Before making any recommendation or decision to release a

detainee, a majority of the Review Panel members, or the Director of the HQPDU in the

case of a record review, must conclude that: (1) Travel documents for the alien are not

available or, in the opinion of the Service, immediate removal, while proper, is otherwise

not practicable or not in the public interest; (2) The detainee is presently a non-violent

person; (3) The detainee is likely to remain nonviolent if released; (4) The detainee is not

likely to pose a threat to the community following release; (5) The detainee is not likely to

violate the conditions of release; and (6) The detainee does not pose a significant flight risk

if released.

(f) Factors for consideration. The following factors should be weighed in considering

whether to recommend further detention or release of a detainee: (1) The nature and

number of disciplinary infractions or incident reports received when incarcerated or while

in Service custody; (2) The detainee's criminal conduct and criminal convictions, including

consideration of the nature and severity of the alien's convictions, sentences imposed and

time actually served, probation and criminal parole history, evidence of recidivism, and

other criminal history; (3) Any available psychiatric and psychological reports pertaining to

the detainee's mental health; (4) Evidence of rehabilitation including institutional progress

relating to participation in work, educational, and vocational programs, where available; (5)

Favorable factors, including ties to the United States such as the number of close relatives

residing here lawfully; (6) Prior immigration violations and history; (7) The likelihood that

the alien is a significant flight risk or may abscond to avoid removal, including history of

escapes, failures to appear for immigration or other proceedings, absence without leave

from any halfway house or sponsorship program, and other defaults; and (8) Any other

information that is probative of whether the alien is likely to— (i) Adjust to life in a

community, (ii) Engage in future acts of violence, (iii) Engage in future criminal activity, (iv)

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Pose a danger to the safety of himself or herself or to other persons or to property, or (v)

Violate the conditions of his or her release from immigration custody pending removal from

the United States.

(g) Travel documents and docket control for aliens continued in detention— (1) Removal

period. (i) The removal period for an alien subject to a final order of removal shall begin on

the latest of the following dates: (A) The date the order becomes administratively final; (B)

If the removal order is subject to judicial review (including review by habeas corpus) and if

the court has ordered a stay of the alien's removal, the date on which, consistent with the

court's order, the removal order can be executed and the alien removed; or (C) If the alien

was detained or confined, except in connection with a proceeding under this chapter

relating to removability, the date the alien is released from the detention or confinement.

(ii) The removal period shall run for a period of 90 days. However, the removal period is

extended under section 241(a)(1)(C) of the Act 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. The Service

will provide such an alien with a Notice of Failure to Comply, as provided in paragraph

(g)(5) of this section, before the expiration of the removal period. The removal period shall

be extended until the alien demonstrates to the Service that he or she has complied with

the statutory obligations. Once the alien has complied with his or her obligations under the

law, the Service shall have a reasonable period of time in order to effect the alien's removal.

(2) In general. The district director shall continue to undertake appropriate steps to secure

travel documents for the alien both before and after the expiration of the removal period. If

the district director is unable to secure travel documents within the removal period, he or

she shall apply for assistance from Headquarters Detention and Deportation, Office of Field

Operations. The district director shall promptly advise the HQPDU Director when travel

documents are obtained for an alien whose custody is subject to review by the HQPDU.

The Service's determination that receipt of a travel document is likely may by itself warrant

continuation of detention pending the removal of the alien from the United States. (3)

Availability of travel document. In making a custody determination, the district director and

the Director of the HQPDU shall consider the ability to obtain a travel document for the

alien. If it is established at any stage of a custody review that, in the judgment of the

Service, travel documents can be obtained, or such document is forthcoming, the alien will

not be released unless immediate removal is not practicable or in the public interest. (4)

Removal. The Service will not conduct a custody review under these procedures when the

Service notifies the alien that it is ready to execute an order of removal. (5) Alien's

compliance and cooperation. (i) Release will be denied and the alien may remain in

detention if the alien fails or refuses to make timely application in good faith for travel

documents necessary to the alien's departure or conspires or acts to prevent the alien's

removal. The detention provisions of section 241(a)(2) of the Act will continue to apply,

including provisions that mandate detention of certain criminal and terrorist aliens. (ii) The

Service shall serve the alien with a Notice of Failure to Comply, which shall advise the alien

of the following: the provisions of sections 241(a)(1)(C) (extension of removal period) and

