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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
Summary of this case from Concepcion v. BarrOpinion
6:19-CV-06348 EAW
2019-11-08
Vasiliy V. RANCHINSKIY, Petitioner, v. William P. BARR, United States Attorney General, et al. Respondents.
Vasiliy V. Ranchinskiy, Pro se. Craig W. Kuhn, Erik Robert Quick, U.S. Department of Justice, Washington, DC, for Respondents.
Vasiliy V. Ranchinskiy, Pro se.
Craig W. Kuhn, Erik Robert Quick, U.S. Department of Justice, Washington, DC, for Respondents.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Pro se petitioner Vasiliy V. Ranchinskiy ("Petitioner"), an immigration detainee currently detained 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 argues that his continued detention is unconstitutional and seeks immediate release or, in the alternative, a bond hearing before an immigration judge. (Id. at 33). For the reasons discussed below, the Petition is dismissed as to all the respondents except Jeffrey Searls ("Respondent"), and the Petition is granted in part and denied in part.
BACKGROUND
Petitioner was born in 1984 in the Republic of Belarus in the former Union of Soviet Socialist Republics ("USSR") and is now a citizen of Ukraine. (Dkt. 6-2 at ¶ 5). He was admitted to the United States in September 2000 as a derivative of his parents' asylum applications. (Id. ). He adjusted to legal permanent resident status in February 2006. (Id. ).
In June 2017, Petitioner pled guilty in New York State Supreme Court, New York County to two counts of grand larceny in the second degree, and was sentenced to two to six years in prison. (Id. at ¶ 6). In November 2017, the Department of Homeland Security ("DHS") issued an arrest warrant and immigration detainer for Petitioner at the Queensboro Correctional Facility in Long Island City, New York, and served him with a Notice to Appear, charging him with removability under 8 U.S.C. § 1227(a)(2)(a)(iii). (Id. at ¶¶ 7-8). In February 2018, the New York State Department of Corrections and Community Supervision ("DOCCS") released Petitioner to the custody of Immigration and Customs Enforcement ("ICE"). (Id. at ¶ 9).
On February 22, 2018, a DHS officer determined that Petitioner should remain detained pending a final administrative determination in his case, and Petitioner requested that an immigration judge review this custody determination. (Id. ). On March 28, 2018, an immigration judge reviewed Petitioner's custody determination and denied Petitioner's request for release, finding 8 U.S.C. § 1226(c) applied and that Petitioner was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for his aggravated felony conviction. (Dkt. 6-3 at 24). Petitioner waived appeal. (Id. ).
Petitioner filed an application for asylum, and at a hearing scheduled for January 2, 2018, he requested a continuance so he could retain counsel. (Id. at ¶¶ 11-12). On March 28, 2018, Petitioner's counsel conceded Petitioner's removability charge but sought an extension of time to file an asylum application. (Id. at ¶ 12). Petitioner's merits hearings took place on June 6, August 30, and November 15, 2018, and on November 15, 2018, the IJ found Petitioner was statutorily ineligible for asylum, ineligible for withholding of removal, and did not qualify for deferral of removal under the Convention Against Torture ("CAT"). (Dkt. 6-2 at ¶ 13; Dkt. 6-3 at 39). Petitioner appealed the decision to the Board of Immigration Appeals ("BIA"), which dismissed his appeal on April 26, 2019. (Dkt. 6-3 at 42-44).
On May 8, 2019, ICE requested that the Ukrainian Consulate provide a travel document to facilitate Petitioner's return to the Ukraine. (Dkt. 6-2 at ¶ 17). Ukraine requires a travel itinerary before issuing a travel document, which is only valid for two weeks. (Id. at ¶ 20). Petitioner filed a petition for review and a motion to stay with the Second Circuit on May 16, 2019, which remain pending. (Id. at ¶¶ 18, 20). ICE does not request a travel document from Ukraine while a petition for review remains pending. (Id. at ¶ 20).
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
As a preliminary matter, the Government contends that Jeffrey J. Searls, Officer in Charge of the Buffalo Federal Detention Facility, is the only respondent with immediate custody over Petitioner, and consequently the only proper respondent. (Dkt. 6-1 at 26-27). 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[.]"))); 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. Due Process
The Petition challenges the constitutionality of 8 U.S.C. § 1226(c) as applied to Petitioner. (Dkt. 1). In particular, Petitioner contends that his detention, which has now extended for over two years (from on or about August 7, 2017, to the present), violates due process. He requests immediate release, or, in the alternative, a bond hearing before an IJ. (Id. at ¶¶ 4-5). For the reasons that follow, the Court grants in part and denies in part Petitioner's requests.
