Rasel v. Barr

Citation455 F.Supp.3d 38
Decision Date17 April 2020
Docket Number19-CV-1603
Parties Mohammad RASEL, Petitioner, v. William P. BARR, Attorney General, et al., Respondents.
CourtU.S. District Court — Western District of New York

Joseph David Moravec, Prisoners' Legal Services of New York, Albany, NY, for Petitioner.

Sarah Kathleen Pergolizzi, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, United States Attorney's Office, Western District of New York, for Respondents.

DECISION & ORDER

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

On June 19, 2018, a border patrol agent found the petitioner, Mohammad Rasel, in Texas not far from the international border between the United States and Mexico. He had crossed the border the previous day, and he claimed that he was fleeing political persecution in Bangladesh.

The Department of Homeland Security ("DHS"), Immigrations and Customs Enforcement ("ICE"), has detained Rasel since then—more than twenty-two months. He has petitioned this Court, for a second time, for a writ of habeas corpus, seeking his release from detention. Docket Item 1.

For the following reasons, Rasel's petition is granted in part.

BACKGROUND

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

Rasel is a thirty-one-year-old citizen and native of Bangladesh. Docket Item 1 at 3; Docket Item 8-2 at 2. DHS is not certain exactly where or when Rasel entered the United States, but he did so from Mexico on or about June 18, 2018. Docket Item 8-2 at 2. The next day, a border patrol agent found Rasel in the Rio Grande Valley and placed him in detention. Id. ; Docket Item 8-3 at 2-3. Rasel was "processed for [e]xpedited [r]emoval with [c]redible [f]ear." Docket Item 8-3 at 3. On August 7, 2018, an asylum officer concluded that Rasel had established a credible fear of persecution in Bangladesh because of his political opinion. Id. at 9.

On August 15, 2018, DHS served Rasel with a notice to appear, charging that he was removable as an immigrant who did not have a valid entry document at the time of entry, see 8 U.S.C. § (a)(7)(A)(i)(I), and as a noncitizen present in the United States without having been admitted or paroled, see id. § 1182(a)(6)(A)(i). Docket Item 8-3 at 4. The notice also informed Rasel that he was "an alien present in the United States who ha[d] not been admitted or paroled"—that is, "an applicant for admission." Id. That same day, DHS reached the conflicting determination that Rasel would be detained "[p]ursuant to the authority contained in section 236 of the Immigration and Nationality Act," 8 U.S.C. § 1226 —which governs the detention of removable noncitizens already present in the United States—"pending final administrative determination of [his] case." Docket Item 8-3 at 11. On August 29, 2018, DHS initiated removal proceedings against Rasel. Docket Item 8-2 at 3.

On October 2, 2018, Rasel, though counsel, appeared before an Immigration Judge ("IJ"). See Docket Item 8-3 at 12-21. He admitted the facts and allegations in the notice to appear and conceded removal. Id. at 15. The IJ extended Rasel's time to file an asylum application to November 1, 2018, and set a hearing for November 14, 2018. Id. at 17.

On October 23, 2018, an IJ denied Rasel's request under 8 C.F.R. § 236.1(c) for a change in custody. Id. at 23.

Rasel did not meet the deadline to apply for relief from removal,1 and, on November 13, 2018, the IJ granted DHS's motion to deem the application abandoned.2 Id. at 33-34.

The IJ therefore ordered Rasel removed to Bangladesh. Id. at 35.

On February 5, 2019, DHS denied Rasel's request that he be released on humanitarian parole. Id. at 38.

Rasel appealed the IJ's removal decision to the Board of Immigration Appeals ("BIA"), which denied the appeal on April 30, 2019. Id. at 39-40. On May 16, 2019, Rasel filed a petition for review of the BIA's decision with the United States Court of Appeals for the Second Circuit. See Rasel v. Barr , No. 19-1433 (2d Cir. May 16, 2019). On October 21, 2019, the Second Circuit granted Rasel's motion for a stay of removal. Motion Order, Rasel v. Barr , No. 19-1433, Docket Item 56 (2d Cir. July 8, 2019). Rasel's petition remains pending before the Second Circuit.

On June 10, 2019, DHS notified Rasel that it would review his custody status on July 19, 2019. Docket Item 8-3 at 44. More specifically, DHS advised Rasel 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." Id. (emphasis in original). And "[y]ou must also demonstrate that a travel document is not available in the reasonable [sic] foreseeable future to effect your removal from the United States." Id.

