Kamara v. Garland

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MOHAMED DARAMY KAMARA,

Petitioner,

v. 24-CV-743-LJV

DECISION & ORDER

MERRICK B. GARLAND, et al.,

Respondents.

Mohamed Daramy Kamara has been detained in the custody of the United

States Department of Homeland Security (“DHS”) for more than ten months. Docket

Item 1 at 3, ¶ 6.1 On August 8, 2024, Kamara 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 (“BFDF”) in Batavia, New York. Docket Item 1. On

September 30, 2024, the government filed a letter in response to the petition. Docket

Item 4.

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

FACTUAL AND PROCEDURAL BACKGROUND2

Kamara is a native and citizen of Sierra Leone. See Docket Item 1 at 2, ¶ 2; 3,

¶ 6. He entered the United States on December 13, 2002. Id. at 2, ¶ 2; 10, ¶ 31. On

1 Throughout this decision, page numbers in docket citations refer to ECF

pagination. Because Kamara inconsistently numbers the paragraphs in his petition, the

Court refers to the relevant pages and, if applicable, paragraph numbers, when citing it.

2 The following facts are taken from Kamara’s petition, Docket Item 1, and the

government’s response, Docket Item 4, and are largely undisputed. The single

inconsistency is discussed below. The Court also takes judicial notice of Kamara’s

May 19, 2022, Kamara “was convicted of [a]ssault in the [s]econd [d]egree” under N.Y.

Penal Law § 120.05 and “sentenced to two years[’] imprisonment.” Docket Item 1 at 10,

¶ 32. About a year later, on April 18, 2023—while Kamara was serving his state

sentence—DHS issued a “Notice to Appear,” charging that Kamara was subject to

removal from the United States under the Immigration and Nationality Act (“INA”), 8

U.S.C. §§ 1101-1537. See id. at 10, ¶ 33. More specifically, DHS charged that Kamara

was subject to removal under section 1227(a)(2)(A)(iii) of the INA for having been

convicted of an aggravated felony. Docket Item 1 at 10, ¶¶ 32, 34; Docket Item 4 at 2;

see 8 U.S.C. § 1227(a)(2)(A)(iii).

In January 2024, an immigration judge denied Kamara’s “application for

protection under the [C]onvention against [T]orture” and “ordered him removed” to

Sierra Leone. Docket Item 1 at 11, ¶ 35. Kamara appealed that ruling to the Board of

Immigration Appeals, which denied his appeal, Docket Item 4 at 2; he then filed a

petition for review in the United States Court of Appeals for the Second Circuit, see

Kamara v. Garland, Case No. 24-1688 (2d Cir. 2024). That petition remains pending.

Id.; Docket Item 1 at 11, ¶ 37. In fact, because no “briefing schedule” has been set for

Kamara’s petition, he is ”expected to remain in custody for however long it takes to brief

and argue” that petition, “which could be at least several months.” Docket Item 4 at 3-4.

At some point during his immigration proceedings, Kamara was moved from

state custody into DHS custody at BFDF, where he now has been held for at least ten

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).

months.3 Docket Item 1 at 2, ¶ 2; 15, ¶ 13; Docket Item 4 at 2. He filed this petition

seeking an order that the government release him from detention or, “[i]n the

alternative,” an order “requiring [the government] to provide [him] with an individualized

bond hearing.” Docket Item 1 at 22-23. The government responded as described

above. Docket Item 4.

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)). Kamara alleges that his continued detention violates his right to

procedural due process under the Constitution. See Docket Item 1 at 2, ¶ 1.4 For the

reasons that follow, this Court agrees.

I. DUE PROCESS UNDER THE INA

Section 1226 of the INA “generally governs the process of . . . detaining

[noncitizens]” during removal proceedings. Jennings v. Rodriguez, 583 U.S. 281, 288-

3 In his petition, which was signed on August 1, 2024, Kamara says that he has

been detained at BFDF for “over eight months,” suggesting that his detention began in

or around November 2023. Docket Item 1 at 2, ¶ 2; 15, ¶ 13. The letter filed by the

government, however, says that Kamara has been held for about 14 months, noting that

he was detained by DHS following his “release from state custody” in July 2023. See

Docket Item 4 at 2-3. Nonetheless, regardless of whether he has been in DHS custody

since November of last year—now more than ten months—or longer, due process

demands that he receive a bond hearing. See infra.

