Senor v. Barr, 19-CV-716

• Court: United States District Courts. 2nd Circuit. United States District Court of Western District of New York
• Citation: 401 F.Supp.3d 420
• Docket Number: 19-CV-716
• 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.
• Decision Date: 15 August 2019

401 F.Supp.3d 420

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.

19-CV-716

United States District Court, W.D. New York.

Signed August 15, 2019

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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

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

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.

BACKGROUND

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.

IMMIGRATION HISTORY, TIES TO THE UNITED STATES, AND CRIMINAL PROCEEDINGS

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.

REMOVAL PROCEEDINGS

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

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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.

DETENTION-RELATED PROCEEDINGS

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 February 5, 2019, a DHS Immigration and Customs Enforcement Deputy Field Office Director provided Senor with a "decision to continue detention." Id. at 26-27. Specifically, DHS informed Senor that his "custody status has been reviewed and it has been determined that [he] will not be released from the custody of U.S. Immigration and Customs Enforcement (ICE) at this time." Id. at 26. The decision was "made based on a review of [his] file and/or [his] personal interview and consideration of any information [he] submitted to ICE's reviewing officials." Id. The notice explained that Senor has

shown a disregard for the laws of the United States by violating the conditions of [his] parole and being convicted of a violent aggravated felony. [Senor] falsely claimed Bahamian citizenship. [He has] not provided ICE with any community ties, familial ties, employment opportunities, or non-government agencies willing to assist [him]. Based on this ICE believe[d] that [Senor] may pose a risk of flight and a significant threat to the community. The Department of Homeland Security's enforcement priorities continue to be threats to national security, public safety, and border security. As such, [Senor is] to remain in ICE custody pending [his] removal from the United States.

Id. at 27.

On April 16, 2019, DHS notified Senor that it intended to interview him on April

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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 "currently working with the government of Haiti to secure a travel document for [his] removal from the United States. A travel document from the Government of Haiti is expected, therefore [Senor] is to remain in ICE custody at this time." 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.

DISCUSSION ³

28 U.S.C. § 2241 "authorizes a district court to grant a writ of habeas corpus

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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.

I. SENOR'S PROCEDURAL DUE PROCESS CLAIM AND 8 U.S.C. § 1231(a)(6)'S IMPLICIT BOND HEARING REQUIREMENT

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...