Hassoun v. Session et al
Filing
46
DECISION AND ORDER granting 3 Amended Petition for Writ of Habeas Corpus. The petition is GRANTED as follows:1. Petitioner is entitled to relief insofar as the government has exceeded its authority to detain Petitioner under 8 U.S.C. § ;§ 1227(a)(1)(C) & 1231(a)(6);2. Petitioner shall be released from Respondent Searls's custody on March 1, 2019, unless the Court orders otherwise;3. Respondent Searls may file a supplemental memorandum on the status of negotiations with the unspecified country by January 28, 2019, after which the Court will determine whether to delay Petitioners release;4. Respondent Searls may, in his discretion, set reasonable conditions of supervision for Petitioner as part of his relea se;5. The Court's order does not preclude Respondent Searls from continuing to detain Petitioner on any other permissible basis under applicable statutes and regulations; 6. Respondent Searls shall notify the Court if he determines that Petitioner will be detained on some other permissible basis;7. The Clerk of Court shall dismiss all other respondents except Jeffrey Searls from this action.SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 1/2/2019. (MFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ADHAM HASSOUN,
Petitioner,
Case # 18-CV-586-FPG
v.
DECISION AND ORDER
MR. JEFF SESSIONS, Attorney General of
the United States, et al.,
Respondents.
INTRODUCTION
Petitioner Adham Hassoun, a civil immigration detainee detained at the Buffalo Federal
Detention Facility, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
ECF No. 3. He claims that he has been in U.S. Immigration and Customs Enforcement (“ICE”)
custody beyond the statutory removal period and that his detention violates his constitutional
rights. See id. The parties have fully briefed the issues raised in the petition. In addition, the New
York Civil Liberties Union Foundation (“NYCLU”) has filed a brief as amicus curiae to alert the
Court to certain important legal questions. Having reviewed the record and the briefing, the Court
finds that a hearing is unnecessary to resolve the petition. For the reasons that follow, the petition
is GRANTED.
BACKGROUND
The following facts are drawn from the record. Petitioner is a Palestinian who, while born
in Lebanon, is not a citizen of Lebanon. Petitioner was first admitted to the United States in 1989
as a nonimmigrant “visitor for pleasure,” which was changed in 1990 to that of a nonimmigrant
student. ECF No. 13-1 at 2. In 2002, after Petitioner failed to comply with the conditions of his
1
student visa, immigration authorities detained him and instituted removal proceedings. See 8
U.S.C. § 1227(a)(1)(C)(i) (stating that an alien who fails to comply with the conditions of
nonimmigrant status is deportable). Petitioner’s order of removal became administratively final
in 2003.
In early 2004, before Petitioner could be removed, he was taken into federal custody on
criminal charges. Ultimately, Petitioner was convicted on three charges: (1) conspiracy to murder,
kidnap and maim persons in a foreign country (18 U.S.C. § 956(a)(1)); (2) conspiracy to provide
material support for terrorism (18 U.S.C. § 371); and (3) providing material support to terrorists
(18 U.S.C. § 2339A(a)). See ECF No. 13-1 at 3. Petitioner completed his term of imprisonment
in October 2017, at which time he was again detained by immigration authorities on his original
order of removal.
ICE began “engag[ing] with multiple foreign governments concerning
[Petitioner’s] removal.” Id.
Petitioner has remained in custody at the Buffalo Federal Detention Facility since October
2017. At present, Respondents do not justify Petitioner’s continued detention on the basis of his
criminal convictions or his threat to the community. See ECF No. 14 at 6-7. Instead, Petitioner is
being detained because he failed to comply with the conditions of his nonimmigrant status and
because, in Respondents’ view, his removal is likely to occur in the reasonably foreseeable future.
See id.; ECF No. 29-13; see also 8 U.S.C. § 1231(a)(6) (permitting detention of aliens who are
removable for failure to comply with conditions of nonimmigrant status).
In May 2018, Petitioner filed the present petition, challenging his continued detention and
arguing that it was unlikely that he would be removed in the reasonably foreseeable future. See
ECF No. 1.