On July 25, 2019, Darius Reeves, ICE Deputy Field Office Director, Batavia, NY, issued a "Decision to Continue Detention." Id. at 45-46. Reeves found that Rasel

[has] limited education, familial support, and employment prospects. [Rasel] entered the United States without proper legal documents or a valid entry document and admitted to illegally crossing the international boundary without being inspected by an Immigration Officer. Given these factors, ICE considers that [Rasel] may pose a risk of flight.

Id. at 46. On November 14, 2019, DHS denied Rasel's second request that he be released on humanitarian parole. Id. at 59.

In the meantime, Rasel filed a petition for a writ of habeas corpus with this Court on April 8, 2019. Rasel v. Barr (" Rasel I "), No. 19-cv-458, 2019 WL 4257408, Docket Item 1. This Court denied that petition on September 9, 2019. See Rasel I , Docket Item 13. As this Court explained, "even assuming that Rasel's detention [was] unreasonably prolonged, the government ha[d] not violated his procedural due process rights," id. at 7, because Rasel was entitled only to a "searching and periodic ‘rigorous review of his eligibility for release’ based on individualized findings." Id. at 12-13 (quoting Clerveaux v. Searls , 397 F. Supp. 3d. 299, 321 (W.D.N.Y. 2019) ). The October 2018 bond hearing, along with the July 2019 custody status review, met that standard. Id. at 13. But the Court cautioned that it "expect[ed]" that Rasel would continue to " ‘receive searching periodic’ and ‘rigorous review[s] of his eligibility’ for release from detention to ensure that he remains free from prolonged arbitrary imprisonment," Chi Thon Ngo v. I.N.S. , 192 F.3d 390, 399 (3d Cir. 1999), and that, "[i]f he does not, he [could] again seek relief." Id. at 15.

On November 25, 2019, Rasel filed a second petition for a writ of habeas corpus under 28 U.S.C. § 2241. See Docket Item 1. The respondents answered on January 31, 2020, see Docket Item 8; and on February 25, 2020, Rasel replied, see Docket Item 9.

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) ). Rasel argues that his detention is unreasonably prolonged and therefore violates his rights to due process under the Fifth Amendment to the United States Constitution. See Docket Item 1 at 13-14. He also argues that the "government's categorical denial of bail to certain non-citizens violates" the Excessive Bail Clause of the Eighth Amendment to the United States Constitution. Id. at 14.

I. STATUTORY BASIS FOR RASEL'S DETENTION

The petitioner and the respondents disagree as to the statutory basis for Rasel's detention. Although the respondents argued in their opposition to Rasel's first petition that Rasel's detention was valid under 8 U.S.C. § 1226(a),3 which governs the detention of removable noncitizens (that is, those already present in the United States), it now argues that Rasel's detention is valid under 8 U.S.C. § 1225(b),4 which governs the detention of unadmitted noncitizens (that is, "applicants for admission"). Compare Rasel I , Docket Item 8-3 at 11, Docket Item 10 at 3, and Docket Item 11 at 2, 6 & n.4, with Docket Item 8-1 at 9. Rasel opposes this shift in position, arguing that, as a matter of both administrative law and principles of equity, the respondents are bound by their prior representations. See Docket Item 9 at 10-16.

This Court need not decide this issue, as Rasel challenges the constitutionality of his detention—not, for example, the proper application of a certain statutory or regulatory scheme. See Docket Item 1. And "due process protections ... are ‘not to be avoided by the simple label [the government] chooses to fasten upon its conduct or its statute.’ " Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1229, 200 L.Ed.2d 549 (2018) (Gorsuch, J. , concurring) (quoting Giaccio v. Pennsylvania , 382 U.S. 399, 402, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966) ). Indeed, Rasel concedes as much: "[W]hether the Court agrees with Mr. Rasel or [the r]espondents about the statutory authority for his detention, all that is really required is to determine whether procedures in which Mr. Rasel is forced to justify his own release can satisfy due process." See Docket Item 9 at 18; see also id. at 19 ("[T]o a great extent, the statutory text is irrelevant. Rather, this Court must be concerned with what the Constitution—not the [Immigration and Nationality Act]—says about prolonged detention."). Because there is no dispute that Rasel is held under one of the two pre-removal order statutes,5 this Court will not decide whether he, as a statutory matter, is an unadmitted or removable noncitizen. It turns instead to the merits of Rasel's constitutional claims.

II. DUE PROCESS

Rasel argues that his continued detention violates the Due Process Clause. See Docket Item 1 at 13-14. 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....

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