Ramos Funes v. Searls

.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_________________________________________

MARCO ANTONIO RAMOS FUNES, aka

MARCO ANTONIO RAMOS FUNEZ, aka

MARCO ANTONIO RAMOS, aka MARCO

RAMOS, aka MARCOS RAMOS,1

Petitioner,

-vs- DECISION and ORDER

19-CV-6332 CJS

JEFFREY SEARLS, Field Office Director

Buffalo Federal Detention Facility ("BFDF"),

Respondent.

_________________________________________

INTRODUCTION

Proceeding pro se, Marco Antonio Ramos Funes (“Petitioner”) (A 019-450-581)

commenced this habeas proceeding on May 6, 2019, pursuant to 28 U.S.C. § 2241

(“Section 2241”) against Respondent (”Respondent” or “the Government”) challenging

his continued detention in the custody of the United States Department of Homeland

Security (“DHS”), Immigration and Customs Enforcement (“ICE”) pending the

completion of removal proceedings against him. For the reasons discussed below, the

1 The Clerk of the Court is directed to amend the caption, as Petitioner has used, and/or been referred to

by, these names interchangeably throughout the record. ECF No. 4-1 at pp. 30, 32, 35; ,

ECF No. 7.

1

request for a writ of habeas corpus is denied.

BACKGROUND

Unless otherwise noted, the facts as set forth below are taken from the petition

and administrative record in this action; the docket in a related case, Ramos Funez v.

Sessions, 18-CV-6413 MAT;2 and the docket from Petitioner’s pending appeal before

the United States Court of Appeals for the Second Circuit, case number 19-2318.

Petitioner is a native and citizen of Honduras. On December 12, 1970, when

Petitioner was approximately forty days old, his parents brought him to the United

States. Petitioner subsequently resided in the United States as a Lawful Permanent

Resident (“LPR”). In 1979, Petitioner’s mother became a naturalized U.S. citizen, but

Petitioner and his father remained LPRs.

In 2005, Petitioner was convicted, in the District Court of Nassau County, New

York, of Sexual Abuse in the Second Degree in violation of NYPL § 130.60.3 For this

conviction, Petitioner received a sentence of ten months in jail.4

Sometime prior to September 4, 2007, Petitioner left the United States and

traveled to Honduras. The record does not state how long Petitioner remained outside

2 , , No. 6:18-CV-06413-MAT, 2019 WL 4451484 (W.D.N.Y. Sept. 17, 2019).

3 ECF No. 4-1 at p. 31. The record also indicates that in In 2002, Petitioner was convicted of Criminal

Possession of a Controlled Substance in the Fifth Degree in violation of New York Penal Law (“NYPL”) §

220.06. However, that conviction has no bearing on the removal proceedings at issue here.

4 ECF No. 4-1 at pp. 14, 34.

2

of the United States, but there is no indication that he was gone for an extended period.

On September 4, 2007, Plaintiff returned to the United States via a flight from Honduras

to Miami International Airport. At the airport, U.S. Customs and Border Patrol (“CBP”)

referred Petitioner for secondary inspection, to verify his residence and to determine his

admissibility.5 During the secondary inspection, CBP determined that Plaintiff had been

convicted of Sexual Abuse in violation of NYPL § 130.60. Because of that, CBP

initially decided to detain Petitioner, referring to his situation as “Section 240 case with

mandatory detention due to the subject’s arrest and conviction.”6 However, based upon

Petitioner’s statement that he “might be a U.S. citizen” due to derivative citizenship

through his mother, CBP determined that further investigation was required.7

Consequently CBP in Miami referred the matter to the Department of Homeland

Security (“DHS”) at John F. Kennedy International Airport (“JFK”) in New York, near

Plaintiff’s residence, for “further determination of [Petitioner’s] immigration status and

5 ECF No. 4-1 at p. 32.

6 ECF No. 4-1 at p. 32. As will be discussed further below, Petitioner’s conviction for sexual abuse was a

crime of moral turpitude, that rendered him inadmissible, and which, even though he had LPR status,

categorized him as an arriving alien. , 933 F.3d 1191, 1195 (9th Cir. 2019) (“As

relevant here, pursuant to § 1101(a)(13)(C)(v), an alien who is a legal permanent resident is treated as one

seeking admission if the alien “has committed an offense identified in section 1182(a)(2).” And pursuant

to § 1182(a)(2)(A)(i)(I), as relevant here, an “alien convicted of ... a crime involving moral turpitude ... or an

attempt or conspiracy to commit such a crime ... is inadmissible.”).

7 ECF No. 4-1 at p. 33.

3

final admissibility.”8 CBP further issued Petitioner an ”Order to Appear Deferred

Inspection” and directed him to report to DHS at JFK to complete the inspection and

investigation.9 However, Petitioner never reported to DHS in New York as directed.10

In 2010, Petitioner was convicted in New York State Supreme Court, New York

County, of Grand Larceny in the Second Degree in violation of NYPL § 155.40, for

which he received a prison sentence of two-to-six years. Also, in 2010, Petitioner was

convicted in New York State Supreme Court, Kings County, of Attempted Conspiracy in

the Fourth Degree in violation of NYPL § 105.10, for which he received a sentence of

one year’s imprisonment.11 The combined term of imprisonment for these two

convictions was a minimum of three years, and a maximum of seven years,12 and

Petitioner served more than five years of that term.

8 ECF No. 4-1 at p. 33.

9 ECF No. 4-1 at p. 32.

10 ECF No. 4-1 at p. 31. In his Petition, Petitioner states: “Petitioner, upon returning from Honduras was

stopped at the Miami International Airport on September 4, 2007, and sent for Secondary Inspection.

Petitioner had, from that time forward, up to his arrest by Detectives, New York County, in 2010, appeared

for all his scheduled Immigration interviews and appearances.” Petition, ECF No. 1 at p. 3. The Court

does not find this bare allegation plausible, since there is no indication in the administrative record that

any such “interviews” or “appearances” ever occurred; rather, the record indicates that Petitioner failed to

ever appear at the DHS offices at JFK when directed to do so. However, even assuming that Petitioner in

fact appeared for certain interviews or appearances, he does not claim, nor is there any indication that, he

was ever granted final admissibility following his return to the United States from Honduras.

11 ECF No. 4-1 at p. 35-36.

12 ECF No. 4-1 at pp. 14.

4

On July 29, 2010, DHS issued a warrant (“Warrant for Arrest of Alien”) for

petitioner’s arrest as an alien within the country in violation of the immigration laws.13

That same day, DHS issued a “Notice to Appear” to Petitioner in conjunction with

“removal proceedings under section 240 of the Immigration and Nationality Act.”14 The

Notice to Appear recited that Plaintiff was an “arriving alien” who had been “paroled into

the United States as a returning lawful permanent resident at or near Miami, FL on or

about September 04, 2007.”15 The Notice to Appear further indicated that because of

Petitioner’s conviction for sexual abuse, he was subject to removal from the United

States pursuant to Section 212(a)(2)(A)(i)(I), 8 U.S.C § 1182(a)(2)(A)(i), of the

Immigration and Nationality Act (“INA”) as an alien convicted of crime of moral

turpitude.16

On or about January 15, 2011, Petitioner filed an Application for Certificate of

Citizenship (N-600) to U.S. Citizenship and Immigration Services (“USCIS”). The

application maintained that Petitioner had derivative citizenship through his mother.

However, on January 30, 2012, USCIS denied the application, finding that Petitioner did

not meet the statutory requirements for derivative citizenship.17

13 ECF No. 4-1 at p. 1.

14 ECF No. 4-1 at p. 28.

15 ECF No. 4-1 at p. 28.

16 ECF No. 4-1 at p. 28. The Notice to Appear was served on Petitioner on April 17, 2012.

17 During its investigation, USCIS determined that Petitioner did not qualify for benefits under INA § 320

because he was over 18 years-old on February 27, 2001, the date the law took effect. USCIS further

5

On January 7, 2013, an Immigration Judge (“IJ”) administratively closed

Petitioner’s removal action because Petitioner was in state custody, serving his prison

sentences.

On August 31, 2016, as Petitioner was nearing his release from state prison,

DHS moved the Immigration Court to re-calendar Petitioner’s removal proceedings and

change venue to the Ulster Correctional Facility in Napanoch, New York, where he was

incarcerated. On September 20, 2016, both motions were granted, and Petitioner’s

removal proceedings were re-opened.

On January 11, 2017, DHS served Petitioner with additional charges of

inadmissibility/deportability. Specifically, in addition to charging Petitioner as an alien

convicted of a crime of moral turpitude (sex abuse), DHS charged him with being

subject to removal pursuant to INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B), as an alien

who had been convicted of two or more offenses for which the aggregate sentences to

confinement actually imposed were five years or more.

On February 22, 2017, DHS took Petitioner into custody upon his release from

state prison. At that time, a DHS Supervisory Detention and Deportation Officer

(“SDDO”) determined that Petitioner would be detained, pursuant to INA § 236,

determined that Petitioner did not qualify for benefits under former INA § 321 because the statute

required that both parents be naturalized before an applicant turned 18 years-old, and only Petitioner’s

mother became a U.S. citizen before he reached age 18.