243(a) of the Act (criminal penalties related to removal); the circumstances demonstrating

his or her failure to comply with the requirements of section 241(a)(1)(C) of the Act; and an

explanation of the necessary steps that the alien must take in order to comply with the

statutory requirements. (iii) The Service shall advise the alien that the Notice of Failure to

Comply shall have the effect of extending the removal period as provided by law, if the

removal period has not yet expired, and that the Service is not obligated to complete its

scheduled custody reviews under this section until the alien has demonstrated compliance

4

For example, one such decision explained in pertinent part:

ICE is working with the Government of St. Lucia to secure a Travel

Document (TD) for our removal from the United States. Your removal from

the United States to St. Lucia is expected to occur in the reasonably

foreseeable future; therefore, you are to remain in ICE custody at this time,

as ICE is unable to conclude that the factors set forth at 8 C.F.R. § 241.4(e)

have been satisfied. This decision, however, does not preclude you from

bringing forth evidence in the future to demonstrate a good reason why your

removal is unlikely.

ECF No. 4-2.

The pertinent regulations do not allow for appeals from such post-removal period

custody-review determinations. However, the regulations do allow the alien to seek

reconsideration as frequently as every three months, by bringing forth evidence of

changed circumstances. 8 C.R.R. § 241.4(k)(2)(iii). Indeed, as noted above, the written

custody determinations that Petitioner received indicated that he could seek

reconsideration by submitting additional information.

Moreover, 8 C.F.R. § 241.13, adopted in response to the Zadvydas decision,

“establishes special review procedures for those aliens who are subject to a final order of

removal and are detained under the custody review procedures provided at § 241.4 after

the expiration of the removal period, where the alien has provided good reason to believe

there is no significant likelihood of removal to the country to which he or she was ordered

removed, or to a third country, in the reasonably foreseeable future.” 8 C.F.R. § 241.13(a).

Petitioner acknowledges his awareness of 8 C.F.R. § 241.13, including the fact that

with the statutory obligations. (iv) The fact that the Service does not provide a Notice of

Failure to Comply, within the 90–day removal period, to an alien who has failed to comply

with the requirements of section 241(a)(1)(C) of the Act, shall not have the effect of

excusing the alien's conduct.” (West 2022).

5

review thereunder must be triggered by a written request from the alien.6

However, it does not appear that Petitioner ever attempted to utilize the procedures

set forth in 8 C.F.R § 241.4(k)(2)(iii) or § 241.13. That is, neither Petitioner nor

Respondent indicates that he did so, and the present record contains nothing that could

be construed as a request by Petitioner under either section.

On August 5, 2022, after ten months in ICE custody, Petitioner filed the subject

Petition, arguing that he should be released, since his detention has become unduly

prolonged and unreasonable. Petitioner acknowledges that he is subject to a final order

of removal after having been convicted of “drug trafficking” and aggravated felonies.7

Petitioner maintains that his 90-day removal period began on October 8, 2021, and that

the presumptively reasonable 6-month period for ICE to remove him therefore ended on

April 9, 2022. Petitioner admits that ICE could nevertheless continue to detain him if “the

prospects of the timeliness of [his] removal [remained] reasonable under the

circumstances,”8 but contends that is not the case here. Petitioner alleges that the

cause of the delay in removing him is that Saint Lucia has not issued a travel document:

Petitioner has yet to receive any travel documents from the Saint Lucia

consulate. . . . Petitioner’s consulate has not issued travel documents

and there is no certainty as to when, if ever, such papers will be issued.

Thus, Petitioner’s removal from the United States is not likely to occur within

the reasonabl[y] foreseeable future.

Pet. at p. 4.

