Kabba v. Barr

• Decision Date: 22 August 2019
• Docket Number: 19-CV-643
• Citation: 403 F.Supp.3d 180
• Parties: Alhassan KABBA, Petitioner, v. William P. BARR, U.S. Attorney General; Thomas Feeley, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement ; and Jeffrey Searls, Assistant Officer in Charge, Buffalo Federal Detention Facility, Respondents.
• Court: U.S. District Court — Western District of New York

403 F.Supp.3d 180

Alhassan KABBA, Petitioner,

v.William P. BARR, U.S. Attorney General; Thomas Feeley, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement ; and Jeffrey Searls, Assistant Officer in Charge, Buffalo Federal Detention Facility, Respondents.

19-CV-643

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

Signed August 22, 2019

Alhassan Kabba, Batavia, NY, pro se.

Elizabeth Robyn Chapman, U.S. Department of Justice - Civil Division, Washington, DC, United States Attorney's Office, Western District of New York, for Respondents.

DECISION AND ORDER

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

The pro se petitioner, Alhassan Kabba, is a lawful permanent resident of the United States. Docket Item 10-2 at 2. For more than eighteen months—since February 6, 2018—the Department of Homeland Security ("DHS") has detained him during his removal proceedings. Id. at 3. On May 16, 2019, Kabba filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging the constitutionality of his continued detention at the Buffalo Federal Detention Facility in Batavia, New York, Docket Item 1; on August 5, 2019, the government responded, Docket Item 10; and on August 12, 2019, Kabba replied, Docket Item 11.¹

For the reasons that follow, this Court conditionally grants Kabba's petition.

BACKGROUND

The following facts, taken from the record, come largely from filings with DHS. Other facts, provided by Kabba, are undisputed.

IMMIGRATION HISTORY, TIES TO THE UNITED STATES, AND CRIMINAL PROCEEDINGS

Kabba is a thirty-six-year-old man who is a native and citizen of Sierra Leone. Docket Item 10-2 at 2; Docket Item 12 at 3. He entered the United States as a refugee on May 15, 2001. Docket Item 10-2 at 2. On June 12, 2009, Kabba became a lawful permanent resident. Id.

On June 27, 2014, Kabba was convicted of second-degree rape in violation of New York State law. Id. at 3. He served a term of imprisonment and was released on parole on May 4, 2015. Docket Item 12 at 84. After several parole violations, resulting in several returns to state custody, Kabba eventually was taken into custody by DHS. Docket Item 10-2 at 3.

REMOVAL PROCEEDINGS

About a month after taking Kabba into custody, DHS placed him in removal proceedings on March 8, 2019. Id. at 3. On October 12, 2018, an immigration judge ordered Kabba removed to Sierra Leone. Id. at 4. Five months later, the Board of Immigration Appeals ("BIA") affirmed that removal order. Id. On March 20, 2019, Kabba filed a petition for review with the Second Circuit.² See Petition for Review of Agency Order, Kabba v. Barr , No. 19-695 (2d Cir. Mar. 20, 2019). The Second Circuit then stayed Kabba's removal pending review of his claims. Motion Order, Kabba v. Barr , No. 19-695 (2d Cir. June 20, 2019). Kabba's Second Circuit petition remains pending.

DETENTION-RELATED PROCEEDINGS

On February 6, 2018, Kabba entered DHS custody after he completed serving his New York State sentence. Id. at 3. Several months later, an immigration judge denied Kabba's request for a change in custody status under 8 C.F.R. § 236.1(c). Docket Item 12 at 16. The immigration judge determined that Kabba "is subject to mandatory detention due to his rape 2nd conviction, which is for an aggravated felony." Id. In a memorandum issued on August 9, 2018, another immigration judge explained that 8 U.S.C. § 1226(c) mandated Kabba's detention without bond because he "has an aggravated felony conviction." Id. at 20. On October 15, 2018, the BIA affirmed, id. at 31, and on October 26, 2018, Kabba petitioned the Second Circuit for review of that decision. Docket Item 10-2 at 4. On March 15, 2019, the court dismissed that petition for lack of jurisdiction. Motion Order, Kabba v. Barr , No. 18-3243 (2d Cir. Mar. 15, 2019).

On March 11, 2019, DHS notified Kabba that it would review his custody determination on June 3, 2019. Docket Item 10-2 at 4. DHS told Kabba that he might be released, depending on whether he could demonstrate that he was not a risk of flight or danger and that his removal was not reasonably imminent. More specifically, DHS advised him that "[r]elease ... is dependent on your demonstrating by ‘clear and convincing evidence’ that you will not pose a danger to the community and will not be a significant flight risk." Docket Item 12 at 39 (emphasis in original). And "[y]ou must also demonstrate that a travel document is not available in the reasonable [sic] foreseeable future to affect [sic] your removal from the United States." Id.

On June 3, 2019, DHS advised Kabba that it would not conduct the planned review because his removal was expected that month. Docket Item 10-2 at 5. But on July 3, 2019, after the Second Circuit had stayed Kabba's removal, DHS conducted the custody review and determined that Kabba should remain in custody pending judicial review of his removal order. Id. at 6. Kabba remains detained at the Buffalo Federal Detention Facility in Batavia, New York.

DISCUSSION

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) ). The government maintains that Kabba is validly detained under 8 U.S.C. § 1226(c) and that his "constitutional rights have not been violated." Docket Item 10 at 6-7. Kabba makes two arguments to the contrary. Docket Item 1 at 10-11. First, he argues that his prolonged detention is not justified by individualized findings made in "proceedings conforming to traditional standards of fairness encompassed in due process of law." Zadvydas v. Davis , 533 U.S. 678, 694, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (quoting Shaughnessy v. United States ex. rel Mezei , 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953) ). See id. at 10. Second, he argues that the "government's categorical denial of bail to noncitizens violates" the Excessive Bail Clause. Id. at 10-11.

Because Kabba 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, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

I. PROCEDURAL DUE PROCESS

Kabba argues that "[t]o justify [his] ongoing prolonged detention, due process requires that the government establish, at an individualized hearing before a neutral decisionmaker, that [his] detention is justified by clear and convincing evidence of flight risk or danger, even after consideration whether alternatives to detention could sufficiently mitigate that risk." Docket Item 1 at 10.

The Fifth Amendment's Due Process Clause prohibits 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 , 533 U.S. at 690, 121 S.Ct. 2491. "[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. (internal citations omitted) (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 Mezei , 345 U.S. at 212, 73 S.Ct. 625 ("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."). At the same time, Congress has "broad power over naturalization and immigration, [permitting it to] make[ ] rules that would be unacceptable if applied to citizens." Demore v. Kim , 538 U.S. 510, 521, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (quoting Mathews v. Diaz , 426 U.S. 67, 79-80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) ). The Due Process Clause is not offended by the mandatory detention of aliens for the "brief period necessary for their removal proceedings," id. at 513, 123 S.Ct. 1708 (emphasis added), but "a lawful permanent resident alien ... could be entitled to an individualized determination as to his risk of flight and dangerousness if the 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). "As the first step, the Court considers whether the alien's detention has been unreasonably prolonged." Id. "If it has not, then there is no procedural due process violation." Id. "But if it has, the Court proceeds to step two and ‘identifies the specific dictates of due process.’ " Id. (quoting Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ). If the government has not provided the procedural safeguards required by the Due Process Clause to an alien subject to unreasonably prolonged detention, "then his continued detention violates procedural due...