6

“pending a final administrative determination.”18

Following a hearing on October 24, 2017,19 an IJ concluded that he lacked

jurisdiction to set bond because Petitioner was classified as an arriving alien.20

Petitioner appealed the decision to the Board of Immigration Appeals (“BIA”).

On March 12, 2018, BIA dismissed the appeal, finding that the IJ had properly

concluded that he lacked jurisdiction to set bond for Petitioner. On this point, BIA

stated:

We find no error in the lmmigration Judge's determination. The

regulation relating to detention and release of aliens removes from

Immigration Judges the authority to redetermine the custody of "[a]rriving

aliens in removal proceedings.” 8 C.F.R. § 1003.19(h)(2)(i)(B).

Moreover, unlike the classes of aliens referred to in paragraphs (C), (D),

and (E) of 8 C.F.R. § 1003.19(h)(2)(i), who likewise fall outside the

Immigration Judge's custody jurisdiction, the regulation does not confer

upon Immigration Judges even the limited jurisdiction to entertain the

request of an alien, who has been designated by the DHS as an arriving

alien, for a determination by an Immigration Judge of whether or not the

alien is “properly included within that paragraph." 8 C.F.R §

1003.19(h)(2)(ii).

ECF No. 4-1 at p. 11 (footnote and citations omitted). In sum, BIA indicated that while

18 Government’s Answer and Return, ¶ 10; , ECF No. 4-1 at p. 13 (Referring to “section 236 of the

lmmigration and Nationality Act and part 236 of title 8, Code of Federal Regulations.”).

19 As mentioned earlier, Petitioner was taken in DHS custody on February 22, 2017. According to the

Government, “[b]etween April 11, 2017 and December 20, 2017, Petitioner’s bond and removal hearings

were adjourned several times, on most occasions to allow the Petitioner time to seek counsel and to

prepare.” Answer and Return, ¶ 11.

20 ECF No. 4-1 at p 12.

7

the IJ had held a nominal “bond hearing” pursuant to Lora v. Shanahan, 804 F.3d 601

(2d Cir. 2015) (“Lora”), the IJ had properly concluded that he lacked jurisdiction to

consider Petitioner’s custody status.21

Meanwhile, essentially no progress had been made in Petitioner’s removal

proceedings since February 2017, when he was taken into DHS custody. Instead, the

matter had been adjourned repeatedly at Petitioner’s request, to allow him time to

prepare and to retain an attorney.22 During that time, Petitioner retained three different

attorneys, all of whom eventually withdrew from representing Petitioner.23 One of those

attorneys indicated, when moving to withdraw, that Petitioner was being “advised by

other people,” and that the attorney felt he had no “strategic input” into Petitioner’s

case.24

21 ECF No. 4-1 at p. 11. (“Although the Immigration Judge held a bond hearing pursuant to

, 804 F.3d 601 (2d Cir. 2015), we agree with the [IJ’s] ultimate conclusion that [he did not have]

jurisdiction regarding custody and bond here.”).

22 ECF No. 4-5.

23 , ECF No. 4-2 at pp. 25-26; see also, BIA decision dated July 16, 2019 (“Though the respondent was

able to obtain counsel on multiple occasions, all three attorneys filed motions to withdraw as counsel and

all motions were granted (IJ at 3-4; Tr. at 123, 141-42, 242-43). The first attorney withdrew as counsel on

March 7, 2017 (IJ at 3). The second attorney withdrew as counsel on August 8, 2017 (IJ at 3 ). The third

attorney withdrew as counsel on March 5, 2018 (IJ at 4). The respondent concedes on appeal that he was

ultimately granted eight continuances throughout the proceedings to obtain new counsel (Respondent's

Br. at 16).”).

24 ECF No. 4-2 at p. 29.

8

On April 13, 2018, the IJ determined that no good cause existed for any further

continuances of the removal proceedings. The IJ observed that Petitioner’s claim of

derivative citizenship had been denied by USCIS, and that it did not appear Petitioner

had appealed that ruling, except insofar as he had challenged the constitutionality of the

derivative citizenship statute. The IJ further determined that Petitioner had withdrawn

his applications for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). The IJ made that determination after Petitioner declined, at

the hearing, to put forward any evidence concerning those claims. Finally, the IJ

ordered Petitioner removed from the United States pursuant to INA § 212(a)(2)(A)(i)(I),

8 U.S.C. § 1182(a)(2)(A)(i)(I), as an arriving alien who had been convicted of a crime of

moral turpitude; and pursuant to INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B), as an

alien who has been convicted of two or more offenses for which the aggregate

sentences to confinement actually imposed were five years or more.

Petitioner appealed the IJ’s decision to the BIA, raising several grounds for

reversal. By decision dated December 7, 2018, BIA dismissed Petitioner’s claim

challenging the constitutionality of the derivative citizenship statute, INA § 320 and

former INA § 321, 8 U.S.C. §§ 1431, 1432. However, the BIA remanded the matter to

the IJ, for further findings25and the issuance of a complete written decision. In its

25 The BIA noted while the IJ sustained the charges under INA § 212 based on Petitioner’s “prior

admissions,” he did not render findings on what Petitioner actually admitted. The IJ also failed to make

factual findings to support his determination that Petitioner’s motion to terminate the proceedings was

9

decision, the BIA referred to Petitioner as a lawful permanent resident.26

During the pendency of his appeal to the BIA, on June 7, 2018, Petitioner filed a

petition in this Court pursuant to 28 U.S.C. § 2241, entitled Ramos Funez v. Sessions,

18-CV-6413 MAT. The petition asserted two claims. First, Petitioner asserted that

DHS’s detention of him was illegal/unlawful because he was a derivative citizen of the

United States. Second, Petitioner argued that the IJ had violated his rights to equal

protection and due process.27

Meanwhile, pursuant to the order of the BIA dated December 7, 2018, mentioned

above, the administrative matter was remanded to the IJ. On February 11, 2019, the IJ

issued a decision purporting to clarify the reasons that he had ordered Petitioner

removed pursuant to sections 212(a)(2)(A)(i)(l) and 212(a)(2)(B) of the Immigration and

untimely. In addition, although the IJ purported to deny Petitioner’s motion to change venue for “the

reasons as set forth . . . previously in the court file,” the colloquy between the parties and the IJ was

insufficient to provide the necessary findings of fact and legal analysis to permit appellate review. Id.

(citation omitted). In the absence of a complete written decision, the BIA declined to address the

remaining appellate arguments raised by Petitioner.

26 ECF No. 4-2 at p. 19.

27 Petitioner asserted that, as “a derivative citizen of the United States, [he] was deprived of his right to

due process when, on April 13, 2018, during a merits hearing, the Assistant Chief Counsel (“ACC”) [for

DHS] refused to accept his Motion to Terminate which was partially based on his citizenship and a copy of

his N-600[,]” on the grounds that it was untimely. Pet. ¶ 69. Petitioner asserted that the IJ erroneously

ordered him to be removed without any discussion on his citizenship or motion to terminate. By doing so,

Petitioner argues, “the IJ failed to confer upon [him] his rights to due process and equal protection under

the constitution.” Pet. ¶ 69.

10

Nationality Act, 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), (a)(2)(B). In that regard, the IJ

explained, inter alia, the basis for his finding that Petitioner had abandoned his

applications for asylum, withholding of removal, and protection under the Convention

Against Torture.

Petitioner appealed the IJ’s clarified decision to the BIA. On April 1, 2019, the

Government filed its brief in opposition to Petitioner’s appeal. The Government

asserted, inter alia, that the IJ had properly found that Petitioner had withdrawn his

applications for asylum, withholding of removal and protection under the Convention

Against Torture, by failing to prosecute them. In that regard, the Government detailed

the numerous adjournments that Petitioner had received and how, at the hearing on

April 13, 2018, Petitioner had declined to go forward with his claims despite having been

warned that it was his last opportunity to do so.28

On May 6, 2019, while Petitioner’s appeal to the BIA and his habeas petition

were both still pending, Petitioner filed the subject § 2241 habeas action, his second, in

this Court. In the subject petition, Petitioner maintains that his continued detention is

unlawful, and that he should either be released or granted a bond hearing. More

specifically, Petitioner indicates that he has been in USDHS/ICE custody since February

2017 and has only had one review of his custody status, which was his initial bond

hearing (at which the IJ found that he lacked jurisdiction to re-consider Petitioner’s

28 , Govt. Appeal Brief to BIA, ECF No. 4-2 at pp. 38-40 , ECF No. 4-3 (Detailing the various

11

detention). Further, Petitioner contends that his continued detention is unreasonable,

since he is not subject to a final order of removal, and since there is no reasonable

likelihood that he will be removed in the foreseeable future. The common idea behind

Petitioner’s arguments is that INA § 236(c) (8 U.S.C. § 1226(c)) and/or INA § 235(b) (8

U.S.C. § 1225(b)) “contain an implicit ‘reasonableness’ requirement and should be read

to authorize mandatory detention for only up to six months.”29

In this regard, the petition purports to assert three claims. First, the petition

maintains that this Court should grant a stay of removal, since Petitioner has been in

custody longer than six months and his removal is not likely to occur in the reasonably

foreseeable future. Second, the petition contends that Petitioner’s continued, indefinite

detention violates his substantive due process rights under the Fifth Amendment.