The Court liberally construes the Petition as asserting three claims: 1) a claim that

Petitioner’s continued detention violates 8 U.S.C. § 1231(a)(6), as interpreted by

6 ECF No. 1 at pp. 7–8, ¶ ¶ 18–19.

7 ECF No. 1 at ¶ 13.

8 ECF No. 1 at ¶ 19.

6

Zadvydas, since he has been detained longer than six months and his removal to Saint

Lucia is not likely to occur in the reasonably foreseeable future; 2) a claim that his

detention violates substantive due process under the Fifth Amendment and Zadvydas,

since he has been detained longer than six months and his removal to Saint Lucia is not

likely to occur in the reasonably foreseeable future; and 3) a claim that his detention

violates his procedural due process rights under the Fifth Amendment in that his detention

has become “unreasonably prolonged” “without a meaningful review of his detention in

accordance with federal regulations.”9

On August 10, 2022, the Court issued an Order (ECF No. 2) directing Respondent

to answer the Petition. On September 26, 2022, Respondent filed his Answer and

Return (ECF No. 4).10 Respondent maintains that none of the Petition’s three claims

has merit.

More specifically, as for Petitioner’s first and second claims, based on 8 U.S.C. §

1231(a)(6)/Zadvydas and the substantive due process clause, respectively, Respondent

indicates that they lack merit, and that Petitioner’s continued detention is reasonable,

since Saint Lucia is likely to issue a travel document at some point in the near future.

More specifically, Respondent states that,

9 “The Due Process Clause of the Fourteenth Amendment contains both a substantive component and a

procedural component. Zinernon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).

The substantive component “bars certain arbitrary, wrongful government actions regardless of the

fairness of the procedures used to implement them.” Zinernon, 494 U.S. at 125 [internal quotations marks

omitted]. The procedural component bars ‘the deprivation by state action of a constitutionally protected

interest in life, liberty, or property ... without due process of law.’ Id. at 125–126 [internal quotations marks

and citations omitted; emphasis in original]. One of the differences between the two claims is that a

substantive due process violation ‘is complete when the wrongful action is taken,’ while a procedural due

process violation ‘is not complete unless and until the State fails to provide due process’ (which may

occur after the wrongful action in question). Id.” Henry v. Dinelle, No. 9:10-CV-0456 GTS/DEP, 2011 WL

5975027, at *5 (N.D.N.Y. Nov. 29, 2011).

10 Respondent additionally maintains that Petitioner has incorrectly listed the U.S. Attorney General as a

respondent. As indicated in footnote 1, the Court agrees and dismisses the Attorney General.

7

ICE Enforcement and Removal Operations (“ERO”) has been in regular

contact with the consulate of St. Lucia to request travel documents

necessary to effect Petitioner’s removal. ERO’s most recent contact with

the consulate of St. Lucia regarding its request for Petitioner’s travel

documents was on September 21, 2022. Pending his removal, Petitioner

has been mandatorily detained [sic] as a criminal alien.11 On April 20,

2022, and July 12, 2022, ICE issued a Decision to Continue Detention in

light of its expectation that a travel document would be issued from the

government of St. Lucia and Petitioner would be removed in the reasonably

foreseeable future. There is no institutional barrier to Petitioner’s removal

to St. Lucia; in recent years, DHS has successfully repatriated noncitizens

to St. Lucia.

ECF No. 4 at ¶ 19.12 Indeed, Respondent suggests that removal of aliens to Saint Lucia

is commonplace.13 Respondent, though, offers no explanation for why no travel

document has been obtained for Petitioner despite the passage of a year. For example,

a supporting affidavit from the BFDF Deportation Officer gives no hint of any particular

reason for the delay. Respondent’s memo of law, on the other hand, briefly alludes to a

need to verify Petitioner’s identity, but does not provide specifics. See, ECF No. 4-3 at

pp. 9–10 (“Respondents have shown that BICE has contacted the St. Lucia Consulate to

11 As discussed further below, after ninety days, post-final-removal-order detention is not mandatory,

even for persons convicted of aggravated felonies. See, 8 U.S.C. § 1231(a)(6) (“An alien ordered

removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C),

1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to

the community or unlikely to comply with the order of removal, may be detained beyond the [90-day]

removal period and, if released, shall be subject to the terms of supervision in paragraph (3).” (West

2022); see also, Garland v. Aleman Gonzalez, 213 L. Ed. 2d 102, 142 S. Ct. 2057, 2063 (2022) (“The two

cases before us arise out of respondents’ detention pursuant to § 1231(a)(6), which gives the Federal

Government discretionary authority in specified circumstances to detain aliens who have been “‘ordered

removed’” from the United States.”).

12 Respondent devotes the bulk of his papers to rehashing Petitioner’s criminal history which, while

extensive, is not disputed or particularly relevant to the issue before the Court, namely, whether ICE is

likely to be able to remove Petitioner to Saint Lucia in the foreseeable future.

