Hemans v. Searls
| Decision Date | 27 February 2019 |
| Docket Number | 18-CV-1154 |
| Parties | MILTON HEMANS, Petitioner, v. JEFFREY SEARLS, Field Office Director Buffalo Federal Detention Facility, Respondent. |
| Court | U.S. District Court — Western District of New York |
Milton Hemans is a citizen of Jamaica who has been detained for more than two years and three months while he awaits judicial review of his final order of removal. On October 19, 2018, Hemans filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging the validity of his detention at the Buffalo Federal Detention Facility in Batavia, New York. Docket Item 1. On February 4, 2019, the respondents answered, Docket Item 9, and on February 21, 2019, Hemans replied, Docket item 10.
For the reasons that follow, this Court conditionally grants Hemans's petition.
The following facts, taken from the record, come largely from filings with the United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS"). Hemans is a 55-year-old man who is a native and citizen of Jamaica. Docket Item 9 at 15, 31. He was last admitted to the United States on January 20, 1996, on a tourist visa, which authorized him to stay in the country for six months. Docket Item 9 at 15.
Hemans worked as a handyman after arriving in the United States. Docket Item 1 at 19. Between 2000 and 2008, he worked in various restaurants. Docket Item 1 at 20. After 2008, he returned to handyman work until he was employed at a Belizean restaurant in 2011. Id. Hemans now is married to a United States citizen. Id. at 3. He has four children, three of whom are United States citizens. Id. The Board of Immigration Appeals ("BIA") has recognized that Hemans "has significant family ties here" and that his "family is likely to experience hardship in the event of his removal."1 Id. at 13.
In 2008, 2009, and 2011, Hemans was convicted of several violations of the New York Vehicle and Traffic Law in Queens County Criminal Court. Docket Item 9 at 16, 18. On February 1, 2010, DHS served Hemans with a Notice to Appear that charged him with being subject to removal from the United States for remaining in the United States longer than permitted. Id. at 61-62.
For one of Hemans's convictions, the court sentenced him to thirty days' imprisonment. Id. at 18. On April 7, 2011, upon Hemans's release from state custody, DHS took him into federal custody, and Hemans requested a hearing on his custody determination before an immigration judge. Id. at 18-19, 66. On April 13, 2011, Hemans was ordered removed "in absentia," but that error was corrected about a week later when DHS recognized that he had been in DHS custody at the time of the hearing and an immigration judge reopened his removal proceeding. Id. at 94. On June 8,2011, the immigration judge ordered Hemans released from custody on a $5,000 bond. Id. at 67.
On October 17, 2011, Hemans filed an application to register permanent residence or adjust status along with a visa packet to the United States Citizenship and Immigration Services ("USCIS"). Id. at 94.
On September 24, 2012, Hemans married a United States citizen. Id. at 19. On October 15, 2012, his spouse filed a Form I-130, Petition for Alien Relative, on his behalf with USCIS. Id. at 19, 94. On March 6, 2013, an immigration judge administratively closed Hemans's removal proceeding to give him the opportunity to pursue his I-130 petition. Id. at 20, 94. But USCIS denied that petition on February 21, 2014. Id. at 20, 94.
On February 10, 2016, Hemans pleaded guilty to one charge of felony assault in the second degree (with intent to cause physical injury to an officer/firefighter/EMT/Nurse) in violation of New York state law. Id. at 21, 36. The charge arose from an incident that occurred on September 21, 2014. Id. at 33. He was sentenced to 30 months' imprisonment and remanded to state custody at the New York State Department of Corrections and Community Services Ulster Correctional Facility. Id. at 21, 37. He began serving his state sentence on April 14, 2016. Id. at 37.
On June 16, 2016, DHS revoked the $5,000 bond Hemans had previously posted. Id. at 21. On November 10, 2016, upon his release from the Ulster Correctional Facility, Hemans was taken into DHS custody and transferred to the Buffalo Federal Detention Facility. Id. at 21-22.
On February 28, 2017, Hemans had a custody hearing before an immigration judge. Id. at 22. Immigration Judge John B. Reid denied Hemans release on bond. Id. at 82. Hemans did not appeal that determination. Id. at 22.
On April 18, 2017, Hemans's son, a United States citizen, filed a Form I-130, Petition for Alien Relative, on Hemans's behalf. Id. That petition was approved on September 15, 2017. Id.