Third, the petition asserts that Petitioner’s detention for longer than six months without a

meaningful review of his custody status violates his procedural due process rights under

the Fifth Amendment. The petition requests two forms of relief: 1) an order granting a

stay of removal; and 2) an order directing that Petitioner either be released or granted a

bond hearing.

On June 26, 2019, the Government, Respondent, filed its response to the

Petition. Respondent concedes that this Court has jurisdiction to entertain the petition,

but only insofar as it challenges the constitutionality of Petitioner’s detention: “[T]he

29 , Petition, ECF No. 1 at p. 6.

12

Court’s inquiry in this habeas proceeding is to review the length of detention of

Petitioner, and to determine whether such detention is constitutionally permissible.”30

Respondent maintains, though, that “[t]he Petition should be denied because Petitioner

is lawfully detained under Immigration and Nationality Act (“INA”) § 235, 8 U.S.C. §

1225(b), as an arriving alien, without a final order of removal.” Respondent further

indicates that based on Petitioner’s status, as an arriving alien detained under 8 U.S.C.

§ 1225(b)(2)(A), there is no merit to his claims that his constitutional rights have been

violated since he has received all the process that he is due. On this point,

Respondent states that as an “arriving alien,” Petitioner’s detention is not only lawful, it

is “mandated—under the applicable statute, 8 U.S.C. § 1225(b)(2)(A), and his only

opportunity for release from such detention is by parole under INA § 212(d)(5)(A), 8

U.S.C. § 1182(d)(5)(A).”31

As for why Petitioner, who had resided in the United States as an LPR since his

infancy, is considered an “arriving alien,” Respondent points to the fact that in 2007,

after being convicted of certain crimes, Petitioner left the United States, went to

Honduras, and then returned to the United States without being admitted:

Petitioner was initially paroled into the United States on September 4,

2007, as a returning lawful permanent resident who was ordered to

appear for deferred inspection due to his criminal convictions in the United

States. He was not, however, lawfully admitted. Petitioner was charged

30 ECF No. 5 at p. 11.

31 ECF No. 5 at p. 12.

13

with being an inadmissible arriving alien who has been convicted of a

crime of moral turpitude. Petitioner is an applicant seeking admission

because, although he is “present” in the United States, he has not been

admitted. See, 8 U.S.C. § 1225(a)(1).

ECF No. 5 at p. 13 (citation to record omitted).

Respondent further contends that because of Petitioner’s status as an “arriving

alien,” he is not entitled to any due process, except that which has been provided for by

Congress:

As an arriving alien, Petitioner’s rights are more limited than those of both

a citizen of the United States, as well as an alien who has already made

his way past the country’s borders (albeit illegally). It is well established

that arriving aliens do not enjoy the same constitutional rights as admitted

aliens. Arriving aliens remain legally outside the United States until

inspected and admitted. See 8 U.S.C. § 1101(a)(13)(A). Although

Petitioner is being physically detained within the borders of the United

States, as an arriving alien he is legally considered to be outside of the

United States. Certain constitutional protections available to persons

inside the United States are simply unavailable to aliens deemed to be

outside the country’s geographic borders.

Further, immigration law draws a bright line between “an alien who has

effected an entry into the United States and one who has never entered.”

Zadvydas[ v. Davis], 533 U.S. [678,] 693 [(2001) (“Zadvydas”)]. Thus, an

arriving alien standing on the threshold of entry has no procedural due

process rights regarding admission or exclusion and stands on a different

footing: whatever the procedure authorized by Congress is, it is due

process as far as an alien denied entry is concerned. See [Shaughnessy

v. United States ex rel] Mezei, 345 U.S. 206 (1953) [(“Mezei”)] (finding that

physical presence in the United States alone does not extend to an

inadmissible alien the constitutional protections which are due those

persons legally admitted or who have gained entry to the United States).

14

The Due Process Clause affords an excludable/inadmissible32alien, such

as Petitioner, no procedural protection beyond the procedures explicitly

authorized by Congress, nor any right to be free from immigration

detention. Id.

As an arriving alien, the due process clause does not apply equally to

Petitioner, or to other foreign citizens who, like him, are seeking admission

to the United States. See id. at 210; see also Mejia v. Ashcroft, 360 F.

Supp. 2d. 647, 651-52 (2005). Petitioner has been provided all the due

process to which he is entitled as an arriving alien detained pursuant to 8

U.S.C. § 1225(b)(2)(A). Thus, his due process claims are without merit

and there is no viability to Petitioner’s due process challenge to his

mandatory detention as an arriving alien. Rather, DHS is lawfully and

properly detaining Petitioner pursuant to 8 U.S.C. §1225(b)(1)((B)(iii)(IV),

and he has received all the due process to which he is entitled.

Accordingly, the instant Petition should be denied and dismissed.

Respondent’s Memo of Law, ECF No. 5 at pp. 13-14 (some citations omitted).

Respondent maintains that the principle set forth in Mezei –that arriving aliens

have no right to due process except that which is provided by Congress-- has been

reaffirmed by the Supreme Court in Jennings v. Rodriguez, 138 S. Ct. 830 (2018),33

and by the Second Circuit in Guzman v. Tippy, 130 F.3d 64 (2d Cir. 1997) (“Guzman”).

32 While prior caselaw referred to the noncitizen as an “excludable” alien and the current lexicon refers to

“inadmissible” aliens, the terms are legal equivalents and reflect no more than an amendment to the

terms used in the INA. , 2000 U.S. Dist. LEXIS 756, at *16 n.5 (S.D.N.Y. Jan. 28,

2000) (“The term ‘inadmissible’ has replaced ‘excludable’ in the INA statutory framework.”).

33 Since did not expressly “reaffirm” this point, the Court assumes that Respondent is referring

to the statement in that “some members of the certified class may not be entitled to bond

hearings as a constitutional matter.” , 138 S. Ct. at 852 (citing ).

15

Indeed, Respondent asserts that Guzman “makes clear that the INA authorizes

indefinite detention of excludable/ inadmissible aliens.” ECF No. 5 at p. 17. Respondent

observes that several district court decisions from this Circuit have recently indicated

that Mezei and Guzman are no longer good law, but that those decisions were “wrongly

decided.”

Respondent further contends that even if Petitioner was entitled to due process

protections afforded to admitted aliens, he still has not suffered a due process violation

since his continued confinement is due to his pursuit of legal remedies. On this point,

Respondent states that it is a longstanding rule in the Second Circuit that “continued

detention while challenges to removal are pending is generally not unreasonable,” citing

Abimbola v. Ridge, 181 Fed. App’x 97, 99 (2d Cir. 2006), Doherty v. Thornburgh, 943

F.2d 204 (2d Cir. 1991) and Dor v. District Director, INS, 891 F.2d 997 (2d Cir. 1989).

Respondent contends that these cases establish that “a noncitizen cannot raise due

process claims over lengthy detention in removal proceedings that arises due to the

noncitizen’s own pursuit of legal remedies.”34 Respondent argues that this principle

applies to both substantive due process claims and procedural due process claims.

Further, Respondent maintains that in the instant case, “Petitioner cannot contest that

the only reason he remains in detention is because of his continued legal challenges,

34 ECF No. 5 at p. 20; . at p. 22 (“[O]ngoing detention of a noncitizen resulting from continuing

litigation does not give rise to a due process claim.”).

16

including the roughly 20 continuances he obtained while cycling through attorneys.”35

As an additional factor weighing against a finding of a due process violation,

Respondent points out that Petitioner has not shown that his objections to removal have

any merit. Further, Respondent contends that Petitioner’s conditions of confinement

are unlike those in a penal institution, which circumstance weighs against a due process

violation.36 Finally, Respondent asserts that this Court lacks jurisdiction to consider

Petitioner’s request for a stay of his removal or of his transfer to a different facility.

On July 16, 2019, the BIA affirmed the IJ’s removal order and dismissed

Petitioner’s appeal. In that regard, the BIA indicated, in pertinent part, that Petitioner

was properly found to be inadmissible and ordered removed, pursuant to INA §

212(a)(2)(A)(i)(l), since he had been convicted of Sexual Abuse in the Second Degree

in violation of New York Penal Law § 130.60(2), which is categorically a crime involving

moral turpitude. The BIA found, therefore, that it did not need to consider whether

Petitioner was also inadmissible on the additional grounds found by the IJ, involving

other criminal convictions. See, BIA Decision at p. 2 (“In conclusion, a violation of NYPL

§ 130.60(2) categorically involves moral turpitude and the respondent is inadmissible as

charged. Inasmuch as the respondent is inadmissible under section 212(a)(2)(A)(i)(I) of

the Act, we need not determine whether he is additionally inadmissible under section

35 ECF No. 5 at p. 23.

36 ECF No. 4-4.

17

212(a)(2)(B) of the Act.”). The BIA further rejected all of Petitioner’s other arguments

and dismissed his appeal.

