Rajesh v. Barr

420 F.Supp.3d 78

Hamal RAJESH, Petitioner,

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

No. 6:19-cv-06415-MAT

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

Signed October 29, 2019

Hamal Rajesh, Batavia, NY, pro se.

Daniel Barrie Moar, U.S. Attorney's Office, Buffalo, NY, Joseph F. Carilli, Jr., U.S. Department of Justice, Washington, DC, United States Attorney's Office, Western District of New York, for Respondents.

DECISION AND ORDER

HONORABLE MICHAEL A. TELESCA, United States District Judge

I. Introduction

Proceeding pro se , Hamal Rajesh, a/k/a Rajesh Hamal ("Hamal" or "Petitioner") commenced this habeas proceeding pursuant to 28 U.S.C. § 2241 (" § 2241") against the named Respondents (hereinafter, "the Government") challenging his continued detention in the custody of the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE"). For the reasons discussed below, the request for a writ of habeas corpus is granted to the extent that the Government is ordered to afford a new bond hearing to Hamal.

II. Factual Background

On June 13, 2018, at approximately 8:50 a.m., the San Diego Sector Border Patrol Communications operator relayed wia agency radio of a sensor activation near a place commonly known to United States Border Patrol Agents as "Goat Canyon," an area about four miles west of the San Ysidro, California, Port of Entry. A border patrol agent responded and found four individuals lying in the brush, one of whom was Hamal. Upon questioning, the agent determined that each of the individuals was a Nepalese citizen and none of them had immigration documents allowing them to legally enter or remain in the United States. Hamal, along with the three other individuals, was arrested.

Hamal requested an interview with an asylum officer, during which he related that he attempted to enter the United States for political reasons. He explained that his life was in danger because he works for the Nepali Congress and the Maoist Party wants him to join their party.

He asserted that he was beaten once and received verbal threats in Nepal.

On September 19, 2018, Hamal was served with a Notice to Appear ("NTA") alleging that he is not a citizen or national of the United States, that he is a native of Nepal and a citizen of Nepal; that he entered the United States at an unknown location on or about June 13, 2018, without a valid entry document; and that he was not admitted or paroled after inspection by an immigration officer. He was charged with being subject to removal pursuant to Immigration and Nationality Act ("INA") § 212(a)(7)(A)(i)(I) and § 212(a)(6)(A)(i). Also on September 19, 2018, DHS determined to continue Hamal's detention. Hamal requested review by an immigration judge ("IJ") of DHS's custody determination.

On November 20, 2018, Hamal appeared for a master calendar hearing before an IJ, which was adjourned to December 18, 2018, to allow Hamal time to seek representation. Also on November 20, 2018, Hamal appeared, with counsel, for a bond hearing before an IJ. On November 21, 2018, the IJ issued a check-the-box form denying Hamal's request for a change in custody status. On December 10, 2018, Hamal appealed the IJ's bond decision to the Board of Immigration Appeals ("BIA"). The IJ subsequently issued a written bond memorandum on January 8, 2019, indicating that Hamal posed a flight risk. See Docket No. 7-2, pp. 21-23 of 31. The IJ noted that Hamal has no bank accounts, no real property, and no personal property. The IJ found that Hamal lacks substantiated family ties in the United States and that, according to Hamal's testimony at the bond hearing, he only recently met his named sponsor, a relative and lawful permanent resident, at the Albany County Jail. The IJ further observed that Hamal testified that he paid a smuggler 700,000 Nepalese rupees (about $6,300) to enter the United States, which is the equivalent of aiding and abetting a smuggler. In light of these factors, the IJ found no amount of bond could ensure Hamal's appearance at future immigration proceedings.

On December 18, 2018, Hamal appeared for a master calendar hearing before an IJ, which was adjourned to January 29, 2019, for an individual calendar hearing on the merits.

On December 28, 2018, Hamal filed an application for relief from removal.

The individual calendar hearing scheduled for January 29, 2019, was adjourned to March 29, 2019, due to closure of the immigration court. An IJ subsequently advanced the hearing to February 19, 2019.

Hamal appeared with counsel before an IJ on February 19, 2019, for an individual calendar hearing. At the conclusion of the hearing, the IJ denied Hamal's application for relief from removal and ordered him removed from the United State to Nepal. On March 1, 2019, Hamal appealed the IJ's decision to the BIA.

