Falodun v. Session et al
Filing
23
DECISION AND ORDER conditionally granting 1 Petition for Writ of Habeas Corpus filed by Bright Falodun. Within ten (10) days of the date of entry of this Decision and Order, the Government shall bring Falodun before an Immigration Judge for an i ndividualized bond hearing at which the Government shall bear the burden of proving, by clear and convincing evidence, that he is a flight risk or danger to the community, and that no less restrictive alternatives to physical detention can reasonably address the Governments legitimate interests in detention. If the Government fails to provide Falodun with such a bond hearing within ten (10) calendar days, the Government shall immediately release him. If the Government holds the required bond hea ring but fails to carry its burden of proof as stated above, the Government must release Falodun on bond with appropriate conditions. The Government is further ordered to provide a status report to this Court within five (5) calendar days following the completion of the bond hearing, along with a copy of the IJs bond decision.. Signed by Hon. Michael A. Telesca on 12/04/2019. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BRIGHT FALODUN,
Petitioner,
No. 6:18-cv-06133-MAT
DECISION AND ORDER
-vsMR. JEFF SESSION, Attorney General of
the United States; WALTER M. INGRAM,
Office of Enforcement and Removal
Operations, Post Order Custody Review
Unit Chief, Washington DC Field
Office; MR. THOMAS E. FEELEY, Deputy
Field Office Director Office of
Enforcement and Removal Operations
Buffalo Field Office; SEAN CALLAGHER,
Designated Field Office Director, ERO
Buffalo Federal Detention Facility;
MR. TODD TRYON, Assistant Field
Office Director, Buffalo Federal
Detention Facility; MR. SCHRADER,
Supervisory Detention and Deportation
Officer, Buffalo Federal Detention
Facility; OFFICER J. KLAYBOR,
Deportation Officer Buffalo Federal
Detention Facility,
Respondents.
I.
Introduction
Proceeding pro se, Bright Falodun (“Falodun” or “Petitioner”)
commenced this habeas proceeding on February 12, 2018, pursuant to
28 U.S.C. § 2241 (“§ 2241”) against the respondents (hereinafter,
“the Government”)1 challenging his continued detention in the
custody of the United States Department of Homeland Security
1
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
Attorney General William P. Barr is automatically substituted for the defendant
named as Jeff Session, Attorney General of the United States.
(“DHS”), Immigration and Customs Enforcement (“ICE”) at the Buffalo
Federal Detention Facility (“BFDF”). For the reasons discussed
below, the request for a writ of habeas corpus is conditionally
granted.
II.
Factual Background and Procedural History
Falodun is a native and citizen of Nigeria, who was paroled
into the United States at the New York, New York port of entry on
March 10, 1996. On July 26, 1996, his status was adjusted to that
of
lawful
permanent
resident
(“LPR”)
under
Immigration
and
Nationality Act (“INA”) § 245. He applied for and subsequently was
issued a Certificate of Unites States Citizenship on February 17,
1998.
A subsequent criminal investigation resulted in Falodun being
charged on December 18, 2001, in a multi-count indictment in the
United States District Court for the District of Minnesota. See
United States v. Bright Idada Falodun, et al., No. 0:01-cr-00380
(D. Minn.). Following a jury trial, Falodun was convicted on
February 14, 2003, of Conspiracy to Commit Bank Fraud, in violation
of 18 U.S.C. § 371; Bank Fraud, in violation 18 U.S.C. § 1344;
Access
Device
Fraud,
1029(a)(2)(C)(1)(a);
in
violation
Possession
of
of
Five
18
or
U.S.C.
More
§
False
Identifications, in violation of 18 U.S.C. §§ 1028(a)(3) and
(c)(3); and Possession of Fifteen or More Unauthorized Access
Devices, in violation of 18 U.S.C. § 1029(a)(3). Falodun was
-2-
sentenced
to
175
months’
incarceration
and
ordered
to
pay
restitution in the amount of $1,204,585.00.
On August 20, 2002, the former Immigration and Naturalization
Service (“INS”) issued a notice of intent to cancel Falodun’s
Certificate of Citizenship alleging that, based on information
gathered
in
connection
with
the
federal
criminal
proceeding,
Falodun’s certificate had been obtained by fraud. According to the
INS, Falodun’s putative adoptive father was actually his biological
brother; his biological father, as of 2002, was alive and living in
Nigeria; and Falodun’s adoption certificate was fraudulent. In a
decision dated April 21, 2003, the INS District Director concluded
that the evidence provided by Falodun was insufficient to overcome
the
evidence
appealed
the
Immigration
supporting
decision
Services
cancellation
to
the
United
(“USCIS”)
of
citizenship.
States
Administrative
Falodun
Citizenship
Appeals
and
Office
(“AAO”), which dismissed the appeal on March 29, 2004.
On June 3, 2009, ICE officials encountered Falodun at the
Federal Correctional Institution in Allenwood, Pennsylvania. ICE
noted that Falodun’s projected release date from the Bureau of
Prisons (“BOP”) was August 10, 2015. He was placed in immigration
removal proceedings by a Notice to Appear, dated June 3, 2009,
which charged him pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. §
1227(a)(2)(A)(iii), as a nonimmigrant having been convicted of an
aggravated felony, as defined in INA § 101(a)(43)(M), 8 U.S.C. §
-3-
1101(a)(43)(M), a law relating to an offense that (i) involves
fraud or deceit in which the loss to the victim or victims exceeds
$10,000; or (ii) is described in the Internal Revenue Code of 1986
Section 7201 (relating to tax evasion) in which the revenue loss to
the
government
exceeds
$10,000;
pursuant
to
INA
§
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as a nonimmigrant
having been convicted of an aggravated felony, as defined in INA §
101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), a law relating to an
attempt or conspiracy to commit an offense described in INA §
101(a)(43),
8
U.S.C.
§
1101(a)(43);
and
pursuant
to
INA
§
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as a nonimmigrant
having been convicted of an aggravated felony, as defined in INA §
101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), a law relating to a theft
offense or burglary offense for which a term of imprisonment of at
least one year was imposed.
DHS served the NTA on Falodun on August 27, 2009. Upon
completion of his sentence, Falodun was taken into DHS custody on
August 10, 2015.
On June 6, 2016, an immigration judge (“IJ”) denied Falodun’s
request
to
terminate
his
removal
proceedings,
rejected
his
citizenship claim, and ordered him removed from the United States
to
Nigeria.
