McDonald v. Searls et al

Filing 15

DECISION AND ORDER granting 10 Motion to Appoint Counsel and granting in part and denying in part 9 Amended Petition. Signed by Hon. Elizabeth A. Wolford on 04/26/2021. (CDH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
KINGSLEY JUNIOR MCDONALD,
Petitioner,
DECISION AND ORDER
v.
6:20-CV-06797 EAW
THOMAS FEELEY, in his official capacity
as Field Office Director, Buffalo Field
Office, U.S. Immigration & Customs
Enforcement, JEFFREY SEARLS, in his
official capacity as Facility Director,
Buffalo Federal Detention Facility, and
MERRICK GARLAND1, in his official
capacity as Attorney General of the United
States,
Respondents.
____________________________________
INTRODUCTION
Petitioner Kingsley Junior McDonald (“Petitioner”), an immigration detainee
represented by counsel and currently detained at the Buffalo Federal Detention Facility
(“BFDF”), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The operative
pleading is the amended petition filed on February 26, 2021. (Dkt. 9). Petitioner contends
that his rights to procedural and substantive due process have been violated and seeks
immediate release. (Id. at 30). Respondents oppose the amended petition. (Dkt. 12).

1

Merrick Garland became Attorney General of the United States on March 11, 2021,
and has been automatically substituted as a respondent pursuant to Federal Rule of Civil
Procedure 25(d).
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Petitioner has also filed a motion for appointment of counsel under the Criminal Justice
Act , 18 U.S.C. § 3006A (the “CJA”) (Dkt. 10), as to which Respondents have taken no
position (Dkt. 11).
For the reasons set forth below, the Court grants the amended petition solely to the
extent that the government is ordered to provide Petitioner with a bond hearing consistent
with the procedural protections discussed herein. The amended petition is denied without
prejudice in all other respects. Petitioner’s motion for CJA counsel is granted.
BACKGROUND
The following facts are taken from the amended petition, Respondents’ response
thereto, and the supporting documents submitted by the parties.2
Petitioner is a native and citizen of Jamaica. (Dkt. 12-1 at ¶ 5). He entered the
United States as a lawful permanent resident in 1992, when he was nine years old. (Dkt. 9

2

The administrative history of this matter is set forth in detail in the declaration of
Deportation Officer Brandon Smith (“Officer Smith”). (Dkt. 12-1). Officer Smith states
in his declaration that the facts set forth therein are based on his review of “files and
information maintained by” the Department of Homeland Security. (Id. at ¶ 2). In his
reply papers, Petitioner suggests that the information contained in Officer Smith’s
declaration is unreliable, because the only way that Officer Smith could truly know what
happened at a particular immigration hearing is “to physically obtain and then listen to the
Digital Audio Recording (‘DAR’) from the Executive Office for Immigration Review.”
(Dkt. 13 at 13). However, Petitioner presents no evidence that Officer Smith did not in
fact obtain the relevant DARs, and Petitioner’s counsel further insists that he is “not even
tangentially suggest[ing] that Officer Smith would include a mistruth within a declaration.”
(Id. at 13 n.8). Officer Smith’s declaration is sworn to under penalty of perjury. Absent
any showing by Petitioner that the information contained therein is inaccurate, the Court
rejects Petitioner’s contention that Officer Smith’s declaration is “entitled to absolutely
minimal weight if considered at all.” (Id. at 13).
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at ¶ 20). Petitioner’s wife, daughter, and three sisters are citizens of the United States.
(Id.).
In 2016, United States Immigration and Customs Enforcement (“ICE”) became
aware that Petitioner was incarcerated at the Suffolk County Jail. (Dkt. 12-1 at ¶ 5). Based
on his criminal history3, ICE suspected that Petitioner was a candidate for immigration
removal proceedings. (Id.). Immigration removal proceedings were initiated against
Petitioner on September 8, 2016, via issuance of a Notice to Appear charging Petitioner
with being subject to removal pursuant to Immigration and Nationality Act (“INA”)
§ 237(a)(2)(B)(i) as an alien convicted of a violation of a law or regulation relating to a
controlled substance, and pursuant to INA § 237(a)(2)(A)(iii) as an alien convicted of an
offense relating to the illicit trafficking in a controlled substance. (Id. at ¶ 6).
Petitioner was taken into ICE custody during a traffic stop on October 5, 2016. (Id.
at ¶ 8). Petitioner was advised that he would be detained pending an outcome in his
removal proceedings. (Id. at ¶ 9).
Petitioner appeared for his first hearing before an immigration judge (“IJ”) on
November 16, 2016. (Id. at ¶ 12). Petitioner’s counsel advised the IJ that he planned to

