Falodun v. Session
| Decision Date | 04 December 2019 |
| Docket Number | No. 6:18-cv-06133-MAT,6:18-cv-06133-MAT |
| Parties | BRIGHT FALODUN, Petitioner, v. MR. JEFF SESSION, Attorney General of the United States; WALTER M. INGRAM, Office of Enforcement and Removal Operations, Post Order Custody Review Unit Chief, Washington DC Field Office; MR. THOMAS E. FEELEY, Deputy Field Office Director Office of Enforcement and Removal Operations Buffalo Field Office; SEAN CALLAGHER, Designated Field Office Director, ERO Buffalo Federal Detention Facility; MR. TODD TRYON, Assistant Field Office Director, Buffalo Federal Detention Facility; MR. SCHRADER, Supervisory Detention and Deportation Officer, Buffalo Federal Detention Facility; OFFICER J. KLAYBOR, Deportation Officer Buffalo Federal Detention Facility, Respondents. |
| Court | U.S. District Court — Western District of New York |
Proceeding pro se, Bright Falodun ("Falodun" or "Petitioner") commenced this habeas proceeding on February 12, 2018, pursuant to 28 U.S.C. § 2241 ("§ 2241") against the respondents (hereinafter, "the Government")1 challenging his continued detention in the custody of the United States Department of Homeland Security("DHS"), Immigration and Customs Enforcement ("ICE") at the Buffalo Federal Detention Facility ("BFDF"). For the reasons discussed below, the request for a writ of habeas corpus is conditionally granted.
Falodun is a native and citizen of Nigeria, who was paroled into the United States at the New York, New York port of entry on March 10, 1996. On July 26, 1996, his status was adjusted to that of lawful permanent resident ("LPR") under Immigration and Nationality Act ("INA") § 245. He applied for and subsequently was issued a Certificate of Unites States Citizenship on February 17, 1998.
A subsequent criminal investigation resulted in Falodun being charged on December 18, 2001, in a multi-count indictment in the United States District Court for the District of Minnesota. See United States v. Bright Idada Falodun, et al., No. 0:01-cr-00380 (D. Minn.). Following a jury trial, Falodun was convicted on February 14, 2003, of Conspiracy to Commit Bank Fraud, in violation of 18 U.S.C. § 371; Bank Fraud, in violation 18 U.S.C. § 1344; Access Device Fraud, in violation of 18 U.S.C. § 1029(a)(2)(C)(1)(a); Possession of Five or More False Identifications, in violation of 18 U.S.C. §§ 1028(a)(3) and (c)(3); and Possession of Fifteen or More Unauthorized Access Devices, in violation of 18 U.S.C. § 1029(a)(3). Falodun wassentenced to 175 months' incarceration and ordered to pay restitution in the amount of $1,204,585.00.
On August 20, 2002, the former Immigration and Naturalization Service ("INS") issued a notice of intent to cancel Falodun's Certificate of Citizenship alleging that, based on information gathered in connection with the federal criminal proceeding, Falodun's certificate had been obtained by fraud. According to the INS, Falodun's putative adoptive father was actually his biological brother; his biological father, as of 2002, was alive and living in Nigeria; and Falodun's adoption certificate was fraudulent. In a decision dated April 21, 2003, the INS District Director concluded that the evidence provided by Falodun was insufficient to overcome the evidence supporting cancellation of citizenship. Falodun appealed the decision to the United States Citizenship and Immigration Services ("USCIS") Administrative Appeals Office ("AAO"), which dismissed the appeal on March 29, 2004.
On June 3, 2009, ICE officials encountered Falodun at the Federal Correctional Institution in Allenwood, Pennsylvania. ICE noted that Falodun's projected release date from the Bureau of Prisons ("BOP") was August 10, 2015. He was placed in immigration removal proceedings by a Notice to Appear, dated June 3, 2009, which charged him pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as a nonimmigrant having been convicted of an aggravated felony, as defined in INA § 101(a)(43)(M), 8 U.S.C. §1101(a)(43)(M), a law relating to an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in the Internal Revenue Code of 1986 Section 7201 () in which the revenue loss to the government exceeds $10,000; pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as a nonimmigrant having been convicted of an aggravated felony, as defined in INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), a law relating to an attempt or conspiracy to commit an offense described in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43); and pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as a nonimmigrant having been convicted of an aggravated felony, as defined in INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), a law relating to a theft offense or burglary offense for which a term of imprisonment of at least one year was imposed.
