Funes v. Garland

ANGEL H. VELEZ FUNES, Petitioner, v. MR. MERRICK GARLAND, United States Attorney General,¹MR. ALEJANDRO MAYORKAS, Secretary of the U.S. Department of Homeland Security,MR. THOMAS FEELEY, Field Office Director for Detention Removal,MR. JEFFREY SEARLS, Facility Director, Buffalo Federal Detention Center,MICHAEL BALL, SDDO, Respondents.

20-CV-883 (JLS)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

FILED: June 18, 2021

June 17, 2021

DECISION AND ORDER

Angel H. Velez Funes is a native and citizen of Honduras who entered the United States on or about July 1, 2001. He has been detained at the Buffalo Federal Detention Facility pending removal proceedings for nearly 22 months, and petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.

Velez Funes is currently detained under 8 U.S.C. § 1226(c). Section 1226(c) requires detention of aliens convicted of certain crimes pending removal proceedings and does not afford a hearing at which the alien may advocate for release. Velez Funes's amended petition argues that Section 1226(c), as applied to him, violates his Fifth Amendment procedural due process rights because it denies his opportunity to contest his continued detention. Dkt. 21, at 2.² Velez Funes's initial petition also alleges a substantive due process violation, in addition to a statutory violation of the Immigration and Nationality Act ("INA"). Dkt. 1, at 3-4.³

Velez Funes seeks, among other relief, "prompt[] release" from detention. Dkt. 21-1, at 8. For the reasons that follow, the Court denies the relief that Velez Funes requests and dismisses his petition without prejudice.

BACKGROUND

I. Background and Detention

Velez Funes, a native and citizen of Honduras, entered the United States on or about July 1, 2001 as a non-immigrant visitor authorized to remain in the United States until December 31, 2001. Dkt. 1, at 2 ¶ 6; Dkt. 5-1, at 2 ¶ 5. He was granted lawful permanent resident status on May 2, 2012. Dkt. 5-1, at 2 ¶ 6. On December 23, 2015, U.S. Citizenship and Immigration Services ("USCIS") denied Velez Funes's Petition to Remove Conditions of Residence (Form I-751) and his status was terminated as of May 2, 2014 due to his failure to provide information relating to an arrest. Id. at 2 ¶ 7.

In August 2014, Velez Funes was arrested and charged as a major cocaine trafficker in connection with his role in a Long Island cocaine ring. Dkt. 6, at 3; see also Dkts. 6-1, 6-2. The drug ring was charged with importing drugs from Mexico to California and then transporting them to Long Island via couriers who were equipped with "traps" to hide the drugs. Id. A multi-agency investigation resulted in the seizure of 19 handguns, some loaded and some with defaced serial numbers, in addition to six assault rifles and more than $400,000 in cash. Id.

Velez Funes admitted to storing cocaine and supplies, including scales, at his home in furtherance of his participation in the drug ring. Dkt. 6, at 3. On February 14, 2019, he was convicted of Conspiracy in the 4^th Degree, in violation of New YorkState Penal Law § 105.10, and sentenced to a term of 1 to 3 years of imprisonment. Dkt. 5-1, at 2 ¶ 8.

On July 2, 2019, Velez Funes was placed in immigration removal proceedings via Notice to Appear ("NTA"). Id. at 3 ¶ 9. The NTA alleged that Velez Funes was a native and citizen of Honduras, and subject to removal pursuant to Immigration and Nationality Act ("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), a law relating to an attempt or conspiracy to commit an offense described in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43); and pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), as an alien who, at any time after admission, has been convicted of a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, other than a single offense involving possession for one's own use of 30 grams or less of marijuana. Id. at 3 ¶ 10.

On August 12, 2019, Velez Funes, accompanied by counsel, appeared before an immigration judge ("IJ") in Napanoch, New York. Id. at 3 ¶ 11. The hearing was adjourned until September 30, 2019 to allow Velez Funes time to prepare. Id.

On August 13, 2019, Velez Funes was served with Additional Charges of Inadmissibility/Deportability. Id. at 4 ¶ 12. These additional charges alleged that Velez Funes was also subject to removal pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as a non-immigrant who has remained in the United States for a time longer than permitted. Id.

On August 30, 2019, Velez Funes was taken into Department of Homeland Security ("DHS") custody upon release from custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Id. at 4 ¶ 13. DHS determined that Velez Funes would remain in DHS custody pending a final administrative determination of his case. Id. at 4 ¶ 14. Velez Funes sought review of the custody determination. Id.