3

The record before the Court indicates that Petitioner has been convicted of the
following: (1) two separate instances of harassment in the second degree in 2001; (2)
disorderly conduct in 2001; (3) driving while under the influence in 2003; (4) attempted
assault in 2003; (4) “sale of marijuana” and resisting arrest in 2007; (5) resisting arrest in
2008; (6) menacing in the second degree in 2012; (7) resisting arrest in 2012; and (8)
resisting arrest in 2014. (Dkt. 12-1 at ¶ 10). At the time he has arrested by ICE officers,
Petitioner had open criminal charges for unlawfully fleeing a police officer, reckless
driving, aggravated unlicensed operation of a motor vehicle, and unlawful possession of
marijuana. (Id.). ICE records also indicate that the Suffolk County Police Department had
identified Petitioner as “a high ranking Blood [sic] gang member.” (Dkt. 12-2 at 16).
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file a motion in state court seeking to vacate petitioner’s drug conviction, thus rendering
the grounds for removal unsubstantiated. (Id.). The matter was adjourned to January 5,
2017. (Id.).
Additional charges of removability were asserted against Petitioner on December 5,
2016, charging him with being removable pursuant to INA § 237(a)(2)(A)(ii) as an alien
who has been convicted of two or more crimes involving moral turpitude not arising out a
single scheme of criminal conduct. (Id. at ¶ 13).
Petitioner appeared for his hearing on January 5, 2017, but his counsel did not
appear. (Id. at ¶ 14). “Upon further investigation, it was determined that the attorney for
[Petitioner] was not licensed to practice law.” (Id.). The IJ adjourned the hearing to
January 11, 2017, to allow Petitioner an opportunity to obtain new counsel if he wished.
(Id.). The IJ further scheduled a bond hearing for Petitioner on March 9, 2017, pursuant to
Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015). (Dkt. 12-1 at ¶ 14).
At the hearing on January 11, 2017, Petitioner appeared and requested a continuance
so that he could obtain counsel. (Id. at ¶ 15). The matter was adjourned until February 21,
2017. (Id.).
Petitioner was transferred to the custody of the Suffolk County Sheriff’s Office on
February 13, 2017, to allow for his appearance in state court criminal proceedings. (Id. at
¶ 16). Because Petitioner had been transferred to criminal custody, the immigration
proceedings against him were administratively terminated. (Id. at ¶ 17).
Petitioner was returned to ICE’s custody on June 16, 2017, and the Department of
Homeland Security (“DHS”) moved to re-calendar the immigration proceedings against
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him. (Id. at ¶ 18). Petitioner appeared for an immigration hearing on July 19, 2017, at
which time he requested an adjournment to obtain counsel. (Id. at ¶ 19). The IJ adjourned
the immigration proceedings until August 3, 2017, and scheduled a bond hearing for July
24, 2017. (Id.).
Petitioner appeared for his bond hearing on July 24, 2017, without an attorney. (Id.
at 20). He informed the IJ that he had additional evidence he wished to present, and the IJ
rescheduled the bond hearing to July 27, 2017, to allow him to do so. (Id.). Petitioner
appeared at the bond hearing on July 27, 2017, again without counsel, and presented
additional evidence and testified on his own behalf. (Id. at ¶ 21). Over ICE’s objection,
the IJ granted a further continuance to July 31, 2017, to allow Petitioner to finalize his
asylum application and present additional evidence in support of his request for bond. (Id.
at ¶ 21). Petitioner appeared again on July 31, 2017, and presented his application for
asylum and additional evidence in support of his request for bond. (Id. at ¶ 22).
Petitioner appeared without counsel for his removal hearing on August 3, 2017. (Id.
at ¶ 23). The IJ found that Petitioner was removable as charged, and scheduled a hearing
for adjudication of his application for asylum for September 29, 2017. (Id.).
The IJ issued a written order denying bond to Petitioner on August 10, 2017. (Id.
at ¶ 24). As required by Lora, the IJ placed on the government the burden of showing by
clear and convincing evidence that Petitioner was either a risk of flight or a danger to the
community. (Dkt. 12-2 at 47). The IJ found that DHS had met its burden of proof both as
to dangerousness and risk of flight, and denied Petitioner bond, without considering