Petitioner subsequently filed an appeal with the United States Court of Appeals

for the Second Circuit, which is still pending. See, Court of Appeals Case No. 19-2318.

In his Petition for Review, Petitioner asserted the following arguments: The IJ abused

his discretion in finding that Petitioner had abandoned his asylum and CAT claims,

which violated Petitioner’s right to due process; the IJ was biased; the IJ denied

Petitioner the opportunity to submit evidence in support of his CAT claim; the IJ and BIA

“failed to recognize issues” regarding the timing of the withdrawal by Petitioner’s last

attorney;37 and the IJ failed to make proper findings of fact.

On July 22, 2019, Petitioner filed a reply (ECF No. 8) to Respondent’s opposition

to his Petition.38 Petitioner contends that he is not an arriving alien; on this point,

Petitioner maintains that even if he was categorized as an arriving alien in 2007, his

status eventually reverted back to LPR. Alternatively, Petitioner asserts that even if he

is correctly categorized as an arriving alien, his prolonged detention under § 1225

37 This argument is contradicted by the record, since the BIA expressly discussed the fact that Plaintiff’s

final attorney had withdrawn five weeks prior to the hearing, which gave Petitioner sufficient time to

retain a new attorney.

38 The Court accepts the reply (ECF No. 8) as timely filed. Petitioner’s prior request for additional time to

submit a reply (ECF No. 7) is denied as moot.

18

without an individualized bond hearing violates due process. Petitioner further

indicates that even if he is an arriving alien who is subject to mandatory detention under

8 U.S.C. § 1225(b)(2)(A), mandatory detention under that statute does not mean

indefinite detention, and that even if an IJ lacks authority to conduct a bond hearing this

Court can conduct such a hearing in connection with a habeas petition. Petitioner also

contends that he has not intentionally delayed his removal proceedings.

On September 17, 2019, the Honorable Michael A. Telesca, Senior District

Judge, denied Petitioner’s first habeas petition. See, 2019 WL 4451484 (W.D.N.Y. Sep.

17, 2019). In that petition, Petitioner had argued that his continued detention was

illegal because he had derivative citizenship through his mother, pursuant to INA § 321,

and, alternatively, that insofar as that statute did not grant him derivative citizenship it

was unconstitutional as applied because it violated the Equal Protection Clause.

Petitioner had further argued that the IJ had violated his rights to due process at a

hearing held on April 13, 2018. However, Judge Telesca granted the Government’s

motion to dismiss for lack of jurisdiction pursuant to 8 U.S.C. § 1503(a)(2), and

dismissed the petition without prejudice. Further, Judge Telesca found that Petitioner

had not exhausted his administrative remedies with regard to the citizenship claim in

any event.

On October 21, 2019, in connection with Petitioner’s appeal pending before the

Second Circuit, the Circuit Court granted Petitioner’s application for a temporary stay of

removal, pending review of the final administrative removal order by a three-judge

19

panel. See, Court of Appeals Docket No. 60. Consequently, at the moment Petitioner

is not in danger of being removed to Honduras.

The Court has considered the record and the parties’ submissions

DISCUSSION

Petitioner has filed the subject petition pursuant to 28 U.S.C. § 2241, proceeding

pro se, and consequently the Court has construed his submissions liberally, “to raise the

strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.

1994). “[F]ederal courts have jurisdiction under § 2241 to grant writs of habeas corpus

to aliens when those aliens are ‘in custody in violation of the Constitution or laws or

treaties of the United States.’ 28 U.S.C. § 2241.” Henderson v. I.N.S., 157 F.3d 106,

122 (2d Cir. 1998). As mentioned earlier, Petitioner maintains that his detention since

February 2017, while his removal proceedings have continued, and without a bond

hearing, violates his rights to substantive due process and procedural due process

under the Fifth Amendment to the U.S. Constitution. In this regard, it is undisputed that

Petitioner has not had any type of bond hearing or reconsideration of his detention

status since being taken into custody in February 2017. Nevertheless, for the reasons

discussed below the Court finds that Petitioner’s due process claims lacks merit.

Petitioner’s Request for a Stay of Removal

is Denied For Lack of Jurisdiction

Petitioner’s first claim contends that the Court should issue an order staying his

removal, since “he will not be able to be removed to Honduras in the reasonably

20

foreseeable future.” Petitioner’s contention that he is unlikely to be removed is

unsupported and directly contrary to what he told the Second Circuit when he applied

for a stay of removal in that Court.39 Indeed, the record indicates that there is nothing

preventing Petitioner’s removal to Honduras at this moment, except his appeal that is

pending before the Second Circuit challenging the final order of removal. In that

regard, Petitioner’s request for a stay order from this Court is now moot, since the

Second Circuit has already stayed Petitioner’s removal pending that Court’s

determination of his appeal. However, this Court lacks jurisdiction to grant a stay of

removal in any event. See, Al-Garidi v. Holder, No. 09-CV-6160L, 2009 WL 1439216, at

*1 (W.D.N.Y. May 15, 2009) (“This Court and other district courts throughout the

country have routinely held that because district courts have no jurisdiction to review

final orders of removal, they have no jurisdiction to review requests for stays of

removal.”). Consequently, Petitioner’s request for a stay of removal is denied.

Petitioner is Detained as an Arriving Alien Under 8 U.S.C. § 1225(b)

Petitioner indicates that he is unsure whether he is detained pursuant to §

39 On July 26, 2019, Petitioner filed an “Emergency Stay of Removal” motion with the Second Circuit, in

which he stated that a stay was urgently needed because on July 16, 2019, the BIA had affirmed his

removal order, and it was therefore likely that he could be deported within the next ten days. See,

Emergency Stay of Removal Motion, Case No. 19-2318, Circuit Court Docket No. 3 at pp. 2-3 (“The BIA

affirmed the decision of the Immigration Judge on July 16, 2019, and is the basis for Petitioner seeking a

STAY before this Court. … Because of Petitioner's detention at BFDF, and his experience here, he prays

that this STAYbe granted on an EMERGENCY basis, as the OHS/ICE at BFDF, have removed others in less

than 10 days of a BIA decision.”).

21

1225(b) or 1226, but maintains that in either event he is entitled to habeas relief. At

the outset, the Court finds that Petitioner is detained pursuant to § 1225(b), and not §

1226, since he was detained as an inadmissible arriving alien. See, e.g., Singh v. Barr,

No. 19-CV-1208, 2019 WL 6609312, at *2 (W.D.N.Y. Dec. 3, 2019) (“Under section

1225, ‘an alien who ‘arrives in the United States,’ or ‘is present’ in this country but ‘has

not been admitted,’ is treated as ‘an applicant for admission.’ Jennings v. Rodriguez,

138 S. Ct. 830, 836 (2018) (quoting section 1225(a)(1)). . . . On the other hand,

“[s]ection 1226 generally governs the process of arresting and detaining [aliens present

in the country] pending their removal.” Jennings, 138 S. Ct. at 837 (first alteration in

original) (citation omitted).”).

As discussed above, although Petitioner had previously resided in the United

States as an LPR for decades, he was never re-admitted following his arrival in Miami

from Honduras in 2007. Rather, he was paroled into the United States pending the

completion of the inspection and a determination of his “immigration status and final

admissibility.”40 As respondent points out,41 such parole is not admission. See, 8

U.S.C. § 1182(d)(5)(A) (“[S]uch parole of such alien shall not be regarded as an

40 ECF No. 4-1 at p. 33. On a case-by-case basis, immigration officials may parole potentially

inadmissible arriving aliens into the United States, when immediate detention would not be in the public

interest. , 8 C.F.R. § 212.5(b)(5).

41 ECF No. 5 at p. 7 (“Arriving aliens may be paroled into the country pending their application to be

admitted. 8 C.F.R. § 212.5(a), (b)(5). Parole under § 212.5, however, “shall not be regarded as an admission

of the alien.” 8 U.S.C. § 1182(d)(5)(A).”).

22

admission[.]”). Moreover, the inspection was never completed, and no determination

regarding “final admissibility" was ever made, since Petitioner failed to appear at the

DHS office at JFK. Consequently, the Court finds that for immigration purposes,

Petitioner presently has the status of an arriving alien who was paroled into the country,

and not that of an LPR.

