Dorval v. Barr

• Citation: 414 F.Supp.3d 386
• Decision Date: 10 October 2019
• Docket Number: No. 6:19-cv-06545-MAT,6:19-cv-06545-MAT
• Parties: Cendjou DORVAL, Petitioner, v. William P. BARR, Attorney General; Thomas Feeley, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement ; Jefferey Searls, Facility Acting Director Buffalo Federal Detention Facility, Respondents.
• Court: U.S. District Court — Western District of New York

414 F.Supp.3d 386

Cendjou DORVAL, Petitioner,

v.William P. BARR, Attorney General; Thomas Feeley, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement ; Jefferey Searls, Facility Acting Director Buffalo Federal Detention Facility, Respondents.

No. 6:19-cv-06545-MAT

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

Signed October 10, 2019

Cendjou Dorval, Batavia, NY, pro se.

Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, United States Attorney's Office (e-service), Western District of New York, for Defendants.

DECISION AND ORDER

HONORABLE MICHAEL A. TELESCA, United States District Judge

I. Introduction

Proceeding pro se , Cendjou Dorval ("Dorval" or "Petitioner") commenced this habeas proceeding pursuant to 28 U.S.C. § 2241 (" § 2241") against the named respondents (hereinafter, "the Government" or "Respondents") challenging his continued detention in the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS/ICE"). For the reasons discussed below, the request for a writ of habeas corpus is conditionally granted in part and stayed in part.

II. Factual Background

Dorval, a native and citizen of Haiti, originally applied for admission to the United States at the San Ysidro Port of Entry in California, on May 31, 2016, through the pedestrian inspection lane. Prior to arriving at the United States border, Dorval had traveled through Mexico, Guatemala, Nicaragua, Costa Rica, Panama, Colombia, Ecuador, Peru, and Brazil, where he resided for five years. Dorval claimed a fear of returning to Haiti and sought asylum in the United States.

As he lacked proper documents for entry, Dorval was found to be inadmissible pursuant to Immigration and Nationality Act ("INA") § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). After conducting a file review, the deportation officer stated that ICE Enforcement and Removal Operations ("ERO") "will exercise prosecutorial discretion with regard to [Dorval]'s custody" and he "will be paroled into the U.S. pending removal hearing." Government's Exhibit A ("Ex. A") Docket No. 4-2, p. 3 of 33.¹ Dorval was released on June 4, 2016, and instructed to report to the Alternatives to Detention Office in Miramar, Florida, on June 10, 2016.

A master calendar hearing was scheduled for March 2017, but it was adjourned at Dorval's request so that he could retain an attorney.

On June 8, 2017, Dorval's hearing was adjourned again in order to allow his attorney more time to prepare. On June 22, 2017, Dorval appeared with counsel in immigration court, but the hearing was adjourned due to his recent filing of a Form I-589 Application for Asylum and Withholding of Removal. The hearing was rescheduled for March 26, 2018. Dorval remained on parole.

The hearing on March 26, 2018, hearing did not occur because the immigration judge ("IJ") retired and a new IJ had not been re-assigned.

In the early morning hours of December 1, 2018, Dorval was arrested by Customs and Border Protection ("CBP") officers in the vicinity of Champlain, New York. Dorval, who appeared to be wet from the knees down, was in the company of three other individuals from Haiti. Dorval lacked any documents allowing him to live, reside or work in the United States legally at the time of his arrest. He was transported to the Champlain Border Patrol Station for further investigation and processing. Because Dorval was apprehended within 100 miles of the border and could not show that he had been continuously present in the United States for the two weeks prior to the date of his entry, Dorval was processed for expedited removal pursuant to 8 U.S.C. § 1225(b). See 69 Fed. Reg. 48,877 (Aug. 11, 2004). However, he claimed a fear of returning to Haiti which was deemed credible by the interviewing officer. Consequently, Dorval was transferred to immigration proceedings pursuant to INA § 240, 8 U.S.C. § 1229a.

On December 13, 2018, Dorval pleaded guilty to violating 8 U.S.C. § 1325(a)(2), Improper Entry by Alien. He was sentenced to time served and fined $10.00

On December 22, 2018, Dorval was served with a Notice to Appear ("NTA"). However, immigration proceedings were already proceeding in Florida against Dorval.

As he currently was detained in New York, the immigration court in Florida terminated its proceedings against him.

On February 11, 2019, DHS reviewed Dorval's custody status and decided to detain him pending a final administrative determination in his immigration proceedings. Dorval requested a custody redetermination hearing by an IJ.

On March 5, 2019, Dorval appeared in immigration court in Batavia, New York at which time he requested an adjournment to retain counsel. The hearing was rescheduled for April 9, 2019. A custody redetermination hearing before an IJ was also scheduled for that date.

