Nguti v. Sessions

• Decision Date: 02 May 2017
• Docket Number: 6:16–CV–6703(LJV)
• Citation: 259 F.Supp.3d 6
• Parties: Edwin Fru NGUTI, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States; John F. Kelly, Secretary of the Department of Homeland Security; Thomas P. Brophy, Acting Field Office Director, Buffalo Field Office, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; and Joseph Kosan, Acting Facility Director, Buffalo Federal Detention Facility, Respondents.
• Court: U.S. District Court — Western District of New York

259 F.Supp.3d 6

Edwin Fru NGUTI, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General of the United States; John F. Kelly, Secretary of the Department of Homeland Security; Thomas P. Brophy, Acting Field Office Director, Buffalo Field Office, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; and Joseph Kosan, Acting Facility Director, Buffalo Federal Detention Facility, Respondents.¹

6:16–CV–6703(LJV)

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

Signed May 2, 2017

Daniel E. Jackson, Erie County Bar Association, Buffalo, NY, for Petitioner.

Hans Harris Chen, U.S. Department of Justice, Washington, DC, Mary Pat Fleming, Gail Y. Mitchell, U.S. Attorney's Office, Buffalo, NY, for Respondent.

ORDER

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

INTRODUCTION

This is one of at least two cases² before this Court in which a civil immigration detainee held at the Buffalo Federal Detention Facility has been denied his right to a bond hearing under Lora v. Shanahan , 804 F.3d 601 (2d Cir. 2015). Government officials in this district apparently have adopted a paradoxical interpretation of Lora , which has resulted in their providing aliens with serious criminal records better opportunities to obtain bail than similarly situated non-criminal aliens.

For the reasons set forth below, this Court holds—for a second time³ —that Lora and the due process concerns raised by indefinite detention require that 8 U.S.C. § 1226(a) detainees in prolonged detention (i.e., more than six months) receive Lora bond hearings. At those bond hearings, the burden is on the government to establish by clear and convincing evidence that the alien poses a risk of flight or danger to the community. Moreover, due process requires those bond hearings to be contemporaneously recorded.

This Court is mindful that Jennings v. Rodriguez , No. 15–1204—a case that concerns many of the same issues addressed in Lora and herein—currently is pending before the Supreme Court. That case was argued on November 30, 2016, and on December 15, 2016, the Court requested further briefing on issues directly relevant to the case at bar. It therefore is likely that the Supreme Court will soon confirm, clarify, or perhaps even upend the law in this area. But in the meantime, that is no reason to deny Nguti—a non-criminal alien who has been detained for close to two years—the relief to which he clearly is entitled under the law in this circuit.

BACKGROUND

The petitioner, Edwin Fru Nguti, is a civil immigration detainee currently held at the Buffalo Federal Detention Facility. On October 27, 2016, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing that he is being detained in violation of the Constitution or laws of the United States. Docket Item 1. On November 17, 2016, he filed an amended petition. Docket Item 3. This Court (Hon. David G. Larimer) ordered the government to respond, and the government did so on December 22, 2016. Docket Items 6 & 7. On March 31, 2017, this case was transferred from Judge Larimer to the undersigned. Docket Item 9.

The salient facts are not in dispute and are set forth in the record. Nguti is a "native and citizen of Cameroon" who was "taken into ICE custody on August 10, 2015, and has remained so continuously since that date." Docket Item 3 at ¶ 11. Thus, he has been in custody for more than one year and eight months. According to the government, Nguti's current detention is discretionary, pursuant to 8 U.S.C. § 1226(a). Docket Item 7 at 11, n. 9; see Docket Item 11 at 3–4. Although Nguti has previous convictions for driving while intoxicated, he has not been convicted of a crime that would trigger the application of 8 U.S.C. § 1226(c) (mandatory detention for aliens convicted of, among other things, an offense punished by a year or more in prison or an offense involving firearms, controlled substances, or moral turpitude).

Two months after the government responded to Nguti's petition, this Court issued its decision in Enoh v. Sessions , 236 F.Supp.3d 787 (W.D.N.Y. 2017), which granted a habeas petitioner's request for a Lora bond hearing in circumstances very similar to those here. On April 4, 2017, this Court therefore ordered the government to show cause why Nguti should not immediately be given a Lora bond hearing in light of this Court's decision in Enoh . Docket Item 10. This Court further ordered the government to explain certain statements in its submissions that seemed to be flatly contradicted by the record. Id.