Falodun
appealed
the
IJ’s
decision
to
Board
of
Immigration Appeals (“BIA”) on June 30, 2016. On June 2, 2017, the
BIA dismissed Falodun’s appeal in a new precedent decision. Matter
-4-
of Falodun, 27 I. & N. Dec. 52 (BIA 2017). The BIA held that “the
provisions relating to the revocation of naturalization under [INA]
section 340, including the cancellation of the Certificate of
Naturalization under [INA] section 340(f), do not apply to persons,
like [Falodun], who have obtained citizenship status derivatively
and whose Certificate of Citizenship was cancelled under [INA]
section 342 of the Act.” 27 I. & N. Dec. at 52. The BIA reasoned
that notwithstanding the Attorney General’s previous recognition of
Falodun’s derivative citizenship, that official had the authority
to declare that Falodun was never a citizen. See id. (finding “no
support for” the argument that the IJ “was required to defer to a
Federal
court
for
a
decision
on
his
claim
to
United
States
citizenship”).
A warrant of removal/deportation was issued for Falodun’s
removal on June 2, 2017. DHS sought to enforce the removal order
against Falodun by requesting travel documents from the Nigerian
consulate on or about June 8, 2017.
Previously, on June 6, 2017, Falodun had filed a petition for
review (“PFR”) with the United States Court of Appeals for the
Second Circuit. Falodun v. Barr, 17-1813 (2d Cir. June 6, 2017).
DHS
halted
its
efforts
to
remove
Falodun
pursuant
to
the
forbearance agreement between DHS and the Second Circuit. See In re
Immigration Petitions for Review Pending in U.S. Court of Appeals
for Second Circuit, 702 F.3d 160, 162 (2d Cir. 2012) (“While a
-5-
petition [for review] is pending in this Court, the Government’s
forbearance policy has assured that removal will not occur.”).
On June 11, 2017, Falodun officially filed a motion for a stay
of removal with the Second Circuit. In an order dated January 18,
2018, the Second Circuit did not directly rule on Falodun’s motion
for a stay, noting
that the forbearance policy remained in effect
because the Government did not oppose a stay of removal. Falodun’s
PFR remains pending before the Second Circuit. Oral argument was
held October 7, 2019.2
On February 8, 2018, Falodun filed the instant Petition
(“Pet.”) (ECF #1). Falodun’s Petition asserts three grounds for
habeas relief. First, he claims that his prolonged detention
contravenes 8 U.S.C. § 1231(a)(6) as interpreted by the Supreme
Court in Zadvydas v. Davis, 533 U.S. 678 (2001). See Pet. (ECF #1)
¶¶
22-23
(Count
One).
Second,
he
argues
that
his
continued
detention violates his right to substantive due process under the
Fifth Amendment, as interpreted by the Supreme Court in Zadvydas,
because he is not significantly likely to be removed in the
reasonably foreseeable future. See Pet. ¶¶ 24-27 (Count Two).
Third, he argues that in light of his prolonged detention, the
denial of a timely and meaningful opportunity to demonstrate that
he should not be detained violates his right to procedural due
2
Falodun currently has assigned counsel in connection with the PFR.
-6-
process under the Fifth Amendment. See Pet. ¶¶ 28-29
(Count
Three).
The Government filed an Answer and Return and Memorandum of
Law in Opposition to the Petition (“Resp. Opp. Mem.”) (ECF #5).
Falodun filed a Reply on April 18, 2018 (ECF #6). He subsequently
submitted a pleading consisting of a letter-brief and medical
records (ECF #8) concerning treatment he received at Buffalo
General Medical Center in March 2019, for rhabdomyolysis, possibly
secondary to his contracting a viral illness and the medication
risperidone, which he takes for depression and schizophrenia; acute
kidney injury/acute tubular necrosis, secondary to rhabdomyolosis;
hyperkalemia; metabolic acidosis; and transaminitis. Falodun was
discharged back to the BFDF after a 10-day hospital stay.
The Petition was transferred to the undersigned on July 31,
2019 (ECF #9).
Finding a discrepancy in the Government’s memorandum of law as
to which statute—8 U.S.C. § 1231 (“§ 1231”) or 8 U.S.C. § 1226 (“§
1226”)—authorized Falodun’s detention, the Court requested further
briefing from
statutory
the
basis
Government
for
to
detention
clarify
in
this
its
case.
position
The
on
the
Government
submitted a Supplemental Brief (“Resp. Supp.”) (ECF #14) asserting
that § 1231 authorizes Falodun’s detention. Joseph Moravec, Esq.,
an attorney representing Falodun in connection with his removal
proceedings, filed a Supplemental Brief in Support of the Petition
-7-
(“Petr. Supp.”)
(ECF
#15),
arguing
that
§
1226
provides
the
statutory basis for his detention. The New York Civil Liberties
Union (“NYCLU”) sought (ECF #17) and received permission to file an
amicus brief (ECF #22) in support of Falodun’s Petition.
III.
Scope of Review
Title 28 U.S.C. § 2241 grants this Court jurisdiction to hear
habeas corpus petitions from aliens claiming they are held “in
violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678,
687 (2001) (citing 28 U.S.C. § 2241(c)(3)). However, the REAL ID
Act of 2005, Pub. L. No. 109-13, § 106(a), 199 Stat. 231 (May 11,
2005) amended the Immigration and Nationality Act (“INA”) to
provide that petitions for review filed in the appropriate Courts
of Appeals were to be the “sole and exclusive means for judicial
review” of final orders of removal. Ruiz-Martinez v. Mukasey, 516
F.3d 102, 113 (2d Cir. 2008) (citing REAL ID Act § 106(c); 8 U.S.C.
§ 1252(a)(5)). In other words, the REAL ID Act “strips district
courts of jurisdiction to hear habeas petitions challenging final
orders of deportation. . . .” De Ping Wang v. Dep’t of Homeland
Sec., 484 F.3d 615, 615-16 (2d Cir. 2007). District courts still
are empowered to grant relief under § 2241 to claims by aliens in
removal
proceedings
that
their
detention
and
supervision
are
unconstitutional. See Zadvydas, 533 U.S. at 687-88; see also
Hernandez v. Gonzales, 424 F.3d 42, 42–43 (1st Cir. 2005) (“The
-8-
Real ID Act deprives the district courts of habeas jurisdiction to
review orders of removal, . . . [but] those provisions were not
intended to ‘preclude habeas review over challenges to detention
that are independent of challenges to removal orders.’”) (quoting
H.R. Cong. Rep. No. 109-72, at *43 2873 (May 3, 2005)).
Although this Court has jurisdiction to decide statutory and
constitutional challenges to civil immigration detention, it does
not have jurisdiction to review the discretionary decisions of the
Attorney General. Zadvydas, 533 U.S. at 688 (citing 8 U.S.C.
§ 1252(a)(2)(B)(ii)) (“[N]o court shall have jurisdiction to review
. . . any other decision or action of the Attorney General . . .
the authority of which is specified under this subchapter to be in
the discretion of the Attorney General.”). “[W]hether the district
court has jurisdiction will turn on the substance of the relief
that a [petitioner] is seeking.” Delgado v. Quarantillo, 643 F.3d
52, 55 (2d Cir. 2011) (per curiam).
