Singh v. Whitaker

• Decision Date: 23 January 2019
• Docket Number: 18-CV-794
• Citation: 362 F.Supp.3d 93
• Parties: Ranjith SINGH, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General of the United States; Thomas Feely, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement ; Department of Homeland Security; Thomas Brophy, Facility Director, Buffalo Federal Detention Facility, Respondents.
• Court: U.S. District Court — Western District of New York

362 F.Supp.3d 93

Ranjith SINGH, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General of the United States; Thomas Feely, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement ; Department of Homeland Security; Thomas Brophy, Facility Director, Buffalo Federal Detention Facility, Respondents.

18-CV-794

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

Signed January 23, 2019

Ranjith Singh, Batavia, NY, pro se.

Daniel Barrie Moar, U.S. Attorney's Office, Buffalo, NY, United States Attorney's Office, Western District of New York, for Respondents.

DECISION AND ORDER

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

Ranjith Singh is a citizen of India under a final immigration order of removal from the United States. On July 29, 2018, Singh filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241, seeking release from his detention at the Buffalo Federal Detention Facility in Batavia, New York, pending his removal. Docket Item 1. On October 5, 2018, Singh asked this Court to release him, Docket Item 2, and on November 26, 2018, the respondents answered, Docket Item 6, and filed a memorandum opposing Singh's petition, Docket Item 8. On December 7, Singh replied. Docket Item 9. On December 21, 2018, the respondents supplemented the record in response to this Court's direction, Docket Item 13, and on January 11, 2019, Singh filed a reply to that, Docket Item 15.

For the reasons that follow, this Court conditionally grants Singh's petition in part.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts, taken from the record, come largely from filings with the United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS"). Singh is a native and citizen of India who left India in 1988 and arrived in the United States around that same time without inspection by an immigration official.¹ Docket Items 2 at 1; 6-1 at 2; and 6-2 at 26, 29. In July 2008, Singh was jailed at the Riker's Island Correctional Facility in East Elmhurst, New York, where a DHS agent confirmed his immigration status. Docket Item 6-1 at 2, 20-21. On July 24, 2008, DHS served Singh with a Notice to Appear that charged him with being "an alien present in the United States who has not been admitted or paroled." Docket Item 6-2 at 18-19. On the same day, Singh signed a form waiving his right to ten-days' notice and requesting an immediate hearing before an immigration judge ("IJ"). Id. at 19.

On May 21, 2009, IJ Alan Vomacka ordered Singh removed from the United States to India. Id. at 15. IJ Vomacka denied Singh's application for asylum, his application for withholding removal under section 241(b)(3) of the Immigration and Nationality Act,² and his application for protection under the Convention Against Torture. Id.

On August 10, 2009, DHS released Singh from custody subject to an order of supervision. Id. at 13. On February 28, 2010, while on release pending removal, Singh was arrested by New York City police and charged with second degree murder, tampering with physical evidence, and criminal possession of a weapon, all in violation of New York State law. Docket Item 6-1 at 3-4. In May 2012, Singh was convicted of manslaughter in a New York State court and sentenced to nine years' imprisonment. Docket Items 6-1 at 4 and 6-2 at 2.

By November 2017, Singh had served his criminal sentence. Docket Item 6-1 at 4. So on November 8, 2017, DHS revoked Singh's order of supervision and determined that he would remain in DHS custody pending his removal. Docket Item 6-2 at 11. On November 14, DHS served Singh with a formal Warning for Failure to Depart Form I-229(a), along with a list of actions DHS required Singh to take to assist in obtaining a travel document for his removal from the United States. Docket Item 6-2 at 8-10. Three days later, DHS requested travel documents on Singh's behalf from the Consulate General of India. Docket Item 6-2 at 22-30.³ According to a DHS agent, DHS has contacted the Indian Consulate a number of times since December 2017 asking about the status of Singh's travel documents. Docket Item 6-1 at 5. The agent has declared that the Indian Consulate is in the process of verifying Singh's identity and DHS's request for Singh's travel documents remains pending. Id.