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whether there were less-restrictive alternatives to detention that could mitigate these risks.
(Id. at 47-49).
On August 30, 2017, Petitioner was again transferred to the custody of the Suffolk
County Sheriff’s Office for state criminal proceedings. (Dkt. 12-1 at ¶ 25). Petitioner’s
immigration proceedings were administratively terminated a second time. (Id. at ¶ 26).
Petitioner was returned to ICE’s custody on February 2, 2018, and ICE moved to recalendar his immigration proceedings on February 6, 2018. (Id. at ¶ 27). A hearing was
scheduled for March 29, 2018. (Id. at ¶ 27).
At the hearing on March 29, 2018, Petitioner requested additional time to prepare
and to have his wife file a Form 1-130, Petition for Alien Relative. (Id. at ¶ 29). The
hearing was therefore adjourned to April 11, 2018. (Id.).
Petitioner appeared with counsel at the hearing on April 11, 2018. (Id. at ¶ 30).
Counsel requested a “lengthy continuance” to allow her to prepare. (Id.). ICE opposed the
request. (Id.). The IJ granted an adjournment to May 8, 2018, which Petitioner’s counsel
objected was too short. (Id.).
Petitioner appeared with counsel at the hearing on May 8, 2018. (Id. at ¶ 31).
Counsel advised that Petitioner’s wife would file a Form I-130 if she had the resources to
do so, and provided that IJ a copy of Petitioner’s Form I-589, Application for Asylum and
Withholding of Removal. (Id.). A hearing on Petitioner’s application was set for July 5,
2018. (Id.).
Petitioner appeared with counsel at the removal hearing on July 5, 2018, and
testified on his own behalf. (Id. at ¶ 32). His mother also gave testimony in support of his
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application. (Id.). The matter was continued to August 8, 2018, for expert testimony, but
due to an issue involving the temporary unavailability of the original IJ, it was further
adjourned to August 17, 2018. (Id. at ¶¶ 33-34). The matter was then adjourned again to
September 14, 2018. (Id. at ¶ 35).
Petitioner’s hearing continued on September 14, 2018, with the hearing of expert
testimony. (Id. at ¶ 36). The IJ reserved decision and afforded the parties the opportunity
to submit closing briefs. (Id.).
On November 5, 2018, the IJ issued a decision denying Petitioner’s requests for
relief from removal and ordering that he be removed to Jamaica. (Id. at ¶ 37). Petitioner
appealed the IJ’s decision to the Board of Immigration Appeals (the “BIA”), and his appeal
was denied on October 9, 2019. (Id. at ¶ 38). Petitioner filed a Petition for Review (“PFR”)
with the United States Court of Appeals for the Second Circuit on November 7, 2019. (Id.
at ¶ 40).
The Second Circuit granted the PFR on August 10, 2020. (Id. at ¶ 46). In particular,
the Second Circuit concluded that the IJ and BIA had “erred in finding that, although a
Jamaican gang likely specifically intends to torture McDonald, he did not establish that the
Jamaican government would likely acquiescence [sic] to his torture.” McDonald v. Barr,
823 F. App’x 13, 14-15 (2d Cir. 2020). The Second Circuit accordingly remanded the
matter to the BIA “for clarification, for additional analysis, and for a more reasoned
determination.” Id. at 15.
On or about October 19, 2020, Petitioner’s counsel “mailed the BIA a letter
requesting that they expedite the briefing schedule as more than two months had passed at
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that time since the Second Circuit remanded Petitioner’s case to the BIA.” (Dkt. 9 at ¶ 33).
However, the BIA did not issue a briefing schedule until February 9, 2021. (Id. at ¶ 34).
The record before the Court reflects that Petitioner’s case remains pending on remand
before the BIA. (Dkt. 12-1 at ¶ 47).
DISCUSSION
I.

Jurisdiction and Legal Standard
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 Ҥ 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.”).
“When a petitioner brings a habeas petition pursuant to § 2241, the petitioner ‘bears
the burden of proving that he is being held contrary to law; and because the habeas
proceeding is civil in nature, the petitioner must satisfy his burden of proof by a
preponderance of the evidence.’” Dzhabrailov v. Decker, No. 20-CV-3118 (PMH), 2020
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WL 2731966, at *3 (S.D.N.Y. May 26, 2020) (quoting Skaftouros v. United States, 667
F.3d 144, 158 (2d Cir. 2011)); see Cruz v. Decker, No. 18-CV-9948 (GBD) (OTW), 2019
WL 7572975, at *3 (S.D.N.Y. Aug. 27, 2019) (“To obtain [ ] relief [under § 2241], the
petitioner must show violation of his rights by a preponderance of the evidence.” (citing
Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997))), report and recommendation adopted,
2019 WL 6318627 (S.D.N.Y. Nov. 26, 2019).
II.

