Rodriguez v. Barr
| Decision Date | 23 September 2020 |
| Docket Number | 20-cv-00886-LJV |
| Citation | 488 F.Supp.3d 29 |
| Parties | Olvin Geovany RODRIGUEZ, Petitioner, v. William BARR, United States Attorney General; Mr. Kevin McAleenan, Secretary of the Department of Homeland Security; Mr. Thomas Feely, Field Office Director for Detention Removal; Mr. Jeffery Searls, Facility Director Buffalo Federal Detention Center ; Michael Ball, SDDO, Respondents. |
| Court | U.S. District Court — Western District of New York |
Olvin Geovany Rodriguez, Batavia, NY, pro se.
David M. Coriell, U.S. Attorney's Office, Buffalo, NY, Karen L. Melnik, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondents.
DECISION & ORDER
Olvin Geovany Rodriguez has been detained in the custody of the United States Department of Homeland Security since June 5, 2018—nearly 28 months. Docket Item 5-2 at 29. On July 14, 2020, Rodriguez filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging the validity of his detention at the Buffalo Federal Detention Facility in Batavia, New York. Docket Item 1. On August 27, 2020, the respondents answered the petition, Docket Items 5, 6; and on September 10, 2020, Rodriguez replied, Docket Item 7.
For the reasons that follow, this Court grants Rodriguez's petition in part.
The following facts, taken from the record, come largely from filings with the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE").
Rodriguez is a native and citizen of Honduras. See Docket Item 1 at 1; Docket Item 5-2 at 22. He first entered the United States in 1995 at an unknown place without being admitted or paroled by an immigration officer. Id. at 3, 23-24.
On August 18, 1999, Rodriguez applied for temporary protected status with the Immigration and Naturalization Service. Id. at 2-7. He failed to submit any evidence supporting his application, however, resulting in its denial. Id. at 8-10. On August 15, 2006, Rodriguez departed the United States via a TACA Airlines flight. Id. at 24. Then, sometime before November 2017, Rodriguez re-entered the United States without being admitted or paroled by an immigration officer. Id.
On April 5, 2018, Rodriguez was convicted of disorderly conduct after pleading guilty in Nassau District Court, Hempstead, New York. Id. at 11. He was sentenced to a term of incarceration of 15 days. Id.
On May 15, 2018, Rodriguez was convicted, again after pleading guilty in the same court, of criminal possession of a controlled substance in the seventh degree. Id. at 16. He was sentenced to a term of incarceration of six months, and his driver's license was suspended for that same time period. Id.
On June 5, 2018, DHS served Rodriguez with a "Notice to Appear," charging that he was subject to removal from the United States under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States without having been admitted or paroled. See Docket Item 5-2 at 30-32. That same day, DHS took Rodriguez into custody, id. at 29, and also determined that he would continue to be detained pending a final administrative determination of his case, id. at 33-34. Although the respondents represent that DHS found Rodriguez subject to mandatory detention under 8 U.S.C. § 1226(c), see Docket Item 5-1 (declaration of Robert Morris, ICE Deportation Officer) at 4, DHS Officer Bryan Flanagan in fact checked the box "discretionary detention under [ section] 1226(c)" on a form entitled "Addendum to Notice of Custody Determination," Docket Item 5-2 at 34.
Rodriguez first appeared before an Immigration Judge ("IJ") on September 10, 2018. Docket Item 5-4 (declaration of Elizabeth Burgus, Paralegal Specialist, Executive Office for Immigration Review) at 2. That hearing was adjourned to November 7, 2018, id. at 2, when the IJ denied Rodriguez's request to be released on bond, Docket Item 5-2 at 35; Docket Item 5-3 at 1-5. The IJ first found that Rodriquez was subject to mandatory detention under section 1226(c) because "there [was] reason to believe that he [was] or ha[d] been an illicit trafficker in [a] controlled substance." Docket Item 5-3 at 2 (citing 8 U.S.C. § 1182(a)(2)(C) ). The IJ then noted that even if Rodriguez was subject only to discretionary detention, the IJ still would deny the request because Rodriguez "ha[d] not established that he [was] not a danger to the community." Id. at 4. The Board of Immigration Appeals ("BIA") affirmed that decision on April 18, 2019, upholding both grounds for denying Rodriquez's request for release. Id. at 6-8. Since that time, DHS has three times—in April, June, and July 2020—determined that Rodriguez's continued detention is justified because he "ha[d] not established to ICE's satisfaction that [he] [was] not a flight risk." Id. at 23, 25-26; see also id. at 32.
