Brathwaite v. Barr

• Decision Date: 31 July 2020
• Docket Number: 20-CV-174 (JLS)
• Citation: 475 F.Supp.3d 179
• Parties: Aldwin BRATHWAITE, Petitioner, v. William BARR, in his official capacity as Attorney General, U.S. Department of Justice, et al., Respondents.
• Court: U.S. District Court — Western District of New York

475 F.Supp.3d 179

Aldwin BRATHWAITE, Petitioner,

v.William BARR, in his official capacity as Attorney General, U.S. Department of Justice, et al., Respondents.¹

20-CV-174 (JLS)

United States District Court, W.D. New York.

Signed July 31, 2020

John H. Peng, Joseph David Moravec, Prisoners' Legal Services of New York, Albany, NY, for Petitioner.

Rosanne M. Perry, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, United States Attorney's Office, Western District of New York, for Respondents.

DECISION AND ORDER

JOHN L. SINATRA, JR., UNITED STATES DISTRICT JUDGE

Aldwin Brathwaite is a native and citizen of Trinidad and Tobago. He has been detained since January 2019 at the Buffalo Federal Detention Facility in Batavia, New York pending removal proceedings. His order of removal became administratively final in December 2019, and his petition for review ("PFR") is pending at the Second Circuit. He now petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Brathwaite argues that the mandatory detention statutes of the Immigration and Nationality Act are unconstitutional as applied to him. He asks the Court to order Respondents (hereinafter "the Government") to hold a constitutionally adequate bond hearing at which he may contest his continued detention and at which the Department of Homeland Security ("DHS") must establish, by clear and convincing evidence, that his continued detention is justified.

For the reasons that follow, this Court concludes that Brathwaite is detained under 8 U.S.C. § 1231 —not Section 1226(c). And because the forbearance policy does not qualify as a court-ordered stay under Section 1231(a)(1)(B)(ii), it does not interrupt or toll the removal period. Finally, under Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the relief requested in Brathwaite’ petition for writ of habeas corpus is denied because he fails to show there is no significant likelihood of his removal in the reasonably foreseeable future.

BACKGROUND

I. TIMELINE OF RELEVANT EVENTS

Brathwaite entered the United States in 1979 as a lawful permanent resident from Trinidad and Tobago. Dkt. 1, at 6 ¶ 26.²

On January 31, 2018, Brathwaite was convicted of the following offenses in the New York County Supreme Court: (1) New York Penal Law § 190.80(3), Identity Theft in the first degree; (2) New York Penal Law § 110- 155.40(1), Attempted Grand Larceny in the second degree; (3) New York Penal Law § 165.45(2), Possession of Stolen Property in the fourth degree; (4) New York Penal Law § 110- 190.80(1), Attempted Identity Theft in the first degree; (5) New York Penal Law § 155.30(1), Grand Larceny in the fourth degree; and (6) New York Penal Law § 190.79(3), Identity Theft in the second degree. See Dkt. 1, at 6 ¶ 27; Dkt. 1-1, at 4 (Exh. A). As a result, Brathwaite was sentenced to a minimum of two years and maximum of four years in prison. See Dkt. 1. at 6 ¶ 27; Dkt 1-1, at 8 (Exh. B).

On October 11, 2018, while Brathwaite was incarcerated, DHS determined that Brathwaite was removable because of his convictions and issued a Notice to Appear ("NTA") as well as a Warrant for Arrest of Alien. Dkt. 1-1, at 2 (Exh. A); Dkt. 8, at 36 (Exh. A). DHS served Brathwaite with the NTA on November 7, 2018. Dkt. 8, Smith Decl. at 4 ¶ 21. The NTA charged Brathwaite with removability, under 8 U.S.C. § 1227(a)(2)(A)(ii)-(iii), based on his convictions of the following: (1) an aggravated felony relating to a theft offense, as defined by INA §§ 237(a)(2)(A)(iii) and 101(a)(43)(G); (2) an aggravated felony relating to an attempt or conspiracy to commit another aggravated felony, as defined by INA §§ 237(a)(2)(A)(iii) and 101(a)(43)(U); (3) an aggravated felony relating to a fraud or deceit offense in which the loss to the victim or victims exceeds $10,000, as defined by INA §§ 237(a)(2)(A)(iii) and 101(a)(43)(M); and (4) two crimes involving moral turpitude, as outlined by INA § 237(a)(2)(A)(ii). Dkt. 1-1, at 4-5 (Exh. A).

On January 18, 2019, Brathwaite received a Notice of Custody Determination, which informed him that he would be detained by DHS pending a final administrative determination in his case. Dkt. 9, at 3.

On May 23, 2019, Brathwaite filed a motion with the New York State Supreme Court, Appellate Division, First Department, requesting leave to file a late notice of appeal of his underlying criminal convictions, and the First Department granted the motion. Dkt. 1, at 7 ¶ 32; Dkt. 8, Smith Decl. at 5 ¶ 26.

