The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT CASILLA ROSARIO,
Petitioner, Case # 23-CV-6424-FPG
v.
DECISION AND ORDER
JEFFREY SEARLS,
in his official capacity as Officer-in-Charge,
Buffalo Federal Detention Facility,
U.S. Immigration and Customs Enforcement,
U.S. Department of Homeland Security,
Respondent.
INTRODUCTION
Petitioner Robert Casilla Rosario (“Casilla”) has filed a 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. Respondent 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.
BACKGROUND
The following facts are taken from the record. Casilla is a native and citizen of the
Dominican Republic who, in 1998, arrived in the United States at five years of age as a lawful
permanent resident (“LPR”). ECF No. 4-1 ¶ 5. From 2015 to 2019, Casilla was convicted of
several crimes, including, among others, second-degree assault, seventh-degree criminal
possession of a controlled substance, and first-degree reckless endangerment. See ECF No. 4-1 ¶¶
6-13; ECF No. 4-2 at 19. On December 15, 2020, the Department of Homeland Security (“DHS”)
issued a Notice to Appear (“NTA”) ordering Casilla to appear before an immigration judge (“IJ”)
on March 3, 2021. ECF No. 4-1 ¶ 16. On May 24, 2021, the IJ granted Casilla’s motion to
terminate the proceedings due to service issues with the NTA. Id. ¶ 20. Then, on June 3, 2021,
DHS issued a NTA asserting that Casilla was removable under section 237(a)(2)(A)(ii) of the
Immigration and Nationality Act, as amended (“INA”), in that “any time after admission, [he] has
been convicted of two crimes involving moral turpitude not arising out of a single scheme of
criminal misconduct.” Id. ¶¶ 22-23; ECF No. 4-2 at 5. The NTA further asserted that he was
removable under section 237(a)(2)(A)(iii) of the INA, in that “any time after admission, [he has]
been convicted of” certain aggravated felonies as defined in section 101(a)(43)(F) and (U). ECF
No. 4-2 at 5. On August 4, 2022, Casilla was taken into DHS custody after being released from
state prison. ECF No. 4-1 ¶ 31.
Prior to Casilla’s release from state custody, on March 2, 2022, an IJ ordered Casilla
removed to the Dominican Republic. ECF No. 4-1 ¶ 26. Casilla appealed to the Board of
Immigration Appeals (“BIA”), which dismissed his appeal on July 11, 2022. Id. ¶¶ 27, 29. He
filed a petition for review in the United States Court of Appeals for the Second Circuit on August
9, 2022 and a motion for an emergency stay of removal on August 22, 2022. Id. ¶¶ 32-33. The
Second Circuit granted the stay on October 19, 2022. Id. ¶ 34.
After one of his prior convictions was vacated, Casilla filed a motion to reopen, ECF No.
1 ¶¶ 17-18, and on May 23, 2023, the BIA reopened his removal proceedings for the sole purpose
of considering his eligibility for cancellation of removal, ECF No. 4-1 ¶ 39. The Second Circuit
dismissed Casilla’s petition for review after the BIA granted reopening. ECF No. 1 ¶ 18. Casilla
filed an application for cancellation of removal for certain permanent residents on August 7, 2023,
and on September 21, 2023, the IJ found Casilla removable, ordered him removed to the
Dominican Republic, and denied his application for cancellation of removal. ECF No. 4-1 ¶¶ 41-
47. On October 23, 2023, the BIA received Petitioner’s notice of appeal challenging the IJ’s order
of removal. ECF No. 5-1 at 2.
On July 31, 2023, Casilla filed the present petition. ECF No. 1. At this point, he has been
detained by immigration authorities for over fifteen months.
DISCUSSION
Casilla argues that because his detention has been unreasonably prolonged, he is entitled
to a bond hearing before a neutral decisionmaker wherein the government bears the burden of
justifying his detention by clear and convincing evidence based on risk of flight or dangerousness.
ECF No. 1 ¶¶ 37-39. He further argues that, at any such hearing, the decisionmaker must consider
whether less restrictive alternatives to physical detention could reasonably address those risks. See
id. ¶ 39. The Court agrees.