Named Respondents
As a preliminary matter, the government contends that Jeffrey J. Searls, the Officer

in Charge at the Buffalo Federal Detention Facility, is the only respondent with immediate
custody over Petitioner, and consequently the only proper respondent. (Dkt. 12-4 at 2324). The Court agrees with the government and dismisses all respondents except for Jeffrey
Searls from the instant action. See Rodriguez v. Barr, No. 6:18-cv-06757-MAT, 2019 WL
2192516, at *3 n.3 (W.D.N.Y. May 21, 2019) (“Searls is the only proper respondent in this
§ 2241 proceeding as he is the person with direct control over Petitioner’s detention.”
(citing Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“[I]n habeas challenges to present
physical confinement . . . the default rule is that the proper respondent is the warden of the
facility where the prisoner is being held[.]”))); Hassoun v. Sessions, No. 18-CV-586-FPG,
2019 WL 78984, at *7 (W.D.N.Y. Jan. 2, 2019) (“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.” (quotation omitted)); see also S.N.C. v. Sessions, 325 F. Supp. 3d
401, 407 (S.D.N.Y. 2018) (“If, on the other hand, the petition challenges a broader form of
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legal, non-physical custody, then the proper respondent is the person with legal authority
to effect that custody.”).
III.

Procedural Due Process
Petitioner argues that his continued detention is a violation of his procedural due

process rights. As set forth below, the Court agrees that Petitioner has not been afforded
procedural due process, but rejects Petitioner’s argument that the only appropriate relief is
release on conditions set by this Court. (See Dkt. 9 at ¶¶ 65-71). Instead, the Court orders
the government to provide Petitioner with a bond hearing at which: (1) the government
must demonstrate dangerousness or flight risk by clear and convincing evidence; and (2)
the IJ must consider non-bond alternatives to detention or, if setting a bond, ability to pay.
As the Second Circuit recently affirmed, unreasonably prolonged immigration
detention without appropriate procedural protections may constitute a due process
violation. Velasco Lopez v. Decker, 978 F.3d 842, 846 (2d Cir. 2020). For the reasons
previously articulated in other decisions by this Court, see, e.g., Constant v. Barr, 409 F.
Supp. 3d 159, 167-68 (W.D.N.Y. 2019), this Court agrees with the overwhelming majority
of courts in this Circuit that the multi-factor approach articulated by the court in Sajous v.
Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *1 (S.D.N.Y. May 23, 2018),
appeal withdrawn, No. 18-2591, 2019 WL 4137822 (2d Cir. May 7, 2019), and other courts
within this Circuit, is a useful tool for addressing procedural due process claims for
aliens—like Petitioner—who are detained pursuant to 8 U.S.C. § 1226(c). Those nonexclusive factors are as follows:

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(1) the length of time the petitioner has been detained; (2) the party
responsible for the delay; (3) whether the petitioner has asserted defenses to
removal; (4) whether the detention will exceed the time the petitioner spent
in prison for the crime that made him removable; (5) whether the detention
facility is meaningfully different from a penal institution for criminal
detention; (6) the nature of the crimes committed by the petitioner; and (7)
whether the petitioner’s detention is near conclusion.
Cabral v. Decker, 331 F. Supp. 3d 255, 261.
As to the first factor, Petitioner has been continuously in immigration detention
since February 2, 2018, or more than three years, and was previously in immigration
detention from October 5, 2016, to February 13, 2017, and then again from June 16, 2017,
to August 30, 2017. (See Dkt. 12-4 at 17 (Respondent acknowledges that Petitioner has
been “detained for approximately 42 months in total”)). Thus, “[t]he first and ‘most
important’ . . . factor weighs heavily in favor of granting the petition.” Bermudez Paiz v.
Decker, No. 18-CV-4759 (GHW) (BCM), 2018 WL 6928794, at *13 (S.D.N.Y. Dec. 27,
2018) (citation omitted).

“[C]ourts in this Circuit have generally been skeptical of

prolonged detention of removable immigrants, without process, lasting over six months,”
Lett v. Decker, 346 F. Supp. 3d 379, 387 (S.D.N.Y. 2018) (quoting Lopez v. Sessions, No.
18 Civ. 4189 (RWS), 2018 WL 2932726, at *14 (S.D.N.Y. June 12, 2018)), appeal filed,
No. 18-3714 (2d Cir. Dec. 11, 2018), and “courts have found detention shorter than a year
to be unreasonably prolonged as part of procedural due process analysis,” Rosado Valerio
v. Barr, No. 19-CV-519, 2019 WL 3017412, at *4 (W.D.N.Y. July 10, 2019) (collecting
cases), appeal dismissed, No. 19-2848, 2020 WL 1126526 (2d Cir. Jan. 9, 2020). There
can be no question that Petitioner’s detention has been extraordinarily lengthy.