The Fifth Amendment to the United States Constitution provides that "[n]o person shall ... be deprived of life, liberty or property, without due process of law." U.S. Const. amend. V. "It is well-settled that aliens have rights of procedural due process." Doherty v. Thornburgh , 943 F.2d 204, 209 (2d Cir. 1991). "These protections extend even to aliens ... ‘whose presence in this country is unlawful.’ " Id. (quoting Mathews v. Diaz , 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) ).
In this case, Petitioner has been detained pursuant to § 1226(c) (Dkt. 1 at 3), which "provides for mandatory detention of criminal aliens," Mapp v. Reno , 241 F.3d 221, 224 (2d Cir. 2001). An alien detained pursuant to § 1226(c) may seek discretionary release from DHS only if "he is a witness, a potential witness, a cooperator, or an immediate family member or close associate of someone who is acting as a witness, potential witness, or cooperator in an investigation into major criminal activity. No other category of discretionary release exists under the statute." Sajous v. Decker , No. 18-CV-2447 (AJN), 2018 WL 2357266, at *1 (S.D.N.Y. May 23, 2018), appeal withdrawn , 2019 WL 4137822 (2d Cir. May 7, 2019) ; see Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 847, 200 L.Ed.2d 122 (2018) (" § 1226(c) mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings ‘only if’ the alien is released for witness-protection purposes.").
The law regarding the constitutionality of the mandatory detention provided for under § 1226(c) is somewhat unsettled. In Lora v. Shanahan , 804 F.3d 601 (2d Cir. 2015), the Second Circuit considered an as-applied challenge to § 1226(c) and joined the Third, Sixth, and Ninth Circuits in concluding that, to avoid "serious constitutional concerns," § 1226(c) must be read to include a temporal limitation on detention. Id. at 613. The Lora court reasoned that, under Demore , "for detention under the statute to be reasonable, it must be for a brief period of time." Id. at 614. As such, the Lora court adopted a bright-line rule that "an immigrant detained pursuant to section 1226(c) must be afforded a bail hearing before an immigration judge within six months of his or her detention." Lora , 804 F.3d at 616. The Second Circuit further held that the detainee "must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community." Id. (citing Rodriguez , 715 F.3d at 1131 ).
Subsequently, on February 27, 2018, the Supreme Court issued Jennings , ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122, which rejected the Ninth Circuit's analysis of § 1226(c). The Jennings Court held that it was not a "plausible statutory construction" to interpret § 1226(c) "to include an implicit 6-month time limit on the length of mandatory detention," and concluded that " § 1226(c) mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings ‘only if’ the alien is released for witness-protection purposes." Id. at 846-47. Because reversal of the underlying Ninth Circuit decision was mandated on statutory grounds, the Jennings Court expressly declined to reach the petitioner's constitutional claims on the merits, instead remanding to the court of appeals for consideration of those claims in the first instance. Id. at 851.
The Ninth Circuit, in turn, has remanded those issues to the district court for it to consider in the first instance. See Rodriguez v. Marin , 909 F.3d 252, 257 (9th Cir. 2018). As of yet, the district court has not issued a subsequent decision addressing the parties' constitutional arguments.
On March 5, 2018, in light of its decision in Jennings , the Supreme Court granted certiorari in Lora , vacated the judgment in that matter, and remanded the matter to the Second Circuit for further consideration. See Shanahan v. Lora , ––– U.S. ––––, 138 S. Ct. 1260, 200 L.Ed.2d 415 (2018). On remand, the Second Circuit dismissed the case as moot because the petitioner in that matter had been granted a cancellation of removal. See Lora v. Shanahan , 719 F. App'x 79, 80 (2d Cir. 2018).
Following Jennings , numerous courts in the Second Circuit have addressed as-applied constitutional challenges to immigration detention. These courts have noted that an important difference exists between substantive and procedural due process challenges to an immigrant's confinement. In substantive due process challenges, the court considers whether the length of detention "is so manifestly unreasonable that [the petitioner's] release is required regardless of whether the government has evidence that he is, for example, a danger or a flight risk." Clerveaux v. Searls , 397 F.Supp.3d 299, 308 n.3 (W.D.N.Y. 2019) ; see Doherty , 943 F.2d at 209 ("[The petitioner] does not argue that the process under which he was denied bail was unfair or inadequate, but rather, that the very fact that he has been subjected to prolonged detention without bail violates his substantive right to liberty."). In other words, if successful with a substantive due process claim, the petitioner is entitled to be released from custody.