In his Petition in this action, Petitioner did not dispute that he is properly

classified as an arriving alien. In his Reply, however, Petitioner raises a new

argument, suggesting that he should not be considered an arriving alien. Specifically,

the Reply states that, although in 2007 Petitioner was classified as an arriving alien and

paroled into the United States pending completion of the investigation into his

admissibility, the parole eventually ended, at which time his status reverted to that of an

LPR.42 According to the Reply, this reversion to LPR status occurred by operation of 8

C.F.R § 212.5(E)(2)(i), which states in pertinent part

(e) Termination of parole— (2)(i) On notice. In cases not covered by

paragraph (e)(1) of this section, upon accomplishment of the purpose for

which parole was authorized or when in the opinion of one of the officials

listed in paragraph (a) of this section, neither humanitarian reasons nor

public benefit warrants the continued presence of the alien in the United

States, parole shall be terminated upon written notice to the alien and he

or she shall be restored to the status that he or she had at the time of

parole. When a charging document is served on the alien, the charging

document will constitute written notice of termination of parole, unless

otherwise specified. Any further inspection or hearing shall be conducted

under section 235 or 240 of the Act and this chapter, or any order of

42 ECF No. 8 at p. 8.

23

exclusion, deportation, or removal previously entered shall be executed. If

the exclusion, deportation, or removal order cannot be executed within a

reasonable time, the alien shall again be released on parole unless in the

opinion of the official listed in paragraph (a) of this section the public

interest requires that the alien be continued in custody.

8 C.F.R. § 212.5 (Westlaw 2020) (emphasis added). Petitioner cites no case authority

in support of this argument, nor has the Court found any.

In any event, the argument is neither persuasive nor properly presented in this

action. The argument is not properly presented inasmuch as it was raised for the first

time in a reply brief. Apart from that, the argument lacks merit based on a plain

reading of the regulation, which states that upon termination of parole, the alien’s status

“shall be restored to the status that he or she had at the time of parole.” Petitioner’s

status at the time parole was granted in 2007 was not that of an LPR. Rather, as

discussed earlier, his status was that of an arriving alien, since his admissibility had not

yet been determined. See, 8 U.S.C. § 1101(a)(13)(A); see also, United States v. Balde,

943 F.3d 73, 84 (2d Cir. 2019) (“Parole does not change parolees’ immigration status:

they remain ‘at the border’ for the purposes of immigration law and are treated as

applicants for admission into the country.”). Indeed, Petitioner was never re-admitted

into the United States following his trip to Honduras in 2007. Consequently,

Petitioner’s argument on this point lacks merit, and the Court will proceed on the basis

that Petitioner has the immigration status of an arriving alien and is, therefore, detained

under 8 U.S.C. § 1225(b).

24

Petitioner Is Subject to Mandatory Detention Under the Relevant Statutes

Respondent maintains that Petitioner’s continued detention is required by statute,

since he is an arriving alien who is inadmissible due to his criminal convictions, and who

must therefore be detained pending the completion of removal proceedings. More

specifically, Respondent contends that Petitioner is an “arriving alien” pursuant to 8

U.S.C. § 1101(a)(13)(C)(vi), and that he is subject to mandatory detention pursuant to 8

U.S.C. § 1225(b)(2)(A). Section 1101(a)(13)(C)(vi) states, in pertinent part, that,

(a) As used in this chapter-- (C) An alien lawfully admitted for permanent

residence in the United States shall not be regarded as seeking an

admission into the United States for purposes of the immigration laws

unless the alien-- (vi) is attempting to enter at a time or place other than as

designated by immigration officers or has not been admitted to the United

States after inspection and authorization by an immigration officer.

8 U.S.C.A. § 1101(a)(13)(C)(vi) (Westlaw 2020) (emphasis added). In maintaining that

Petitioner is now an “arriving alien,” despite his former status as an LPR prior to leaving

the United States and traveling to Honduras, Respondent states, as mentioned earlier,

that “[a]rriving aliens remain legally outside the United States until inspected and

admitted. See 8 U.S.C. § 1101(a)(13)(A).”43

Having demonstrated that Petitioner has the status of an arriving alien,

Respondent further maintains that Petitioner is inadmissible, pursuant to 8 U.S.C. §

1182(a)(2)(A)(i), since he was convicted of a crime of moral turpitude. Respondent

43 ECF No. 5 at p. 14.

25

contends, therefore, that Petitioner is properly detained pursuant to 8 U.S.C. §

1225(b)(2)(A), which states, in pertinent part, that “in the case of an alien who is an

applicant for admission, if the examining immigration officer determines that an alien

seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien

shall be detained for a [removal] proceeding under section 1229a [INA § 240] of this

title.” (emphasis added).

Petitioner does not dispute that inadmissible aliens in removal proceedings are

statutorily subject to mandatory detention, though he disputes the constitutionality of his

continued detention under that statutory scheme. Nevertheless, it is undisputed that

insofar as Petitioner is an arriving alien, he is statutorily subject to mandatory detention

pending the completion of his removal proceedings. See, e.g., United States v. Balde,

943 F.3d at 84 (“[A]n alien seeking admission, like Balde, ‘shall be detained’ pending a

removal proceeding ‘if the examining immigration officer determines that [he] is not

clearly and beyond a doubt entitled to be admitted.’ 8 U.S.C. § 1225(b)(2)(A).”).44

In sum, under § 1225(b) Petitioner is not entitled to periodic bond hearings. See,

Jennings v. Rodriguez, 138 S. Ct. 830, 851, 200 L. Ed. 2d 122 (2018) (“[T]he Court of

Appeals erroneously concluded that periodic bond hearings are required under the

immigration provisions at issue here[.]”). However, that is not determinative of

44 The only exception to such mandatory detention is that DHS may grant discretionary parole, , 8

U.S.C. § 1182(d)(5)(A). Petitioner has not requested such relief.

26

Petitioner’s constitutional claims. Id.

Although Petitioner is Categorized as an Arriving Alien for Immigration

Purposes, He Has Some Due Process Rights as a Returning Resident

Alien For Constitutional Purposes

Respondent maintains that since Petitioner is classified as an arriving alien, his

due process claims necessarily fail, since the only process due to him is that which

Congress has provided. For support, Respondent cites cases such as Mezei,

Guzman, and Poonjani, disussed earlier. Respondent’s argument on this point is

correct insofar as it pertains to arriving aliens generally. See, Guzman v. Tippy, 130

F.3d 64, 66 (2d Cir. 1997) (“An excluded alien's rights are determined by the procedures

established by Congress and not by the due process protections of the Fifth

Amendment. As an excluded alien, Guzman ‘stands on a different footing’ and

‘[w]hatever the procedure authorized by Congress is, it is due process as far as an alien

denied entry is concerned.’”) (quoting Mezei);45 see also, Mendez Ramirez v. Decker,

No. 1:19-CV-11012-GHW, 2020 WL 1674011, at *14 (S.D.N.Y. Apr. 3, 2020) (“Mendez

Ramirez”) (“The issue is not whether Mr. Mendez Ramirez [(an arriving alien)] has a

right to due process, “but rather the scope of the constitutional protections available to

him—and on that question, Mezei is controlling.”) (quoting Poonjani).

45 , 130 F.3d at 65 (“[W]e conclude that there is statutory authority for the

indefinite detention of excludable aliens and that such indefinite detention is not unconstitutional.”); . at

66 (Describing “the Supreme Court's ruling in , 345 U.S. 206, 73

S.Ct. 625, 97 L.Ed. 956 (1953)” as “controlling.”).

27

However, Respondent fails to discuss the potential impact of Petitioner’s status

as a returning LPR/resident alien on his constitutional claims. On this point, it does not

appear to be true, as Respondent assumes, that Petitioner, who previously resided in

the United States as an LPR, is treated as an arriving alien for constitutional purposes,

simply because he is classified as such for immigration purposes. Rather, the

Supreme Court and Second Circuit have indicated that returning resident aliens have at

least some due process rights in gaining entrance to the country:

Other than protection against gross physical abuse, the alien seeking

initial entry appears to have little or no constitutional due process

protection. See Shaughnessy v. United States ex rel. Mezei, 345 U.S.

206, 212–16, 73 S.Ct. 625, 629–31, 97 L.Ed. 956 (1953); Landon, 459

U.S. at 32, 103 S.Ct. at 329; Lynch v. Cannatella, Jr., 810 F.2d 1363,

1374 (5th Cir.1987). Rights in such circumstances appear to be largely

statutorily derived, see Jean v. Nelson, 727 F.2d 957, 968 (11th Cir.1984),

aff'd, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985); 2 Gordon &

Mailman, supra, §§ 3.18–3.19, although some constitutional due process

protection may be available to the resident alien seeking re-entry

depending on the length of her absence. See Landon [v. Plasencia], 459

U.S. [21,] 33–34 [(1982)], 103 S.Ct. at 329–30 (citing Shaughnessy);

Kwong Hai Chew v. Colding, 344 U.S. 590, 596–600, 73 S.Ct. 472, 477–

79, 97 L.Ed. 576 (1953).

