LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE.
The pro se petitioner, Alhassan Kabba, is a lawful permanent resident of the United States. Docket Item 10-2 at 2. For more than eighteen months—since February 6, 2018—the Department of Homeland Security ("DHS") has detained him during his removal proceedings. Id. at 3. On May 16, 2019, Kabba filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging the constitutionality of his continued detention at the Buffalo Federal Detention Facility in Batavia, New York, Docket Item 1; on August 5, 2019, the government responded, Docket Item 10; and on August 12, 2019, Kabba replied, Docket Item 11.
For the reasons that follow, this Court conditionally grants Kabba's petition.
The following facts, taken from the record, come largely from filings with DHS. Other facts, provided by Kabba, are undisputed.
Kabba is a thirty-six-year-old man who is a native and citizen of Sierra Leone. Docket Item 10-2 at 2; Docket Item 12 at 3. He entered the United States as a refugee on May 15, 2001. Docket Item 10-2 at 2. On June 12, 2009, Kabba became a lawful permanent resident. Id.
On June 27, 2014, Kabba was convicted of second-degree rape in violation of New
About a month after taking Kabba into custody, DHS placed him in removal proceedings on March 8, 2019. Id. at 3. On October 12, 2018, an immigration judge ordered Kabba removed to Sierra Leone. Id. at 4. Five months later, the Board of Immigration Appeals ("BIA") affirmed that removal order. Id. On March 20, 2019, Kabba filed a petition for review with the Second Circuit.
On February 6, 2018, Kabba entered DHS custody after he completed serving his New York State sentence. Id. at 3. Several months later, an immigration judge denied Kabba's request for a change in custody status under 8 C.F.R. § 236.1(c). Docket Item 12 at 16. The immigration judge determined that Kabba "is subject to mandatory detention due to his rape 2nd conviction, which is for an aggravated felony." Id. In a memorandum issued on August 9, 2018, another immigration judge explained that 8 U.S.C. § 1226(c) mandated Kabba's detention without bond because he "has an aggravated felony conviction." Id. at 20. On October 15, 2018, the BIA affirmed, id. at 31, and on October 26, 2018, Kabba petitioned the Second Circuit for review of that decision. Docket Item 10-2 at 4. On March 15, 2019, the court dismissed that petition for lack of jurisdiction. Motion Order, Kabba v. Barr, No. 18-3243 (2d Cir. Mar. 15, 2019).
On March 11, 2019, DHS notified Kabba that it would review his custody determination on June 3, 2019. Docket Item 10-2 at 4. DHS told Kabba that he might be released, depending on whether he could demonstrate that he was not a risk of flight or danger and that his removal was not reasonably imminent. More specifically, DHS advised him that "[r]elease ... is dependent on your demonstrating by `clear and convincing evidence' that you
On June 3, 2019, DHS advised Kabba that it would not conduct the planned review because his removal was expected that month. Docket Item 10-2 at 5. But on July 3, 2019, after the Second Circuit had stayed Kabba's removal, DHS conducted the custody review and determined that Kabba should remain in custody pending judicial review of his removal order. Id. at 6. Kabba remains detained at the Buffalo
28 U.S.C. § 2241 "authorizes a district court to grant a writ of habeas corpus whenever a petitioner is `in custody in violation of the Constitution or laws or treaties of the United States.'" Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)(3)). The government maintains that Kabba is validly detained under 8 U.S.C. § 1226(c) and that his "constitutional rights have not been violated." Docket Item 10 at 6-7. Kabba makes two arguments to the contrary. Docket Item 1 at 10-11. First, he argues that his prolonged detention is not justified by individualized findings made in "proceedings conforming to traditional standards of fairness encompassed in due process of law." Zadvydas v. Davis, 533 U.S. 678, 694, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (quoting Shaughnessy v. United States ex. rel Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 S.Ct. 956 (1953)). See id. at 10. Second, he argues that the "government's categorical denial of bail to noncitizens violates" the Excessive Bail Clause. Id. at 10-11.
