Opinion
6:20-CV-06079 EAW
2020-12-21
Jesus MATOS, 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.
Jesus Matos, 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.
Jesus Matos, 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 Jesus Matos ("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 (Dkt. 1 at ¶ 6; Dkt. 3-1 at ¶ 5) (Declaration of Jon Klaybor ("Klaybor Decl.")) and entered the United States sometime in 1996 (Klaybor Decl., at ¶ 5).
On December 5, 2001, Petitioner was arrested in Paterson, New Jersey and charged with making false reports to law enforcement and hindering his own apprehension. (Id. at ¶ 6). On December 19, 2001, Petitioner was found guilty by the Municipal Court of Paterson for "Hindering-Oneself-Give-False Identification," for which he was sentenced to three days incarceration and fined $455. (Id. ).
Thereafter, on September 9, 2004, Petitioner was arrested by the New Jersey State Police and charged with burglary and theft. (Id. at ¶ 7). He pled guilty to "Conspiracy Theft" in the Superior Court of Bergen County, New Jersey and was sentenced to four years imprisonment and fined $405. (Id. ). On July 29, 2005, Petitioner was convicted of Criminal Restraint in the Superior Court of Passaic County, New Jersey and was sentenced to four years imprisonment. (Id. at ¶ 8). On September 12, 2005, Petitioner was convicted of Conspiracy in the Superior Court of Bergen County and sentenced to four years imprisonment and fined $250. (Id. at ¶ 9).
In August 2006, officers from the Department of Homeland Security ("DHS") encountered Petitioner at a detention facility in Hudson County, New Jersey, where he was incarcerated. (Id. at ¶ 10). His immigration status was verified and he was placed in immigration removal proceedings. (Id. ). On April 23, 2007, Petitioner was granted cancellation of removal by an immigration judge ("IJ"), pursuant to INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), and his status was adjusted to lawful permanent resident. (Id. at ¶ 11; see also Dkt. 3-4 (Declaration of Phillip Rimmer ("Rimmer Decl."), at ¶¶ 3-17)).
Thereafter, on April 19, 2010, Petitioner was arrested in Clinton Township, New Jersey, and charged with possession of marijuana and drug paraphernalia; on May 19, 2010, he was granted a conditional discharge by the Municipal Court of Clinton. (Klaybor Decl., at ¶ 12). Petitioner was again arrested on September 9, 2010, in Paramus, New Jersey, and charged with shoplifting. (Id. at ¶ 13). On March 30, 2011, the Municipal Court of Paramus found Petitioner guilty of "Disorderly Conduct – Improper Behavior," and he was fined $455. (Id. ).
On December 26, 2011, Petitioner was arrested and charged with burglary and criminal trespass. (Id. at ¶ 14). On April 25, 2012, Petitioner was found guilty of "Criminal Trespass – Unlicensed" and fined $652. (Id. ). On August 23, 2012, Petitioner was arrested in Passaic, New Jersey, and charged with the following crimes: aggravated assault; kidnapping—hold for other purpose; robbery; possession of a weapon for an unlawful purpose; and kidnapping—bodily injury. (Id. at ¶ 15). On May 9, 2017, the Passaic County Superior Court found Petitioner guilty of "Theft by Unlawful Taking," for which he was sentenced to 482 days imprisonment and fined $125. (Id. ).
Officer Klaybor states that Petitioner was convicted of "Theft by Unlawful Taxing," in violation of N.J.S.A. § 2C:20-3A. However, that statute criminalizes "Theft by Unlawful Taking," and therefore the Court assumes the word "taxing" is a typographical error.
On December 4, 2018, Petitioner was arrested in Buffalo, New York, by the Immigration and Customs Enforcement ("ICE") Fugitive Operations Team, pursuant to an arrest warrant, and he was placed in DHS custody. (Id. at ¶ 16; Dkt. 3-2 at 1-2, 10). He was served with a Notice to Appear ("NTA"), charging him with being a native and citizen of the Dominican Republic subject to removal from the United States pursuant to the Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who, after admission, was convicted of an aggravated felony as defined in INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), a law relating to a theft offense (including receipt of stolen property), or a burglary offense for which a term of imprisonment of at least one year was imposed. (Klaybor Decl., at ¶ 17; see also Dkt. 3-2 at 9, 12-14). DHS determined that Petitioner would be detained pending a final administrative determination of his case. (Klaybor Decl., at ¶ 18; Dkt. 3-2 at 16). Petitioner requested that an IJ review the custody determination. (Id. ).