Correa v. Thornburgh, 901 F.2d 1166, 1171, n. (2d Cir. 1990) (emphasis added). In

this regard the Second Circuit’s Correa decision was referring to the Supreme Court’s

opinion in Landon v. Plasencia, which stated in pertinent part:

This Court has long held that an alien seeking initial admission to the

United States requests a privilege and has no constitutional rights

regarding his application, for the power to admit or exclude aliens is a

28

sovereign prerogative. See, e.g., United States ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950);

Nishimura Ekiu v. United States, 142 U.S. 651, 659-660, 12 S.Ct. 336,

338, 35 L.Ed. 1146 (1892). Our recent decisions confirm that view. See,

e.g., Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50

(1977); Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d

683 (1972). As we explained in Johnson v. Eisentrager, 339 U.S. 763,

770, 70 S.Ct. 936, 939, 94 L.Ed. 1255 (1950), however, once an alien

gains admission to our country and begins to develop the ties that go with

permanent residence his constitutional status changes accordingly. Our

cases have frequently suggested that a continuously present resident

alien is entitled to a fair hearing when threatened with deportation, see,

e.g., United States ex rel. Tisi v. Tod, 264 U.S. 131, 133, 134, 44 S.Ct.

260, 261, 68 L.Ed. 590 (1924); Low Wah Suey v. Backus, 225 U.S. 460,

468, 32 S.Ct. 734, 735, 56 L.Ed. 1165 (1912) (hearing may be conclusive

“when fairly conducted”); see also Kwong Hai Chew, 344 U.S., at 598 n. 8,

73 S.Ct., at 478 n. 8, and, although we have only rarely held that the

procedures provided by the executive were inadequate, we developed the

rule that a continuously present permanent resident alien has a right to

due process in such a situation. See, e.g., United States ex rel. Vajtauer v.

Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 303, 71

L.Ed. 560 (1927); The Japanese Immigrant Case, 189 U.S. 86, 100-101,

23 S.Ct. 611, 614, 47 L.Ed. 721 (1903); see also Wong Yang Sung v.

McGrath, 339 U.S. 33, 49-50, 70 S.Ct. 445, 453-54, 94 L.Ed. 616 (1950);

Bridges v. Wixon, 326 U.S. 135, 153-154, 65 S.Ct. 1443, 1452, 89 L.Ed.

2103 (1945).

The question of the procedures due a returning resident alien arose in

Kwong Hai Chew v. Colding, supra. There, the regulations permitted the

exclusion of an arriving alien without a hearing. We interpreted those

regulations not to apply to Chew, a permanent resident alien who was

returning from a five-month voyage abroad as a crewman on an American

merchant ship. We reasoned that, “For purposes of his constitutional right

to due process, we assimilate petitioner's status to that of an alien

continuously residing and physically present in the United States.” 344

U.S., at 596, 73 S.Ct., at 477. Then, to avoid constitutional problems, we

29

construed the regulation as inapplicable. Although the holding was one of

regulatory interpretation, the rationale was one of constitutional law. Any

doubts that Chew recognized constitutional rights in the resident alien

returning from a brief trip abroad were dispelled by Rosenberg v. Fleuti,

supra, where we described Chew as holding “that the returning resident

alien is entitled as a matter of due process to a hearing on the charges

underlying any attempt to exclude him.” 374 U.S., at 460, 83 S.Ct., at

1811.

If the permanent resident alien's absence is extended, of course, he may

lose his entitlement to “assimilat(ion of his) status,” Kwong Hai Chew v.

Colding, supra, 344 U.S., at 596, 73 S.Ct., at 477, to that of an alien

continuously residing and physically present in the United States. In

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625,

97 L.Ed. 956 (1953), this Court rejected the argument of an alien who had

left the country for some twenty months that he was entitled to due

process in assessing his right to admission on his return. We did not

suggest that no returning resident alien has a right to due process, for we

explicitly reaffirmed Chew. We need not now decide the scope of Mezei; it

does not govern this case, for Plasencia was absent from the country only

a few days, and the United States has conceded that she has a right to

due process.

Landon v. Plasencia, 459 U.S. 21, 32–34, 103 S. Ct. 321, 329–30, 74 L. Ed. 2d 21

(1982) (citation to record omitted).

Consequently, Respondent’s assertion that Mezei is dispositve of Petitioner’s

due process claims is unpersuasive, since returning LPRs have some due process

rights beyond those held by an arriving alien seeking initial admission. Similarly, cases

such as Poonjani and Mendez Ramirez are distinguishable, since they involved arriving

aliens who were not also returning LPRs.

However, a returning LPR is not necessarily entitled to the same level of due

30

process as an LPR who never left the United States. See, Landon v. Plasencia, 459

U.S. at 31, 103 S. Ct. at 328 (“The reasoning of Chew was only that a resident alien

returning from a brief trip has a right to due process just as would a continuously

present resident alien. It does not create a right to identical treatment for these two

differently situated groups of aliens.”) (emphasis added); accord, Jobe v. Whitaker, 758

F. App'x 144, 147 (2d Cir. 2018) (“Supreme Court precedent establishes that LPRs who

leave and return to the United States, such as Jobe, are differently situated from LPRs

who continuously remain in the United States with respect to those groups' due process

rights.”) (citing Plasencia). For example, in Plasencia the Supreme Court indicated

that LPRs who had never left the country would be entitled to removal proceedings with

particular procedural safeguards, while a returning LPR could have her admission to the

country denied at an exclusion hearing in which she would have fewer procedural

safeguards. Id. (Expressly rejecting the circuit court’s determination that a “resident

alien returning from a brief trip ‘could not be excluded without the procedural due

process to which he would have been entitled had he never left the country.’”). In this

regard, it is notable that the returning LPR in Plasencia had only been outside of the

Country for two days before returning. Id., 103 S.Ct. at 324. Therefore, while an LPR

who remains outside of the United States for a long period may lose his liberty interest

altogether, see, Mezei, it does not hold true that an LPR who is gone for only a brief

period retains the same liberty interest as if he had never left.

In this action, the record does not indicate how long Petitioner was outside of the

31

U.S. before returning on September 4, 2007. However, Respondent does not argue

that Petitioner lost his due process rights as a returning resident alien by remaining out

of the United States for an extended period.46 Consequently, the Court assumes that

Petitioner was only outside of the Country for a relatively brief period, and that he

retained some due process rights as a returning resident alien.

As for the amount of process that was due to the returning resident alien in

Plasencia at her exclusion hearing, the Supreme Court declined to provide specifics.

See, Landon v. Plasencia, 459 U.S. at 32, 103 S. Ct. at 329 (“We agree with Plasencia

that under the circumstances of this case, she can invoke the Due Process Clause on

returning to this country, although we do not decide the contours of the process that is

due[.]”). Instead, the Court stated:

The constitutional sufficiency of procedures provided in any situation, of

course, varies with the circumstances. In evaluating the procedures in

any case, the courts must consider the interest at stake for the individual,

the risk of an erroneous deprivation of the interest through the procedures

used as well as the probable value of additional or different procedural

safeguards, and the interest of the government in using the current

procedures rather than additional or different procedures. Mathews v.

Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18

(1976).

Landon v. Plasencia, 459 U.S. at 34, 103 S. Ct. at 330 (other citations omitted); see

also, Yiu Sing Chun v. Sava, 708 F.2d 869, 877 (2d Cir. 1983) (“Use of th[e] Mathews v.

46 As already mentioned, Respondent does not concede that Petitioner had any due process rights to

lose.

32

Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18 (1976), analysis

in the immigration context has been suggested by the Supreme Court in Landon v.

Plasencia, 459 U.S. 21, ---- - ----, 103 S.Ct. 321, 330, 74 L.Ed.2d 21 (1982), to be sure,

however, in the case of a returning resident alien.”).

Petitioner’s Substantive Due Process Claim Lacks Merit

Petitioner concedes that the Government has a legitimate interest in detaining

him for the period necessary to effectuate his removal.47 Petitioner maintains, though,

that such interest does not justify “indefinite detention,”48 and that his detention since

February 2017 violates his substantive due process rights, since he “has already been

detained in excess of six months and his removal is not significantly likely to occur in the

reasonably foreseeable future.”49 The Court disagrees.

“[D]etention during deportation proceedings [i]s a constitutionally valid aspect of

the deportation process.” Demore v. Kim, 538 U.S. 510, 523, 123 S. Ct. 1708, 1717,

155 L. Ed. 2d 724 (2003) (“Demore”). The Supreme Court has long held that “the

Government may constitutionally detain deportable aliens during the limited period

necessary for their removal proceedings.” Id. This includes detention of LPRs. See,

id., 538 U.S. at 513, 123 S. Ct. at 1712 (The alien, Kim, was a lawful permanent

resident). In Demore, the Supreme Court noted that, in many cases, detention

47 Petition, ECF No. 1 at ¶ ¶ 33-34.

48 Petition, ECF No. 1 at ¶ ¶ 33-34.

49 Petition, ECF No. 1 at ¶ 34.

33

pending removal lasts only a few months. However, the Court indicated that longer

detention may occur, and is still acceptable, where the alien requests continuances of

removal proceedings. See, id., 538 U.S. at 530–31, 123 S. Ct. at 1721 (“[R]espondent

was detained for somewhat longer than the average—spending six months in INS

custody prior to the District Court's order granting habeas relief, but respondent himself

had requested a continuance of his removal hearing.”) (footnote omitted).

