Doe v. Decker et al

Filing 37

ORDER: For the foregoing reasons, it is hereby ORDERED that the stay of Court's order dated November 4, 2021, is lifted. Within fourteen calendar days from the docketing of this Order, Respondents shall provide an individualized bond hearin g to Petitioner to determine whether his detention is justified, and within one business day thereafter shall advise the Court of the outcome of the hearing. The bond hearing must include the procedural safeguards described in the November 3, 2021, Order. Should Respondents fail to provide such a hearing, Respondents shall release Petitioner from detention within fourteen calendar days from the docketing of this Order. (Signed by Judge Lorna G. Schofield on 11/19/2021) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
JOHN DOE,
:
Petitioner,
:
:
-against:
:
THOMAS DECKER, et al.,
:
Respondents, :
------------------------------------------------------------ X

21 Civ. 5257 (LGS)
ORDER

LORNA G. SCHOFIELD, District Judge:
WHEREAS, on November 3, 2021, the Court granted in part and denied in part
Petitioner’s writ of habeas corpus (the “November 3, 2021, Order”). The November 3, 2021,
Order, found that Petitioner’s § 1226(c) detention without a bond hearing was unreasonable and
in violation of due process. Respondents were ordered to “provide an individualized bond
hearing to Petitioner to determine whether his detention is justified.”
WHEREAS, on October 29, 2021, Board of Immigration Appeals (“BIA”) affirmed
Petitioner’s removal order and rendered his removal order “administratively final.” On
November 3, 2021, Respondents filed a letter, arguing that the November 3, 2021, Order is moot
because Petitioner was no longer detained under 8 U.S.C. § 1226 but instead under 8 U.S.C. §
1231. On November 4, 2021, the Court ordered a stay of the bond hearing.
WHEREAS, on November 2, 2021, Petitioner filed a Petition for Review with the Second
Circuit (“PFR”). On November 5, 2021, Petitioner filed a Motion to Stay Removal in connection
with the PFR. Under the Second Circuit’s forbearance policy for aliens who file PFRs and move
to stay removal after being ordered removed (the “Forbearance Policy”), Petitioner may not be
removed while his motion to stay is pending. See In re Immigration Petitions, 702 F.3d 160, 162
(2d Cir. 2012); accord Aguilar v. Decker, 482 F. Supp. 3d 139, 146 (S.D.N.Y. 2020). At the

Court’s direction, Petitioner responded on November 8, 2021. Petitioner contends that, even
though BIA affirmed Petitioner’s removal order, Petitioner’s detention is still governed by §
1226 because he filed a PFR and his removal was stayed pursuant to the Forbearance Policy.
Petitioner seeks to lift the stay of the bond hearing.
WHEREAS, Respondents replied on November 10, 2021. Respondents maintain that,
after BIA affirmed Petitioner’s removal order, § 1231 began to govern his detention.
Respondents argue that Petitioner’s filing of a PFR and stay of removal pursuant to the
Forbearance Policy did not alter the nature of his detention and that the November 3, 2021, Order
is moot.
WHEREAS, at issue here is whether Petitioner’s detention while his removal is stayed
pursuant to the Forbearance Policy is governed by § 1226 or § 1231. The Petitioner’s detention
before BIA’s final order on October 29, 2021, was governed by § 1226(c). For substantially the
reasons explained in the November 3, 2021, Order, Petitioner would be entitled to a bond hearing
if the Petitioner’s detention is still governed by § 1226; if it is governed by § 1231, he would not
be entitled to a bond hearing.
Section 1231’s “removal period” begins after the latest of (i) “the date the order of
removal becomes administratively final,” (ii) “[i]f the removal order is judicially reviewed and if
a court orders a stay of the removal of the alien, the date of the court’s final order” or (iii) “[i]f
the alien is detained or confined (except under an immigration process), the date the alien is
released from detention or confinement.” § 1231(a)(1)(B). Detention during the “removal
period” is governed by § 1231(a)(2). § 1231(a)(2).
Petitioner argues that the stay of his removal pursuant to the Forbearance Policy is a
“court-ordered stay.” And because his removal order is being judicially reviewed, § 1226 would