Because Kabba is proceeding pro se, this Court holds his submissions "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Kabba argues that "[t]o justify [his] ongoing prolonged detention, due process requires that the government establish, at an individualized hearing before a neutral decisionmaker, that [his] detention is justified by clear and convincing evidence of flight risk or danger, even after consideration whether alternatives to detention could sufficiently mitigate that risk." Docket Item 1 at 10.
The Fifth Amendment's Due Process Clause prohibits the federal government from depriving any "person ... of ... liberty 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. "[G]overnment detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections ... or, in certain special and `narrow' nonpunitive `circumstances,' ... where a special justification, such as harm-threatening mental illness, outweighs the `individual's constitutionally protected interest in avoiding physical restraint.'" Id. (internal citations omitted) (emphasis in original). Other than those unique, special, and narrow circumstances, "[o]nly a jury, acting on proof beyond a reasonable doubt, may take a person's liberty. That promise stands as one of the Constitution's most vital protections against arbitrary government." United States v. Haymond, ___ U.S. ___, 139 S.Ct. 2369, 2373, 204 L.Ed.2d 897 (2019) (Gorsuch, J., announcing the judgment of the Court and delivering an opinion).
"Aliens, even aliens whose presence in this country is unlawful, have long been recognized as `persons' guaranteed due process of law by the Fifth and Fourteenth Amendments." Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); see also Mezei, 345 U.S. at 212, 73 S.Ct. 625 ("It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law."). At the same time, Congress has "broad power over naturalization and
For that reason, this Court "has evaluated procedural due process challenges to immigration detention with a two-step inquiry." Hemans v. Searls, 2019 WL 955353, at *5 (W.D.N.Y. Feb. 27, 2019). "As the first step, the Court considers whether the alien's detention has been unreasonably prolonged." Id. "If it has not, then there is no procedural due process violation." Id. "But if it has, the Court proceeds to step two and `identifies the specific dictates of due process.'" Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). If the government has not provided the procedural safeguards required by the Due Process Clause to an alien subject to unreasonably prolonged detention, "then his continued detention violates procedural due process." Id.
In Demore, the Court explicitly noted that "[u]nder § 1226(c), ... in the majority of cases [detention] lasts for less than the 90 days ... considered presumptively valid in Zadvydas." 538 U.S. at 529, 123 S.Ct. 1708. Diving even deeper, the Court noted that "in 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days." Id. And "[i]n the remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the [BIA], appeal takes an average of four months, with a median time that is slightly shorter." Id. Although there is no bright-line rule in determining whether detention has become unreasonably prolonged, see Hechavarria v. Sessions, 2018 WL 5776421, at *5-*6 (W.D.N.Y. Nov. 2, 2018), "courts become extremely wary" of concluding that detention is not unreasonably prolonged "as detention continues past a year." See Yagao v. Figueroa, 2019 WL 1429582, at *2 (S.D. Cal. Mar. 29, 2019) (quoting Muse v. Sessions, 2018 WL 4466052, at *4 (D. Minn. Sept. 18, 2018)); see also Reid v. Donelan, 390 F.Supp.3d 201, 218-21 (D. Mass. 2019) ("detention is likely to be unreasonable if it lasts for more than one year during removal proceedings before the agency, excluding any delays due to the alien's dilatory tactics," but "[t]his one-year period is not a bright line.").
"[W]hen weighing the lawfulness of continued detention of an alien under the Due Process Clause," several factors determine whether detention is unreasonably prolonged. Jamal A. v. Whitaker, 358 F. Supp. 3d. 853, 858-59 (D. Minn. 2019). For example, this Court has considered "(1) the total length of detention to date; (2) the conditions of detention; (3) delays in the removal proceedings caused by the parties; and (4) the likelihood that the removal proceedings will result in a final order of removal." Hemans, 2019 WL 955353, at *6.
