Opinion
6:20-CV-06080 EAW
2021-01-21
Danilo CONCEPCION, Petitioner, v. William P. BARR, United States Attorney General, Kevin Mcallenan, Secretary of the Department of Homeland Security, Thomas Feely, Field Office Director for Detention Removal, Jeffrey Searls, Facility Director Buffalo Federal Detention Center and Michael Ball, SDDO, Respondents.
Danilo Concepcion, Batavia, NY, pro se. David M. Coriell, U.S. Attorney's Office, Buffalo, NY, United States Attorney's Office, Western District of New York, for Respondents.
Danilo Concepcion, Batavia, NY, pro se.
David M. Coriell, U.S. Attorney's Office, Buffalo, NY, United States Attorney's Office, Western District of New York, for Respondents.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Pro se petitioner Danilo Concepcion ("Petitioner"), an immigration detainee currently detained at the Buffalo Federal Detention Facility ("BFDF") in Batavia, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner argues that his continued detention is unconstitutional and seeks immediate release. (Id. ). For the reasons that follow, the Court finds that Petitioner is not entitled to immediate release, but that he is entitled to an individualized bond hearing at which the government bears the burden of proving by clear and convincing evidence that Petitioner poses either a risk of flight or a danger to the community.
BACKGROUND
Petitioner is a native and citizen of the Dominican Republic and entered the United States on or about March 21, 1999, as an IR 1 Spouse of a United States Citizen. (Dkt. 3-1 at ¶ 5) (Declaration of Deportation Officer Sherry Hunter ("Hunter Decl.")). On May 9, 2006, Petitioner applied for admission to the United States at JFK International Airport, as a returning lawful permanent resident. (Id. at ¶ 7).
I. Petitioner's Criminal History
On April 16, 2002, Petitioner was arrested by the New York City Police Department ("NYPD") and charged with Criminal Contempt in the First Degree, in violation of New York State Penal Law ("NYPL") § 215.51, and Assault in the Third Degree: With Intent to Cause Physical Injury, in violation of NYPL § 120.00(01). On June 13, 2002, Petitioner pleaded guilty in New York County Criminal Court and was convicted of Criminal Contempt in the Second Degree, in violation of NYPL § 215.50. On July 12, 2002, he was sentenced to 30 days in prison. (Id. at ¶ 6(a)).
Thereafter, on October 6, 2004, Petitioner was arrested by the NYPD and charged with Grand Larceny in the Third Degree, Property Value Exceeds $3,000, in violation of NYPL § 155.35 ; Criminal Possession of Stolen Property in the Third Degree, Value Exceeds $3,000, in violation of NYPL § 165.50 ; Grand Larceny in the Fourth Degree, Property Value Greater than $1,000, in violation of NYPL § 155.30(01) ; Criminal Possession of Stolen Property in the Fourth Degree, Property Value Exceeds $1,000, in violation of NYPL § 165.45(01) ; and Forgery in the Third Degree, in violation of NYPL § 170.05. On May 24, 2005, Petitioner pleaded guilty in New York State Supreme Court, Bronx County, to Grand Larceny in the Fourth Degree, in violation of NYPL § 155.30(01). He was granted a conditional discharge and ordered to pay restitution. (Id. at ¶ 6(b)).
On May 23, 2007, Petitioner was arrested by the NYPD and charged with Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree, in violation of New York State Vehicle and Traffic Law ("VTL") § 511(03) ; Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree, in violation of VTL § 511(02) ; Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, in violation of VTL § 511(01) ; and Motor Vehicle License Violation: No License, in violation of VTL § 509(01). On April 2, 2008, Petitioner pleaded guilty in New York State Supreme Court, Bronx County, to Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, in violation of VTL § 511(01A). He was granted a conditional discharge and fined. (Id. at ¶ 6(c)).
On May 17, 2008, Petitioner was arrested by the NYPD and charged with Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree: 10/More Suspensions – 10/More Dates, in violation of VTL § 511(03A2), and Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of NYPL § 220.03. On August 19, 2008, Petitioner pleaded guilty in New York State Supreme Court, to Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, in violation of VTL § 511(01A) and was sentenced to a fine. (Id. at ¶ 6(d)).
