Sajous v. Decker et al
Filing
64
OPINION AND ORDER re: 27 MOTION for Preliminary Injunction Ordering Defendants-Respondents to Provide Petitioner-Plaintiff a Bond Hearing, filed by Augustin Sajous. The motion for a preliminary injunction is granted. The Respondents shal l take Augustin Sajous before an immigration judge within fourteen days of this order for an individualized bond hearing, or else they must immediately release Sajous. At the bond hearing, the Petitioner must be released on bail unless the Governme nt establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community. This resolves docket number 27. Within seven days of this Opinion and Order, the parties shall submit a revised schedul e for the briefing of the motion to certify a class and motion for a classwide preliminary injunction so that the parties may incorporate the effect of this decision into their discussion of those motions, and as further set forth herein. (Signed by Judge Alison J. Nathan on 5/23/2018) (ras) Modified on 5/23/2018 (ras).
UNITED STA TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Augustin Sajous,
Petitioner,
18-cv-2447 (AJN)
-vOPINION AND ORDER
Thomas Decker et al.,
Respondents.
ALISON J. NATHAN, District Judge:
The present case, initiated by the filing of a petition for habeas corpus under 28 U.S.C.
§ 2241, concerns the question recently left open by the Supreme Court in Jennings v. Rodriguez,
138 S. Ct. 830 (2018): whether prolonged mandatory detention of an alien under 8 U.S.C.
§ 1226(c), without access to a bond hearing, violates the Due Process Clause of the Fifth
Amendment. Currently before this Court is the Petitioner's motion for preliminary injunction
seeking an order that the Petitioner, who has been detained for over eight months, be given an
individualized bond hearing. For the reasons that follow, the Court will grant the Petitioner's
motion and order that he receive an individualized bond hearing, thus resolving this case with
respect to the individual Petitioner.
I.
Background
A.
Statutory Framework-§ 1226(c)
Under federal immigration law, the Department of Homeland Security is authorized to
arrest and initially detain an alien who has entered the United States but is believed to be
removable. 8 U.S.C. § 1226(a); Lora v. Shanahan, 804 F.3d 601, 608-09 (2d Cir. 2015), vacated
13 8 S. Ct. 1260 (2018). The alien may be detained "pending a decision on whether the alien is to
be removed," or federal officials may choose to release the alien on bond or conditional parole.
8 U.S.C § 1226(a)(l)-(2). Even if officials decide to detain the alien, "an [immigration judge]
can ordinarily conduct a bail hearing to decide whether the alien should be released or
imprisoned while proceedings are pending." Lora, 804 F.3d at 608. Under§ 1226(c), however,
certain classes of aliens are subject to mandatory detention and may not, under the statute, be
released on bond. Jennings v. Rodriguez, 138 S. Ct. 830, 837-38 (2018). Broadly speaking,
aliens subject to mandatory detention include those who have committed certain "crimes
involving moral turpitude" as defined by statute, controlled substance offenses, aggravated
felonies, firearm offenses, or terrorist activities. See 8 U.S.C. § 1226(c)(l)(A)-(D). An alien
who is detained pursuant to § 1226(c) may seek discretionary release from the Head of the
Department of Homeland Security if he is a witness, a potential witness, a cooperator, or an
immediate family member or close associate of someone who is acting as a witness, potential
witness, or cooperator in an investigation into major criminal activity. Id. § 1226(c)(2). No
other category of discretionary release exists under the statute.
B.
Judicial Interpretation of§ 1226(c)
1.
Lora
In 2015, the Second Circuit decided Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015),
which held that "in 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." Id. at 616. In deciding the case,
the Second Circuit relied primarily on two Supreme Court cases related to the detention of aliens.
The first, Zadvydas v. Davis, 533 U.S. 678 (2001), applied the canon of constitutional avoidance
2
and held that aliens who had been ordered removed, but for whom "removal is no longer
reasonably foreseeable" could not be detained. Id. at 699. The Second Circuit in Lora
interpreted Zadvydas as "the Supreme Court signal[ing] its concerns about the constitutionality
of a statutory scheme that ostensibly authorized indefinite detention of non-citizens." 804 F .3d
at 613. The second case Lora relied on, Demore v. Kim, 538 U.S. 510 (2003), upheld the
constitutionality of§ 1226(c)'s mandatory detention, concluding that Congress "may require that
[removable aliens detained under§ 1226(c)] be detained for the brief period necessary for their
removal proceedings." Id. at 513. The Lora decision described the Supreme Court's decision in
Demore as "emphasiz[ing] that, for detention under the statute to be reasonable, it must be for a
brief period of time." 804 F.3d at 614. The Second Circuit found further support for its
conclusion in Justice Kennedy's concurrence in Demore, in which he reasoned that "[w]ere there
to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it
could become necessary then to inquire whether the detention is not to facilitate deportation, or
protect against risk of flight or dangerousness, but to incarcerate for other reasons." Id.
(alteration in original) (quoting Demore, 538 U.S. at 532-33 (Kennedy, J., concurring)). The
Second Circuit concluded that Zadvydas and Demore, taken together, "clearly establish that
mandatory detention under section 1226(c) is permissible, but that there must be some
procedural safeguard in place for immigrants detained for months without a hearing." Id. As a
result, the Second Circuit employed the canon of constitutional avoidance to read "an implicit
temporal limitation" in the statute. Id.
Having concluded that some temporal limitation on mandatory detention was
constitutionally necessary, the Second Circuit further held that the appropriate limitation to read
into the statute was six months. Id. at 614-15. The Second Circuit found support for this
3
conclusion in Zadvydas and Demore, reasoning that those cases "suggest that the preferred
approach for avoiding due process concerns in this area is to establish a presumptively
reasonable six-month period of detention." Id. at 615. Specifically, in Zadvydas, "the Court held
that six months was a 'presumptively reasonable period of detention' in a related context." Id.
(quoting Zadvydas, 533 U.S. at 700-01). In Demore, "the Court held that section 1226(c)
authorized mandatory detention only for the 'limited period of [the alien's] removal
proceedings,"' which, at the time of the Supreme Court's decision, "'last[ed] roughly a month
and a half in the vast majority of cases in which [section 1226(c) was] invoked, and about five
months in the minority of cases in which the alien cho[se] to appeal."' Id. (alterations in
original) (quoting Demore, 538 U.S. at 529-31). In contrast, at the time of the Lora decision in
2015, "a non-citizen detained under section 1226(c) who contests his or her removal regularly
spen[t] many months and sometimes years in detention due to the enormous backlog in
immigration proceedings." Id. at 605 & n.9.