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Respondent contends that the second factor in the analysis—which party is
responsible for the delay—undercuts a finding of an unreasonable length of detention in
Petitioner’s case because “Petitioner has been responsible for most of the delays in his
proceedings.” (Dkt. 12-4 at 20). For procedural due process claims, when “considering
whether [Petitioner] or the Government is responsible for the prolonged proceedings, the
Court may examine the record to determine whether the alien sought repeated or
unnecessary continuances, or filed frivolous claims and appeals.” Vallejo v. Decker, No.
18-CV-5649, 2018 WL 3738947, at *4 (S.D.N.Y. Aug. 7, 2018) (quotation omitted)); see
Sajous, 2018 WL 2357266, at *11 (“[A]liens who are merely gaming the system to delay
their removal should not be rewarded with a bond hearing that they would not otherwise
get under the statute.” (quoting Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469,
476 (3d Cir. 2015))). “[C]ourts should keep in mind that ‘aliens should not be punished
for pursuing avenues of relief and appeals[,]’ but evidence of bad faith delays may cut
against them.” Hernandez v. Decker, No. 18-CV-5026 (ALC), 2018 WL 3579108, at *7
(S.D.N.Y. July 25, 2018) (quotation omitted), appeal withdrawn, No. 18-2824, 2019 WL
1377025 (2d Cir. Feb. 5, 2019).
Here, the record does show that a significant portion of the delay in adjudication of
Petitioner’s removal proceedings can be attributed to requests for adjournment made by
Petitioner. However, the record does not show that Petitioner was engaging in bad faith
delay tactics. To the contrary, Petitioner’s requests for continuances were made to obtain
counsel, to gather and present evidence, and for counsel to prepare for the merits
hearing. As such, it would not be appropriate to penalize Petitioner for requesting these
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adjournments. See, e.g., Vallejo, 2018 WL 3738947, at *4; Hernandez, 2018 WL 3579108,
at *7; Sajous, 2018 WL 2357266, at *11. Nor can the Court say that Petitioner’s appeal of
the IJ’s original decision was frivolous or in bad faith—to the contrary, Petitioner was
successful in seeking to overturn that decision, and the Second Circuit’s decision made
clear that the error was a substantive one. See Hechavarria, 891 F.3d at 56 n.6 (noting the
Supreme Court has given weight to a petitioner’s decision to pursue review of a removal
order in the “context only of an immigrant who has ‘substantially prolonged his stay by
abusing the processes provided to him,’ Nken v. Holder, 556 U.S. 418, 436 (2009)—not of
an immigrant who simply made use of the statutorily permitted appeals process”). Thus,
while much of the delay in this case rests with Petitioner’s litigation strategy, the Court
cannot conclude that that strategy has been employed for purposes of creating delay, and
this factor accordingly favors Petitioner.
As for the third factor, Petitioner has asserted defenses to removal in his
immigration proceedings—namely, he seeks protection under the Convention Against
Torture. Moreover, while “[t]he Court need not inquire into the strength of [Petitioner’s]
defenses,” Sajous, 2018 WL 2357266, at *11, the Second Circuit’s grant of Petitioner’s
PFR emphasizes the non-frivolous nature of his claims. As the Second Circuit’s decision
explains, it is undisputed that a Jamaican gang likely intends to torture Petitioner and that
Petitioner “cannot safely report to police the threat posed to him by the gang that killed his
father because the Jamaican government and police force are closely linked with the gang.”
McDonald, 823 F. App’x at 15. Accordingly, this factor weighs heavily in Petitioner’s
favor. See Cabral, 331 F. Supp. 3d at 261-62 (finding the third factor weighed in
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petitioner’s favor because he asserted several defenses to his removal “including
asylum . . . and relief under the Convention Against Torture”); Perez v. Decker, No. 18CV-5279 (VEC), 2018 WL 3991497, at *5 (S.D.N.Y. Aug. 20, 2018) (“Petitioner has made
a claim for asylum that could be a defense to his removal, again tilting the scales toward
his unreviewed detention being unreasonable.”).
The fourth factor also weighs in Petitioner’s favor.