On June 28, 2013, Petitioner was arrested by the NYPD and charged with Criminal Sale of a Controlled Substance in the First Degree: 2 oz. Narcotic Drug, in violation of NYPL § 220.43(01) ; Criminal Possession of a Controlled Substance in the First Degree: 8 oz. or more Narcotic Drug, in violation of NYPL § 220.21(01) ; Criminal Possession of a Controlled Substance in the Third Degree: Narcotic Drug Intent to Sell, in violation of NYPL § 220.16(01) ; and Criminal Sale of a Controlled Substance in the Third Degree: Narcotic Drug, in violation of NYPL § 220.39(01). On April 7, 2015, Petitioner pleaded guilty in New York State Supreme Court, New York County, to Criminal Possession of a Controlled Substance in the Third Degree, in violation of NYPL § 220.16. On April 27, 2015, Petitioner was sentenced to five years in prison, followed by three years of supervised release. Petitioner appealed his conviction to the Appellate Division, First Department, and his conviction was affirmed on November 27, 2018. (Id. at ¶ 6(e)).
Thereafter, on November 7, 2017, Petitioner was arrested by the New York State Police in Oneida County and charged with Criminal Sale of a Controlled Substance in the Fourth Degree, in violation of NYPL § 220.34 ; Criminal Possession of a Controlled Substance in the Fifth Degree: Intent to Sell, in violation of NYPL § 220.06 ; and Promoting Prison Contraband in the First Degree, in violation of NYPL § 205.25. On July 2, 2018, Petitioner pleaded guilty in Oneida County Court to Promoting Prison Contraband to Prisoners in the Second Degree, in violation of NYPL § 205.20. On August 27, 2018, he was sentenced to one year in prison and fined. (Id. at ¶ 6(f)).
II. Removal Proceedings
On June 13, 2007, removal proceedings were commenced against Petitioner with the service of a Notice to Appear ("NTA"), charging him with violating the Immigration and Nationality Act ("INA") § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for being convicted of a crime of moral turpitude, based on his 2005 grand larceny conviction. (Id. at ¶ 8; Dkt. 3-2 at 8). On April 3, 2013, an immigration judge ("IJ") granted Petitioner a waiver of inadmissibility as to his grand larceny conviction, pursuant to INA § 212(h), 8 U.S.C. § 1182(h). (Hunter Decl., at ¶ 9; Dkt. 3-3 at 3).
Thereafter, on January 23, 2019, Petitioner was encountered by Immigration and Customs Enforcement – Enforcement and Removal Operations ("ICE-ERO") at the Oneida County Jail, where he was serving his sentence for his conviction for promoting prison contraband. (Hunter Decl., at ¶ 10). His immigration status was verified, he was identified as a criminal alien subject to removal, and an immigration detainer was lodged against him at the jail. (Id. ). On January 25, 2019, Petitioner was placed in immigration removal proceedings by an NTA served on April 30, 2019, charging him with being a native and citizen of the Dominican Republic, subject to removal pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), a law relating to Narcotic Drug with Intent to Sell, and pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted of a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance other than a single offense involving possession for one's own use of 30 grams or less of marijuana. (Id. at ¶ 11; see also Dkt. 3-2 at 14).
Following his release from state criminal custody, Petitioner was placed in DHS custody on April 30, 2019. (Hunter Decl., at ¶ 12; see also Dkt. 3-2 at 1). DHS determined that Petitioner would remain in DHS custody pending a final determination of his case, and Petitioner requested that an IJ review the custody determination. (Hunter Decl., at ¶ 12; Dkt. 3-2 at 17). Petitioner appeared with counsel before the Immigration Court on July 1, 2019; however, the proceedings were adjourned until August 12, 2019 for attorney preparation. (Hunter Decl., at ¶ 13). On August 12, 2019, the proceedings were adjourned until August 26, 2019. (Id. at ¶ 14).