2
Around the time the petition was filed, immigration authorities were seeking to remove
Petitioner to the territory of the West Bank. That avenue appeared to be promising. In June 2018,
the Palestinian Liberation Organization (“PLO”)—through its representatives located in
Washington, D.C.—notified ICE that it would be willing to issue travel documents to Petitioner to
enter the West Bank. However, removal to the West Bank requires transit through, and therefore
authorization from, Jordan and Israel. See ECF No. 45-1 at 2. Alternatively, the PLO indicated
that it would issue Petitioner a passport if another country agreed to accept him.
By late July 2018, immigration authorities had submitted a request to Israel for
authorization. In addition, travel-document requests had been submitted to “the Governments of
Egypt, Iraq, Israel, Lebanon, the Palestinian Territories, Somalia, Sweden, and the United Arab
Emirates.” ECF No. 13-1 at 3. Saudi Arabia was also approached. ECF No. 45-1 at 2. In a
declaration dated July 27, 2018, Michael Bernacke, Unit Chief for Removal and International
Operations at ICE, opined that Petitioner’s removal was “significantly likely in the reasonably
foreseeable future.” ECF No. 13-1 at 4.
Obstacles have since arisen that complicate Petitioner’s removal to the West Bank. In
September 2018, the PLO’s Washington, D.C. office was closed, potentially casting some doubt
as to whether ICE could still obtain travel documents. Nevertheless, ICE indicates that it has
“continued to engage directly with Palestinian Authority officials in the West Bank for travel
documents in numerous cases” and that there is “no indication that the Palestinian Authority
considers the decision of the [Washington] PLO delegation concerning [Petitioner’s] travel
documents to be invalid.” ECF No. 45-1 at 2. Furthermore, in November 2018, Jordan unilaterally
terminated the “Memorandum of Coordination” under which it arranged Palestinian deportations
with ICE. A new Memorandum of Coordination is being negotiated with Jordan, but Respondents
3
provide no timeline for when those negotiations would be complete, let alone for when Petitioner
could obtain travel authorization. The request for authorization from Israel remains pending, and
Respondents offer no timeline or update as to the status of that request.
Furthermore, Sweden, the United Arab Emirates, Iraq, and Lebanon have declined ICE’s
travel-document requests. ECF No. 15-1 at 2; ECF No. 45 at 3. The requests to the other
governments are apparently pending without any new developments.
To remove Petitioner, ICE has also sought the assistance of an interagency working group
consisting of various government entities, including the Department of State. In Fall 2018, the
State Department identified several countries that might accept Petitioner. In particular, there is
one unspecified country that the State Department believes is “most likely to consider seriously a
U.S. request” to accept Petitioner. ECF No. 45-2 at 4. There are delicate diplomatic considerations
in play, however. These considerations are set forth in the declaration of Hillary Johnson, a deputy
coordinator with the Department of State. See id. at 2.
For one thing, to maximize the likelihood of success, “the U.S. government would need to
make the request of that one country alone and not concurrently with requests to other nations.
This is because the country would need to engage in a comprehensive decision-making process in
order to accept [Petitioner].” Id. at 4. In addition, the country would need to remain anonymous
during this process. Id. at 5. Johnson avers that on November 28, 2018, the State Department
issued an official “Démarche” cable to the U.S. Embassy in the unspecified country, “instructing
the Embassy to contact the domestic government at the highest appropriate level.” 1 Id. at 4. On
December 6, 2018, “[t]he U.S. Ambassador personally presented the request that the country
accept [Petitioner’s] removal to a high-ranking official in the Ministry of Foreign Affairs.” Id. at
1
“A Démarche is an official government-to-government request made in diplomatic channels, and is
reserved for the most serious or formal communications between states.” ECF No. 45-2 at 4-5.
4
5. That official “agreed to give the request serious consideration, and to discuss the U.S. request
with others across his government.” Id. Respondents offer no particular timeline in which removal
could be effectuated to the unspecified country, but Johnson indicates that the State Department
“hope[s] to have some response to [the] request by mid-January.” Id. There are two other
countries to which the State Department may send requests if the “present, positive, assessment of
the likelihood of removal to the [unspecified] country . . . change[s].” Id.
