Opinion
22-CV-3063 (VSB) (BCM)
07-06-2023
SALVADOR DIAZ, Petitioner, v. KENNETH GENALO, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HON. VERNON S.
BRODERICK
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
Petitioner Salvador Diaz has been a lawful permanent resident of the United States for more than thirty years. For the past two years - since July 10, 2021 - Diaz has been detained without a bond hearing, pursuant to 8 U.S.C. § 1226(c), pending the outcome of his removal proceedings, which are predicated on crimes that he committed in 2012 and 2018. On January 23, 2023, the Board of Immigration Appeals (BIA) sustained petitioner's appeal from the June 6, 2022 decision of an Immigration Judge (IJ) rejecting his applications for relief from removal. On remand, the IJ once again ruled against petitioner, prompting another appeal, which remains pending.
In this Court, Diaz petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Arguing that his lengthy detention without a bond hearing violates the Due Process Clause, he asks this Court to require respondents to give him such a hearing, or, in the alternative, to use its own inherent power to release him on bond. For the reasons that follow, I recommend that the petition be granted to the extent that respondents be required to provide petitioner a prompt bond hearing, at which the government must bear the burden of justifying his continued detention.
The Verified Amended Petition (Pet.) (Dkt. 15), dated May 11, 2022, names three respondents: Thomas Decker, who was then the Director of the New York Field Office of United States Immigration and Customs Enforcement (ICE); Alejandro Mayorkas, the Secretary of Homeland Security; and Merrick Garland, the Attorney General of the United States. Pet. ¶¶ 16-18. Pursuant to Fed.R.Civ.P. 25(d), the Clerk of Court is respectfully directed to substitute Kenneth Genalo -the current Acting Director of the New York Field Office - for Thomas Decker as a defendant.
I. FACTUAL BACKGROUND
Petitioner is a citizen of the Dominican Republic. See Notice to Appear (Dkt. 15-2) at 1; Schultz Decl. (Dkt. 20) ¶ 2.He was born in 1972, see Rap Sheet (Dkt. 19-1) at ECF p. 1, and was admitted to the United States as a lawful permanent resident on June 1, 1992, at age 19. See Pet. ¶ 19; Joseph Decl. (Dkt. 15-3) ¶ 4, at 2.Petitioner has suffered from mental illness since childhood, and has been diagnosed with mild intellectual disability, schizoaffective disorder, social phobia, generalized anxiety disorder, and alcohol and cocaine use disorders (both in remission). Pet. ¶ 20; Pet. Ex. D (Garcia Ltr.) (Dkt. 11) at 2-3. In addition, he has a history of chest pain and other symptoms suggestive of heart disease. Pet. Ex. E (Dkt. 12) (Ucik St.) at 2.
Christopher H. Schultz is an ICE Deportation Officer. Schultz Decl. ¶ 1. His declaration is based on a review of petitioner's administrative file and other records. Id. ¶ 2.
Amy Joseph, an attorney in the immigration practice at The Bronx Defenders, represents petitioner in his removal proceedings. Joseph Decl. ¶ 1-2.
Enmanuel Garcia, M.S.W., is a social worker in the immigration practice at The Bronx Defenders. Garcia Ltr. at 1. Garcia met with petitioner a number of times during his detention and reviewed his mental health records. Id. at 1-2.
Dr. Laura Ucik, a family medicine physician, and Alyssa Sinko, a medical student, reviewed petitioner's medical records at the request of The Bronx Defenders. Ucik St. at 1.
A. Petitioner's Criminal History, Arrest, and Detention
Since arriving in the United States, petitioner has amassed a substantial criminal history. See Rap Sheet at ECF pp. 1-20. As relevant here, on September 14, 2012, petitioner was convicted upon a plea of guilty to assault in the third degree and criminal possession of a weapon, both Class A misdemeanors, and was given a conditional discharge, probation, and a three-year order of protection. See Schultz Decl. ¶ 6(iv); Joseph Decl. ¶ 6; Rap Sheet at ECF pp. 8-9. On October 18, 2018, he was convicted upon a plea of guilty to attempted assault in the second degree, a Class E felony, and was sentenced to time served (which according to his counsel was "about five months") and five years of probation. See Schultz Decl. ¶ 6(vi); Joseph Decl. ¶ 6; Rap Sheet at ECF p. 5. On July 9, 2021, he pled guilty to assault in the third degree, a class A misdemeanor, and was sentenced to a term of imprisonment of 364 days. See Schultz Decl. ¶ 6(vii); Joseph Decl. ¶ 6.
In addition, on February 26, 1997, petitioner was convicted upon a plea of guilty to menacing in the second degree, see Schultz Decl. ¶ 6((i); Joseph Decl. ¶ 6; Rap Sheet at ECF p. 15; on May 24, 1999, he was convicted upon a plea of guilty to resisting arrest, see Joseph Decl. ¶ 6; Rap Sheet at ECF p. 12; and on December 3, 1999, he was convicted upon a plea of guilty to assault in the third degree. See Schultz Decl. ¶ 6(ii); Joseph Decl. ¶ 6; Rap Sheet at ECF p. 10. He was also twice arrested, detained, and resentenced for violating probation. See Schultz Decl. ¶¶ 6(v); Joseph Decl. ¶ 6; Rap Sheet at ECF pp. 5, 8.
On July 10, 2021, ICE officers arrested petitioner at Rikers Island, where he was being held by the New York City Department of Corrections, and charged him as removable due to his status as a noncitizen who, after admission, was "convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct[.]" 8 U.S.C. § 1227(a)(2)(A)(ii). See Not. to Appear at ECF pp. 1, 4 (listing petitioner's convictions in 2012 and 2018); Schultz Decl. ¶ 7. ICE determined that petitioner was subject to mandatory detention pursuant to § 236(c) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1226(c). See Not. of Custody Det. (Dkt. 19-7) at ECF p. 3. Section 236(c) provides that "[t]he Attorney General shall take into custody any alien who . . . is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii)[.]" 8 U.S.C. § 1226(c)(1)(B). Petitioner was detained at the Hudson County Jail in Kearny, New Jersey until October 13, 2021, when he was transferred to the Orange County Correctional Facility (OCCF) in Goshen, New York. See Joseph Decl. ¶ 5; Schultz Decl. ¶ 3; Not. to Appear at ECF p. 1.