The Second Circuit further reasoned that a brightline rule was necessary because of "the
pervasive inconsistency and confusion exhibited by district courts in this Circuit when asked to
apply a reasonableness test on a case-by-case basis." Id. at 615. In addition, a six-month rule
was appropriate, according to Lora, because "endless months of detention, often caused by
nothing more than bureaucratic backlog, has real-life consequences for immigrants and their
families." Id. at 616. As a result, the Second Circuit concluded that an alien detained pursuant
to § 1226(c) was entitled to a bail hearing after six months of detention and that the detainee
"must be admitted to bail unless the government establishes by clear and convincing evidence
that the immigrant poses a risk of flight or a risk of danger to the community." Id.
2.
Jennings
4
From October 2015 through February 2018, Lora remained good law, and Immigration
and Customs Enforcement ("ICE") officials routinely acquiesced to bail hearings before an
immigration judge within six months of detention. Deel. of Andrea Saenz, Dkt. No. 14-6, ,J 3.
On February 27, 2018, the Supreme Court decided Jennings v. Rodriguez, 138 S. Ct. 830 (2018),
in which it held that the Ninth Circuit had erred in applying the canon of constitutional avoidance
to § 1226(c), as well as other related provisions of federal immigration law, because the express
language of§ 1226(c) can only mean "that aliens detained under its authority are not entitled to
be released under any circumstances other than those expressly recognized by the statute." Id. at
846. In other words, the only reasonable interpretation of§ 1226(c) "makes clear that detention
of aliens within[§ 1226(c)'s] scope must continue 'pending a decision on whether the alien is to
be removed from the United States."' Id. (quoting 8 U.S.C. § 1225(a)). As a result, the Ninth
Circuit erred when it interpreted § 1226(c) to contain an implicit six-month limitation on
detention absent a bail hearing. The Supreme Court described this interpretation as "textual
alchemy" and concluded that "[ e]ven if courts were permitted to fashion 6-month time limits out
of statutory silence, they certainly may not transmute existing statutory language into its polar
opposite." Id.
In dissent, Justice Breyer, joined by Justices Ginsburg and Sotomayor, warned that
interpreting the statute to foreclose any bond hearing while detained "at the very least would
raise 'grave doubts' about the statute's constitutionality." Id. at 861 (Breyer, J., dissenting).
Specifically, the dissent concluded that the Constitution's "language, its basic purposes, the
relevant history, our tradition, and many of the relevant cases" all support the conclusion that a
statute "that would deny bail proceedings where detention is prolonged would likely mean that
the statute violates [the Fifth Amendment to] the Constitution." Id. at 869. In support of this
5
conclusion, the dissent demonstrated that reasonable bail, and the opportunity for a bail hearing,
were considered necessary in a long line of Supreme Court precedent, the law of England before
the Founding of the United States, and even in the structure of the U.S. Constitution. See id. at
862-69. The majority opinion in Jennings took no position on this constitutional analysis,
instead simply remanding the case to the Ninth Circuit to address the constitutional issue in the
first instance. Id. at 851 (majority opinion).
Because the Ninth Circuit's interpretation of§ 1226(c) had been identical to the Second
Circuit's in Lora, the Supreme Court's decision in Jennings abrogated Lora's constitutional
avoidance holding. And so, on March 5, 2018, the Supreme Court granted certiorari in Lora,
vacated the Second Circuit's judgment, and remanded the case to the Second Circuit for further
consideration in light of Jennings. Shanahan v. Lora, 138 S. Ct. 1260 (2018). On remand, the
Second Circuit dismissed the case as moot because the petitioner, Mr. Lora, had been granted
cancellation of removal. Lora v. Shanahan, 719 F. App 'x 79, 80 (2d Cir. 2018). The question,
taken up shortly, is whether this posture requires the Court to treat itself as bound by Lora's
constitutional analysis.
C.
The Petitioner
Augustin Sajous came to the United States from Haiti in 1972 when he was 14 years old.
Deel. of Augustin Sajous ("Sajous Deel."), Dkt. No. 27-2, 111, 3; see also Deel. of Matthew
Zabbia ("Zabbia Deel."), Dkt. No. 39, 114-5. He was admitted as a Lawful Permanent Resident.
Sajous Deel.
111, 3; Zabbia Deel. 15.
years in that field. Sajous Deel.
114-5.
He was trained as an auto mechanic and worked for 30
Sajous suffers from schizophrenia, which was untreated
for many years because he "did not know that the voices [he] was hearing were caused by a
mental illness." Sajous Deel. 19. During this period of untreated mental illness, Sajous
6
committed numerous low-level, non-violent offenses. Deel. of Jesse Rockoff ("RockoffDecl."),
Dkt. No. 27-3,
~
3. He was arrested 16 times between 1994 and 2017. Deel. of Brandon
Waterman, Ex. A ("RAP Sheet"), Dkt. No. 37-1. He was convicted of crimes including
aggravated unlicensed operation of a motor vehicle, attempted criminal possession of stolen
property, attempted criminal possession of a controlled substance, petit larceny, criminal
possession of a forged instrument, attempted forgery, and criminal trespass. See RAP Sheet.
Two of these convictions are relevant to the present case. First, on July 6, 2015, Sajous was
convicted of criminal possession of a forged instrument in the third degree in violation of New
York Penal Law§ 170.20, for which he was sentenced to 30 days in jail. RAP Sheet at 20-21.
Second, on August 20, 2015, Sajous was convicted of attempted forgery in the third degree in
violation of New York Penal Law§ 170.05, for which he was sentenced to 30 days in jail. RAP
Sheet at 18-19.
On September 21, 2017, Sajous was arrested by ICE officials while appearing in court
and served with a Notice to Appear for removal proceedings. Petition, Dkt. No. 13, ~ 19. The
Notice to Appear charges Sajous as removable under section 237(a)(2)(A)(ii) of the Immigration
and Nationality Act as an alien who after admission has been convicted of two or more crimes
involving moral turpitude. Petition~~ 17-19; Zabbia Deel.~ 12; see also 8 U.S.C.
§ 1227(a)(2)(A)(ii). ICE officials detained Sajous subject to the mandatory detention provision
contained in 8 U.S.C. § 1226(c). See Deel. of Brandon Waterman, Ex. C ("Custody Notice"),
Dkt. No. 37-3. Sajous has remained in ICE custody since his arrest on September 21, 2017, and
has been held in the immigration jail at Hudson County Correctional Facility in New Jersey.
Sajous Deel.~ 2; Zabbia Deel.~ 12.
7
On September 26, 2017, ICE officials filed the Notice to Appear with the immigration
court, which commenced Sajous's removal proceedings. Zabbia Deel. 113. On November 13,
2017, Sajous appeared for his first master calendar hearing before an immigration judge. At that
appearance, he indicated that he was not prepared to plead to the Notice to Appear. Zabbia Deel.
114. The immigration judge adjourned the case to December 6, 2017. Zabbia Deel. 114.
On November 30, 2017, Sajous filed a motion to terminate his removal proceedings on
the grounds that the two forgery convictions described above did not qualify as crimes involving
moral turpitude. Zabbia Deel.
1 15.
