St. Charles v. Barr

514 F.Supp.3d 570

Marcel ST. CHARLES, Petitioner,

v.William P. BARR, United States Attorney General, et al., Respondents.

6:20-CV-06061 EAW

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

Signed January 22, 2021

Marcel St. Charles, Batavia, NY, pro se.

Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, United States Attorney's Office, Western District of New York, for Respondents.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Pro se petitioner Marcel St. Charles ("Petitioner"), a civil immigration detainee currently held at the Buffalo Federal Detention Facility in Batavia, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner contends that he is detained pursuant to 8 U.S.C. § 1225(b), and that he is entitled to release, or in the alternative, a bond hearing. (Id. at 10; Dkt. 8 at 11-13).

For the reasons that follow, the Court finds that Petitioner is detained pursuant to 8 U.S.C. § 1225(b). The Court further finds that Petitioner is not entitled to either a bond hearing or release and accordingly denies the petition.

BACKGROUND

I. Factual Background

Petitioner is a native and citizen of Haiti. (Dkt. 6-1 at ¶ 5). He first entered the United States without inspection on or about May 15, 2007, by paying a smuggler to transport him from the Dominican Republic to Saint John, one of the United States Virgin Islands. (Id. ). Although Petitioner was initially subject to expedited removal under 8 U.S.C. § 1225(b), he was interviewed and found to have a credible fear of return to Haiti. (Id. at ¶ 6). Consequently, Petitioner was referred to the Batavia Immigration Court for formal removal proceedings pursuant to 8 U.S.C. § 1229a. (Id. ). On May 30, 2008, an immigration judge ("IJ") ordered Petitioner removed from the United States to Haiti and denied Petitioner's applications for asylum and withholding of removal. (Id. at ¶ 7).

Petitioner appealed the IJ's order to the Board of Immigration Appeals ("BIA"), which dismissed his appeal on March 27, 2009. (Id. at ¶ 8). Petitioner then filed a motion to reopen and reconsider the March 2009 decision before the BIA, but that motion was denied. (Id. ). Petitioner then requested that the BIA reconsider his prior motion to reconsider, which was also denied. (Id. ). On May 20, 2010, Petitioner was granted Temporary Protected Status ("TPS") by United States Citizenship and Immigration Services ("USCIS"). (Id. at ¶ 9).

On August 4, 2017, Petitioner fled to Canada in an attempt to seek asylum. (Id. at ¶ 10). On May 11, 2019, Petitioner reentered the United States by crossing the border near the town of Champlain, New York. (Id. at ¶ 11). At approximately 1:50 a.m., Border Patrol agents were notified that there was a subject walking southbound on a road that dead ends at the United States-Canada Border and is known for illegal entry by immigrants. (Dkt. 6-2 at 28). The agents apprehended Petitioner approximately a half mile south of the border and took him to a border patrol station. (Id. at 28-29). Petitioner was not granted bond and the United States Attorney's Office approved prosecution of Petitioner for illegally entering the United States in violation of 8 U.S.C. § 1326. (Dkt. 6-1 at ¶ 11). Petitioner was remanded to Clinton County Jail and an immigration detainer was lodged with that facility such that Petitioner could be taken into immigration detention upon completion of his criminal proceedings. (Id. ).

Upon his reentry on May 11, 2019, DHS reinstated Petitioner's prior order of removal and issued a Warrant of Removal/Deportation for Petitioner. (Id. at ¶ 12). On June 21, 2019, Petitioner pleaded guilty to violating 8 U.S.C. § 1326(a) and was sentenced to time served (42 days). (Id. at ¶ 13; Dkt. 6-2 at 39). On July 9, 2019, DHS issued another Warrant of Removal/Deportation as a result of Petitioner's prior order of removal, which was affirmed by the BIA. (Dkt. 6-1 at ¶ 14). DHS contacted the Embassy of Haiti, requesting travel documents be supplied in order to effectuate Petitioner's removal. (Id. ).

On or about July 17, 2019, Petitioner received USCIS's decision denying his Application for Temporary Protected Status and revoking his previously granted TPS. (Id. at ¶ 15). USCIS noted that Petitioner had failed to maintain his continuous residence and physical presence in the United States because he had departed the United States to Canada in August 2017. (Id. ). USCIS also noted that Petitioner was ineligible because he was subject to a reinstated order of removal and due to his felony conviction for re-entering the United States illegally. (Id. ). Because there is no record of Petitioner appealing this decision, the decision was rendered final. (Id. ).

