Opinion

Kiptanui v. Searls

Court: District Court, W.D. New York
Filed: Nov 8, 2023
Cited by: 0 cases
Authority: More cited than 27.9%

concluding that the alien’s “litigation strategy [was] perfectly permissible,” but he 25 could “not rely on the extra time resulting therefrom to claim that his prolonged detention violates substantive due process”

How later courts described this case

concluding that the alien’s “litigation strategy [was] perfectly permissible,” but he 25 could “not rely on the extra time resulting therefrom to claim that his prolonged detention violates substantive due process”
substantive due process “prevents the government from engaging in conduct that shocks the conscience . . . or interferes with rights implicit in the concept of ordered liberty”
concluding that “the government’s interest outweigh{[ed] that of Petitioner” because (1
noting a “sharp contrast” between procedural protections afforded to criminal defendants later detained under Section 1226(c) and those afforded to Section 1226(a) detainees

Written by the judges who cited it.

The opinion

STATES DiS

TRO

UNITED STATES DISTRICT COURT OY

WESTERN DISTRICT OF NEW YORK Noy 8 2023 aX

Lap,

Lee LOewengury cs

<TAN RN D Ww

JAMES TANUI KIPTANUI, ISTRICT OF

Petitioner,

V. 23-CV-672 (JLS)

JEFFREY SEARLS, in his official

capacity as Officer-in-Charge, Buffalo

Federal Detention Facility,

Respondent.

DECISION AND ORDER

Petitioner James Tanui Kiptanui, a native and citizen of Kenya, petitions

this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons

that follow, the Court denies the relief requested and dismisses the petition.

BACKGROUND

Petitioner entered the United States in 2004 as a refugee from Kenya. Dkt. 9

at 2; Dkt. 6-1 4 5.! In the years following Petitioner’s arrival in the United States,

he encountered law enforcement numerous times. See Dkt. 6-1 94 6-10; Dkt. 6-2 at

9-23. These encounters resulted in various arrests, convictions, and sentences. See

id. On March 28, 2018, while Petitioner was in custody at Middlesex Correctional

Facility, the U.S. Department of Homeland Security (“DHS”) issued an immigration

1 Unless otherwise noted, page references are to the numbers automatically

generated by CM/ECF, which appear in the header of each page.

detainer as to Petitioner based on probable cause to believe that he is a removable

alien. See Dkt. 6-1 4 12; Dkt. 6-2 at 24. On February 28, 2019, U.S. Immigration

and Customs Enforcement (“ICE”) agents arrested Petitioner and took him into

DHS custody. See Dkt. 9 at 4; Dkt. 6-1 § 14.

I. OVERVIEW OF REMOVAL PROCEEDINGS

On or around May 24, 2018, DHS issued a Notice to Appear (“NTA”) charging

that, because Petitioner had been convicted of an aggravated felony (grand theft of a

motor vehicle in violation of Ohio law), he is removable pursuant to 8 U.S.C. §

1227(a)(2)(A)(@ii). See Dkt. 6-2 at 25. Petitioner appeared before an Immigration

Judge on April 22, 2019. Dkt. 9 at 8; Dkt. 6-1 4 19. At that proceeding, the court

sustained the charge of removability by clear and convincing evidence, found that

Petitioner had been convicted of an aggravated felony, and designated Kenya as the

country of removal. Dkt. 6-1 § 19; Dkt. 6-2 at 31.

On August 1, 2019, an individual merits hearing commenced before the

immigration court. Dkt. 6-1 § 23. The hearing continued over three dates—August

1, September 18, and October 30. Jd. 4 23-26. The court took the matter under

advisement on October 30, 2019. Id. § 26. On January 22, 2020, United States

Immigration Judge John Furlong issued a decision denying various applications by

Petitioner and ordering him “removed to Kenya.” Dkt. 6-2 at 30-55.

On February 24, 2020, Petitioner appealed the removal order to the Board of

Immigration Appeals (“BIA”). See id. at 56. On November 19, 2020, BIA dismissed

Petitioner’s appeal because Petitioner had not “properly” submitted “a brief on

appeal, despite indicating on the Notice of Appeal” that he intended to do so. See id.

at 59.2 On January 7, 2021, Petitioner contemporaneously filed with BIA (1) an

emergency motion to stay removal; and (2) a motion to reopen his immigration

proceedings. See id. at 64-70. BIA granted Petitioner’s request to stay removal on

January 12, 2021, id. at 72, and then denied Petitioner’s request to reopen on

August 10, 2021. See id. at 78.

On August 31, 2021, Petitioner filed a Petition for Review (“PFR”) with the

United States Court of Appeals for the First Circuit challenging BIA’s August 10,

2021 decision. See Dkt. 6-1 { 44; Kiptanui v. Garland, Court of Appeals Docket No.

21-1684 (1st Cir. 2021). The Court entered a stay of removal on November 30,

2021. See 1st Cir. Dkt. 21-1684. On January 4, 2022, the respondent (Attorney

General Merrick B. Garland) filed an unopposed motion to remand the matter to

BIA for reevaluation of certain issues. See id. On January 26, 2022, the Court

issued an order vacating the BIA decision “in relevant part” and remanding the

matter for further proceedings “consistent with the government’s remand request.”

Id. Under the January 26, 2022 order, the PFR would “remain pending” and be

“held in abeyance pending further order.” Id. In addition, the November 30, 2021

stay of removal would “remain in effect.” Jd. On February 8, 2022, BIA issued a

2 Petitioner did submit a brief through counsel, but the brief was rejected as

untimely. See id. at 57.

3 The First Circuit docket in this matter is hereinafter cited as “1st Cir. Dkt. 21-

1684.”

notice acknowledging that the case had been remanded from the First Circuit. Dkt.

6-2 at 82-83.

On September 1, 2022—following the First Circuit’s remand order—BIA

ordered Petitioner’s case “reopened” and directed that the “record” be “remanded to

the Immigration Judge for further adjudication and entry of a new decision.” Id. at

89.4 Following several adjournments, a hearing for additional fact finding

commenced before an Immigration Judge on January 20, 2023. Dkt. 6-14 58. The

hearing continued on February 9, 2023 and March 28, 2023. Id. 74 58, 61.

At the March 28, 2023 proceeding, an issue was raised as to Petitioner's

mental competency. Id. | 61. On or around September 21, 2028, a hearing took

place to determine whether Petitioner is competent to engage in removal

proceedings. See Dkt. 11, 12. The immigration court found petitioner to be

competent. See id. It also addressed the merits of Petitioner’s removal but did not

issue a decision as to removal. Jd. Both parties state that a written decision is

forthcoming. Id.