Velez Funes's case was transferred to the Immigration Court in Batavia, New York. Id. at 4 ¶ 15. Velez Funes has since made numerous requests to adjourn his removal proceedings. For example, he appeared, with counsel, before the IJ on November 4, 2019 for master calendar and bond hearings. Id. at 4 ¶ 16. Velez Funes requested adjournments of both hearings. Id. Velez Funes obtained additional adjournments and continuances on January 6, 2020, February 5, 2020, March 26, 2020, April 22, 2020, and May 6, 2020. Id. at 5 ¶¶ 18, 20-22. Velez Funes expressly requested some of these adjournments. See, e.g., id. at 5 ¶ 21; Dkt. 5-2, at 2 ¶ 9; see also Dkt 6, at 5.

Velez Funes's merits hearing was conducted on June 4, 2020. Dkt. 5-1, at 6 ¶ 23. By order dated June 16, 2020, the IJ denied his applications for relief and ordered him removed to Honduras. Id. at 6 ¶ 24. On July 10, 2020, Velez Funes filed an appeal with the Board of Immigration Appeals ("BIA"). Id. at 6 ¶ 25. After filing the notice of appeal, Velez Funes sought an extension of time to submit his brief to the BIA. Id. at 6 ¶ 26. Velez Funes filed his brief on October 5, 2020, and a decision on the appeal is currently pending.

DHS has detained Velez Funes since August 30, 2019, pending completion of his immigration removal proceedings. Id. at 6 ¶ 27; Dkt. 1, at 3 ¶ 12.

II. Procedural History

Velez Funes filed his initial petition for habeas corpus on July 13, 2020. Dkt. 1. The Government answered and filed a memorandum and declarations in opposition. Dkts. 5, 6. Velez Funes replied and moved to dismiss his state court pre-sentence report from evidence. Dkts. 11, 12. Velez Funes also made two motions to amend his petition for habeas relief. Dkts. 13, 19.

On April 21, 2021, this Court granted Velez Funes's motion to amend his petition. Dkt. 20. Velez Funes amended his petition, clarifying the statutory basis for his detention and submitting a supporting memorandum of law. Dkt. 21. Although the Court's order allowed the Government the opportunity to amend or supplement its previous filings, see Dkt. 20, the Government made no further submissions to this Court.

ANALYSIS

I. Velez Funes's Constitutional Claims

A. Jurisdiction

Jurisdiction over substantive challenges to final deportation, exclusion, and removal orders resides with the circuit courts; district courts lack jurisdiction over the merits of such orders. See Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005) (holding that the REAL ID Act "eliminates habeas jurisdiction over final orders ofdeportation, exclusion, and removal, providing instead for petitions of review . . . , which circuit courts alone can consider"). District courts can, however, review claims that pre-removal detention is unconstitutional. See Demore v. Kim, 538 U.S. 510, 516-17 (2003). In this way, habeas corpus review is available to persons "in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2241(c)(3).

Velez Funes claims that his nearly-22-month detention without a bond hearing is unconstitutional based on its duration, thereby violating his due process rights. Dkt. 1, at 4 ¶¶ 23-26; Dkt. 21-1, at 5 ¶ 15. Velez Funes also claims that the Government failed "to provide a neutral decision-maker to review" his continued detention. Dkt. 1, at 4 ¶ 28; Dkt. 21, at 2. The Government does not dispute that this Court has jurisdiction over Velez Funes's challenge to his continued detention. Dkt. 5, at 2 ¶ 1.

B. Constitutionality of Section 1226(c)

The Fifth Amendment "protects [aliens like Velez Funes] from deprivation of life, liberty, or property without due process of law." See Mathews v. Diaz, 426 U.S. 67, 77 (1976); see also Reno v. Flores, 507 U.S. 292, 306 (1993) ("It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings."). Equally clear are the "constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth . . . Amendment." Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

Velez Funes's detention is mandatory under 8 U.S.C. § 1226(c), which provides that the Attorney General "shall take into custody any alien who . . . is deportable by reason of having committed" certain criminal offenses—including, as relevant here, a crime of moral turpitude committed within five years of admission into the United States, for which the alien may be sentenced to a term of imprisonment of at least one year. See 8 U.S.C. § 1226(c)(1)(C);⁴ 8 U.S.C. § 1227(a)(2)(A)(i) ("Any alien who . . . is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission, and . . . is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.").

The Supreme Court...