DISCUSSION
Petitioner requests release from custody on the ground that there is no significant likelihood
that he will be removed in the reasonably foreseeable future. He raises three claims: (1) that his
continued detention violates 8 U.S.C. § 1231(a)(6); (2) that his continued detention violates his
substantive due process rights; and (3) that ICE’s administrative review of his custody status is so
deficient as to violate his procedural due process rights. The Court first addresses Petitioner’s
statutory claim.
I.
Petitioner’s First Claim – Violation of 8 U.S.C. § 1231(a)(6)
a. Legal Standard
The Court begins by providing some background on the statutory scheme governing the
detention of aliens who have been ordered removed. Under 8 U.S.C. § 1231(a)(1)(A), “aliens
ordered removed shall be removed by the Attorney General within [a] 90-day ‘removal period.’”
Turkmen v. Ashcroft, 589 F.3d 542, 547 (2d Cir. 2009). “The government is required to detain an
alien ordered removed until removal is effected, at least for the removal period.” Id. (citing 8
U.S.C. § 1231(a)(2)). If removal is not effectuated within the removal period, “the alien, pending
removal, shall be subject to supervision under regulations prescribed by the Attorney General.” 8
U.S.C. § 1231(a)(3).
5
In addition, there is a “special statute [that] authorizes further detention if the Government
fails to remove the alien” during the removal period. Zadvydas v. Davis, 533 U.S. 678, 682 (2001).
Specifically, 8 U.S.C. § 1231(a)(6) gives the government the discretion to detain certain categories
of aliens:
An alien ordered removed [1] who is inadmissible . . . [2] [or] removable [as a result of
violations of status requirements or entry conditions, violations of criminal law, or reasons
of security or foreign policy] or [3] who has been determined by the Attorney General to
be a risk to the community or unlikely to comply with the order of removal, may be
detained beyond the removal period and, if released, shall be subject to [certain] terms of
supervision . . . .
Id. (quoting 8 U.S.C. § 1231(a)(6)). By its plain language, the statute does not appear to impose
any limitation on the length of an alien’s detention. But in Zadvydas v. Davis, 533 U.S. 678 (2001),
the Supreme Court interpreted § 1231(a)(6) narrowly to avoid the possible constitutional problems
with indefinite detention.
It read the statute to impose certain implicit limitations on the
government’s authority to detain aliens falling into those categories. The court held that an alien
could be detained “until it has been determined that there is no significant likelihood of removal
in the reasonably foreseeable future.” Id. at 701. This limitation is linked to the statute’s “basic
purpose,” which is to “assur[e] the alien’s presence at the moment of removal.” Id. at 699.
The Zadvydas court also provided a framework under which habeas courts are to review
claims challenging continued detention under § 1231(a)(6). The ultimate question for the habeas
court is “whether the detention in question exceeds a period reasonably necessary to secure
removal.” Id. The presumptively reasonable period of detention is six months. Id. at 701. Once
that period has passed, an alien bringing a claim bears the initial burden of providing “good reason
to believe that there is no significant likelihood of removal in the reasonably foreseeable future.”
Id. If the alien makes such a showing, “the [g]overnment must respond with evidence sufficient
to rebut that showing.” Id.
6
In analyzing the likelihood of removal, courts consider a variety of factors, including the
existence of a repatriation agreement with the target country, the target country’s prior record of
accepting removed aliens, and specific assurances from the target country regarding its willingness
to accept an alien. Callender v. Shanahan, 281 F. Supp. 3d 428, 436-37 (S.D.N.Y. 2017); see also
Nma v. Ridge, 286 F. Supp. 2d 469, 475 (E.D. Pa. 2003). Due deference is owed to the
government’s views on these matters as well as its estimation of the likelihood of removal. See
Zadvydas, 533 U.S. at 700 (stating that review “must take appropriate account of the greater
immigration-related expertise of the Executive Branch, of the serious administrative needs and
concerns inherent in the necessarily extensive . . . efforts to enforce this complex statute, and the
Nation’s need to ‘speak with one voice’ in immigration matters”).
