Campbell v. Barr, 19-CV-341

387 F.Supp.3d 286

Damion A. CAMPBELL, Petitioner,

v.William P. BARR, Attorney General; Thomas Feeley, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement ; Jeffrey Searls, Facility Acting Director Buffalo Federal Detention Facility, Respondents.

19-CV-341

United States District Court, W.D. New York.

Signed May 14, 2019

Damion A. Campbell, Batavia, NY, pro se.

Sheri Robyn Glaser, U.S. Department of Justice, Washington, DC, United States Attorney's Office, Western District of New York, for Respondents.

DECISION AND ORDER

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

For more than three years—since April 22, 2016—the Department of Homeland Security ("DHS") has detained the pro se petitioner, Damion A. Campbell,¹ during his removal proceedings. Docket Item 4 at 15. In those three years, the government has never given Campbell an individualized hearing to adjudicate the reasons for his detention: his risk of flight or dangerousness. Id.

What is more, Campbell may be a United States Citizen. The United States Court of Appeals for the Second Circuit has determined that there is "a genuine dispute of material fact" regarding Campbell's United States citizenship, "requiring resolution by the District Court." Campbell v. Sessions , 737 F. App'x 599, 602 (2d Cir. 2018) (summary order).

Campbell now petitions this Court for a writ of habeas corpus under 28 U.S.C. § 2241 and seeks release from detention.

This Court conditionally grants his petition. For the following reasons, this Court concludes that, given its length, Campbell's ongoing detention without an individualized hearing addressing the reasons for his detention violates his right to due process. Therefore, the government may not continue to detain Campbell unless a neutral decision maker determines by clear and convincing evidence that his detention necessarily serves a legitimate and compelling regulatory purpose.

FACTUAL BACKGROUND

The following facts, taken from the record, come largely from filings with the United States Department of Homeland Security, Immigration and Customs Enforcement. Other facts, provided by Campbell, are undisputed.

IMMIGRATION HISTORY, TIES TO THE UNITED STATES, AND CRIMINAL PROCEEDINGS

Campbell is a 35-year-old man who was born in Jamaica. Docket Item 5-2 at 22. On May 20, 1999, when he was only fifteen years old, Campbell legally entered the United States as a lawful permanent resident. Docket Item 5-1 at 3.

Campbell has strong family ties to the United States. His fiancé lives in the United States. Docket Item 6 at 23. His father, mother, sister, and two brothers are all United States citizens. Docket Item 6 at 1. He has a twelve-year-old daughter who is a United States citizen. Id. According to the mother of Campbell's fiancé, his fiancé is "struggling as a single parent with three young girls" while the government detains Campbell. Docket Item 6 at 25. And Campbell's own elementary-school-aged daughter observes that although her mother "does her best to make sure [that she] and [her] sisters are well taken care of, it would be easier if [Campbell] was around." Docket Item 6 at 21.

In 2004 and again in 2006, Campbell was convicted of violations of New York State law for possessing marijuana. Docket Item 5-1 at 3. Then, in 2010, Campbell pleaded guilty to three New York state criminal charges: second degree assault, first degree burglary, and second degree criminal possession of a weapon. Id. All three charges stem from one criminal incident, which occurred on June 18, 2009. Docket Item 5-2 at 37-45. On the assault charge, he was sentenced to a term of imprisonment of five years and a term of post-release parole supervision of two years and six months; on the burglary charge, a term of imprisonment of eight years and a term of post-release parole supervision of five years; and on the weapons charge, a term of imprisonment of eight years and a term of post-release parole supervision of five years. Docket Item 5-1 at 3. Presumably, the sentences were to run concurrently. See id. On April 22, 2016, Campbell was released from New York State custody. Docket Item 5-1 at 6.

REMOVAL PROCEEDINGS

On April 20, 2016, two days before his scheduled release, the Department of Homeland Security determined that Campbell "was amendable [sic] to removal from the United States." Docket Item 5-1 at 4. The following day, the agency "commenced removal proceedings against [Campbell] by serving him with a Notice to Appear, which charged him with removability from the United States." Id.

On June 24, 2016, Campbell moved to terminate his removal proceedings, claiming that he acquired derivative United States citizenship as the child of a United States citizen. Id. at 6. On July 14, 2016, Immigration Judge Steven J. Connelly summarily denied Campbell's motion and ordered him removed to Jamaica. Docket Item 5-2 at 49. Campbell appealed the decision to the Board of Immigration Appeals ("BIA"). Id. at 22. On November 30, 2016, the BIA affirmed the immigration judge's order of removal and dismissed Campbell's appeal. Id. at 24.