On July 30, 2019, after expressing fear of persecution or torture, Petitioner was interviewed by an immigration officer and was found to have a facially credible fear. (Id. at ¶ 16). Petitioner was then referred to an IJ for consideration of withholding of removal only pursuant to 8 C.F.R. § 208.31(e). On August 6, 2019, DHS served Petitioner with a Notice of Custody Determination, advising him that he would be detained pending a final administrative determination in his immigration case. (Id. at ¶ 17). Petitioner requested that an IJ review the DHS determination. (Id. ).

On August 26, 2019, Petitioner appeared with his counsel and interpreter before an IJ. (Id. at ¶ 18). At the request of Petitioner's counsel, the IJ adjourned the withholding-only and custody hearings until September 30, 2019, so that Petitioner could file a Form I-589, Application for Asylum and for Withholding of Removal. (Id. ). At the September 30, 2019, custody hearing, Petitioner appeared with his counsel and interpreter. (Id. at ¶ 19). The IJ denied bond, finding that Petitioner presented a risk of flight. (Id. ). Petitioner submitted his Form I-589 to the IJ, and his withholding-only proceeding was adjourned to December 11, 2019, for trial. (Id. ).

On October 28, 2019, the BIA received Petitioner's appeal of the IJ's denial of bond. (Id. at ¶ 20). As a result, the IJ issued a written decision dated November 14, 2019, finding that Petitioner did not meet his burden of proof to establish that he was not a risk of flight. (Id. ). The IJ noted that although Petitioner had a friend willing to sponsor him and a sister who was a United States citizen, Petitioner posed a risk of flight by fleeing to Canada when it appeared he would be subject to removal and by later illegally reentering the United States. (Id. ).

On November 20, 2019, DHS received a Motion to Continue and a Motion to Compel Document Production from Petitioner's counsel. (Id. at ¶ 21). DHS served oppositions to both motions on November 26, 2019. (Id. ). On December 11, 2019, Petitioner appeared for his withholding-only proceeding with his counsel, and an interpreter was present. (Id. at ¶ 22). The IJ denied both motions, but granted Petitioner's counsel's request for a continuance and adjourned the hearing until February 28, 2020. (Id. ).

On January 23, 2020, the IJ granted DHS's motion to pretermit Petitioner's applications for relief from removal. (Id. at ¶ 23). The IJ noted that Petitioner, as a previous asylum applicant, could not apply for asylum a second time without proving the existence of changed circumstances which materially affect his eligibility for asylum pursuant to 8 U.S.C. § 1158(a)(2)(D). (Id. ). On January 27, 2020, the BIA dismissed Petitioner's appeal of the IJ's order denying bond. (Id. at ¶ 24). The BIA concluded that the IJ's decision was proper in light of Petitioner's history of unlawfully entering the United States and the speculative nature of his claim for relief from removal. (Id. ). On February 6, 2020, the IJ issued an order denying DHS's Motion to Terminate Withholding-Only Proceedings, clarifying that the prior order granting the Motion to Pretermit only applied to Petitioner's application for asylum. (Id. at ¶ 25). The IJ further noted that Petitioner could continue to seek relief from removal through withholding of removal and under the Convention Against Torture ("CAT"). (Id. ).

On February 28, 2020, Petitioner appeared at his withholding-only proceeding with counsel. (Id. at ¶ 26). Petitioner's counsel moved to withdraw due to a conflict with her client, and the IJ granted the motion. (Id. ). To allow Petitioner an opportunity to retain new counsel, the matter was rescheduled for March 16, 2020. (Id. ). On March 16, 2020, Petitioner requested a continuance. (Id. ). The IJ granted the request and rescheduled the hearing for April 20, 2020. (Id. ). The record before the Court does not reflect any further developments in Petitioner's withholding-only proceedings.

II. Procedural Background

Petitioner filed his petition pro se on January 27, 2020. (Dkt. 1). Respondents filed their answer and return in response to the petition on March 23, 2020 (Dkt. 6), and Petitioner filed his reply on April 2, 2020 (Dkt. 8). On June 25, 2020, the Court issued a Text Order directing the parties to submit supplemental briefing as to the impact on the petition, if any, of the Supreme Court's decision in Department of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020). On July 27, 2020, Respondents filed their supplemental briefing. (Dkt. 10). That same day, the New York Civil Liberties Union Foundation and the International Refugee Assistance Project (collectively "Amici") filed a motion seeking leave to file an amici curiae brief in support of Petitioner. (Dkt. 11). The Court granted the motion and directed any briefs in response to the amici curiae brief be filed on or before August 5, 2020. (Dkt. 12). Amici filed their brief on July 28, 2020 (Dkt. 14), and no briefs were filed in response.

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) ; Demore v. Kim ,...