IV.
Discussion
A.
Statutory Basis for Petitioner’s Detention
The Court first considers the statutory basis for Falodun’s
detention. See Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th
Cir. 2008) (noting that to determine whether detention of an alien
is authorized, threshold question is where to “locate [him or her]
. . . within the complex statutory framework of detention authority
-9-
provided
by
Sections
236
and
241
of
the
Immigration
and
Nationality Act, codified at 8 U.S.C. §§ 1226 and 1231”).
“The distinction between § 1226 and § 1231 essentially comes
down to whether an alien is subject to a final order of removal.”
Enoh v. Sessions, 236 F. Supp.3d 787, 793 (W.D.N.Y. 2017), appeal
withdrawn, No. 17-1236, 2017 WL 6947858 (2d Cir. Dec. 7, 2017).
Title 8 U.S.C., § 1231(a)(1)(A) provides for a 90–day removal
period,
during
which
the
Government
“shall
detain,”
id.
§
1231(a)(2), an alien “ordered removed,” id. § 1231(a)(1)(A).
The statute specifies that the removal period begins on the
latest of the following events:
(i)
The
date
the
administratively final.
order
of
removal
becomes
(ii) If 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.
(iii) If the alien is detained or confined (except under
an immigration process), the date the alien is released
from detention or confinement.
8 U.S.C. § 1231(a)(1)(B).
After the 90-day period of mandatory detention, the Government
has the discretion to release the alien or continue to detain him
or her. See 8 U.S.C. § 1231(a)(6) (stating that an alien ordered
removed “may be detained beyond the removal period”).
The parties dispute whether § 1226 or § 1231 authorizes the
detention of immigrants, such as Falodun, whose removal has been
-10-
stayed by operation of the forbearance policy3 between the Second
Circuit
and
the
Government
rather
than
as
the
result
of
a
judicially ordered stay. The Government has clarified that it
believes § 1231 governs Falodun’s detention. Petitioner, in his
original pro se petition, asserted that he was detained under §
1231. However, upon consultation with his immigration attorney, he
now contends that he is detained under § 1226. Likewise, amicus
NYCLU asserts that § 1226 applies to Falodun. Both Falodun and
amicus rely on the Second Circuit’s decision in Hechavarria v.
Sessions, 891 F.3d (2d Cir. 2018). In any event, Falodun and amicus
argue, even assuming he is detained under § 1231, his detention has
become so unreasonably prolonged that he is entitled to a bond
hearing.
As
discussed
further
below,
the
Court
agrees
with
Petitioner and amicus that § 1226 governs his detention. Therefore,
the Court need not reach their alternative argument regarding §
1231.
1.
The Reasoning of Hechavarria Compels the Conclusion
that § 1231 Does Not Apply to Petitioner’s
Detention
3
Where, as here, the Government does not oppose the immigrant’s stay
motion, he or she remains subject to the forbearance policy while the PFR is
pending before the Circuit. See Letter from Hon. Jon O. Newman, U.S. Court of
Appeals for the Second Circuit, to David McConnell, Deputy Dir., Office of
Immigration Litig. (Mar. 16, 2009) (“Newman Letter”) at 2, attached as Ex. C to
Roeck Decl. (ECF #22-1). The forbearance policy’s practical effect is to obviate
the need for the Circuit to analyze and adjudicate stay motions when the stay
request is unopposed. Petr. Supp. (ECF #15) at 10. “Under the agreement, unless
DHS provides notice otherwise, removal will not be effectuated against a
petitioner until a stay is adjudicated.” Id. (citing In re Immigration Petitions,
702 F.3d at 162 (“In the event that the Court and a petitioner are advised at any
time that this assumption [that removal is stayed] is unwarranted, the petitioner
may promptly apply for a stay of removal.”)).
-11-
In Hechavarria, the petitioner’s PFR was “pending judicial
review,” 8 U.S.C. § 1231(a)(1)(B)(ii), by the Second Circuit, which
had ruled on his motion for a stay of removal. Thus, there was a
“court order[ed] a stay of the removal[,]” id. However, there was
no “final order,” id., by the Second Circuit on his PFR. Based on
a plain-text reading of 8 U.S.C. § 1231(a)(1)(B)(ii), the Second
Circuit observed, the removal period as defined in 8 U.S.C. §
1231(a)(1)(B) had not begun for Hechavarria. 891 F.3d at 55.
Because Section 1231 governs detention only during or after the
removal period, it could not apply to Hechavarria’s circumstances.
See id. (“The unambiguous language of the statute makes plain that
Hechavarria cannot be detained pursuant to Section 1231.”).
The Circuit rejected the Government’s “attempt[ ] to skirt
this clear statutory language by arguing that [it] need only
determine when Hechavarria’s order became administratively final.”
Hechavarria, 891 F.3d at 55. To do so would require the Circuit “to
ignore
section
(ii)’s
clear
language
‘on
the
latest
of
the
following,’ so that any immigrant with an administratively final
order of removal is subject to detention under 8 U.S.C. § 1231.”
Id. However, the Circuit found, such a reading was “untenable”
because it would “render subsection (ii) mere surplus.” Id.
As further reinforcement of its plain-text reading of § 1231,
the Second Circuit pointed to the “structure and logic” of the
statute, which “addresses the logistics of removal,” “assumes that
-12-
the immigrant’s removal is both imminent and certain,” and defines
the removal period in a manner “dependent upon the assumption that
no substantive impediments remain to the immigrant’s removal.”
Hechavarria, 891 F.3d at 55. Given that a judicial stay of removal
is a “substantive impediment” to deportation, the Circuit reasoned,
“it would make no sense to classify Hechavarria in the same section
of the statute that governs the removal of aliens who have no
remaining barriers preventing their immediate removal.” Id. at 57.
Falodun’s case is in the same procedural posture as that of
the petitioner in Hechavarria except that the Second Circuit has
not ruled on Falodun’s stay motion, meaning that it has not
“order[ed] a stay of the removal[,]” 8 U.S.C. § 1231(a)(1)(B)(ii).
Nonetheless, just as in Hechavarria, there is a “substantive
impediment to [Falodun’s] deportation,” 891 F.3d at 55, in the form
of the forbearance policy. See Tolling Order, Falodun v. Barr,
17-1813 (2d. Cir. July 14, 2017). As Falodun points out, the
Government did not oppose Falodun’s request for a stay, and “thus
the forbearance policy acts as a de facto stay of removal.” Petr.
Supp. (ECF #15) at 3 (citing ECF #45 in Falodun v. Barr, 17-1813,
Motion Order (2d Cir. Jan. 8, 2018)
(“The forbearance policy
remains in effect because Respondent does not oppose a stay of
removal.”)).
