Kharshiladze v. Philips
DECISION AND ORDER granting 4 Motion to Dismiss and denying 1 Petition. Signed by Hon. Elizabeth A. Wolford on 02/16/2021. (CDH)-CLERK TO FOLLOW UP-
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
MICHAEL T. PHILIPS, Warden, Buffalo
Immigration Detention Center,
Pro se petitioner Bachuki Kharshiladze (“Petitioner”), a civil immigration detainee
currently held at the Buffalo Federal Detention Facility (“BFDF”) in Batavia, New York,
seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner, who is
detained pursuant to 8 U.S.C. § 1225(b), contends that he is entitled to release, or in the
alternative, a bond hearing. (Id. at 7).
For the reasons that follow, the Court grants Respondent’s motion to dismiss
Petitioner’s claim based on the conditions of his confinement (Dkt. 4) and further denies
the petition in its entirety, because Petitioner has been provided all the process required by
Petitioner is a native and citizen of the country of Georgia. (Dkt. 7-1 at ¶ 5). He
unlawfully entered the United States from Canada on foot on December 10, 2018, around
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4:00 a.m. (Id. at ¶ 6). Approximately half an hour later, Petitioner was apprehended by a
Border Patrol agent and taken into custody. (Id.). Previously, on July 16, 2018, Petitioner
had been arrested by Canadian authorities on charges of shoplifting, possession of property
obtained by a crime, assault, and possession of a schedule 1 substance. (Id. at ¶ 7; see also
Dkt. 7-3 at 53-55). Petitioner had been released on a peace bond at the time he unlawfully
entered the United States. (Dkt. 7-1 at ¶ 7).
On December 10, 2018, Petitioner was found to be inadmissible and served with a
Notice of Expedited Removal. (Id. at ¶ 8). On December 11, 2018, a criminal complaint
was filed against Petitioner in the United States District Court for the Northern District of
New York charging him with eluding examination or inspection by immigration officers
in violation of 8 U.S.C. § 1325(a)(2). (Id. at ¶ 9). Petitioner pled guilty as charged on
December 20, 2018, and was sentenced to time served. (Id.).
Petitioner was released from the custody of the United States Marshals Service on
January 4, 2019, and taken into custody by Immigration and Customs Enforcement. (Id.
at ¶ 10). On February 15, 2019, Petitioner passed a credible fear interview. (Id. at ¶ 11).
Petitioner was thereafter placed into full removal proceedings and was served with a Notice
to Appear on March 12, 2019, charging him with being removable pursuant to various
provisions of the Immigration and Nationality Act. (Id. at ¶ 12).
On March 27, 2019, Petitioner appeared before an immigration judge (“IJ”) for a
master calendar hearing and a bond hearing. (Id. at ¶ 14). The IJ denied bond on the basis
that Petitioner posed a risk of flight and adjourned the master calendar hearing until April
15, 2019, to allow Petitioner time to obtain legal representation. (Id.).
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Petitioner appeared pro se at the master calendar hearing on April 15, 2019, but the
hearing was adjourned to May 8, 2019, because the interpreter failed to appear. (Id. at
¶ 15). On May 8, 2019, Petitioner appeared with counsel and conceded the allegations in
the Notice to Appear. (Id. at ¶ 16). Petitioner was given until May 28, 2019, to file
applications for relief from removal, and an individual calendar hearing on the merits was
scheduled for June 28, 2019. (Id.).
Petitioner did not timely file an application for asylum. (Id. at ¶ 17). On May 29,
2019, the IJ deemed Petitioner’s request for relief from removal abandoned and ordered
Petitioner removed to Georgia. (Id.). On June 24, 2019, Petitioner’s counsel filed a “barebones,” unsigned application for asylum, and an accompanying motion to accept late filing.
(Id. at ¶ 18). The IJ did not consider this application. (Id.).