Petitioner was scheduled for a hearing at the Batavia Immigration Court on February 6, 2019, but his hearing was reset for February 27, 2019 due to other priority cases. (Rimmer Decl., at ¶ 18). On February 27, 2019, Petitioner appeared for an initial master calendar hearing before an IJ, but the proceedings were continued until March 20, 2019, to allow Petitioner time to prepare. (Id. at ¶ 19). Petitioner appeared for a master calendar hearing on March 20, 2019, but the proceedings were continued until April 10, 2019, for evidence that was filed late by Petitioner. (Id. at ¶ 20; see also Klaybor Decl., at ¶¶ 19-20).
Thereafter, on April 3, 2019, DHS served Petitioner with Additional Charges of Inadmissibility/Deportability, including that he was subject to removal pursuant to INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien who, at any time after admission, has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct; and pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who, at any time after admission, has been convicted of an aggravated felony as defined in INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), to wit: INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment was at least one year. (Klaybor Decl., at ¶ 21). Additional factual allegations relating to Petitioner's September 12, 2005 and July 29, 2015 convictions for Conspiracy and Criminal Restraint were added to the factual allegations in the original NTA. (Id. ; see also Dkt. 3-2 at 17).
A master calendar hearing was further adjourned on the following dates: on April 10, 2019, the hearing was adjourned until May 8, 2019, to allow Petitioner additional time to prepare; on May 8, 2019, the hearing was adjourned until May 29, 2019, for DHS preparation; on May 29, 2019, the hearing was adjourned to June 3, 2019, for DHS preparation; on June 3, 2019, the hearing was adjourned to September 13, 2019, for an individual merits hearing; the September 13, 2019 individual merits hearing was adjourned to December 10, 2019, at Petitioner's request, due to his pending I-130 application , filed for him by his wife, a U.S. citizen; and the December 10, 2019 individual merits hearing was adjourned to December 16, 2019, due to other priority cases. (Rimmer Decl., at ¶¶ 21-26; Klaybor Decl., at ¶¶ 22-27; see also Dkt. 3-2 at 33).
An I-130 application may be filed by U.S. citizens on behalf of their immediate relatives (children, spouses, and parents of the citizen filing the application), and "[r]eceiving immediate relative classification pursuant to an I-130 Petition is advantageous because the visas for individuals classified as immediate relatives are not subject to the worldwide levels or numerical limitations on immigration prescribed by statute." Simko v. Bd. of Immigr. Appeals , 156 F. Supp. 3d 300, 309 (D. Conn. 2015).
On December 16, 2019, Petitioner appeared before IJ Walter H. Ruehle for an individual merits hearing. (Rimmer Decl., at ¶ 27; Klaybor Decl., at ¶ 28; Dkt. 3-2 at 42). Upon conclusion of the hearing, the IJ issued an order or removal. (Rimmer Decl., at ¶ 27; Klaybor Decl., at ¶ 28; see also Dkt. 3-2 at 30-42). Petitioner appealed the IJ's removal decision to the Board of Immigration Appeals ("BIA") on January 14, 2020, and based on the record before the Court, his appeal remains pending. (Rimmer Decl., at ¶¶ 28-29; Klaybor Decl., at ¶¶ 29-32, 34; see also Dkt. 3-2 at 44).
On April 14, 2020, Petitioner's attorney filed a request for humanitarian release with DHS. (Klaybor Decl., at ¶ 33; Dkt. 3-2 at 53). The request was based on Petitioner's risk of infection from COVID-19 and due to the February 28, 2020 approval of his I-130 application, which his attorney contended made him eligible for an adjustment of status before the immigration court. (Dkt. 3-2 at 53-54). Petitioner's request was denied, based on DHS's determination that he is a danger to the community. (Klaybor Decl., at ¶ 33; see also Dkt. 3-2 at 55-56).