Because it had been more than a year since DHS requested Singh's travel documents, on December 11, 2018, this Court directed DHS to file a declaration "setting forth a date by which time [the agency] reasonably expects Singh to be repatriated to India." Docket Item 10.⁴ In response, on December 21, 2018, DHS Deportation Officer Mitchell L. Muehlig filed a declaration with the Court. Docket Item 13 at 1. According to Muehlig, DHS has had follow-up conversations with Indian consular officials every three weeks. Id. at 2. Muehlig explained that in the past, Singh had provided New York State officials with different names, including "Randy Singh," "Jauandar Singh," "Ranjit Singh," "Jsunder Singh," and "Rana Singh," along with two dates of birth: November 15, 1967, and November 11, 1966. Id. at 3. Additionally, Singh provided different names for family members in 1992, 2008, 2010, and 2018. Id. at 3-4. For example, in 1992, he provided the name "Gurdev Kaur" for his mother and "Swaran Singh" for his father, id. at 3, and in 2008, he provided the name "Gurdue Kuaer" for his mother and "Swinrah Singh" for his father, id. at 3-4. At other times in 2008 and 2010, Singh provided the names "Eureaer Kuer" and "Deaver Kuhar" for his mother and "Ivrean Singh" and "Swrena Singh" for his father. Id. at 4. Muehlig contends that the various names Singh has provided for his family members make it more difficult for the Indian Consulate to ascertain his true identity. Id. at 3.

Muehlig has advised that DHS "determined to continue SINGH's detention because DHS is working with the government of India and a travel document is expected." Id. at 4. "The time frame of this expectation is not specific," however, "as India attempts to verify SINGH's identity amidst all SINGH's past/present lies about his identity." Id. Muehlig explained that as soon as it "secures a travel document from India for SINGH, it will then be only a matter of weeks before SINGH is physically repatriated back to India." Id. at 5. When that travel document will be secured, however, is apparently anyone's guess.

DISCUSSION

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) ). The government contends that Singh's detention is lawful under 8 U.S.C. § 1231(a). Docket Item 8 at 4-5. Singh makes three arguments to the contrary. Docket Item 1. First, he claims that his continued detention violates § 1231(a)(6) as interpreted by the Supreme Court in Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Id. at 13. Second, he claims that his "prolonged detention more than six months violates his right to substantive due process under the Fifth Amendment." Id. at 13-14. Finally, he claims that "his prolonged detention more than six months without a meaningful review of his detention in accordance with federal regulations violates his right to procedural due process under the Fifth Amendment." Id. at 14.

As Singh 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).

I. SECTION 1231 DETENTION

A. Singh's Indefinite Detention

Section 1231"addresses 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.’ " Hechavarria v. Sessions , 891 F.3d 49, 54 (2d Cir. 2018) (quoting 8 U.S.C. § 1231(a)(1)(A) ).

The statute explicitly defines the beginning of the removal period as occurring "on the latest of the following:

(i) The date the order of removal becomes administratively final.

(ii) If 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.

(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement."

Id. at 54-55 (quoting 8 U.S.C. § 1231(a)(1)(B) ). After the ninety-day removal period, "the Government ‘may’ continue to detain an alien who still remains here or release that alien under supervision." Zadvydas v. Davis , 533 U.S. 678, 683, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (quoting 8 U.S.C. § 1231(a)(6) ). But § 1231(a)(6) includes an implicit limit on "an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention." Id. at 689, 121 S.Ct. 2491.

During the first six months after the expiration of the ninety-day removal period, an alien's detention under § 1231(a)(6) is "presumptively reasonable." Id. at 701, 121 S.Ct. 2491.

After this [six]-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as "reasonably foreseeable future" conversely [must] shrink. This [six]-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.

Id.

Singh's six-month presumptively reasonable period of detention...