4 There are two paragraphs numbered “1” on this page; this citation refers to the

second one.

89 (2018) (citing 8 U.S.C. § 1226). While the government “may release” noncitizens

detained under section 1226(a), those detained under section 1226(c)—which applies

to noncitizens who have committed certain criminal offenses or engaged in certain

terrorist activities—must be detained unless narrow circumstances related to witness

protection are met. Id. (citing 8 U.S.C. § 1226(c)). In Jennings v. Rodriguez, the

Supreme Court held that the statute does not require—and in fact prohibits—the

government from offering a noncitizen detained under section 1226(c) the opportunity to

challenge the detention at a bond hearing. Id. at 303. The Court declined to determine

whether the Constitution nonetheless requires that noncitizens held under section

1226(c) be afforded such an opportunity. Id. at 312.

In Black v. Decker, 103 F.4th 133 (2d Cir. 2024), however, the Second Circuit

answered that question, holding that “a noncitizen’s constitutional right to due process

precludes his unreasonably prolonged detention under section 1226(c) without a bond

hearing.” Id. at 138. Further, it held that the three-factor balancing test of Mathews v.

Eldridge, 424 U.S. 319 (1976), “supplies the proper framework for determining when

and what additional procedural protections are due such a detainee.” Black, 103 F.4th

at 138. More specifically, the Second Circuit explained that courts should analyze a

noncitizen’s due process challenge to his detention “under the Mathews factors,”

considering:

(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.”

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

II. KAMARA’S PETITION

Kamara—like the noncitizens in Black—is detained under section 1226(c).5

Docket Item 1 at 2, ¶ 4; 22, ¶ 33. In fact, the government has conceded that case’s

applicability here. In its response to Kamara’s petition, the government says that it

“disagrees with the Second Circuit’s decision in Black v. Decker” but acknowledges that

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

grant of [Kamara’s] habeas petition.” Docket Item 4 at 3-4. For the reasons explained

in this opinion, the Court agrees: Black controls, and applying the Mathews factors

necessarily requires this Court to grant Kamara’s petition in part.

A. The Private Interest Affected

As an initial matter, the Court finds that the “private interest affected” is a

compelling one. Indeed, as the Second Circuit explained in Black, the private interest

implicated in immigration detention cases is “the most significant liberty interest there

5 At one point in his petition, Kamara appears to allege that he is being detained

under section 1226(a). Docket Item 1 at 5, ¶ 18. The Court assumes this to be a

mistake: Elsewhere in his petition, he says that he is being held under section 1226(c).

Id. at 2, ¶ 4; 22, ¶ 33. In any event, the statutory basis for his detention is a legal

question, and the facts here make clear that Kamara—who was ordered removed

based on his commission of an aggravated felony—is subject to section 1226(c).

In its response to the petition, the government notes its longstanding

disagreement with this Court regarding the effect of the government’s “Forbearance

Agreement” with the Second Circuit, which this Court repeatedly has held to operate as

a “court-ordered stay,” such that those noncitizens whose petitions for review are

pending before the Second Circuit and who have moved for a stay of their removal are

deemed to be detained under 8 U.S.C. § 1226, rather than 8 U.S.C. § 1231. See, e.g.,

Hemans v. Searls, 2019 WL 955353, at *3 (W.D.N.Y. Feb. 27, 2019). In light of this

Court’s previous rulings, the government “does not press that issue further here,”

Docket Item 4 at 2 n.2, and this Court indeed sees no reason to reconsider the

conclusion it reached in its previous decisions.

is—the interest in being free from imprisonment.” 103 F.4th at 151 (quoting Velasco

Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)). And while “[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), Kamara has lived in this country for more than two

decades, Docket Item 1 at 2, ¶ 2. Further, he has appealed the immigration judge’s

removal order, and his case remains pending before the Second Circuit. See Kamara

v. Garland, Case No. 24-1688; Docket Item 4 at 2-4. So his interest in liberty in the

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

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

1471006, at *6 n.7 (W.D.N.Y. Apr. 3, 2019).