On May 30, 2019, the BIA issued a decision dismissing Hamal's bond appeal and affirming the IJ's decision denying bond. On July 12, 2019, the BIA issued a decision dismissing Hamal's appeal of the removal order and affirming the IJ's decision.

Hamal, through his retained attorney, filed a petition for review ("PFR"), with the United States Court of Appeals for the Second Circuit. Hamal v. Barr , 19-2467 (2d Cir. Aug. 9, 2019). He also filed a motion for a stay of removal, which the Government opposed, noting that absent a stay, it will not forbear from removal after October 1, 2019. On September 11, 2019, a judge of the Second Circuit issued an order granting a temporary stay pending review of the stay motion by a three-judge panel. See Docket No. 39 in Hamal v. Barr , 19-2467 (2d Cir. Sept. 11, 2019). Hamal's appellate brief is due December 19, 2019.

Hamal filed his habeas petition (Docket No. 1) on June 4, 2019. The Government filed an answer and return (Docket No. 7) with supporting exhibits (Docket Nos. 7-1 through 7-5) and memorandum of law in Opposition (Docket No. 8). Hamal filed a reply (Docket No. 9). The matter was transferred to the undersigned on October 1, 2019.

III. Scope of Review

Title 28 U.S.C. § 2241 grants this Court jurisdiction to hear habeas corpus petitions from aliens claiming they are held "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) ; Zadvydas v. Davis , 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (citing 28 U.S.C. § 2241(c)(3) ). However, the REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a), 199 Stat. 231 (May 11, 2005) amended the Immigration and Nationality Act ("INA") to provide that petitions for review filed in the appropriate Courts of Appeals were to be the "sole and exclusive means for judicial review" of final orders of removal. Ruiz-Martinez v. Mukasey , 516 F.3d 102, 113 (2d Cir. 2008) (citing REAL ID Act § 106(c); 8 U.S.C. § 1252(a)(5) ). In other words, the REAL ID Act "strips district courts of jurisdiction to hear habeas petitions challenging final orders of deportation...." De Ping Wang v. Dep't of Homeland Sec. , 484 F.3d 615, 615-16 (2d Cir. 2007). District courts still are empowered to grant relief under § 2241 to claims by aliens under a final order of removal who allege that their post-removal-period detention and supervision are unconstitutional. See Zadvydas , 533 U.S. at 687-88, 121 S.Ct. 2491 ; see also Hernandez v. Gonzales , 424 F.3d 42, 42–43 (1st Cir. 2005) ("The Real ID Act deprives the district courts of habeas jurisdiction to review orders of removal, ... [but] those provisions were not intended to ‘preclude habeas review over challenges to detention that are independent of challenges to removal orders.’ ") (quoting H.R. Cong. Rep. No. 109-72, at *43 2873 (May 3, 2005)).

Although this Court has jurisdiction to decide statutory and constitutional challenges to civil immigration detention, it does not have jurisdiction to review the discretionary decisions of the Attorney General. Zadvydas , 533 U.S. at 688, 121 S.Ct. 2491 (citing 8 U.S.C. § 1252(a)(2)(B)(ii) ) ("[N]o court shall have jurisdiction to review ... any other decision or action of the Attorney General ... the authority of which is specified under this subchapter to be in the discretion of the Attorney General."). "[W]hether the district court has jurisdiction will turn on the substance of the relief that a [petitioner] is seeking." Delgado v. Quarantillo , 643 F.3d 52, 55 (2d Cir. 2011) (per curiam ).

IV. Discussion

A. Overview of Petitioner's Claims

Because Hamal 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). Hamal asserts that he is entitled to relief under Section 2241 on the following grounds: (1) his custody redetermination hearing before an IJ violated the Due Process Clause of the Fifth Amendment because he bore the burden of proving that he was not a flight risk or a danger to the community; (2) his detention, which commenced on June 13, 2018, has become unreasonably prolonged, thereby entitling him to another bond hearing at which the Government bears the burden of proving that he is a flight risk or a danger to the community; and (3) his detention violates the Eighth Amendment's Excessive Bail Clause.

For the reasons discussed below, the Court finds that as a matter of due process, Hamal is entitled to a second bond hearing as a matter of Due Process based on the length of his detention at which the Government bears the burden of proof by clear and convincing evidence. In light of this conclusion, the Court need not consider his claims that his initial custody redetermination hearing was procedurally flawed or that his...