On the other hand, in procedural due process challenges the court does not consider what the substantive outcome of the case should be—i.e. , whether the petitioner should be released—but rather considers whether the petitioner is entitled to some sort of process, such as a bond hearing. See Clerveaux , 397 F.Supp.3d at 302 n.3 ("[T]his Court considers only whether—seventeen months into [the petitioner]'s detention—the government must finally demonstrate to someone that there is some evidence that [the petitioner]'s detention serves some purpose."); Vallejo v. Decker , No. 18-CV-5649 (JMF), 2018 WL 3738947, at *4 (S.D.N.Y. Aug. 7, 2018) ("[T]he Court is compelled to conclude that [the petitioner]'s continued detention without another individualized bond hearing violates his due process rights."), appeal withdrawn , 2019 WL 1503029 (2d Cir. Mar. 25, 2019). In this case, Petitioner has raised both substantive and procedural due process challenges. The Court addresses both in turn.
A. Substantive Due Process
Petitioner alleges that his prolonged detention has resulted in the violation of his right to substantive due process and requests that he be immediately released. The Court denies the Petition on this ground for the reasons that follow.
"[A] liens ... have a substantive due process right to be free of arbitrary confinement pending deportation proceedings." Doherty , 943 F.2d at 209. "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, the IJ entered an order of removal against Petitioner, which he appeals in a petition for review presently before the Second Circuit (Dkt. 6-1 at ¶¶ 13-20), and he would be removed if he withdrew his petition for review. 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 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
Petitioner also asserts that his procedural due process rights have been violated and requests a bond hearing. For the following reasons, the Court grants the Petition on this ground.
1. Statutory Basis for Detention
As an initial matter, the Court must determine whether Petitioner is presently detained pursuant to § 1226(c) or § 1231. "The distinction between § 1226 and § 1231 essentially comes down to whether an alien is subject to a final order of removal." Enoh v. Sessions , 236 F. Supp. 3d 787, 793 (W.D.N.Y. 2017), appeal withdrawn , No. 17-1236, 2017 WL 6947858 (2d Cir. Dec. 7, 2017). Section 1231 of the INA addresses detention of "immigrants in the ‘removal period,’ the term used in the statute to describe the 90-day period following an order of removal during which ‘the Attorney General shall remove the alien.’ " Hechavarria v. Sessions , 891 F.3d 49, 54 (2d Cir. 2018) (quoting 8 U.S.C. § 1231(a)(1)(A) ). The Supreme Court determined that § 1231 "limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention." Zadvydas , 533 U.S. at 689, 121 S.Ct. 2491. The removal period begins "on the latest of the following": (1) "[t]he date the order of removal becomes administratively final"; (2) "[i]f the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order"; and (3) "[i]f the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement." 8 U.S.C. § 1231(a)(1)(B).
In 2012, DHS and the Second Circuit entered into a forbearance agreement wherein the Government "has assured that removal will not occur" while the detainee has a petition for review pending before the Second Circuit. In re Immigration Petitions for Review Pending in U.S. Court of Appeals for Second Circuit , 702 F.3d 160, 162 (2d Cir. 2012). In this Circuit, there is an open question "as to whether an alien, like [Petitioner], who has ... filed a stay motion which has not been adjudicated by the Court of Appeals, but whose removal has been effectively stayed by operation of the forbearance agreement between that court and DHS, is detained under § 1231(a) or § 1226." Gomez v. Whitaker , No. 6:18-cv-06900-MAT, 2019 WL 4941865, at *4 (W.D.N.Y. Oct. 8, 2019). However, the overwhelming majority of courts in this Circuit have found that the forbearance agreement amounts to a "court order[ed] stay of the removal of the alien" and that detainees with a pending petition for review are detained pursuant to § 1226. Sankara v. Whitaker , No. 18-CV-1066, 2019 WL 266462, at *4 (W.D.N.Y. Jan. 18, 2019) (collecting cases); see, e.g. , Yusuf v. Edwards , No. 18-CV-3605 (GBD) (BCM), 2019 WL 4198798, at *5 & n.4 (S.D.N.Y. July 2, 2019) ("[B]ecause of the government's forbearance policy, an alien who files a PFR and a stay motion in the Second Circuit obtains ‘the functional equivalent of a stay order,’ such that § 1231 no longer governs his detention and he ‘may not be denied a bond hearing on that basis.’ " (collecting S.D.N.Y. cases)).