On June 28, 2019, Petitioner, through counsel, appealed the IJ’s order of May 29,
2019, to the Board of Immigration Appeals (“BIA”). (Id. at ¶ 19). The BIA issued a
scheduling order requiring the parties to file briefs by August 20, 2019. (Id. at ¶ 20).
Petitioner was subsequently granted an extension to September 19, 2019, but no brief was
filed by that date. (Id. at ¶¶ 20-22). Petitioner obtained new counsel in late September of
2019, and new counsel filed a brief on October 16, 2019, along with a motion asking the
BIA to accept the later filing. (Id. at ¶ 22).
On November 21, 2019, the BIA issued a decision finding that Plaintiff had been
prejudiced due to ineffective assistance of counsel and remanding the matter for further
proceedings and to provide Petitioner an opportunity to apply for asylum. (Id. at ¶ 23).
Petitioner’s original counsel moved to withdraw on February 1, 2020, claiming that
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Petitioner had failed to disclose to counsel multiple criminal convictions in Georgia and
Canada and had further withheld pertinent information about his manner of entry into the
United States. (Id. at ¶ 24).
On February 3, 2020, Petitioner and his new counsel appeared before an IJ, and an
individual calendar hearing on the merits was scheduled for March 17, 2020. (Id. at ¶ 25).
This hearing was subsequently re-scheduled for April 6, 2020, but Petitioner’s counsel
failed to appear on that date. (Id. at ¶¶ 26-27). The individual merits hearing was
ultimately held on April 13 and 27, 2020. (Id. at ¶ 28). On April 27, 2020, the IJ issued a
decision denying Petitioner’s applications for relief from removal and ordering him
removed to Georgia. (Id. at ¶ 29).
Petitioner made an emergency motion for bond based on the COVID-19 pandemic,
which was denied on May 8, 2020. (Id. at ¶ 30). On May 22, 2020, Petitioner appealed
the IJ’s decision of April 27, 2020, to the BIA. Briefing on the appeal was completed in
July 2020. (Id. at ¶ 33). The record before the Court does not reflect any further
developments as to Petitioner’s removal proceedings.
Petitioner filed his petition pro se on June 23, 2020. (Dkt. 1). Petitioner asserts
both his ongoing detention violates his right to due process and that his conditions of
confinement are unconstitutional because they expose him to an unreasonable risk of
contracting COVID-19. (Id.).
On July 17, 2020, Respondent filed a motion to dismiss Petitioner’s conditions of
confinement claim. (Dkt. 4). Petitioner filed a response to the motion to dismiss on August
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12, 2020. (Dkt. 9). Also on August 12, 2020, Respondent filed his response to the petition.
(Dkt. 7; Dkt. 8). Petitioner did not file a reply.
The federal habeas corpus statute gives district courts jurisdiction to hear
immigration-related detention cases. See 28 U.S.C. § 2241(c)(3); Demore v. Kim, 538 U.S.
510, 517-18 (2003) (holding federal courts have jurisdiction to review challenges to preremoval detention); Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding “§ 2241 habeas
corpus proceedings remain available as a forum for statutory and constitutional challenges
to post-removal-period detention” in immigration cases). District courts do not have
jurisdiction over challenges to the legality of final orders of deportation, exclusion, and
removal; jurisdiction to review such challenges rests exclusively in circuit courts. See
Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005) (“[The REAL ID Act, 119 Stat. 231,
§ 106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of deportation,
exclusion, and removal, providing instead for petitions of review . . . which circuit courts
alone can consider.”).
