Borbot v. TAYLOR
OPINION. Signed by Chief Judge Jose L. Linares on 7/19/17. (DD, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-4646 (JLL)
IGOR V. BORBOT,
LINARES, Chief District Judge:
Presently before the Court is the petition for a writ of habeas corptts of Petitioner, Igor v.
Borbot filed pursuant to 2$ U.S.C.
§ 2241 (ECF No. 1). As Petitioner has paid the applicable filing
fee, this Court is required to screen his petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases, applicable to
§ 2241 petitions pursuant to Rule 1(b), and determine whether it “plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” For
the following reasons, this Court will dismiss the petition.
Petitioner, Igor V. Borbot, is a Russian citizen who entered the United States in September
2014. (ECF No. 1 at 3). On April 22, 2016, Petitioner was arrested by immigration officials and
entered into removal proceedings because Petitioner had overstayed his visa. (Id.). Immigration
officials chose to detain Petitioner, rather than release him with a notice to appear, because
Petitioner is subject to an Interpol Red Notice which indicates that Petitioner is wanted in Russia
on criminal fraud charges. (Id.). Since his being placed in detention, Petitioner has remained
detained pursuant to 28 U.S.C.
§ 1226(a) while he has litigated his removal proceedings and his
pending application for asylum. (Id.).
Following his placement into immigration detention, Petitioner was afforded a bond
hearing before an immigration judge on May31, 2016. (Id. at 4). Following his hearing, however,
the immigration judge handling Petitioner’s case denied his request for release on bond because
the immigration court found that Petitioner had failed to show that he was not a danger to the
community based on the Red Notice which indicated that Petitioner was wanted on fraud charges
in his home country. (Id.). During that hearing, Petitioner had apparently tried to argue that these
charges were politically motivated, and that he had prevailed in a Russian civil suit surrounding
the same incident which gave rise to the criminal fraud charges, but the immigration judge did not
find that argument availing, and thus denied bond. (Id.).
Petitioner appealed the denial of his bond request to the Board of Immigration Appeals
(“BIA”). The BIA, however, denied his appeal on September 1, 2016. (See ECF No. 1-6). In
dismissing that appeal, the BIA explained as follows:
[A]fter conducing a bond hearing, the Immigration Judge denied
[Petitioner]’s request for release, concluding that he had not carried
his burden of proving that he would not pose a danger to the
community if released. In support of that detennination, the
Immigration Judge relied upon the fact that [Petitioner] a former
shipbuilding official in Russia is wanted in his home country on
fraud charges arising from the alleged embezzlement of a large sum
of money that had been allocated to build a shipyard in Russia’s far
East. Although the charges remain pending, the Immigration Judge
found that the alleged facts of the case as reflected in an Interpol
are serious enough to
Red Notice and associated documents
indicate that [Petitioner]’s release would pose a danger to property
in the United States. This timely appeal followed.
[Petitioner] argues that the Immigration Judge’s
dangerousness assessment gave too much weight to his pending
criminal charges in Russia. Specifically, [Petitioner] maintains that
the Interpol Red Notice “is by no means an arrest warrant or any
indication of a presumption of guilt.” Further, he claims that he is
innocent and that the pending charges are a pretext, lodged in
retaliation for his political opposition to the government of Russian
President Vladimir Putin. In support of this later claim, [Petitioner]
points to evidence of corruption and political manipulation within
the Russian justice system.
Although we understand [Petitioner]’ s arguments, an alien
in bond proceedings is not entitled to the benefit of the doubt when
it comes to evidence of potential dangerousness. On the contrary, it
is [Petitioner]’s burden to satisfy the Immigration Judge that he does
not pose a danger to the community. See Matter ofFatahi, [26 I&N
Dec. 791, 793-95 & n. 3 (BIA 2016)]. As in most cases, the
evidence here is subject to more than one interpretation; however,
we discern no error in the Immigration Judge’s choice to credit the
Interpol Red Notice and its associated documents when assessing
[Petitioner]’s potential dangerousness. Immigration Judges are not
limited to considering only criminal convictions in assessing
whether an alien is a danger to the community. See Matter of
Guerra, [24 I&N Dec. 37, 40-4 1 (BIA 2006)]. Any evidence that is
probative and specific including evidence of unfavorable conduct
for which [Petitioner] has not yet been convicted is pertinent to the
dangerousness analysis. Id. at 41. Of particular significance here,
the Interpol Red Notice and its associated documents reflect that
[Petitioner] is the subject of an outstanding arrest warrant in Russia
and that he is believed to have fled that country with many millions
of dollars in embezzled funds. The existence of those outstanding
charges is entitled to considerable weight in the dangerousness
calculus, despite [Petitioner]’s as-yet unsubstantiated assertion that
they are pre-textual.