II. PETITIONER’S CHALLENGE TO DETENTION IN DHS CUSTODY

On July 10, 2023, while the fact-finding proceeding before the immigration

court remained ongoing, Petitioner filed a petition with this Court challenging his

detention in DHS custody. See Dkt. 1.

4 Because BIA’s September 1, 2022 order rendered its August 10, 2021 decision

nonfinal, the First Circuit dismissed the PFR. See 1st Cir. Dkt. 21-1684.

Petitioner has been continuously detained in DHS custody since he was

arrested by ICE agents on February 28, 2019. See Dkt. 6-4 at 3; Dkt. 9 at 2. Upon

his arrest, a custody determination review was performed, and it was determined

that Petitioner would be detained by DHS pending a final administrative

determination in his case. See Dkt. 6-2 at 27. Petitioner requested that an

immigration judge review this custody determination, :d., and a hearing was set for

March 25, 2019. Dkt. 6-1 § 16; Dkt. 9 at 7. The hearing was adjourned multiple

times to afford Petitioner the opportunity to obtain counsel. Dkt. 6-1 4 16-18; Dkt.

9 at 7-8. Then, at the April 22, 2019 proceeding—where the immigration court

sustained the charge of removability—Petitioner did appear with an attorney. Dkt.

6-1 § 19; Dkt. 9 at 8.5 Both parties state that, at the April 22, 2019 proceeding, the

immigration judge informed Petitioner that he may move for bond. See Dkt. 6-1 4

19; Dkt. 9 at 8. But according to Petitioner, “no bond hearing was ever held”

because “[n]o bond application was filed.” Dkt. 9 at 8.

Respondent contends, however, that Petitioner was eventually granted a

bond hearing after he moved for habeas relief in light of the COVID-19 pandemic.

Dkt. 6-1 § 29. That hearing allegedly took place on May 6, 2020. Id. | 31.6

5 According to Respondent, that attorney represented Petitioner on the issue of

bond, but did not represent him for purposes of removal proceedings. See Dkt. 6-1 4

19.

6 The hearing was originally scheduled for April 28, 2020. But, according to

Respondent, “it was adjourned because Petitioner’s counsel was unaware of the

hearing date and needed time to prepare.” Id. □ 30.

Ultimately, the immigration court denied bond on the grounds that Petitioner

presented a danger to the community that no alternatives to detention could

ameliorate. Jd. Later, DHS issued an additional Notice of Custody Determination

on August 5, 2021, “[p]ursuant to a review conducted to comply with requirements

in Frathat v. ICE” because Petitioner had been identified as being “at heightened

risk of severe illness and death upon contracting the COVID-19 virus.” See Dkt. 6-2

at 77. Recognizing that Petitioner is a “noncitizen” who “has an aggravated felony

conviction for grand theft (motor vehicle),” DHS recommended that Petitioner

“remain in ICE custody.” Id.

The record shows that Petitioner’s custody status was reviewed numerous

additional times between June 2020 and March 2022. On June 26, 2020, United

States Immigration Judge Jennifer A. Mulcahy issued an order addressing a

“[rJequest” for “a change in the custody status of [Petitioner] pursuant to 8 C.F.R

236.1(c).” See Dkt. 6-2 at 58.7 After giving “full consideration” to the

“representations” of both DHS and Petitioner, Judge Mulcahy denied Petitioner’s

request. [d. Then, on at least four occasions over the course of approximately one

year, ICE issued a “Decision to Continue,” informing Petitioner that his custody

status had been reviewed and that he would not be released at that time. See id. at

78-77, 81, 84.8 In each instance, ICE stated the reasoning for continued detention,

is unclear from the record when Petitioner made this request.

8 It is unclear from the record whether these determinations were made at

Petitioner’s request.

and informed Petitioner that the decision was made based on a review of his file

and consideration of “factors for consideration set forth at 8 C.F.R. § 241(e), (f), and

(g).” See id.

Petitioner was transferred to the Buffalo Federal Detention Facility on

March 15, 2023, where he is presently in custody. See Dkt. 6-1 94 60, 65; Dkt. 9 at

2.9 From the time that Petitioner was first taken into DHS custody (February 28,

2019) and now, approximately 56 months elapsed.!°

On August 31, 2023, Respondent answered the petition and provided relevant

supporting documents, including a memorandum of law and declarations with

attached exhibits. Dkt. 6. Petitioner replied on September 15, 2023. Dkt. 9. The

Court later received supplemental submissions from both parties. Dkt. 11, 12.

ANALYSIS

Petitioner is detained under 8 U.S.C. § 1226(c), which requires detention of

aliens convicted of certain crimes pending removal proceedings and does not afford

hearing at which the alien may advocate for release.!! He argues that Section

9 According to Respondent, Petitioner was previously detained at the Boston

Federal Detention facility. See Dkt. 6-1 { 60.

10 The parties disagree as to the proper calculation of Petitioner's total time in

detention for purposes of the instant claim. See Dkt. 1 (alleging that Petitioner has

“been subject to mandatory immigration detention for approximately 46 months

while [his] removal proceedings are pending”); Dkt. 6-4 at 11 (arguing that, because

“the better start date to use in analyzing Petitioner’s detention is November 30,

2021,” Petitioner’s “total time in detention” is “approximately 21 months’).

11 Section 1226(c) provides, in relevant part, that the “Attorney General shall take

into custody any alien who... is deportable by reason of having committed any

offense covered in section 1227(a)(2)(A)(ii), (A)Gii), (B), (C), or (D) of this title.” 8

1226(c), as appled to him, violates his Fifth Amendment procedural due process

rights because it requires his continued detention, without a bond hearing, pending

a final removal order. See Dkt. 1 at 3.

Petitioner seeks a writ of habeas corpus requiring Respondent to release him

from custody or, in the alternative, “order a bond hearing” where Respondent “bears

the burden” of proving by “clear and convincing evidence” that his “continued

detention is necessary to prevent flight or danger to the community.” Jd. For the

reasons discussed below, the petition is dismissed.

I. JURISDICTION

Habeas corpus review is available to persons who are “in custody in violation

of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

Circuit courts have jurisdiction, to the exclusion of district courts, over challenges to

the legality of final orders of deportation, exclusion, and removal. See Gittens v.

Menifee, 428 F.3d 382, 384 (2d Cir. 2005) (“[The REAL ID Act, 119 Stat. 231, §

106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of

deportation, exclusion, and removal, providing instead for petitions of review .. □

which circuit courts alone can consider.”). District courts, however, can review

claims by aliens challenging the constitutionality of their pre-removal detention.

See Demore v. Kim, 538 U.S. 510, 516-17 (2008).

U.S.C. § 1226(c)(1)(B). There does not appear to be any dispute as to the statutory

basis for Petitioner’s current detention. See Dkt. 1 J 19 (discussing Section 1226(c));

Dkt. 6-4 at 9 (“The parties do not dispute that Petitioner is detained pursuant to 8

U.S.C. § 1226(c)”).

II. PETITIONER’S DUE PROCESS CLAIM

The Fifth Amendment provides that no person shall be (1) “deprived of,” (2)

“liberty,” (3) “without due process of law.” U.S. Const. amend V. In Hodge v.

Garland, No. 23-CV-447 (JLS), 2023 WL 6856971, at *5-12 (W.D.N.Y. Oct. 18,

2023), this Court discussed in detail the legal principles that govern due process

claims challenging detention under Section 1226(c). Those principles apply equally

in this case and are incorporated here. !2

Petitioner claims that his detention is unconstitutional solely based on its

duration. See Dkt. 1 at 13 (alleging that Petitioner’s “ongoing detention violates the

Due Process Clause of the Fifth Amendment”).!3 But the record does not support

that a due process violation has occurred.

Following his initial arrest on February 28, 2019, Petitioner has actively

litigated whether he may remain in the United States. He has invoked numerous

layers of appellate review with respect to removal, including to BIA and the First

Circuit Court of Appeals. See supra page 3. Petitioner’s chosen litigation strategy

inevitably has had the effect of prolonging his removal proceedings to some extent.

And there is no indication of delay attributable to the government. As this Court

12 A copy of Hodge is appended here as Exhibit A.

13 Petitioner does not seek to avoid mandatory detention by demonstrating that he

is not an alien, that he was not convicted of the predicate crime, or that the agency

is otherwise substantially unlikely to establish that he is in fact subject to

mandatory detention. Relief, therefore, is not warranted on such grounds. See

Demore v. Kim, 538 U.S. 510, 514 n.3 (2008) (a “Joseph hearing” is “immediately

provided to a detainee who claims that he is not covered by § 1226(c)’).

recognized in Hodge, Petitioner “may avail himself of all ‘process’ available to him

in his removal proceedings.” Hodge, 2023 WL 6856971, at *10. But he “cannot

expect resulting delay in his removal proceedings to bolster his due process claim.”

Id.

Like the petitioner in Hodge, Petitioner may elect to regain his liberty by

agreeing to return to his native country. Because he “holds the keys to release,”

there 1s no governmental deprivation of any liberty interest. See id. at *10. Evenif

a governmental deprivation existed here, the amount of process due to Petitioner “is

the amount provided for by Congress.” See id. at *11. And Petitioner has availed

himself of such process throughout his removal proceedings by, for example, seeking

periodic review of his custody status. See supra page 6. In sum, Petitioner’s

detention comports with the Fifth Amendment. See Hodge, 2023 WL 6856971, at

CONCLUSION

For these reasons, the relief requested is denied and the petition is dismissed.

The Clerk of Court is directed to close this case.

SO ORDERED.

Dated: November 8, 2023 . em

Buffalo, New York 7 a L a LY

wen LA eS

UMTED STATES DISTRICTJUDGE

EXHIBIT A

TES DISTR]

EE oe LED Le.

□

UNITED STATES DISTRICT COURT OCT 18 2023

WESTERN DISTRICT OF NEW YORK

yee YC. LoewencuT oF

SSTERN DisTRICT

OSVALDO HODGE,

Petitioner,

v. 23-CV-447 (JLS)

MERRICK GARLAND, in his official

capacity as Attorney General, U.S.

Department of Justice,

ALEJANDRO MAYORKAS, in his

official capacity as Secretary, U.S.

Department of Homeland Security,

THOMAS BROPHY, in his official

capacity as Acting Field Office Director,

Buffalo Field Office, U.S. Immigration

and Customs Enforcement,

JEFFREY SEARLS, in his official

capacity as Officer-in-Charge, Buffalo

Federal Detention Facility,

Respondents.

DECISION AND ORDER

This case presents the question whether the Fifth Amendment’s Due Process

Clause is violated where the government, without any intentional delay, frivolous

litigation, or arbitrary confinement, detains a criminal alien pursuant to the

mandatory detention provision in 8 U.S.C. § 1226(c), for two years, while the alien

actively litigates whether he may remain in the United States, thereby lengthening

the duration of his detention—all while he retains the keys to his hberty if he were

to agree to removal to his native country. This issue goes to the core of

congressional power over immigration issues and national sovereignty. Supreme

Court and Second Circuit authority indicate no constitutional violation—and no

right to a bond hearing—on these facts, where an alien seeks release into the

United States for the duration of his removal proceedings.

For these reasons, and those that follow, the Court denies the relief requested

and dismisses the petition.

BACKGROUND

I. Overview

Petitioner Osvaldo Hodge is a native and citizen of the Dominican Republic.

He entered the United States in August 1990. Hodge has been detained at the

Buffalo Federal Detention Facility pending removal proceedings for approximately

twenty-five months. He petitions this Court for a writ of habeas corpus pursuant to

28 U.S.C. § 2241.

Hodge currently is detained under 8 U.S.C. § 1226(c), which requires

detention of aliens convicted of certain crimes pending removal proceedings and

does not afford a hearing at which the alien may advocate for release. He argues

that Section 1226(c), as applied to him, violates his Fifth Amendment procedural

due process rights because it requires his continued detention, without a bond

hearing, pending a final removal order.

Hodge seeks a conditional writ of habeas corpus “requiring Respondents to

provide [him] with a constitutionally adequate, individualized hearing before an

impartial adjudicator at which Respondents bear the burden of establishing by clear

and convincing evidence that [he] is a danger to the community or a flight risk” such

that “no alternatives to detention could reasonably secure his future compliance

with the orders of immigration officials.” Dkt. 8, at 22 {| 2.1 He also seeks an award

of his costs and attorneys’ fees pursuant to 28 U.S.C. § 2412. Id. at 22 4 3.

II. Immigration History, Criminal History, and Detention?

In 1990, Hodge entered the United States in Puerto Rico as a lawful

permanent resident. Dkt. 12, at 2 7 3; Dkt. 12-1. at 295. He has lived in the

United States since that time, with the exception of one brief trip to the Dominican

Republic in 1999 to visit family. Dkt. 8, at 6 { 26.

A, First Set of Immigration Proceedings & Related Convictions

Hodge first was arrested in 1999 by the East Haven Police Department for

selling a synthetic narcotic and was prosecuted in Connecticut Superior Court. Dkt.

12-1, at 2 7 6; Dkt. 12-2, at 4. In February 2001, he was sentenced to six months in

jail (execution suspended), with two years of probation, based on that arrest. Dkt.