continue to govern his detention until the date of the Second Circuit’s final order under §
1231(a)(1)(B)(ii). Respondents argue that the Forbearance Policy is not a court-ordered stay,
and because Petitioner’s removal was made administratively final, § 1231(a)(2) governs his
detention.
WHEREAS, in Hechavarria v. Sessions, 891 F.3d 49 (2d Cir. 2018), the Second Circuit
held that, where the alien subject to a final removal order filed a PFR and the Second Circuit
formally granted the alien’s motion to stay the removal pending review, the alien’s detention was
governed by § 1226 rather than § 1231. Hechavarria, 891 F.3d at 58. The Second Circuit did
not reach the question of whether detention during the stay of removal under the Forbearance
Policy is covered by § 1226 or § 1231. Hechavarria, 891 F.3d at 54 n.3.
WHEREAS, although the Second Circuit has left open this issue, “the overwhelming
majority of courts in this Circuit have found that the [Forbearance Policy] amounts to a ‘court
ordered stay of removal of the alien’ and that detainees with a pending petition for review are
detained pursuant to [9 U.S.C.] § 1226.” Rodriguez Sanchez v. Decker, 431 F. Supp. 3d 310, 314
(S.D.N.Y. 2019). 1 Unlike a removal pursuant to § 1231, Petitioner’s removal here is neither
“imminent [nor] certain.” Hechavarria, 891 F.3d at 55. Section 1226(c) governs Petitioner’s
detention.
WHEREAS, Respondents’ arguments are unavailing. Respondents cite only a handful of

1

See, e.g., Abdelwahab v. Barr, No. 21 Civ. 6072, 2021 WL 2550820, at *3 (W.D.N.Y. June 22,
2021); Figueroa v. Garland, No. 20 Civ. 6677, 2021 WL 1602761, at *2 (W.D.N.Y. Apr. 26,
2021); Aguilar, 482 F. Supp. 3d at 146; Falodun v. Session, No. 18 Civ. 6133, 2019 WL
6522855, at *5 (W.D.N.Y. Dec. 4, 2019); Thomas v. Whitaker, No. 18 Civ. 6870, 2019 WL
1641251, at *3 (W.D.N.Y. Apr. 16, 2019); Fremont v. Barr, No. 18 Civ. 1128, 2019 WL
1471006, at *2-3 (W.D.N.Y. Apr. 3, 2019); Alexandre v. Decker, No. 17 Civ. 5706, 2019 WL
1407353, at *5 (S.D.N.Y. Mar. 28, 2019); Hemans v. Searls, No. 18 Civ. 1154, 2019 WL
955353, at *3 (W.D.N.Y. Feb. 27, 2019); Sankara v. Whitaker, No. 18 Civ. 1066, 2019 WL
266462, at *4-5 (W.D.N.Y. Jan. 18, 2019).

cases, which are in the minority. 2 Respondents’ assertion that the Forbearance Policy is not a
“court-ordered stay of removal, and thus does not fall within the plain text of the statute,” is
unpersuasive. Given “the structure and logic” of § 1231, Hechavarria, 891 F.3d at 55, and the
practical reality that the Forbearance Policy is a “very clear impediment” to Petitioner’s
immediate removal, Hechavarria, 891 F.3d at 57, removal stayed by the Forbearance Policy
should be governed by § 1226. For the foregoing reasons, it is hereby
ORDERED that the stay of Court’s order dated November 4, 2021, is lifted. Within
fourteen calendar days from the docketing of this Order, Respondents shall provide an
individualized bond hearing to Petitioner to determine whether his detention is justified, and
within one business day thereafter shall advise the Court of the outcome of the hearing. The
bond hearing must include the procedural safeguards described in the November 3, 2021, Order.
Should Respondents fail to provide such a hearing, Respondents shall release Petitioner from
detention within fourteen calendar days from the docketing of this Order.
Dated:

November 19, 2021
New York, New York

See, e.g., Brathwaite v. Barr, 475 F. Supp. 3d 179, 189 (W.D.N.Y. July 31, 2020) (finding that
the Forbearance Policy is not a formal stay, and therefore, § 1231 applies to detentions at issue);
Narain v. Searls, No. 19 Civ. 6361, 2020 WL 95425, at *4-5 (W.D.N.Y. Jan. 8, 2020);
Cazahuatl Torres v. Decker, No. 18 Civ. 10026, ECF No. 31 (S.D.N.Y. May 15, 2019) (memo
endorsement)
2