Petitioner filed the instant habeas corpus Petition on February 5, 2020. (Dkt. 1). Respondents filed a response and memorandum in opposition on June 1, 2020 (Dkt. 3; Dkt. 4), and Petitioner filed a reply on June 26, 2020, attaching several letters of support from his family members and friends (Dkt.5).
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 J. 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 17). 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 3; see also Dkt. 5). 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 2 (Petitioner's "convictions ... require that [he] remain detained during his proceedings in immigration court to determine whether he can be removed.")); 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 prior criminal convictions 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 December 4, 2018—over two years. "[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 record demonstrates that both Petitioner and DHS requested continuances during Petitioner's removal proceedings that caused delay. Petitioner requested three continuances (see Rimmer Decl., at ¶¶ 19, 21, 25), DHS requested two continuances (id. at ¶¶ 22, 23), and the case was adjourned due to other priority cases on two occasions (id. at ¶¶ 18, 26). The record does not show that Petitioner engaged in bad faith delay tactics; rather, the adjournments sought by Petitioner were to allow him time to prepare for his hearing and because he was awaiting the return of his I-130 application, which was pending. (Id. at ¶¶ 19, 21, 25; Dkt. 3-2 at 33). In considering this factor, the Court notes that Petitioner's "pursuit of relief from removal does not, in itself, undermine a claim that detention is unreasonably prolonged." Hernandez v. Decker , No. 18-CV-5026 (ALC), 2018 WL 3579108, at *9 (S.D.N.Y. July 25, 2018). Due to the several continuances sought by both Petitioner and DHS, the Court finds that this factor is neutral and does not favor Petitioner or the government.
In addressing the first factor, the government notes that "Petitioner recently had his custody reviewed by DHS on April 14, 2020 after his attorney filed a request for humanitarian release." (Dkt. 4 at 13). The government does not offer any support for the contention that this April 2020 review was equivalent to the procedural due process that would be afforded to Petitioner at a bond hearing before an IJ, and therefore the fact that DHS apparently reviewed Plaintiff's case in April 2020 case does not change the Court's conclusion as to this factor. See, e.g., Mycoo v. Warden of Batavia Fed. Det. Facility , No. 6:20-CV-06405 EAW, 2020 WL 5800920, at *6 n.3 (W.D.N.Y. Sept. 29, 2020) (finding that DHS's review of petitioner's post-removal order requests for release did not satisfy the requirements of due process, because "[s]uch review falls far short of the protections afforded at a bond hearing and does not constitute procedural due process.").
As for the third factor, Petitioner asserted defenses to removal in the immigration proceedings. Specifically, Petitioner applied for asylum, withholding of removal, and relief under the Convention Against Torture. (Dkt. 3-2 at 33). Petitioner also identified his pending I-130 Petition for Alien Relative as a basis for continuing his deportation proceedings (id. ) which, as explained above, was subsequently approved in February 2020, and according to his attorney this application makes Petitioner eligible for adjustment of status before the immigration court (Dkt. 3-2 at 53-54; Dkt. 5 at 3). While the IJ rejected these defenses (Dkt. 3-2 at 33, 35-41), "[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 two-year 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 July 2005 and September 2005 convictions for Criminal Restraint and Conspiracy, for which he was sentenced to four years imprisonment (see Dkt. 3-2 at 17), and his May 2017 conviction for Theft by Unlawful Taking, for which he was sentenced to 482 days in prison (id. at 14). 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. 3-3), in support of its contention that individuals held at BFDF do not face the same level of restrictions as someone held at a prison. (Dkt. 4 at 15). 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 Conspiracy, Criminal Restraint, and Theft, 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 Cabral , 331 F. Supp. 3d at 262 (finding sixth factor weighed against petitioner when convicted multiple times and crimes included attempted robbery and criminal possession of a weapon).
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 14, 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 , 2018 WL 3579108, at *10 (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. 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.