What constitutes the “reasonably foreseeable future” will depend on the length of
detention. That is, “as the period of prior postremoval confinement grows, what counts as the
‘reasonably foreseeable future’ conversely would have to shrink.” Zadvydas, 533 U.S. at 701. In
effect, the parties’ respective burdens shift as the length of detention increases. See, e.g.,
Alexander v. Attorney General U.S., 495 F. App’x 274, 276-77 (3d Cir. 2012) (“Zadvydas . . .
suggests that an inversely proportional relationship is at play: the longer an alien is detained, the
less he must put forward to obtain relief.”); D’Alessandro v. Mukasey, 628 F. Supp. 2d 368, 406
(W.D.N.Y. 2009); Lawrikow v. Kollus, No. CV-08-1403, 2009 WL 2905549, at *12 (D. Ariz. July
27, 2009); Shefqet v. Ashcroft, No. 02 C 7737, 2003 WL 1964290, at *4 (N.D. Ill. Apr. 28, 2003).
Thus, as time passes, the mere existence of possible avenues for removal becomes insufficient to
justify further detention; some evidence of progress is required. See Elashi v. Sabol, 714 F. Supp.
2d 502, 506 (M.D. Pa. 2010); Lawrikow, 2009 WL 2905549, at *13; Hajbeh v. Loiselle, 490 F.
Supp. 2d 689, 693 (E.D. Va. 2007); Shefqet, 2003 WL 1964290, at *5. But see Gathiru v. Banieke,
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No. 15-CV-4247, 2016 WL 8671833, at *6 (D. Minn. Sept. 9, 2016) (noting that the mere “lack
of visible progress” or the government’s inability to provide a concrete timeframe for removal
does not necessarily establish that removal is unlikely in the reasonably foreseeable future).
b. Analysis
Petitioner has surmounted the first of Zadvydas’s hurdles, as it is undisputed that the sixmonth presumptively reasonable period has passed. See Zadvydas, 533 U.S. at 701. Indeed,
Petitioner has been detained at the Buffalo Federal Detention Facility since October 2017—more
than fourteen months.
Having established that his detention has extended beyond the presumptively reasonable
period, Petitioner bears the initial burden to provide “good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future.” Id. The Court concludes
that he has met this burden. 2 Petitioner has shown that the countries with which he has any
affiliation will not accept him. Lebanon, his place of birth, will not accept him. ECF No. 29-20
at 2. Neither Sweden nor the United Arab Emirates, where he has family, will accept him. See
ECF No. 29-1 at 2. While the PLO is willing to admit Petitioner to the West Bank, his
authorization from Israel has been pending since at least July 2018 without update, and any
authorization from Jordan is now stalled as a new Memorandum of Coordination is negotiated.
Furthermore, Petitioner has submitted a declaration from Ardi Imseis, an assistant professor of law
at Queen’s University, who has significant experience in the area of Palestinian refugees. See ECF
No. 29-3 at 1. Imseis opines that it is “extremely unlikely” that Israel will allow Petitioner to enter
2
The NYCLU argues that the Court should take this opportunity to clarify Zadvydas’s “good reason”
standard. The NYCLU contends that “good reason” should be considered a “relatively low threshold,” and
it disapproves of decisions in this district that have held aliens to a higher burden. ECF No. 37 at 7-12.
The Court does not consider it necessary to do so. Petitioner has provided sufficient evidence to show that
his removal is not significantly likely in the reasonably foreseeable future. Whether the “good reason”
standard demands a low or high evidentiary showing, Petitioner has satisfied it in this case.
8
the West Bank. Id. at 6. Furthermore, it is undisputed that Petitioner has actively assisted the
government in its efforts to obtain his removal. See ECF No. 14 at 9-10. The evidence Petitioner
presented goes far beyond the sorts of conclusory statements and general assertions that courts
have found insufficient to satisfy the initial burden. See, e.g., Beckford v. Lynch, 168 F. Supp. 3d
533, 539-40 (W.D.N.Y. 2016) (collecting cases). By any reasonable measure, Petitioner has
provided “good reason” to believe that he will not be removed in the reasonably foreseeable future.
Consequently, the burden shifts to Respondents to rebut Petitioner’s showing. Zadvydas,
533 U.S. at 701. Respondents have provided a variety of evidence in support of their position.
Even so, after reviewing Respondents’ evidence and the record as a whole, the Court concludes
that there is no significant likelihood of removal in the reasonably foreseeable future.