On August 22, 2019, DHS served Petitioner with Additional Charges of Admissibility/Deportability. (Id. at ¶ 15). The NTA withdrew the aggravated felony charge, as Petitioner had been convicted of Criminal Possession of a Controlled Substance in the Third Degree in violation of NYPL § 220.16(12), and not Criminal Possession of a Controlled Substance in the Third Degree with Intent to Sell, in violation of NYPL § 220.16(01). (Id. ; Dkt. 3-2 at 18). Petitioner remained subject to removability pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). (Hunter Decl., at ¶ 15).
Petitioner appeared before the IJ on August 26, 2019; however, the proceedings were continued to September 9, 2019. (Id. at ¶ 16). Petitioner appeared for a master calendar hearing on September 9, 2019. (Id. at ¶ 17). He admitted to the factual allegations in the NTA and conceded removability. (Id. ). The IJ scheduled the case for an individual merits hearing on December 13, 2019. (Id. ). The IJ conducted the hearing on December 13, 2019. (Id. at ¶ 18). Plaintiff was represented by counsel and testified in support of his applications for relief from removal. (Id. ). The IJ denied Petitioner's applications for relief and ordered him removed to the Dominican Republic. (Id. ).
Petitioner appealed the IJ's removal order on January 9, 2020. (Id. at ¶ 19; see also Dkt. 3-3 at 36). His appeal remains pending before the BIA. (Hunter Decl., at ¶ 22). Petitioner remains detained at the BFDF pending completion of his removal proceedings. (Id. at ¶ 23).
III. The Habeas Petition
Petitioner filed the instant habeas corpus Petition on February 5, 2020. (Dkt. 1). Respondents filed a response and memorandum in opposition on April 9, 2020 (Dkt. 3; Dkt. 4), and Petitioner filed reply papers on July 21, 2020 and August 6, 2020 (Dkt. 5; Dkt. 6), along with several letters of support from his family (Dkt. 5 at 19-29; Dkt. 5-1). Petitioner also filed motions to withdraw his reply papers and a motion to amend his Petition. (Dkt. 7; Dkt. 8). The basis for Petitioner's motion to amend was based on his belief that the BIA had dismissed his appeal of the IJ's removal order and his subsequent filing of a Petition for Review ("PFR") before the United States Court of Appeals for the Second Circuit. (See Dkt. 8-1 at ¶¶ 17, 18; Dkt. 9 at 1). In the government's response in opposition to Petitioner's motion to amend, it states that "[a]ccording to Department of Homeland Security Records, the BIA has not issued a decision in Petitioner's case, contrary to Petitioner's claim in the Amended Petition. Furthermore, a review of the Second Circuit's docket does not reveal a PFR having been filed by Petitioner, nor is the Government aware of such a filing." (Dkt. 9 at 2). Petitioner filed a reply on August 14, 2020, confirming that he filed an appeal before the BIA on January 9, 2020, which remains pending before the BIA, and asking that because he is not an attorney, that the Court disregard any "errors, omissions, defects, and irregularities, in regards to his Habeas Corpus [Petition] submitted on August 3, 2020." (Dkt. 10 at ¶ 7). Petitioner also reiterated his request for a bond hearing. (Id. at ¶ 10). Given that Petitioner has confirmed that his case remains pending before the BIA, his motions to withdraw his reply (Dkt. 7) and to amend his habeas petition (Dkt. 8) are denied.
DISCUSSION
I. Jurisdiction
The federal habeas corpus statute gives district courts jurisdiction to hear immigration-related detention cases. See 28 U.S.C. § 2241(c)(3) ; Demore v. Kim , 538 U.S. 510, 517-18, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (holding federal courts have jurisdiction to review challenges to pre-removal detention); Zadvydas v. Davis , 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (holding " § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention" in immigration cases). District courts do not have jurisdiction over challenges to the legality of final orders of deportation, exclusion, and removal; jurisdiction to review such challenges rests exclusively in circuit courts. See Gittens v. Menifee , 428 F.3d 382, 384 (2d Cir. 2005) ("[The REAL ID Act, 119 Stat. 231, § 106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of deportation, exclusion, and removal, providing instead for petitions of review ... which circuit courts alone can consider.").
