Traore v. Decker
| Decision Date | 19 August 2019 |
| Docket Number | 19-cv-4612 (ALC) |
| Parties | YACOUBA TRAORE, Petitioner, v. THOMAS DECKER, New York Field Office Director for U.S. Immigration and Custom Enforcement, KEVIN MCALEENAN, Acting Secretary of the U.S. Department of Homeland Security, and WILLIAM BARR, Attorney General of the United States, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Yacouba Traore (hereinafter, "Petitioner" or "Mr. Traore"), an arriving immigrant in the midst of removal proceedings, petitions this Court for a Writ of Habeas Corpus to release him from custody or, in the alternative, order a bond hearing before a neutral arbiter. Mr. Traore asserts that the indefinite nature of his detention, which began on December 5, 2017, is unconstitutional. Respondents assert that Mr. Traore's detention is governed by 8 U.S.C. § 1225(b)(2)(A), and that his status as an "arriving alien" renders his detention constitutional pending a removal decision. Upon review, this Court concludes that, pursuant to 8 U.S.C. § 1225(b)(2)(A), Mr. Traore's detention is constitutional, and he is not entitled to a bond hearing at this time.
Mr. Traore filed the instant Petition on May 20, 2019. ECF No. 1 ("Pet."). On June 4, 2019, after receiving an extension from the Court, Respondents filed their Response to the Petition. ECF Nos. 5-8. Petitioner replied to the Response on June 7, 2019. ECF No. 9. The Court held a Conference on June 18, 2019. ECF No. 10. Following the Conference, the Court ordered the Parties to submit a Joint Status Report, which they filed on July 10, 2019. ECF No. 11.
The instant Petition has been fully briefed, and the Parties have been heard on the issues at hand. After careful consideration, Mr. Traore's Petition for a Writ of Habeas Corpus is hereby DENIED.
Mr. Traore is a native and citizen of Mali. Pet. ¶ 18. Mr. Traore entered the United States without inspection or admission at an unknown date and location. Resp. Pet. p. 6, ECF No. 8 ("Resp."). In July of 2005, United States Citizenship and Immigration Services ("USCIS") granted Mr. Traore advance parole, which allowed him to travel outside the country, while his application for relief was pending. Id. On February 3, 2006, Mr. Traore returned to the United States and sought re-entry. Pet. ¶ 19; Resp. p. 6. Pursuant to his grant of advance parole, Mr. Traore was paroled into the United States so that he could pursue his previously filed relief application. Id. Mr. Traore was not admitted, and on May 14, 2007, USCIS denied his application for relief. Resp. p. 6. Despite the denial of his application, Mr. Traore remained in the United States without status. Id.
On December 4, 2017, pursuant to the Immigration and Nationality Act ("INA") section 212(a)(7)(A)(i)(I), the Department of Homeland Security ("DHS") issued a Notice to Appear ("NTA") and initiated removal proceedings against Mr. Traore. Pet. ¶ 20. The NTA labeled Mr. Traore an "arriving alien" - an alien seeking admission without valid entry documentation - and charged him as inadmissible under INA section 212(a)(7)(A)(i)(I), 8 U.S.C. §1182(a)(7)(A)(i)(I). Resp. p. 6; Pet. ¶ 20. Mr. Traore was detained on December 5, 2017. Pet. ¶ 21.
On December 11, 2017, Immigration Customs Enforcement ("ICE") filed the NTA with the Varick Street Immigration Court ("Varick Street"), and Mr. Traore appeared with counsel for an initial master calendar hearing before an immigration judge. Resp. p. 7; Pet. ¶ 22. The immigration judge denied Mr. Traore bond and scheduled a second master calendar hearing for February 23, 2018. Id. On February 23, 2018, Mr. Traore submitted an application for relief from the charge of removability and the immigration judge scheduled a merits hearing for April 12, 2018. Resp. p. 7.
Following his second master calendar hearing, Mr. Traore married his fiancé, a United States citizen. Pet. ¶ 24; Resp. p. 7. In March of 2018, Mr. Traore filed an I-130 Petition for Alien Relative with USCIS. Id. While Mr. Traore's application was under consideration, Mr. Traore appeared for the previously scheduled merits hearing. Id. On May 29, 2018, USCIS denied Mr. Traore's I-130 Petition. Resp. p. 8.
In late June of 2018, the immigration judge granted Mr. Traore's application for withholding of removal to Mali pursuant to section 241(b) of the INA. Pet. ¶ 26; Resp. p. 8. ICE appealed the immigration judge's decision to the Board of Immigration Appeals ("BIA"). Resp. p. 8. On December 7, 2018, the BIA issued a decision remanding the matter back to the immigration judge for further adjudication and the entry of a new decision. Id. ¶ 30; Resp. p. 8. Pursuant to the BIA's decision, the immigration judge issued a subsequent decision once again granting Mr. Traore's application for withholding of removal to Mali on January 29, 2019. Pet. ¶ 31; Resp. p. 8.