On April 3, 2019, Dorval appeared with counsel before the IJ. Counsel requested additional time to prepare. The merits hearing and custody redetermination hearing were rescheduled for April 29, 2019.

On April 29, 2019, Dorval and his attorney appeared before the IJ. Counsel, however, filed a motion to withdraw as counsel and to withdraw the motion for bond. Because the motion for bond was withdrawn, the IJ determined he could not review the evidence annexed to it during a bond proceeding. Dorval therefore requested that he be given time to submit evidence in relation to a new bond hearing. There is nothing in the record indicating that Dorval moved for a bond hearing after the first motion was withdrawn.

Also at the April 29, 2019, hearing, Dorval admitted the allegations in the NTA. The IJ accordingly found that he was removable as charged in the NTA. Because neither Dorval nor the IJ had a copy of his previously filed Form I-589, the IJ instructed Dorval to file a new I-589 by May 29, 2019. The removal hearing was adjourned until June 27, 2019.

Dorval failed to file a new I-589 by the May 29, 2019 deadline. Accordingly, DHS moved to deem the application abandoned. At a hearing on June 27, 2019, the IJ noted that Dorval had been instructed that the untimely filing of any applications for relief from removal could result in their being deemed abandoned. In addition, the IJ observed that Dorval had never sought an extension of his deadline to file his applications for relief. Although Dorval had filed an application for relief from removal on June 19, 2019, he failed to include with it a request for an extension or any explanation as to why it was not timely filed. The IJ decided that the late filing rendered the request abandoned and that Dorval's removability previously had been established on the record. The IJ therefore ordered Dorval removed to Haiti.

On July 5, 2019, the BIA received Dorval's appeal from the IJ's order of removal. As of September 13, 2019, the date of the Government's filing of its memorandum of law in this proceeding, the appeal remains pending before the BIA.

On July 18, 2019, Dorval filed his petition (Docket No. 1), asserting that his detention without a bond hearing violates the Due Process Clause of the Fifth Amendment and the Eighth Amendment's Excessive Bail Clause. He also seeks injunctive relief in the form of immediate release from detention and an order precluding DHS from transferring him to a different detention facility during the pendency of his removal proceedings. The Government filed an answer and return (Docket No. 4), declarations with supporting exhibits (Docket Nos. 4-1, 4-2 & 4-3), and a memorandum of law (Docket No. 5) in opposition to the petition. Dorval filed a pleading docketed as a reply (Docket No. 6) but which appears to be another petition raising what appear to be the same claims raised in the original petition. The matter was transferred to the undersigned on October 1, 2019 (Docket No. 7).

III. Scope of Review

Title 28 U.S.C. § 2241 grants this Court jurisdiction to hear habeas corpus petitions from aliens claiming they are held "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) ; Zadvydas v. Davis , 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (citing 28 U.S.C. § 2241(c)(3) ). However, the REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a), 199 Stat. 231 (May 11, 2005) amended the Immigration and Nationality Act ("INA") to provide that petitions for review filed in the appropriate Courts of Appeals were to be the "sole and exclusive means for judicial review" of final orders of removal. Ruiz-Martinez v. Mukasey , 516 F.3d 102, 113 (2d Cir. 2008) (citing REAL ID Act § 106(c); 8 U.S.C. § 1252(a)(5) ). In other words, the REAL ID Act "strips district courts of jurisdiction to hear habeas petitions challenging final orders of deportation...." De Ping Wang v. Dep't of Homeland Sec. , 484 F.3d 615, 615-16 (2d Cir. 2007). District courts still are empowered to grant relief under § 2241 to claims by aliens under a final order of removal who allege that their post-removal-period detention and supervision are unconstitutional. See Zadvydas , 533 U.S. at 687-88, 121 S.Ct. 2491 ; see also Hernandez v. Gonzales , 424 F.3d 42, 42–43 (1st Cir. 2005) ("The Real ID Act deprives the district courts of habeas jurisdiction to review orders of removal, ... [but] those provisions were not intended to ‘preclude habeas review over challenges to detention that are independent of challenges to removal orders.’ ") (quoting H.R. Cong. Rep. No. 109-72, at *43 2873 (May 3, 2005)).

Although this Court has jurisdiction to decide statutory and constitutional challenges to civil immigration detention, it does not have jurisdiction to review the discretionary decisions of the Attorney General. Zadvydas , 533 U.S. at 688, 121 S.Ct. 2491 (citing 8 U.S.C. § 1252(a)(2)(B)(ii) ) ("[N]o court shall have jurisdiction to review ... any other decision or action of the Attorney General ... the authority of which is specified under this subchapter to be in the discretion of the...