Valerio v. Barr
| Decision Date | 10 July 2019 |
| Docket Number | 19-CV-519 |
| Parties | ANA ROSADO VALERIO, Petitioner, v. WILLIAM P. BARR, et al., Defendants. |
| Court | U.S. District Court — Western District of New York |
Ana Rosado Valerio has been detained in United States Immigration and Customs Enforcement custody since March 1, 2018. Docket Item 1. On April 19, 2019, Rosado Valerio filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging the validity of her detention at the Buffalo Federal Detention Facility ("BFDF") in Batavia, New York. Id. She claims that her detention violates the United States Constitution because she has not been given an individualized hearing regarding her risk of flight or dangerousness, and she requests a hearing at which the government has the burden of proving by clear and convincing evidence that her continued detention is justified. Id. On June 10, 2019, the respondents answered the petition, Docket Items 8, 9; and on June 21, 2019, Rosado Valerio replied. Docket Item 11.
For the reasons that follow, this Court conditionally grants Rosado Valerio's petition.
The following facts, taken from the record, come largely from filings with the United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS").
Rosado Valerio is a native of the Dominican Republic. See Docket Item 8-1 at 2; Docket 1 at 3. She attempted to enter the United States at New York, New York, around October 12, 1999, with fraudulent documents; as a result she was removed to the Dominican Republic and prohibited from reentering or attempting to reenter the United States for five years. See Docket Item 8-1 at 2.
Later in 1999, Rosado Valerio re-entered the United States through Texas without authorization to return and in violation of her five-year ban on re-entering. Id. While Rosado Valerio lived unlawfully in the United States between 2001 and 2015, she filed various petitions and applications to change her alien status. Id. at 2-3.
On March 28, 2017, Rosado Valerio pleaded guilty in New York State Supreme Court to Criminal Sale of a Controlled Substance in the 2nd Degree, in violation of New York State Penal Law Section 220.41. Id. at 3. She was sentenced to three years' imprisonment and five years' post-release supervision. Id.
An Immigration Detainer - Notice of Action based on the final removal order from 1999 was sent to Rosado Valerio at the Taconic Correctional Facility on August 9, 2017. Id. at 4. On August 16, 2017, she was served with a Notice of Intent/Decision to Reinstate Prior Order. Id. But she expressed her fear of removal and refused to sign the form. Id. On March 1, 2018, Rosado Valerio was released by the New York StateDepartment of Corrections and Community Supervision and placed in DHS custody. Id. at 4.
United States Citizenship and Immigration Services interviewed Rosado Valerio regarding her reasonable-fear claim on April 27, 2018, and referred her to an Immigration Judge ("IJ") for a Withholding-Only hearing. Id. The purpose of that hearing was to determine whether she was eligible for withholding of removal under Section 241(b)(3) of the Immigration and Nationality Act or under the Convention Against Torture. Id.
In the meantime, DHS reviewed Rosado Valerio's custody status. Id. at 5. On June 25, 2018, DHS notified her that it had decided to continue her detention because it was not confident that she would abide by the conditions of release or refrain from further criminal behavior. Id. A hearing before the IJ in Rosado Valerio's withholding proceedings was scheduled for July 17, 2018. Id.
On July 12, 2018, Rosado Valerio requested an adjournment of the proceedings in order to get an attorney, and her hearing was adjourned to July 31, 2018. Id. On July 31, 2018, the hearing was again adjourned—this time to August 21, 2018—because Rosado Valerio's attorney filed additional papers. Id. at 6. Her attorney did not appear in August, however, and the hearing therefore was adjourned to September 11, 2018. Id. Her attorney then indicated that he wanted to withdraw from her case, and he again did not appear on September 11, 2018. So the hearing was adjourned to October 2, 2018, and Rosado Valerio appeared with new counsel on that date. Id.
On November 1, 2018, Rosado Valerio submitted an Application for Asylum and Withholding of Removal. Id. At a hearing held on November 28, 2018, the IJ found thatRosado Valerio did not meet her burden, denied her requests for withholding, and ordered her removed to the Dominican Republic. Id.
Rosado Valerio appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). Id. While the appeal was pending, on December 10, 2018, DHS decided to continue Rosado Valerio's detention after a review of her file and a personal interview. Id. at 7. On March 8, 2019, after further review, DHS again decided to continue her detention. Id.
The BIA dismissed Rosado Valerio's appeal on May 6, 2019, and DHS prepared to remove her. Id. On May 22, 2019, however, Rosado Valerio petitioned the Second Circuit for review of the BIA's removal order and moved for an emergency stay of removal. Id. On May 31, 2019, the Second Circuit granted a temporary stay of removal. Id. DHS conducted a further custody review in May 2019 and determined that Rosado Valerio would remain in DHS custody pending a ruling in the Second Circuit. Id.
Rosado Valerio remains in DHS custody at BFDF.
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 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 maintains that Rosado Valerio is validly detained under 8 U.S.C. § 1226(c) as a noncitizen with criminal convictions who is not yet subject to a final order of removal. Docket Item 9 at 11.
Rosado Valerio disagrees. She contends that her continued detention violates her "Due Process rights." Docket Item 1 at 10. And she argues that the due process clause of the Fifth Amendment requires "the government [to] establish, at an individual hearing before a neutral decision maker, that Petitioner's detention is justified by clear and convincing evidence of flight risk or danger, even after consideration whether alternatives to detention could sufficiently mitigate that risk." Id.
Because Rosado Valerio is proceeding pro se, this Court holds her submissions "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972).
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 v. Davis, 533 U.S. 678, 690 (2001). "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." Plyer v. Doe, 457 U.S. 202, 210 (1982). At the same time, however, Congress has "broad power over naturalization and immigration, [permitting it to] make[] rules that would be unacceptable if applied to citizens." Demore v. Kim, 538 U.S. 510, 521 (2003) (quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)).
The Supreme Court "has held that the Due Process Clause protects individuals against two types of government action." United States v. Salerno, 481 U.S. 739, 746(1987). "So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' . . . or interferes with rights 'implicit in the concept of ordered liberty.'" Id. (internal citations omitted). "When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner." Id. "This requirement has traditionally been referred to as 'procedural' due process." Id.
Rosado Valerio claims that her continued detention "depriv[es] [her] of liberty without due process of law." Docket Item 1 at 10. The Due Process Clause is not offended by the mandatory detention of aliens without a hearing for the "brief period necessary for . . . removal proceedings." Demore, 538 U.S. at 513 (emphasis added). But "a lawful permanent resident alien . . . could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified." Id. at 532 (Kennedy, J., concurring).
In Demore, the Court explicitly noted that "in the majority of cases [§ 1226(c) detention] lasts less than the 90 days . . . considered presumptively valid in Zadvydas." Id. at 529. Diving even deeper, the Court noted that "in 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days." Id. And "[i]n the remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the [BIA], appeal takes an average of four months, with a median time that is slightly shorter." Id.
"In light of the substantial uncertainty surrounding the detention provisions in [§] 1226(c)," Hechavarria v. Sessions, 891 F.3d 49, 58 (2d Cir. 2018), this Court "has evaluated procedural due process challenges to immigration detention with a two-stepinquiry," Hemans, 2019 WL 955353, at *5 (W.D.N.Y. Feb. 27, 2019). "As the first step, the Court considers whether the alien's detention has been unreasonably prolonged." Id. "If it has not, then there is no procedural due process violation." Id. "But if it has, the Court proceeds to step two and 'identifies the specific dictates of due process' by considering the Mathews v. Eldridge factors." Id. (quoting ...
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