Opinion
6:20-CV-06677 EAW
2021-04-26
Elmer Augusto RODRIGUEZ FIGUEROA, Petitioner, v. Merrick GARLAND, United States Attorney General, Alejandro Mayorkas, Secretary, Department of Homeland Security, Thomas Feely, Field Office Director for Detention Removal, Jeffrey Searls, Facility Director, Buffalo Federal Detention Facility, and Michael Ball, SDDO, Respondents.
Elmer Augusto Rodriguez Figueroa, Batavia, NY, Pro Se. Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, United States Attorney's Office, for Respondents.
Elmer Augusto Rodriguez Figueroa, Batavia, NY, Pro Se.
Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, United States Attorney's Office, for Respondents.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Pro se petitioner Elmer Augusto Rodriguez Figueroa ("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 he seeks immediate release. (Id. ). Presently before the Court is a motion to dismiss filed by Respondents, seeking dismissal based on the Supreme Court's ruling in Department of Homeland Security v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020), because Petitioner, who is detained pursuant to 8 U.S.C. § 1225(b), is not entitled to a bond hearing. (Dkt. 4). For the following reasons, the Court grants Respondents’ motion to dismiss
The petition names William Barr and Kevin McAleenan as respondents. (Dkt. 1). Pursuant to Fed. R. Civ. P. 25(d), Merrick Garland and Alejandro Mayorkas are automatically substituted in their place.
BACKGROUND
Petitioner is detained pursuant to 8 U.S.C. § 1225(b). (Dkt. 4-1 at 1). He previously brought an immigration habeas petition before this Court. See Rodriguez-Figueroa v. Barr , 442 F. Supp. 3d 549 (W.D.N.Y. 2020). Petitioner is a citizen and native of Honduras (Dkt. 1 at ¶ 6), and he was in the United States within 0.75 miles of the United States border with Mexico when he was apprehended by Customs and Border Patrol agents on June 10, 2018, shortly after having illegally entered this county, Rodriguez-Figueroa , 442 F. Supp. 3d at 554. He alleges in the instant petition that he has been in the custody of Respondents since August 4, 2018, and was ordered removed by an Immigration Judge ("IJ") on June 4, 2019. (Dkt. 1 at ¶ 6).
In resolving Petitioner's previous petition, the Court found that Petitioner's detention had become unreasonably prolonged and ordered that he receive a bond hearing at which the government carried the burden of proving that Petitioner was a risk of danger to the community or a flight risk. See Rodriguez-Figueroa , 442 F. Supp. 3d at 568-69 (W.D.N.Y. 2020). On January 6, 2021, following the Court-ordered bond hearing before the IJ, Petitioner filed a motion to enforce, arguing that the bond hearing did not comport with the procedures set forth in the Court's Order. Motion to Enforce, Rodriguez-Figueroa v. Barr , No. 6:19-cv-06366 EAW, Dkt. 25 (W.D.N.Y. Jan. 6, 2021). On February 3, 2021, the Court denied the motion to enforce, finding that for the reasons set forth in detail in its decision in Gonzales Garcia v. Rosen , ––– F. Supp. 3d ––––, 2021 WL 118933 (W.D.N.Y. Jan. 13, 2021), Petitioner, who is detained pursuant to 8 U.S.C. § 1225(b) and who was apprehended shortly after unlawfully crossing the border, was not entitled to any process beyond that which had already been provided. Rodriguez-Figueroa v. Barr , No. 6:19-cv-06366 EAW, Dkt. 28 (W.D.N.Y. Feb. 3, 2021).
The Court's analysis in the prior proceeding that Petitioner was entitled to a bond hearing was issued prior to the Supreme Court's decision in Thuraissigiam . In Thuraissigiam , the Supreme Court rejected the petitioner's due process argument, concluding that "an alien in [the petitioner's] position has only those rights regarding admission that Congress has provided by statute. In [the petitioner's] case, Congress provided the right to a ‘determin[ation]’ whether he had ‘a significant possibility’ of ‘establish[ing] eligibility for asylum,’ and he was given that right." 140 S. Ct. at 1983 (alterations in original). Of particular importance here, the Thuraissigiam Court held that an alien who "is detained shortly after unlawful entry" is not treated, for due process purposes, as having "effected an entry" into the United States, but is instead treated as "on the threshold," just like "an alien detained after arriving at a port of entry." Id. at 1982-83.
During the pendency of his prior proceeding, Petitioner was also pursuing a Petition for Review ("PFR") before the Second Circuit Court of Appeals. (Dkt. 4-1 at 2). His PFR challenged the affirmation of his removal order by the Board of Immigration Appeals ("BIA"). (Id. ). The Second Circuit entered an Order staying Petitioner's removal in July 2020, and Petitioner remains detained pursuant to 8 U.S.C. § 1225(b). (Id. ); see also Rodriguez-Figueroa v. Garland , No. 19-4233, Dkt. 46 (2d Cir. Jul. 17, 2020).
Petitioner filed the instant habeas corpus petition on September 8, 2020. (Dkt. 1). Respondents filed a motion to dismiss the petition on February 18, 2021 (Dkt. 4). Petitioner did not file a response to Respondents’ motion.