It is important to note at the outset that this is not a case where the government has been
dilatory in its attempts to effectuate removal. To the contrary, the record establishes that the
government has undertaken substantial, good faith efforts to remove Petitioner. Immigration
authorities have contacted a number of countries, engaged multiple government agencies, and
undertaken high-level diplomatic efforts. But, under Zadvydas, the reasonableness of Petitioner’s
detention does not turn on the degree of the government’s good faith efforts. Indeed, the Zadvydas
court explicitly rejected such a standard. See id. at 702. Rather, the reasonableness of Petitioner’s
detention turns on whether and to what extent the government’s efforts are likely to bear fruit.
Diligent efforts alone will not support continued detention.
It is likewise important to note that, in this case, the length of Petitioner’s detention is a
critical factor in the calculus. As discussed above, the government’s burden becomes more
onerous the longer an alien is detained, because it must show that removal will be effectuated
sooner in the future. See, e.g., D’Alessandro, 628 F. Supp. 2d at 406 (“Given the [16-month]
9
detention . . . the reasonably foreseeable future has nearly shrunk to the point of being the present
time.”); Shefqet, 2003 WL 1964290, at *4 (“The period of Petitioner’s post-final-order detention
has at this time exceeded seventeen months and so the ‘reasonably foreseeable future’ must now
come very quickly.”).
Respondents have not carried that burden. From what the Court can gather, there remain
the following possible options: Somalia, Saudi Arabia, Egypt, Israel, the Palestinian territories,
and the unspecified country. 3 As to the first four countries, travel document requests have been
pending since at least late July 2018—about five months—and Respondents have not elaborated
on the status or likelihood of success of those requests. Respondents’ assertions are more general
and vague. Bernacke states that Somalia and Saudi Arabia have shown a past “willingness to assist
in third-country removal for individuals in other cases.” ECF No. 45-1 at 2. Bernacke also states
that he has discussed Petitioner’s removal “with high level foreign government representatives.”
ECF No. 13-1 at 3. But the record does not disclose that any of these countries—Somalia, Saudi
Arabia, Egypt, or Israel—have meaningfully responded to the government’s request. 4 See Khader
v. Holder, 843 F. Supp. 2d 1202, 1208 (N.D. Ala. 2011) (fact that travel-document request—which
had been pending for eight months without update—had not been denied was insufficient to show
significant likelihood of removal in the reasonably foreseeable future); see also Nma, 286 F. Supp.
2d at 475. Nor does Bernacke offer any specific opinion as to whether removal is likely to any of
3
There are also two other unspecified countries to which the State Department may reach out, but it has yet
to do so. See ECF No. 45-2 at 5.
4
Some courts have held that “mere delay by the foreign government in issuing travel documents, despite
reasonable efforts by United States authorities to secure them,” does not demonstrate “that there is no
significant likelihood of removal in the reasonably foreseeable future.” Boachie-Danquah v. U.S. Attorney
General, No. 17-cv-641, 2018 WL 868769, at *3 (S.D. Ohio Feb. 14, 2018) (collecting cases). The present
case is distinguishable. The record does not indicate that the delay in Petitioner’s case is the result of
bureaucratic inertia from an otherwise amenable country.
10
these countries or what the timeframe might be. Particularly given that Petitioner does not have
any connection to these countries, removal to one of them constitutes, at most, an “unsubstantiated
possibility” as opposed to a concrete likelihood. Lawrikow, 2009 WL 2905549, at *13. Because
the reasonably foreseeable future is drawing nearer, more is required from the government.
Petitioner’s possible removal to the Palestinian territories suffers from the same defect. To
be sure, there is evidence that Palestinian authorities are willing to accept Petitioner. But removal
to the West Bank also requires authorization from Jordan and Israel. ECF No. 45-1 at 2. Jordan
has unilaterally terminated its Memorandum of Coordination with ICE, and Respondents offer no
timeframe in which removals might begin again. Even assuming that a new Memorandum of
Coordination will be negotiated expeditiously, Respondents present no evidence as to (1) the
likelihood that the Jordanian government will authorize Petitioner’s transit to the West Bank, or
(2) how long it would take the Jordanian government to provide such authorization. Respondents’
showing with respect to Israel’s authorization is similarly lacking—the only evidence is that the
request “remains pending with Israeli authorities.” Id. The combination of diplomatic barriers to
Petitioner’s removal and the absence of a meaningful response from Jordan and Israel leave the
Court skeptical that there remains a significant likelihood that Petitioner will be removed to the
West Bank in any timeframe that might be described as reasonably foreseeable.