13 ECF No. 4 at ¶ ¶ 21–23.

8

facilitate his removal and that the consulate once Petitioner’s identity is verified will issue

a travel document.”). Respondent also adds that he “anticipates further reviewing

Petitioner’s continued detention within the next 90 days in the event [ICE] has not secured

travel documents from St. Lucia.” ECF No. 4-1 at ¶ 28 (emphasis added).

As for the procedural due process claim, Respondent asserts that Petitioner

received all the process to which he was entitled during custody reviews in April 2022 and

July 2022. See, ECF No. 4-1 at ¶ 24 (“On April 20, 2022, and July 12, 2022, ICE, issued

a Decision to Continue Detention in light of its expectation that a travel document would

be issued from the government of St. Lucia and Petitioner would be removed in the

reasonably foreseeable future.”); see also, ECF No. 4-2 at pp. 22-23 (copies of Decisions

to Continue Detention, dated April 20, 2022 and July 12, 2022); ECF No. 4-3 at pp. 11-

12 (“The post-removal order custody review process, implemented after Zadvydas and

applied to petitioner, satisfies the requirements of 8 U.S.C. § 1231(a)(6) and the Due

Process Clause. See 8 C.F.R. § 241.4. A detained noncitizen is entitled to review of his

custody status prior to the expiration of the removal period (8 C.F.R. § 241.4(k)(1)) and

at annual intervals thereafter (8 C.F.R. § 241.4(k)(2)), with the right to request interim

reviews not more than once every three months in the period between annual reviews (8

C.F.R. § 41.4(k)(2)(iii)). The reviewing DHS official must consider several factors when

determining whether to release a noncitizen or continue his detention pending removal

from the United States. See 8 C.F.R. § 241.4(f). These factors include the noncitizen’s

prior immigration violations and violent history. Id. Petitioner received consideration of

the regulatory factors in his April 2022 and July 2022 custody redetermination reviews.

Smith Decl. ¶ 24. There, DHS conducted a review of Petitioner’s criminal history,

considered the status of the government’s removal efforts, and concluded that further

detention was warranted.”).

9

On October 24, 2022, Petitioner filed a Reply (ECF No. 6), in which he relates his

own efforts to obtain a travel document from Saint Lucia. In particular, Petitioner asserts

that since October 14, 2021, he has telephoned the Embassy of Saint Lucia eighteen (18)

times, and written to it six (6) times, seeking an explanation for why no travel document

has issued. He maintains the answer he has received is relatively simple: Saint Lucia

has no record of his citizenship. According to Petitioner, in response to his question as

to whether a travel document might issue in one, two or three years, an Embassy official

told him: “There is no specific time [in which Saint Lucia will issue a travel document]

because you left the country as a teenager. We have any [sic] record of you neither can

we confirm that you are a citizen of St. Lucia.” ECF No. 6 at p. 1. Petitioner further

indicates that his ICE Deportation Officer told him that the Saint Lucia Embassy had

promised to provide travel documents, but that the actual Embassy staff refuted that and

insisted that “they did not promise anyone anything because they can not even confirm if

[Petitioner] is a citizen of St. Lucia.” Id.

DISCUSSION

Petitioner is proceeding pro se, and the Court therefore must construe his

submissions liberally as raising the strongest arguments they suggest. See, Pabon v.

Wright, 459 F.3d 241, 248 (2d Cir. 2006) (“We construe complaints filed by pro se litigants

liberally and interpret them to raise the strongest arguments that they suggest.”) (citation

and internal quotation marks omitted).

Petitioner challenges his continued detention by way of habeas corpus review

under 28 U.S.C. § 2241, which “authorizes a district court to grant a writ of habeas corpus

whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of

the United States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir.2003) (quoting 28 U.S.C.

§ 2241(c)(3)); see also Zadvydas v. Davis, 533 U.S. at 687 (petition under § 2241 is the

10

basic method for statutory and constitutional challenges to detention following order of

removal).

Here, it is undisputed that Petitioner is detained pursuant to INA § 241, 8 U.S.C. §

1231, which authorizes detention of aliens after the issuance of a final removal order. In

that regard, the statute requires the Attorney General to accomplish removal within a

period of ninety days (the “removal period”), commencing on the latest of the following

dates:

(i) The date the order of removal becomes administratively final.

