Senor v. Barr
Decision Date | 15 August 2019 |
Docket Number | 19-CV-716 |
Citation | 401 F.Supp.3d 420 |
Parties | Chanel SENOR, Petitioner, v. William P. BARR, Attorney General; Thomas Feeley, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement ; Thomas Brophy, Facility Director, Buffalo Federal Detention Facility, and Jeffrey Searls, Facility Acting Director Buffalo Federal Detention Facility, Respondents. |
Court | U.S. District Court — Western District of New York |
Chanel Senor, Batavia, NY, pro se.
Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, United States Attorney's Office, Western District of New York, for Respondents.
DECISION AND ORDER
The Department of Homeland Security ("DHS") has detained the pro se petitioner, Chanel Senor, for more than nine months while they have attempted to remove him to Haiti. Senor claims that his continued detention violates the Due Process Clause and 8 U.S.C. § 1231(a)(6) as interpreted by the Supreme Court in Zadvydas v. Davis , 533 U.S. 678, 699, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), because his removal is not significantly likely to occur in the reasonably foreseeable future. Docket Item 8 at 7. He also argues that his prolonged detention "more than six months without a meaningful review of his detention" violates his procedural due process rights. Id. at 8.
For the following reasons, this Court agrees that Senor is due immediate relief with respect to his procedural due process claim. Moreover, there may well be "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future," Zadvydas , 533 U.S. at 701, 121 S.Ct. 2491, but the government will be given an opportunity to "respond with evidence sufficient to rebut that showing." Id. Therefore, Senor's petition is conditionally granted in part.
The following facts, taken from the record, come largely from filings with the United States Department of Homeland Security, Immigration and Customs Enforcement. Other facts, provided by Senor, are undisputed.
Senor is a citizen of Haiti. Docket Item 11-1 at 2. On July 27, 1981, Senor arrived at a United States port of entry without a visa. Id. He was paroled into the country for humanitarian reasons on August 13, 1981. Id.
In 1991, Senor was convicted of attempted criminal possession of cocaine in violation of New York State law. Id. In 1994, Senor was convicted of second degree murder and sentenced to a term of imprisonment of twenty years to life. Docket Item 11-2 at 2, 9.
On June 27, 1997, the Immigration and Naturalization Service ("INS") terminated Senor's immigration parole status because of one of his criminal convictions. Docket Item 11-1 at 2; Docket Item 11-2 at 7.1 INS served Senor with a Notice to Appear notifying him that he was ineligible to be admitted to the United States because of his criminal convictions and advising him that he was subject to removal. Id. at 2-3. On January 20, 1998, Immigration Judge Mitchell A. Levinsky denied Senor's application for voluntary removal and ordered Senor removed from the United States to Haiti. Docket Item 11-2 at 16.2
After Senor's release from New York State incarceration, on November 5, 2018, DHS requested travel documents for Senor from the Haitian Embassy. Id. at 23-24. And on the same day, DHS provided Senor with notice of his obligation to assist DHS in obtaining his travel document. Id. at 22. On December 14, 2018, Senor interviewed with Haitian Consular officials in Miami, Florida, regarding his and DHS's request for his travel documents. Id. at 26.
On October 31, 2018, Senor was released from the custody of the New York State Department of Corrections and Community Supervision and taken into custody by DHS. Docket Item 11-2 at 26. On November 2, 2018, DHS issued Senor a "notice of custody determination," which notified him that he will be detained "pending a final administrative determination in [his] case." Docket Item 11-2 at 19. Senor "request[ed] an immigration judge review [that] custody determination." Id. But the record does not indicate that any such hearing before an immigration judge occurred—perhaps because, on November 5, 2019, DHS concluded that Senor was subject to a final order of removal. See Docket Item 11-2 at 20.
On April 16, 2019, DHS notified Senor that it intended to interview him on April 23, 2019, as part of another custody review. Id. at 29-30. The notice informed Senor that "[r]elease from ICE custody is dependent on [Senor] demonstrating to the satisfaction of the Attorney General that [he] will not pose a danger to the community and will not present a flight risk." Id. at 29. After that interview, on May 21, 2009, DHS issued another decision to continue detention. Id. at 31. DHS told Senor that it was Id.
On June 3, 2019, Senor filed a pro se petition for a writ of habeas corpus in this Court. Docket Item 1. On June 27, 2019, this Court granted Senor's motion to file an amended petition. Docket Item 10. On July 23, 2019, the government answered the amended petition, Docket Items 11-12, and on August 1, 2019, Senor replied, Docket Item 14.
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) ). In its answer, the government argues that Senor's "detention in DHS custody is in accordance with the INA and relevant Supreme Court precedent." Docket Item 11 at 4. Senor makes three arguments to the contrary. Docket Item 8 at 7-8. First, he argues that his continued detention violates 8 U.S.C. § 1231(a)(6) as interpreted by the Supreme Court in Zadvydas , 533 U.S. at 699, 121 S.Ct. 2491. Id. at 7. Second, he argues that his continued detention violates his substantive due process rights because the government has detained him "in excess of six months and his removal is not significantly likely to [o]ccur in the [r]easonably [f]oreseeable [f]uture." Id. Finally, he argues that "his prolonged detention more than six months without a meaningful review of his detention" violates his procedural due process rights. Id. at 8.
Because Senor 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, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). And because the record indicates that Senor is entitled to immediate relief with respect to his procedural due process claim, this Court addresses that claim first.
Senor argues that "his prolonged detention more than six months without a meaningful review of his detention" violates his procedural due process rights. Docket Item 8 at 8. The Fifth Amendment's Due Process Clause forbids 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, 121 S.Ct. 2491. "[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 , ––– U.S. ––––, 139 S. Ct. 2369, 2373, 204 L.Ed.2d 897 (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...
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