II. Named Respondents
The government contends that Jeffrey Searls, Officer in Charge of the BFDF, is the only respondent with immediate custody over Petitioner, and consequently the only proper respondent. (Dkt. 4 at 16). The Court agrees with the government and dismisses all respondents except for Jeffrey Searls from the instant action. See Rodriguez v. Barr , No. 6:18-cv-06757-MAT, 2019 WL 2192516, at *3 n.3 (W.D.N.Y. May 21, 2019) ("Searls is the only proper respondent in this § 2241 proceeding as he is the person with direct control over Petitioner's detention." (citing Rumsfeld v. Padilla , 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) ("[I]n habeas challenges to present physical confinement ... the default rule is that the proper respondent is the warden of the facility where the prisoner is being held[.]"))), reconsideration denied , 2019 WL 6037275 (W.D.N.Y. Nov. 14, 2019) ; Hassoun v. Sessions , No. 18-CV-586-FPG, 2019 WL 78984, at *7 (W.D.N.Y. Jan. 2, 2019) ("The majority view in the Second Circuit requires the ‘immediate custodian,’ generally the prison warden, to be named as a respondent in ‘core’ immigration habeas proceedings—i.e. , those challenging present physical confinement." (quotation omitted)); see also S.N.C. v. Sessions , 325 F. Supp. 3d 401, 407 (S.D.N.Y. 2018) ("If, on the other hand, the petition challenges a broader form of legal, non-physical custody, then the proper respondent is the person with legal authority to effect that custody.").
III. Petitioner's Claims
Petitioner's first claim is for a "statutory violation," wherein he claims that his continued detention beyond six months is unlawful pursuant to 8 U.S.C. § 1231, which governs the detention, release, and removal of aliens ordered removed, and the Supreme Court's decision in Zadvydas . (Dkt. 1 at 4). The government contends that Petitioner has been held in detention throughout the pendency of his removal proceedings pursuant to 8 U.S.C. § 1226(c), which provides for mandatory detention of criminal aliens. (See Dkt. 4 at 9 n.3 ("because Petitioner's removal proceedings have not concluded and he is not subject to an administratively final order of removal, § 1231(a) does not govern his detention.")); see also Mapp v. Reno , 241 F.3d 221, 224 (2d Cir. 2001). The Court agrees with the government that Petitioner's detention is governed by § 1226(c), as removal proceedings were initiated against him based on his criminal record and he is currently detained pending final resolution of those removal proceedings. See Rodriguez Sanchez v. Decker , 431 F. Supp. 3d 310, 314 (S.D.N.Y. 2019) (petitioner's "removal is neither imminent nor certain so long as his petition for review is pending in the Second Circuit and the forbearance policy remains in effect, his detention is governed by § 1226, not § 1231."). Accordingly, to the extent Petitioner challenges his continued detention under § 1231, any such claim is misplaced.
In prior decisions, this Court has set forth the history regarding the constitutionality of the mandatory detention provided for by § 1226(c), in the wake of the Supreme Court's decision in Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018), including the distinctions between substantive and procedural due process challenges, and it will not repeat that discussion here. See, e.g., Ranchinskiy v. Barr , 422 F. Supp. 3d 789, 793-94 (W.D.N.Y. 2019). Rather, the Court will turn directly to Petitioner's substantive and procedural due process challenges (Counts 2 and 3 of his Petition).
A. Substantive Due Process
"[A]liens ... have a substantive due process right to be free of arbitrary confinement pending deportation proceedings." Doherty v. Thornburgh , 943 F.2d 204, 209 (1991). "It is axiomatic, however, that an alien's right to be at liberty during the course of deportation proceedings is circumscribed by considerations of the national interest." Id. If the infringement on an alien's "liberty interest results from a proper exercise of discretion," then a prolonged detention "is not conduct that goes beyond the range of government activity permitted by the Constitution." Id. at 211. "[D]etention of an alien ‘once removal is no longer reasonably foreseeable’ ... violates the Due Process Clause." Wang v. Ashcroft , 320 F.3d 130, 146 (2d Cir. 2003). "[O]nce 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." Zadvydas , 533 U.S. at 701, 121 S.Ct. 2491.