On February 22, 2019, ICE discovered that the immigration judge's January 29, 2019 decision did not expressly order Mr. Traore removed from the United States. Resp. p. 9. The legal deficiency rendered the order withholding Mr. Traore's removal without force, and ICE filed a brief requesting amendment of the immigration judge's order on those grounds. Id.; Pet. ¶ 33. On March 5, 2019 Mr. Traore requested a conference to discuss the pending amendment, and the immigration judge granted Petitioner's request. Resp. p. 9. A week later, Mr. Traore appeared before an immigration judge, who issued an amended written decision thus clarifying the record and expressly ordering Mr. Traore's removal from the United States while withholding his removal to Mali. Resp. p. 8. At some point during this period, the U.S. Attorney's Office indicated that they identified an alternative location for Mr. Traore's removal - France. Pet. ¶ 32.
Following the order of removal, Mr. Traore filed a motion to reopen his removal proceedings on April 16, 2019, alleging changed circumstances - namely DHS's desire to remove Mr. Traore to France. Pet. ¶ 35; Resp. p. 9. Mr. Traore's motion was granted, despite ICE's opposition, on April 24, 2019. Pet. ¶ 36; Resp. p. 9. Mr. Traore appeared before an immigration judge for an additional master calendar hearing on May 20, 2019. Pet. ¶ 20; Resp. p. 10.
On July 5, 2019, three days prior to a previously scheduled July 8, 2019 hearing on the merits of Mr. Traore's claim for relief from removal to France, Mr. Traore filed a motion to terminate the immigration proceedings, thus precluding his removal to France. Pet. ¶ 20; Resp. p. 10; ECF No. 11. The immigration judge set a briefing schedule and scheduled a hearing on August 19, 2019 to rule on the motion to terminate. ECF No. 11. The initial July 8, 2019 merits hearing has yet to be rescheduled. Id.
While Mr. Traore was engaged in the removal proceedings outlined above, he also filed multiple Petitions for Writs of Habeas Corpus. Mr. Traore first sought a Writ of Habeas Corpus in this district on January 29, 2018, alleging that his detention of fifty-five (55) days without a bond hearing violated due process. Pet ¶ 23; Resp. p. 10; see Traore v. Ahrendt, 2018 WL 2041710 (S.D.N.Y. April 30, 2018). That Petition was denied on April 30, 2018. Pet. ¶ 25. Mr. Traore filed a second Petition on August 29, 2018. Pet. ¶ 27; Resp. p. 10. On September 13, 2018, his second Petition was transferred to the District of New Jersey where it was ultimately denied on April 10, 2019. Pet. ¶ 34; Resp. p. 10.
As stated, Mr. Traore filed the instant Petition for a Writ of Habeas Corpus, his third, on May 20, 2019. See Pet. Mr. Traore claims that his extended detention without a bond hearing violates his due process rights under the Fifth Amendment. Pet. ¶ 38. Mr. Traore has been detained since December 5, 2017. Id. ¶ 21.
While immigration laws in the United States seem to be in constant flux, it has long been established that "the constitutional sufficiency of procedures provided in any situation ... varies with the circumstances." Landon v. Plasencia, 459 U.S. 21, 34 (1982). Courts continue to uphold as rational the "distinction between aliens who have entered the United States and those who have not, and the granting of greater procedural and substantive rights to the former." Tsimmer v. Ganter, 550 F.Supp.2d 438, 443 (S.D.N.Y. 2008).
The detention of "arriving aliens," or individuals seeking initial entry, is governed by 8 U.S.C. § 1225(b)(2)(A) (the "Statute"). Kouadio v. Decker, 352 F.Supp.3d 235, 237 (S.D.N.Y.2018); see Charles v. Decker, 2017 WL 6387795, at *4 (S.D.N.Y. Aug. 21, 2017). "[A]rriving aliens seeking asylum are subject to mandatory detention during the pendency of their applications for asylum." Id. (citing 8 U.S.C. § 1225(b)(1)(B)(2)). An arriving alien, or an immigrant seeking admission, includes one who is present in the United States but has not been admitted. See 8 U.S.C. § 1225(a)(1). Under the Statute, the only mechanism for release provided to "arriving aliens" is conditional parole, decisions on which are made with unreviewable discretion. See Alexandre v. Decker, 2019 WL 1407353, at *3 (S.D.N.Y. March 28, 2019). This is the procedure authorized by Congress, and it is considered "due process as far as an alien denied entry is concerned." Poonjani v. Shanahan, 319 F.Supp.3d 644, 649 (S.D.N.Y. 2018).
Here, it is undisputed that Mr. Traore has never been admitted into the United States. Despite the fact that he has remained in the United States, since 2007, without status, his initial application for relief was denied. Pet. ¶ 19; Resp. p. 6. It is also undisputed that, in 2017, the DHS issued an NTA and labeled Mr. Traore an "arriving alien." Pet ¶ 20; Resp. p. 6. Thus, Mr. Traore, an arriving alien seeking initial entry, fits squarely within the confines of 8 U.S.C. § 1225(b)(2)(A).
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