B. Petitioner's Immigration Proceedings
On July 11, 2021, ICE commenced petitioner's removal proceedings by filing the Notice to Appear with the Executive Office for Immigration Review (EOIR). See Schultz Decl. ¶ 9. On July 19, 2021, petitioner appeared pro se at his first master calendar hearing before an IJ, who granted an adjournment so that he could retain an attorney. See Joseph Decl. ¶ 8; Schultz Decl. ¶ 10. On August 2, 2021, petitioner appeared at his second master calendar hearing with his pro bono immigration attorney, who had just received his file, and the IJ granted a second adjournment to allow counsel time to prepare. See Joseph Decl. ¶ 9; Schultz Decl. ¶ 11. On August 16, 2021, petitioner appeared for his third master calendar hearing, during which he admitted the allegations against him and conceded the charge of removability. See Joseph Decl. ¶ 10; Schultz Decl. ¶ 12. The IJ then adjourned proceedings once again to allow petitioner to prepare applications for relief from removal. See Joseph Decl. ¶ 10; Schultz Decl. ¶ 12.
Shortly before petitioner's fourth master calendar hearing on September 7, 2021, his counsel submitted applications for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3)(A) and the Convention Against Torture (CAT), and deferral of removal under the CAT, "based on his mental health, intellectual disability and status as a criminal deportee," Joseph Decl. ¶ 12, as well as an application for cancellation of removal. See id.; Schultz Decl. ¶ 13. At the September 7 hearing, counsel also raised concerns about petitioner's competency to proceed and requested a fourth adjournment in order to retain an expert to conduct a psychological and cognitive evaluation. See Joseph Decl. ¶ 12; Schultz Decl. ¶ 13. The IJ granted a one-week adjournment for this purpose. See Joseph Decl. ¶ 12; Schultz Decl. ¶ 13. At petitioner's fifth master calendar hearing on September 14, 2021, counsel submitted a letter from a mental health expert and requested another adjournment to allow the expert to conduct a competency evaluation, which was scheduled for October 4, 2021. Joseph Decl. ¶ 13; Schultz Decl. ¶ 14. The IJ granted the request and adjourned the case to November 1, 2021. See Joseph Decl. ¶ 13; Schultz Decl. ¶ 14.
The parties supply conflicting information as to what occurred at the master calendar hearing on November 1, 2021. Compare Schultz Decl. ¶ 15 (attesting that petitioner appeared and the IJ continued the case "so that Diaz's counsel could submit the curriculum vitae of the expert who wrote the report and discuss potential procedural safeguards for the immigration proceedings with ICE"), with Joseph Decl. ¶ 15 (attesting that petitioner's counsel "filed a motion to schedule a competency hearing on November 1st" and the IJ "adjourned until November 9th so the parties could confer"). The parties agree, though, that petitioner appeared at another master calendar hearing on November 9, 2021, at which point the IJ scheduled a competency hearing to take place approximately three months later, on February 8, 2022. See Joseph Decl. ¶ 16; Schultz Decl. ¶ 16. The IJ did not offer any dates prior to February 2022. See Joseph Decl. ¶ 16.
At the competency hearing, the government stipulated that petitioner was not competent for purposes of his removal proceedings. See Joseph Decl. ¶ 18; Schultz Decl. ¶ 17. However, the IJ denied petitioner's request to terminate or administratively close those proceedings, concluding that his rights could be protected by safeguards such as extra time for him to answer questions, permission for his counsel to provide "probes and leads," a prohibition on ICE cross-examining him in an aggressive or threatening manner, and 10-minute breaks as needed by petitioner. See Joseph Decl. ¶ 19; Schultz Decl. ¶ 17. The IJ then scheduled petitioner's merits hearing for March 17, 2022. See Joseph Decl. ¶ 19; Schultz Decl. ¶ 17.
On March 17, 2022, the IJ adjourned the case until March 22, 2022 because, due to "internal problems with the EOIR filing system," he had not received petitioner's briefing. Joseph Decl. ¶ 22. At the continued merits hearing on March 22, 2022, the IJ ruled that petitioner's "multiple menacing and assault convictions constituted particularly serious crimes pursuant to 8 U.S.C. 1158(b)(2)(B)(i) and 8 U.S.C. 1231(b)(3)(B)," Schultz Decl. ¶ 19, such that his only ground for relief from removal was his deferral application under the CAT. Id.; see also Joseph Decl. ¶ 23. The IJ once more adjourned the merits hearing, to May 3, 2022. See Schultz Decl. ¶ 19.
On May 3, 2022, petitioner appeared, but the IJ was unable to locate the file and adjourned the hearing to June 6, 2022. See Schultz Decl. ¶ 22. On that date, "[t]he immigration court denied Mr. Diaz's applications for relief and ordered him removed." Resp. Ltr dated June 9, 2022 (Dkt. 28). Petitioner then "timely filed a Notice of Appeal of the Immigration Judge's decision with the Board of Immigration Appeals (BIA) on June 27, 2022." Pet. Ltr dated June 29, 2022 (Dkt. 29).
