Rasel v. Barr
| Decision Date | 09 September 2019 |
| Docket Number | 19-CV-458 |
| Parties | MOHAMMAD RASEL, Petitioner, v. WILLIAM BARR; THOMAS FEELEY, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement; JEFFREY SEARLS, Facility Acting Director Buffalo Federal Detention Facility, Respondents. |
| Court | U.S. District Court — Western District of New York |
On June 19, 2018, a border patrol agent found the pro se 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") has detained Rasel since that border patrol agent found him nearly fifteen months ago. He now petitions this Court for a writ of habeas corpus, seeking release from his detention. For the following reasons, Rasel's petition is denied.
The following facts, taken from the record, come largely from filings with the United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS"). Other facts, provided by Rasel, are undisputed.
Rasel is a thirty-one-year-old man who is a citizen and native of Bangladesh. Docket Item 1 at 3; Docket Item 10-1 at 2. He came to the United States "seeking refuge and a better future." Docket Item 1 at 3. His cousin is a citizen of the United States who lives in Brooklyn, New York, with a wife and two children, all United States citizens. Docket Item 1 at 33.
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 10-1 at 2. The next day, a border patrol agent found Rasel in the Rio Grande Valley and placed him in detention. Id. 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.
On August 29, 2018, DHS began removal proceedings against Rasel. Id. at 3. According to an immigration judge, on November 14, 2018, "by and though his counsel[, Rasel] admitted to the facts and allegations in the Notice to Appear and conceded removal." Docket Item 10-2 at 17. The immigration judge gave Rasel until November 1, 2018, to file an application for asylum and withholding of removal, but Rasel did not doso. Id. After the government moved to "deem the request for relief abandoned and dismissed for lack of prosecution," the immigration judge held a hearing on November 14, 2018, and determined that Rasel did not show "good cause" for missing the deadline. Id. at 17-18. Therefore, the immigration judge ordered Rasel removed to Bangladesh. Id. at 18.
The Board of Immigration Appeals ("BIA") denied Rasel's appeal on April 30, 2019. Id. at 20-21. On May 10, 2019, DHS sent a letter to the Embassy of the People's Republic of Bangladesh requesting that it provide Rasel and DHS with a travel document within thirty days authorizing Rasel to return to that country. Id. at 22-23.
On May 16, 2019, Rasel filed a petition for review of the BIA's decision with the Second Circuit. Petition, Rasel v. Barr, No. 19-1433 (2d Cir. May 16, 2019). The Second Circuit granted Rasel's motion for a stay of removal on July 8, 2019. Motion Order, Rasel v. Barr, No. 19-1433 (2d Cir. July 8, 2019). Rasel's petition remains pending before the Second Circuit.
On August 15, 2018, DHS determined that Rasel was detained under 8 U.S.C. § 1226(a) and that his detention would continue pending a final administrative decision in his case. Id. About three months later, an immigration judge denied Rasel's request under 8 C.F.R. § 236.1(c) for a change in custody. Docket Item 10-2 at 13.1 Rasel laterrequested that he be released on humanitarian parole. On February 5, 2019, a DHS agent denied that request. Docket Item 10-2 at 19.
On June 10, 2019, DHS told Rasel that it would review his custody status on July 19, 2019. Docket Item 10-1 at 6; Docket Item 10-2 at 25. 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.
In the meantime, Rasel filed a petition for a writ of habeas corpus with this Court on April 8, 2019. Docket Item 1. On August 2, 2019, the government responded, Docket Items 10, 11; and on August 15, 2019, Rasel replied, Docket Item 12.
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 ofthe 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 Rasel is validly detained under 8 U.S.C. § 1226(a) and that his "constitutional rights have [not] been violated." Docket Item 10 at 5. Rasel makes two arguments to the contrary. Docket Item 1 at 8. 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 (2001) (quoting Shaughnessy v. United States ex. rel Mezei, 345 U.S. 206, 212 (1953)). See id. Second, he argues that the "government's categorical denial of bail to certain non citizens violates" the Excessive Bail Clause. Id.
Because Rasel 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).
Rasel argues that "[t]o justify [his] ongoing detention, due process requires that the government establish, at an individualized hearing before a neutral decision maker, 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 8.
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. "[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, United States v. Haymond, 139 S. Ct. 2369, 2373 (2019) ().
"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 (1982); see also Mezei, 345 U.S. at 212 (). 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 (2003) (quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (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 (emphasis added), but a detained 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 (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 (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 process." Id.
In this case, even assuming...
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