First, and most important, courts consider the length of detention. "The total length of the detention is the most important
Second, courts consider the conditions of detention. But neither party has supplied the Court with any information about the conditions that Kabba faces at the Buffalo Federal Detention Facility.
Third, courts consider whether either side is responsible for delay. The Second Circuit has indicated that this factor weighs against finding detention unreasonably prolonged when an alien has "`substantially prolonged his stay by abusing the processes provided to him,'" but not when "an immigrant ... [has] simply made use of the statutorily permitted appeals process." Hechavarria v. Sessions, 891 F.3d 49, 56 n.6 (2d Cir. 2018) (quoting Nken v. Holder, 556 U.S. 418, 436, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009)). The government argues that on these facts, "Kabba's continued detention is largely attributable to his own litigation strategy" and is therefore not unreasonably prolonged. Docket Item 10-1 at 8.
DHS "placed Kabba in removal proceedings" on March 8, 2018, more than a month after DHS took him into custody,
Conversely, there is no indication that Kabba delayed at all when challenging his removal, appealing that decision to the BIA, or seeking review by the Second Circuit. Especially given Kabba's pro se status, there is no reason to conclude that he is purposely "string[ing] out the proceedings in the hopes that a federal court will find the delay `unreasonable' and order [his] release." Ly, 351 F.3d at 272. On the contrary, he has moved promptly to seek "meaningful judicial review" of an adverse removal decision he believes is incorrect— a process "grounded in both the statute and the Constitution and [that] may not be dismissed by the government as a mere procedural nuisance." Hechavarria, 891 F.3d at 56.
Finally, courts consider the likelihood that the removal proceedings will result in a final order of removal. This Court declines to weigh the merits of Kabba's claims pending before the Second Circuit. But that court did grant Kabba's motion for a stay of his removal. See Order, Kabba v. Barr, No. 19-695 (2d Cir. June 20, 2019). And in its decision to do so, the court
After weighing these factors, this Court concludes with little difficulty that Kabba's detention has been unreasonably prolonged. Therefore, this Court turns to the second step of the two-party inquiry—the process constitutionally due to Kabba.
"The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews, 424 U.S. at 333, 96 S.Ct. 893 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors," id. at 335, 96 S.Ct. 893, "(A) the private interest affected; (B) the risk of erroneous deprivation of that interest through the procedures used; and (C) the governmental interest at stake," Nelson v. Colorado, ___ U.S. ___, 137 S.Ct. 1249, 1255, 197 L.Ed.2d 611 (2017). Here, that analysis lead to the conclusion that Kabba's continued detention without individualized findings made by a neutral decision maker after a robust hearing fails to "comport with the `fundamental fairness' demanded by the Due Process Clause." Schall v. Martin, 467 U.S. 253, 263, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (quoting Breed v. Jones, 421 U.S. 519, 531, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975)).
Kabba's interest in his freedom pending the conclusion of his removal proceedings deserves great "weight and gravity." Addington v. Texas, 441 U.S. 418, 427, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). Kabba has an obvious interest in his "[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint." Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491. Moreover, while "[t]he private interest here is not liberty in the abstract, but liberty in the United States," Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999) (emphasis in original), the Second Circuit has stayed Kabba's removal in light of its review of his removal order, and he still stands to "lose the right `to stay and live and work in this land of freedom.'" Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (quoting Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 89 S.Ct. 2103 (1945)).
Kabba's petition provides little information about any ties to the United States that strengthen his interest in being free from detention in this country as opposed to being free from detention in Sierra Leone. See generally Landon, 459 U.S. at 34, 103 S.Ct. 321 (losing "the right to rejoin [one's] immediate family [is] a right that ranks high among the interests of the individual"). But the government does not argue that Kabba lacks any such ties. See Docket Item 10-1. Because of Kabba's pro se status, and because "[t]his Court has come to believe that no rational person would subject himself or herself to unreasonably prolonged detention in a jail-like detention facility unless that person's liberty interests in remaining in the United States are quite strong," Joseph v. Barr, 2019 WL 3842359, at *8 (W.D.N.Y. Aug. 15, 2019) (quoting Fremont, 2019 WL 1471006, at *6 n.7), the Court presumes that Kabba has a substantial interest in release from detention in the United States.