ICE officials opposed the motion. Zabbia Deel. 1 15. On
December 6, 2017, at Sajous's second master calendar hearing, Sajous admitted to the
allegations in the Notice to Appear but denied removability. Zabbia Deel.
1 16.
The
immigration judge denied Sajous's motion to terminate and found him removable. Zabbia Deel.
1 16.
A third master calendar hearing was scheduled for December 27, 2017, at which Sajous
could submit applications for relief from removal. Zabbia Deel. 1 16.
On December 6, 2017, following the second master calendar hearing, Sajous's counsel
submitted a FOIA request to the U.S. Citizenship and Immigration Services ("USCIS") to obtain
a complete copy of Sajous's immigration A-file. Rockoff Decl. 16. On December 20, 2017,
USCIS received the FOIA request. Deel. of Jill Eggleston ("Eggleston Deel."), Dkt. No. 41, 17.
That same day, USCIS determined that the A-file was in the custody ofICE's New York branch,
and USCIS requested the A-file from ICE to be processed pursuant to Sajous's FOIA request.
Eggleston Deel. 18. On January 9, 2018, ICE forwarded the file to USCIS data entry personnel
in New York. Deel. of Michael McFarland ("McFarland Deel."), Dkt. No. 40, 114-5. A USCIS
contractor received the file on January 23, 2018. McFarland Deel. 15. However, the A-file was
8
never forwarded from USCIS personnel in New York to the records processing center in
Missouri and was never sent to Sajous. See McFarland Deel.
,r,r 5-7.
On December 27, 2017, Sajous appeared for a third master calendar hearing before the
immigration judge. Zabbia Deel.
,r 17.
Sajous's counsel stated that he could not file applications
for relief at that hearing because ICE had not yet sent Sajous's A-file. Zabbia Deel.
,r 17.
ICE
stated at the hearing that a FOIA request was the appropriate method for obtaining documents
from the A-file. Zabbia Deel.
2018. Zabbia Deel.
,r 17.
,r 17.
The immigration judge adjourned the case to February 20,
On January 9, 2018, ICE provided Sajous's counsel with certain
documents from a prior removal proceeding that occurred in 2008, at which an immigration
judge ultimately terminated the removal proceedings without prejudice on ICE's motion. Zabbia
Deel.
,r,r 9, 18.
On February 20, 2018, Sajous appeared before the immigration judge without counsel for
a fourth master calendar hearing and Lora bond hearing. Zabbia Deel.
,r 19.
However, the
hearings did not proceed because although the hearing had been scheduled for the morning, the
hearing notice provided to Sajous and his counsel stated that the hearing was scheduled for the
afternoon docket. Zabbia Deel. ,r 19. The immigration judge rescheduled the hearings for March
19,2018. ZabbiaDecl.,r 19.
On March 19, 2018, Sajous and his attorney appeared for the adjourned fourth master
calendar hearing, at which Sajous's counsel filed two applications for relief from removal.
Zabbia Deel.
,r 20.
Sajous's counsel informed the immigration judge that he had not yet received
the complete copy of Sajous's A-file pursuant to the December 6, 2017 FOIA request. Zabbia
Deel.
,r 20.
Over ICE's objection, the immigration judge adjourned the case to May 1, 2018 for a
fifth master calendar hearing. Zabbia Deel.
,r 20.
9
The immigration judge further concluded that
he could not hold a Lora bond hearing because Sajous was subject to mandatory detention under
§ 1226( c), and Lora had been vacated by the Supreme Court following its decision in Jennings.
Zabbia Deel. 120.
Following the March 19, 2018 master calendar hearing, Sajous's counsel filed an initial
habeas petition with this Court. Dkt. No. 1. On March 20, 2018, after learning that Sajous had
filed a habeas petition, ICE Deputy Chief Counsel Michael McFarland instructed an ICE clerk to
obtain Sajous's A-file, which ICE knew through electronic records was still located at USCIS
offices in New York. McFarland Deel.
1 6.
On March 22, 2018, an ICE clerk retrieved the file,
and ICE became aware that USCIS had never delivered the A-file to the records department in
Missouri for FOIA processing. McFarland Deel.~ 7. On March 29, 2018, ICE once again
forwarded the A-file to USCIS data personnel in New York. McFarland Deel. 18. Also on
March 29, 2018, USCIS personnel forwarded the file to the records department in Missouri. The
file was received in Missouri on or before April 6, 2018. McFarland Deel. 18. USCIS sent the
processed A-file to ICE's FOIA Office on April 16, 2018. Eggleston Deel.
il 9.
On April 5, 2018, Sajous filed an amended petition with this Court. See Petition. He
simultaneously filed a motion to certify a class of similarly situated plaintiffs, Dkt. No. 14, and
shortly thereafter filed a motion for preliminary injunction ordering that he be granted a bond
hearing, Dkt. No. 27. On May 18, 2018, the Comi heard oral argument in this matter.
II.
Legal Standard
"A preliminary injunction is an extraordinary remedy never awarded as ofright." Winter
v. Nat. Res. Def Council, Inc., 555 U.S. 7, 24 (2008). A court may issue a preliminary
injunction only "upon a clear showing that the plaintiff is entitled to such relief." Id. at 22. As a
general matter, a party seeking a preliminary injunction must make one of two showings: First,
10
he may "show that he is likely to succeed on the merits; that he is likely to suffer irreparable
harm in the absence of preliminary relief; that the balance of equities tips in his favor; and that an
injunction is in the public interest." ACLUv. Clapper, 785 F.3d 787,825 (2d Cir. 2015).
Alternatively, he "may show irreparable harm and either a likelihood of success on the merits or
'sufficiently serious questions going to the merits to make them a fair ground for litigation and a
balance of hardships tipping decidedly toward the party requesting the preliminary relief."' Id.
(quoting Christian Louboutin SA. v. Yves Saint Laurent Am. Holdings, Inc., 696 F.3d 206,215
(2d Cir. 2012) ). When a party seeks a preliminary injunction that "will provide the movant with
substantially all the relief sought and that relief cannot be undone even if the defendant prevails
at a trial on the merits," the movant bears a more substantial burden and "must show 'clear' or
'substantial' likelihood of success on the merits and make a 'strong showing' of irreparable harm
in addition to showing that the preliminary injunction is in the public interest." New York ex rel.
Schneiderman v. Actavis PLC, 787 F.3d 638,650 (2d Cir. 2015) (citations omitted).
III.
Petitioner Sajous Is Entitled to a Preliminary Injunction
The Court concludes that the Petitioner has demonstrated that he is entitled to a
preliminary injunction. Based on the circumstances of his case, he has made a clear and
substantial showing that he will prevail on the merits. Additionally, the continued deprivation of
his freedom from detention without due process constitutes irreparable harm. Finally, the
balance of equities and public interest tip decidedly in his favor because the continued
deprivation of his liberty outweighs the boilerplate suggestion that granting Sajous a hearing
undermines the immigration laws of the United States.
A.
Likelihood of Success on the Merits
11
There is a clear and substantial likelihood that the Petitioner will succeed on the merits.
