Opinion
19-CV-00241 EAW
10-04-2019
Adelakun Jubril ADEJOLA, Petitioner, v. William BARR, Attorney General of the United States, et al., Respondents.
Adelakun Jubril Adejola, Pro se. Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, United States Attorney's Office (e-service), Western District of New York, for Respondents.
Adelakun Jubril Adejola, Pro se.
Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, United States Attorney's Office (e-service), Western District of New York, for Respondents.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge INTRODUCTION
Pro se petitioner Adelakun Jubril Adejola ("Petitioner"), a civil immigration detainee currently held at the Buffalo Federal Detention Facility in Batavia, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner, who is detained pursuant to 8 U.S.C. § 1226(a), contends that the bond hearing he received upon his initial detention in April 2018 violated his right to procedural due process. (Id. at 24-25). For the reasons that follow, the Court agrees, and finds that Petitioner is entitled to a new, 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
I. Factual Background
Petitioner is a native and citizen of Nigeria. (Dkt. 5-1 at ¶ 5). He entered the United States on or about June 13, 2017, with authorization to remain until December 12, 2017. (Id. ). On March 15, 2018, United States Immigration and Customs Enforcement ("ICE") received information that Petitioner was working for a local business. (Id. at ¶ 6). Petitioner was arrested by ICE officers and transferred to the Buffalo Federal Detention Facility. (Id. ). Petitioner was further served with a notice to appear charging him with being subject to removal pursuant to § 237(a)(1)(B) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1227(a)(1)(B). (Id. at ¶ 8).
On March 16, 2018, the Department of Homeland Security made a determination that Petitioner would be detained pending a final administrative determination of his case. (Id. at ¶ 9). Petitioner made a motion for bond redetermination on March 22, 2018. (Id. at ¶ 10). An immigration judge ("IJ") held a bond hearing on April 10, 2018, and denied Petitioner's request for a change in custody status on the basis that he was a flight risk. (Id. ). At the bond hearing, the burden of proof was placed on Petitioner to demonstrate that he was not a flight risk and did not present a danger to the community. (See Dkt. 5-2 at 9, 20).
Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA") on April 30, 2018. (Dkt. 5-1 at ¶ 11). On July 18, 2018, BIA remanded the appeal because it had been unable to obtain a record of the proceedings before the IJ. (Dkt. 5-2 at 16). On August 28, 2018, the IJ conducted a re-calendered bond hearing. (Id. at 18). Prior to holding the re-calendered hearing, the IJ located and played for the parties the recording of the bond hearing held on April 10, 2018—apparently, the recording had been "erroneously recorded on the removal side of the case." (Id. at 18-19). On October 12, 2018, the IJ held that Petitioner had not born the burden of showing a material change in circumstances warranting a redetermination of his request for bond. (Id. at 19). Petitioner appealed the IJ's denial of his request for redetermination, and the BIA affirmed the IJ's decision on February 13, 2019. (Id. at 20-21).
Petitioner's removal proceedings are ongoing. (See Dkt. 5-1 at ¶¶ 15-29). He is not, at this time, subject to a final order of removal. (See Dkt. 6 at 6). II. Procedural Background
Petitioner filed his Petition on February 25, 2019. (Dkt. 1). Respondents filed their Answer and memorandum in opposition on April 29, 2019. (Dkt. 5; Dkt. 6). Petitioner filed a reply on May 10, 2019. (Dkt. 8).
On August 21, 2019, Petitioner filed a motion for an expedited determination of his Petition. (Dkt. 9). Petitioner also filed a supplemental reply. (Dkt. 10).
DISCUSSION
I. Petition
A. 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.").
B. Due Process
The Petition challenges the constitutionality of the procedures used in connection with his bond hearing in April 2018. (See Dkt. 1 at 20, 24-25). In particular, Petitioner argues that it was unconstitutional for the Government to require him to bear the burden of demonstrating, at his bond hearing, that he was not a flight risk and did not present a danger to the community. (Id. ). The Court agrees.
The Due Process Clause of the Fifth Amendment provides that the Government may not "deprive[ ]" any person "of life, liberty, or property, 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 , 533 U.S. at 690, 121 S.Ct. 2491. The guarantee of due process "applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent." Id. at 693, 121 S.Ct. 2491 (quotation omitted).
Here, Petitioner is detained pursuant to 8 U.S.C. § 1226(a). (See Dkt. 6 at 6). That statutory provision "provides in pertinent part that ‘an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.’ " Aparicio-Villatoro v. Barr , No. 6:19-CV-06294-MAT, 2019 WL 3859013, at *4 (W.D.N.Y. Aug. 16, 2019) (quoting 8 U.S.C. § 1226(a) ). The statute further empowers the Attorney General to release the detained individual on bond pending the determination of his removal proceedings. 8 U.S.C. § 1226(a)(2). Accordingly, DHS has promulgated regulations setting forth the procedures by which an individual detained under § 1226(a) may obtain release: "The DHS district director makes the initial custody determination; thereafter, the alien has the right to appeal an adverse decision to an IJ, and then to the BIA." Aparicio-Villatoro , 2019 WL 3859013, at 4 (citing 8 C.F.R. §§ 1003.19(a), (f), 1236.1(d)(1), (3) ).
