Rodriguez v. Feeley
| Decision Date | 15 December 2020 |
| Docket Number | 20-CV-97 (JLS) |
| Citation | 507 F.Supp.3d 466 |
| Parties | Nelson SOSA RODRIGUEZ, Petitioner, v. Thomas FEELEY, in his official capacity as Field Office Director, Buffalo Field Office, U.S. Immigration & Customs Enforcement, Jeffrey Searls, in his official capacity as Acting Assistant Field Office Director and Administrator, Buffalo Federal Detention Facility, Kevin K. McAleenan, in his official capacity as Acting Secretary, U.S. Department of Homeland Security William P. Barr, in his official capacity as Attorney General, U.S. Department of Justice, Respondents. |
| Court | U.S. District Court — Western District of New York |
Jillian E. Nowak, Prisoners' Legal Services of New York, Buffalo, NY, for Nelson Sosa Rodriguez.
David M. Coriell, U.S. Attorney's Office, Buffalo, NY, United States Attorney's Office, Western District of New York, for William P. Barr, Jeffrey J. Searls, Kevin K. McAleenan, Thomas E. Feeley.
DECISION AND ORDER
Nelson Sosa Rodriguez is a native and citizen of El Salvador who entered the United States in March 2013. He has been detained at the Buffalo Federal Detention Facility pending removal proceedings for approximately 27 months, and petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.2
Sosa Rodriguez is currently detained under 8 U.S.C. § 1226(c). Section 1226(c) requires detention of aliens convicted of certain crimes pending removal proceedings and does not afford a hearing at which the alien may advocate for release. Sosa Rodriguez argues that Section 1226(c), as applied to him, violates his Fifth Amendment procedural due process rights because it requires his continued detention, without a bond hearing, pending a final removal order. Sosa Rodriguez also argues that his continued detention violates the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706(2)(A), (E). In addition, he argues that he has not received adequate medical care while detained by the United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS"), in violation of the Rehabilitation Act, 29 U.S.C. § 794.
Sosa Rodriguez seeks "immediate[ ] release." Dkt. 1, at 15.3 In the alternative, Sosa Rodriguez asks that the Court order the government to hold a bond hearing at which he may contest his continued detention. If the Court grants this request, Sosa Rodriguez asks that DHS establish, by clear and convincing evidence, that his continued detention is necessary and justified. Id. He also asks this Court to enjoin the government from transferring him outside of this district during the pendency of his petition. Id.
For the reasons that follow, the Court denies the relief Sosa Rodriguez requests and dismisses his petition without prejudice.
It is unclear when and where Sosa Rodriguez entered the United States, but he did so without inspection. Dkt. 4, at 2 ¶ 3; Dkt. 4-1, at 2 ¶ 5. By Sosa Rodriguez's account, it was at some point in March 2013. Dkt. 1, at 7 ¶ 34. His father, according to Sosa Rodriguez, is a "prominent military figure" in El Salvador. Id. at 7 ¶ 32. Sosa Rodriguez fled El Salvador because he was "attacked and threatened by MS-13 gang members, who sought [his] military intelligence, skills, and influence." Id. at 7 ¶ 33.
According to the government, Sosa Rodriguez has been criminally convicted three times since entering the United States. He was first convicted on November 17, 2016, in Nassau County First District Court, of violating New York State's Vehicle and Traffic Law ("VTL") § 1192.2, which prohibits operating a motor vehicle while intoxicated. Dkt. 4, at 3 ¶ 5; Dkt. 5, at 3-4. The court granted a conditional discharge, imposed a fine, and (despite that Sosa Rodriguez never had a New York State driver's license) "revoked" his license. Dkt. 4, at 3 ¶ 5; Dkt. 5, at 4 n.2.
Sosa Rodriguez's second and third convictions resulted from a car accident on April 16, 2016. Dkt. 1, at 7 ¶¶ 36-37; Dkt. 4, at 3 ¶ 6; Dkt. 5, at 4. That day, Sosa Rodriguez lost control of the car that he was driving and hit a tree. The car "split into two pieces." Dkt. 4, at 3 ¶ 6. The accident seriously injured Sosa Rodriguez, who lost one of his legs as a result. Id. ; see also Dkt. 1, at 7 ¶ 36. The passenger in the car died from his injuries. Id. On March 1, 2018, Sosa Rodriguez was convicted in the Supreme Court of New York, Nassau County, of manslaughter in the second degree, in violation of New York State Penal Law § 125.15(1), and sentenced to a term of imprisonment of one to three years. Dkt. 4, at 3-4 ¶ 8; Dkt. 1, at 7 ¶ 37. Sosa Rodriguez was also convicted of "Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree" in violation of VTL § 511.2. Dkt. 4, at 4 ¶ 8. He was fined and sentenced to six months’ imprisonment. Id.
DHS lodged an Immigration Detainer on May 8, 2018, asking to be notified before Sosa Rodriguez was released from state custody. Dkt. 4, at 4 ¶ 9; Dkt. 4-1, at 4 ¶ 11; Dkt. 4-2, Ex. A at 10. On May 30, 2018, Sosa Rodriguez was placed in immigration removal proceedings by a Notice to Appear ("NTA"). Dkt. 4, at 4 ¶ 10; Dkt. 4-1, at 4 ¶ 12; Dkt. 4-2, Ex. A at 11-13.