In several provisions, the INA authorizes the detention of noncitizens1 pending removal.
Relevant here is 8 U.S.C. § 1226, which gives immigration officials the authority to arrest and
detain a noncitizen pending a decision on whether he 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). While the
default rule is that officials may release a noncitizen on bond or conditional parole, section 1226(c)
“carves out a statutory category of [noncitizens] who may not be released.” Jennings v. Rodriguez,
138 S. Ct. 830, 837 (2018). The parties agree that Casilla is detained pursuant to section 1226(c).
See ECF No. 1 ¶ 27; ECF No. 4-3 at 6.
Although section 1226(c) “mandates detention of any [noncitizen] falling within its scope”
and does not contemplate periodic bond hearings, Jennings, 138 S. Ct. at 842, 847, this Court has
repeatedly held that mandatory detention under section 1226(c) may violate a noncitizen’s
procedural due process rights if he is held for an unreasonably long period. See e.g., Moco v.
Searls, No. 23-CV-6316-FPG, 2023 WL 7069755, at *2-3 (W.D.N.Y. Oct. 26, 2023); Meija Nunez
v. Searls, No. 23-CV-6300-FPG, 2023 WL 6499264, at *2 (W.D.N.Y. Oct. 5, 2023); Adegor-
Ederaine v. Garland, No. 22-CV-6109-FPG, 2022 WL 4280812, at *2 (W.D.N.Y. Aug. 1, 2022).
To determine whether a noncitizen’s continued detention under section 1226(c) has violated his
procedural due process rights, the Court first considers whether he has been held for an
“unreasonably long period.” Adegor-Ederaine, 2022 WL 4280812, at *2; see also Hemans v.
Searls, No. 18-CV-1154, 2019 WL 955353, at *5 (W.D.N.Y. Feb. 27, 2019). If he has, the Court
proceeds to analyze whether he has received sufficient process to justify such detention. Adegor-
Ederaine, 2022 WL 4280812, at *2.
When evaluating whether a petitioner’s detention has been unreasonably prolonged, “two
factors of particular importance are (1) the length of detention and (2) the reason for delay.”
Vasquez-Ramos v. Barr, No. 20-CV-6206-FPG, 2020 WL 13554810, at *4 (W.D.N.Y. June 26,
2020). There is no set period beyond which the length of detention weighs in a petitioner’s favor.
However, after twelve months, courts become “extremely wary” of continued detention without a
bond hearing. Fremont v. Barr, No. 18-CV-1128-LJV, 2019 WL 1471006, at *4 (W.D.N.Y. Apr.
3, 2019); see also Adegor-Ederaine, 2022 WL 4280812, at *2. But lesser periods of time may be
constitutionally suspect too, and this Court has therefore concluded that periods ranging from
nearly nine months to ten months may also weigh in a petitioner’s favor, depending on the
circumstances. See e.g., Destyl v. Garland, No. 23-CV-6021-FPG, 2023 WL 3603666, at *3
(W.D.N.Y. May 23, 2023) (ten months); Vasquez-Ramos, 2020 WL 13554810, at *5 (ten months);
Balogun v. Wolf, No. 20-CV-6574-FPG, 2020 WL 13553495, at *5 (W.D.N.Y. Dec. 3, 2020)
(eight months and 23 days).
In any event, Casilla has now been detained for over fifteen months and the length of his
detention therefore weighs in his favor. See Adegor-Ederaine, 2022 WL 4280812, at *2.
Moreover, he is still in removal proceedings, and it appears that his appeal is still pending before
the BIA. “[P]articularly because [Casilla] is still in the administrative phase of his removal
proceedings,” the Court finds that “the length of detention militates in [his] favor.” Gutierrez v.
Barr, No. 20-CV-6078-FPG, 2020 WL 2059845, at *2 (W.D.N.Y. Apr. 29, 2020).