In the instant matter, Petitioner has failed to demonstrate that his removal is not reasonably foreseeable. To the contrary, Petitioner would be removed if he withdrew his appeal of the IJ's decision presently before the BIA. Petitioner "may not rely on the extra time resulting" from his appeal "to claim that his prolonged detention violates substantive due process." Doherty , 943 F.2d at 211 ; Thompson v. Lynch , No. 16 CV 6608 (CJS), 2017 WL 344970, at *7 (W.D.N.Y. Jan. 24, 2017) ("Unless and until the circuit court vacates the removal order or otherwise rules in petitioner's favor on the petition for review, petitioner remains a criminal alien subject to removal and subject to lawful mandatory detention in DHS custody under the authority of the INA."). Accordingly, the Court denies the portion of the Petition that rests on substantive due process grounds as well as Petitioner's associated request for immediate release.
B. Procedural Due Process
For the reasons previously articulated in other decisions by this Court, see, e.g., Ranchinskiy , 422 F. Supp. 3d at 797 ; Constant v. Barr , 409 F. Supp. 3d 159, 167-68 (W.D.N.Y. 2019), this Court agrees with the overwhelming majority of courts in this Circuit that the multi-factor approach articulated by the court in Sajous v. Decker , No. 18-cv-2447 (AJN), 2018 WL 2357266, at *1 (S.D.N.Y. May 23, 2018), and other courts within this Circuit, is a useful tool for addressing procedural due process claims for aliens detained pursuant to § 1226(c) in the immigrant habeas context. Those factors are as follows:
(1) the length of time the petitioner has been detained; (2) the party responsible for the delay; (3) whether the petitioner has asserted defenses to removal; (4) whether the detention will exceed the time the petitioner spent in prison for the crime that made him removable; (5) whether the detention facility is meaningfully different from a penal institution for criminal detention; (6) the nature of the crimes committed by the petitioner; and (7) whether the petitioner's detention is near conclusion.
Cabral v. Decker , 331 F. Supp. 3d 255, 261 (S.D.N.Y. 2018). However, these factors cannot be applied in a rigid fashion, and each individual's detention circumstance must be evaluated on a case-by-case basis to determine whether it has become unreasonable or unjustified, consistent with the flexible nature of due process. Jennings , 138 S. Ct. at 852. The case-by-case approach is an "as-applied, fact-based analysis ... derived from the Supreme Court's decisions in Zadvydas and Demore [.]" Sajous , 2018 WL 2357266, at *10.
As to the first factor, Petitioner has been detained in immigration custody since April 30, 2019—approximately 21 months. "[C]ourts in this Circuit have generally been skeptical of prolonged detention of removable immigrants, without process, lasting over six months," Lett v. Decker , 346 F. Supp. 3d 379, 387 (S.D.N.Y. 2018) (quoting Lopez v. Sessions , No. 18 Civ. 4189 (RWS), 2018 WL 2932726, at *14 (S.D.N.Y. June 12, 2018) ), appeal filed , No. 18-3714 (2d Cir. Dec. 11, 2018), and "courts have found detention shorter than a year to be unreasonably prolonged as part of procedural due process analysis," Rosado Valerio v. Barr , No. 19-CV-519, 2019 WL 3017412, at *4 (W.D.N.Y. July 10, 2019) (collecting cases), appeal dismissed , No. 19-2848, 2020 WL 1126526 (2d Cir. Jan. 9, 2020). Thus, "[t]he first and ‘most important’ ... factor weighs heavily in favor of granting the petition." Bermudez Paiz v. Decker , No. 18-CV-4759 (GHW) (BCM), 2018 WL 6928794, at *13 (S.D.N.Y. Dec. 27, 2018) (citation omitted).