In fact, the Court concludes that the Petitioner does succeed on the merits in this case. Applying
existing case law, the Court first concludes that under the Due Process Clause, the reasonability
of detention under § 1226(c) is an individualized inquiry. Considering the particular
circumstances of this case, the Court next concludes that it would violate the Petitioner's right to
due process to continue to detain him without prompt access to an individualized bond hearing.
As a result, Sajous is substantially likely to succeed (and does, in fact succeed) on the merits.
1.
Effect of Lora
The first question the Court must answer is whether the Second Circuit's constitutional
analysis in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), vacated 138 S. Ct. 1260 (2018),
remains binding authority that the Court must follow. Petitioner argues that Lora remains
precedential despite the Supreme Court's grant, vacatur, and remand of the judgment in that
case, relying primarily on a decision of the D.C. Circuit. See Memo. in Support of Mot. for
Prelim. Injunction ("Support"), Dkt. No. 27-1, at 7 n.2 ("When the Supreme Court vacates a
judgment of this court without addressing the merits of a particular holding in the panel opinion,
that holding continue[s] to have precedential weight, and in the absence of contrary authority, we
do not disturb it." (alteration in original) (quoting United States v. Adewani, 467 F.3d 1340, 1342
(D.C. Cir. 2006)). The Government, on the other hand, argues that "[t)he Court's holding in
Jennings . .. abrogates Lora's prolonged detention holding." Memo. in Opp. to Mot. for Prelim.
Injunction ("Opp."), Dkt. No. 36, at 11.
As a preliminary matter, it is worth noting that by definition, vacating a decision divests
that decision of legal force. Vacate, Black's Law Dictionary (10th ed. 2014) (defining "vacate"
as "[t]o nullify or cancel; make void; invalidate"). Moreover, the Court concludes that under the
12
Second Circuit's case law, the opinion in Lora is no longer binding but carries significant
persuasive weight. In Brown v. Kelly, 609 F.3d 467, 476-77 (2d Cir. 2010), the Second Circuit
stated that following the Supreme Court's vacatur of a prior Second Circuit decision, the Brown
panel was no longer bound to follow the Circuit's prior precedent. Specifically, it reasoned that
"[b ]ecause the Supreme Court vacated" the Second Circuit's prior decision, that prior decision
"is not technically binding on us." Id. at 476. In so stating, the Second Circuit relied on its
analysis in a previous case, in which it had written in dicta that"[ w]hen imposed by the Supreme
Court, vacatur eliminates an appellate precedent that would otherwise control decision on a
contested question throughout the circuit." Id. at 477 (alteration in original) (quoting Russman v.
Bd. of Educ. of the Enlarged City Sch. Dist. of the City of Watervliet, 260 F.3d 114, 122 n.2 (2d
Cir. 2001)). The Second Circuit further noted, however, that it should "nonetheless treat [the
vacated decision] as persuasive authority." Id.
Comis in this district, following the Second Circuit's conclusion in Brown, have treated
vacated Second Circuit opinions as persuasive - but nonbinding - authority. See Silverman v.
Miranda, 213 F. Supp. 3d 519,530 (S.D.N.Y. 2016) ("Although Miranda Illis no longer
binding on this Court, it was vacated on grounds unrelated to damages, and the Court treats the
decision as persuasive authority as to those issues."); United Nat'! Ins. Co. v. Waterfront N. Y
Realty, Corp., 948 F. Supp. 263,268 (S.D.N.Y. 1996) ("Because the Second Circuit's decision in
United National v. Wate,front was vacated on jurisdictional grounds, it is not controlling
precedent. Nonetheless, as the decision was not vacated on the merits, it remains strong
persuasive authority." (citation omitted)). 1 The Court will do the same here. The Government
1
The Court recognizes that in Sutherland v. Ernst & Young LLP, 768 F. Supp. 2d 547, 550 (S.D.N.Y.
20 I I), rev' d, 726 F.3d 290 (2d Cir. 2013), the court concluded that a Second Circuit decision "continue[d] to have
precedential effect notwithstanding the issuance of' the Supreme Comt's order granting certiorari, vacating the
13
notes that this language in Brown may be dicta rather than a holding. See Dkt. No. 61. Neither
the Petitioner, Dkt. No. 63, nor the Government suggests, however, that this Court should
disregard the Brown language on vacatur, and this Court sees no basis for doing so.
The Second Circuit cases cited by the Petitioner do not compel a contrary result. First,
Petitioner cites Wojchowski v. Daines, 498 F.3d 99 (2d Cir. 2007). See Support at 11. There, the
Second Circuit, in laying out the general rule that previously decided opinions of one panel bind
all other future panels, recognized an exception when "an intervening Supreme Court decision ..
. casts doubt on our controlling precedent." 498 F.3d at 106 (quoting Meacham v. Knolls Atomic
Power Lab., 461 F.3d 134, 141 (2d Cir. 2006)). But Wojchowski does not speak to the context in
which the Supreme Court has directly vacated a Circuit decision. Second, Petitioner's reliance
on Antares Aircraft,, L.P. v. Fed. Republic of Nigeria, 999 F.2d 33 (2d Cir. 1993), is unavailing.
See Reply at 2 n.1. There, the Second Circuit considered its own ability to reach the same
conclusion as it had previously reached in a case in which the Supreme Court had granted
certiorari, vacated the decision, and remanded. 999 F.2d at 35 n.1. The Court agrees that the
Second Circuit can - and may very well - reach the same conclusion as it did in Lora in a
subsequent case. That proposition, however, does not suggest that this Court is bound by the
now-vacated decision in Lora, or its reasoning, and can thus apply the rule of that decision
without independent analysis.
At oral argument, the Petitioner contended that the Second Circuit has implicitly signaled
the continuing authority of Lora. This argument was premised on the fact that when the Second
Circuit dismissed Lora as moot on remand from the Supreme Court, it did not cite the
Munsingwear doctrine or "vacat[e] the panel decision." Tr. of May 18, 2018 Oral Argument
judgment, and remanding. However, because that decision is incompatible with the Second Circuit's clear
admonition in Brown, the Court does not find that case persuasive here.
14
("Tr.") 4:10-5:24; see also Lora v. Shanahan, 719 F. App'x 79 (2d Cir. 2018) (dismissing the
appeal as moot); Letter Brief of Appellant Lora at4-5, 719 F. App'x 79 (2d Cir. 2018) (No. 142343), Dkt. No. 182 (requesting the original panel decision be vacated pursuant to the
Munsingwear doctrine). Under Munsingwear, if a case becomes moot before it can be fully
litigated on appeal, the reviewing court's "decision on the merits is to reverse or vacate the
judgment below and remand with a direction to dismiss." United States v. Munsingwear, 340
U.S. 36, 40 (1950). This ensures that "the rights of all parties are preserved" to fully litigate the
issues in a future case. Id. In this case, the Petitioner argues that because the appellant in Lora
requested that the Second Circuit vacate the panel decision under the Munsingwear doctrine
following the Supreme Court's vacatur and remand, and because the Second Circuit did not cite
the doctrine or vacate the panel decision when it dismissed the Lora case as moot, the Second
Circuit intended that its prior decision remain in effect. This argument is not persuasive. The
Supreme Court had already vacated the Lora panel opinion before remanding it to the Second
Circuit. See 719 F. App'x at 80. There was thus no precedential decision left for the Second
Circuit to vacate on remand under Munsingwear before it dismissed the appeal as moot. And so,
as the Government concedes in its May 23, 2018 letter, all of Lora's holdings are, at most,
merely persuasive authority. See Dkt. No. 61.