Furthermore, the delay appears to be attributable to the normal administrative and appeals
process. While Respondent states that Casilla is the only party who has requested extensions of
time, see ECF No. 4-1 ¶¶ 28, 43; ECF No. 4-3 at 11, there is no evidence that Casilla has abused
the processes available to him or otherwise maliciously delayed the proceedings. At most,
Respondent argues that he is unlikely to succeed on appeal. ECF No. 4-3 at 11-12. This is
significant, as the Second Circuit has distinguished those petitioners who have “substantially
prolonged [their] stay by abusing the processes provided to [them]” from those who have “simply
made use of the statutorily permitted appeals process.” Hechavarria, 891 F.3d at 56 n.6. 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. Absent evidence of bad faith or abuse, the Court will not hold
Casilla’s use of the normal administrative and appeals process against him.
Respondent appears to further contend that Casilla’s criminal history, including his
criminal conduct while incarcerated, weighs against finding that his detention has been
unreasonably prolonged. See ECF No. 4-3 at 14-15. The Court disagrees. Whether Casilla poses
a danger to the community, as Respondent suggests he does, is a proper inquiry for a bond hearing;
“it is not relevant to this Court’s inquiry regarding the reasonableness of [the duration of] his civil
detention.” Vasquez-Ramos, 2020 WL 13554810, at *4.
Having concluded that Casilla’s detention has been unreasonably prolonged, the Court
proceeds to analyze whether he has received sufficient process to justify his continued detention.
See Agedor-Ederaine, 2022 WL 4280812, at *2. He has not. Although DHS has reviewed
Casilla’s detention pursuant to 8 C.F.R. § 241.4 as recently as May 11, 2023, see ECF No. 4-1 ¶¶
37-38, such proceedings are inadequate to justify his continued detention for two reasons. First,
in those proceedings, Casilla bore the burden of “demonstrat[ing] to the satisfaction of the Attorney
General or [his] designee that his . . . release [would] not pose a danger to the community or to the
safety of other persons or to property or a significant risk of flight.” 8 C.F.R. § 241.4(d)(1).
Second, an Immigration and Customs Enforcement (“ICE”) official—not a neutral
decisionmaker—made those custody determinations. See ECF No. 4-2 at 23, 43 (custody
redetermination decisions signed by ICE Unit Chief); see also Rodriguez v. Barr, 488 F. Supp. 3d
29, 42 (W.D.N.Y. 2020) (concluding that such procedures resulted in a significant risk of an
erroneous deprivation of noncitizen’s liberty interests). “Now that [Casilla’s] detention has
become unreasonably prolonged, due process requires a greater opportunity to be heard ‘at a
meaningful time and in a meaningful manner.’” Rodriguez, 488 F. Supp. 3d at 42 (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Accordingly, after over fifteen months in custody without a constitutionally adequate
opportunity to be heard, Casilla is entitled to relief in the form of a bond hearing before an IJ with
proper procedural safeguards, namely, (1) the government must bear the burden of proving by
clear and convincing evidence that Casilla continues to pose and presently poses a flight risk or a
danger to the community and (2) before concluding that Casilla’s continued detention is justified,
the IJ must also consider less restrictive alternatives to detention, and find that no condition or
combination of conditions short of detention can reasonably assure his appearance and the safety
of the community. Adegor-Ederaine, 2022 WL 4280812, at *2-3 (citing Fremont 2019 WL
1471006, at *7-8).
CONCLUSION
For the foregoing reasons, Petitioner is entitled to habeas corpus relief under 28 U.S.C. §
224] and the petition, ECF No. 1, is GRANTED.
On or before November 28, 2023, Respondent shall hold a bond hearing for Petitioner
before an IJ, at which the government bears the burden of proving by clear and convincing
evidence that Petitioner’s continued detention 1s justified based on his present risk of flight or
danger to the community. To conclude that detention is justified, the IJ must also find that there
exists no less restrictive alternative to detention that could reasonably assure his appearance and
the safety of the community. If a bond hearing is not held on or before November 28, 2023,
Respondent shall release Petitioner immediately with appropriate conditions of supervision. By
December 4, 2023, Respondent 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.
IT IS SO ORDERED.
Dated: November 7, 2023
Rochester, New York
United States District Judge
Western District of New York