On January 3, 2023, the BIA sustained petitioner's appeal. See Resp. Ltr. dated January 11, 2023 (Dkt. 33) Ex. 1 (BIA Decision) at 5.The BIA concluded that remand was warranted on three separate grounds. First, the BIA agreed with petitioner that the IJ's "particularly serious crime" analysis (underlying his determination that petitioner's only ground for deferral of removal was under the CAT) was "embedded in the transcript of the proceedings," and thus "inadequate for our appellate review" in the absence of "conclusive findings in a decision." BIA Decision at 1-2. Second, the BIA held that the IJ "erred as a matter of law" by failing to apply Matter of B-Z-R, 28 I. & N. Dec. 563 (A.G. 2022), in adjudicating the "particularly serious crime issue." Id. at 2. The BIA further noted that petitioner's 2018 conviction (for attempted second degree assault) was the "only conviction pertinent to the particularly serious crime issue[.]" Id. at 3. Third, the BIA agreed with petitioner that the IJ "mischaracterized his claim of torture," which was that he "feared torture deriving from his mental health disorders by the public and police while at liberty, staff at mental health institutions, and guards and other prison inmates in the Dominican Republic." Id. The BIA instructed the IJ, on remand, to "consider all documentary evidence relevant to country conditions regarding individuals with mental health issues," to explain his weighing of the expert opinion on this point, and to evaluate the role of Dominican "government officials" with regard to the harm that petitioner feared. Id. at 3-4.
According to the BIA, the IJ pretermitted petitioner's applications for withholding of removal under § 1231(b)(3)(A) and the CAT and denied his application for deferral of removal under the CAT, because "he did not establish that it is more likely than not that he will be tortured by or with the consent or acquiescence of a public official or person acting in an official capacity." See BIA Decision at 1, 2.
The BIA rejected petitioner's claim that the IJ erred in denying administrative closure of the proceedings as a result of his competency finding, noting that IJs have discretion to determine which safeguards are appropriate in that situation. BIA Dec. at 4. The BIA did not reach petitioner's other arguments. Id.
On January 30, 2023, the IJ again "denied petitioner's application" (presumably his application for deferral of withholding under the CAT), "without holding a hearing." Pet. Ltr. dated May 4, 2023 (Dkt. 34) (5/4/23 Pet. Ltr.) at 2. Petitioner has appealed that decision to the BIA. Id. Petitioner reports that he filed his brief "just last week," that is, the week of April 24, 2023, and "[t]he government did not file a brief in opposition." Id.
C. Petitioner's Health
The parties agree that petitioner has been diagnosed with "severe mental illness," which was largely untreated in the community, and that prior to his ICE detention he had a history of auditory hallucinations and at least one suicide attempt. Garcia Ltr. at 2, 5; see also Kaye Decl. (Dkt. 21) ¶ 11. He also has a history of substance abuse. See Garcia Ltr. at 2; Kaye Decl. ¶ 4. Kaye attaches petitioner's medical records from the OCCF, Kaye Decl. Exs. 1-2, which show that he was screened, assessed, evaluated, or examined by mental health professionals 12 times during his first ten months of detention (through May 18, 2022). See id. ¶¶ 10-11, 13-18, 20-22, 24, 26. A treatment plan was created for him, including psychotropic medications and monthly medication management visits with a psychiatrist, see id. ¶¶ 11, 23, and that he was generally compliant with his medication regime, see id. ¶¶ 21-23, 26, which helped in "effectively managing his mental health symptoms." Id. ¶ 23. Kaye opines, on this basis, that Wellpath "has provided competent mental health care to petitioner" and is equipped to continue doing so. Id. ¶ 5. Kaye also notes that petitioner was prescribed medication for high blood pressure and allergies. See id. ¶ 16.
Nicole Kaye, L.C.S.W., is the Mental Health Director of Wellpath Correctional Mental Health Services, which "administers all health care services for detainees" at the OCCF. Kaye Decl. ¶ 1.
Garcia agrees that petitioner "feels better when taking his medication," Garcia Ltr. at 2, and acknowledges that he is "receiving treatment now," id. at 5, but opines that the "stresses of detention have also exacerbated his other mental health symptoms, specifically his feelings of depression." Id. Garcia adds that medication is "only part of the necessary treatment" for petitioner and states that he requires "other outpatient services," including therapy and supportive housing, "which would only be available to him if he is released." Id. Dr. Ucik states that petitioner's medical records are suggestive of heart disease, such that he should see a cardiologist "to work up a possible cardiac condition." Ucik St. at 2. She adds that his psychiatric disorders make him a "complex case to treat" and recommends that "he be released in order to be properly treated." Id.
II. PROCEDURAL BACKGROUND
Petitioner filed this action on April 13, 2022, under the name "J.D.," together with a motion for leave to proceed anonymously. (Dkts. 1, 2.) On April 15, 2021, the Hon. Paul G. Gardephe, United States District Judge, referred the case to me (Dkt. 5), and on April 27, 2022, I denied petitioner's motion to proceed anonymously. See S.D. v. Decker, 2022 WL 1239589, at *3 (S.D.N.Y. Apr. 27, 2022).
On May 4, 2022, petitioner sought leave to file the Garcia letter and the Ucik statement under seal because they discuss his mental and physical health in detail. (Dkt. 10.) I granted the motion the next day (Dkt. 13), and on May 11, 2022, petitioner filed his amended habeas petition on the public docket, using his full name. At the same time, he filed the Garcia letter and the Ucik statement under seal.
On May 18, 2022, respondents filed their papers in opposition to the petition, including a memorandum of law (Resp. Mem.) (Dkt. 18), the Schultz declaration, and the Kaye declaration, together with a request (which I granted) that the latter be filed under seal because it too discusses petitioner's mental health in detail. (Dkts. 16, 17.)
On May 25, 2022, petitioner filed his reply brief (Pet. Reply Mem.) (Dkt. 25). Thereafter, the parties filed a series of letters updating the Court on the progress of petitioner's removal proceedings, culminating in petitioner's May 4, 2023 letter advising the Court that the IJ had once again ruled against him and he had once again appealed to the BIA. 5/4/23 Pet. Ltr. at 2.