The NTA charged Sosa Rodriguez as being a native and citizen of El Salvador, subject to removal pursuant to Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6) (A) (i), as an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General. See Dkt. 4, at 4 ¶ 10; Dkt. 4-1, at 4 ¶ 12; Dkt. 4-2, Ex. A at 13. The NTA also charged him pursuant to INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(I), as an alien who has been convicted of a crime involving moral turpitude. Id. Sosa Rodriguez appeared before the Ulster, New York, Immigration Court on August 27, 2018, at which point his counsel requested an adjournment to further prepare. Dkt. 4, at 4 ¶¶ 11-12; Dkt. 4-1, at 4 ¶¶ 13-14.
On or about September 9, 2018, Sosa Rodriguez was released from the New York State Department of Corrections and Community Supervision and placed in DHS custody. Dkt. 4, at 4 ¶ 13; Dkt. 4-1, at 4 ¶ 15. His case was then transferred to the Batavia, New York, Immigration Court. Id.
On September 11, 2018, DHS determined that Sosa Rodriguez would remain in its custody pending a final administrative determination of his case. Dkt. 4, at 5 ¶ 14; Dkt. 4-1, at 4-5 ¶ 16. Sosa Rodriguez requested that an Immigration Judge ("IJ") review this custody determination, but "refused to sign" the Notice of Custody Determination form. Id. ; see also Dkt. 4-2, Ex. A at 17.
Sosa Rodriguez appeared before the IJ on October 30, 2018 for a master calendar hearing, where he "admitted the factual allegations in the NTA and conceded each charge of removability." Dkt. 4, at 5 ¶ 15. Counsel for Sosa Rodriguez indicated he would apply for relief from removal, and proceedings were continued until December 19, 2018. Id.
Also on October 30, 2018, an IJ reviewed Sosa Rodriguez's custody status. Counsel for Sosa Rodriguez conceded that he "was not eligible for bond given that he had been convicted of a crim[e] of moral turpitude and substance to mandatory detention" under 8 U.S.C. § 1226(c). See Dkt. 4, at 5 ¶ 16; see also Dkt. 4-4, Ex. A at 36 ( ). Accordingly, the IJ denied his request for a change in custody status. See Dkt. 4, at 5 ¶ 16; see also Dkt. 1, at 7 ¶ 38 (). Sosa Rodriguez's counsel reserved his right to appeal the IJ's decision to the Board of Immigration Appeals ("BIA"), but did not do so. Dkt. 4, at 5 ¶ 16; Dkt. 4-1, at 5 ¶ 18; Dkt. 4-4, Ex. A at 36-37.
Sosa Rodriguez maintains that this hearing was "not a bond hearing," and that he "was provided no further opportunity to address whether or not he was a flight risk or a danger to the community, and the Department of Homeland Security was not required to provide any evidence." Dkt. 6, at 2. The government, in response, argues that Sosa Rodriguez is not entitled to a "new hearing" because he "has been afforded the process he is due." Dkt. 5, at 10-11. The government states that Sosa Rodriguez was "provided an opportunity to challenge the basis of his custody" at the October 30, 2018 hearing, and that "[h]is decision not to challenge his detention should not be held against the government." Id.
Proceedings on December 19, 2018 were continued to February 26, 2019, at which point Sosa Rodriguez and his counsel appeared before the IJ. Dkt. 4, at 6 ¶¶ 19-20. The IJ denied Sosa Rodriguez's applications for relief from removal and ordered him removed from the United States to El Salvador. See id. ; Dkt. 1, at 9 ¶ 47; Dkt. 4-1, at 5 ¶¶ 20-21; Dkt. 4-2, Ex. A at 25-44.
Sosa Rodriguez appealed the IJ's order of removal to the BIA on March 28, 2019. Dkt. 4, at 6 ¶ 20. After Sosa Rodriguez's counsel requested an extension, the IJ set a briefing deadline of June 12, 2019. Dkt. 4, at 6 ¶ 21; Dkt. 4-1, at 6 ¶ 22. On August 22, 2019, the BIA remanded the case to the Immigration Court for further proceedings. Dkt. 1, at 9 ¶ 48; Dkt. 4, at 6 ¶ 22; Dkt. 4-1, at 6 ¶ 25; Dkt. 4-3, Ex. A at 17-21. The IJ again denied Sosa Rodriguez's applications for relief from removal on December 5, 2019, and ordered him removed to El Salvador. Dkt. 1, at 10 ¶ 50; Dkt. 4, at 6 ¶ 24.
Sosa Rodriguez appealed the IJ's decision to the BIA. See Dkt. 1, at 10 ¶ 51; Dkt. 4, at 6 ¶ 25. His appeal remains pending. Id.4 He maintains he "is not expected to be removed to El Salvador anytime in the near future, because his removal proceedings remain pending before the Board." Dkt. 1, at 9 ¶ 46.
Sosa Rodriguez is being held at the Buffalo Federal Detention Facility pending...
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