In bond proceedings, a finding of future dangerousness is
legally dispositive of the alien’s eligibility for release. See Matter
of Urena, [25 I&N Dec. 140, 141 (BIA 2009)] (“Dangerous aliens
are properly detained without bond”); Matter ofD.iysdale, 20 I&N
Dec. 815, 817 (BIA 1994) (“[I]f the alien cannot demonstrate that
he is not a danger to the community tipon consideration of the
relevant factors, he should be detained in the custody of
[immigration officials]”). As [Petitioner] has not demonstrated that
the Immigration Judge’s dangerousness finding lacked a reasonable
foundation in the record, we conclude that the Immigration Judge
properly denied his request for release on parole.
(ECF No. 1-6 at 3-4).
On February 28, 2017, Petitioner moved for reconsideration of the denial of bond, and once
again requested that he be released on bond. (ECF No. 1 at 7). On April 13, 2017, the Immigration
Judge denied that request, apparently finding that there had been no material change in
circumstances and that Petitioner had not shown that he was not a danger. (ECF No. 1-2 at 4).
A. Legal Standard
Under 28 U.S.C.
§ 2241(c), habeas relief may be extended to a prisoner only when he “is
in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody”
and the custody is allegedly “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C.
§ 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). As Petitioner is
currently detained within this Court’s jurisdiction, by a custodian within the Court’s jurisdiction,
and asserts that his continued detention violates due process, this Court has jurisdiction over his
claims. Spencer v. Keinna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Coitrt, 410 U.S.
484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, applicable to Section 2241
petitions through Rule 1(b), this Court is required to review Petitioner’s habeas petition and
detennine whether it “plainly appears from the petition and any attached exhibits that the petitioner
is not entitled to relief.” Pursuant to the Rule, the Court is “authorized to dismiss summarily any
habeas petition that appears legally insufficient on its face.” Mcfarland v. Scott, 512 U.S. 849,
In his petition, Petitioner seeks to present three claims for habeas relief. First, he argues
that the immigration judge and the BIA “abused [their] discretion” (ECF No. 1 at 9) in denying
him release on bond when the facts of Petitioner’s case did not warrant a finding of dangerousness.
Second, Petitioner argues that his continued detention without an additional bond hearing where
the Government bears the burden of proof denies him Due Process because his situation is
analogous to that of an alien subject to mandatory detention under 8 U.S.C.
§ 1226(c) and his
detention has become overlong. Finally, Petitioner argues that he has been denied Due Process
because his detention hinders his ability to meet with his attorneys in Russia which he claims has
a bearing on his asylum claim. This Court will address each claim in turn.
In his first claim, Petitioner essentially asks the Court to find that the immigration court
and BIA “abused [their] discretion” and were thus mistaken in rejecting his arguments for bond.
That argument essentially asks this Court to sit in appellate review over the immigration courts
and BIA. This Court has no such authority. Pursuant to 8 U.S.C.
§ 1226(e), “[n]o court may set
aside any action or decision by [immigration officials] under this section regarding the detention
or release of any alien or the grant, revocation, or denial of bond or parole.” This Court, therefore.
lacks junsdiction to review the denial of bond by the immigration judge and BIA, and likewise has
no authority to order Petitioner released based on any “abuse of discretion” of the immigration
courts. See, e.g., Rena v. Davies, No. 15-7291, 2016 WL 74410, *2 (D.N.J. January 5, 2016).
Petitioner’s disagreement with the immigration courts’ conclusions is no basis for habects relief.