On March 6, 2018, Hemans filed an application to adjust his status. Id. On May 4, 2018, Immigration Judge Philip J. Montante Jr. denied Hemans's application to adjust his status and ordered him removed. Id. at 23, 53, 84. On May 31, 2018, Hemans appealed this decision to the BIA. Id. at 23. The BIA denied his appeal on October 3, 2018, id. at 86, and on October 16, 2018, DHS submitted a formal letter to the Embassy of Jamaica asking for a travel document to facilitate Hemans's return. Id. at 87.
On October 22, 2018, Hemans filed a pro se petition for review in the United States Court of Appeals for the Second Circuit. See Hemans v. Barr, No. 18-3132 (2d Cir.), Docket Item 1. He also moved to stay his removal. Id., Docket Items 9, 16, 17. Both his petition for review and his motion to stay his removal remain pending. See id. Even though the Second Circuit has not yet ruled on Hemans's motion for a stay, DHS may not execute his removal because of the forbearance agreement between DHS and the Second Circuit. Docket item 9 at 25; see also Luna-Aponte v. Holder, 743 F. Supp. 2d 189, 191 (W.D.N.Y. 2010).
Hemans remains in custody but says that he is "open to supervised electronic monitoring, as a condition of bond." Docket Item 1 at 10.
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 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)). The government maintains that Hemans is validly detained under 8 U.S.C. § 1231(a). Docket Item 9-1 at 14-19. Hemans makes three arguments to the contrary. Docket item 1. First, he claims that his detention violates § 1231(a)(6) as interpreted by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). See id. at 9. Second, he argues that "his prolonged detention more than six months violates his right to substantive due process under the Fifth Amendment." Id. at 9-10. Third, he argues that "his prolonged detention more than six months without a meaningful review of his detention, in accordance with Federal regulations violates his right to Procedural Due Process under the Fifth Amendment." Id. at 10. He also requests a stay of removal for a period of 120 to 180 days pending the resolution of his petition before the Second Circuit. Id. at 9.
Because Hemans is proceeding pro se, this Court holds his submissions "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972).
This Court first considers the statutory basis for Hemans's detention. The government contends that Hemans's detention is governed by 8 U.S.C. § 1231(a). Docket Item 9-1 at 14-18. For the reasons stated in Sankara v. Whitaker, 2019 WL 266462, at *4-*5 (W.D.N.Y. Jan. 18, 2019), this Court disagrees. "Section 1231assumes that the immigrant's removal is both imminent and certain." Hechavarria v. Sessions, 891 F.3d 49, 55 (2d Cir. 2018). "The definition of the removal period is dependent upon the assumption that no substantive impediments remain to the immigrant's removal." Id. "Because the combined effect of [Hemans's] Second Circuit proceeding and the forbearance agreement creates a substantive impediment to his removal, . . . this Court concludes that . . . the forbearance agreement amounts to a court ordered stay of the removal of the alien," Sankara, supra at *4 (internal citations ommitted), under 8 U.S.C. § 1231(a)(1)(B).2 Thus, Hemans's removal period has not begun, and he remains detained under § 1226.
The government argues that "allowing an alien to revert back to detention under 8 U.S.C. § 1226 and obtain bond hearings based solely on the triggering of the forbearance policy would allow aliens to avoid the detention provisions of § 1231, even in cases where there is no likelihood of success on the merits of the petition for review, or worse, where the petition is altogether frivolous." Docket Item 9-1 at 17. But the government's position is inconsistent with the Second Circuit's reasoning in Hechavarria. See 891 F.3d at 55. And the government's position is plainly incorrect as to § 1226(c): the Supreme Court has concluded that the statute does not require criminal aliens detained under that subsection "to be released under any circumstancesother than those expressly recognized by the statute." Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018).
As for § 1226(a), that statute does require a bond hearing before an immigration judge to determine whether the alien's detention is necessary while removal proceedings are pending. See id. at 837 (). But Hemans already has had his § 1226(a) bond hearing, and § 1226(a) does not require "periodic bond hearings every six months." Id. at 847. Furthermore, Jennings strongly implies that § 1226(a) cannot be read to include other significant procedural protections in order to avoid constitutional concerns. See id. at 847-848.
In light of Jennings, then, the government's argument lacks merit. The alien simply will not obtain statutory bond...
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