A substantive due process violation may occur where an alien who has been

detained pending removal can establish that his removal is not reasonably foreseeable.

See, Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003) (Observing that in Zadvydas,

“[i]n order to save § 241 from unconstitutionality, the Supreme Court held that “once

removal is no longer reasonably foreseeable, continued detention is no longer

authorized by statute. . . . Under Zadvydas, then, detention of an alien ‘once removal

is no longer reasonably foreseeable’ not only violates § 241, it also violates the Due

Process Clause.”). However, there is no due process violation where removal remains

reasonably foreseeable. See, id. (“Wang's due process rights are not jeopardized by his

continued detention as long as his removal remains reasonably foreseeable.”).

In the instant case, Petitioner has not made any showing that his removal is

unlikely to occur in the near future. To the contrary, he made the opposite showing to

the Second Circuit when he applied for a stay of removal. Additionally, Petitioner’s

detention is not indefinite or potentially permanent; rather it will end once his removal

proceedings are complete, which will occur as soon as the Second Circuit rules on his

34

appeal. Although Petitioner’s removal proceedings have been dragging on for three

years now, due to his appeals and repeated requests for adjournments, this delay does

not result in a substantive due process violation. See, e.g., Beqir v. Clark, 220 F. App'x

469, 471 (9th Cir. 2007) (“Krasniqi has made no showing that his removal is not

practically attainable. While his detention has been lengthy, its length is attributable to

the administrative and judicial processes. Moreover, his detention has a definite

termination point. Upon completion of judicial review of his petition, our stay of the

removal order will be lifted. Thus, Krasniqi's detention meets substantive due process

requirements.”); see also, Perez v. Aviles, 188 F. Supp. 3d 328, 332–33 (S.D.N.Y.

2016) (“Perez's detention has not been arbitrary or unreasonable. While Perez's

detention has been lengthy, there is no indication of an ‘unreasonable delay’ by DHS in

pursuing or completing Perez's removal. Rather, the length of Perez's detention has

largely been due to his own appeals. Although Perez has acted within his rights in

challenging his removal orders, he may not rely on the extra time resulting therefrom to

claim that his prolonged detention violates substantive due process.”) (citations

omitted).

Petitioner’s Procedural Due Process Claim Lacks Merit

The remaining question is whether Petitioner’s detention, since February 2017,

without a bond hearing, violates his procedural due process rights. Recently, another

judge of this District provided a comprehensive description of the current state of the

law in this Circuit concerning as-applied procedural due process challenges under 8

35

U.S.C. § § 1225(b) & 1226(c) following the Supreme Court’s ruling in Jennings:

[Prior to the Supreme Court’s decision in Jennings,] the Ninth Circuit

required bond hearings to be held for aliens detained pursuant to 8 U.S.C.

§ 1226(c) and 8 U.S.C. § 1225(b), as a matter of statutory interpretation.

See Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013).

Moreover, the Second Circuit had adopted the Ninth Circuit's approach—

at least as it pertained to aliens detained pursuant to § 1226(c)—and

imposed a bright-line rule that those alien detainees be afforded a bond

hearing after six months of immigration detention. See Lora v. Shanahan,

804 F.3d 601, 616 (2d Cir. 2015) (“[I]n order to avoid the constitutional

concerns raised by indefinite detention, an immigrant detained pursuant to

section 1226(c) must be afforded a bail hearing before an immigration

judge within six months of his or her detention.”), cert. granted, judgment

vacated, ––– U.S. ––––, 138 S. Ct. 1260, 200 L.Ed.2d 415 (2018).

***

Jennings held that § 1225(b) does not contain an implicit six-month time

limit at which point a bond hearing must be held, thus eliminating the

statutory six-month bright-line rule formulated in Rodriguez and adopted

by Lora. 138 S. Ct. at 844. As a result, the Supreme Court subsequently

granted certiorari in Lora, vacated the judgment, and remanded the case

for “further consideration” in light of its decision in Jennings. Shanahan v.

Lora, ––– U.S. ––––, 138 S. Ct. 1260, 200 L.Ed.2d 415 (2018). On

remand, the Second Circuit dismissed the case as moot because the

petitioner in that matter had been granted a cancellation of removal. See

Lora v. Shanahan, 719 F. App'x 79, 80 (2d Cir. 2018).

The Second Circuit has not addressed, post-Jennings and post-Lora, the

standard to be utilized by courts in addressing procedural due process

claims for aliens detained in the immigrant habeas context. However, the

overwhelming majority of district courts within the Circuit to have

addressed the issue in the context of 8 U.S.C. § 1226(c)—pertaining to

the detention of criminal aliens—have adopted a case-by-case approach

where “courts examine each individual's detention circumstances to

determine whether it has become ‘unreasonable or unjustified.’” Cabral v.

Decker, 331 F. Supp. 3d 255, 261 (S.D.N.Y. 2018) (quoting Demore v.

36

Kim, 538 U.S. 510, 532, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003)). The

case-by-case approach is an “as-applied, fact-based analysis ... derived

from the Supreme Court's decisions in [Zadvydas v. Davis, 533 U.S. 678,

121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)] and Demore.” Sajous v. Decker,

No. 18-CV-2447 (AJN), 2018 WL 2357266, at *10 (S.D.N.Y. May 23,

2018); see Gomes Herbert v. Decker, No. 19-CV-760 (JPO), 2019 WL

1434272, at *2 (S.D.N.Y. Apr. 1, 2019) (noting that the Sajous framework

has been “overwhelmingly adopted” in the Southern District of New York

(quotation omitted)); Dukuray v. Decker, No. 18 CV 2898 (VB), 2018 WL

5292130, at *3 (S.D.N.Y. Oct. 25, 2018) (same); c.f. Hechavarria v.

Sessions, No. 15-CV-1058, 2018 WL 5776421, at *7-9 (W.D.N.Y. Nov. 2,

2018) (utilizing both a multi-factor test and the traditional procedural due

process analysis articulated in Mathews v. Eldridge, 424 U.S. 319, 96

S.Ct. 893, 47 L.Ed.2d 18 (1976)), enforcement granted sub nom.

Hechavarria v. Whitaker, 358 F. Supp. 3d 227 (W.D.N.Y. 2019); Joseph v.

Decker, No. 18-CV-2640(RA), 2018 WL 6075067, at *10 n.7 (S.D.N.Y.

Nov. 21, 2018) (concluding that “[t]he Mathews test is consistent with the

approach of ... considering immigration-specific factors for the procedural

due process analysis,” and the majority of courts in this Circuit seem to

have adopted the fact-based inquiry approach), appeal withdrawn, No. 19-

245, 2019 WL 3334802 (2d Cir. May 1, 2019).

The factors set forth by district courts in this Circuit for a court to consider

in determining whether an alien's length of detention has become

unreasonable or unjustified in the § 1226(c) context can be summed up as

follows:

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

party responsible for the delay; (3) 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 committed by the petitioner;

and (7) whether the petitioner's detention is near conclusion.

37

Cabral, 331 F. Supp. 3d at 261. These factors require consideration of

multiple variables in determining whether a detainee has been held for an

unreasonably lengthy period of time. While “detention that has lasted

longer than six months is more likely to be ‘unreasonable,’ and thus

contrary to due process, than detention of less than six months,” Sajous,

2018 WL 2357266, at *10, “the sheer length of the proceedings is not

alone determinative of reasonableness,” Vallejo v. Decker, No. 18-CV-

5649 (JMF), 2018 WL 3738947, at *3 (S.D.N.Y. Aug. 7, 2018) (quoting

Young v. Aviles, No. 15-CV-4545 (JMF), 2015 WL 4579204, at *1

(S.D.N.Y. July 29, 2015)), appeal withdrawn, No. 18-2881, 2019 WL

1503029 (2d Cir. Mar. 25, 2019). For example, while “‘aliens should not be

punished for pursuing avenues of relief and appeals[,]’ ... evidence of bad

faith delays may cut against them.” Hernandez v. Decker, No. 18-CV-5026

(ALC), 2018 WL 3579108, at *7 (S.D.N.Y. July 25, 2018) (first alteration in

original) (quoting Sopo v. U.S. Attorney Gen., 825 F.3d 1199, 1218 (11th

Cir. 2016), vacated, 890 F.3d 952 (11th Cir. 2018)), appeal withdrawn, No.

18-2824, 2019 WL 1377025 (2d Cir. Feb. 5, 2019).

Some district courts in this Circuit have also applied the multi-factor test to

aliens detained pursuant to § 1225(b) and concluded that due process

requires an individualized bond hearing. See, e.g., Lett v. Decker, 346 F.