III. ANALYSIS
A. Legal Standards
It is well-established that noncitizens, like citizens, "are entitled to the privilege of habeas corpus to challenge the legality of their detention." Boumediene v. Bush, 553 U.S. 723, 771 (2008). The writ may be used both to "evaluat[e] the lawfulness of detention when it is first imposed" and to "challenge whether, at some point, an ongoing detention has become unlawful." Velasco Lopez v. Decker, 978 F.3d 842, 850 (2d Cir. 2020). This Court therefore has jurisdiction to hear petitioner's challenge to his ongoing immigration detention. See Demore v. Kim, 538 U.S. 510, 517 (2003) ("the federal courts have jurisdiction to review a constitutional challenge to [8 U.S.C.] § 1226(c)"); Hernandez v. Decker, 2018 WL 3579108, at *3 (S.D.N.Y. July 25, 2018) (district court had jurisdiction under 28 U.S.C. § 2241 to hear petitioner's claim that his detention under § 1226(c) had become unreasonably prolonged).
It is equally "well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings," Demore, 538 U.S. at 523 (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)). However, the detention of a noncitizen during removal proceedings is "a constitutionally valid aspect of the deportation process." Id. Moreover, although most aliens are entitled to bond hearings during their removal proceedings, see 8 U.S.C. § 1226(a)(2), the INA makes no such provision for "criminal aliens," including those who - like petitioner - are deportable because they have been convicted of "crimes involving moral turpitude." 8 U.S.C. §§ 1226(c)(1)(B), 1227(a)(2)(A)(ii). To the contrary: 8 U.S.C. § 1226(c)(1) states that the Attorney General "shall" take such aliens into custody and may release them, during the pendency of their removal proceedings, only under narrow circumstances not relevant here.
"The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of Title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding." 8 U.S.C. § 1226(c)(2). Thus, "detention without a bail hearing under section 1226(c) is mandatory unless DHS determines that an alien falls within a narrow witness-protection exception not applicable here." Lora v. Shanahan, 804 F.3d 601, 608-09 (2d Cir. 2015), cert. granted, judgment vacated on other grounds, 138 S.Ct. 1260 (2018).
In Demore, the Supreme Court upheld the facial constitutionality of § 1226(c) against a due process challenge brought by a lawful permanent resident who - like petitioner- was convicted of crimes of moral turpitude and then detained without bond while awaiting his removal hearing. Demore was held for approximately six months before the district court granted his habeas petition, ruling that "§ 1226(c)'s requirement of mandatory detention for certain criminal aliens was unconstitutional." 538 U.S. at 514-15. The Ninth Circuit affirmed, id. at 515, holding that "§ 1226(c) violates substantive due process as applied to respondent because he is a permanent resident alien," the "most favored category of aliens," id. at 515, but the Supreme Court reversed, holding that the detention of "a criminal alien who has conceded that he is deportable, for the limited period of his removal proceedings," is "a constitutionally permissible part of that process." Id. at 530. Chief Justice Rehnquist, writing for the Court, held that Congress was "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," id. at 513, and (relying on statistics furnished by the government) repeatedly emphasized the brevity of the period during which such aliens were subject to mandatory detention: "[D]etention . . . 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. The Court concluded that Congress may constitutionally "require that persons such as respondent be detained for the brief period necessary for their removal proceedings." Id. at 513; see also id. at 526 ("the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings").
In a concurring opinion, Justice Kennedy suggested that § 1226(c) could still be vulnerable to an as-applied challenge if the period of detention proved to be longer than the majority anticipated: "[S]ince the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified." Demore, 538 U.S. at 532-33 (Kennedy, J. concurring).
In 2015, the Second Circuit - joining the Ninth - held that "in order to avoid significant constitutional concerns surrounding the application of section 1226(c), it must be read to contain an implicit temporal limitation," Lora, 804 F.3d at 606, and set that limit at six months. Id.; see also id. at 616 ("[I]in order to avoid the constitutional concerns raised by indefinite detention, an immigrant detained pursuant to section 1226(c) must be afforded a bail hearing before an immigration judge within six months of his or her detention."). In reaching its decision, the Lora court relied on the language in Demore "emphasiz[ing] that, for detention under the statute to be reasonable, it must be for a brief period of time," id. at 614, and found further support for its conclusion in Justice Kennedy's concurrence, in which he reasoned that “[w]ere there to be an unreasonable delay by [ICE] in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or protect against risk of flight or dangerousness, but to incarcerate for other reasons.” Id. (quoting Demore, 538 U.S. at 532-33 (Kennedy, J., concurring)) (second alteration supplied).
After Lora was decided, ICE officials "routinely acquiesced to bail hearings before an immigration judge within six months of detention." Sajous v. Decker, 2018 WL 2357266, at *2 (S.D.N.Y. May 23, 2018). However, in 2018, the Supreme Court held in Jennings v. Rodriguez, 138 S.Ct. 830 (2018), that § 1226(c) could not be read to contain an implicit six-month limitation on detention without bond, because the statute "does not on its face limit the length of the detention it authorizes." Id. at 846. Rather, as Justice Alito explained, the express language of § 1226(c), read together with § 1226(a), "makes clear that detention of aliens within its scope must continue 'pending a decision on whether the alien is to be removed from the United States.'" Id. (quoting § 1226(a)). Consequently, it is now settled that "inadmissible or deportable 'criminal aliens,' who are detained pursuant to 8 U.S.C. § 1226(c), have no statutory right to a bond hearing." Bermudez Paiz v. Decker, 2018 WL 6928794, at *5 (S.D.N.Y. Dec. 27, 2018) (emphasis added).
