Opinion

Akinsanya v. Brophy

Court
District Court, W.D. New York
Filed
Oct 11, 2024
Cited by
0 cases
Authority
More cited than 31.7%

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

RASHEED AKINSANYA,

Petitioner,

v. 24-CV-732-LJV

DECISION & ORDER

THOMAS BROPHY, et al.,

Respondents.

Rasheed Akinsanya has been detained in the custody of the United States

Department of Homeland Security (“DHS”) since April 2023—more than 17 months.

Docket Item 1 at 5.1 On August 5, 2024, Akinsanya filed a pro se petition for a writ of

habeas corpus under 28 U.S.C. § 2241, challenging the validity of his detention at the

Buffalo Federal Detention Facility in Batavia, New York. Docket Item 1. On September

23, 2024, the respondents answered the petition, Docket Item 6, and on October 3,

2024, Akinsanya replied.2 Docket Item 10.

For the reasons that follow, this Court grants Akinsanya’s petition in part.

1 Page numbers in docket citations refer to ECF pagination.

2 On September 12, 2024, Akinsanya moved to have the Court appoint counsel

for his habeas petition. Docket Item 4. Because the Court grants Akinsanya’s habeas

petition in part, his motion to appoint counsel is denied as moot.

FACTUAL AND PROCEDURAL BACKGROUND3

Akinsanya is a native and citizen of Nigeria. See Docket Item 6 at 2. He entered

the United States in 2013 on a non-immigrant visa. See Docket Item 1 at 5.

On April 25, 2023, DHS issued a “Notice to Appear,” charging that Akinsanya

was subject to removal from the United States under the Immigration and Nationality

Act (“INA”), 8 U.S.C. §§ 1101-1537. Docket Item 6 at 2. More specifically, DHS

charged that Akinsanya was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) for

having been convicted of an aggravated felony, namely a conspiracy to commit wire

fraud, see 18 U.S.C. §§ 1343, 1349, and aggravated identity theft, see id. § 1028A,4 for

a loss in excess of $10,000. See Docket Item 6 at 2 n.2; see also Docket Item 1 at 5 (“I

was served with a Notice to Appear . . . charging me with removability based on my

conviction[] for [w]ire [f]raud and [c]onspiracy to commit wire fraud.” (internal quotation

marks omitted)).

Following multiple removal hearings, an immigration judge ordered Akinsanya’s

removal to Nigeria. Docket Item 6 at 2. Akinsanya appealed that order to the Board of

Immigration Appeals (“BIA”), and Immigration and Customs Enforcement then ceased

removal efforts. Id. The BIA dismissed Akinsanya’s appeal on April 5, 2024. Id.

3 The following facts are taken from Akinsanya’s petition, Docket Item 1, and the

government’s response, Docket Item 6. The Court also takes judicial notice of

Akinsanya’s immigration proceedings. See Pina Morocho v. Mayorkas, 2023 WL

1995283, at *3-4 (S.D.N.Y. Jan. 25, 2023) (taking judicial notice of petitioner’s

immigration proceedings in considering petition).

4 The government’s response indicates that Akinsanya was convicted of

aggravated identity theft in violation of 18 U.S.C. § 102A. Docket Item 6 at 2 n.2. This

appears to be a typo; the relevant statute concerning aggravated identity theft is 18

U.S.C. § 1028A.

Akinsanya has since filed a petition for review (“PFR”) with the United States Court of

Appeals for the First Circuit, see Akinsanya v. Garland, Case No. 24-1412 (1st Cir.

2024), and Akinsanya’s removal is currently stayed pending decision on his petition. Id.

at 2-3; see also Docket Item 1 at 12 (“[I] was granted [a] stay of [r]emoval by the First

Circuit in June 2024.”). Oral argument on Akinsanya’s PFR was scheduled to occur on

October 9, 2024, but this Court has not yet received news of that case’s disposition.

See Docket Item 6 at 3.

DISCUSSION

28 U.S.C. § 2241 “authorizes a district court to grant a writ of habeas corpus

whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of

the United States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28

U.S.C. § 2241(c)(3)). Akinsanya argues that his continued mandatory detention under 8

U.S.C. § 1226(c) violates his right to due process. See Docket Item 1 at 5. He

therefore asks this Court to issue a writ of habeas corpus and order either his release

from custody or “a bond hearing where the [r]espondent[s] bear[] the burden to prove by

clear and convincing evidence that [his] continued detention is necessary to prevent

flight or danger to the community.” Id. at 6.