Brathwaite also filed a motion in Batavia Immigration Court to terminate his removal proceedings based on a pending criminal appeal. Dkt. 8, at 49-55 (Exh. A). The immigration judge denied the motion on June 7, 2019, and ordered Brathwaite removed to Trinidad and Tobago on June 11, 2019. See Dkt. 1-1, at 18-19 (Exh. E); Dkt. 8, at 47, 73 (Exh. A). Brathwaite appealed this order to the Board of Immigration Appeals ("BIA"), which affirmed the immigration judge's decision on December 11, 2019. Dkt. 1, at 7-8 ¶ 33; Dkt. 1-1, at 22-25 (Exh. F).

On December 17, 2019, Deportation Officer Brandon Smith served Brathwaite with a Warning for Failure to Depart. Dkt. 8, Smith Decl. at 6 ¶ 34; Dkt. 8, at 82-84 (Exh. A). Brathwaite signed and acknowledged receipt of this document, which warned him of the consequences of his failure to comply with the administrative removal order. Dkt. 8, at 4 ¶ 9; Dkt. 8, at 82-84 (Exh. A). Brathwaite also received a document listing the required steps he had to take to assist in obtaining travel documents. Dkt. 8, at 4-5 ¶ 9; Dkt. 8, at 83-84 (Exh. A). Brathwaite filed an application form for Trinidad and Tobago Emergency Travel Document, as well as a visa application form for Trinidad and Tobago. Dkt. 8, at 5 ¶ 10; Dkt. 8, at 88-94 (Exh. A).

On December 18, 2019, ICE issued a Warrant of Removal/Deportation. Dkt. 8, at 5 ¶ 11; Dkt. 8, at 22 (Exh. A). The next day, ICE requested the issuance of a travel document from the Consulate of Trinidad and Tobago in order to facilitate Brathwaite's return. Dkt. 8, at 5 ¶ 12; Dkt. 8, at 85-86 (Exh. A).

On January 6, 2020, Brathwaite filed a petition for review ("PFR") of the BIA's December 11, 2019 decision with the United States Court of Appeals for the Second Circuit. See Brathwaite v. Barr , No. 20-27 (2d Cir. filed Jan. 6, 2020), Dkt. 1; see also Dkt. 1-1, at 27-29 (Exh. G). And on February 2, 2020, he filed a motion to stay his removal. See Dkt. 1-1, at 32-58 (Exh. H). Both of these items remain pending at the Second Circuit. The parties acknowledge that, due to an agreement between DHS and the Second Circuit (the "forbearance policy"), DHS will not enforce Brathwaite's removal order until the Second Circuit rules on his motion for a stay or otherwise disposes of his PFR. Dkt. 1, at 8 ¶ 34; Dkt 9, at 4.

II. PROCEDURAL HISTORY

On February 8, 2020, Brathwaite filed this Petition for a Writ of Habeas Corpus challenging his detention at the Buffalo Federal Detention Facility. Dkt. 1. The Government answered and filed a memorandum and declarations in opposition, on April 9, 2020. Dkts. 8, 9. Brathwaite replied on April 28, 2020. Dkt. 11.

On July 7, 2020, this Court ordered supplemental briefing to address Brathwaite's argument that the COVID-19 pandemic and travel restrictions have curtailed efforts to remove him in the reasonably foreseeable future. Dkt. 12. The Government responded on July 16, 2020. Dkt. 13. Brathwaite declined to file an additional substantive reply, indicating he would rely on his previous arguments. Dkt. 14.

DISCUSSION

I. JURISDICTION

Habeas corpus review is available to persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Circuit courts have jurisdiction, to the exclusion of district courts, over challenges to the legality of final orders of deportation, exclusion, and removal. 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."). District courts. however, can review claims by aliens challenging the constitutionality of their pre-removal detention. See Demore v. Kim , 538 U.S. 510, 516-17, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).

In this case, Brathwaite asserts that his "unreasonably prolonged" detention, without any adversarial hearing at which he could challenge his custody, violates the Fifth Amendment's due process clause. Dkt. 1, at 1 ¶¶ 3-6; Dkt. 1, at 17 ¶¶ 60-66. Therefore, Brathwaite asks this Court to order the Government to provide "a constitutionally adequate, individualized hearing before an impartial adjudicator at which Respondents bear the burden of establishing by clear and convincing evidence" that he is a "danger to the community or such a flight risk that no alternatives to detention could reasonably secure his future compliance with the orders of immigration officials." Dkt. 1, at 16-17.

II. STATUTORY BASIS FOR PETITIONER'S DETENTION

At the outset, this Court must determine the statutory basis for Brathwaite's detention. Whether his detention is governed by 8 U.S.C. § 1226 or 8 U.S.C. § 1231 potentially impacts whether he is entitled to relief and, if so, the form of that relief. See Narain v. Searls , No. 19-CV-6361 (CJS), 2020 WL 95425, at *2 (W.D.N.Y. Jan. 8, 2020) (citing Enoh v. Sessions , 236 F. Supp. 3d 787, 791 (W.D.N.Y. 2017) ).

A. Section 1226 versus Section 1231

8 U.S.C. § 1226 governs the detention of aliens before the removal period—broadly speaking, the detention of those aliens who "are not immediately deportable." Hechavarria v. Sessions , 891 F.3d 49, 57 (2d Cir. 2018). Section 1226(c) specifically governs the arrest and detention of aliens who have committed certain criminal offenses enumerated in 8 U.S.C. § 1227. 8 U.S.C. § 1226(c). This section provides,...