# Balbosa v. Garland

> District Court, W.D. New York · May 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10366158

## Case

- **Court:** District Court, W.D. New York
- **Decided:** May 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MICHAEL BALBOSA,
Petitioner
23-CV-6013-FPG
v.
DECISION AND ORDER
MERRICK GARLAND, et al.,

Defendant

INTRODUCTION
On January 4, 2023, Petitioner Michael Balbosa brought this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, challenging his continued detention at the Buffalo Federal
Detention Facility. ECF No. 1. On February 23, 2023, the Government responded to the petition.
ECF No. 8. On March 20, 2023, Petitioner replied. ECF No. 9. Having reviewed the record and
the briefing, the Court finds that a hearing is unnecessary to resolve the petition. For the reasons
below, the petition is GRANTED IN PART and DENIED IN PART.
BACKGROUND
The following facts are taken from the record. Petitioner is a native and citizen of Trinidad
and Tobago. ECF No. 8-3 at 2. On or about March 19, 1993, Petitioner entered the United States
as a non-immigrant (B2) and his status was adjusted to that of a lawful permanent resident on July
23, 2002. ECF No. 8-4 at 1. On October 11, 2019, Petitioner was convicted of endangering the
welfare of children, storing, or maintaining child pornography. Id. On March 31, 2021, Petitioner
was issued a Notice to Appear (“NTA”) charging him with removability from the United States
under 8 U.S.C. § 1227(a)(2)(e)(i) as a non-citizen who, after entry, has been convicted of a crime
of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child
abandonment. Id.
On May 26, 2021, an immigration judge (“IJ”) found Petitioner removable as charged
under 8 U.S.C. § 1227(a)(2)(e)(i), after a bond hearing was held on May 20, 2021. Id. at 4. After
this decision, Petitioner filed a cancellation of removal application, which was granted by an IJ in
the exercise of discretion on July 21, 2021. Id. The Department of Homeland Security (“DHS”)

appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”), which reversed the IJ’s
decision granting cancellation of Petitioner’s removal. Id. The BIA concluded that Petitioner had
not met his burden of establishing that a grant of cancellation of removal was warranted in the
exercise of discretion, which resulted in Petitioner being subject to a final order of removal. Id.
On April 21, 2022, Petitioner appealed his removal order to the Third Circuit, where it remains
pending. Id.
Petitioner has been in immigration custody since April 5, 2021. Id. at 3. Immigration
authorities have reviewed Petitioner’s custody on four occasions: April 2021, May 2021, June
2022, and July 2022. ECF No. 8-1 at 3-4. At his first review, an IJ determined that Petitioner’s
continued detention was warranted because he constituted a threat to public safety if released. ECF

No. 8-3 at 3. Immigration authorities declined to release Petitioner at subsequent reviews.
Petitioner’s only bond hearing was held in May 2021. ECF No. 8-3 at 3.
On January 4, 2023, Petitioner filed the present action. ECF No. 1. Petitioner has now
been detained by immigration authorities for approximately 25 months.
DISCUSSION
Petitioner argues that, as a matter of procedural due process, he is entitled to a bond hearing
wherein the government bears the burden of justifying his detention by clear and convincing
evidence based on risk of flight or dangerousness.1 The Court agrees.

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). This includes aliens, like Petitioner, whose removal is stayed pending
appeal. See id. While Section 1226(a) permits immigration authorities to release aliens pending
the completion of removal proceedings, Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018),
immigration authorities require the alien, not the government, to prove that release is justified, i.e.,
that he is not a risk of flight or danger to the community. See Hemans v. Searls, No. 18-CV-1154,
2019 WL 955353, at *9 (W.D.N.Y. Feb. 27, 2019); Darko v. Sessions, 342 F. Supp. 3d 429, 433
(S.D.N.Y. 2018).
The question is whether this scheme is constitutional as applied to Petitioner. To determine
whether an alien’s 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 v. Feeley, No. 19-CV-6090, 2019 WL 1959485, at *2
(W.D.N.Y. May 2, 2019) (discussing in context of detention under 8 U.S.C. § 1226(c)); see also
Hemans, 2019 WL 955353, at *5. 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 his
continued detention. Hemans, 2019 WL 955353, at *5.
Applying this framework, the Court concludes that Petitioner is entitled to relief.
First, Petitioner’s detention has been unreasonably prolonged. He has been detained for
approximately two years. On its face, this is a significant factor favoring Petitioner; indeed, courts

have granted relief to aliens who have been detained for similar periods. See, e.g., Hemans, 2019
WL 955353, at *6 (noting that detention lasting two years and three months “weigh[ed] heavily in
[the petitioner’s] favor”); see also Dutt v. Nielsen, No. 19-CV-155, ECF No. 21 at 4 (W.D.N.Y.
May 7, 2019) (collecting cases for proposition that fifteen-month detention is “beyond the point at
which courts find detention unreasonably prolonged”).

Further, this delay appears to be attributable to the normal administrative and appeals
process. Although Petitioner has filed timely appeals of his order of removal—which inevitably
extended his detention—Respondents do not suggest that he has abused the processes available to
him or otherwise maliciously delayed proceedings. This is significant, as the Second Circuit has
made a distinction 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.” Hechavarria v. Sessions, 891 F.3d 49, 56 n.6 (2d Cir. 2018). In other words,
pursuit of relief from removal “does not, in itself, undermine a claim that detention is unreasonably
prolonged.” Brissett v. Decker, 324 F. Supp. 3d 444, 453 (S.D.N.Y. 2018); see also Hemans, 2019
WL 955353, at *6. Thus, contrary to Respondents’ suggestion, the mere fact that Petitioner sought

appeals of adverse agency decisions does not bar him from relief. ECF No. 9 at 11-12.
Accordingly, Petitioner has passed the first step.
Second, the process that Petitioner has been afforded is constitutionally inadequate. While
immigration authorities place the burden on the alien to prove that he should be released due
process requires more. Specifically, the “consensus view” is that due process requires the
government, not the alien, to prove continued detention is justified by clear and convincing
evidence. Darko, 342 F. Supp. 3d at 435 (collecting cases); see also Martinez v. Decker, No. 18-
CV-6527, 2018 WL 5023946, at *5 (S.D.N.Y. Oct. 17, 2018). Therefore, because Petitioner’s
detention has been unreasonably prolonged, and because he has not yet been afforded a

constitutionally adequate bond hearing, his continued detention violates his due process rights.
He is entitled to relief in the form of a bond hearing with proper procedural safeguards. Of note,
Petitioner has not received a bond hearing since his first was held in May 2021, approximately two
years ago. “Once his detention has been unreasonably prolonged, an alien has a right to a new
bond hearing.” Thomas v. Whitaker, No. 18-CV-6870-FPG, 2019 WL 13217738, at *3 (W.D.N.Y.

Aug. 7, 2019).
However, purely as a procedural matter, the Court agrees with Respondents that the only
proper respondent is Jeffrey Searls, Officer in Charge of the ICE Buffalo Field Office. See ECF
No. 8-1 at 1-2 n.2. 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)).
CONCLUSION

For the foregoing reasons, 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 June 7, 2023, 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 risk of flight or danger to the
community. If a bond hearing is not held by June 7, 2023, Respondent Searls shall release
Petitioner immediately with appropriate conditions of supervision. By June 9, 2023, 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 this case.
IT IS SO ORDERED.
Dated: May 23, 2023
Rochester, New York

HON. FRANK P. GERACTI, JR.
United States District Court
Western District of New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366158. Public record. Not legal advice.