Clerveaux v. Searls

Decision Date31 July 2019
Docket Number18-CV-1131
Parties Shaadoul CLERVEAUX, Petitioner, v. Jeffrey J. SEARLS, and Thomas E. Feeley, Respondents.
CourtU.S. District Court — Western District of New York

Matthew K. Borowski, Buffalo, NY, for Petitioner.

Daniel Barrie Moar, U.S. Attorney's Office, Buffalo, NY, United States Attorney's Office (e-service), Western District of New York, for Respondent.



The United States Department of Homeland Security ("DHS") has detained the petitioner, Shaadoul Clerveaux, since February 27, 2018—more than seventeen months. In that time, the government has never given Clerveaux an individualized hearing to determine whether he is a flight risk or poses a danger to anyone or the community. Clerveaux now petitions this Court for a writ of habeas corpus under 28 U.S.C. § 2241 and seeks release. Docket Item 1. He argues that his "prolonged detention without an individual bond hearing" violates the Due Process Clause. Id. at 9.

Because Clerveaux is an "arriving alien," this Court disagrees that the Due Process Clause requires the relief that Clerveaux demands. But both because Clerveaux has been subject to prolonged detention and because he has not received the "rigorous review" necessary under 8 U.S.C. § 1182(d)(5)(A) to sustain such detention, see Chi Thon Ngo v. I.N.S. , 192 F.3d 390, 392 (3d Cir. 1999), this Court conditionally grants his petition.


The following facts, taken from the record, come largely from filings with DHS.


Clerveaux is a twenty-three or twenty-four year old man1 who is a native and citizen of Haiti. Docket Item 3-1 at 2, 3-2 at 9. In October 2012, when he was only sixteen or seventeen years old, Clerveaux legally applied for admission into the United States and requested asylum. Docket Item 3-1 at 2. He arrived and applied with his father and his sister. Id. Clerveaux's father explained to DHS officials that "he decided to travel to the United States with his children for a better future for the three of them and to work to help his family back in Haiti." Docket Item 3-2 at 14. Clerveaux's father also told DHS that "their final destination is New York where his uncle ... lives, and also [where] his son Shaadoul['s] mother lives." Id.

On October 26, 2012, following an interview, Clerveaux and his family members were placed in immigration removal proceedings. Docket Item 3-1 at 2-3. Because he was an immigrant without a valid entry document as required by the Immigration and Nationality Act, Clerveaux was served with a Notice to Appear, charging him with being inadmissible to the United States. Id. He was taken into custody on October 26, 2012, but he was released three days later and granted parole. Id. at 3.

In April 2015, Clerveaux was arrested in New York City. Id. About one year later, in June 2016, he was convicted of attempted second degree criminal possession of a weapon in violation of New York State law. Id. at 4. He was sentenced to two years' incarceration and two years' post-release supervision. Id. Clerveaux was taken into state custody in October 2016 and released in February 2018. Docket Item 3-1 at 5; Docket Item 5 at 2.


Clerveaux's removal proceedings were continued several times between March 2013 and January 2015, Docket Item 3-1 at 3, and again between December 2016 and January 2018, id. at 4-5. On January 18, 2018, Immigration Judge Roger F. Sagerman ordered Clerveaux removed to Haiti, Docket Item 3-2 at 2, and in March 2018, DHS requested a travel document from Haiti for Clerveaux, Docket Item 3-1 at 5.

Clerveaux's DHS charter flight to Haiti was scheduled to depart on March 20, 2018, but on March 14, 2018, Clerveaux appealed the Immigration Judge's removal order to the Board of Immigration Appeals ("BIA"). Id. The BIA accepted Clerveaux's late appeal, and DHS cancelled his flight to Haiti. Id. at 6.

The BIA has not acted on Clerveaux's appeal since then. At oral argument, the government candidly explained that Clerveaux's case was inadvertently designated a nondetained case and therefore not handled as expeditiously as it should have been.2


In the meantime, on February 27, 2018, DHS had taken Clerveaux into custody after he completed serving his New York state sentence. Docket Item 3-1 at 5. Clerveaux remains in custody at the Buffalo Federal Detention Facility pending completion of his immigration removal proceedings. Id. at 6. The record includes nothing indicating that anyone has provided Clerveaux with an individualized review of whether his detention is necessary to ameliorate a risk of flight or danger.