This does not mean, however, that such aliens have no constitutional right to a bond hearing when their detention becomes "prolonged." In Jennings, the Court expressly declined to reach that question, see 138 S.Ct. at 839, 851. Nor has the Second Circuit revisited it.Beginning shortly after Jennings was decided, however, the district courts within our Circuit developed a consensus that "the reasoning of Lora remains strong persuasive authority," Sajous, 2018 WL 2357266, at *7, and thus that "prolonged detention under § 1226(c) without providing an alien a bond hearing will - at some point - violate the right to due process." Id. at *8. Accord Garcia v. Decker, 2023 WL 3818464, at *4 (S.D.N.Y. June 5, 2023); Toussaint v. Garland, 2022 WL 2354547, at *4 (S.D.N.Y. June 30, 2022); Gonzalez Evangelista v. Decker, 2021 WL 101201, at *3 (S.D.N.Y. Jan. 12, 2021), appeal withdrawn sub nom. Evangelista v. Decker, No. 21-599, 2021 WL 4167365 (2d Cir. May 28, 2021); Doe v. Decker, 2020 WL 4937395, at *7 (S.D.N.Y. Aug. 21, 2020); Graham v. Decker, 2020 WL 3317728, at *5 (S.D.N.Y. June 18, 2020); Dzhabrailov v. Decker, 2020 WL 2731966, at *5 (S.D.N.Y. May 26, 2020); Jovel v. Decker, 2020 WL 1539282, at *2 (S.D.N.Y. Mar. 31, 2020); Genus v. Decker, 2020 WL 1434934, at *1 (S.D.N.Y. Mar. 23, 2020); Reid v. Decker, 2020 WL 996604, at *8 (S.D.N.Y. Mar. 2, 2020); De La Rosa v. Barr, 2019 WL 5842906, at *4 (W.D.N.Y. Nov. 7, 2019); Guerrero v. Decker, 2019 WL 5683372, at *4 (S.D.N.Y. Nov. 1, 2019); Yusuf v. Edwards, 2019 WL 4198798, at *7 (S.D.N.Y. July 2, 2019); Arce-Ipanaque v. Decker, 2019 WL 2136727, at *1 (S.D.N.Y. May 15, 2019); Gomes Herbert v. Decker, 2019 WL 1434272, at *2 (S.D.N.Y. Apr. 1, 2019); Hernandez, 2018 WL 3579108, at *6; Vallejo v. Decker, 2018 WL 3738947, at *3 (S.D.N.Y. Aug. 7, 2018).
On remand, the Second Circuit dismissed the case as moot because by then Lora had been granted cancellation of removal. Lora v. Shanahan, 719 Fed.Appx. 79, 80 (2d Cir. 2018).
In determining whether detention pursuant to § 1226(c) has become unreasonably prolonged, the district courts have "overwhelmingly adopted" the "fact-based inquiry" approach first articulated in Sajous by then-District Judge Nathan. Gomes Herbert, 2019 WL 1434272, at *2. Those factors are:
(1) 'the length of time the alien has already been detained'; (2) 'whether the alien is responsible for the delay'; (3) 'whether the detained 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 institution for criminal detention.'Gomes Herbert, 2019 WL 1434272, at *2 (quoting Sajous, 2018 WL 2357266, at *10-11). Accord Garcia, 2023 WL 3818464, at *4; Toussaint, 2022 WL 2354547, at *4; Doe, 2020 WL 4937395, at *7; Yusuf, 2019 WL 4198798, at *7; Hernandez, 2018 WL 3579108, at *8. Some courts additionally consider "(6) the nature of the crimes committed by the petitioner; and (7) whether the petitioner's detention is near conclusion." Jack v. Decker, 2022 WL 4085749, at *10 (S.D.N.Y. Aug. 19, 2022) (quoting Hylton v. Decker, 502 F.Supp.3d 848, 853 (S.D.N.Y. 2020)).
B. The Parties' Positions
Petitioner argues that his detention has become unreasonably prolonged, in violation of his right to the due process of law. Pet. ¶ 53. In his first cause of action, id. ¶¶ 53-61, he seeks an immediate bond hearing at which the government must show, if it can, that he "actually poses a risk of flight or a danger to the community." Id. ¶ 54. Notwithstanding the Supreme Court's rejection of a bright-line test in Jennings, petitioner urges this Court to hold that he is entitled to a hearing because his detention "has more than exceeded six months." Id. Alternatively, he contends that he is entitled to a hearing under the "fact-specific analysis" set out in Sajous and its progeny. Id. ¶¶ 55-59.
In his second cause of action, Pet. ¶¶ 62-66, petitioner requests that the Court use its "inherent authority" pursuant to Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001), to set his bail conditions and release him forthwith. Id. ¶ 63. Relying primarily on cases decided in the early days of the COVID-19 pandemic, petitioner argues that his mental and physical health needs constitute the "extraordinary circumstances" justifying such relief. Id. ¶ 65.
Respondents counter that "due process does not require a bond hearing simply because detention under § 1226(c) lasts beyond six months," Resp. Mem. at 11, and that in petitioner's case, his detention "continues to serve Congress's statutory purposes" of protecting the public and ensuring his presence for removal proceedings. Id. at 15. In respondents' view, petitioner's case has "moved swiftly," id. at 19, and any delays have been caused by his litigation choices, including his decisions to apply for relief from removal and request a competency hearing. Id. Although respondents never cite Sajous, they argue that petitioner's detention continues to comport with due process "under the totality of the circumstances." Id. at 21.
In the event a bond hearing is ordered, respondents urge the Court not to "put the burden of proof on the Government," pointing out that in the limited situations in which § 1226(c) expressly authorizes release on bond, the alien must show that he is not a flight risk or a danger to the community. Id. at 22 (citing 8 U.S.C .§ 1226(c)(2)). Finally, respondents argue that this is not a "special case" warranting the "extraordinary relief of immediate release" under Mapp v. Reno. Id. at 24.
C. Petitioner is Entitled to a Bond Hearing
After Jennings, petitioner cannot rely solely on the fact that he has been detained for more than six months to establish a due process violation. But he has now been detained for almost two years, with no bond hearing, in part because of errors made by the IJ presiding over his case, which required correction on appeal to the BIA. These factors, among others, demonstrate that his detention has become "unreasonable or unjustified," such that he is "entitled to an individualized determination as to his risk of flight and dangerousness." Demore, 538 U.S. at 532 (Kennedy, J., concurring).