12-2, at 4. On February 20, 2004, Hodge was issued a Notice to Appear for removal

proceedings based on his 2001 controlled substances-related conviction, which made

him removable under Section 212(a)(2)(C) of the Immigration and Nationality Act

1 All page references are to the pagination automatically generated by CM/ECF,

which appears in the header of each page.

2 The parties’ accounts of these events vary in detail but agree on the basic timeline

set forth below.

(“INA”). Id. at 6-8; Dkt. 12-1, at 2] 7. He was ordered detained pending removal

proceedings and requested a redetermination of that decision by an immigration

judge on the same date. Dkt. 12-2, at 9. In March 2004, the immigration judge

concluded that the immigration court did not have jurisdiction over Hodge’s custody

redetermination request. Id. at 10; Dkt. 12-1, at 839 9. Also in March 2004, Hodge

additionally became removable under INA Section 212(a)(2)(A)(i)(ID. Dkt. 12-1, at 3

10; Dkt. 12-2, at 11.

Under circumstances that are unclear, at some point, Hodge was released

from immigration detention. Dkt. 12, at 2 ] 7. In December 2004, he was arrested

for criminal trespass, interference with an emergency call, and failure to appear. for

which he was convicted and sentenced to one year of imprisonment (execution

suspended), with a one-year conditional discharge. Dkt. 12-1, at 3 § 11; Dkt. 12-2,

at 4.

In May 2006, Hodge was arrested for cocaine possession. Dkt. 12-1, at 3 | 12;

Dkt. 12-2, at 2. He was convicted and sentenced to one year of imprisonment

(execution suspended), with a one-year conditional discharge. Dkt. 12-1, at 3 § 12;

Dkt. 12-2, at 4, 12-13.

In January 2007, Hodge was arrested for burglary. Dkt. 12-1, at 3 J 13; Dkt.

12-2, at 4, 14-15. In April 2007, he was arrested for failure to appear. Dkt. 12-1, at

3 14; Dkt. 12-2, at 2, 4. He was convicted of both offenses and sentenced to three

years of imprisonment (execution suspended), with three years of probation. Dkt.

12-2, at 4, 14.

Hodge then was arrested for heroin possession in April 2012. Dkt. 12-1, at 3

{ 15; Dkt. 12-2, at 4. He was sentenced to three years of imprisonment (execution

suspended), with a two-year conditional discharge. Dkt. 12-1, at 3 § 15; Dkt. 12-2,

at 4, 17-18.

In September 2015, Hodge was encountered in Connecticut state court,

identified, and informed that immigration authorities had a warrant to take him

into immigration custody. Dkt. 12-1, at 4 | 17, 18; Dkt. 12-2, at 20. He was taken

to the Hartford Enforcement and Removal and Operations Office and received

another Notice to Appear. Dkt. 12-1, at 4] 18. That Notice to Appear stated that

Hodge was subject to removal under Section 237(a)(2)(B)(i) of the INA, based on his

2007 and 2012 convictions in Connecticut for possession of narcotics. Dkt. 12-2, at

23.3 A September 14, 2015 Notice of Custody Determination stated that the

Department of Homeland Security (“DHS”) was detaining Hodge pending removal

proceedings. Id. at 25. Hodge requested review of this custody determination by an

immigration judge. Id.

On November 17, 2015, Immigration Judge Michael W. Straus denied

Hodge’s application for cancellation of removal for permanent residents and ordered

him removed to the Dominican Republic. Id. at 38; see also Dkt. 12-1, at 4 § 20.

Hodge appealed both the September 2015 denial of bond and the November 2015

order of removal. Dkt. 12-1, at 4 □ 21; Dkt. 12-2, at 40-48. The appeal was

3 These convictions appear to be based on Hodge’s May 2006 arrest for cocaine

possession and his April 2012 arrest for heroin possession. See id.

dismissed as untimely. Dkt. 12-1, at 5 7 22. An immigration judge granted Hodge’s

request and released him on a $30,000 bond in February 2016.4 Dkt. 12-2, at 45-46;

see also Dkt. 12-1, at 8 J 52.

Mental-Health & Substance-Abuse Conditions

Hodge lives with various diagnosed mental-health conditions. Dkt. 8, at 7

27.5 He also has abused alcohol and drugs. Dkt. 8. at 7 | 27. He receives

treatment for his mental-health and substance-abuse conditions and is prescribed

medication. Id.

Hodge alleges that, while confined at the Buffalo Federal Detention Facility

between October 2021 and June 2023, he met with a mental-health professional

three times for no more than fifteen minutes per session. Id. at 9 7 38. He also

alleges that he repeatedly requested changes to his medication because his current

regimen was not sufficient to manage his mental-health conditions. Jd.6

IV. Procedural History

Hodge filed his initial petition on May 19, 2023. Dkt. 1. Before Respondents

answered or responded, the parties agreed to a briefing schedule, which included

time for Hodge to file an amended petition. Dkt. 4. Hodge filed his amended

petition—the operative petition here—on June 16, 20238. Dkt. 8. He also submitted

5 These mental-health conditions—and the treatment Hodge receives for them—

form the general basis for his application under the CAT. See Dkt. 8-3, at 4-35;

Dkt. 12-2, at 100-02.

6 Hodge confirmed that he is not challenging the conditions of his confinement in

this petition. See Dkt. 13, at 5.

a sealed document regarding his mental-health and substance-abuse history in

support of the amended petition. Dkt. 11. On July 31, 2028, Respondents answered

the amended petition and provided relevant supporting documents, including a

memorandum of law and declarations with attached exhibits. Dkt. 12. Hodge

replied on August 15, 2028. Dkt. 18. On September 14, 2023, the Court heard oral

argument on the relief requested in the amended petition and reserved decision.

Dkt. 17.

Hodge’s Section 1226(c) detention, which began on September 10, 2021,’ has

lasted approximately twenty-five months to date. Dkt. 12, at 4 □ 24.

ANALYSIS

L Jurisdiction

Jurisdiction over substantive challenges to final deportation, exclusion, and

removal orders resides with the circuit courts; district courts lack jurisdiction over

the merits of such orders. See Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005)

(holding that the REAL ID Act “eliminates habeas jurisdiction over final orders of

deportation, exclusion, and removal, providing instead for petitions of review ...,

which circuit courts alone can consider”). But district courts can review claims that

pre-removal detention is unconstitutional. See Demore v. Kim, 538 U.S. 510, 516—-

7 Respondents state that Hodge’s immigration detention began on September 10,

2021. See, e.g., Dkt. 12, at 4 | 24. Hodge alleges that he entered immigration

custody in October 2021. Dkt. 8, at 2 4 2. The Court will use the earlier, September

10, 2021 date when analyzing Hodge’s claims in the amended petition. Hodge

currently is in custody at the Buffalo Federal Detention Facility in Batavia, New

York, pending removal proceedings. Dkt. 12-1, at 9 53.