The Court thus concludes that the entirety of the Second Circuit's decision in Lora is no
longer binding authority. Nevertheless, consistent with the Second Circuit's decision in Brown,
the reasoning of Lora remains strong persuasive authority to guide the decision in this case.
2.
Due Process Claim
Having concluded that the decision in Lora is not binding authority that neatly resolves
this case, the Court must decide whether the Petitioner is likely to succeed on his claim that his
15
detention of longer than six months without a bond hearing violates the Fifth Amendment's due
process guarantee. The Court concludes that the particular circumstances surrounding the
Petitioner's detention make the duration for which he has been held without a bond hearing
unreasonable, and he is therefore likely to succeed on the merits of his claim.
a.
Prolonged Detention Without a Bond Hearing Violates the
Fifth Amendment
The Court's first conclusion is essentially conceded by the Government: that prolonged
detention under § 1226(c) without providing an alien with a bond hearing will - at some point violate the right to due process.
"Freedom from imprisonment- from government custody, detention, or other forms of
physical restraint - lies at the heart of the liberty that [the Due Process] Clause protects."
Zadvydas, 533 U.S. at 690. This liberty interest applies equally to aliens present within the
United States. The Supreme Court has repeatedly recognized that "the Due Process Clause
applies to all 'persons' within the United States, including aliens, whether their presence here is
lawful, unlawful, temporary, or permanent." Id at 693; see also Reno v. Flores, 507 U.S. 292,
306 (1993) ("It is well established that the Fifth Amendment entitles aliens to due process of law
in deportation proceedings."); Demore, 538 U.S. at 523 (same). As a result, the Supreme Court
concluded in Zadvydas that "[a] statute permitting indefinite detention of an alien would raise a
serious constitutional problem" under the Fifth Amendment. 533 U.S. at 690.
Furthermore, in Demore, the Supreme Court held that mandatory detention under
§ 1226(c) was not unconstitutional on its face, but limited its holding to a brief period of
detention, stating "Congress, justifiably concerned that deportable criminal aliens who are not
detained continue to engage in crime and fail to appear for their removal hearings in large
numbers, may require that persons such as respondent be detained for the briefperiod necessary
16
for their removal proceedings." 538 U.S. at 513 (emphasis added). The Court described the
"brief period" that it held valid: "in the majority of cases," detention pursuant to § 1226(c) in
2003 "lasts for less than ... 90 days." Id. at 529. In the overwhelming majority of cases - 85%
- "removal proceedings are completed in an average time of 4 7 days and a median of 30 days."
Id. "In the remaining 15% of cases," in which an appeal was taken, "appeal takes an average of
four months." Id. The Court thus concluded that "[i]n sum, the detention at stake under
§ 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked,
and about five months in the minority of cases." Id. at 530. Throughout the opinion, the
Supreme Court emphasized the brevity of detention under § 1226(c). See id. at 522-23 ("Rather,
respondent argued that the Government may not, consistent with the Due Process Clause of the
Fifth Amendment, detain him for the brief period necessary for his removal proceedings."
(emphasis added)); id. at 526 ("Despite this Court's longstanding view that the Government may
constitutionally detain deportable aliens during the limited period necessary for their removal
proceedings, respondent argues that the narrow detention policy reflected in 8 U.S.C. § 1226(c)
violates due process." (emphasis added)); id. at 528 ("Zadvydas is materially different from the
present case in a second respect as well. While the period of detention at issue in Zadvydas was
'indefinite' and 'potentially permanent,' the detention here is of a much shorter duration."
(emphasis added) (citation omitted)); id. at 531 ("The INS detention ofrespondent, a criminal
alien who has conceded that he is deportable, for the limited period of his removal proceedings,
is governed by these cases." (emphasis added)). Justice Kennedy's concurring opinion identified
the duration of detention as dispositive of the Court's holding, reasoning that "[w]ere there to be
an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could
become necessary then to inquire whether the detention is not to facilitate deportation, or to
17
protect against risk of flight or dangerousness, but to incarcerate for other reasons." Id. at 53233 (Kennedy, J., concurring). Under those circumstances, "a lawful permanent resident alien
such as respondent could be entitled to an individualized determination as to his risk of flight and
dangerousness." Id. at 532.
As a result, the Second Circuit in Lora concluded that mandatory detention under
§ 1226(c) could become so prolonged that it would violate the right to due process, as suggested
in Justice Kennedy's Demore concurrence. See Lora, 804 F.3d at 614 ("[M]andatory detention
under section 1226(c) is permissible, but ... there must be some procedural safeguard in place
for immigrants detained for months without a hearing."). In so ruling, the Second Circuit
"join[ed] every other circuit that has considered this issue." Id.; see Sopo v. US. Attorney Gen.,
825 F.3d 1199, 1213 (11th Cir. 2016) ("ICE's continuous mandatory detention of Sopo without a
bond hearing has lasted for four years, including through two BIA remands to the IJ, and patently
raises serious constitutional concerns."), vacated, No. 14-11421, 2018 WL 2247336, at *1 (11th
Cir. May 17, 2018); Reid v. Donelan, 819 F .3d 486, 494 (1st Cir. 2016) ("The concept of a
categorical, mandatory, and indeterminate detention raises severe constitutional concerns.");
Rodriguez v. Robbins, 715 F.3d 1127, 1137 (9th Cir. 2013) ("[I]t is clear that while mandatory
detention under § 1226(c) is not constitutionally impermissible per se, the statute cannot be read
to authorize mandatory detention of criminal aliens with no limit on the duration of
imprisonment."); Diop v. ICE/Homeland Sec., 656 F.3d 221,232 (3d Cir. 2011) ("At a certain
point, continued detention becomes unreasonable and the Executive Branch's implementation of
§ 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing
inquiring into whether continued detention is consistent with the law's purposes of preventing
flight and dangers to the community."); Ly v. Hansen, 351 F.3d 263,270 (6th Cir. 2003) (holding
18
that the Constitution would require "that removal proceedings be concluded within a reasonable
time"). Lora's constitutional analysis also echoed the decisions of courts within this district that
had reached the constitutional issue rather than applying the doctrine of constitutional avoidance.