Due Process Challenge to Ongoing Detention
It is undisputed that Petitioner, who was apprehended and taken into custody shortly
after unlawfully crossing the border, is detained as a “certain other alien” pursuant to 8
U.S.C. § 1225(b). See St. Charles v. Barr, No. 6:20-CV-06061 EAW, __ F. Supp. 3d__,
2021 WL 218686, at *4 (W.D.N.Y. Jan. 22, 2021) (discussing detention of “certain other
aliens” under § 1225(b)). This Court recently determined, pursuant to the Supreme Court’s
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decision in Department of Homeland Sec. v. Thuraissigiam, ___U.S. ___, 140 S. Ct. 1959
(2020), that individuals in Petitioner’s position must be deemed on the threshold of entry
to the United States and thus are “not entitled to procedural protections beyond those
provided by statute.” Gonzales Garcia v. Rosen, No. 6:19-CV-06327 EAW, 2021 WL
118933, at *6 (W.D.N.Y. Jan. 13, 2021).
Petitioner’s legal position is not materially different from the petitioner in Gonzales
Garcia. As such, the Court’s holding in Gonzales Garcia mandates the conclusion that
Petitioner is not entitled to a bond hearing or to release. Petitioner has been provided with
the process to which he is statutorily entitled; this Court cannot order anything more.
Conditions of Confinement Claim
The Court further finds that Petitioner is not entitled to relief on his conditions of
confinement claim. “The Due Process Clause . . . prohibits the federal government from
being deliberately indifferent to the medical needs of civil detainees.” Coronel v. Decker,
449 F. Supp. 3d 274, 282 (S.D.N.Y. 2020). However, in Gonzales Garcia, as required by
binding Supreme Court and Second Circuit precedent, the Court determined that the rights
of an inadmissible alien on the threshold of initial entry “are determined by the procedures
established by Congress and not by the due process protections of the Fifth Amendment.”
2021 WL 118933, at *4 (quoting Guzman v. Tippy, 130 F.3d 64, 65 (2d Cir. 1997)). Thus,
there may be an argument that Petitioner cannot maintain a constitutional conditions of
confinement claim, but Respondent has not asserted that argument here.
Respondent has argued that Petitioner has failed to demonstrate deliberate
indifference, and the Court agrees. “Immigration detainees can establish a due process
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violation for unconstitutional conditions of confinement by showing that a government
official ‘knew, or should have known’ of a condition that ‘posed an excessive risk to
health,’ and failed to take appropriate action.” Basank v. Decker, 449 F. Supp. 3d 205,
214, No. 20 CIV. 2518 (AT), (S.D.N.Y. Mar. 26, 2020) (quoting Darnell v. Pineiro, 849
F.3d 17, 35 (2d Cir. 2017)). Petitioner has not made such a showing.
The record before the Court indicates that Petitioner suffers from primary
hypertension and thus has been deemed at heightened risk of severe illness or death should
he contract COVID-19. (Dkt. 11 at 2). However, the BFDF has taken appropriate steps to
mitigate his risk of contracting the virus. Petitioner is housed in a cell without a roommate.
(Dkt. 4-2 at ¶ 15). BFDF further is providing unrestricted access to soap, cleaning supplies,
and personal protective equipment to all detainees, free of charge, and all BFDF staff are
required to wear masks whenever they are in contact with any detainee. (Id. at ¶ 7). All
detainees are given the opportunity to bathe in isolation and are permitted to eat their meals
in their cells. (Id.). On this record, the Court cannot conclude that officials at the BFDF
have exhibited deliberate indifference to Petitioner’s medical needs. See Hassoun v.
Searls, 453 F. Supp. 3d 612, 623 (W.D.N.Y. 2020) (finding deliberate indifference not
established because the BFDF had taken “substantial, reasonable steps to prevent the
spread of COVID-19 to Petitioner”). The Court thus grants Respondent’s request that
Petitioner’s conditions of confinement claim be dismissed.
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For the foregoing reasons, Respondent’s motion to dismiss the conditions of
confinement claim (Dkt. 4) is granted and the petition (Dkt. 1) is further denied in its
entirety. The Clerk of Court is instructed to close this case.
ELIZABETH A. WOLFORD
United States District Judge
February 16, 2021
Rochester, New York
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