"The first, and most important factor that must be considered is the length of time the alien has already been detained." Sajous, 2018 WL 2357266, at *10. On July 10, 2023, petitioner will have been detained for two years with no opportunity to seek release on bond. This factor weighs heavily in favor of habeas relief. Not only does petitioner's detention substantially exceed the "brief" period envisioned in Demore, 538 U.S. at 513; district courts routinely find that significantly shorter periods of mandatory detention under § 1226(c) surpass constitutional limits. See, e.g., Arce-Ipanaque, 2019 WL 2136727, at *1 (21 months); Toussaint, 2022 WL 2354547, at *5 ("over seventeen months"); Garcia, 2023 WL 3818464, at *5 (17 months); Vallejo, 2018 WL 3738947, at *4 ("almost 17 months"); Yusuf, 2019 WL 4198798, at *8 (almost 16 months); Hylton, 502 F.Supp.3d at 854 (14 months); Rosario v. Decker, 2021 WL 3115749, at *3 (S.D.N.Y. July 20, 2021) ("over eleven months"); Reid, 2020 WL 996604, at *9 ("over a year"); Graham, 2020 WL 3317728, at *5 (10 months); Hernandez, 2018 WL 3579108, at *8 (9 months); Cabral v. Decker, 331 F.Supp.3d 255, 261 (S.D.N.Y. 2018) (7 months). I note as well that petitioner's detention "is likely to continue for a significant amount of time, as his case is [once again] up on appeal to the BIA." Reid, 2020 WL 996604, at *9. "Thus, this factor weighs in favor of granting [Diaz] a bond hearing." Id.
The second Sajous factor asks whether the alien is responsible for the delay. This factor weighs neither for nor against petitioner. To be sure, his request for a competency hearing delayed the removal case, but since it was the IJ who required petitioner to wait three months for that hearing, See Joseph Decl. ¶ 16, the resulting delay "can arguably be attributed to the Government." Vallejo, 2018 WL 3738947, at *4 (granting habeas petition where, among other things, where Vallejo requested a competency finding, but "the IJ rejected that request and adjourned for what ended up being four months"). Moreover, petitioner's request was entirely appropriate, as evidenced by the fact that the government ultimately stipulated that he was in fact incompetent, requiring additional safeguards. See Joseph Decl. ¶ 18; Schultz Decl. ¶ 17. The same is true of petitioner's applications for relief from removal and his first appeal to the BIA, which took six months - for reasons not addressed in the record before this Court - and was ultimately successful on multiple grounds. See Hernandez, 2018 WL 3579108, at *9 ("[P]ursuit of relief from removal does not, in itself, undermine a claim that detention is unreasonably prolonged.").
More broadly, there is no evidence that petitioner ever acted in bad faith, created delay through frivolous motions, or otherwise attempted to "gam[e] the system" to create delay or obtain a bond hearing. Sajous, 2018 WL 2357266, at *10; see also Reid, 2020 WL 996604, at *10 (although petitioner made a number of requests that led to delays - including a request for a competency hearing - this did not weigh against his habeas petition because it was "clear to the Court that the delays have not been the product of Reid 'gaming the system to delay [his] removal'"). I therefore reject respondents' suggestion, See Resp. Mem. at 19-20, that petitioner's non-frivolous litigation choices undermine his request for a bond hearing.
The third Sajous factor - whether petitioner has asserted defenses to removal - weighs in his favor. "[B]ecause the mandatory detention statute 'is premised upon the alien's presumed deportability and the government's presumed ability to reach the removal decision within a brief period of time,' as 'the actualization of these presumptions grows weaker or more attenuated, the categorical nature of the detention will become increasingly unreasonable.'" Sajous, 2018 WL 2357266, at *11 (quoting Reid v. Donelan, 819 F.3d 486, 499-50 (1st Cir. 2016)). Petitioner's "request for relief under the CAT is a valid defense to removal," and although the ultimate outcome of that request cannot be predicted, "while that application is still being adjudicated, Petitioner's eventual removal is not inevitable." Toussaint, 2022 WL 2354547, at *6 (citing Doe v. Decker, 2021 WL 5112624, at *3 (S.D.N.Y. Nov. 3, 2021)); see also Sajous, 2018 WL 2357266, at *11 ("The Court need not inquire into the strength of [asserted] defenses-it is sufficient to note their existence and the resulting possibility that the Petitioner will ultimately not be removed, which diminishes the ultimate purpose of detaining the Petitioner pending a final determination as to whether he is removable.").
The fourth Sajous weighs strongly in petitioner's favor. Thus far, his civil immigration detention has lasted more than four times as long as the "time served" to which he was sentenced for his 2018 felony, See Joseph Decl. ¶ 6(vi), and twice as long as his longest criminal sentence, imposed on July 9, 2021, which was 364 days imprisonment.Had ICE not detained him, petitioner would have completed that sentence a year ago. See Jack, 2022 WL 4085749, at *13 (fourth factor favored petitioner when immigration detention exceeded criminal detention by six months); Graham, 2020 WL 3317728, at *7 (fourth factor favored petitioner when immigration detention exceeded criminal detention by five months); Yusuf, 2019 WL 4198798, at *8 (fourth factor "weighs strongly in petitioner's favor" where his immigration detention "has now lasted more than twice as long as his criminal sentence").
Petitioner was not given any jail time for his 2012 conviction. See Schultz Decl. ¶ 6(iv); Joseph Decl. ¶ 6.
