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