While some courts in this Circuit have held that an alien with a pending petition for review is detained pursuant to § 1231, see Mathews v. Philips , No. 13-CV-339-JTC, 2013 WL 5288166, at *3 (W.D.N.Y. Sept. 18, 2013) ; Leslie v. Herron , No. 10-CV-00515 A M, 2010 WL 4226561, at *4 (W.D.N.Y. Oct. 26, 2010) ("I find that the forbearance policy does not toll the removal period."); D'Alessandro v. Mukasey , 628 F. Supp. 2d 368 (W.D.N.Y. 2009), almost none have so held in the wake of the Second Circuit's decision in Hechavarria , 891 F.3d 49. In Hechavarria , the Circuit had granted the petitioner's stay of removal while his petition for review was pending, and held the petitioner was detained under § 1226(c) because "there remains a very clear impediment to his removal—review by this Court." Id. at 57. The Circuit further discussed "[g]iven the fact that such review has not been completed, it would make no sense to classify [the petitioner] in the same section of the statute that governs the removal of aliens who have no remaining barriers preventing their immediate removal." Id. The courts that have since considered the issue of whether a petitioner is detained pursuant to § 1231 when a petition for review is pending but before the Second Circuit formally grants a stay have almost unanimously found that, given the Second Circuit's reasoning in Hechavarria , "the forbearance agreement amounts to a ‘court order[ed] stay of the removal of the alien.’ " Sankara , 2019 WL 266462, at *4 (alteration in original) (quoting Hechavarria , 891 F.3d at 49 ); see, e.g. , Yusuf , 2019 WL 4198798, at *5 & n.4 ; Alexandre v. Decker , No. 17 Civ. 5706 (GBD) (KHP), 2019 WL 1407353, at *5-6 (S.D.N.Y. Mar. 28, 2019) ("[T]he Second Circuit's forbearance policy is an insurmountable substantive impediment to Petitioner's removal until that Court issues a decision on his motion to stay."). But see Nunez v. Searls , No. 18-CV-6463 CJS, 2019 WL 2524308, at *2-3 (W.D.N.Y. June 19, 2019) (finding petitioner was detained pursuant to § 1231 without referencing Hechavarria ), appeal filed , No. 19-2114, 2020 WL 416411 (2d Cir. July 10, 2019). Accordingly, the Court follows the weight of the case law in this Circuit and finds that Petitioner is detained pursuant to § 1226(c).
2. Entitlement to a Bond Hearing
The Court next addresses whether Petitioner is entitled to a bond hearing in light of his detention pursuant to § 1226(c). For the reasons discussed below, the Court finds he is.
The Second Circuit has not addressed, post- Jennings and post- Lora , the standard to be utilized by courts in addressing procedural due process claims for aliens detained pursuant to § 1226(c) in the immigrant habeas context. However, the overwhelming majority of district courts within the Circuit to have addressed the issue have adopted a case-by-case approach where "courts examine each individual's detention circumstances to determine whether it has become ‘unreasonable or unjustified.’ " Cabral v. Decker , 331 F. Supp. 3d 255, 261 (S.D.N.Y. 2018) (quoting Demore , 538 U.S. at 532, 123 S.Ct. 1708 ). 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 ; c.f. Hechavarria v. Sessions , No. 15-CV-1058, 2018 WL 5776421, at *7-9 (W.D.N.Y. Nov. 2, 2018) (utilizing both a multi-factor test and the traditional procedural due process analysis articulated in Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ), enforcement granted sub nom. Hechavarria v. Whitaker , 358 F. Supp. 3d 227 (W.D.N.Y. 2019) ; see Joseph v. Decker , No. 18-CV-2640(RA), 2018 WL 6075067, at *10 n.7 (S.D.N.Y. Nov. 21, 2018) (concluding that "[t]he Mathews test is consistent with the approach of ... considering immigration-specific factors for the procedural due process analysis," and the majority of courts in this Circuit seem to have adopted the fact-based inquiry approach), appeal withdrawn , No. 19-245, 2019 WL 3334802 (2d Cir. May 1, 2019).