(ii) If 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.

(iii) If 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). Detention during the ninety-day removal period is mandatory.

See INA § 241(a)(2) (“During the removal period, the Attorney General shall detain the

alien.”). Thereafter, the INA authorizes the Attorney General to continue to detain aliens,

such as Petitioner, who were ordered removed due to, inter alia, having committed

aggravated felonies, pending removal. See, INA § 241(a)(6), 8 U.S.C. § 1231(a)(6).14

The Procedural Due Process Claim

The Petition alleges a procedural due process violation, based on ICE’s alleged

failure to follow its own procedures. In particular, the Petition asserts that,

Petitioner had not received a “searching periodic review” of his custody

status. ICE has never asserted that special circumstances exist to justify

Petitioner’s prolonged detention, or that Petitioner poses a danger to

14See, 8 U.S.C.A. § 1231(a)(6) (“An alien ordered removed who is inadmissible under section 1182 of this

title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been

determined by the Attorney General to be a risk to the community or unlikely to comply with the order of

removal, may be detained beyond the removal period and, if released, shall be subject to the terms of

supervision in paragraph (3).”).

11

national security or that he’s a flight risk. Thus, Petitioner alleges that his

detention violates . . . procedural due process insofar as ICE has failed to

conduct periodic review of his status in accordance with its own procedures

and has made no determination that he posed either a danger to society or

a flight risk.

ECF No. 1 at p. 9, ¶ 21; see also, id. at ¶ 32 (“[P]rolonged detention more than nine

months without a meaningful review of his detention in accordance with federal

regulations violates his right to procedural due process[.]”).

Petitioner argues that ICE failed to follow its own procedures and/or failed to

provide “meaningful review of his detention in accordance with federal regulations.”

(emphasis added).15 He does not allege he was denied a particular type of review to

which he was entitled under 8 C.F.R. § 241.4(k),16 but, rather, alleges that the review he

received was not meaningful in that it did not consider whether he was a flight risk or a

danger to the community.

However, Petitioner has not demonstrated that his procedural due process rights

were violated. Although Petitioner asserts that ICE failed to provide him with post-

removal-period detention reviews in accordance with its own regulations, he offers only

conclusory assertions in that regard. The record, meanwhile, indicates that Petitioner

received the process to which he was entitled under the pertinent statute and

15 The Court is aware that it is an open question whether § 1231(a)(6)’s failure to explicitly require bond

hearings when detention becomes prolonged violates procedural due process. See, Johnson v. Arteaga-

Martinez, 142 S.Ct. at 1834-35. However, the Court does not interpret the Petition as raising that

argument. Nor, even assuming that such an argument can be gleaned, has Petitioner shown that existing

procedures are inadequate.

16 Petitioner admits, for example, that HQPODU performed his six-month detention review. Pet. at ¶ 16.

12

regulations.17

Petitioner does not dispute, for example, that his post-removal-period detention is

authorized by 8 U.S.C. § 1231(a)(6), since he is “removable under [8 U.S.C.] section . . .

1227(a)(2)” due to having been convicted of aggravated felonies and controlled

substance offenses. Additionally, while the Petition asserts that ICE improperly failed to

consider whether he was a flight risk or a danger to the community, the decisions that he

received from ICE’s Office of Enforcement and Removal Operations indicate that it

considered the factors set forth in 8 C.F.R. § 241.4(e), (f) and (g), which include

consideration of whether he would be a danger to the community or a risk of flight if

released. 8 C.F.R. § 241.4(e)(4)&(6), (f)(7)&(8)(iv).

In sum, Petitioner’s vague contention that he was not provided “meaningful” review

does not establish a procedural due process violation where, as here, it appears ICE

conducted his post-removal period detention reviews in accordance with 8 C.F.R. § 241.4.

See, Diaz-Martin v. Holder, No. CIV.A. 11-6692 PGS, 2012 WL 4661479, at *5 (D.N.J.

Oct. 2, 2012) (“Petitioner also makes conclusory, generalized arguments that his

detention violated his procedural due process rights because he is being denied a “timely

and meaningful opportunity to demonstrate that he should not be detained”. However,

this argument is without merit. Petitioner has received custody reviews as documented

by the decisions of August 30, 2011 and December 20, 2011.”); see also, Portillo v.