His detention has been

significantly longer than the time that he spent in prison for the crime(s) that made him
removable—as he notes in the amended petition, he was “sentenced to only 120 days in
the aggregate related to the offenses . . . underlying his deportable status.” (Dkt. 9 at ¶ 63).
Having now been detained for over 40 months in the aggregate, Petitioner’s immigration
detention exceeds his criminal custody by a factor of ten.
The fifth factor—whether the detention facility is meaningfully different from a
penal institution for criminal detention—is at best neutral, and more likely weighs in favor
of Petitioner given the facts and circumstances of this case. Respondent has submitted a
declaration describing the conditions of confinement at the BFDF as not consisting of “the
same level of restrictions typical for someone held at a prison.” (Dkt. 12-3 at ¶ 7).
However, even with the amenities detailed in that declaration, the reality is that the facility
houses individuals against their will with various restrictions on their freedom of
movement. Moreover, Respondent acknowledges that “many programs and opportunities”
ordinarily available at the BFDF “have been limited as a result of the COVID-19
pandemic.” (Dkt. 12-4 at 19 n.8). Petitioner has also submitted evidence to the Court that
after the amended petition was filed, he was placed in “medical isolation” after he “refused
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9 or 10 meals while participating in a hunger strike.” (Dkt. 13-1 at ¶ 4). According to
Petitioner, this “medical isolation” consists of being placed on the solitary confinement
unit, and the staff at the BFDF are “using solitary protocols for [him].” (Id. at ¶ 5). While
the Court has no information regarding how long Petitioner will be held in “medical
isolation,” the conditions he claims to currently be subject to are not meaningfully different
from the conditions at a penal institution.
The sixth factor, the nature of the crime(s) Petitioner was convicted of, weighs
against Petitioner. Certain of Petitioner’s criminal convictions were for crimes indicative
of dangerousness, including harassment, attempted assault, menacing, and driving under
the influence. See Constant, 409 F. Supp. 3d at 171 (finding sixth factor weighed against
the petitioner where he had pleaded guilty to committing the violent crimes of
manslaughter and attempted assault, as well as trafficking firearms). Petitioner’s several
convictions for resisting arrest are also arguably indicative of a disregard for the legal
system. However, the Court notes that while past criminal convictions are critical to
evaluating a petitioner’s risk of danger to the community and of flight, “[t]he process due
even to excludable aliens requires an opportunity for an evaluation of the individual’s
current threat to the community and his risk of flight.” Hechavarria v. Whitaker, 358 F.
Supp. 3d 227, 240 (W.D.N.Y. 2019) (quoting Chi Thon Ngo v. I.N.S., 192 F.3d 390, 398
(3d Cir. 1999)).
The final factor, whether Petitioner’s detention is near conclusion, weighs in
Petitioner’s favor. It will likely be several months before the BIA issues a new decision as

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ordered by the Second Circuit. Moreover, if the BIA again rules against Petitioner, he will
then have the opportunity to file a new PFR, resulting in an even longer delay.
The Court acknowledges that Petitioner did have a bond hearing in 2017, and that
the burden at that hearing was nominally on the government to prove risk of flight and/or
dangerousness by clear and convincing evidence. However, the IJ in 2017 did not consider
whether there were less-restrictive alternatives to detention that could mitigate any risk
posed by Petitioner, which this Court has previously held is required for a Constitutionally
adequate bond hearing. See, e.g., Blandon v. Barr, 434 F. Supp. 3d 30, 40 (W.D.N.Y.
2020). Moreover, it has been nearly four years since that initial bond hearing, and there
have been material changes in the status of Petitioner’s claims (including the Second
Circuit’s grant of his PFR). See Thomas v. Barr, No. 20-CV-6362-FPG, 2020 WL
5760823, at *3 (W.D.N.Y. Sept. 28, 2020) (ordering a subsequent bond hearing when the
petitioner’s “detention since the previous bond hearing has been unreasonably prolonged”).
Thus, on balance and particularly in view of the length of the detention and the
circumstances surrounding that detention, the Court finds that Petitioner’s continued
detention without a procedurally proper bond hearing is constitutionally unjustified. See
Arce-Ipanaque v. Decker, No. 19-CV-1076 (JMF), 2019 WL 2136727, at *2 (S.D.N.Y.
May 15, 2019) (“At bottom, the minimal burden that a bond hearing would place on the
Government is far outweighed by [the petitioner]’s interest in ensuring that his continued
detention is justified.” (quotation and original alteration omitted)). Due process requires
that Petitioner receive a bond hearing where the government must demonstrate
dangerousness or flight risk by clear and convincing evidence, where the IJ considers
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whether less-restrictive alternatives to detention could mitigate that risk, and where the IJ
considers ability to pay and alternative conditions of release in setting bond. See Velasco
Lopez, 978 F.3d at 856-57; Abdi v. Nielsen, 287 F. Supp. 3d 327, 335-39 (W.D.N.Y. 2018);
see also Hernandez v. Sessions, 872 F.3d 976, 991 & n.4 (9th Cir. 2017) (“A bond
determination that does not include consideration of financial circumstances and
alternative release conditions is unlikely to result in a bond amount that is reasonably
related to the government’s legitimate interests.”); Arce-Ipanaque, 2019 WL 2136727, at
*3 (collecting cases); Lett, 346 F. Supp. 3d at 389 (“The Court agrees with Petitioner that
an immigration bond hearing that fails to consider ability to pay or alternative conditions
of release is constitutionally inadequate.”); Hernandez, 2018 WL 3579108, at *12 (“[T]he
Due Process Clause requires than an IJ consider ability to pay and alternative conditions of
release in setting bond.” (quotation and alteration omitted)).
However, the Court rejects Petitioner’s contention that this Court should consider
in the first instance whether he should be released and on what conditions. “[D]istrict
courts rightly favor conditional grants [of habeas corpus relief], which give the executive
branch the opportunity to cure its constitutional errors and which appropriately recognize
comity among the co-equal branches.” Hechavarria, 358 F. Supp. 3d at 234–35 (W.D.N.Y.
2019) (quotations and original alterations omitted). While it is true that the IJs at the
Batavia Immigration Court have not always complied with this Court’s orders with respect
to the procedures to be applied at bond hearings, the Court does not find it appropriate to
simply assume that they will not do so in this case. Of course, in the event the IJ does not