DISCUSSION

I. THE PETITIONER'S ENTITLEMENT TO A LORA BOND HEARING

A. The Second Circuit's Decision in Lora v. Shanahan

In Lora v. Shanahan , the Second Circuit observed that a civil immigration detainee "who contests his or her removal regularly spends many months and sometimes years in detention due to the enormous backlog in immigration proceedings." 804 F.3d 601, 605 (2d Cir. 2015). Because of that worsening problem, there were—as of October 2015—"thousands of individuals in immigration detention within the jurisdiction of [the Second Circuit] who languish in county jails and in short-term and permanent ICE facilities." Id.

As the Second Circuit recognized, "the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings." Id. at 606 (quoting Demore v. Kim , 538 U.S. 510, 526, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) ). Indeed, Congress has been "quite clear that it wanted" detainees with serious criminal records and who "are dangerous or have no ties to a community" to be detained pending deportation. Lora , 804 F.3d at 605. But "the indefinite detention of a non-citizen ‘raise[s] serious constitutional concerns' in that ‘[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.’ " Id. at 606 (alterations in original) (quoting Zadvydas v. Davis, 533 U.S. 678, 682, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ). And some detainees, "for a variety of individualized reasons, are not dangerous, have strong family and community ties, are not flight risks and may have meritorious defenses to deportation at such time as they are able to present them." Lora , 804 F.3d at 605.

Based on those considerations and principles of statutory interpretation, the Second Circuit held that "in order to avoid the constitutional concerns raised by indefinite detention," "an immigrant detained pursuant to [ 8 U.S.C. §] 1226(c)"—which provides for the mandatory detention of criminal aliens pending removal proceedings—"must be afforded a bail hearing before an immigration judge within six months of his or her detention." Lora , 804 F.3d at 616. The Second Circuit also "[f]ollow[ed] the Ninth Circuit" in holding that at such a hearing, "the detainee must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community." Id. (citing Rodriguez v. Robbins , 715 F.3d 1127, 1131 (9th Cir. 2013) ).

B. 8 U.S.C. § 1226(a) and § 1226(c)

As the lower court's decision in Lora noted, there are "two distinct provisions governing an alien's detention while removal proceedings are pending." Lora v. Shanahan , 15 F.Supp.3d 478, 482 (S.D.N.Y. 2014) (quoting Straker v. Jones , 986 F.Supp.2d 345, 351 (S.D.N.Y. 2013) ). "The first provision"— 8 U.S.C. § 1226(a) —"provides for [discretionary] detention during removal proceedings subject to an individualized bond hearing."

Lora , 15 F.Supp.3d at 482. "Under the second provision"— 8 U.S.C. § 1226(c) —which is "entitled ‘Detention of criminal aliens,’ aliens falling within certain enumerated categories ‘shall’ be mandatorily detained without a hearing." Lora , 15 F.Supp.3d at 482–83. Broadly speaking, then, the detention of a criminal alien facing possible deportation is mandatory under § 1226(c), while the detention of a non-criminal alien facing possible deportation is discretionary under § 1226(a).

The term "individualized bond hearing," as quoted in the above paragraph, refers to a procedural protection to which non-criminal detainees are entitled under Department of Homeland Security regulations. More specifically:

In connection with § 1226(a), the Department of Homeland Security ("DHS") promulgated regulations setting out the process by which a non-criminal alien may obtain release. The regulations provide that, in order to obtain bond or conditional parole, the "alien must demonstrate to the satisfaction of the [decision maker] that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding." 8 C.F.R. § 1236.1(c)(8). The District Director makes the initial custody determination, and the alien has the right to appeal an adverse decision to the IJ, and then to the BIA. Id. § 1236.1(d)(1), (3).

Sopo v. U.S. Attorney Gen. , 825 F.3d 1199, 1208 (11th Cir. 2016) (alteration in original). The regulations did not provide a similar procedure for criminal detainees. See id. ("Under § 1226(c), custody is mandatory for criminal aliens throughout the entirety of their removal proceedings, and there is no statutory possibility for release on bond.").

The bond hearing described in the regulations differs significantly from what would later be called a " Lora bond hearing" in this circuit (or a " Casas bond hearing" in the Ninth Circuit). For example, a Lora bond hearing is available only after "prolonged" detention (i.e., more than six months), whereas the regulations provide § 1226(a) detainees with earlier opportunities to obtain release. A Lora bond hearing also assigns the government the burden to prove "by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community," while the regulations place the burden of proof on the detainee.

If the government's position in the case at bar were...