17 Respondent has shown that ICE conducted periodic reviews of Petitioner’s detention in accordance with

its regulations, and permissibly opted to continue detaining him after it found that he would likely be removed

to Saint Lucia in the reasonably foreseeable future.

13

Decker, No. 21 CIV. 9506 (PAE), 2022 WL 826941, at *7 (S.D.N.Y. Mar. 18, 2022) (“[T]o

the extent Portillo suggests that the statutory and regulatory framework at issue has been

errantly applied to him, on the record before the Court, there is no factual basis to so

assert. It is undisputed that ICE has conducted the necessary periodic reviews of Portillo's

detention. It timely conducted both its 90-day and 180-day post-order custody review.

And it served on Portillo its final decisions denying release.”); Moses v. Lynch, No. 15-

CV-4168 (PAM/JJK), 2016 WL 2636352, at *4 (D. Minn. Apr. 12, 2016) (“Moses's

procedural due process claim should be rejected. When immigration officials reach

continued-custody decisions for aliens who have been ordered removed according to the

custody-review procedures established in the Code of Federal Regulations, such aliens

receive the process that is constitutionally required.”) (citation omitted), report and

recommendation adopted, No. 15CV4168 (PAM/JJK), 2016 WL 2596020 (D. Minn. May

5, 2016).

Additionally, the relevant statute and regulations did not entitle Petitioner to an

individualized bond hearing after six months. See, Johnson v. Arteaga-Martinez, 142

S.Ct. 1827, 1830 (2022) (“The issue in this case is whether the text of § 1231(a)(6)

requires the Government to offer detained noncitizens [aliens] bond hearings after six

months of detention in which the Government bears the burden of proving by clear and

convincing evidence that a noncitizen poses a flight risk or a danger to the community.

It does not.”).

Finally, to the extent Petitioner’s papers can be liberally construed as alleging that

the statute and regulations are themselves inadequate to prevent the deprivation of liberty

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that he claims to have suffered –prolonged detention without due process after it became

evident that Saint Lucia would not issue a travel document in the reasonably foreseeable

future—he has not made such a showing. For example, 8 C.F.R. § 241.13 provides a

mechanism for Petitioner to seek release on that basis, which he apparently did not

utilize, 18 and he has not explained why such process would be constitutionally

inadequate for an alien, ordered removed “under [8 U.S.C.] section . . . 1227(a)(2),”

awaiting removal. Accordingly, the procedural due process claim is denied without

prejudice.

The Zadvydas/Substantive Due Process Claim

Petitioner alternatively contends that his continued detention under § 1231(a)(6)

violates that statute and substantive due process, since it is not likely that he will be

removed in the reasonably foreseeable future. In Zadvydas, the Supreme Court was

presented with the challenge of reconciling the INA's apparent authorization of indefinite

post-removal-order detention with the Fifth Amendment's prohibition against depriving a

person of their liberty without due process. The Court determined that INA § 241(a), 8

U.S.C. § 1231(a), authorizes detention after entry of an administratively final order of

deportation or removal for a period that is “reasonably necessary” to accomplish the

alien's removal from the United States. Zadvydas, 533 U.S. at 699–700. Recognizing the

practical necessity of setting a “presumptively reasonable” time within which to secure

18 See, Filmon v. Hendricks, No. CIV.A. 13-6739 DMC, 2013 WL 6154440, at *4 (D.N.J. Nov. 15, 2013)

(“Section 241.13 applies “where the alien has provided good reason to believe there is no significant

likelihood of removal to the country to which he or she was ordered removed, or to a third country, in the

reasonably foreseeable future.” 8 C.F.R. § 241.13(a). Since Mr. Filmon does not allege that he provided

immigration officials with good reason to believe there is no significant likelihood of removal in the

reasonably foreseeable future, and Filmon does not set forth facts establishing good reason in his § 2241

petition, he has not alleged any violation of the cited regulations.”).

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removal, the court adopted a period of six months “for the sake of uniform administration

in the federal courts ....” Id. at 701.

