Onosamba-Ohindo v. Searls

JUNIOR ONOSAMBA-OHINDO, on behalf of himself andall others similarly situated, Petitioner/Plaintiff, v. JEFFREY SEARLS, in his official capacity asthe Acting Administrator of the Buffalo Federal Detention Facility, Respondent/Defendant.

1:20-CV-00290 EAW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 29, 2021

DECISION AND ORDER

INTRODUCTION

Petitioner/plaintiff Junior Onosamba-Ohindo ("Class Petitioner") and former petitioner/plaintiff Antonio Lopez Agustin ("Subclass Petitioner") (collectively "Petitioners") filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and complaint for declaratory and injunctive relief, purportedly on behalf of themselves and all other persons similarly situated. (Dkt. 1 ("Petition")). Petitioners sought: class certification; a declaratory judgment that the "actions, practices, policies, and/or omissions" of defendants/respondents violate the Immigration and Nationality Act ("INA") and its implementing regulations, the Administrative Procedure Act, and the Fifth Amendment to the U.S. Constitution; a declaratory judgment that each class member is entitled to a custody hearing at which the government bears the burden to justify continued detention by proving by clear and convincing evidence that the detained individual is a danger to others or a flight risk; and an order stating that each class member must be released unless provided with such a custody hearing. (Id. at 18-19).

In a Decision and Order dated September 2, 2020 (Dkt. 41) (the "D&O"), the Court granted in part and denied in part the motion to dismiss. (Id. at 8-35). Claims asserted by Subclass Petitioner and the proposed subclass members detained at Richwood Correctional Center and claims asserted against all respondents/defendants with the exception of Jeffrey Searls ("Respondent") were dismissed without prejudice. (Id. at 15-20). The Court found that Class Petitioner stated a Due Process Clause claim that the government is required to bear the burden of proof at bond hearings held pursuant to 8 U.S.C. § 1226(a) and that the immigration judge ("IJ") must consider non-bond alternatives to detention, or if setting a bond, ability to pay. (Id. at 28-32). With respect to Class Petitioner's claim for violations of the INA, the Court rejected Plaintiff's contention that § 1226(a) "require[s] [immigration judges] to consider ability to pay and alternative conditions of release in setting bond," but found that Class Petitioner had "stated a claim for violation of the INA on different grounds"—namely, that at his bond hearing, the IJ had stated that she could not consider alternatives to money bond. (Id. at 34). Accordingly, "Class Petitioner's claim that the IJ misinterpreted the INA by stating she could not consider alternative conditions of release" was allowed to proceed, but his claim "that the INA required the IJ to consider those alternatives or his ability to pay in setting bond" was dismissed. (Id.).

The D&O also granted in part, denied in part, and reserved decision in part on Petitioners' motion for class certification and certified a Pre-Hearing Class, defined as follows:

All individuals currently detained at the Buffalo Federal Detention Facility under § 1226(a) who will have a custody hearing before the Batavia or Buffalo Immigration Courts.

(Id. at 35-47). The Court reserved decision on whether to certify a putative Post-Hearing Class of individuals who have already had a custody hearing before the Batavia or Buffalo Immigration Courts. (Id at 46-47). Finally, the Court granted in part and denied in part Petitioners' motion for a preliminary injunction. (Id. at 47-52). Specifically, the Court granted a preliminary injunction as to the constitutional claims of the Pre-Hearing Class and ordered that all members of the Pre-Hearing Class must receive a bond hearing wherein the government bears the burden of proving by clear and convincing evidence that the individual is a danger to the community or flight risk, and where the IJ must consider non-bond alternatives to detention or, if setting a bond, ability to pay. (Id. at 52-54). The Court otherwise denied the motion for a preliminary injunction with respect to the putative Post-Hearing Class. (Id.).

Presently pending before the Court is Class Petitioner's motion (Dkt. 49) for reconsideration of the portion of the D&O dismissing his claim that the INA requires IJs to consider alternatives to money bond or the ability to pay (Dkt. 49), as well as the unresolved portion of the motion seeking to certify the Putative Post-Hearing Class (Dkt. 2). Because Class Petitioner argues that a ruling in his favor on the reconsideration motion would obviate the need to reach the certification motion (see Dkt. 49-1 at 9-10), the Court will consider that motion first. But for the reasons that follow, the Court denies Class Petitioner's motion to reconsider and further denies the pending portion of the motion for certification without prejudice to renew.