17 (2003). In this way, habeas corpus review is available to persons “in custody in

violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C.

§ 2241(c)(8).

Hodge claims that his detention is unconstitutional based on its duration.

Specifically, he claims that his now twenty-five-month detention under Section

1226(c) without an individualized bond hearing, in which the government bears the

burden of proof, violates his procedural due process rights under the Fifth

Amendment. See, e.g., Dkt. 8, at 3 { 6; id. at 10 J 42, 43; id. at 21-22 |] 70-76.

Respondents do not dispute that the Court has jurisdiction over Hodge’s “challenge

to his continued detention.” Dkt. 12, at 21. The parties agree that Hodge is

detained pursuant to Section 1226(c). See, e.g., Dkt. 8, at 2 § 3; id. at 5 § 20; Dkt.

12, at 4 4 26.

II. Constitutionality of Section 1226(c)

A. Governing Principles

The Fifth Amendment provides that no person shall be (1) “deprived of,”

(2) “liberty,” (8) “without due process of law.” U.S. Const. amend V. It is “well

established that the Fifth Amendment entitles aliens to due process of law in

deportation proceedings.” Demore, 538 U.S. at 523 (quoting Reno v. Flores, 507 U.S.

292, 306 (1993)) (internal quotation marks omitted). But the Supreme Court has

also recognized that “detention during deportation proceedings [is] a

constitutionally valid aspect of the deportation process.” Id. Indeed, “deportation

proceedings ‘would be in vain if those accused could not be held in custody pending

the inquiry into their true character.” Id. (quoting Wong Wing v. United States, 163

U.S. 228, 235 (1896)); see also Zadvydas v. Davis, 583 U.S. 678, 711 (2001)

(Kennedy, J., dissenting) (“Congress’ power to detain aliens in connection with

removal or exclusion .. . is part of the Legislature’s considerable authority over

immigration matters.”).

Equally clear are the “constraints on governmental decisions [that] deprive

individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process

Clause of the Fifth... Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332

(1976). To determine the safeguards necessary to ensure that a petitioner receives

“the opportunity to be heard at a meaningful time and in a meaningful manner,”

the Court considers: (1) “the private interest that will be affected by the official

action;” (2) “the risk of an erroneous deprivation of [that] interest through the

procedures used, and the probable value, if any, of additional procedural

safeguards;” and (3) the [gjovernment’s interest, including the function involved and

the ... burdens that [any other] procedural requirement would impose.” Id. at 333,

335 (internal quotation marks and citation omitted).

Hodge’s detention is mandatory under 8 U.S.C. § 1226(c), which provides that

the Attorney General “shall take into custody any alien who... is deportable by

reason of having committed” certain criminal offenses’ —including, as relevant

8 By contrast, under Section 1226(a), the Attorney General “may continue to detain

the arrested alien” and “may release the alien on... bond... or conditional parole”

pending a “decision on whether the alien is to be removed from the United States.”

8 U.S.C. § 1226(a).

here, (1) an aggravated felony at any time after admission, and (2) under federal

controlled substances law other than an offense involving possession of a small

amount of marijuana for personal use. See 8 U.S.C. § 1226(c)(1)(B);9 8 U.S.C.

§§ 1227(a)(2)(A) (iii), (a)(2)(B) (i); see also Dkt. 12-2, at 70.

The Supreme Court rejected a constitutional challenge to Section 1226(c) in

Demore v. Kim, where it held: “Congress, justifiably concerned that deportable

criminal aliens who are not detained continue to engage in crime and fail to appear

for their removal hearings in large numbers, may require that [such] persons . . . be

detained for the brief period necessary for their removal proceedings.” 538 U-S. at

513. The Court alternatively used the phrase “limited period necessary for. . .

removal proceedings,” id. at 526, and contrasted the “shorter” Section 1226(c) period

with the “indefinite” and “potentially permanent” type of detention addressed in

Zadvydas, 533 U.S. at 690-91. Demore, 538 U.S. at 528. It concluded that no

constitutional violation resulted from detention of the alien at issue “for the limited

period of his removal proceedings.” Jd. at 5381.

an alien meets these criteria, the Attorney General may order release “only if.”

(1) release is necessary for certain witness-protection purposes; and (2) the alien

“will not pose a danger to the safety of other persons or of property and is likely to

appear for any scheduled proceeding.” 8 U.S.C. § 1226(c)(2); see also Jennings v.

Rodriguez, 538 U.S. — , 138 S. Ct. 880, 837-38 (2018) (explaining that “Section

1226(c) . .. carves out a statutory category of aliens who may not be released under

§ 1226(a)” and summarizing Section 1226(c)’s detention and release requirements

(emphasis in original)). The Attorney General also must consider the severity of the

criminal offense. See 8 U.S.C. § 1226(c)(2).

Nothing in Demore mandates any specific form of brevity; nor does Demore

define that term. Instead, the Demore Court recognized that detention pending a

determination of removability has a “definite termination point.” Id. at 529. In

particular, where a petitioner appeals the immigration judge’s decision to the BIA,

such detention ends with a BIA determination and, if applicable, a final order of

removal. See, e.g.,id. Delays attributable to a petitioner may permissibly extend

the termination point. See id. at 530 (identifying delay in petitioner's request for a

continuance of his removal hearing); id. at 531 n.14 (where petitioner argued that

“the length of detention required to appeal may deter aliens from exercising their

right to do so,” concluding that “the legal system . . . is replete with situations

requiring the making of difficult judgments as to which course to follow, and, even

in the criminal context, there is no constitutional prohibition against requiring

parties to make such choices” (internal quotation marks and citations omitted)).

Demore also reiterated the “fundamental premise of immigration law” that,

“[iJn the exercise of its broad power over naturalization and immigration, Congress

regularly makes rules that would be unacceptable if applied to citizens.” Demore,

538 U.S. at 521 (quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)) (internal

quotation marks omitted).

As the Demore Court noted, “the statutory provision at issue govern[ed]

detention of deportable criminal aliens pending their removal proceedings.” Id. at

527-28 (emphasis in original). Detention in this circumstance “necessarily serves

the purpose of preventing deportable criminal aliens from fleeing prior to or during

their removal proceedings, thus increasing the chance that, if ordered removed,

[they] will be successfully removed.” Id. at 528.