The fifth Sajous factor, which asks whether the detention facility is "meaningfully different" from a penal institution for criminal detention, also weighs in petitioner's favor. Petitioner is detained in a county jail. See Joseph Decl. ¶ 5; Schultz Decl. ¶ 3. Although respondents suggest that his unit contains "only ICE detainees," Resp. Mem. at 20, this fact appears nowhere in the evidentiary record, and in any event would not demonstrate that conditions in that unit are "meaningfully different" from conditions elsewhere in the penal facility. See Charles v. Orange County, 925 F.3d 73, 78 n.3 (2d Cir. 2019) ("civil immigration detainees [at the OCCF] are housed in conditions similar to those experienced by detainees awaiting trial on criminal charges"); Toussaint, 2022 WL 2354547, at *6 ("The Government points out that immigration detainees are segregated, but does not otherwise suggest the restrictions are any different from those faced by prisoners Accordingly, this factor weighs in Petitioner's favor."); accord Black v. Decker, 2020 WL 4260994, at *8 (S.D.N.Y. July 23, 2020); Graham, 2020 WL 3317728, at *7. Moreover, according to petitioner's immigration attorney, he has no "access to programs," is not receiving Spanish-language therapy, although he has requested it, and finds the food in the OCCF "not even fit to give a dog." Joseph Decl. ¶¶ 30-31.
Lastly, although petitioner's criminal record may ultimately provide a justification for his continued detention, "the question for this Court is not whether [petitioner] is a flight risk or a danger to the community; it is whether the Due Process Clause entitles him to a hearing to determine those issues." Yusuf, 2019 WL 4198798, at *9. I conclude that "the 'minimal burden' that a bond hearing would place on [respondents] is far outweighed by [petitioner's] interest in 'ensur[ing] that his continued detention is justified,'" Arce-Ipanaque, 2019 WL 2136727, at *2 (quoting Vallejo, 2018 WL 3738947, at *5) (alteration in original)), and I therefore recommend that the petition be granted and that respondents be ordered to afford petitioner a prompt bond hearing before a neutral IJ.
D. Respondents Should Bear the Burden of Proof at the Hearing
In his reply brief, petitioner points to "a substantial and growing body of case law" that supports "the placement of the burden of proof on the government by clear and convincing evidence for bond hearings ordered to remedy due process violations." Pet. Reply Mem. at 12. Petitioner's assessment is correct. In Lora, the Second Circuit not only required a bond hearing when a noncitizen was detained for six months or more under § 1226(c); it also required that "the government establish[ ] by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community." 804 F.3d at 616. Since then, notwithstanding the vacatur of Lora in light of Jennings, "[t]he overwhelming consensus of the judges in this district," and elsewhere in the Second Circuit, remains that "once an alien's immigration detention has become unreasonably prolonged, she is entitled to a bond hearing at which the government bears the burden to 'demonstrate dangerousness of risk of flight by clear and convincing evidence.'" Yusuf, 2019 WL 4198798, at *9 (quoting Hernandez, 2018 WL 3579108, at *10, and collecting cases); accord Garcia, 2023 WL 3818464, at *6; Rodriguez v. Barr, 2021 WL 6797497, at *4 (W.D.N.Y. Feb. 10, 2021); Graham, 2020 WL 3317728, at *8; Rosemond v. Decker, 2020 WL 1876318, at *6 (S.D.N.Y. Apr. 14, 2020); Ranchinskiy v. Barr, 422 F.Supp.3d 789, 800 (W.D.N.Y. 2019); Sajous, 2018 WL 2357266, at *12 (noting the "numerous cases in which the Supreme Court has placed the burden on the Government to justify civil detention").
Two years after Jennings, the Second Circuit held in Velasco Lopez v. Decker, 978 F.3d 842, 855-56 (2d Cir. 2020), that the Constitution requires the government to bear the burden of proof by clear and convincing evidence at bond hearings for aliens whose detention has become unduly prolonged. Although Velasco Decker involved detention pursuant to 8 U.S.C. § 1226(a), "[t]here is no reason to believe that the holding should be cabined to § 1226(a) without likewise applying it to prolonged detention pursuant to § 1226(c)." Hylton, 502 F.Supp.3d at 855. Rather, as Judge Koeltl explained, the court's rationale (that "it is improper to allocate the risk of error evenly between the individual and the Government when the potential injury is as significant as the individual's liberty," Velasco Lopez, 978 F.3d at 856) "applies equally to aliens detained pursuant to § 1226(c)." Hylton, 502 F.Supp.3d at 856; see also Rosario, 2021 WL 3115749, at *4 (relying on Velasco Lopez and Hylton to conclude that Rosario, who was detained for 11 months pursuant to § 1226(c), was entitled to "a bond hearing where Respondents bear the burden of proof, by clear and convincing evidence").
Respondents, by contrast, do not cite a single case in this Circuit in which a district court placed the burden of proof on the detainee at a constitutionally-required bond hearing or authorized the government to meet its burden by a mere preponderance. Instead, they press a statutory argument based on § 1226(c)(2), which places the burden of proof on the detainee when seeking bail under the "witness protection" exception. Resp. Mem. at 22. No court in our Circuit has accepted that argument, and for good reason: "the question here is one of due process under the Constitution," Toussaint, WL 2354547, *7, not statutory interpretation. I therefore recommend that, at the bond hearing, the government be required to prove, by clear and convincing evidence, that petitioner presents an unreasonable flight risk or danger to the community.
The IJ must also consider "less restrictive alternatives to detention as well as Petitioner's ability to finance any bond." Garcia, 2023 WL 3818464, at *7. These are not "special rules" devised by the courts for immigration cases, See Resp. Mem. at 22 n.12; rather, they flow directly from the limited purpose of detention under § 1226(c), which is not to punish but only to "protect the public and ensure [the alien's] presence for removal proceedings." Resp. Mem. at 15. As Judge Carter explained in Hernandez, "[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." 2018 WL 3579108, at *12 (quoting Hernandez v. Sessions, 872 F.3d 976, 991 n.4 (9th Cir. 2017)). Here, as in Rosemond, respondents resist the notion that the IJ should be required to calibrate her bond decision to the detainee's individualized circumstances, but "have not suggested how else to satisfy the due process concerns underlying these requirements." 2020 WL 1876318, at *6.