See, e.g., Young v. Aviles, 99 F. Supp. 3d 443,455 (S.D.N.Y. 2015) ("[T]his Court agrees with
those that have found that, at some point, detention without a hearing offends the Due Process
Clause."); Araujo-Cortes v. Shanahan, 35 F. Supp. 3d 533, 548 (S.D.N.Y. 2014) ("Six months'
detention without an opportunity to be heard raises serious constitutional questions.").
The Government in this case similarly conceded at oral argument that, although the
language of§ 1226 technically ascribes an end point to all detention under the section by
authorizing detention only until "a decision on whether the alien is to be removed" is reached, 8
U.S.C. § 1226(a), such detention in reality could, for some detained aliens, become potentially
indefinite. Tr. 48:21-49: 19. In such cases, the Government recognized, aliens must have a
remedy to redress such unreasonable detention through an as-applied challenge to continued
detention. Tr. 36:19-37:2, 48:13-14, 48:21-49:19.
The Court likewise concludes based on the text of the Fifth Amendment, the Supreme
Court's decisions in Zadvydas and Demore, as well as the persuasive interpretation of these cases
offered by other federal courts and the Government's concessions in this case, that prolonged
mandatory detention under § 1226(c), under certain circumstances discussed below, can become
unreasonable such that an alien is "entitled to an individualized determination as to his risk of
flight and dangerousness." Demore, 538 U.S. at 532 (Kennedy, J., concurring).
b.
A Brightline Rule of a Bond Hearing after Six Months Is Not
Constitutionally Mandated
While the Comi adopts the holding of Lora that the Fifth Amendment requires aliens to
be afforded bail hearings if detained for a prolonged period, the Court cannot conclude - as
19
either a matter of first impression or in reliance on Lora's analysis - that the Constitution would
deem any detention beyond six months per se unconstitutional. The Second Circuit in Lora
adopted a six-month brightline rule as a matter of statutory interpretation, and it is not clear from
the opinion in that case whether the six-month rule can be disaggregated from the court's
constitutional avoidance analysis. In reaching a brightline rule, the Second Circuit largely relied
on practical concerns such as the predictability of district court decisions that, while useful when
choosing among alternative statutory constructions, have no obvious significance under a due
process analysis engaged in by a district court. See Lora, 804 F.3d at 616 ("With such large
dockets, predictability and certainty are considerations of enhanced importance and we believe
that the interests of the detainees and the district courts, as well as the government, are best
served by this approach."). Because the Second Circuit's opinion provides no guidance on the
brightline question outside of the constitutional-avoidance mode, the Court is not persuaded that
the six-month brightline rule adopted in Lora is applicable when considering the constitutional
question at issue before this Court and in this case. The Court also finds reason to doubt that the
Due Process Clause requires a six-month brightline rule for bail hearings based on the Demore
decision. There, the Supreme Court upheld the mandatory detention of an alien who had already
been detained for six months and would continue to be detained following remand of the case.
The Court reasoned that the alien in that case "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," thus
justifying his somewhat longer detention. Demore, 538 U.S. at 530-31.
Because Lora analyzed its six-month brightline rule only as a matter of statutory
construction and because it is uncertain, based on existing precedent, whether the Due Process
20
Clause mandates such a brightline rule, the Court concludes that it may not impose a six-month
rule as a matter of constitutional interpretation.
c.
Whether Detention Is "Unreasonable" Requires a CaseSpecific Analysis
Rather than employ a brightline rule, the Court concludes that whether mandatory
detention under§ 1226(c) has become "unreasonable," Demore, 538 U.S. at 532 (Kennedy, J.,
concurring), and thus a due process violation, must be decided using an as-applied, fact-based
analysis. "Reasonableness, by its very nature, is a fact-dependent inquiry requiring an
assessment of all the circumstances of any given case." Diop, 656 F.3d at 234. Such an analysis
will require examining several factors that have been derived from the Supreme Court's
decisions in Zadvydas and Demore and adopted by courts in this circuit and elsewhere when
determining whether an alien's detention has become unreasonable.
The first, and most important, factor that must be considered is the length of time the
alien has already been detained. In Zadvydas, the Court identified six months of detention as
presumptively reasonable. 533 U.S. at 701. Conversely, it noted "that Congress previously
doubted the constitutionality of detention for more than six months." Id. (citing United States v.
Witkovich, 353 U.S. 194 (1957)). As a result, 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. See Sopo, 825 F .3d at 1217 ("The need for a bond inquiry is likely to arise in the
six-month to one-year window, at which time a court must determine whether the purposes of the
statute - preventing flight and criminal acts - are being fulfilled, and whether the government is
incarcerating the alien for reasons other than risk of flight or dangerousness."); Diop, 656 F.3d at
234 ("[G]iven that Congress and the Supreme Court believed those purposes [of§ 1226(c)]
would be fulfilled in the vast majority of cases within a month and a half, and five months at the
21
maximum, the constitutional case for continued detention without inquiry into its necessity
becomes more and more suspect as detention continues past those thresholds." (citation
omitted)); Araujo-Cortes, 35 F. Supp. 3d at 548 ("[l]t is longer than the six-months after which
detention becomes prolonged and presumptively unreasonable under Zadvydas."). As part of
this analysis, the likely duration of continued detention is pertinent. See Reid, 819 F.3d at 500;
Araujo-Cortes, 35 F. Supp. 3d at 549.
Second, courts should consider whether the alien is responsible for the delay. If the alien
has requested several continuances or otherwise delayed immigration proceedings, it is less
likely that the length of his detention could be deemed unreasonable because "aliens who are
merely gaming the system to delay their removal should not be rewarded with a bond hearing
that they would not otherwise get under the statute." Chavez-Alvarez v. Warden York Cty.
Prison, 783 F.3d 469,476 (3d Cir. 2015); Ly, 351 F.3d at 272 ("[C]ourts must be sensitive to the
possibility that dilatory tactics by the removable alien may serve ... to compel a determination
that the alien must be released because of the length of his incarceration."); see also Demore, 538
U.S. at 531 (justifying the alien's six-month detention by stating that "respondent himself had
requested a continuance"). If immigration officials have caused delay, it weighs in favor of
finding continued detention unreasonable. See Demore, 538 U.S. at 532-33 (Kennedy, J.,
concurring) ("Were there to be an unreasonable delay by the INS in pursuing and completing
deportation proceedings, it could become necessary then to inquire whether the detention is not
to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate
for other reasons." (emphasis added)); Reid, 819 F.3d at 500 (considering "the promptness (or
delay) of the immigration authorities" as a relevant factor); Young, 99 F. Supp. 3d at 455-56
(holding that an alien's detention did not yet violate due process because, "[f]irst and foremost,
22
'[t]here is no evidence that the immigration authorities have unreasonably prolonged [Young's]
removal proceedings and consequent detention.'" (second and third alteration in original)
(citation omitted)).