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.

II. Bond Hearings Pursuant to 8 U.S.C. § 1226(a)

As outlined in the D&O, the federal government has authority under the INA to detain people during immigration proceedings that may result in their removal. See generally 8 U.S.C. § 1226. The INA requires that immigration detainees who were present in the United States before their arrest, are currently in removal proceedings, and lack certain criminal convictions that would otherwise subject them to mandatory detention are entitled to receive an initial determination from United States Immigration and Customs Enforcement ("ICE") regarding whether they may be released while their removal cases proceed. See id. If ICE does not release an individual, that person may ask an IJ to review ICE's custody determination in a bond hearing. See id. § 1226(a); 8 C.F.R. §§ 1003.19(a), 1236.1(d)(1). Thereafter, the detainee may appeal the IJ's determination to the Board of Immigration Appeals ("BIA"). See 8 C.F.R. §§ 1236.1(d)(3), 1003.1(b)(7).

At the bond hearing, § 1226(a) provides that the Attorney General "may continue to detain the arrested alien" or "may release the alien on . . . bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or . . . conditional parole." 8 U.S.C. § 1226(a)(1)-(2). In the D&O, the Court concluded that the plain language of § 1226(a) "does not provide the procedural requirements for bondhearings. Instead, the procedural rules followed by immigration courts come from BIA precedential decisions, which are not construing language in the statute." (Dkt. 41 at 23 (citation omitted)). The D&O cited the Supreme Court case of Jennings v. Rodriguez, ___ U.S. ___, 138 S. Ct. 830, 834 (2018), in recognizing that § 1226(a) does not speak to the procedural requirements of bond hearings. (Dkt. 41 at 23); see also Jennings, 138 S. Ct. at 847 (holding "[n]othing in § 1226(a)'s text—which says only that the Attorney General 'may release' the alien 'on . . . bond'—even remotely supports" placing the burden on the government to prove by clear and convincing evidence that the alien's continued detention is necessary).

In the D&O, the Court agreed with Class Petitioner and reaffirmed its prior finding that the Due Process Clause requires the government to bear the burden of proof at § 1226(a) bond hearings and the IJ to consider non-bond alternatives to detention or, if setting a bond, ability to pay. As noted, the Court ordered that all members of the Pre-Hearing Class receive a bond hearing in accordance with those directives.

More recently, the Court of Appeals for the Second Circuit decided Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020). Utilizing the three-factor balancing test provided in Mathews v. Eldridge, 424 U.S. 319 (1976), the Second Circuit held that the petitioner, a noncitizen incarcerated pursuant to 8 U.S.C. § 1226(a) for 15 months, was entitled to a new bond hearing where the government bore the burden to establish by clear and convincing evidence that he should be detained. 978 F.3d at 855-56. The Velasco Lopez court concluded that this requirement "strikes a fair balance between the rights of the individual and the legitimate concerns of the state," id. at 857 (quoting Addington v. Texas, 441 U.S.418, 431 (1979)), and rejected the government's contention that the Jennings decision foreclosed the relief sought by the petitioner, id. (citing Jennings, 138 S. Ct. at 851)). Although the Velasco Lopez court did not establish a bright-line rule "for when due process entitles an individual detained under § 1226(a) to a new bond hearing with a shifted burden," it nonetheless held that "[o]n any calculus" the 15-month incarceration in that case violated due process. Id. at 855 n.13. It concluded that the result allowed all interested parties to prevail because the government "has no interest in the continued incarceration of an individual who it cannot show to be either a flight risk or a danger to his community." Id. at 857.

III. Procedural Background

Petitioners filed the instant action (Dkt. 1) and motion to certify the class (Dkt. 2) on March 11, 2020. On April 10, 2020, Petitioners filed a motion for preliminary injunction (Dkt. 15), and on April 27, 2020, the respondents/defendants filed their motion to dismiss (Dkt. 22).

On September 2, 2020, the Court issued the D&O. (Dkt. 41). Supplemental briefing was ordered regarding certification of the putative Post-Hearing Class (Dkt. 42), which Class Petitioner submitted on September 16, 2020 (Dkt. 44), and Respondent submitted on September 23, 2020 (Dkt. 47). On September 30, 2020, Class Petitioner filed the pending motion for reconsideration (...