In light of the Second Circuit’s recent decision in Black v. Decker, 103 F.4th 133

(2d Cir. 2024), the government all but concedes that this Court is bound by that

precedent to grant the petition insofar as it requests a bond hearing. Indeed, the

government says that applying Black to Akinsanya’s petition would “likely lead this Court

to order that [Akinsanya] receive a bond hearing before an immigration judge, at which

time the government must show by clear and convincing evidence that [Akinsanya]’s

continued detention is warranted.” Docket Item 6 at 1.

The government is correct. First, this Court is indeed bound by Black. Second,

applying Black to Akinsanya’s petition leads the Court to order that he receive an

individualized bond hearing before an immigration judge. But in light of the dearth of

district court cases applying Black and its relative recency, a brief explanation of its

holding and its bearing on Akinsanya’s petition is warranted.

In Black, the Second Circuit addressed appeals arising from two habeas petitions

filed by legal permanent residents detained under section 1226(c) without bond

hearings, one for a period of seven months and the other for twenty-one months. 103

F.4th at 137-38. On an appeal that involved both petitions (one which had been granted

by the district court and the other denied), the Second Circuit considered whether

“unreasonably prolonged detention under section 1226(c) without a bond hearing”

violates a “noncitizen’s constitutional right to due process.” Id.

After finding that “due process bars the Executive from detaining [noncitizens] for

an unreasonably prolonged period under section 1226(c) without a bond hearing,” the

Second Circuit held that courts should apply the balancing test in Mathews v. Eldridge,

424 U.S. 319 (1976), “to assess, case by case, whether an individual’s prolonged

section 1226(c) detention violates due process.” Black, 103 F.4th at 143, 150. The

court thus rejected “a bright-line constitutional rule requiring a bond hearing after six

months of detention—or after any fixed period of detention.” Id. at 150. Instead, the

court directed district courts to “determin[e] when and what additional procedural

protections are due” by applying to the petitioner’s unique situation the three factors

from Mathews: “(1) ‘the private interest that will be affected by the official action’; (2) ‘the

risk of an erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards’; and (3) ‘the

[g]overnment’s interest, including the function involved and the fiscal and administrative

burdens that the additional or substitute procedural requirement would entail.’”5 Black,

103 F.4th at 138, 151 (quoting Mathews, 424 U.S. at 335).

The Second Circuit concluded that all three factors weighed in favor of both

petitioners. Id. at 151-55. As the government apparently acknowledges here, the facts

underlying the Second Circuit’s analysis of each Mathews factor closely resemble those

in Akinsanya’s petition. Docket Item 6 at 3-4 (“[T]he government acknowledges that this

Court is bound by Black and that applying Black in this case likely would lead to a grant

of the habeas petition.”). Therefore, and as explained below, applying Black means

granting Akinsanya’s petition.

Under the first Mathews factor—the private interest affected by the official

action—the Second Circuit concluded that the length of the two petitioners’ detention

resulted in the first factor weighing “heavily in favor of” the petitioners. Id. at 152. Here,

as the government itself notes, Akinsanya has already been detained for more than

seventeen months, ten months longer than one of the petitioners in Black.6 Docket Item

5 Akinsanya cites caselaw identifying the period of time at which detention

without a bond hearing becomes unreasonable. Docket Item 10 at 3. But the Court

need not specifically determine the period of time at which Akinsanya’s petition without

a bond hearing became unreasonable. Because Akinsanya has been detained for

significantly longer than one of the Black petitioners who was granted a bond hearing, a

straightforward application of that case compels the conclusion that his detention has

been unreasonably prolonged. See Black, 103 F.4th at 137-38, 159.

6 In its response to Akinsanya’s petition, the government notes that following the

dismissal of Akinsanya’s BIA appeal in April 2024, the authority for his detention shifted

6 at 3. Although the government argues that Akinsanya has prolonged his own

detention through his PFR in the First Circuit, id. at 3-4, that argument ignores the fact

that “[t]he private interest here is not liberty in the abstract, but liberty in the United

States.” Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999). Indeed, as this Court

has observed with respect to other petitioners, Akinsanya’s interest in liberty in the

United States must indeed be strong for him to subject himself to prolonged detention

during the appeals process, which can be lengthy. See, e.g., Fremont v. Barr, 2019 WL

1471006, at *6 n.7 (W.D.N.Y. Apr. 3, 2019) (Vilardo, J.) (“[N]o rational person would

subject himself or herself to unreasonably prolonged detention in a jail-like detention

facility unless that person’s liberty interests in remaining in the United States are quite

strong.”).