The Government urges that Hechavarria is not controlling here
since the Second Circuit did not address the scenario presented by
-13-
this
case—that
is,
where
the
forbearance
policy—and
not
a
judicially-ordered stay—is preventing the alien’s removal. See
Hechavarria, 891 F.3d at 54 n.3 (“Because we review Hechavarria’s
habeas petition after this Court has issued a stay of removal in
his underlying petition for review, we need not decide the contours
of judicial review during detention pursuant to the government’s
forbearance policy in this Circuit.”). However, “the overwhelming
majority of courts in this Circuit have found that the forbearance
agreement amounts to a ‘court ordered stay of the removal of the
alien’ and that detainees with a pending petition for review are
detained pursuant to [8 U.S.C.] § 1226.” Ranchinskiy v. Barr, No.
19-CV-6348-EAW, ECF #8, Nov. 8, 2019 Order at 11 (W.D.N.Y. Nov. 8,
2019) (Wolford, D.J.) (citing Sankara v. Whitaker, No. 18-CV-1066,
2019 WL 266462, at *4 (W.D.N.Y. Jan. 18, 2019) (Vilardo, D.J.)).
Although in
some forbearance policy cases, district courts within
and without this Circuit had determined that Section 1231 governed
the alien’s detention, “almost none have so held in the wake of the
Second Circuit’s decision in Hechavarria[.]” Ranchinskiy, Nov. 8,
2019 Order at 12; but see Nunez v. Searls, No. 18-CV-6463-CJS, 2019
WL 2524308 (W.D.N.Y. June 19, 2019), appeal docketed sub nom. Nunez
v. Whaling, 19-2114 (2d Cir. July 10, 2019). In Nunez, however,
both the petitioner and the Government argued that 8 U.S.C. § 1231
governed
detention,
and
the
district
court
never
considered
Hechavarria. In these respects, Nunez is distinguishable from the
-14-
present case
and
is, in
any
event,
not
binding
precedential
authority.
2.
Applying
§
1231
to
Aliens
Detained
Under
Forbearance Stays But Not Judicially Ordered Stays
Would Lead to Incongruous Results
Ordinarily, “[a] statute should be interpreted in a way that
avoids absurd results.” United States v. Dauray, 215 F.3d 257, 264
(2d Cir. 2000) (citation omitted); see also Viacom Int’l, Inc. v.
FCC, 672 F.2d 1034, 1039 (2d Cir. 1982) (“[T]he surest way to
misinterpret a statute or a rule is to follow its literal language
without
reference
to
its
purpose.”)
(citation
omitted).
The
Government urges a strict construction of § 1231(b)(1)(B)(ii)’s
phrase, “court orders,” to require that the Circuit actually grant
the motion for a stay. But this would lead to anomalous results in
practice.
It is evident that, practically speaking, a judicially-ordered
stay of removal and the forbearance policy are indistinguishable.
Petr. Supp. at 14 (ECF #15). Both mean that the Government is
prevented from removing the alien as long as the PFR remains
pending before the Circuit. See In re Immigration Petitions, 702
F.3d at 162 (“In the event that the Court and a petitioner are
advised at any time that this assumption [that removal is stayed as
a result of the forbearance policy] is unwarranted, the petitioner
may promptly apply for a stay of removal.”).
-15-
Distinguishing between a court-ordered stay and the de facto
stay that results from the forbearance policy would require the
Court to treat two petitioners in exactly the same procedural
posture differently. Falodun offers the following hypothetical to
illustrate this point. See Petr. Supp. (ECF #15) at 14-15. Two
detained aliens have administratively-final orders of removal. One
moves for a stay of removal, the Government opposes the motion, and
the
Circuit
grants
the
motion
and
orders
a
stay.
Under
the
Government’s theory, this alien’s detention is authorized under §
1226(c), not § 1231(b)(1)(B)(ii). The other alien moves for a stay
of removal, the Government does not oppose the motion, and everyone
proceeds under the assumption that the forbearance policy prevents
the alien’s removal during the pendency of the Circuit proceeding.
According to the Government, this alien’s detention is governed by
§ 1231(b)(1)(B)(ii). However, the only difference between these two
individuals
is
an
external
factor
beyond
their
control—the
litigation strategy the Government followed in their respective
cases.
Because adopting the Government’s interpretation would “tend[
] to produce absurd results,” Dauray, 215 F.3d at 264, the Court
declines to adopt it. Instead, the Court finds that the Second
Circuit’s reasoning in Hechavarria with regard to the “structure
and logic” of the detention statutes applies with equal force to
petitioners
whose
removal
is
prevented
-16-
by
operation
of
the
forbearance policy. “Because the combined effect of [Falodun’s]
Second Circuit proceeding and the forbearance agreement creates a
‘substantive impediment’ to his removal, . . . this Court concludes
that . . . the forbearance agreement amounts to a ‘court order[ed]
stay of the removal of the alien.’” Sankara v. Whitaker, No.
18-CV-1066, 2019 WL 266462, at *4 (W.D.N.Y. Jan. 18, 2019) (quoting
Hechavarria, 891 F.3d at 55; citing Argueta Anariba v. Shanahan,
190 F. Supp.3d 344, 349 (S.D.N.Y. 2016); alterations in original;
footnote and other citations omitted).
3.
Section 1226 Governs Petitioner’s Detention
In Hechavarria, after finding that § 1231 could not authorize
the petitioner’s detention, the Second Circuit considered the
applicability of § 1226. Hechavarria, 891 F.3d at 57. The Circuit
rejected the Government’s argument that this statute only applies
to
aliens
without
administratively
final
removal
orders.
Interpreting § 1226 to apply broadly to “immigrants who are not
immediately deportable[,]” id., the panel reasoned that individuals
who have judicially-ordered stays likewise are not immediately
deportable
and
thus
are
detained
pursuant
to
§
1226.
Id. Accordingly, the Second Circuit determined, Hechavarria was
detained pursuant to § 1226(c).
Here, having found that the combined effect of Falodun’s PFR
pending before the Second Circuit and the forbearance agreement
creates a “substantive impediment to his removal,” the Court
-17-
concludes that he is not “immediately deportable,” id., and thus §
1226(c)
governs
his
detention.
E.g.,
Hemans
v.
Searls,
18-CV-1154, 2019 WL 955353, at *3 (W.D.N.Y. Feb. 27, 2019)
No.
(where
alien had filed PFR in Second Circuit, and forbearance agreement
was in effect, alien’s removal period had not begun, and he
remained detained under § 1226 rather than § 1231).
While § 1226(c) is facially constitutional and authorizes
Falodun’s
detention
as
a
statutory
matter,
see
Jennings
v.
Rodriguez, 138 S. Ct. 830, 846 (2018), his “continuing detention
must also be consistent with substantive and procedural due process
principles as they are applied to him.” Joseph v. Decker, No.