Regardless of whether individualized bond hearings would be effective to

achieve the aim of ensuring successful removal, when adopting Section 1226(c),

Congress had before it “evidence suggesting that permitting discretionary release of

aliens pending their removal hearings would lead to large numbers of deportable

criminal aliens skipping their hearings and remaining at large in the United States

unlawfully.” Id.1° And “when the [g]overnment deals with deportable aliens,” that

was enough because “the Due Process Clause does not require [the government] to

employ the least burdensome means to accomplish its goal.” Id. As a result, the

Demore Court concluded that the “evidence Congress had before it . . . supported]

the approach it selected even if other, hypothetical studies might have suggested

different courses of action.” Jd. In sum, detention during removal proceedings “is a

constitutionally permissible part of that process.” Id. at 531.

The Court’s holding in Demore aligns with its prior recognition that “the

responsibility for regulating the relationship between the United States and [fits]

alien visitors [is] committed to the political branches of the Federal Government.”

Diaz, 426 U.S. at 81. Indeed, “[ojver no conceivable subject is the legislative power

of Congress more complete.” Flores, 507 U.S. at 305 (internal quotation marks and

citations omitted). Because decisions regarding immigration “may implicate [the

10 In other words, when Congress enacted Section 1226, “individualized bail

determinations had not been tested under optimal conditions. or tested in all their

possible permutations.” Zd.

United States’] relations with foreign powers, and [because] a wide variety of

classifications must be defined in the light of changing political and economic

circumstances, such decisions are frequently ... more appropriate [for] either the

Legislature or the Executive than [for] the Judiciary.” Diaz, 426 U.S. at 81; see also

United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982) (citing Diaz, 426 U.S.

at 81) (“The power to regulate immigration—an attribute of sovereignty essential to

the preservation of any nation—has been entrusted by the Constitution to the

political branches of the Federal Government.”).

Indeed, imagine a scenario where the number of aliens surges, increasing the

volume of removal proceedings involving criminal aliens and, thereby, slowing the

pace at which those proceedings move. Lenient application of multi-factor tests

(discussed below) results in bond hearings and, presumably, in some cases. released

detainees. Such a scenario arrogates this very sovereignty issue to the judiciary—

and to the aliens themselves by virtue of their chosen litigation strategy. The

Constitution does not require that outcome, and the statute prohibits it.!!

As a result of these broad concerns, the Supreme Court has “underscore[d]

the limited scope of judicial inquiry” into issues related to immigration

legislation. Fiallo v. Bell, 430 U.S. 787, 792 (1977). The power over matters related

to “aliens is of a political character and therefore subject only to narrow judicial

review.” Id. (citation omitted). In particular:

11 To be sure, Congress retains the power to amend the statutory prohibition by

amending Section 1226(c).

[A]ny policy toward aliens is vitally and intricately interwoven with

contemporaneous policies in regard to the conduct of foreign relations,

the war power, and the maintenance of a republican form of

government. Such matters are so exclusively entrusted to the

political branches of government as to be largely immune from

judicial inquiry or interference.

Diaz, 426 U.S. at 81 n.17 (internal quotation marks and citations omitted).

Against this careful backdrop, courts must pay particular attention to the

constitutional interests, governance concerns, and individual rights involved in

these weighty questions. Indeed, courts must employ “a narrow standard of review

of decisions made by the Congress or the President” regarding immigration and

must exercise “the greatest caution” in evaluating constitutional claims that

implicate those decisions. See id. at 81—82.

In addition, Demore highlighted the “process” that has been built into the

mandatory detention provision in Section 1226(c). For example, Section 1226(c)

applies to detainees whose convictions generally were “obtained following the full

procedural protections [the] criminal justice system offers.” See Demore, 538 U.S. at

513; id. at 525 n.9 (noting that “respondent became ‘deportable’ under [Section]

1226(c) only following criminal convictions that were secured following full

procedural protections”); Velasco Lopez v. Decker, 978 F.3d 842, 850 & n.7 (2d Cir.

2020) (noting a “sharp contrast” between procedural protections afforded to criminal

defendants later detained under Section 1226(c) and those afforded to Section

1226(a) detainees).

Finally, an expedited hearing—a Joseph hearing—is available to detainees

who claim they are not subject to Section 1226(c). At a Joseph hearing, “the

detainee may avoid mandatory detention by demonstrating that he is not an alien,

[that he] was not convicted of the predicate crime, or that the [agency] is otherwise

substantially unlikely to establish that he is in fact subject to mandatory

detention.” Demore, 538 U.S. at 514 n.3 (citing 8 C.F.R. § 3.19(h)(2)(ii) (2002), and

Matter of Joseph, 22 1. & N. Dec. 799, 1999 WL 339053 (BIA 1999)).!2

B. Section 1226(c) Detention in Lower Courts

Since Jennings v. Rodriguez, the Second Circuit “has not addressed ... the

standard to be utilized by courts in addressing procedural due process claims for

aliens detained pursuant to [Section] 1226(c) in the immigrant habeas context.”

Ranchinskty v. Barr, 422 F. Supp. 3d 789, 796-97 (W.D.N.Y. 2019). When

determining whether the petitioner’s “length of detention has become unreasonable

or unjustified,” district courts within the Second Circuit have considered factors

such as:

(1) the length of time the petitioner has been detained; (2) the party

responsible for the delay; (8) whether the petitioner has asserted

defenses to removal; (4) whether the detention will exceed the time

the petitioner spent in prison for the crime that made him removable;

(5) whether the detention facility is meaningfully different from a

penal institution for criminal detention; (6) the nature of the crimes

12 Tn his concurrence, Justice Kennedy suggested that, because the Due Process

Clause prohibits “arbitrary” deprivations of liberty, a detainee “could be entitled to

an individualized determination as to his [or her] risk of flight and dangerousness if

the continued detention became unreasonable or unjustified.” Demore, 538 U.S. at

532 (Kennedy, J., concurring). For instance, an “unreasonable delay by the

[government] in pursuing and completing deportation proceedings” may suggest

that detention is being used “not to facilitate deportation, or to protect against risk

of flight or dangerousness, but to incarcerate for other reasons.” Jd. at 532-338.

That analysis would depend on “the circumstances of [the] case.” Jd. at 533.

committed by the petitioner; and (7) whether the petitioner’s

detention is near conclusion.

Id. at 797 (citation omitted). If this analysis reveals that the detention is not

unreasonably prolonged, district courts have concluded that no procedural due

process violation exists and have ended the analysis. See, e.g., Kabba v. Barr, 403

F. Supp. 3d 180, 185 (W.D.N.Y. 2019). But when district courts have concluded that

an alien’s detention is unreasonably prolonged. they next have considered what

process petitioner is due—in other words, whethcr the government has “provided

the procedural safeguards required by the Due Process Clause.” Id.