"While § 1226(a) is silent on the issues of which party bears the burden of proof at a custody redetermination hearing and the quantum of evidence necessary to satisfy that burden, see 8 U.S.C. § 1226(a), the BIA has interpreted § 1226(a) to place ‘[t]he burden on the alien to show to the satisfaction of the [IJ] that he or she merits release on bond.’ " Id. (quoting In re Guerra , 24 I. & N. Dec. 37 (BIA 2006) (alteration omitted)). However, courts in this Circuit have overwhelmingly concluded that it is a violation of procedural due process to require an immigration detainee held under § 1226(a) to bear the burden at his bond hearing. See, e.g., Aparicio-Villatoro , 2019 WL 3859013, at *7 ("As to the applicable burden of proof, most courts that have decided the issue have concluded that Government must supply clear and convincing evidence that the alien is a flight risk or danger to society."); Velasco Lopez v. Decker , No. 19-CV-2912 (ALC), 2019 WL 2655806, at *3 (S.D.N.Y. May 15, 2019) ("[E]very court to have considered the constitutional issue presented in this case has agreed ... [that] under the Due Process Clause of the Fifth Amendment, it is the Government's burden to justify the detention of an immigrant at a bond hearing under § 1226(a)"), appeal filed , No. 19-2284 (2d Cir. July 23, 2019); Brevil v. Jones , No. 17 CV 1529-LTS-GWG, 2018 WL 5993731, at *4 (S.D.N.Y. Nov. 14, 2018) ("The Court has reviewed and is persuaded by recent decisions within and outside of this district which hold that due process requires that the Government demonstrate dangerousness or risk of flight by a clear and convincing standard at an immigration detainee's bond hearing." (quotation and alteration omitted)); but see Rasel v. Barr , No. 19-CV-458 LJV, 2019 WL 4257408, at *6 (W.D.N.Y. Sept. 9, 2019) (finding that a bond hearing at which an immigration detainee bears the burden of proof is not "a facially invalid process"). This Court agrees with and is persuaded by the logic of the courts that have found a procedural due process violation under these circumstances, and accordingly "joins with these courts and concludes that the Fifth Amendment's Due Process Clause requires the Government to bear the burden of proving, by clear and convincing evidence, that detention is justified at a bond hearing under § 1226(a)." Aparicio-Villatoro , 2019 WL 3859013, at *7.
The Court further concludes that the constitutional error in this case was prejudicial to Petitioner. See id. ("Having found a constitutional error, the Court next examines whether such error was prejudicial to [the petitioner]"). The evidence that Petitioner was a flight risk appears to have been limited to his allegedly minimal ties to the United States, though the IJ acknowledged that he had a fiancée in this country. (See Dkt. 5-2 at 20). This evidence "was by no means overwhelming, so the standard of proof could well have affected the outcome of the bond hearing." Singh v. Holder , 638 F.3d 1196, 1205 (9th Cir. 2011) (finding prejudicial error in misapplication of burden of proof in immigration bond hearing); see also Aparicio-Villatoro , 2019 WL 3859013, at *7 ; Brevil , 2018 WL 5993731, at *5. Accordingly, the Court finds that Petitioner is entitled to a new, 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 justifying his continued detention without bond.
C. Request Regarding Transfer
Petitioner has asked that the Court restrain Respondents from transferring him out of the jurisdiction of the Court while he remains in Respondents' custody. (Dkt. 1 at 27). Respondents correctly point out that the Court lacks jurisdiction to consider this request. See Salazar v. Dubois , No. 17-CV-2186 (RLE), 2017 WL 4045304, at *1 (S.D.N.Y. Sept. 11, 2017) ("[T]his Court does not have authority to issue an order to change or keep [an immigration detainee] at any particular location."); Salim v. Johnson , No. 15-CV-68-JTC, 2015 WL 4094696, at *2 n.3 (W.D.N.Y. July 7, 2015) (same). As such, the Court denies this aspect of the Petition.
CONCLUSION
For the foregoing reasons, the Petition (Dkt. 1) is granted solely to the extent that the Court orders Respondents to afford Petitioner an individualized bond hearing consistent with the procedures outlined in this Decision and Order within 14 days of its entry. Petitioner's motion for expedited resolution of his Petition (Dkt. 9) is denied as moot. The Clerk of Court is instructed to close this case.
SO ORDERED.