18-CV-2640(RA), 2018 WL 6075067, at *9 (S.D.N.Y. Nov. 21, 2018),
appeal withdrawn, No. 19-245, 2019 WL 3334802 (2d Cir. May 1, 2019)
(citing Martinez v. Decker, No. 18-CV-6527 (JMF), 2018 WL 5023946,
at *4 (S.D.N.Y. Oct. 17, 2018)). In Jennings, the Supreme Court
“explicitly
left
open
the
question
of
what
constitutional
procedural protections are required.” Martinez, 2018 WL 5023946, at
*4 (citing Jennings, 138 S. Ct. at 851 (remanding the class
members’ constitutional claims for consideration, in the first
instance, by the lower courts); see also
Hechavarria v. Sessions,
No. 15-CV-1058, 2018 WL 5776421, at *2 (W.D.N.Y. Nov. 2, 2018)
(noting that Jennings “left open the constitutional questions
raised by prolonged mandatory detention under § 1226(c)”) (citing
-18-
138 S. Ct. at 851), enforcement granted sub nom. Hechavarria v.
Whitaker, 358 F. Supp.3d 227 (W.D.N.Y. 2019).
B.
Petitioner’s Continued Detention Under § 1226(c) Has
Become Unreasonably Prolonged and Violates Procedural Due
Process
In Count Three of the Petition, Falodun asserts that under the
Due Process Clause of the Fifth Amendment, “an alien is entitled to
a timely and meaningful opportunity to demonstrate that s/he should
not be detained[,]” but in this case, he has been denied that
opportunity because “ICE does not make decisions concerning alien’s
custody status in a neutral and impartial manner.” Pet. ¶ 29. He
asserts
that
the
Government’s
failure
“to
provide
a
neutral
decisionmaker to review [his] continued custody . . . violates
[his] right to procedural due process.” Id.
1.
General Legal Principles
The Fifth Amendment’s Due Process Clause forbids depriving any
“person . . . of . . . liberty . . . without due process of law[.]”
U.S. CONST. amend. V. “Freedom from imprisonment—from government
custody, detention, or other forms of physical restraint—lies at
the heart of the liberty that Clause protects.” Zadvydas, 533 U.S.
at 690 (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)).
“Aliens, even aliens whose presence in this country is unlawful,
have long been recognized as ‘persons’ guaranteed due process of
law by the Fifth and Fourteenth Amendments.” Plyer v. Doe, 457 U.S.
202, 210 (1982) (citations omitted).
-19-
The Supreme Court “has held that the Due Process Clause
protects individuals against two types of government action.”
United States v. Salerno, 481 U.S. 739, 746 (1987). “So called
‘substantive due process’ prevents the government from engaging in
conduct that ‘shocks the conscience,’ . . . or interferes with
rights ‘implicit in the concept of ordered liberty.’” Salerno, 481
U.S.
at
746
(internal
and
other
quotations
omitted).
“When
government action depriving a person of life, liberty, or property
survives
substantive
due
process
scrutiny,
it
must
still
be
implemented in a fair manner.” Id. (citing Mathews v. Eldridge, 424
U.S. 319, 335 (1976)). “This requirement has traditionally been
referred to as ‘procedural’ due process.” Id.
2.
Falodun
Application of the Mathews Test
argues
that
under
the
three-part
balancing
test
articulated in Mathews, supra, procedural due process requires that
he be afforded a bond hearing before a neutral arbiter at which the
Government bears the burden of proving he should not be released.
See Petr. Supp. (ECF #15) at 16-22; see also Hechavarria, 2018 WL
5776421, at *7–*9 (relying on the Mathews test to find a violation
of procedural process where the § 1226(c) detainee had not received
a bond hearing in the five years he had been detained).
“[I]dentification of the specific dictates of due process generally
requires consideration of three distinct factors,” Mathews, 424
U.S. at 335, namely, “the private interest affected;” “the risk of
-20-
erroneous deprivation of that interest through the procedures
used;”
and
“the
governmental
interest
at
stake.”
Nelson
v.
Colorado, 137 S. Ct. 1249, 1255 (2017) (citing Mathews, 424 U.S. at
335).
a.
The Nature of Petitioner’s Interest
Under Mathews, then, the Court must begin with a description
of the right asserted by Falodun. See Harper, 494 U.S. at 220 (“It
is axiomatic that procedural protections must be examined in terms
of the substantive rights at stake.”). It is well established
“[f]reedom from bodily restraint has always been at the core of the
liberty
protected
by
the
Due
Process
Clause
from
arbitrary
governmental action,” and courts have taken great care “not to
‘minimize
the
importance
and
fundamental
nature’
of
the
individual’s right to liberty.” Foucha, 504 U.S. at 80 (citations
omitted); accord, e.g., Zadvydas v. Davis, 533 U.S. 678, 690
(2001).
It is equally well established that “the Fifth Amendment
entitles aliens to due process of law in deportation proceedings.”
Demore v.
Kim,
Nevertheless,
538
U.S.
Congress
510,
has
523 (2003)
plenary
(citation
power
over
omitted).
substantive
immigration matters and may “make rules as to aliens that would be
unacceptable if applied to citizens.” Demore, 538 U.S. at 522
(citation omitted). The Supreme Court has recognized that power has
its limits. For example, in Zadvydas, the Supreme Court observed
-21-
that when
civil
detention
of
aliens
“no
longer
‘bear[s]
[a]
reasonable relation,” 533 U.S. at 690 (quotation omitted), to the
Government’s
asserted
purposes
for
such
detention—ensuring
attendance at immigration proceedings and preventing danger to the
community—due process would be offended. See id. (citing Jackson v.
Indiana, 406 U.S. 715, 738 (1972) (“At the least, due process
requires that the nature and duration of commitment bear some
reasonable relation to the purpose for which the individual is
committed.”)). Likewise, in his concurring opinion in Demore,
Justice Kennedy observed that “[s]ince the Due Process Clause
prohibits arbitrary deprivations of liberty, a lawful permanent
resident
alien
individualized
such
as
respondent
determination
as
could
be
his
risk
to
entitled
of
to
flight
an
and
dangerousness if the continued detention became unreasonable or
unjustified.” Demore, 538 U.S. at 532 (concurring opn., Kennedy,
J.) (citing Zadvydas, 533 U.S. at 684–86 (dissenting opn., Kennedy,
J.) (“[A]liens are entitled to be free from detention that is
arbitrary
or
overwhelmingly
capricious.”)).
read
Zadvydas
Courts
and
in
Demore
this
to
Circuit
stand
for
have
the
proposition that an alien “is entitled to adequate procedural
safeguards to protect his right to be free from arbitrary or
‘unreasonable’ civil detention.” Joseph, 2018 WL 6075067, at *10
(citing Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at
*10 (S.D.N.Y. May 23, 2018)).