The final possibility is the unspecified country to which the government has recently
reached out. Respondents present some evidence that this country might be viable. A high-ranking
official of that country agreed to “give the request serious consideration” and to discuss it with
others in his government. ECF No. 45-2 at 5. More generally, Bernacke opines that high-level
negotiation by “senior levels of ICE management and embassy staff” generally results “in positive
outcomes.” ECF No. 13-1 at 3. Similarly, Johnson opines that the State Department has
11
successfully resolved cases similar to Petitioner’s in the past through diplomatic channels. ECF
No. 45-2 at 3. However, the record fails to disclose any evidence illuminating the likelihood that
this country will accept Petitioner specifically or the timeframe in which removal could be
effected. The Court recognizes that such information may not be presently available, given the
preliminary stage of the request and the delicacy of the negotiations, but that merely reinforces the
Court’s view that Respondents have not shown that Petitioner will likely be removed in the
reasonably foreseeable future.
As Respondents note, under Zadvydas, a habeas court must take into account the “greater
immigration-related expertise of the Executive Branch.” Zadvydas, 533 U.S. at 700. In this case,
such deference may warrant crediting the government’s view that, despite the apparent barriers
and diplomatic hurdles it faces, it will ultimately “obtain the approval necessary to remove
Petitioner either to the West Bank or a third country.” ECF No. 45 at 8. But detention may not be
justified on the basis that removal to a particular country is likely at some point in the future;
Zadvydas permits continued detention only insofar as removal is likely in the reasonably
foreseeable future. Zadvydas, 533 U.S. at 701. At fourteen months of detention, Petitioner’s
removal need not necessarily be imminent, but it cannot be speculative. See Shefqet, 2003 WL
1964290, at *6 (concluding that, after seventeen months of detention, “Petitioner’s period of postfinal-order detention has been sufficiently long such that a remote, non-specific possibility does
not satisfy Respondents’ burden”).
And while the Court understands that Petitioner’s
circumstances and criminal history present unique difficulties, a finding in the government’s favor
would at this stage be founded merely upon the extent of the government’s efforts, rather than the
likelihood of removal in the foreseeable future. Zadvydas demands more. See Zadvydas, 533 U.S.
at 702.
12
Accordingly, because the Court cannot conclude that there is a significant likelihood of
removal in the reasonably foreseeable future, Petitioner’s continued detention is no longer
authorized under § 1231(a)(6).
Two matters give the Court some pause. First, Johnson indicates that the State Department
“hope[s] to have” a response from the unspecified country by mid-January. ECF No. 45-2 at 5. It
is unclear whether this means that the country might definitively approve Petitioner’s removal by
mid-January, or simply that the country will notify the State Department that it is willing to begin
a formal authorization process at that time. Regardless, in light of the ongoing negotiations and
the State Department’s view that the unspecified country represents one of the strongest options
for Petitioner’s removal, the Court intends to give the government reasonable leeway in pursuing
that possibility.
Therefore, the Court will delay Petitioner’s release until March 1, 2019. On or before
January 28, 2019, the government may file a supplemental memorandum detailing the state of
negotiations with the unspecified country. The government’s memorandum shall be limited to that
issue, and no further briefing by any party will be permitted without prior leave of Court. Based
on the information provided by the government, the Court will determine whether to further delay
Petitioner’s release and stay its order.
Second, Petitioner stands convicted of serious federal offenses relating to terrorist
activities. Despite this, Petitioner is not presently being detained on the basis that he presents a
risk to the community, which would be an independent reason justifying his continued detention.