This Court agrees with the overwhelming majority of courts in this Circuit that the multi-factor approach articulated by the court in Sajous 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. See Gomes Herbert v. Decker , No. 19-CV-760 (JPO), 2019 WL 1434272, at *2 (S.D.N.Y. Apr. 1, 2019) (noting that the Sajous framework has been "overwhelmingly adopted" in the Southern District of New York (quotation omitted)); Dukuray v. Decker , No. 18 CV 2898 (VB), 2018 WL 5292130, at *3 (S.D.N.Y. Oct. 25, 2018) (same). The factors set forth by district courts in this Circuit for a court to consider in determining whether an alien's length of detention has become unreasonable or unjustified, can be summed up 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.
This is not to suggest that other factors cannot be considered by a court in the appropriate case. In other words, it would be inconsistent with the flexible nature of due process, Jennings , 138 S. Ct. at 852, to restrict the analysis to hard-and-fast factors with no ability to adapt those factors to the particular facts of a case.
Cabral , 331 F. Supp. 3d at 261.
As to the first factor, Petitioner has been detained in immigration custody since February 2018. 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). "[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).
The record before the Court shows Petitioner has been detained for over 19 months without receiving an individualized determination as to whether he should remain confined for the duration of his immigration proceedings. On March 28, 2018, an immigration judge reviewed Petitioner's custody and found that he was properly detained under 8 U.S.C. § 1226(c). (Dkt. 6-3 at 24). However, the record before the Court does not indicate that the IJ considered at that time or at any time since whether Petitioner constitutes a serious risk of danger to the community or a flight risk as is required at a bond hearing. See Bermudez Paiz , 2018 WL 6928794, at *15 ("[T]he overwhelming consensus of judges in this District—both before and after Jennings —is that once an alien's immigration detention has become unreasonably prolonged, he or she is entitled to a bond hearing at which the government bears the burden to demonstrate dangerousness or risk of flight by clear and convincing evidence." (quotation omitted)). Accordingly, this factor weighs heavily in Petitioner's favor.
Respondent contends the second factor in the analysis—which party is responsible for the delay—undercuts a finding of an unreasonable length of detention in Petitioner's case because Petitioner's continued detention is of his own volition. (Dkt. 6-1 at 25). For procedural due process claims, when "considering whether [Petitioner] or the Government is responsible for the prolonged proceedings, the Court ‘may examine the record to determine whether the alien sought repeated or unnecessary continuances, or filed frivolous claims and appeals.’ " Vallejo , 2018 WL 3738947, at *4 (quoting Sopo v. U.S. Att'y Gen. , 825 F.3d 1199, 1218 (11th Cir. 2016), vacated on other grounds , 890 F.3d 952 (11th Cir. 2018) ); see Sajous , 2018 WL 2357266, at *11 ("[A]liens who are merely gaming the system to delay their removal should not be rewarded with a bond hearing that they would not otherwise get under the statute." (quoting Chavez-Alvarez v. Warden York Cty. Prison , 783 F.3d 469, 476 (3d Cir. 2015) )). "[C]ourts should keep in mind that ‘aliens should not be punished for pursuing avenues of relief and appeals[,]’ but evidence of bad faith delays may cut against them." Hernandez v. Decker , No. 18-CV-5026 (ALC), 2018 WL 3579108, at *7 (S.D.N.Y. July 25, 2018) (quotation omitted), appeal withdrawn , No. 18-2824, 2019 WL 1377025 (2d Cir. Feb. 5, 2019).
In this case, the record supports a conclusion that a portion of the delay between January 2, 2018 (when Petitioner requested a continuance to seek counsel) and June 6, 2018 (when the merits hearings before the IJ began), can be attributed to requests for adjournment made by Petitioner. However, the record does not show that Petitioner was engaging in bad faith delay tactics. To the contrary, Petitioner's initial requests for continuances were made to first obtain counsel and then by counsel to help prepare for Petitioner's hearings. (See Dkt. 6-2 at ¶ 12). As such, it would not be appropriate to utilize these requests for adjournment to penalize Plaintiff. See, e.g. , Sopo , 825 F.3d at 1218 ; Vallejo , 2018 WL 3738947, at *4 ; Hernandez , 2018 WL 3579108, at *7 ; Sajous , 2018 WL 2357266, at *11. Moreover, since the order of removal was issued on November 15, 2018 (Dkt. 6-2 at ¶ 13), the delay appears attributable to the BIA's and Second Circuit's consideration of Petitioner's appeal as opposed to any adjournment requests by Petitioner.