In analyzing the second Mathews factor, the Second Circuit noted “the almost

nonexistent procedural protections in place for section 1226(c) detainees.” Black, 103

F.4th at 152. That certainly is true for Akinsanya, who has never had a hearing on his

continued detention and for whom section 1226(c) prohibits even the opportunity to

challenge whether he is actually a flight risk or danger. See Jennings v. Rodriguez, 583

U.S. 281, 303 (2018). So just as the second Mathews factor weighed in favor of the

petitioners in Black, it also weighs in Akinsanya’s favor.

Finally, Black found that the government has legitimate and important interests in

ensuring the appearance of noncitizens at proceedings and “protecting the community

from 8 U.S.C. § 1226(c) to 8 U.S.C. § 1231(a)(2). Docket Item 6 at 2. But this authority

shifted back to section 1226(c) in June 2024 when the First Circuit stayed Akinsanya’s

removal. Id. at 3. The effect of this shift is thus limited, as the approximately 15 months

that Akinsanya has so far been detained under section 1226(c) still far outstrips the

seven months that one of the Black petitioners had been detained prior to his petition.

from noncitizens who have been involved in crimes that Congress has determined

differentiate them from others.” 103 F.4th at 153. But the court then noted that the

additional procedural safeguard of an individualized bond hearing, where an

immigration judge would assess whether the noncitizen poses a flight risk or danger,

satisfied those interests. Id. at 153-54. Therefore, and in light of the likely costs saved

by reducing unnecessary detentions, the Second Circuit found that the third factor also

weighed in favor of the petitioners. Id. at 153-55. In response to Akinsanya’s petition,

the government has not articulated any unique issues that might arise from granting him

an individualized bond hearing,7 and so the third Mathews factor likewise weighs in his

favor.

In sum, all three factors weigh in favor of granting Akinsanya’s petition. In

deference to the legitimate government interests described in Black, however, this Court

will decline to grant Akinsanya’s first proposed remedy: ordering his immediate release.

See Docket Item 1 at 6. As the Second Circuit noted in Black, an individualized bond

hearing where the government bears the burden of justifying the petitioner’s continued

detention by clear and convincing evidence is the proper remedy in cases of

unreasonably prolonged detention under section 1226(c). See Black, 103 F.4th at 155-

59. Therefore, consistent with Black, the Court concludes that due process entitles

Akinsanya to an individualized bond hearing by an immigration judge where the

7 Akinsanya does not dispute that he has been convicted of an aggravated

felony. See Docket Item 1 at 15. However, he represents in his petition that he has

neither any further criminal history nor any disciplinary issues during his periods of

detention, id., and the government has introduced no evidence to dispute this.

government must show, by clear and convincing evidence, that his continued detention

is necessary.

ORDER

In light of the above, IT IS HEREBY

ORDERED that within 14 calendar days of the date of this decision and

order, the government must release Akinsanya from detention unless a neutral

decisionmaker conducts an individualized hearing to determine whether his continued

detention is justified; and it is further

ORDERED that at any such hearing, the government has the burden of

demonstrating by clear and convincing evidence that Akinsanya’s continued detention is

necessary to serve a compelling regulatory purpose, such as minimizing risk of flight or

danger to the community. Whether detention is necessary to serve a compelling

regulatory purpose requires consideration of whether a less-restrictive alternative to

detention would also address the government’s interests. In other words, the

decisionmaker must find that no condition or combination of conditions of release can

reasonably ensure Akinsanya’s appearance and the safety of the community—that is,

even with conditions, Akinsanya presents an identified and articulable risk of flight or a

threat to an individual or the community; and it is further

ORDERED that the immigration judge must consider Akinsanya’s ability to pay

when setting any bond amount; and it is further

ORDERED that within 30 days of the date of this decision and order the

government shall file an affidavit certifying compliance with this order. That affidavit

should include a copy of the bond hearing order; and it is further

ORDERED that Akinsanya’s motion for the appointment of counsel, Docket Item

4, is DENIED without prejudice as moot.

SO ORDERED.

Dated: October 11, 2024

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE

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.

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