See 8 U.S.C. § 1231(a)(6). To that end, the above-noted delay of Petitioner’s release may serve
another purpose: it will give immigration authorities an opportunity to develop reasonable
conditions of supervision for Petitioner, and, if they so choose, to determine whether Petitioner
13
may be detained on some basis other than his noncompliance with his nonimmigrant status. The
Court’s order does not preclude Respondents from continuing to detain Petitioner on any other
permissible basis provided under applicable statutes or regulations. 5
II.
Petitioner’s Second and Third Claims – Constitutional Violations
In his second and third claims, Petitioner argues that his continued detention violates his
substantive due process rights and that the manner in which ICE has conducted his custody reviews
violates his procedural due process rights. However, for both claims, Petitioner requests no more
than release from detention subject to reasonable conditions of supervision. See ECF No. 3 at 8;
ECF No. 29 at 40. Because Petitioner has been afforded complete relief by virtue of his first claim,
the Court finds it unnecessary to address these alternative grounds. See Banks v. Dretke, 540 U.S.
668, 689 n.10 (2004) (where writ of habeas corpus was granted on one basis, declining to address
alternative ground because “any relief [the petitioner] could obtain on that claim would be
cumulative”); Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988)
(noting that courts should ordinarily avoid “reaching constitutional questions in advance of the
necessity of deciding them”).
III.
Proper Respondents
One final matter must be addressed. Respondents contend that all of the respondents except
Jeffrey Searls should be dismissed from the action. They assert that the appropriate respondent in
a habeas action is the person having custody over the petitioner—here, Jeffrey Searls, the Acting
Assistant Field Office Director of the ICE Buffalo Field Office.
5
In his reply brief, Petitioner argues that he is neither a risk to the community nor a flight risk. See ECF
No. 29 at 37-40. The Court declines to address these questions at this juncture. Under § 1231(a)(6),
immigration authorities are responsible for determining, in the first instance, whether an alien is “a risk to
the community or unlikely to comply with the order of removal.” 8 U.S.C. § 1231(a)(6). Moreover, because
Petitioner is not presently being held on either of those bases, any opinion by this Court would be advisory.
14
“The majority view in the Second Circuit requires the ‘immediate custodian,’ generally the
prison warden, to be named as a respondent in ‘core’ immigration habeas proceedings—i.e., those
challenging present physical confinement.” Khemlal v. Shanahan, No. 14 Civ. 5186, 2014 WL
5020596, at *2 n.3 (S.D.N.Y. Oct. 8, 2014); Zhen Yi Guo v. Napolitano, No. 09 Civ. 3023, 2009
WL 2840400, at *3 (S.D.N.Y. Sept. 2, 2009) (collecting cases). Petitioner does not dispute that
Searls is the only appropriate respondent under this rule. Therefore, the other respondents will be
dismissed from the case, and the Court’s order will be limited to Respondent Searls. See Fed. R.
Civ. P. 21 (“On motion or on its own, the court may at any time, on just terms, add or drop a
party.”); see also In re Grabis, No. 13-10669, 2018 WL 1508754, at *5 (S.D.N.Y. Mar. 26, 2018)
(“Relief under Rule 21 dismissing a party from an action is especially appropriate when there is
clearly no right or basis of relief from a party.” (internal quotation marks omitted)).
CONCLUSION
For the reasons discussed above, the petition is GRANTED as follows:
1. Petitioner is entitled to relief insofar as the government has exceeded its authority
to detain Petitioner under 8 U.S.C. §§ 1227(a)(1)(C) & 1231(a)(6);
2. Petitioner shall be released from Respondent Searls’s custody on March 1, 2019,
unless the Court orders otherwise;
3. Respondent Searls may file a supplemental memorandum on the status of
negotiations with the unspecified country by January 28, 2019, after which the
Court will determine whether to delay Petitioner’s release;
4. Respondent Searls may, in his discretion, set reasonable conditions of supervision
for Petitioner as part of his release;
5. The Court’s order does not preclude Respondent Searls from continuing to detain
Petitioner on any other permissible basis under applicable statutes and regulations;
6. Respondent Searls shall notify the Court if he determines that Petitioner will be
detained on some other permissible basis.
15
7. The Clerk of Court shall dismiss all other respondents except Jeffrey Searls from
this action.
IT IS SO ORDERED.
Dated: January 2, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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