Continued detention will also appear more unreasonable when the delay in proceedings
was caused by the immigration court or other non-ICE government officials. The Court thus
rejects the Government's position at oral argument that "the Court's focus should be on ICE's
action as the prosecuting agency" and that if "the immigration court just sits on [an alien's case]
either because of capacity or negligence or something," that should not be considered. Tr. 30:431: 16, 40: 16-18. When an alien's detention becomes prolonged because his case has "slipped
through the cracks," such detention is unreasonable whether the failure was caused by ICE
officials, an immigration judge, an administrative clerk, or another agency such as USCIS. As
the Sixth Circuit concluded in Ly, "although an alien may be responsible for seeking relief, he is
not responsible for the amount of time that such determinations may take." 351 F.3d at 272.
The Ly opinion criticizes the immigration court for taking "a year and a half with no final
decision as to removability in this case," concluding that such delay was unreasonable. Id. at
271. The Court finds this reasoning persuasive and agrees that the operative question should be
whether the alien has been the cause of delayed immigration proceedings and, where the fault is
attributable to some entity other than the alien, the factor will weigh in favor of concluding that
continued detention without a bond hearing is unreasonable.
Third, it may be pertinent whether the detained alien has asserted defenses to removal. If
an alien has not asserted any grounds on which his removal may be cancelled, he will
presumably be removed from the United States eventually. Under these circumstances, detaining
the alien will always at least marginally serve "the ultimate purpose behind the detention," and
23
the continued detention of the alien will be more reasonable than if the alien had at least some
possibility of remaining in the country. See Demore, 538 U.S. at 531 (Kennedy, J., concurring)
("[T]he ultimate purpose behind the detention is premised upon the alien's deportability.").
Conversely, b~cause the mandatory detention statute "is premised upon the alien's presumed
deportability and the government's presumed ability to reach the removal decision within a brief
period of time," as "the actualization of these presumptions grows weaker or more attenuated,
the categorical nature of the detention will become increasingly unreasonable." Reid, 819 F .3d
at 499-500.
Other factors may also be relevant, including "whether the alien's civil immigration
detention exceeds the time the alien spent in prison for the crime that rendered him removable,"
Sopo, 825 F.3d at 1218; Reid, 819 F.3d at 500, and "whether the facility for the civil immigration
detention is meaningfully different from a penal institution for criminal detention," Sopo, 825
F.3d at 1218; Chavez-Alvarez, 783 F.3d at 478.
d.
Due Process Requires that the Petitioner Be Given an
Immediate Bond Hearing
Applying the factors identified above, the Court concludes that continued detention of the
Petitioner pursuant to § 1226(c) without access to a bond hearing is unreasonable, and thus
unconstitutional, as applied to him. The Petitioner in this case has already been in detention for
longer than eight months. Moreover, the reason why the Petitioner's removal proceedings have
been delayed is largely attributable to immigration officials' failure to process and send Sajous's
A-file to his counsel. The Petitioner's counsel sent a FOIA request for his complete A-file on
December 6, 2017. Rockoff Deel.
~
6. After that file was sent to USCIS here in New York, it
languished for months, forgotten. See McFarland Deel.~~ 5, 7. Despite counsel for Petitioner
repeatedly asking about the status of the A-file and representing that he had not received it,
24
RockoffDecl.
~~
7-10, 13, 15, no action was taken by ICE or USCIS to confirm that it had been
processed and would be sent to the Petitioner. Tr. 32:2-34:3. It was only the filing of this habeas
petition that caused the error to be discovered, and only because ICE itself sought to have the Afile returned to its offices. As the Government stated at oral argument, had the Petitioner not had
reason to believe that he was entitled to a bond hearing after six months and thus filed a habeas
petition, it is possible that USCIS's error would not have been discovered, and the Petitioner
could have remained in detention, seeking continuances while awaiting a critical file that was
substantially delayed or not coming. Tr. 33:22-34:10. The Court squarely rejects Government's
assertion that Sajous is responsible for the delay in his proceedings because he sought a
continuance. Opp. at 20-21. The Petitioner was required to seek a continuance because of a
prolonged, uncorrected failure by the relevant immigration agencies. Principles of logic and
fairness prevent the Court from attributing such a delay to the Petitioner. In addition, the
Petitioner has asserted several defenses to his removal. The Court need not inquire into the
strength of these defenses - it is sufficient to note their existence and the resulting possibility that
the Petitioner will ultimately not be removed, which diminishes the ultimate purpose of detaining
the Petitioner pending a final determination as to whether he is removable. Moreover, as both
paiiies conceded at oral argument, the Government has not argued - either in immigration
proceedings or before this Court - that the defenses raised by Sajous are frivolous. Tr. 22:2123 :5, 38:6-12. It is also relevant that the Petitioner has been detained for over eight months for
two offenses that were each punishable by up to 30 days in jail. As a result, his detention under
§ 1226(c) has already been over four times longer than the maximum sentence he faced for his
underlying offenses. Finally, the Petitioner is now being detained in an actual jail.
25
Simply put, the factors identified above all demonstrate that continued detention of the
Petitioner without a bond hearing is unreasonable and unconstitutional. As a result, the
Petitioner has demonstrated a substantial likelihood of success on the merits of his petition, and
he is thus entitled to an individualized bond hearing, which provides full relief on his claim.
e.
The Burden of Proof at the Petitioner's Bond Hearing Will Be
on the Government
In his memorandum in support of the motion for a preliminary injunction, the Petitioner
argues that the burden at a bond hearing should be on the Government to justify by clear and
convincing evidence that Sajous poses a risk of flight or a danger to the community. Support at
14-15. In support of this proposition, he identifies numerous cases in which the Supreme Court
has placed the burden on the Government to justify civil detention or the deprivation of other
constitutional rights by making a showing of at least clear and convincing evidence. See id.
(citing Zadvydas, 533 U.S. at 692; Foucha v. Louisiana, 504 U.S. 71, 81-83 (1992); United States
v. Salerno, 481 U.S. 739, 741 (1987); Kansas v. Hendricks, 521 U.S. 346,364 (1997); Addington
v. Texas, 441 U.S. 418,424 (1979); Santosky v. Kramer, 455 U.S. 745, 769 (1982); Woodby v.
I.NS., 385 U.S. 276, 285-286 (1966); and Chaunt v. United States, 364 U.S. 350,353 (1960)).
In its opposition, the Government makes no argument regarding which pmiy should bear the
burden, or what standard of proof should govern, at a bond hearing. As a result, the Government
has "waived this argument by failing to raise it in opposition to plaintiffs' motion." NML
Capital, Ltd. v. Republic ofArgentina, No. 05-cv-2434 (TPG), 2009 WL 1528535, at *1
(S.D.N.Y. May 29, 2009); see also Tolbert v. Queens College, 242 F.3d 58, 75 (2d Cir. 2001)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." (citation omitted)); Kao v. British Airways, PLC, No. 17-
26
cv-0232 (LOS), 2018 WL 501609, at *5 (S.D.N.Y. Jan. 19, 2018) ("Plaintiffs' failure to oppose
Defendants' specific argument in a motion to dismiss is deemed waiver of that issue.").