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. Petitioner's Claims
The Petition includes three grounds for relief, including a claim for a "statutory violation" because more than six months have passed since Petitioner was ordered removed by the IJ, and claims for violation of his procedural and substantive due process rights. (Dkt. 1 at 3-4).
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).
A. Statutory Violation
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 3-4). However, Petitioner's detention is not governed by § 1231, because he has been granted a stay of removal while his PFR is pending in the Second Circuit. See Hechavarria v. Sessions , 891 F.3d 49, 56 (2d Cir. 2018) (" Section 1231 does not govern the detention of immigrants whose removal has been stayed pending judicial review."), as amended (May 22, 2018); Rodriguez v. Barr , 488 F. Supp. 3d 29, 36 (W.D.N.Y. 2020) ("Because Rodriguez is not detained under section 1231(a), this Court rejects his argument that his detention violates that provision as interpreted by the Supreme Court in Zadvydas ."); 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.
B. Procedural Due Process
In Gonzales Garcia v. Rosen , 513 F. Supp. 3d 329, (W.D.N.Y. Jan. 13, 2021), this Court found that the petitioner, who was detained pursuant to 8 U.S.C. § 1225(b), was not constitutionally required to receive a bond hearing based on the Supreme Court's decision in Thuraissigiam . Id. at *3, 6. Specifically, the Court held that an individual who is apprehended shortly after unlawful entry is treated as an individual who is "on the threshold" and has not effected an entry into the United States, which "has significant repercussions for the Court's assessment of the process due to Petitioner," including that " ‘[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.’ " Id. at *3-4. In other words, " Thuraissigiam confirms that almost 70 years later, it is still the law of this country that the constitutional protections of procedural due process do not apply to a noncitizen who is physically held in custody in this country, if he is inadmissible and taken into custody at or shortly after unlawfully crossing the border." Id. at *4 ; see also St. Charles v. Barr , 514 F. Supp. 3d 570, 579, (W.D.N.Y. Jan. 22, 2021) ("[L]ike the petitioner in Gonzales Garcia was not ‘entitled to procedural protections beyond those provided by statute,’ ... this Court is constrained to find that Petitioner does not have a constitutional right to any additional procedure. Accordingly, the Court cannot order Respondents to provide him with a bond hearing, nor can it order his release." (internal citation omitted)). Accordingly, for the reasons explained by the Court in detail in its decision in Gonzales Garcia , and as the Court found in denying Petitioner's motion to enforce in his prior action, Petitioner, who is detained pursuant to 8 U.S.C. § 1225(b) and who was apprehended shortly after unlawfully crossing the border, is not entitled to an individualized bond hearing.
C. Substantive Due Process
Petitioner also contends that his continued detention violates the Fifth Amendment because he has been detained since 2018. (Dkt. 1 at 4). "[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 (2d Cir. 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 its previous decisions regarding Thuraissigiam , this Court has not had cause to consider its impact, if any, on a claim of a substantive due process violation. The Court notes that at least one other federal court has found that Thuraissigiam does not impact an immigration detainee's ability to enforce substantive due process rights. See D.A.M. v. Barr , 474 F. Supp. 3d 45, 63 (D.D.C. 2020) (finding that Thuraissigiam did not bar petitioners from "seeking to enforce substantive due process rights based on what amounts to unconstitutional conditions of confinement during the removal process"). In moving to dismiss the petition, Respondents did not address this issue or distinguish between Petitioner's procedural and substantive due process claims. Because it does not affect the outcome of the petition, and in light of Petitioner's pro se status, the Court assumes without deciding that his substantive due process claims are not barred by Thuraissigiam .
In the instant matter, Petitioner has failed to demonstrate that his removal is not reasonably foreseeable. See Abimbola v. Ridge , 181 F. App'x 97, 99 (2d Cir. 2006) (denying due process claim where detainee had "not demonstrated that there is no significant likelihood of removal in the reasonably foreseeable future"). Petitioner would be removed if he withdrew his PFR, which is currently pending before the Second Circuit. Petitioner offers no reason to anticipate that, once he is subject to a final order of removal, DHS would not be able to expediently remove him to Honduras. In other words, Petitioner is not being held indefinitely, and his detention will terminate at the conclusion of his removal proceedings. Although he has been detained since 2018, much of the time he has been detained resulted from his pursuing an appeal of the IJ's order that he be removed, and 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 ; see also Sanusi v. I.N.S., 100 F. App'x 49, 51 (2d Cir. 2004) (because detention that is "prolonged primarily by [a petitioner's] pursuit of final judicial review of his claims" does not "in itself violate[ ] due process," the petitioner's six-year detention, while "extremely regrettable," did not constitute substantive due process violation); Neil v. Holder , No. 15-CV-64-JTC, 2015 WL 3937280, at *5 (W.D.N.Y. June 26, 2015) ("The Second Circuit has approved of the notion that continued detention while challenges to removal are pending is generally not unreasonable."). Accordingly, the Court dismisses Petitioner's claim for violation of his substantive due process rights, as well as his associated request for immediate release.
CONCLUSION
For the foregoing reasons, Respondents’ motion to dismiss (Dkt. 4) is granted, and the Petition (Dkt. 1) is dismissed.
SO ORDERED.