Although not cotiched as a separate claim, Petitioner also asserts that the immigration
courts abused their discretion by placing the burden of proof on him to show that he was not
dangerous, which he contends was error. Petitioner is mistaken. Aliens detained pursuant to
1226(a), such as Petitioner, are entitled to a bond hearing, but at that bond hearing the alien must
“demonstrate that they would not pose a danger to property and persons and [that] they are likely
to appear for future proceedings.” Contant v. Holder, 352 F. App’x 692, 695 (3d Cir. 2009) (citing
§ 236.1(c)(8)); see also Matter of fatahi, 26 I&N Dec. at 793-95, n. 3. The burden of
demonstrating a lack of dangerousness and that an alien is not a flight risk in a bond hearing under
§ 1226(a) thus rests on the alien, not the Government. Likewise, in a bond redetermination, it is
the alien who must “show that his ‘circumstances have changed materially since the prior bond
redetenTiination.” Contant, 352 F. App’x at 695 (quoting 8 C.F.R.
bond hearing, or bond redetermination, under
§ 1003.19(e)). Thus, in both a
§ 1226(a) the alien must show that he is not a danger
or that circumstances have changed, and the immigration courts in this matter did not deny
Petitioner Due Process by mislaying the burden of proof.
In his second claim, Petitioner asserts that his detention has become overlong, and that he
should therefore be entitled to a bond hearing where the Government bears the burden of proof
pursuant to Diop v. IC’E/Homeland Sec., 656 F.3d 221, 231-35 (3d Cir. 2011), and Chavez-Alvarez
v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015). Both Diop and Chavez-Alvarez,
however, were directed at aliens subject to mandatory detention pursuant to 8 U.S.C.
who were not entitled to a bond hearing absent an order from a court sitting in habeas review.
Neither case addressed those aliens, such as Petitioner, who were already entitled not only to a
bond hearing but also bond redetenriinations under
§ 1226(a). See Contant, 352 F. App’x at 695-
§ 1226(a) detainees from § 1226(c) detainees); see also Garcia v. Green, No.
16-0565, 2016 WL 1718102, at *3.4 (D.N.J. Apr. 29, 2016) (finding that the proper procedure for
§ 1226(a) detainee seeking a new bond hearing is to file for a bond redetermination, rather than
seek habeas relief under Diop and Chavez-Alvarez). Petitioner is not an alien subject to indefinite
detention with no statutory right to a bond hearing. Instead, he is a discretionary detainee who has
received, by right, both a bond hearing and a bond redetermination, the most recent of which was
conducted by the immigration judge just three months ago.
Petitioner’s situation is entirely
distinguishable from that addressed in Diop and Chavez-Alvarez, and, thus, neither case suggests
that he is entitled to relief. Petitioner has already had two opportunities to present his case for
bond before an immigration judge and one before the BIA.
This Court is aware of no case law in this circuit suggesting that such an alien is entitled to
a new bond hearing absent a showing that he was denied procedural Due Process during his first
hearing. See, e.g., Garcia, 2016 WL 1718102 at *3 (Court can grant a new bond hearing to
1226(a) detainee where the original hearing was conducted unlawfully or was not held at all, but
cannot overrule denial of release after a bona fide hearing); see also Harris v. Herrev, No. 134365, 2013 WL 3884191, at *1 (D.N.J. July 26, 2013) (same). Petitioner has presented no basis
for finding that his first bond hearing denied him Due Process or was otherwise unlawful other
than his own dissatisfaction and his erroneous argument that he was not required to show that he
was not dangerous at his bond hearing, and as such has not presented any valid basis for the Court
to grant him a new hearing in light of the two hearings and full appeal he already received.
In his final claim, Petitioner asserts that his continued detention denies him Due Process
because it hinders his ability to present his asylum claims to the immigration courts as he has been
unable to fully communicate with his attorneys in Russia. (ECF No. 1 at 7, 13). Petitioner presents
few facts in support of this claim, and does not explain how he is hindered any more than any other
alien subject to confinement during his removal proceedings. Petitioner does not contend that he
has been denied contact with his local attorneys in the United States, only his Russian lawyer.
Petitioner has presented no caselaw in support of the assertion that such an argument presents a
valid habeas claim, and this Court is aware of no authority to that effect. As Petitioner has not
elaborated on this claim,
explained, why he cannot communicate with his foreign attorneys
through is attorneys in the United States, and as the Court is not aware of any basis for granting a
bond hearing or release from detention on such a claim,’ this claim will be dismissed without
prejudice at this time.
For the reasons expressed above, this Court will dismiss Petitioner’s petition for a writ of
habeas corpus (ECF No. 1) without prejudice in its entirety. An appropriate order follows.
if Judge, United States District Court
The Court also notes that this claim goes to the Due Process Petitioner receives in his substctntive immigration
hearings, and does not address the process he received in his detention relating hearings. As habeas jurisdiction exists
only to address claims asserting that a petitioner is in custody in violation of federal law, it is not clear that jurisdiction
exists to address such a claim under § 2241.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?