DHS served the NTA on Falodun on August 27, 2009. Upon completion of his sentence, Falodun was taken into DHS custody on August 10, 2015.
On June 6, 2016, an immigration judge ("IJ") denied Falodun's request to terminate his removal proceedings, rejected his citizenship claim, and ordered him removed from the United States to Nigeria. Falodun appealed the IJ's decision to Board of Immigration Appeals ("BIA") on June 30, 2016. On June 2, 2017, the BIA dismissed Falodun's appeal in a new precedent decision. Matterof Falodun, 27 I. & N. Dec. 52 (BIA 2017). The BIA held that "the provisions relating to the revocation of naturalization under [INA] section 340, including the cancellation of the Certificate of Naturalization under [INA] section 340(f), do not apply to persons, like [Falodun], who have obtained citizenship status derivatively and whose Certificate of Citizenship was cancelled under [INA] section 342 of the Act." 27 I. & N. Dec. at 52. The BIA reasoned that notwithstanding the Attorney General's previous recognition of Falodun's derivative citizenship, that official had the authority to declare that Falodun was never a citizen. See id. ().
A warrant of removal/deportation was issued for Falodun's removal on June 2, 2017. DHS sought to enforce the removal order against Falodun by requesting travel documents from the Nigerian consulate on or about June 8, 2017.
Previously, on June 6, 2017, Falodun had filed a petition for review ("PFR") with the United States Court of Appeals for the Second Circuit. Falodun v. Barr, 17-1813 (2d Cir. June 6, 2017). DHS halted its efforts to remove Falodun pursuant to the forbearance agreement between DHS and the Second Circuit. See In re Immigration Petitions for Review Pending in U.S. Court of Appeals for Second Circuit, 702 F.3d 160, 162 (2d Cir. 2012) ().
On June 11, 2017, Falodun officially filed a motion for a stay of removal with the Second Circuit. In an order dated January 18, 2018, the Second Circuit did not directly rule on Falodun's motion for a stay, noting that the forbearance policy remained in effect because the Government did not oppose a stay of removal. Falodun's PFR remains pending before the Second Circuit. Oral argument was held October 7, 2019.2
On February 8, 2018, Falodun filed the instant Petition ("Pet.") (ECF #1). Falodun's Petition asserts three grounds for habeas relief. First, he claims that his prolonged detention contravenes 8 U.S.C. § 1231(a)(6) as interpreted by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). See Pet. (ECF #1) ¶¶ 22-23 (Count One). Second, he argues that his continued detention violates his right to substantive due process under the Fifth Amendment, as interpreted by the Supreme Court in Zadvydas, because he is not significantly likely to be removed in the reasonably foreseeable future. See Pet. ¶¶ 24-27 (Count Two). Third, he argues that in light of his prolonged detention, the denial of a timely and meaningful opportunity to demonstrate that he should not be detained violates his right to procedural dueprocess under the Fifth Amendment. See Pet. ¶¶ 28-29 (Count Three).
The Government filed an Answer and Return and Memorandum of Law in Opposition to the Petition ( ) (ECF #5). Falodun filed a Reply on April 18, 2018 (ECF #6). He subsequently submitted a pleading consisting of a letter-brief and medical records (ECF #8) concerning treatment he received at Buffalo General Medical Center in March 2019, for rhabdomyolysis, possibly secondary to his contracting a viral illness and the medication risperidone, which he takes for depression and schizophrenia; acute kidney injury/acute tubular necrosis, secondary to rhabdomyolosis; hyperkalemia; metabolic acidosis; and transaminitis. Falodun was discharged back to the BFDF after a 10-day hospital stay.
The Petition was transferred to the undersigned on July 31, 2019 (ECF #9).
Finding a discrepancy in the Government's memorandum of law as to which statute—8 U.S.C. § 1231 ("§ 1231") or 8 U.S.C. § 1226 ("§ 1226")—authorized Falodun's detention, the Court requested further briefing from the Government to clarify its position on the statutory basis for detention in this case. The Government submitted a Supplemental Brief ( ) (ECF #14) asserting that § 1231 authorizes Falodun's detention. Joseph Moravec, Esq., an attorney representing Falodun in connection with his removal proceedings, filed a Supplemental Brief in Support of the Petition("Petr. Supp.") (ECF #15), arguing that § 1226 provides the statutory basis for his detention. The New York Civil Liberties Union ("NYCLU") sought (ECF #17) and received permission to file an amicus brief (ECF #22) in support of Falodun's Petition.
Title 28 U.S.C. § 2241...
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