As to the second factor, the Court concludes that neither Petitioner nor Respondent has unnecessarily delayed the proceedings. The record reflects that the proceedings before the Immigration Court were adjourned on only three occasions. The first adjournment was from July 1, 2019, to August 12, 2019, for attorney preparation. (Hunter Decl., at ¶ 13). In addition, there were two brief adjournments from August 12, 2019 to August 26, 2019 (Dkt. 3-2 at 20-21), and from August 26, 2019 to September 9, 2019 (id. at 22-23). Accordingly, this factor is neutral and does not favor Petitioner or the government.
As for the third factor, Petitioner asserted defenses to removal in the immigration proceedings. Specifically, the record reflects that Petitioner applied for asylum, withholding of removal, and an application seeking cancellation of removal. (See, e.g. , Dkt. 3-3 at 17 (Petitioner "submitted Form EOIR-42A, Application Seeking Cancellation of Removal for Certain Permanent Residents and Form I-589, Application for Asylum and Withholding of Removal"); id. at 20 (Petitioner's brief before the IJ, arguing that he may pursue his application for cancellation of removal); id. at 29 (denying Petitioner's requests for asylum, withholding of removal, and cancellation of removal under Section 240A)). While the IJ rejected these defenses, "[t]he Court need not inquire into the strength of [Petitioner's] defenses—it is sufficient to note their existence and the resulting possibility that the Petitioner will ultimately not be removed, which diminishes the ultimate purpose of detaining the Petitioner pending a final determination as to whether he is removable." Sajous , 2018 WL 2357266, at *11 ; see Cabral , 331 F. Supp. 3d at 261-62 (finding the third factor weighed in petitioner's favor because he asserted several defenses to his removal "including asylum, withholding of removal, and relief under the Convention Against Torture"). Accordingly, this factor weighs in Petitioner's favor.
As to the fourth factor, while the 21-month term that Petitioner has been detained in immigration custody is not insignificant, it does not approach the amount of time he spent in prison for the crimes that made him removable, including his April 2015 conviction for Criminal Possession of a Controlled Substance in the Third Degree, for which he was sentenced to five years in prison, and his July 2018 conviction for Promoting Prison Contraband to Prisoners in the Second Degree, for which he was sentenced to one year in prison. (Hunter Decl., at ¶ 6(e, f)). Petitioner's sentences for these convictions total over five years, and therefore this factor weighs in favor of the government.
The fifth factor—whether the detention facility is meaningfully different from a penal institution for criminal detention—is at best neutral. The government submits the declaration of Kyle A. Hobart, the Assistant Officer in Charge at the BFDF (Dkt. 3-4), in support of its contention that individuals held at BFDF do not face the same level of restrictions as someone held at a prison. However, this Court has previously found that because BFDF "houses aliens against their will with various restrictions on their freedom of movement ... while perhaps not akin to a maximum-security prison, for many aliens ... the facility does not seem meaningfully different from at least a low-security penal institution for criminal detention." Singh v. Barr , No. 1:19-CV-01096 EAW, 2020 WL 1064848, at *10 (W.D.N.Y. Mar. 2, 2020). The sixth factor, the nature of the crimes Petitioner was convicted of, weighs in favor of the government. Petitioner's criminal convictions—which include controlled substances crimes, aggravated operation of motor vehicles, and larceny, are serious and resulted in Petitioner serving significant periods of incarceration. See Ranchinskiy , 422 F. Supp. 3d at 791, 799 (finding that sixth factor weighed against the petitioner, where he pleaded guilty to grand larceny in the second degree and was sentenced to two to six years in prison); see also Curry v. Barr , No. 6:20-CV-06292 EAW, 2020 WL 4449965, at *6 (W.D.N.Y. Aug. 3, 2020) (finding that sixth factor weighed against petitioner where he pleaded guilty to "multiple drug-related criminal offenses").