As for the third factor, Petitioner has asserted defenses to removal in the immigration proceedings. He has asked for relief under the CAT and applied for asylum. (Dkt. 6-2 at ¶ 13). Respondent argues that these defenses are unlikely to be successful because the Second Circuit lacks jurisdiction to make factual determinations in the deferral of removal context. (Dkt. 6-1 at 25). However, "[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 ... and relief under the Convention Against Torture"). Accordingly, this factor weighs in Petitioner's favor.
The fourth factor on the other hand weighs against Petitioner—his detention has not been longer than the time that he spent in prison for the crimes that made him removable. Petitioner was in prison for two years for committing grand larceny in the second degree (Dkt. 1 at 21), but has been civilly detained for 19 months. However, while Petitioner's sentence reflects "the state's judgment of his dangerousness," Hernandez , 2018 WL 3579108, at *10, "[t]he length of time that [Petitioner] was incarcerated for the underlying crimes is not so long that it suggests that it is clear that [Petitioner] is a danger to the community or a risk of flight so that a bond hearing would be futile," Cabral , 331 F. Supp. 3d at 262 (discussing the petitioner's sentence for attempted robbery in the second degree and petit larceny).
As far as the fifth factor is concerned, Petitioner contends his confinement at the Buffalo Federal Detention Facility is penal in nature. He alleges "[t]he Penal criminal institutions where Petitioner was held during his criminal detention [are] absolutely indistinguishable ... from the Immigration Facility where [Petitioner] is being held now." (Dkt. 1 at 23). Additionally, Respondent has "failed to rebut [Petitioner]'s contention that his ongoing detention at this facility is indistinguishable from criminal incarceration." Gomes Herbert , 2019 WL 1434272, at *3. Accordingly, this factor weighs in Petitioner's favor.
The sixth factor, the nature of the crimes Petitioner was convicted of, weighs against Petitioner. Petitioner pleaded guilty to grand larceny in the second degree. See 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).
However, the final factor, whether the petitioner's detention is near conclusion, weighs in Petitioner's favor. The briefing regarding the petition for review in the Second Circuit has not yet begun, and it is consequently unclear when the Second Circuit will issue its decision. See Dukuray , 2018 WL 5292130, at *5 ("[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)).
3. 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 , 804 F.3d at 616. 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 have found "that imposing a clear and convincing standard would be most consistent with due process." Hernandez , 2018 WL 3579108, at *11 ; see Bermudez Paiz , 2018 WL 6928794, at *15 ("[T]he overwhelming consensus of judges in this District—both before and after Jennings —is that once an alien's immigration detention has become unreasonably prolonged, he or she is entitled to a bond hearing at which the government bears the burden to demonstrate dangerousness or risk of flight by clear and convincing evidence." (quotation omitted)); see also Darko v. Sessions , 342 F. Supp. 3d 429, 435 (S.D.N.Y. 2018) (collecting cases). "While Lora is no longer binding authority, every court to have considered" the issue of who carries the burden at immigration bond hearings "has agreed with [its] persuasive logic—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[.]" Velasco Lopez v. Decker , No. 19-CV-2912 (ALC), 2019 WL 2655806, at *3 (S.D.N.Y. May 15, 2019) (collecting cases), appeal filed , No. 19-2284 (2d Cir. July 23, 2019). This Court agrees and finds due process requires that Petitioner is entitled to a bond hearing where the government must demonstrate dangerousness or flight risk by clear and convincing evidence.
Additionally, the Court finds that 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) ; see also Hernandez v. Sessions , 872 F.3d 976, 991 & n.4 (9th Cir. 2017) ("A bond determination that does not include consideration of financial circumstances and alternative release conditions is unlikely to result in a bond amount that is reasonably related to the government's legitimate interests."); Arce-Ipanaque , 2019 WL 2136727, at *3 (collecting cases); Lett , 346 F. Supp. 3d at 389 ("The Court agrees with Petitioner that an immigration bond hearing that fails to consider ability to pay or alternative conditions of release is constitutionally inadequate."); Hernandez , 2018 WL 3579108, at *12 ("[T]he Due Process Clause requires than an IJ consider ability to pay and alternative conditions of release in setting bond." (quotation and alteration omitted)).
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.
SO ORDERED.