The collection of resulting outcomes in these recent district court cases turns

significantly on the duration of detention and much less on the petitioner’s

litigation regarding removal as the reason for the duration. The outcomes turn

even less on the reality that petitioners exercise control over the length of detention,

by retaining the ability to consent to release to their native countries pending

removal proceedings—thereby holding the “keys” to their own release.

The factor-driven process used in recent district court decisions should he

considered in light of the Second Circuit’s decision in Doherty v. Thornburgh, 943

F.2d 204 (2d Cir. 1991), which parallels the principles the Supreme Court would

later discuss in Demore. The Doherty court recognized that “an alien’s right to be at

liberty during the course of deportation proceedings is circumscribed by

considerations of national interest.” Jd. at 209. Control “over matters of

immigration and naturalization is the ‘inherent and unalienable right of every

sovereign and independent nation,” and the Constitution vests this control “in the

political branches of government.” Id. (quoting Fong Yue Ting v. United States, 149

U.S. 698, 711 (1893)). The power of Congress in such matters “is plenary, subject to

only limited judicial review.” Id.

Detention of the petitioner in Doherty was “not an end in itself sought by the

Attorney General; rather bail [was] denied . . . to preserve the government’s ability

to later carry out its broader responsibility over immigration matters.” Id. at 211.

Examining the causes for the length of detention, the court recognized that, over the

course of years, the petitioner “exercised skillfully his rights under the deportation

statute’—a “perfectly permissible” litigation strategy, but one that the petitioner

could “not rely on the extra time resulting therefrom” to obtain habeas relief based

on the duration of his detention. Id. Doherty does not foreclose the possibility that

“lengthy detention largely the result of a government strategy intended to delay”

might result in a substantive due process violation. Id.

Because the Doherty petitioner’s detention resulted from his challenge to

removal, “from the outset of his detention, [he had] possessed, in effect. the key that

unlocks his prison cell.”!8 Id. at 212. His choice to contest vigorously his

deportation properly subjected him “to the countervailing measures Congress...

enacted to ensure the protection of national interests.” Id. The Fifth Amendment

guaranteed the petitioner “adequate procedural safeguards during the course of the

deportation proceedings,” as well as liberty pending deportation “absent a proper

13 Tt could not “be said that, by attributing to [the petitioner] primary responsibility

for the delay in resolving his status, he [was] being ‘punished’ for the exercise of his

constitutional rights.” Id.

exercise of statutory discretion by the Attorney General.” Jd. But the Fifth

Amendment did not confer a “substantive due process right not to be deported.” Id.

(internal quotation marks and citation omitted). Because the petitioner had “been

afforded the full panoply of procedural due process” and had “not demonstrated the

invidious purpose, bad faith[,] or arbitrariness necessary to make out a denial of

substantive due process,” his detention did not offend the Constitution. Id.

Other cases—from within and outside of this Circuit—are instructive. One

such case, Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999), illustrates the circuit

split regarding the constitutionality of Section 1226(c), which led to Demore.!4 In

Parra, the Seventh Circuit recognized that a petitioner subject to Section 1226(c)

“can withdraw his [or her] defense of the removal proceeding and return to his [or

her] native land,” ending detention. Parra, 172 F.3d at 958. Such a petitioner “has

the keys [to release] in his [or her] pocket.” Id. A petitioner subject to Section

1226(c) “has no constitutional right to remain at large during the ensuing delay [in

his or her removal proceedings], and the United States has a powerful interest in

maintaining the detention . . . to ensure that removal actually occurs.” Id.

The Parra court engaged in the “due process calculus under Mathews v.

Eldridge” under the facts and circumstances presented and concluded that, in light

of “the sweeping powers Congress possesses to prescribe the treatment of aliens,”

Section 1226(c) is constitutional. Parra, 172 F.3d at 958; see also id. (“Section

1226(c) plainly is within the power of Congress.”). That court left open the

14 See Demore, 538 U.S. at 516.

possibility that habeas relief “may be appropriate” in cases involving “claims by

persons detained under [Section] 1226(c) who say that they are citizens rather than

aliens, who contend they have not been convicted of one of the felonies that

authorizes removal, or who are detained indefinitely because the nations of which

they are citizens will not take them back.” Jd. at 957. But such facts were not

presented to that court.

In Yanez v. Holder, 149 F. Supp. 2d 485 (N.D. Ill. 2001), the court considered

challenges from Section 1226(c) petitioners who were challenging removal. See id.

at 491, 492. The court “[w]eigh[ed] the[] factors” in Mathews v. Eldridge, noting: (1)

the petitioners had a “strong liberty interest” to “be free from . . . possibly long-term

detention,” in light of their ongoing challenges to removal; (2) there was “little

probability of error because the petitioners [did] not dispute their convictions;” and

(3) the government had “a substantial interest in ensuring the presence of criminal

aliens who have obvious motivation to flee during the removal process.” Id. at 493—

94. In light of those factors, and “given the broad powers Congress possesses to

prescribe the treatment of aliens,” the court concluded that “den[ying] ... an

individualized bond hearing to petitioners who have been found to be criminal

aliens detained pursuant to [Section 1226(c)] is not a violation of procedural due

process.” Id. at 494.

Another court in this district determined that more than three years of

detention pursuant to Section 1226(c) did not violate the Due Process Clause. See

Luna-Aponte v. Holder, 743 F. Supp. 2d 189, 197 (W.D.N.Y. 2010). Citing Demore,

the court concluded that the petitioner did not show his continued detention was

“unreasonable or unjustified.” Id. For example, no delay in removal proceedings

was attributable to the government. See id. at 199. Moreover, if the petitioner were

unsuccessful in removal proceedings, there was “absolutely no impediment to [his]

eventual deportation” and “nothing preventing him from being removed” to his

native country. Id. at 197. Because the petitioner could “obtain his release to [his

native country] at any time,” he was “essentially remaining in custody voluntarily,

rather than returning to [his native country] and awaiting the outcome of his

[removal proceedings] there.” Id. at 199. The court noted that the petitioner's

preference to remain in custody in the United States instead of release to his native

country suggested that the petitioner might be unwilling to comply with removal, if

necessary. Id. at 200. Detention under those circumstances did not violate the Due

Process Clause. See id. at 199-200.

Finally, this Court has determined that a twenty-seven-month period of

detention pursuant to Section 1226(c) did not offend the Due Process Clause. See

Sosa Rodriguez v. Feeley, 507 F. Supp. 3d 466, 479 (W.D.N.Y. 2020). The Court

recognized that the length of detention was significant but, on the other hand, no

barriers to removal existed aside from the petitioner’s challenge to removal. See id.