The final factor, whether Petitioner's detention is near conclusion, favors Petitioner. Petitioner has appealed the IJ's decision to the BIA, where it has been pending since January 9, 2020. It is unclear when the BIA will issue its decision. Thereafter, if the BIA affirms the IJ's decision, Petitioner may appeal that decision to the Second Circuit Court of Appeals. It is consequently unclear when a decision relating to Petitioner's removal will be final. See Dukuray v. Decker , No. 18 CV 2898(VB), 2018 WL 5292130, at *5 (S.D.N.Y. Oct. 25, 2018) ("[T]here is ‘significant reason to believe that [petitioner's detention] will continue ... because ... he would remain detained throughout the course of an appeal by either side.’ " (second alteration in original) (quoting Lett , 346 F. Supp. 3d at 387 )).
Thus, the Court acknowledges that some of the factors favor Petitioner and some do not. However, on balance and particularly in view of the length of the detention and the circumstances surrounding that detention, the Court finds that Petitioner's continued detention without a bond hearing is constitutionally unjustified. See Arce-Ipanaque v. Decker , No. 19-CV-1076 (JMF), 2019 WL 2136727, at *2 (S.D.N.Y. May 15, 2019) ("At bottom, the minimal burden that a bond hearing would place on the Government is far outweighed by [the petitioner]’s interest in ensuring that his continued detention is justified." (quotation and original alteration omitted)).
C. Process Due to Petitioner
It is well-established within this Circuit that when a court determines the length of a petitioner's detention pursuant to § 1226(c) is unjustified, due process requires that he be given a bond hearing where an individualized determination can be made as to whether he should remain confined for the duration of his immigration proceedings. See, e.g. , Bermudez Paiz , 2018 WL 6928794, at *14 (holding petitioner was entitled to a bond hearing after finding his detention was unreasonably prolonged); Cabral , 331 F. Supp. 3d at 262-63 (same); Hernandez v. Decker , 2018 WL 3579108, at *10 (S.D.N.Y. July 25, 2018) (same). "The only remaining question concerns the burden of proof at the bond hearing." Bermudez Paiz , 2018 WL 6928794, at *15.
Prior to Jennings , the Second Circuit required in bond hearings that "the government establish[ ] by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community." Lora v. Shanahan , 804 F.3d 601, 616 (2d Cir. 2015). In Jennings , the Supreme Court held "that § 1226 itself does not require the government to carry the clear and convincing evidence burden.... However, the Supreme Court left open the question of what the Constitution requires for aliens detained pursuant to § 1226(c)." Cabral , 331 F. Supp. 3d at 262 n.6 (citing Jennings , 138 S. Ct. at 847, 851 ). The vast majority of courts in this Circuit to have considered this issue, including this Court, have found that due process requires that an individual such as Petitioner is entitled to a bond hearing where the government must demonstrate dangerousness or flight risk by clear and convincing evidence. See, e.g., Ranchinskiy , 422 F. Supp. 3d at 800.
Additionally, as the Court has previously noted, both due process and BIA precedent require the IJ to consider ability to pay and alternative conditions of release in setting bond. See Abdi v. Nielsen , 287 F. Supp. 3d 327, 335-39 (W.D.N.Y. 2018).
CONCLUSION
For the foregoing reasons, the Petition is dismissed as to all the respondents except Jeffrey Searls, and the Petition (Dkt. 1) is granted in part and denied in part. Further, Petitioner's motion to withdraw his reply (Dkt. 7) and motion to amend (Dkt. 8) are denied. In order to comport with the requirements of the Fifth Amendment's Due Process Clause, the Court orders Respondent to afford Petitioner a bond hearing consistent with the procedures outlined in this Decision and Order within 14 days of its entry. The Clerk of Court is instructed to close this case. If Petitioner requests a continuance that results in a bond hearing date outside the 14-day deadline set forth above, such a continuance will be in compliance with the instant Decision and Order, as long as the new date falls within a reasonable time period. Respondent is directed to file a status update with the Court within three (3) days of the date of Petitioner's bond hearing regarding the outcome of the hearing, or within 30 days of the date of this Decision and Order, whichever date is earlier.
SO ORDERED.