"Neither the Supreme Court nor the Second Circuit has resolved the broad question of whether an arriving alien detained pursuant to 8 U.S.C. Section 1225(b) is entitled to a bond hearing when his or her detention becomes unreasonable in violation of the Due Process Clause of the Fifth Amendment." Brissett v. Decker , 324 F.Supp.3d 444, 450 (S.D.N.Y. 2018). In fact, courts in this district disagree on whether "arriving aliens" detained pursuant to Section 1225(b) have any Due Process rights.

As such, as numerous courts have recognized, it is clear that "at some point, detention without a hearing offends the Due Process Clause." Arce-Ipanaque v. Decker, No. 19 Civ. 1076 (JMF), 2019 WL 2136727, at *1 (S.D.N.Y. May 15, 2019) (quoting Vallejo, 2018 WL 3738947, at *3); see also Brissett v. Decker, 324 F. Supp. 3d 444, 451 (S.D.N.Y. 2018) ("[A]liens are entitled to individualized determinations as to their risk of flight and dangerousness when their continued detention becomes unreasonable and unjustified." (collecting cases)).

Thus, "[n]either the Supreme Court nor the Second Circuit has resolved the broad question of whether an arriving alien detained pursuant to 8 U.S.C. § 1225(b) is entitled to a bond hearing when his or her detention becomes unreasonable in violation of the Due Process Clause of the Fifth Amendment." Brissett v. Decker, 324 F. Supp. 3d 444, 450 (S.D.N.Y. 2018) (emphasis added). Respondents would have the Court conclude that, given Petitioner's status as an inadmissible arriving alien, Petitioner has limited or no due process rights and may therefore be detained indefinitely.

Unlike the other cases where the issue of prolonged detention has arisen, Joseph has also received a merits determination by an immigration judge in his favor. See, e.g., Sajous, 2018 WL 2357266, at *8; Perez v. Decker, No. 18-CV-5279 (VEC), 2018 WL 3991497, at *6 (S.D.N.Y. Aug. 20, 2018); Hernandez, 2018 WL 3579108, at *3; Brissett v. Decker, 324 F. Supp. 3d 444, 455 (S.D.N.Y. 2018); Lett v. Decker, No. 18-CV-4302 (JCM), 2018 WL 4931544, at *6 (S.D.N.Y. Oct. 10, 2018); Dukuray v. Decker, No. 18-CV-2898 (VB), 2018 WL 5292130, at *5 (S.D.N.Y. Oct. 25, 2018); Brevil, 2018 WL 5993731, at *5; Hechavarria v. Sessions, No. 15-CV-1058, 2018 WL 5776421, at *8 (W.D.N.Y. Nov. 2, 2018). But see Figueroa v. McDonald, No. 18-CV-10097 (PBS), 2018 WL 2209217, at *6 (D. Mass. May 14, 2018) (requiring the government to bear the burden, but only by a preponderance of the evidence).

Post-Jennings v. Rodriguez, courts in the Southern District of New York have concluded that aliens subject to mandatory detention under Section 1226(c) are entitled to bond hearings "when their continued detention becomes unreasonable and unjustified." See, e.g., Brissett v. Decker, 324 F. Supp. 3d 444, 451 (S.D.N.Y. 2018) (collecting cases). The Court agrees.

Post-Jennings v. Rodriguez, courts in the Southern District of New York have concluded that aliens subject to mandatory detention under Section 1226(c) are entitled to bond hearings "when their continued detention becomes unreasonable and unjustified." See, e.g., Brissett v. Decker, 324 F. Supp. 3d 444, 451 (S.D.N.Y. 2018) (collecting cases). The Court agrees.

Post-Jennings v. Rodriguez, courts in the Southern District of New York have concluded that aliens subject to mandatory detention under Section 1226(c) are entitled to bond hearings "when their continued detention becomes unreasonable and unjustified." See, e.g., Brissett v. Decker, 324 F. Supp. 3d 444, 451 (S.D.N.Y. 2018) (collecting cases). The Court agrees.

, courts in the Southern District of New York have concluded that aliens subject to mandatory detention under Section 1226(c) are entitled to bond hearings “when their continued detention becomes unreasonable and unjustified.” Dukuray v. Decker, No. 18 Civ. 2898 (VLB), 2018 WL 5292130, at *3 (S.D.N.Y. Oct. 25, 2018) (quoting Sajous, 2018 WL 2357266, at *7; Brissett v. Decker, 324 F.Supp.3d 444, 451 (S.D.N.Y. 2018)); see also Hernandez v. Decker, 18 Civ. 5026 (ALC), 2018 WL 3579108, at *10-11 (S.D.N.Y. July 25, 2018); Vallejo v. Decker, No. 18 Civ. 5649 (JMF), 2018 WL 3738947, at *3 (S.D.N.Y. Aug. 7, 2018). Under the Sajous test, courts consider the following factors:

Other courts engage in a case-specific analysis that involves consideration of several factors derived from Zadvydas, Demore , and the First, Third, Sixth, and Eleventh Circuits' pre- Jennings decisions regarding the reasonableness of prolonged detention under § 1226(c), discussed above. SeeJamal , 358 F. Supp. 3d 853, at 859 (adopting factors developed in § 1226(c) cases in action involving § 1225(b) ); Lett v. Decker , 346 F. Supp. 3d 379, 387-88 (S.D.N.Y. 2018) (same); Brissett v. Decker , 324 F. Supp. 3d 444, 452-53 (S.D.N.Y. 2018) (same); Bermudez Paiz , 2018 WL 6928794, at *10 (same); Perez v. Decker , No. 18-5279, 2018 WL 3991497, at *4-*5 (S.D.N.Y. Aug. 20, 2018) (same); see alsoTuser , 370 F.Supp.3d at 442-43 (discussing several factors to determine reasonableness of continued detention without formally adopting multi-factor test); Gichuhi v. Doll , No. 17-1041, 2018 WL 5660744, at *4 (M.D. Penn. Aug. 21, 2018) (same); Fatule-Roque , 2018 WL 3584696, at *6 (same). Those factors include "(1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings caused by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal."

The Second Circuit has made a distinction between aliens who have "substantially prolonged [their] stay by abusing the processes provided to [them]" and those who have "simply made use of the statutorily permitted appeals process." Hechavarria, 891 F.3d at 56 n.6; see also Brissett v. Decker, 324 F. Supp. 3d 444, 453 (S.D.N.Y. 2018) ("[P]ursuit of relief from removal does not, in itself, undermine a claim that detention is unreasonably prolonged."). Here, the government argues that "Petitioner's continued detention is specifically a result of his multiple requests for continuances before the immigration judge and of his decision to seek both administrative and judicial review of the immigration judge's removal order."