-22-
b.
Petitioner’s Detention Has Become Unreasonably
Prolonged
In the wake of Jennings’ rejection of a six-month bright-line
rule for determining when an alien is entitled to heightened due
process protections, a number of courts have “examine[d] each
individual’s detention circumstance to determine whether it has
become ‘unreasonable or unjustified.’” Cabral v. Decker, 331 F.
Supp. 3d 255, 261 (S.D.N.Y. 2018) (quoting Demore, 538 U.S. at 532
(concurring opn., Kennedy, J.); see also Hemans v. Searls, No.
18-CV-1154, 2019 WL 955353, at *6 (W.D.N.Y. Feb. 27, 2019). Amicus
NYCLU maintains that the length of confinement alone triggers
enhanced due process protections but argues that Falodun still
would be entitled to a bond hearing under a multi-factor test for
assessing when detention in the absence of a bond hearing has
become unreasonably prolonged so as to violate procedural due
process. See Brief of Amicus Curiae New York Civil Liberties Union
in Support of the Petition (“Amicus Br.”) (ECF #22) at 12 n.6
(citing Sajous, 2018 WL 2357266, at *10–11 (considering (1) the
length of time the alien has been detained; (2) whether the alien
is responsible for the delay; (3) whether the alien has asserted
defenses to removal; (4) whether the alien’s civil immigration
detention exceeds the time the alien spent in prison for the crime
that rendered him removable; and (5) whether the facility for the
civil immigration detention is meaningfully different from a penal
-23-
institution for criminal detention)). See also, e.g., Hemans, 2019
WL 955353, at *6 (“Factors bearing on this question include (1) the
total length of detention to date; (2) the conditions of detention;
(3) delays in the removal proceedings caused by the parties; and
(4) the likelihood that the removal proceedings will result in a
final order of removal.”) (citing Jamal A. v. Whitaker, 358 F.
Supp.3d 853, 859-60 (D. Minn. 2019); footnote omitted).
“First, and most important, courts consider the length of
detention.” Hemans, 2019 WL 955353, at *6; see also, e.g., Muse v.
Sessions, No. 18-CV-0054(PJS/LIB), 2018 WL 4466052, at *4 (D. Minn.
Sept. 18, 2018) (“How long th[e] deprivation [of liberty] has
lasted is critical to the due-process inquiry.”). As an initial
matter, the Court notes that the passage of the Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”) in 1996, Pub. L.
104–208, §§ 326, 329, 110 Stat. 3009–630 to 3009–631 (codified at
8
U.S.C.
§
1228),
“significantly
expanded
the
categories
of
non-citizens subject to mandatory detention pending their removal
proceedings.” Lora v. Shanahan, 804 F.3d 601, 604 (2d Cir. 2015),
cert. granted, judgment vacated on other grounds, 138 S. Ct. 1260
(2018). Under § 236 of the revised INA, DHS is required to detain
aliens
who
have
committed
certain
crimes
“when
[they
are]
released.” 8 U.S.C. § 1226(c). Section 1226(c) contains no explicit
provision for the possibility of a bond hearing. Lora, 804 F.3d at
604.
-24-
When the constitutionality of § 1226(c) was challenged in
Demore, 538 U.S. 510, supra, the statistics submitted by the
Government to the Supreme Court indicated that “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 in which the alien chooses to appeal.” Id. at
530 (footnote omitted). The alien in Demore was detained for six
months, “somewhat longer than the average,” but, the Supreme Court
observed, he “had requested a continuance of his removal hearing.”
Id. at 530–31. “Emphasizing the relative brevity of detention in
most cases,” Lora, 804 F.3d at 604,4 the Supreme Court concluded
that
mandatory
detention
during
removal
proceedings
was
“constitutionally permissible.” Demore, 538 U.S. at 531.
Here, Falodun was taken into DHS custody on August 10, 2015.
As of December 1, 2019, he has been detained 51 months and 22
days—more than tenfold the average length of mandatory detention
for aliens who appealed their removal orders in 2003, when Demore
4
As the district court in Sajous, 2018 WL 2357266, at *18, pointed
out, the majority opinion in Demore referenced the term “brief,” or referred to
the relatively short length of detention at issue, several times. See 538 U.S.
at 513 (“We hold that 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 brief period necessary for their removal
proceedings.”) (emphasis supplied); id. at 523 (characterizing respondent’s
argument as follows: “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 supplied); id. at 522–23 (“Zadvydas is
materially different . . . [because] [w]hile the period of detention at issue in
Zadvydas was ‘indefinite’ and ‘potentially permanent,’ the detention here is of
a much shorter duration.”) (internal quotation omitted; emphasis supplied).
-25-
was decided. By either an absolute or relative standard, this is
significant length of time.
The Government contends that detention under Section 1226(c)
without a hearing, regardless of its length, survives due process
scrutiny whenever the alien elects to challenge his or her removal
order and request a stay of removal. This argument goes to the
factor that considers which side is responsible for any delay in
the removal proceedings. While “a close reading of Demore suggests
that the government may reasonably detain an immigrant under §
1226(c) without a hearing for a somewhat longer period if the
immigrant chooses to appeal[,]” Hechavarria, 2018 WL 5776421, at *7
(citing Demore, 538 U.S. at 529 (differentiating between average
lengths of detention among detainees who have appealed decisions to
the
BIA
Falodun’s
and
those
who
have
not);
other
four-year-plus detention far
citation
exceeds
the
omitted)),
five-month
average period considered “average” in Demore for those detainees
who appealed their removal orders.
The Court is not persuaded by the Government’s assertion that
Falodun “cannot press a due process challenge when detention is
extended due to [his] continued pursuit of legal challenges.” Resp.
Supp. (ECF #14) at 5; see also Resp. Opp. Mem. (ECF #5) at 9
(“Aliens can immediately end detention at any time by accepting a
final order of removal[.]”)). The Second Circuit has indicated that
this factor weighs against an immigrant who has “‘substantially
-26-
prolonged his stay by abusing the processes provided to him,’” but
not “an immigrant who simply made use of the statutorily permitted
appeals process.” Hechavarria, 891 F.3d at 56 n.6 (quoting Nken v.
Holder, 556 U.S. 418, 436 (2009)). Indeed, “appeals and petitions
for relief are to be expected as a natural part of the process. An
alien who would not normally be subject to indefinite detention
cannot be so detained merely because he seeks to explore avenues of
relief that the law makes available to him.” Ly v. Hansen, 351 F.3d
263, 272 (6th Cir. 2003); see also Guerrero-Sanchez v. Warden York
Co.
Prison,
905
F.3d
208,
220
(3d
Cir.