After this 6–month period, once the alien provides good reason to believe

that there is no significant likelihood of removal in the reasonably

foreseeable future, the Government must respond with evidence sufficient

to rebut that showing. And for detention to remain reasonable, as the period

of prior post-removal confinement grows, what counts as the “reasonably

foreseeable future” conversely would have to shrink. This 6–month

presumption, of course, does not mean that every alien not removed must

be released after six months. To the contrary, an alien may be held in

confinement until it has been determined that there is no significant

likelihood of removal in the reasonably foreseeable future.

Id.

In the instant case, Petitioner has provided good reason to believe that there is no

significant likelihood of removal in the reasonably foreseeable future. In that regard, as

just mentioned, with the period of post-removal confinement now surpassing thirteen

months, the “reasonably foreseeable future” is a relatively short window. Moreover,

Petitioner indicates that officials at the Saint Lucia Embassy have refused to rule out the

possibility that it could take years before a travel document might be issued. See, Reply

(ECF No. 6) at p.1 (“I asked when should I expect a travel document? One (1) year, two

(2) years or three (3) years? His reply was that there is no specific time because you

left the country as a teenager. We have any [sic] record of you, neither we can confirm

that you are a citizen of St. Lucia.”).

The Government must therefore respond with evidence sufficient to rebut

Petitioner’s showing, and, again, for detention to remain reasonable, what counts as the

“reasonably foreseeable future” must be relatively soon. So far, however, the

Government has not made such rebuttal. At most, Respondent counters that ICE

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regularly removes aliens to Saint Lucia. However, that assertion, while perhaps true, is

irrelevant to Petitioner’s situation, without some showing that the aliens to whom

Respondent refers were similarly situated to Petitioner, meaning that Saint Lucia also had

no record of their citizenship. Nor has Respondent indicated what, if anything, is being

done in conjunction with officials in Saint Lucia to establish Petitioner’s citizenship, so that

a travel document can issue. Nor has Respondent offered any guess as to when

removal might occur. In sum, Respondent has offered little to rebut Petitioner’s

contention that there is no significant likelihood of his removal in the reasonably

foreseeable future.

However, before ruling on this claim, the Court will follow the procedure used by

another Judge of this District under similar circumstances:

The Court finds that, at this time, Respondent has failed to rebut Petitioner's

showing. Respondent argues that the recent evidence supplied by

Petitioner “shows that both the United States government and the Indian

government are working towards verifying Petitioner's identity” and the

“confirmation of Petitioner's identity and the issuance of travel documents

from India are the final steps in his removal.” (Dkt. 4-3 at 11–12). However,

almost six months have passed since that time and Petitioner apparently

remains in the United States. As such, “this Court is left to guess whether

[Petitioner's] deportation might occur in ten days, ten months, or ten years.”

Singh [v. Whitaker,] 362 F. Supp. 3d [93,] 102 [(W.D.N.Y. 2019)].

Nonetheless, the Court does not find it appropriate to grant the petition

without affording Respondent an opportunity to file a supplemental

submission in opposition.

Cyclewala v. Searls, No. 6:21-CV-06372 EAW, 2021 WL 5989781, at *6 (W.D.N.Y. Dec.

16, 2021).

Accordingly, the Court directs Respondent to file any supplemental opposition to

the Petition on or before December 7, 2022. In particular, the submission should specify

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the exact nature of the impediment to the issuance of a travel document and the specific

steps that have been taken to date to resolve the problem. Additionally, Respondent

should provide a well-supported estimate of when a travel document might issue,

including a statement as to amount of time it took to complete the process in other cases

involving citizens of Saint Lucia for whom citizenship records were missing or nonexistent.

CONCLUSION

For the reasons explained above the Court denies Petitioner's procedural due

process claim. As for the remaining claims, the Court concludes that Petitioner has met

his initial burden of demonstrating that there is good reason to believe that there is no

significant likelihood of his removal in the reasonably foreseeable future, and grants

Respondent an opportunity to supplement his submissions, on or before December 7,

2022, to rebut that showing. Thereafter, the Court may issue a written decision or

schedule a hearing. The Clerk of the Court is directed to terminate Merrick Garland,

U.S. Attorney General, as a party to this action.

SO ORDERED.

Dated: Rochester, New York

November 22, 2022 ENTER:

Chandan Neal Minatsoa

CHARLES\Y SIRAGUSA

United States District Judge

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