Some of delay in the removal proceedings was attributable to the petitioner’s

litigation strategy—which the petitioner was entitled to pursuc, but which did not

bolster his due process claim. See id. at 480. The petitioner’s due process claim also

“failfed] under the narrow test proposed in Justice Kennedy’s Demore concurrence”

because the circumstances of his “detention [did] not support an inference that his

detention [was] arbitrary, unreasonable, or unjustified.” Id. (citing Demore, 538

U.S. at 532). In other words. there were “no facts suggesting that DHS [sought] to

detain [the petitioner] for ‘other reasons’ beyond facilitating deportation or

protecting against risk of flight or dangerousness.” Id. (quoting Demore, 583 U.S. at

532-33 (Kennedy, J., concurring)). Under those circumstances, the petitioner’s

continued detention did not violate his procedural due process rights. See id. at

481.

C. Hodge’s Detention Comports with the Fifth Amendment

Hodge challenges his continued detention on procedural due process grounds,

arguing that his now twenty-five-month detention has become unreasonably

prolonged, and that Respondents must provide an individualized bond hearing, in

which the government bears the burden of proof. The Supreme Court’s holding and

rationale in Demore, supplemented by the authority discussed in detail above,

provide the structure for this Court’s analysis of Hodge’s Section 1226(c) detention

here. Based on this framework, Hodge's detention has not violated his due process

rights.

The government is not seeking to retain custody of removable aliens under

Section 1226(c). Rather, by following the statute’s mandatory-detention provision,

the government seeks to promote public safety within this country and to ensure a

means of effecting potential eventual removal. During the pendency of removal

proceedings, an alien subject to Section 1226(c) may elect to regain his or her

liberty—or freedom from detention—by agreeing to return to his or her native

country. The quasi-voluntary nature of the detention undermines any due process

claim. Because detention is quasi-voluntary and the alien holds the keys to release,

there is no governmental deprivation. And as the Supreme Court in Demore—and

other courts elsewhere—recognized, an alien has no statutory or constitutional right

to release during the finite period of removal proceedings. The Court is aware of no

Supreme Court or Second Circuit case requiring rclease—or a bond hearing—

during the pendency of removal proceedings in the Section 122G(c) context.

The length of Hodge’s detention is indeed significant. The Court

acknowledges that Hodge’s removal proceedings are ongoing—and, perhaps, may

continue for several more months. Ultimately, the length of Hodge’s detention is a

product of his chosen course of litigation in his removal proceedings. Hodge, of

course, may avail himself of all “process” available to him in his removal

proceedings—including requesting extensions of time, adding claims or bases for

relief from removal, and appealing all adverse decisions. But he cannot expect

resulting delay in his removal proceedings to bolster his due process claim. Ifa

petitioner could delay enough and thereby earn release, he could defeat the process.

See Demore, 538 U.S. at 531 n.14 (concluding “there is no constitutional prohibition

against requiring parties” to “mak[e]. . . difficult judgments,” such as whether to

risk a lengthier detention by exercising their right to appeal); id. at 531 n.15

(considering the delay resulting from the alien’s request for a continuance of his

removal hearing so he could obtain relevant documents); Doherty. 943 F.2d at 211

(concluding that the alien’s “litigation strategy [was] perfectly permissible,” but he

could “not rely on the extra time resulting therefrom to claim that his prolonged

detention violates substantive due process”).

Hodge’s Section 1226(c) detention has a “definite termination point:” either a

final removal order or success on his CAT claim. See Demore, 538 U.S. at 529.

Until one of those outcomes occurs, Hodge may obtain relief from detention by

agreeing to release to the Dominican Republic. The Constitution does not require

his release into the United States while removal proceedings play out.

Finally, even if some governmental deprivation—and some relevant and

context-specific liberty rights—existed here, the amount of corresponding process

that would be due to Hodge under the three-factor, “flexible,” and “situation[al]”

approach outlined in Mathews v. Eldridge, 424 U.S. 319, 33-1 (1976) (internal

quotation marks and citation omitted),!5 and discussed above, is the amount

provided for by Congress. It does not include an extra-statutory bond hearing.16

15 See Galvez v. Lewis, 56 F. Supp. 2d 637, 648-49 (E.D. Va. 1999) (concluding that

“the government’s interest outweigh{[ed] that of Petitioner” because (1) the

petitioner’s “right to freedom pending removal [was] not absolute, especially in light

of his illegal alien status and drug conviction” and the fact that he did not dispute

his alien status or conviction, and (2) the government’s interest was “substantial,”

given the “administrative burden of conducting . . . individualized bond hearings for

each and every detained alien” and the risk of a released alien absconding): see also

Yanez, 149 F. Supp. 2d at 493-94.

16 Hodge’s due process claim also fails under the test proposed in Justice Kennedy’s

Demore concurrence. The circumstances of his detention do not support an

inference that his detention is arbitrary, unreasonable, or unjustified. See Demore,

538 U.S. at 5382 (Kennedy, J., concurring). There are no facts suggesting that the

government seeks to detain Hodge for “other reasons” beyond facilitating

deportation or protecting against risk of flight or dangerousness. See id. at 532-338

(Kennedy, J., concurring).

In sum, Hodge’s continued detention comports with his procedural due

process rights.'7 Moreover, there is no indication that his detention has become

unjustified, unreasonable, or arbitrary—especially in light of his conviction,

litigation regarding removal, and the absence of any apparent inaction or bad faith

on the government’s part. Neither the Constitution nor binding case law requires a

contrary outcome.

CONCLUSION

For these reasons, the relief requested in Hodge’s petition for a writ of habeas

corpus is denied. Because the Court has dismissed Hodge’s claim, it also denies his

request for costs and attorney’s fees pursuant to 28 U.S.C. § 2412. The Clerk of

Court is directed to close this case.

SO ORDERED.

Dated: October 18, 2023

Buffalo, New York

JOUN L. st LA AD

TED STATES DISTRICT JUDGE

17 Hodge does not allege a substantive due process claim. See Dkt. 8, at 21-22.

Aliens “have a substantive due process right to be free of arbitrary confinement

pending deportation proceedings.” Doherty, 943 F.2d at 209; see also United States

v. Salerno, 481 U.S. 739, 746 (1987) (substantive due process “prevents the

government from engaging in conduct that shocks the conscience . . . or interferes

with rights implicit in the concept of ordered liberty”) (nternal quotation marks and

citations omitted)). Under the circumstances here, Hodge’s detention is not

arbitrary and does not result from government conduct that shocks the conscience

so as to render his continued confinement a substantive due process violation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.