2018)
(“detaining
Guerrero-Sanchez without a bond hearing while he pursues his bona
fide
withholding-only
claim
would
effectively
punish
him
for
pursuing applicable legal remedies”) (internal quotation omitted).
There is no indication in the record that Falodun has “filed
frivolous appeals in order to delay [his] deportation,” Demore, 538
U.S. at 530 n.14, or has otherwise “substantially prolonged his
stay by abusing the processes provided to him,” Hechavarria, 891
F.3d at 56 n.6 (quotation omitted).5 Rather, Falodun has “simply
made use of the statutorily permitted appeals process.” Id. The
5
In connection with his PFR before the Second Circuit, Falodun’s
counsel has filed a brief arguing, inter alia, that the BIA erred as a matter of
law in administratively revoking Falodun’s United States citizenship ab initio
during the same administrative proceeding in which it cancelled Falodun’s
Certificate of Citizenship. Falodun also argues that the BIA also clearly erred
by failing to review whether the INS District Director should have considered
certain evidence proffered by Falodun at his cancellation proceeding, including
documents and witnesses that tended to support Falodun’s motion to terminate his
removal proceeding. See ECF #94 in Falodun v. Barr, et al., 17-1813 (2d Cir. Oct.
29, 2018).
-27-
Court cannot agree that Falodun’s detention is reasonable simply
because he has sought “to explore avenues of relief that the law
makes available to him[,]” Ly, 351 F.3d at 272. “[A]lthough an
alien may be responsible for seeking relief, he is not responsible
for the amount of time that such determinations may take.” Id. The
Court declines to penalize Falodun for the delays occasioned due to
his pursuit of a good-faith, colorable legal and factual challenge
to the summary cancellation of his citizenship, without a district
court proceeding. As Falodun observes, “[c]itizenship in the United
States of America is among our most valuable rights.” Petr. Supp.
(ECF #15) at 27 (quoting Gorbach v. Reno, 219 F.3d 1087, 1098 (9th
Cir. 2000) (en banc)).
With regard to the factor that considers the likelihood of the
removal proceedings resulting in a final order of removal or,
stated another
way,
the
strength
of the
alien’s
defenses
to
removal, the Government argues that Falodun’s removal is imminent
because briefing
is
complete
in
the
Second
Circuit
and oral
argument was held in October. The Government is correct regarding
the procedural posture of Falodun’s PFR. However, this argument
assumes two things, neither of which are certain—that the Circuit
will decide the case imminently and in the Government’s favor.
Petitioner asserts, and the Court has no reason to doubt, that PFRs
“often remain pending (even after oral argument) for a significant
time, many cases are overturned or remanded, and petitioners often
-28-
prevail after judicial review.” Petr. Supp. (ECF #15) at 28 (citing
Benslimane v. Gonzales, 430 F.3d 828, 829-30 (7th Cir. 2005)
(Posner, J.) (“In the year ending on the date of the argument,
different panels of this court reversed the [BIA] in whole or part
in a staggering 40 percent of the 136 petitions to review the Board
that were resolved on the merits . . . This tension between
judicial and administrative adjudicators is not due to judicial
hostility
to
the
misconception
of
administrative
nation’s
the
immigration
decisions.
It
or
standard
proper
policies
of
judicial
review
of
to
the
that
the
is
due
fact
to
a
adjudication of these cases at the administrative level has fallen
below the minimum standards of legal justice.”) (emphasis supplied;
cited with approval in Ming Shi Xue v. Bd. of Immigration Appeals,
439 F.3d 111, 114 n.3 (2d Cir. 2006)).
With regard to the factors that address the length of civil
detention vis-à-vis any criminal sentence the alien served for the
crime that made him removable, Petitioner concedes that his term of
incarceration exceeds his time at the BFDF. But, as some district
courts
have
pointed
out,
“it
makes
little
sense
to
compare
‘different types of custody imposed for different reasons by
different sovereigns’ to determine whether federal immigration
detention
has
become
unreasonably
prolonged.
Hemans,
2019
WL
955353, at *6 n.4 (quoting Muse, 2018 WL 4466052, at *3 n.4; citing
Jones v. United States, 463 U.S. 354, 369 (1983) (holding that
-29-
“[t]he length of an acquittee’s hypothetical criminal sentence . .
. is irrelevant to the purposes of his commitment”)).
Finally, the Court recognizes that Falodun is not being held
in an penal institution. A “civil label is not always dispositive.”
Allen v. Illinois, 478 U.S. 364, 369 (1986), and courts have
observed that “merely calling a confinement ‘civil detention’ does
not, of itself, meaningfully differentiate it from penal measures.”
Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 478 (3d
Cir.
2015)
(citations
omitted).
Even
assuming,
however,
that
conditions at the BFDF “meaningfully differentiate” it from a
correctional
detention
facility,
outweighs
the
this
significant
factor.
It
length
bears
of
Falodun’s
emphasizing
that
regardless of the descriptor used, the right infringed upon is the
same—freedom
from
bodily
restraint,
which
“always
has
been
recognized as the core of the liberty protected by the Due Process
Clause from arbitrary governmental action.’” Youngberg v. Romeo,
457 U.S. 307, 316 (1982) (quoting Greenholtz v. Nebraska Penal
Inmates, 442 U.S. 1, 18 (1979) (concurring and dissenting opn.,
Powell, J.)).
c.
The Process Received to Date
Before proceeding to evaluate the nature of the process due to
Falodun, the Court takes notice of the process Falodun has received
to date. Because he initially was detained under § 1226(c), he
-30-
received what is known as a Joseph hearing.6 The initial burden is
on the Government to establish that there is “reason to believe”
that the detained alien is deportable or inadmissible under a
ground listed in 8 U.S.C. § 1226(c)(1)(A)-(D). The alien may only
avoid mandatory detention by demonstrating that “he is not an
alien, was not convicted of the predicate crime, or that [DHS/ICE]
is otherwise substantially unlikely to establish that he is in fact
subject to mandatory detention.” Demore, 538 U.S. at 514 n.3. At a
Joseph hearing, the sole question is whether the alien is an “alien
described” in § 1226(c); there is no inquiry into the Government’s
putative regulatory interests in detention, such as risk of flight
or dangerousness. Thus, the Court finds, a Joseph hearing cannot be
seen as an adequate procedural substitute for a bond hearing. See
Hechavarria, 2018 WL 5776421, at *8 (“[A]t a Joseph hearing, the §
1226(c) detainee has the burden of proving that he should not be a
§ 1226(c) detainee, and the government’s regulatory purposes in
detention itself—for example risk of flight or dangerousness—are
irrelevant.”).
The Government indicates that Falodun has received sufficient
procedural protections in the form of periodic custody reviews by
ICE officials pursuant to the regulations set forth at 8 C.F.R. §
241.4. The eight Decisions to Continue Custody issued by ICE
6
The hearing is so-named after Matter of Joseph, 22 I. & N. Dec. 799,
1999 WL 339053 (BIA 1999), and it is now codified at 8 CFR § 1003.19(h)(2)(ii),
which characterizes it as a “custody redetermination hearing.”