Nonetheless, at oral argument, in response to a question from the Court, the Government
argued that "to the extent the bond hearing is required, the bond procedures under 1226(a) that
placed the burden on the alien should control here." Tr. 42:3-5. The Government provided no
support or authority for the proposition that the appropriate way for the Court to resolve what the
Constitution requires regarding the burden and showing in a bond hearing would be to graft the
standard from a separate statutory provision onto§ 1226(c). Because the Government waived
any argument regarding who bears the burden and what showing must be made at a bond
hearing, and because the untimely argument advanced at oral argument is unsupported by
precedent and is otherwise not persuasive, the Court concludes that at the Petitioner's bond
hearing, the Government must justify Sajous's continued detention by proving by clear and
convincing evidence that he is a flight risk or danger to the community. Cf Memo. & Order,
Pensamiento v. McDonald, No. 18-10475 (D. Mass. May 21, 2018).
B.
Irreparable Harm
The Petitioner has made a strong showing that he will suffer irreparable harm unless he is
granted an immediate bond hearing. If, as here, a party alleges a violation of a constitutional
right, a presumption of irreparable harm attaches. Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir.
1996). Several courts in this circuit have concluded that "[t]he deprivation of [an alien's] liberty
is, in and of itself, irreparable harm." Peralta-Veras v. Ashcroft, No. CV 02-1840 (IRR), 2002
WL 1267998, at *6 (E.D.N.Y. Mar. 29, 2002); see also Hardy v. Fischer, 701 F. Supp. 2d 614,
619 (S.D.N.Y. 2010) ("Ongoing unlawful deprivations of liberty and the threat of unlawful
detention and reimprisonment would violate plaintiffs' constitutional rights and therefore
27
constitute quintessential irreparable harm."); Lynch v. Campbell, No. 96-cv-0127 (RSP/DRH),
1997 WL 18141, at *2 (N.D.N.Y. Jan. 15, 1997) ("[D]eprivation of liberty due to unnecessary
incarceration 'clearly constitutes irreparable harm[.]"' (quoting United States v. Bole, 855 F.2d
707, 710-11 (11th Cir. 1988))).
Here, the Petitioner has alleged that he is being deprived of his liberty without due
process of law by being detained by ICE for over eight months without having a bond hearing.
Moreover, as explained above, he has demonstrated that he is substantially likely to succeed on
the merits. Thus, he has made an adequately strong showing that he will suffer irreparable harm
absent a preliminary injunction.
Because the Petitioner has made a strong showing of irreparable harm because of his
deprivation of a constitutionally protected right, the Court need not consider his alternative
argument that he will suffer other irreparable injuries, including ongoing pain from his
worsening back condition, inability to develop a long-term plan to address his mental health
needs, interference with his ability to return to work, loss ofrent-assisted housing and a return to
homelessness, or his inability to fully participate in his own removal proceedings. See Support at
6-7.
C.
Balance of the Equities and Public Interest
The Petitioner has also demonstrated that the balance of equities and public interest tip
decidedly in his favor. As discussed above, the Petitioner is experiencing a deprivation of liberty
without due process of law. The Second Circuit has concluded that, where a plaintiff alleges
constitutional violations, the balance of hardships tips decidedly in the plaintiffs favor despite
arguments that granting a preliminary injunction would cause financial or administrative burdens
on the Government. Mitchell v. Cuomo, 748 F.2d 804, 808 (2d Cir. 1984). The Petitioner is also
28
exposed to the risk that if he is allowed to remain in the United States, he will have lost his
access to housing and his employment. He has suffered (and alleges that he will continue to
suffer) adverse effects on his health - namely, the exacerbation of a back injury- and is being
prevented from creating a long-term plan to deal with his substantial mental health issues.
The Government, on the other hand, is unlikely to suffer any harm from the granting of
this preliminary injunction. There is nothing in the record to suggest that granting a bond
hearing to the Petitioner will strain ICE resources or undermine its effective enforcement of the
immigration laws. Such a hearing, of course, does not mean that the Petitioner will be released it requires only that he be given a right to demonstrate that he is not a flight risk or danger and
thus is entitled to be released on bond pending a determination of removability. See Lora, 804
F.3d at 616; Sopo, 825 F.3d at 1223. Indeed, the bond hearing that the Petitioner will receive is
exactly what he would have received on February 20, 2018 but for a clerical error by the clerk of
the immigration court in scheduling his hearing, Zabbia Deel.
~~
17, 19, and it is exactly what all
aliens detained pursuant to§ 1226(c) received as a matter of course between late 2015 and early
2018 when Lora was controlling precedent in this circuit. There is no argument in the
Government's brief that under that system, ICE was thwarted from effectively enforcing U.S.
immigration laws, or that public safety was put at risk. As a result, the balance of equities tips
decidedly in the Petitioner's favor.
Likewise, the public interest is best served by granting Petitioner's motion for a
preliminary injunction. The public interest is best served by ensuring the constitutional rights of
persons within the United States are upheld. See Mitchell, 748 F.2d at 808; Phelps-Roper v.
Nixon, 545 F.3d 685, 690 (8th Cir. 2008), overruled in part by Phelps-Roper v. City of
Manchester, 697 F.3d 678 (8th Cir. 2012) (en bane); Abdi v. Duke, 280 F. Supp. 3d 373,410
29
(W.D.N.Y. 2017). And, in light of the minimal burden placed on ICE as a result of this decision,
the Court cannot conclude, as the Government argues, that the public interest in "the
government's enforcement of its laws and regulations" outweighs its interest in ensuring that the
guarantees of the Constitution are enforced. The Court thus concludes that the balance of
equities and the public interest weigh heavily in favor of granting a preliminary injunction.
For all of the foregoing reasons, the Petitioner has carried his burden of demonstrating
that he is entitled to a preliminary injunction. Because the Court will order that the Petitioner be
granted a bond hearing, the Petitioner has thus received the complete relief that he has sought in
this action, thus resolving this case as to the individual Petitioner. Tr. 51 :4-52:6, 58: 10-18,
59:23-60: 1.
IV.
Conclusion
The motion for a preliminary injunction is granted. The Respondents shall take Augustin
Sajous before an immigration judge within fourteen days of this order for an individualized bond
hearing, or else they must immediately release Sajous. At the bond hearing, the Petitioner must
be released on bail unless the Government establishes by clear and convincing evidence that the
immigrant poses a risk of flight or a risk of danger to the community. This resolves docket
number 27.
Within seven days of this Opinion and Order, the parties shall submit a revised schedule
for the briefing of the motion to certify a class and motion for a classwide preliminary injunction
so that the parties may incorporate the effect of this decision into their discussion of those
motions.
30
SO ORDERED.
Dated: May ~ e w York
" '
New Yor ' 2018
31
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