Moreover, Kamara has been in DHS custody at least for more than ten months.

Docket Item 1; see supra note 3. In Black, the Second Circuit held that even a “seven-

month-long” detention absent procedural protections was a “serious[] infringe[ment]” of

liberty. 103 F.4th at 151. And while, like the petitioners in Black, Kamara’s “detention[]

in some sense w[as] the result of a criminal adjudication, since a conviction was the

premise for applying section 1226(c),” he has “served his entire sentence.” Id. at 151;

see Docket Item 4 at 2 (noting that Kamara was detained by DHS “upon his release

from criminal incarceration”). “And [his current] detention[] did not arise from new or

unpunished conduct.” Black, 103 F.4th at 151 (citation and internal quotation marks

omitted); Docket Item 4 at 2.

In sum, as in Black, “the first Mathews factor weighs heavily in favor of” Kamara.

See Black, 103 F.4th at 152.

B. The Risk of Erroneous Deprivation and the Value of Additional

Procedural Safeguards

This Court concludes that in light of the procedures used thus far, there is a

significant risk of an erroneous deprivation of Kamara’s liberty. As the Second Circuit

explained, “the ‘procedures used’ for section 1226(c) detainees are very few” and

“include no mechanism for a detainee’s release, nor for individualized review of the

need for detention.” Black, 103 F.4th at 152. In fact, as already noted, section 1226(c)

prohibits the government from offering a detainee the opportunity to challenge whether

he is actually a danger or a flight risk. See Jennings, 583 U.S. at 303. So “[i]n the

absence of any meaningful initial procedural safeguards, . . . almost any additional

procedural safeguards at some point in the detention would add value.” Black, 103

F.4th at 153.

Indeed, Kamara has had no opportunity to challenge the basis for his detention—

to argue, for instance, that he poses no danger to the community or risk of flight while

his appeal proceeds. See id. So this Court finds—just as the Second Circuit did in

Black—that an “individualized bond hearing at which an [immigration judge could]

consider” whether those factors justify Kamara’s detention would add significant value

here. Id. The second factor therefore also weighs in Kamara’s favor.

C. The Government’s Interest

Finally, this Court recognizes that the government’s interest in detaining Kamara

also may be strong. In mandating the detention of noncitizens who have committed

certain crimes, section 1226(c) reflects a congressional purpose of reducing the risk of

flight and danger to the community. See Demore v. Kim, 538 U.S. 510, 518-19 (2003);

Jennings, 583 U.S. at 303-04. It is “well[ ]established” that the government has a

“legitimate” and compelling interest in both those aims. Black, 103 F.4th at 153.

But those interests do not outweigh Kamara’s liberty interest. As already

explained, Kamara has had no opportunity to challenge the statutory assumption that

there is any risk he will flee or endanger the community while his case proceeds. And

so, absent a bond hearing, it is not even clear that Kamara’s detention is required to

serve the government’s interests. Further, the government has not identified any

special interests here that would justify Kamara’s continued detention without an

individualized bond hearing. See Docket Item 4.

The third factor therefore weighs in Kamara’s favor as well.

*

In sum, the Court finds that, under the Mathews framework, Kamara’s continued

detention absent any procedural protections violates the Due Process Clause. The

Court nonetheless declines to grant Kamara’s first request for relief: an order for his

immediate release. See Docket Item 1 at 22-23. Instead, in keeping with the Second

Circuit’s reasoning, this Court finds that 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 133 at 155-159.

Thus, consistent with Black, the Court concludes that all three Mathews factors

weigh in Kamara’s favor and that due process entitles him to an individualized bond

hearing before an immigration judge where the government must show, by clear and

convincing evidence, that his continued detention is necessary. Id. Further, at that

hearing, the immigration judge must “consider [Kamara’s] ability to pay and alternatives

to detention” in making that determination and setting any bond amount. See id. at 158.

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 Kamara 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 Kamara’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 Kamara’s appearance and the safety of the community—that is,

even with conditions, Kamara 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 Kamara’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.

SO ORDERED.

Dated: October 11, 2024

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE