Cyclewala v. Searls

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ASLAM CYCLEWALA, also known as Javed Khan, Petitioner, v. JEFFREY J. SEARLS, Facility Director, Buffalo Federal Detention Facility, Respondent.

No. 6:21-CV-06372 EAW

United States District Court, W.D. New York

December 16, 2021

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge.

INTRODUCTION

Petitioner Aslam Cyclewala a/k/a Javed Khan (“Petitioner”) a civil immigration detainee currently held 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 contends that his continued detention pending removal violates his right to due process. (Id.).

Petitioner previously filed a petition seeking the same relief on September 4, 2020. See Cyclewala v. Feeley, 6:20-CV-06678 (“Cyclewala I”). On January 29, 2021, the Court entered a Decision and Order (“D&O”) denying Petitioner's petition in Cyclewala I. (Cyclewala I (Dkt. 8), reconsideration denied, (Dkt. 11; 20)). In the instant petition, Petitioner renews his request for relief and submits supplemental information in support of the petition. For the reasons that follow, the Court finds that Petitioner has met his initial burden of demonstrating that there is good reason to believe there is no significant likelihood of his removal in the reasonably foreseeable future, and that the burden has thus shifted to Respondent to rebut this showing. The Court further grants Respondent an opportunity to supplement his submissions by no later than January 18, 2022.

BACKGROUND

I. Factual Background

The factual background of this case is set forth in detail in the D&O, familiarity with which is assumed for purposes of this Decision and Order. The Court has summarized the key details below, and includes the relevant developments since the Court issued the D&O.

Petitioner is a native and citizen of India who entered the United States in 1986 using a non-immigrant visa and a “photo-substituted passport.” (Cyclewala I (Dkt. 5-1 at ¶ 5 & n.2)). On April 29, 1988, Petitioner filed an application for temporary resident status with the former Immigration and Naturalization Service (“INS”) under the name “Javed Khan, ” and his application was denied on December 12, 1989. (Id. at ¶ 6).

On February 13, 1991, under the name “Javed Khan, ” Petitioner was convicted of murder in the second degree, kidnapping in the second degree, robbery in the first degree, and possession of a weapon in the second degree. (Id. at ¶ 8). On December 8, 1994, Petitioner was issued an Order to Show Cause and Notice of Hearing charging him with being subject to deportation pursuant to various provisions of the Immigration and Naturalization Act (“INA”) and an immigration judge ordered Petitioner removed from the United States on May 15, 1995. (Id. at ¶¶ 11, 14). On February 11, 2020, Petitioner was released from custody by the New York State Department of Corrections and Community Supervision and taken into ICE custody. (Id. at ¶ 20).

The following facts were not before the Court in Cyclewala I and were presented in connection with the instant petition.

On January 13, 2021, ICE reviewed Petitioner's detention status and determined that continued detention was warranted in light of the COVID-19 pandemic and the threat Petitioner presented to the general public. (Dkt. 4-1 at ¶ 7). On March 2, 2021, ICE sought an update on the status of the issuance of Petitioner's travel documents from the Indian Consulate and was advised that confirmation of Petitioner's nationality remained pending. (Id. at ¶ 8).

On March 3, 2021, an affidavit from Petitioner's friend, Shri Sanjeev Dutta, was received by ICE. (Dkt. 4-1 at ¶ 9). The affidavit indicated that the deponent had known Petitioner in school and confirmed Petitioner's name to be Aslam Cyclewala, also known as Javed Khan, and that he was the son of Ismail Cyclewala. (Dkt. 4-2 at ¶ 2). The affidavit was forwarded to the Indian consulate. (Dkt. 4-1 at ¶ 9).

On or about March 22, 2021, two other friends of Petitioner in Mumbai, India, Rahim Charania and Ganpath Deshmukh, submitted letters on Petitioner's behalf. (Dkt. 4-2 at 4-5). Both letters indicate that the individuals knew Petitioner since childhood and Deshmukh's letter identified the name of the high school Petitioner attended. (Id. at 5). ICE forwarded the letters to the Indian consulate on or about March 22, 2021. (Dkt. 4-1 at ¶ 4).

Petitioner's detention status was reviewed by ICE again in April of 2021. (Id. at ¶ 11). ICE determined that continued detention was warranted and served a Decision to Continue Detention on Petitioner on April 6, 2021. (Id. at ¶ 11; Dkt. 4-2 at 6). The Decision to Continue Detention indicates that a travel document from India is expected and “ICE has reason to believe there's a significant likelihood that your removal will occur in the reasonably foreseeable future.” (Dkt. 4-2 at 6).

On April 19, 2021, a consulate interview was conducted. (Id. at ¶ 12). The interview was conducted by telephone and the affidavit and letters submitted on Petitioner's behalf were again forwarded to the Indian consulate. (Id. at ¶ 12). On May 11, 2021, the Indian consulate advised ICE that it had obtained additional information during the interview with Petitioner and had shared that information with the authorities in India attempting confirm Petitioner's nationality. (Dkt. 4-1 at ¶ 13).

II. Procedural Background

As noted, Petitioner filed an initial petition on September 4, 2020 in Cyclewala v. Feeley, 6:20-cv-06678 (“Cyclewala I”). (Cyclewala I (Dkt. 1)). On January 29, 2021, the Court entered a Decision and Order denying Petitioner's petition. (Id. (Dkt. 8)). On February 12, 2021, Petitioner filed a motion for reconsideration (id. (Dkt. 9)), which was denied on February 16, 2021 (id. (Dkt. 11)). Petitioner re-filed his motion for reconsideration on February 22, 2021 (id. (Dkt. 12)), which was again denied on May 3, 2021 (id. (Dkt. 20)).

Petitioner filed the instant petition on May 6, 2021. (Dkt. 1). Respondent filed a response on June 28, 2021 (Dkt. 4), and Petitioner filed a reply on July 15, 2021 (Dkt. 6), and supplemental filing on August 30, 2021 (Dkt. 7).

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); Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding that “§ 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 threshold matter, the government contends that Jeffrey Searls, Officer in Charge of the BFDF, is the only respondent with immediate custody over Petitioner, and consequently the only proper respondent. (Dkt. 4-3 at 12). 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 (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. Legal framework

“When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory ‘removal period,' during which time the alien normally is held in custody.” Zadvydas, 533 U.S. at 682. The removal period begins on the latest of: (1) the date the removal order 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”; or (3) the date the alien is released from detention or confinement, unless such detention or confinement is the result of an immigration process. 8 U.S.C. § 1231(a)(1)(B).

After expiration of the 90-day removal period, 8 U.S.C. § 1231(a)(6) allows the Government to continue to detain certain classes of aliens or to release them, subject to appropriate terms of supervision. Id. In Zadvydas, the Supreme Court read “an implicit limitation into” § 1231(a)(6), holding that “the statute, read in light of the Constitution's demands, limits an alien's post-removal-period detention to a period...