Resheroop v. Garland
| Decision Date | 03 January 2022 |
| Docket Number | 6:21-CV-06060 EAW |
| Citation | 577 F.Supp.3d 180 |
| Parties | Bharat RESHEROOP, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Alejandro Mayorkas, Secretary of the Department of Homeland Security, Thomas E. Feely, Field Office Director for Detention Removal, and Jeffrey Searls, Facility Director Buffalo Federal Detention Center, Respondents. |
| Court | U.S. District Court — Western District of New York |
Bharat Resheroop, Batavia, NY, Pro Se.
John D. Fabian, U.S. Attorney's Office, Buffalo, NY, United States Attorney's Office, for Respondents.
DECISION AND ORDER
Petitioner Bharat Resheroop ("Petitioner"), an immigration detainee currently detained at the Buffalo Federal Detention Facility ("BFDF") in Batavia, New York, filed the instant habeas corpus petition on January 22, 2021, seeking release from detention. (Dkt. 1). Petitioner argues that his continued detention violates 8 U.S.C. § 1231 and his substantive and procedural due process rights. (Dkt. 1 at 3-4).
Pending before the Court are Respondents’ motion to dismiss (Dkt. 9) and Petitioner's motion for leave to amend the petition (Dkt. 13). The Court has considered the arguments and evidence set forth in these filings as well as Petitioner's response to the motion to dismiss (Dkt. 11; Dkt. 12) and memorandum in support of his motion to amend (Dkt. 15) and Respondents’ opposition to Petitioner's motion to amend (Dkt. 16). For the reasons set forth below, the Court grants Respondents’ motion to dismiss and denies Petitioner's motion for leave to amend as moot.
Petitioner is a native and citizen of Guyana. (Dkt. 9-1 at ¶ 5). He entered the United States on or about October 25, 2014, as a nonimmigrant visitor with authorization to remain in the United States not beyond April 25, 2015. (Id. ). On April 1, 2019, Petitioner was convicted of conspiracy in the second degree arising out of the purchase and sale of two kilograms of cocaine in 2016. (Id. at ¶¶ 7-8). He was sentenced to two to six years of incarceration. (Id. at ¶ 8).
On February 26, 2021, the Department of Homeland Security ("DHS") Immigration and Customs Enforcement ("ICE") issued a notice to appear to Petitioner, charging him with remaining in the United States past the expiration of his visa in violation of § 237(a)(1)(B) of the Immigration and Nationality Act (the "INA"). (Id. at ¶ 9; Dkt. 9-2 at 16-17); see 8 U.S.C. § 1227(a)(1)(B). On March 27, 2020, Petitioner entered ICE custody and was notified that he would be held without bond. (Dkt. 9-1 at ¶ 10). At a hearing on April 15, 2020, Petitioner notified the immigration judge ("IJ") that he had obtained counsel and requested an adjournment. (Id. at ¶ 11). He also requested to be considered for bond. (Id. ).
On May 13, 2020, Petitioner conceded the charge that he remained in the United States longer than his visa permitted and indicated that he intended to apply for withholding of removal. (Id. at ¶ 13). Petitioner requested a bond hearing on May 27, 2020, and the IJ instructed him to make a motion including pertinent documentation. (Id. ).
The IJ issued an order on June 16, 2020, granting Petitioner's request for a bond hearing. (Id. at ¶ 16). On June 19, 2020, the IJ rescheduled the bond hearing because she lacked the necessary documentation related to Petitioner's state court conviction. (Id. at ¶ 17). On June 23, 2020, Petitioner withdrew his request for a bond hearing.2 (Dkt. 9 at 6; Dkt. 9-1 at ¶ 15; Dkt. 9-2 at 98). The IJ then held a hearing, denied Petitioner's application for withdrawal of removal, and ordered Petitioner removed to Guyana. (Dkt. 9-1 at ¶ 18).
On July 17, 2020, Petitioner filed a notice of appeal with the Board of Immigration Appeals ("BIA"). (Id. at ¶ 17). On December 9, 2020, the BIA remanded the matter to the IJ for further factfinding on Petitioner's application for withholding of removal. (Id. at ¶ 22). On January 11, 2021, the IJ issued a decision setting forth findings of fact, denying Petitioner's application for withholding of removal, and ordering Petitioner removed to Guyana. (Id. at ¶ 23).
Petitioner filed the instant petition for habeas corpus on January 22, 2021. (Dkt. 1). On or about February 10, 2021, Petitioner filed a notice of appeal of the IJ's decision. (Dkt. 9-1 at ¶ 24). The BIA set briefing due on April 20, 2021. (Id. ). The record before the Court does not reflect any further procedural developments.