-31-
consist of the same form letter, newly signed by the same ICE
official every few months. The form letter essentially restates the
factual and procedural history of Falodun’s immigration proceedings
but offers no explanation or rationale for ICE’s decision to
continue Falodun’s detention. See Decisions to Continue Detention
(ECF #13-1), Ex. 1 to Declaration of Deportation Officer Silvestre
Talavera (“Talavera Decl.”) (ECF #13). These pro forma custody
reviews are not even in compliance with the applicable regulations,
which provide that “[a] decision to retain custody shall briefly
set forth the reasons for the continued detention.” 8 C.F.R. §
241.4(d)
(emphasis
supplied).
Even
assuming
that
ICE
had
articulated the reasons for continuing to detain Falodun, the Court
cannot
agree
that
these
cursory,
unreviewable
custody
determinations are constitutionally adequate given the protected
liberty interest at stake and the length of his detention to date.
d.
The Government’s Interest and the Risk of an
Erroneous Deprivation with the Process Used
The Court is not suggesting that the Government lacks any
legitimate interest in detaining Falodun. Curiously, however, the
Government suggests that it need not do so. Indeed, even in his
dissenting opinion in Zadvydas, Justice Kennedy recognized that
“both removable and inadmissible aliens are entitled to be free
from detention that is arbitrary or capricious.” Zadvydas, 533 U.S.
at 721 (dissenting opn., Kennedy, J.). The Government instead
-32-
relies on § 1226(c)’s language mandating the detention of certain
categories of aliens during their removal proceedings. While the
Supreme
Court
has
held
that,
as
a
matter
of
statutory
interpretation, § 1226(c) does not contain any temporal limit on
detention, “Jennings explicitly left open the question of what
constitutional procedural protections are required[,]” Martinez,
2018 WL 5023946, at *4 (emphasis supplied). Thus, contrary to the
Government’s suggestion, the statutory language of § 1226(c) does
not end the Court’s inquiry on habeas review.
This brings the Court back to three fundamental principles.
First, freedom from bodily restraint is protected by the Fifth
Amendment’s Due Process Clause. Second, the Due Process Clause
protects citizens and non-citizens alike. Third, detention under
the immigration statutes is “civil, not criminal, and [the Supreme
Court has] assume[d] that they are nonpunitive in purpose and
effect.”
Zadvydas, 533 U.S. at 690. Here, however, the Government
has not articulated what purposes Falodun’s detention is serving.
In the civil detention context, the Supreme Court has observed that
“where
detention’s
goal
is
no
longer
practically
attainable,
detention no longer ‘bear[s][a] reasonable relation to the purpose
for which the individual [was] committed.’” Zadvydas, 533 U.S. at
690 (quoting Jackson, 406 U.S. at 718; alterations in original). A
bond hearing is thus necessary to assess whether the Government has
interests in continuing to detain Falodun that are “legitimate and
-33-
compelling[,]” Salerno, 481 U.S. at 752, or whether his “detention
no longer bear[s][a] reasonable relation to [its] purpose[,]”
Zadvydas, 599 U.S. at 690 (quotation omitted; first two alterations
in original); see, e.g., Hechavarria, 2018 WL 5776421 at *8 (“[The
government]
contends
Hechavarria’s
that
detention
it
has
pending
a
regulatory
removal
based
on
interest
his
in
serious
criminal history and risk of flight. So the government’s continued
assertion
that
Hechavarria
must
be
detained
because
he
is
dangerous, simply begs the question and suggests exactly why a
hearing is necessary.”) (internal citations to record omitted). The
process afforded, which consists of totally opaque custody reviews
that are not even in compliance with the applicable regulations, is
all but certain to promote the erroneous deprivation of Falodun’s
liberty interest. See, e.g., Hechavarria, 2018 WL 5776421, at *8
(“[G]iven that the statute precludes any pre- or post-deprivation
procedure
to
challenge
the
government’s
assumption
that
an
immigrant is a danger to the community or a flight risk, it
presents a significant risk of erroneously depriving Hechavarria of
life and liberty interests.”). Therefore, the second Mathews factor
clearly favors Falodun.
e.
Nature of the Process Due
This Court, along with the overwhelming majority of district
courts in this Circuit, has determined that the appropriate process
due consists of a bond hearing before a neutral decision-maker at
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which the burden is on the Government to establish, by clear and
convincing evidence, that the detainee should not be released on
bond because he or she is a flight risk or danger to the community.
See, e.g., Arellano v. Sessions, No. 6:18-CV-06625-MAT, 2019 WL
3387210, at *11-*12 (W.D.N.Y. July 26, 2019) (collecting cases);
Joseph, 2018 WL 6075067, at *12-*13 (collecting cases). In other
words, the Government bears the burden of proving that detention of
Falodun
continues to serve a legitimate regulatory purpose. When
evaluating whether to release Falodun on bond, the decision-maker
must consider and address in the bond decision whether there is
clear and convincing evidence that no less restrictive alternative
to physical detention, including release on bond in an amount
Falodun reasonably can afford, with or without conditions, would
also reasonably
address
the
Government’s
regulatory
purposes.
Hemans, 2019 WL 955353, at *9 (citations omitted).
C.
Counts One and Two of the Petition
In Counts One and Two of the Petition, Falodun asserts claims
based on the Supreme Court’s decision in Zadvydas interpreting 8
U.S.C. § 1231(a)(6). Having determined to grant relief on Count
Three
of
the
Petition,
the
Court
need
not
reach
Falodun’s
alternative bases for habeas relief. Therefore, the Court does not
adjudicate Counts One and Two in this Decision and Order.
V.
Conclusion
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For the foregoing reasons, the Petition is conditionally
granted to the extent that within ten (10) days of the date of
entry of this Decision and Order, the Government shall bring
Falodun before an IJ for an individualized bond hearing. At that
hearing, the Government shall bear the burden of proving, by clear
and convincing evidence, that he is a flight risk or danger to the
community, and that no less restrictive alternatives to physical
detention
can
reasonably
address
the
Government’s
legitimate
interests in detention. If the Government fails to provide Falodun
with such a bond hearing within ten (10) calendar days, the
Government shall immediately release him. If the Government holds
the required bond hearing but fails to carry its burden of proof as
stated above, the Government must release Falodun on bond with
appropriate
conditions.
The
Government
is
further
ordered
to
provide a status report to this Court within five (5) calendar days
following the completion of the bond hearing, along with a copy of
the IJ’s bond decision.
The Clerk of Court is directed to close this case.
SO ORDERED.
s/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
December 4, 2019
Rochester, New York.
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