In light of the procedures used thus far, there is a substantial risk of an erroneous deprivation of Kabba's liberty interest. Although Kabba had a detention hearing before an immigration judge on July 18, 2018, the immigration judge concluded only that 8 U.S.C. § 1226(c) mandated Kabba's detention without bond. He made no individualized findings regarding Kabba's risk of flight and danger to the community—the reasons the government argues that § 1226(c) mandates his detention. See Docket Item 10-1 at 9.
As the government notes, id., DHS reviewed Kabba's custody on July 3, 2019, and determined that Kabba should be detained pending judicial review of his removal order. Docket Item 10-2 at 6. But DHS explained to Kabba that it would not release him unless he "demonstrate[ed] by `clear and convincing evidence' that [he] will not pose a danger to the community and will not be a significant flight risk." Docket Item 12 at 39. What is more, Kabba also was required to "demonstrate that a travel document [will not be] available in the reasonable [sic] foreseeable future to affect [sic] [his] removal from the United States" to be released after the custody review. Id. That latter requirement bears little or no relationship to detaining someone during removal proceedings who is neither a risk of flight nor a danger to society; rather, that question is relevant when detaining someone who is a risk of flight or a danger pending removal after removal proceedings are completed. See Zadvydas, 533 U.S. at 690-92, 121 S.Ct. 2491 ("justification [of] preventing flight... is weak or nonexistent where removal seems a remote possibility at best" and although "protecting the community ... does not necessarily diminish in force over time[,] ... removable status ... bears no relation to a detainee's dangerousness"). What is more, Kabba's custody review was conducted by DHS officials—not a neutral decision maker. See Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980)) (an alien must be afforded a hearing "by `an impartial and disinterested tribunal'").
Because the government placed the burden of proof on Kabba, because Kabba was required to demonstrate that Sierra Leone would not be able to provide him with travel documents (a requirement that alone bears no relationship to the government's reasons for detaining him under
The Due Process Clause requires a hearing that "satisfies the constitutional minimum of fundamental fairness," Santosky v. Kramer, 455 U.S. 745, 756 n.8, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (internal citations omitted), in determining whether a "special [compelling] justification ... outweighs `[Kabba's] constitutionally protected interest in avoiding [unreasonably prolonged] physical restraint,'" Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491 (quoting Hendricks, 521 U.S. at 356, 117 S.Ct. 2072). To sustain the prolonged detention of an alien who has been admitted to the country and is subject to removal proceedings, "the [g]overnment [is] required, in a `full-blown adversary hearing,' to convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person," Foucha v. Louisiana, 504 U.S. 71, 81, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (quoting Salerno, 481 U.S. at 751, 107 S.Ct. 2095), or ensure that the alien will appear for any future proceeding.
Kabba's § 1226(c) detention has been unreasonably prolonged, and § 1226(c) does not require an individualized hearing where the government must demonstrate by clear and convincing evidence that no conditions of release can reasonably serve the government's compelling regulatory interests in detaining him. See Jennings, 138 S. Ct. at 846-47. The statute therefore is unconstitutional as applied to him, and his continued detention violates the Due Process Clause.
Kabba also argues that the "government's categorical denial of bail to certain noncitizens violates the right to bail encompassed by the Eighth Amendment." Docket Item 1 at 10-11. The Excessive Bail Clause requires "that the Government's proposed conditions of release or detention not be `excessive' in light of the perceived evil." Salerno, 481 U.S. at 754, 107 S.Ct. 2095. Although detention of criminal aliens during removal proceedings for only a brief period without individualized findings
For the reasons stated above, Kabba's petition, Docket Item 1, is conditionally GRANTED.
SO ORDERED.