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follow the procedures set forth herein, Petitioner may bring a motion to enforce the Court’s
ruling, and may further seek immediate release at that point in time.
IV.

Substantive Due Process
Petitioner also claims that the length of time he has been detained, and the

purportedly unsafe conditions in which he is being held, constitute a violation of his Fifth
Amendment right to substantive due process. “In order to establish a violation of a right
to substantive due process, a plaintiff must demonstrate not only government action but
also that the government action was so ‘egregious, so outrageous, that it may fairly be said
to shock the contemporary conscience.’” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir.
2005) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)).
“Immigration detainees can establish a due process 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 (S.D.N.Y. 2020) (quoting Darnell v.
Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)); see also Coronel v. Decker, 449 F. Supp. 3d 274,
282 (S.D.N.Y. 2020) (“The Due Process Clause . . . prohibits the federal government from
being deliberately indifferent to the medical needs of civil detainees.”). As the Coronel
court explained:
[A] petitioner establishes a claim for deliberate indifference by proving that
the defendant-official acted intentionally to impose the alleged condition, or
recklessly failed to act with reasonable care to mitigate the risk that the
condition posed to the pretrial detainee even though the defendant-official
knew, or should have known, that the condition posed an excessive risk to
health or safety.
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449 F. Supp. 3d at 284 (quotation and original alteration omitted).
To the extent Petitioner is contending that the length of his detention alone
constitutes a substantive due process violation (see Dkt. 9 at ¶ 40 (“[T]he time has come
that Mr. McDonald’s detention pending removal, particularly considering the cause of the
delay, violates due process regardless of the procedural protections afforded.”), that
contention is inconsistent with well-established case law. As the Second Circuit explained
in Sanusi v. I.N.S., 100 F. App’x 49 (2d Cir. 2004), detention—even for an extended period
of time—that is “prolonged primarily by [a petitioner’s] pursuit of final judicial review of
his claims” does not “in itself violate[] [substantive] due process.” Id. at 51 (finding that
six-year detention, while “extremely regrettable,” did not constitute substantive due
process violation).
The Court further finds that Petitioner has not established a substantive due process
violation based on the conditions of his confinement. The crux of Petitioner’s argument in
this regard is that he is in “extreme risk of infection by COVID-19” while detained at the
BFDF. (Dkt. 9 at ¶ 49). However, Petitioner does not claim that he has a medical condition
that places him at high risk of serious illness should he contract COVID-19. Courts that
have found that petitioners suffer from a serious medical need for purposes of the deliberate
indifference analysis in the context of the COVID-19 pandemic have done so only for
detainees suffering from conditions recognized by the Centers for Disease Control and
Prevention (“CDC”) as placing individuals at higher risk of severe illness. See, e.g.,
Ramsundar v. Wolf, No. 20-CV-361, 2020 WL 1986923, at *2 (W.D.N.Y. Apr. 27, 2020)
(“Because petitioners . . . did not meet the CDC criteria for COVID-19 vulnerability, the
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Court found that the respondents were not acting with deliberate indifference to their
medical needs and consequently denied their motions.”), amended, No. 20-CV-361, 2020
WL 2557832 (W.D.N.Y. May 20, 2020); Basank, 449 F. Supp. 3d at 211 (identifying
health and safety risks posed by COVID-19 based on CDC guidance); Coronel, 449 F.
Supp. 3d at 279 (finding the petitioners, who had major organs partially removed, type 2
diabetes, obesity, and hypertension, were “particularly vulnerable to severe illness or death
if infected by COVID-19”). Because Petitioner has not made such a showing, he has not
demonstrated deliberate indifference to a serious medical need, and his conditions of
confinement claim fails.
To the extent Petitioner is attempting to assert a conditions of confinement claim
based on his recent placement into “medical isolation” (which he claims is really solitary
confinement), the Court lacks sufficient evidence to find in Petitioner’s favor. In particular,
Petitioner has provided the Court no information regarding how long his “medical
isolation” is to last or the nature or purpose of the hunger strike that purportedly
precipitated his change in status. On this scant record, Petitioner has not satisfied his
burden of demonstrating a violation of his rights.
V.