On January 5, 2017, Campbell sought review of the BIA's decision by the Second Circuit, Docket Item 5-1 at 8; see Campbell v. Barr , No. 17-26 (2d Cir.), and on January 24, 2017, Campbell moved to stay his removal. Docket Item 5-2 at 78. On August 8, 2017, the Second Circuit initially denied Campbell's motion, id. , but Campbell moved for reconsideration and on November 21, 2017, the court stayed his removal pending adjudication of his petition for review, id. at 79. On September 21, 2018, the Second Circuit found that although Campbell argued "that he derived U.S. citizenship as a result of his being [a citizen's] biological son ... the evidence of his relation with [that citizen] is disputed and therefore should be resolved by the District Court." Campbell , 737 F. App'x at 602. Therefore, the Second Circuit transferred the proceeding to this Court under 8 U.S.C. § 1252(b)(5)(B) "for a determination of citizenship." Id. at 603.

After transfer, this Court appointed counsel and held status conferences on November 30, 2018, and on December 11, 2018. Campbell v. Barr , No. 18-CV-1064 (W.D.N.Y.), Docket Items 5, 6, 7. This Court issued a case management order on January 17, 2019, id. , Docket Item 8, which was amended in light of the government shutdown on February 5, 2019, id. , Docket Item 12. Under the amended case management order, and consistent with the requests of Campbell's attorneys, see id. , Docket Items 6, 7, discovery must be completed by September 30, 2019; dispositive motions are due by October 28, 2019; and oral argument is scheduled for December 2, 2019. Id. , Docket Items 11, 12.

DETENTION-RELATED PROCEEDINGS

After DHS took Campbell into custody, Campbell requested a change in custody status under 8 C.F.R. § 236.1(c). Docket Item 5-2 at 59. On May 11, 2016, however, Immigration Judge Connelly denied the request and found that Campbell was subject to mandatory detention as a criminal alien under 8 U.S.C § 1226(c). Id. Both sides waived their rights to appeal. Id.

On December 7, 2016, Campbell received a bond hearing before Immigration Judge Connelly under Lora v. Shanahan , 804 F.3d 601 (2d Cir. 2015).² But at the hearing, Judge Connelly did not actually evaluate whether the government's evidence established that Campbell was a danger to the community or a flight risk. See Docket item 5-2 at 15. Instead, Judge Connelly determined that he "lack[ed] jurisdiction to redetermine custody due to the entry of a final administrative order of removal." Id. By then, the BIA had affirmed Judge Connelly's decision that Campbell did not have a valid claim to citizenship; therefore, according to Judge Connelly, Campbell's order of removal had become final and the immigration court "lacked jurisdiction to further review [Campbell's] custody status under Lora ." Id. at 16.

On March 14, 2019, Campbell filed his pro se petition for a writ of habeas corpus in this Court. Docket Item 1. On April 11, 2019, the government responded. Docket Items 4, 5. And on April 25, 2019, Campbell replied. Docket Item 6.

DISCUSSION

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 Campbell is validly detained under 8 U.S.C. § 1226(c). Docket Item 5 at 10-11. Campbell makes two arguments to the contrary. Docket Item 1 at 9. First, he claims that his "ongoing detention without a hearing violates due process." Id. Second, he argues that his "ongoing detention without a bond hearing violates the Eighth Amendment['s]" Excessive Bail Clause. Id.

Because Campbell 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).

I. STATUTORY BASIS FOR DETENTION

The government contends that Campbell is validly detained under 8 U.S.C. § 1226(c). Docket Item 5 at 10-11. "Under § 1226(c), the ‘Attorney General shall take into custody any alien’ who falls into one of several enumerated categories involving criminal offenses and terrorist activities." Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 837, 200 L.Ed.2d 122 (2018) (quoting § 1226(c) ). The Immigration and Nationality Act defines "[t]he term ‘alien’ " as "any person not a citizen or national of the United States." 8 U.S.C. § 1101(3).

The basis of Campbell's challenge to his removal is that his is a United States citizen. See Campbell , 737 F. App'x at 600. If Campbell is a citizen, not only would the government be foreclosed from removing him, but the government also would have "no authority under the INA to detain him, as well as no interest in doing so, and...