The respondents' "authority [to detain Clerveaux] in this area derives from the intersection of several statutory provisions." Barrera-Echavarria v. Rison , 44 F.3d 1441, 1445 (9th Cir. 1995).

I. 8 U.S.C. § 1225(b)

The parties do not dispute that Clerveaux's detention is statutorily authorized by 8 U.S.C. § 1225(b). See Docket Item 1 at 5-6; Docket Item 4 at 5-9. Under § 1225, "an alien who ‘arrives in the United States,’ or ‘is present’ in this country but ‘has not been admitted,’ is treated as ‘an applicant for admission.’ "

Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 836, 200 L.Ed.2d 122 (2018) (quoting § 1225(a)(1) ). Section 1225(b)(2) "mandate[s] detention of applicants for admission ... for ‘removal proceedings.’ " Id. at 842 (quoting § 1225(b)(2) ) (internal alterations omitted).

II. 8 U.S.C. § 1182(d)(5)(A)

"[T]here is a specific provision authorizing release from § 1225(b) detention." Id. at 844.

The Attorney General may ... in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

8 U.S.C. § 1182(d)(5)(A).


28 U.S.C. § 2241 "authorizes a district court to grant a writ of habeas corpus whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of the United States.’ " Wang v. Ashcroft , 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)(3) ). Although the parties agree that Clerveaux's detention is statutorily authorized by 8 U.S.C. § 1225(b), see Docket Item 1 at 5-6; Docket Item 4 at 5-9, they disagree about the constitutionality of Clerveaux's continued detention without an individualized hearing addressing his risk of flight or dangerousness, see Docket Item 1 at 6-9; Docket Item 4 at 9-15. Clerveaux argues that his "continued detention is in violation of his procedural due process rights." Docket Item 1 at 9. The government disagrees. Docket Item 4 at 9-15. For the following reasons, Clerveaux is entitled to some relief, although not to the extent that Clerveaux argues due process requires.

The Fifth Amendment's Due Process Clause forbids the federal government from depriving any "person ... of ... liberty ... without due process of law." U.S. Const. amend. V. "Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects." Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). "[G]overnment detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections ... or, in certain special and ‘narrow’ nonpunitive ‘circumstances,’ ... where a special justification, such as harm-threatening mental illness, outweighs the ‘individual's constitutionally protected interest in avoiding physical restraint.’ " Id. (and cases cited therein) (emphasis in original). Other than those unique, special, and narrow circumstances, "[o]nly a jury, acting on proof beyond a reasonable doubt, may take a person's liberty. That promise stands as one of the Constitution's most vital protections against arbitrary government." United States v. Haymond , ––– U.S. ––––, 139 S. Ct. 2369, 2373, 204 L.Ed.2d 897 (2019) (Gorsuch, J., announcing the judgment of the Court and delivering an opinion).

"Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments." Plyler v. Doe , 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ; see also Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953) ("It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.").

The Due Process Clause is not offended by the mandatory detention of aliens—even lawful permanent resident aliens—for the "brief period necessary for their removal proceedings." Demore v. Kim , 538 U.S. 510, 513, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (emphasis added). But due process may be implicated if that "continued detention bec[omes] unreasonable or unjustified." Id. at 532, 123 S.Ct. 1708 (Kennedy, J., concurring). For that reason, this Court "has evaluated procedural due process challenges to immigration detention with a two-step inquiry." Hemans v. Searls , 2019 WL 955353, at *5 (W.D.N.Y. Feb. 27, 2019) ; see also Rosado Valerio v. Barr , 2019 WL 3017412, at *3 (W.D.N.Y. July 10, 2019) ; Fallatah v. Barr , 2019 WL 2569592, at *3 (W.D.N.Y. June 21, 2019) ; Campbell v. Barr , 387 F.Supp.3d...

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