The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT MOCO,
Petitioner
23-CV-6316-FPG
v.
DECISION AND ORDER
JEFFREY SEARLS,
in his official capacity as Officer-in-Charge,
Buffalo Federal Detention Facility
Defendant
INTRODUCTION
On June 9, 2023, Petitioner Robert Moco 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 July 25, 2023, the Government responded to the petition. ECF No. 4.
On August 23, 2023, Petitioner replied. ECF No. 5. On August 28, 2023, Petitioner filed a motion
for miscellaneous relief, in which he requested, inter alia, additional time to submit supplemental
materials in connection with his reply. ECF Nos. 6-8. 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. Petitioner’s motion for miscellaneous relief is DENIED as
moot.
BACKGROUND
The following facts are taken from the record. Petitioner is citizen of Albania. ECF No.
4-4 at 2. On an unknown date, Petitioner entered the United States as a non-immigrant and his
status was adjusted to that of a lawful permanent resident sometime in 2008, but his application
for naturalization was denied in 2013. ECF No. 4-4 at 2-3. On April 7, 2015, Petitioner was
convicted of stalking and criminal contempt, and sentenced to a seven-year term of imprisonment.
12, 2021, Petitioner was issued a Notice to Appear (“NTA”) charging him with removability from
the United States pursuant to 8 U.S.C. § 1227. Id.
On May 31, 2022, after approximately seven years’ imprisonment, Petitioner was released
and subsequently detained by the Department of Homeland Security (“DHS”). Id. DHS had
previously determined that Petitioner would be detained for the pendency of immigration removal
proceedings against him under 8 U.S.C. § 1226(c). Id. On July 12, 2022, Petitioner’s first
immigration hearing while in DHS custody was held, at which his attorney requested additional
time to prepare, which caused Petitioner’s case to be continued. Id. On July 26, 2022, another
hearing was held, during which Petitioner’s counsel withdrew from representing Petitioner and
recommended that Petitioner receive a mental competency exam, which the immigration judge
ordered to be performed. Id. at 4. On August 31, 2022, after the exam, Petitioner was found
mentally competent to proceed in immigration removal proceedings. Id. Shortly thereafter, on
September 27, 2022, Petitioner filed applications for relief from removal. Id. On October 18,
2022, the immigration judge scheduled a hearing to address Petitioner’s application for
cancellation of removal. Id.
On October 31, 2022, Petitioner’s application for cancellation of removal was denied by
an immigration judge, and Petitioner was ordered removed to Albania. Id. Petitioner then
appealed the decision to the Board of Immigration Appeals (“BIA”) and, on May 11, 2023, the
BIA granted Petitioner’s appeal, ordering the immigration judge to make additional factual
findings. Id. On June 2, 2023, the immigration judge ordered additional briefing to be submitted.
Id. at 5. After the immigration judge approved a request from Petitioner for a one-month
adjournment of his hearing, Petitioner was scheduled for a removal hearing to be held on August
7, 2023.
Petitioner has been in immigration custody since May 31, 2022. Id. at 3. Immigration
authorities reviewed Petitioner’s custody in October 2022 and May 2023. ECF No. 4-4 at 3.
Petitioner has not received a bond hearing.
On June 9, 2023, Petitioner filed the present action. ECF No. 1. Petitioner has now been
detained by immigration authorities for approximately fifteen-months.
DISCUSSION
I. Petition
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.
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.
Here, Petitioner falls within the ambit of Section 1226(c). See Thomas v. Whitaker, No. 18-CV-
6870, 2019 WL 1641251, at *3 (W.D.N.Y. Apr. 16, 2019).
1
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. This Court has held that “mandatory detention under Section 1226(c) may violate an
alien’s 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). “Once the alien’s detention
exceeds a reasonable period, the alien may be entitled to relief, including the right to a bond hearing
with appropriate procedural safeguards.” Id.
The question presented is whether the 1226(c) statutory 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
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 fifteen months. 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 Dutt v. Nielsen,
No. 19-CV-155, 2019 WL 13217219 at *2 (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”); 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”); Bermudez Paiz v.
Decker, No. 18-CV-4759, 2018 WL 6928794, at *13 (S.D.N.Y. Dec. 27, 2018) (finding sixteen-
month detention unreasonable).
Further, this delay appears to be attributable to the normal administrative and appeals
process. Although Petitioner has requested adjournments and filed a timely appeal 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 appealed an adverse agency determination does not bar
relief. ECF No. 4-4 at 8. Accordingly, Petitioner has passed the first step.
Second, the process that Petitioner has been afforded is constitutionally inadequate as
Petitioner has been detained for an unreasonable period without a proper bond hearing.
Accordingly, Petitioner is entitled to relief in the form of a bond hearing before an immigration
judge with proper procedural safeguards—namely, (1) the government must bear the burden of
proving by clear and convincing evidence that Petitioner remains and is presently a risk of flight
or danger to the community; and (2) the immigration judge must also consider less restrictive
alternatives to detention and find that no condition or combination of conditions short of detention
can reasonably assure Petitioner appearance and the safety of the community (i.e., there are no
conditions that would ameliorate the risks that Petitioner poses). See Fremont v. Barr, No. 18-
CV-1128, 2019 WL 1471006, at *7-8 (W.D.N.Y. Apr. 3, 2019).
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, which he has not yet received. “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).
For these reasons, this aspect of Petitioner’s petition is granted.
II. Motion for Miscellaneous Relief
On August 28, 2023, Petitioner filed a motion for miscellaneous relief, in which he (i)
challenged the validity of the declaration of Peter Sukmanowski, DHS Assistant Field Office
Director, and (ii) requested additional time to submit supplemental materials in connection with
his reply. ECF Nos. 6-8. The Court rejects Petitioner’s first challenge and finds his request for
additional time moot.
First, Petitioner argues that Peter Sukmanowski’s declaration, submitted in support of
Respondent’s opposition, is invalid because it was not signed and dated and therefore should be
resubmitted to him and the Court. ECF No. 6-8. After reviewing Sukmanowski’s declaration, the
Court finds that it is not invalid. ECF No. 4-4 at 8. Rather, the declaration is digitally signed and
dated July 20, 2023. Id. Sukmanowski’s electronic signature does not invalidate his declaration.
Second, to the extent Petitioner requests additional time to submit supplemental materials,
the Court has received and reviewed the materials Petitioner has submitted with his petition and
accordingly finds this request moot. See ECF Nos. 7-8.
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. Petitioner’s motion for miscellaneous relief is DENIED.
By November 17, 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. 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. If a bond hearing is not held by November 17,
2023, Respondent Searls shall release Petitioner immediately with appropriate conditions of
supervision. By November 17, 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: October 26, 2023 CM ;
Rochester, New York :
HON. FRANK P.GERACL JR.
United States District Court
Western District of New York