Supp. 3d 379, 387 (S.D.N.Y. 2018) (applying factors set forth in Sajous to

conclude that the petitioner's detention for nearly 10 months pursuant to §

1225(b) without a bond hearing was unreasonable and unconstitutional as

applied to him), appeal filed, Case No. 18-3714 (2d Cir. Dec. 11, 2018);

Perez, 2018 WL 3991497, at *4-5 (applying factors set forth in Sajous to

conclude that the petitioner's detention for nearly a year pursuant to §

1225(b) without a bond hearing was unreasonable and unconstitutional as

applied to him); see also Wang v. Brophy, Case # 17-CV-6263-FPG, 2019

WL 112346, at *3 (W.D.N.Y. Jan. 4, 2019) (holding that detention pursuant

to § 1225(b) for two years without a bond hearing was unreasonable and

unconstitutional as applied to petitioner), appeal dismissed, 2019 WL

4199901 (2d Cir. Aug. 1, 2019); Kouadio v. Decker, 352 F. Supp. 3d 235,

241 (S.D.N.Y. 2018) (holding that detention pursuant to § 1225(b) for 34

months without a bond hearing violated the petitioner's due process

rights). However, some district courts have concluded that due process

38

does not require a bond hearing for aliens detained pursuant to § 1225(b)

and the procedure for discretionary parole pursuant to 8 U.S.C. §

1182(d)(5)(A) is sufficient to satisfy any due process concerns. See

Alexandre v. Decker, No. 17 Civ. 5706 (GBD) (KHP), 2019 WL 1407353,

at *5 (S.D.N.Y. Mar. 28, 2019) (parole process pursuant to 8 U.S.C. §

1182(d)(5)(A) satisfied due process for alien detained pursuant to §

1225(b)); Poonjani v. Shanahan, 319 F. Supp. 3d 644, 648-49 (S.D.N.Y.

2018) (holding that due process did not afford [arriving] alien detained

pursuant to § 1225(b) a bond hearing; rather due process “is whatever

procedure has been ‘authorized by Congress’ ” which in the case of the

petitioner was parole at the discretion of the Attorney General). At least

one court in this district has concluded that while due process does not

require an individualized bond hearing for an alien detained pursuant to §

1225(b), the petitioner was entitled to “a rigorous custody review” that

mandated more than parole review in the discretion of the Attorney

General. Clerveaux v. Searls, No. 18-CV-1131, 2019 WL 3457105, at *15-

17 (W.D.N.Y. July 31, 2019).

Abdi v. McAleenan, 405 F. Supp. 3d 467, 475–77 (W.D.N.Y. 2019) (Wolford, J.).

As the foregoing discussion indicates, the question now before this Court is

whether, in light of the factors set forth above, Petitioner’s continued detention under §

1225(b) without a bond hearing has become “unreasonable or unjustified,” such that it

violates his right to procedural due process. The analysis must start, however, with the

recognition that in general the detention of criminal aliens like Petitioner, without a bond

hearing, for the entire period of their removal proceedings does not violate due process.

See, Demore, 538 U.S. at 531, 123 S.Ct. at 1721-1722 (“Detention during removal

proceedings is a constitutionally permissible part of that process.”).

As it has been interpreted, Demore merely leaves the door open to as-applied

39

challenges to continued detention where the detention has truly become unreasonable

or unjustified.50 It may be true that some “judges in this district have routinely held that

. . . prolonged mandatory detention [of criminal aliens] pending removal proceedings,

without a bond hearing, ‘will – at some point – violate the right to due process.’” Yusuf v.

Edwards, No. 18CV3605GBDBCM, 2019 WL 4198798, at *7 (S.D.N.Y. July 2, 2019)

(collecting cases). However, this Court does not agree with the idea that such

mandatory detention will inevitably become unreasonable or unjustified after a certain

amount of time, 51 since it is contrary to Demore.52 Provided that removal proceedings

50 , No. 5:19-CV-51, 2020 WL 1042293, at *6 (S.D. Ga. Jan. 29, 2020) (“In

, the United States Supreme Court held that § 1226(c) does not—on its face—violate the due

process rights of criminal aliens who are detained for the limited period of their removal proceedings.

However, the Court left open the possibility of as-applied procedural due process challenges to § 1226(c)

detention, where continued detention becomes unreasonable or unjustified. . at 531–33 (Kennedy, J.,

concurring)”), report and recommendation adopted, No. 5:19-CV-51, 2020 WL 1046796 (S.D. Ga. Mar. 3,

2020).

51 The notion that such detention will violate due process “at some point” is a reference to the passage of

time, primarily.

52 Although the Supreme Court in discussed the average length of time that removal

proceedings were then taking in the year 2003, it did not suggest that removal proceedings taking longer

than that would result in due process violations. It is a mistake, in the Court’s view, to use that discussion

as a yardstick for determining a due process violation. , No. 18CV3605GBDBCM,

2019 WL 4198798, at *8 (S.D.N.Y. July 2, 2019) (“The first and “most important” factor, 2018 WL

2357266, at *10, weighs heavily in favor of granting the petition here. Yusuf has now been continuously

detained for almost sixteen months – well beyond the “brief period” (averaging “about five months” when

the alien “chooses to appeal”) deemed reasonable in , 538 U.S. at 530, and longer than in most of

the post- cases cited above.”). The point of that discussion in was not to set a particular

outer limit for such detention, but to emphasize that detention pending removal proceedings, unlike the

40

are progressing toward completion, even if slowly, continued mandatory detention

without a bond hearing does not violate due process unless the detention, beyond the

mere fact of the delay, has become unreasonable or unjustified on the Government’s

part.53

Under the particular facts and circumstances of this action, the Court finds that

Petitioner’s continued detention without a hearing does not violate his procedural due

process rights. According to Demore, Petitioner’s detention is generally

unobjectionable from a due process standpoint, and nothing about the particulars of his

case make such detention unreasonable or unjustified.54 Assuming arguendo that the

so-called Sajous factors are the appropriate ones to apply here, the only factor which

weighs in Petitioner’s favor is the length of time that he has been detained pending

removal proceedings – three years.55 However, to the extent that the removal

proceedings have been “delayed,” Petitioner is the party primarily, if not entirely,

responsible for any such delay. In this regard, Petitioner made multiple requests for

change of venue, many requests for adjournments to obtain counsel, and many

detention found to be unconstitutional in , has a “definite termination point” and is therefore

neither “indefinite” nor “potentially permanent.” , 538 U.S. at 529, 123 S. Ct. at 1720.

53Volume-related litigation delays are a regrettable fact of life, and do not entitle an otherwise detainable

criminal alien to gain release pending removal proceedings.

54As a continuously-present resident alien, the respondent in was arguably entitled to even more

due process than Petitioner.

55 This does not exceed the period of incarceration that Petitioner served for the crimes for which the IJ

found him to be inadmissible, which was at least seven years.

41

requests for adjournments to allow him to prepare his defense. In spite of that, and

despite the fact that Petitioner had years to prepare his asylum and CAT claims, when

the IJ informed Petitioner on 13, 2018, that it was his last opportunity to present those

claims, Petitioner declined to make any showing in support of a CAT or asylum claim.

Indeed, even now the record fails to offer any clue as to the basis for Petitioner’s

alleged asylum or CAT claims. Apart from those defenses, Petitioner’s other defense

to his removal was that he had derivative citizenship, but that claim was denied since he

did not meet the statutory requirements. Petitioner had argued that the derivative

citizenship statute was unconstitutional, but that issue, too, has been decided against

him, and his argument on that point is not included in his pending appeal to the Second

Circuit.

Continuing with the Sajous factors, Respondent has asserted, and Petitioner has

not disputed, that Petitioner’s conditions of confinement at the Buffalo Federal Detention

Facility in Batavia, New York, are significantly better than those at a penal institution in

many respects.56 Additionally, one of Petitioner’s crimes of conviction was quite

serious in that it involved sexual abuse of a child. And finally, Petitioner’s detention

appears to be very near to its conclusion, since the only obstacle to his removal at this

time is his request for review by the Second Circuit, which has been pending since July

2019 and which will, presumably, be addressed soon.

56 Hobart Affidavit, ECF No. 4-4.

42

Having considered all of the various facts and circumstances discussed above,

the Court finds that Petitioner’s procedural due process claim lacks merit since he has

not shown that his continued detention as a criminal alien pending his removal

proceedings is either unreasonable or unjustified.

CONCLUSION

The habeas petition is denied, and this action is dismissed. Petitioner’s request

for additional time to submit a reply (ECF No. 7) is denied as moot. The Clerk is

directed to amend the caption as indicated in the caption of this Decision and Order and

in footnote 1, and to close this action. The Court hereby certifies, pursuant to 28

U.S.C. § 1915(a)(3), that any appeal from this Decision and Order would not be taken in

good faith and leave to appeal to the Court of Appeals as a poor person is denied.

Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on

appeal in forma pauperis should be directed on motion to the United States Court of

Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of

Appellate Procedure.

So Ordered.

Dated: Rochester, New York

April 23, 2020

ENTER:

Chale mat wa

CHARLESW. SIRA A

United States DistricPJudge

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