On November 7, 2018, Rodriguez, through counsel, applied for relief from removal. Docket Item 5-4 at 2. The IJ subsequently granted five adjournments—one "at the request of [Rodriquez]," one "to allow [Rodriquez] time to seek [new] representation," two to "allow [Rodriquez] time to prepare," and one "due to a malfunction of the televideo." Id. at 2-3. On July 3, 2019, the IJ denied Rodriguez's applications for relief from removal and order him removed to Honduras. Docket Item 5-3 at 9-10.
On July 12, 2019, Rodriguez appealed that decision to the BIA, Docket Item 5-4 at 3, which dismissed the appeal on December 9, 2019, Docket Item 5-3 at 11-12. On December 27, 2019, Rodriguez petitioned the United States Court of Appeals for the Second Circuit for review of the BIA's decision and for a stay of removal. See Rodriguez v. Barr , No. 19-3271 (2d Cir. 2019). That petition is pending. See id.
Rodriguez remains in DHS custody at BFDF. Docket Item 5-1 at 7.
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 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 Rodriguez is validly detained under 8 U.S.C. § 1231(a) as a noncitizen subject to a final order of removal. Docket Item 6 at 10-16.
Rodriguez disagrees for three reasons. First, he contends that his detention for over six months is "unlawful and contravenes 8 U.S.C. § 1231(a)(6) as interpreted by the Supreme Court in Zadvydas [v. Davis , 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ]." Docket Item 1 at 3. The Court construes Rodriguez's first claim as arguing that his continued detention violates 28 U.S.C. § 1231(a)(6) because there is "good reason to believe that there is no significant likelihood of [his] removal in the reasonably foreseeable future."2 See Zadvydas , 533 U.S. at 701, 121 S.Ct. 2491. Second, Rodriguez argues that his "indefinite" detention violates his right to substantive due process under the Fifth Amendment of the United States Constitution.
Id. at 4. And third, he argues that his detention without "a timely and meaningful opportunity to demonstrate that [he] should not be detained" violates his right to "procedural due process" under the Fifth Amendment. Id. at 4.
This Court begins by considering the statutory basis for Rodriguez's detention in order to evaluate his first challenge, alleging that his continued detention violates 8 U.S.C. § 1231 as interpreted by the Supreme Court in Zadvydas , 533 U.S. at 701, 121 S.Ct. 2491. The government and Rodriguez seem to agree that Rodriguez's detention is governed by 8 U.S.C. § 1231(a). See Docket Item 1 at 2; Docket Item 6 at 10-16. But this Court disagrees and finds that Rodriguez's detention is governed by 8 U.S.C. § 1226.
"Broadly speaking, section 1226 governs the detention of immigrants who are not immediately deportable." Hechavarria v. Sessions , 891 F.3d 49, 57 (2d Cir. 2018). Section 1231, on the other hand, "addresses the ‘removal period’ for immigrants facing deportation." Id. at 53. "[T]he ‘removal period’ [is] 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 [noncitizen].’ " Id. at 54 (quoting 8 U.S.C. § 1231(a)(1)(A) ).
Id. at 54-55 (quoting 8 U.S.C. § 1231(a)(1)(B) ).
Rodriguez has asked the Second Circuit to review the BIA's decision and to stay his removal. See Rodriguez , No. 19-3271 (2d Cir. 2019). Under DHS's forbearance agreement with the Second Circuit, "DHS will not remove a [noncitizen] who has requested a stay of removal with a petition for review of an immigration order of removal unless a government motion opposing the stay is granted by the court or the [noncitizen's] stay motion is otherwise denied." Sankara v. Whitaker , 2019 WL 266462, at *4 (W.D.N.Y. Jan. 18, 2019). This Court accordingly has held that until a Second Circuit panel rules on a noncitizen's request for a stay of his removal, the "forbearance agreement amounts to a court ordered stay of the removal of the [noncitizen]." See Hemans v. Searls , 2019 WL 955353, at *3 (W.D.N.Y. Feb. 27, 2019) ; Sankara , 2019 WL 266462, at *4. In other words, this Court construes the forbearance agreement as effectively rendering Rodriguez's removal stayed under 8 U.S.C. § 1231(a)(1)(B)(ii). Therefore, Rodriguez is detained under section 1226.
Because Rodriguez is not detained under section 1231(a), this Court rejects his argument that his...
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