Request for Appointment of CJA Counsel
The Court turns finally to Petitioner’s request for appointment of counsel pursuant

to the CJA. (Dkt. 10). As noted above, Respondent takes no position on Petitioner’s
motion. (Dkt. 11).
“The CJA provides in relevant part that ‘[w]henever the United States magistrate or
the court determines that the interests of justice so require, representation may be provided
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for any financially eligible person who . . . is seeking relief under section 2241, 2254, or
2255 of title 28.’” Thomas v. Searls, No. 20-CV-6362-FPG, 2021 WL 358129, at *3
(W.D.N.Y. Jan. 25, 2021) (quoting 18 U.S.C. § 3006A(a)(2)(B) and alterations in original).
Accordingly, “the plain language of the CJA states that it applies to petitions for a writ of
habeas corpus under Section 2241.” Id. Further, “this District’s CJA Plan provides that
the plan may cover work performed prior to appointment.” Id. at *5 (citing W.D.N.Y. CJA
Plan § V(D) at 7-8 (available online at https://www.nywd.uscourts.gov/standing-ordersand-district-plans/03-14-19 Revised CJA Plan Final.pdf)).
Here, Petitioner is seeking relief under § 2241. Further, he has submitted a financial
statement confirming that he is financially eligible for appointment of CJA counsel,
inasmuch as he is indigent. (Dkt. 10-1); see also 18 U.S.C. § 3006A(a). Accordingly, the
question facing the Court is whether the interests of justice warrant appointment of counsel.
In making such an assessment, “courts in this circuit have looked to such factors as the
petitioner’s likelihood of success on the merits, the complexity of the legal issues raised by
the petition, and the petitioner’s ability to investigate and present the case.” Gonzalez v.
New York, No. 05-CV-9028, 2006 WL 728482, at *1 (S.D.N.Y. Mar. 21, 2006) (quotation
omitted).
The Court finds that the interests of justice warrant appointment of counsel in this
claim. Petitioner has presented a meritorious claim that his procedural due process rights
have been violated. The legal issues were more complex than those presented by an
ordinary immigration habeas petition, because Petitioner had a bond hearing in 2017.
Further, counsel’s work in this case aided both Petitioner and the Court in presenting the
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issues for decision, as is evident by comparing the original, uncounseled petition (Dkt. 1)
with the amended petition (Dkt. 9). Accordingly the Court will grant Petitioner’s motion
for appointment of CJA counsel, retroactive to December 11, 2020, the date on which
counsel first undertook work in this matter. (See Dkt. 10 at 11-12).
CONCLUSION
For the foregoing reasons, the Court: (1) dismisses all respondents except for
Respondent Jeffrey Searls from the instant action; (2) grants the amended petition (Dkt. 9)
in part to the extent that the Court orders the government to afford Petitioner an
individualized bond hearing consistent with the procedures outlined in this Decision and
Order within 14 days of its entry; (3) denies the amended petition without prejudice in all
other respects; and (4) grants Petitioner’s motion for appointment of CJA counsel and
appoints Daniel E. Jackson, Esq. as counsel for Petitioner in connection with the instant
action under the CJA, nunc pro tunc as of December 11, 2020.
If Petitioner requests a continuance that results in a bond hearing date outside the
14-day deadline set forth above, such a continuance will be in compliance with the instant
Decision and Order, as long as the new date falls within a reasonable time period.
Respondent is directed to file a status update with the Court within three (3) days of the
date of a decision concerning Petitioner’s bond hearing regarding the outcome of the
hearing. The Court denies Petitioner’s request for immediate release. The Clerk of Court
is directed to enter judgment and close this case.

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SO ORDERED.
_______________________________
ELIZABETH A. WOLFORD
United States District Judge
Dated: April 26, 2021
Rochester, New York

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