The federal habeas corpus statute gives district courts jurisdiction to hear immigration-related detention cases. See 28 U.S.C. § 2241(c)(3) ; Demore v. Kim , 538 U.S. 510, 517-18, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (); Zadvydas v. Davis , 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (). District courts do not have jurisdiction over challenges to the legality of final orders of deportation, exclusion, and removal; jurisdiction to review such challenges rests exclusively in circuit courts. See Gittens v. Menifee , 428 F.3d 382, 384 (2d Cir. 2005) ().
Petitioner asserts that his continuing detention violates 8 U.S.C. § 1231 and his rights to both procedural and substantive due process. For the reasons set forth below, the Court finds dismissal of these claims without prejudice is required.
Petitioner first claims that his detention violates 8 U.S.C. § 1231(a)(6) because he has been detained pending his removal beyond the six-month period that the Supreme Court determined is presumptively reasonable in Zadvydas v. Davis , 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).3 (Dkt. 1 at 3). Petitioner argues that in Clark v. Martinez , 543 U.S. 371, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005), the Supreme Court extended the presumptively reasonable six-month period set forth in Zadvydas to inadmissible aliens. (Id. ). Because his detention exceeds the presumptively reasonable six-month period, Petitioner argues, release is warranted. (Id. ).
Respondents contend that Petitioner is detained pursuant to 8 U.S.C. § 1226(a) because ICE initiated the removal proceeding pursuant to § 237(a)(1)(B) of the INA for remaining in the United States past the expiration of his B-2 visa, and not because of his criminal conviction. (Dkt. 9 at 5, 8-9; Dkt. 9-1 at ¶ 9; Dkt. 9-2 at 16). As such, Respondents concede that Petitioner is entitled to the due process protections set out in Onosamba-Ohindo v. Barr , 483 F. Supp. 3d 159 (W.D.N.Y. 2020). (See Dkt. 9 at 11-12).
Section 1231 governs detention of "immigrants in the ‘removal period,’ the term used in the statute to describe the 90-day period following an order of removal during which ‘the Attorney General shall remove the alien.’ " Aparacio-Villatoro v. Barr , No. 6:19-cv-06294-MAT, 2019 WL 3859013, at *4 (W.D.N.Y. Aug. 16, 2019) (quoting 8 U.S.C. § 1231(a)(1)(A) ). The removal period begins "on the latest of the following": (i) "[t]he date the order of removal becomes administratively final[;]" (ii) "[i]f the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order[;]" or (iii) "[i]f the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement." 8 U.S.C. § 1231(a)(1)(B). None of the criteria set forth in 8 U.S.C. § 1231(a)(1)(B) applies to Petitioner and Petitioner is therefore not detained pursuant to 8 U.S.C. § 1231.
Petitioner's order of removal is not administratively final. The Code of Federal Regulations sets forth the criteria for determining whether an order of removal is final. See 8 C.F.R. § 1241.1. The relevant portion of 8 C.F.R. § 1241.1 provides:
An order of removal made by the immigration judge ... shall become final: (a) Upon dismissal by the Board of Immigration Appeals; (b) Upon waiver of appeal by the respondent; (c) Upon expiration of the time allotted for an appeal if the respondent does not file an appeal within that time; [or] (d) If certified to the Board or Attorney General, upon the date of the subsequent decision ordering removal....
The procedural posture of Petitioner's immigration proceedings does not satisfy any of these criteria.
Petitioner filed his petition on January 22, 2021. (Dkt. 9 at 7). Although on January 11, 2021, the IJ issued a second decision ordering Petitioner removed to Guyana, on or about February 10, 2021, Petitioner filed a notice of appeal with the BIA in which briefing was due April 20, 2021. (Id. ). As such, his appeal was pending before the BIA during the pendency of his petition, and there is no indication in the record that the BIA dismissed the appeal, that Petitioner waived appeal, that Petitioner has procedurally defaulted, or that the BIA or Attorney General issued a subsequent decision ordering removal. Therefore, the order for removal is not administratively final within the meaning of 8 U.S.C. § 1231(a)(1)(B)(i).
Furthermore, the removal order has not been judicially reviewed nor has a court ordered a stay of the order of removal. See 8 U.S.C. § 1231(a)(1)(B)(ii). Petitioner has not been released from detention or confinement under a proceeding other than an immigration proceeding. See 8 U.S.C. § 1231(a)(1)(B)(iii). For these reasons, Petitioner is not detained pursuant to 8 U.S.C. § 1231, and his allegation that his continued detention violates this statute is without merit.
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