E. There is No Need for This Court to Exercise Its Inherent Authority
In Mapp v. Reno, the Second Circuit confirmed that the federal courts "have the same inherent authority to admit habeas petitioners to bail in the immigration context as they do in criminal cases," 241 F.3d 2at 223, but emphasized the "limited" nature of that authority, which is "to be exercised in special cases only," when "extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective" Id. at 226 (quoting Ostrer v. United States, 584 F.2d 594, 596 n. 1 (2d Cir. 1978)).Thus, when faced with an application for bail pending the outcome of a habeas petition, "the Court considers three factors: (1) whether substantial claims are set forth in the habeas corpus petition; (2) whether the petitioner has demonstrated a likelihood of success on the merits of his or her petition; and (3) whether there are extraordinary circumstances attending the petitioner's situation which would require release on bail in order to make the writ of habeas corpus effective." Boddie v. New York State Div. of Parole, 2009 WL 1531595, at *1 (S.D.N.Y. May 28, 2009) (collecting cases).
In Mapp, the habeas remedy sought by the petitioner was a hearing on his claim under § 212(c) of the INA, which (until § 212(c) it was repealed in 1996) permitted aliens who had accrued seven years of awful permanent residence to apply for a waiver of deportation. 215 F.2d at 223. The district judge, finding that petitioner had shown a substantial likelihood of success on the merits of his habeas claim - and that he was neither a serious flight risk nor a threat to the community -ordered him released from custody on bond. Id. at 224. On appeal, after confirming that a district court has the authority to grant bail in in immigration habeas case, the Second Circuit held that "the grant of bail in this case must nonetheless be vacated," because the district judge failed to "indicate why Mapp's release is needed to make the required § 212(c) hearing 'effective,'" which was "by no means obvious." Id. at 230-31.
Here, although petitioner has set forth substantial claims, on which he is likely to succeed, a grant of bail is not "necessary to make the habeas remedy effective" because (as respondents correctly point out, See Resp. Mem. at 25) "the habeas remedy" sought is itself a bail hearing. As Judge Gardephe explained in Garcia, where "the Court's order will provide that a bond hearing must occur within fourteen days . . . the Court need not conduct the bond hearing itself in order to make the habeas remedy effective." 2023 WL 3818464, at *7 n.4 (internal quotation marks omitted); see also Hernandez Aguilar v. Decker, 482 F.Supp.3d 139, 149 n.6 (S.D.N.Y. 2020) ("In light of the fact that the relief sought in the Petition is being granted, Petitioner has not established the existence of extraordinary circumstances that make the grant of bail necessary to make the habeas remedy effective."); Reid, 2020 WL 996604, at *13 ("particularly in light of the fact that the Court is granting the relief sought in Reid's Petition, Reid has not established the existence of extraordinary circumstances that make the grant of bail necessary to make the habeas remedy effective"); Fernandez Aguirre v. Barr, 2019 WL 3889800, at *4 (S.D.N.Y. Aug. 19, 2019) ("Because the Petition seeks only a constitutionally-adequate bond hearing . . . and because the Court has granted that relief, immediate release is not necessary to make the habeas writ effective."). For this reason alone, petitioner's request for Court-ordered release should be rejected.
In Jovel v. Decker, 2020 WL 1467397 (S.D.N.Y. Mar. 26, 2020), the petitioner sought a bond hearing after being held in immigration custody for more than three years, and Magistrate Judge Netburn recommended that his petition be granted. Id. at *1. Thereafter, in light of the rapidly-worsening COVID-19 epidemic (and before the time had run for the government to file its objections to Judge Netburn's recommendation) Judge Daniels directed ICE to release Jovel by April 3, 2020, if it had not afforded him a bond hearing by that date. Id. at *2. Jovel does not assist petitioner here, because it was decided just four days after a state-wide "stay-at-home order" was issued in New York, and was expressly predicated on "the considerable - and growing - concern surrounding the COVID-19 health crisis, including limited access to medical supplies, treatment, and attention, as well as Petitioner's separate personal medical issues," which, Judge Daniels found, demonstrated the necessary "extraordinary circumstances requiring his release." Id. at *2. By the time petitioner was detained by ICE, COVID vaccines were widely available, and on May 11, 2023, the federal COVID-19 public health emergency expired altogether. See U.S. Dept. of Health and Human Services, Fact Sheet: End of the COVID-19 Public Health Emergency, https://www.hhs.gov/about/news/2023/05/09/fact-sheet-end-of-the-covid-19-public-health-emergency.html (last visited July 6, 2023). As a practical matter, moreover, any application for emergency release on bond pending either the issuance or the adoption of this Report and Recommendation would have to be made directly to the district judge. Petitioner has never made such an application.
Moreover, this Court is less well equipped than an immigration judge to make the necessary determinations concerning whether the petitioner is a serious flight risk or a threat to the community. While the parties have submitted portions of the administrative record, they have not submitted, for example, any of the evidence presented in support of or in opposition to his applications for relief from removal, or any of the rulings made by the IJs who heard the evidence concerning his competency, his crimes, and other matters relevant to those applications. Nor has this Court been furnished with any information about petitioner's financial circumstances or the "alternative release conditions," Hernandez, 2018 WL 3579108, at *12, available within the immigration system. For this reason as well, the appropriate remedy here is to require respondents to provide petitioner with a prompt bond hearing before a neutral IJ.
IV. CONCLUSION
For the reasons set forth above, I recommend, respectfully, that Diaz's petition be GRANTED and that respondents be directed, within 14 days of the Court's decision, to provide petitioner with a constitutionally adequate bond hearing, before a neutral immigration judge, at which the government will bear the burden of showing, by clear and convincing evidence, that petitioner presents an unreasonable flight risk or threat to the community.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Vernon S. Broderick at 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Broderick. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).