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Bugianishvili v. McConnell

United States District Court, S.D. New York

June 24, 2015

McCONNELL et al., Respondents.


ANDREW L. CARTER, Jr., District Judge.


Under 8 U.S.C. § 1226(c), the government must detain a limited class of noncitizens without bond for the brief period pending removal proceedings. This case is about how long that period lasts before due process requires the government to justify continued detention by showing that the noncitizen is a flight risk or danger to his community. Archil Bugianishvili is a lawful permanent resident, detained without bond by Immigration and Customs Enforcement for the last eight months while contesting his removal in administrative proceedings. He petitions this Court for a writ of habeas corpus, seeking not immediate release, but rather a bond hearing with an Immigration Judge. Because Bugianishvili's detention has been unreasonably prolonged, the Court grants his petition.


a. Arrest and Detention under 8 U.S.C. § 1226(c)

Bugianishvili is a lawful permanent resident (LPR) who has lived in New York with his United States citizen wife and children since 2003. Petition ¶ 7. Prior to his current detention, he worked as a mechanic in Staten Island; his former employer wishes to rehire him if he is released. Id . ¶ 18-19; Declaration of Employer ¶ 10. Between 2009 and 2014, Bugianishvili was arrested three times for shoplifting and pleaded guilty to attempted petit larceny, petit larceny, and criminal possession of stolen property under New York law. Petition ¶ 23. For those convictions, he was collectively sentenced to 30 days of incarceration and one day of community service. Id . His last release from criminal incarceration was in 2009. Id.

On October 28, 2014, agents from Immigration and Customs Enforcement (ICE) arrested Bugianishvili and transferred him to the Hudson County Jail in Kearney, New Jersey. Id . ¶ 25. ICE charged Bugianishvili with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) of the Immigration and Nationality Act ("INA"). That statute declares removable "[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude ["CIMT"], not arising out of a single scheme of criminal misconduct." ICE alleged that Bugianishvili's shoplifting convictions were for CIMTs. Id.

Since his arrest eight months ago, ICE has detained Bugianishvili without bond at the Hudson County Jail pursuant to 8 U.S.C. § 1226(c). Id . ¶ 35. Section 1226(c) mandates detention without bond until the conclusion of removal proceedings of a noncitizen who "is deportable by reason of having committed any offense covered in section 1227 (a)(2)(A)(ii)" - the charge in Bugianishvili's case. Id . Notwithstanding ICE's claim that he is subject to mandatory detention, on April 30, 2015, Bugianishvili moved for a bond hearing in front of the Immigration Judge (IJ) presiding in his case at the Varick Street Immigration Court in New York City. Id . ¶ 37. The IJ denied his motion without considering the merits of his application, finding Bugianishvili subject to § 1226(c). Id . That same day, a little over six months after his arrest by ICE, his attorneys filed a habeas petition in the Southern District of New York.

b. Timeframe of removal proceedings

Bugianishvili's first hearing in his removal proceedings took place on November 5, 2014, a week after his arrest by ICE. Id . ¶ 27. He moved to terminate proceedings, arguing that ICE had incorrectly classified New York's petit larceny as a CIMT and that the government could therefore not meet its burden to establish his removability. Id.[1] The IJ gave him until December 1, 2014 to submit papers in support of his motion. Id.

Eight days after Bugianishvili's first hearing, the IJ granted another respondent's motion to terminate removal proceedings on the grounds that petit larceny under New York Penal Law § 155.25 categorically is not a CIMT. Id . ¶ 28; Ex. G, Redacted Decision, Nov. 13, 2014 at 4 (citing People v. Medina, 18 N.Y.3d 98 (NY 2011)). But a month later, the IJ reached the opposite conclusion in Bugianishvili's case. Id . Ex. H, Bugianishvili Decision, Dec. 17, 2014 at 4 (citing People v. Parker, 466 N.Y.S.2d 700, 702 (App. Div. 1983); People v. Hoyt, 461 N.Y.S.2d 569, 570 (App. Div. 1983)). Finding that petit larceny under § 155.25 categorically is a CIMT, the IJ sustained the charge of removability. Id. at 5. Bugianishvili intends to appeal as soon as procedurally possible. Petition, Ex. E, Attorney Decl. ¶ 6.

In the meantime, he is seeking relief from removal via a waiver of inadmissibility for his convictions and adjustment of status, discretionary benefits granted by an IJ and based in part on a qualifying relationship to a United States citizen. Petition ¶ 31. Grants of the waiver and adjustment of status would terminate Bugianishvili's removal proceedings in his favor and allow him to remain in the United States as an LPR. A few days after the IJ's decision sustaining the charge of removability, Bugianishvili's citizen daughter initiated the adjustment of status process by filing an I-130 Petition for Alien Relative with United States Citizenship and Immigration Services ("USCIS") on her father's behalf. Id . ¶ 32. The purpose of the form is to establish the bona fides of the familial relationship. Id . USCIS issued a Notice of Receipt of the I-130 on January 6, 2015. Petition, Ex. E, ¶ 13. Bugianishvili submitted his applications for a waiver of inadmissibility and adjustment of status to the IJ on March 24, 2015. Petition ¶ 34. But the IJ would not consider the applications until USCIS approved the I-130. Id . ¶ 32.

Because Bugianishvili would remain detained without bond pending the IJ's decision on relief, his attorneys contacted USCIS to request expedited adjudication of the I-130. Petition, Ex. E ¶ 22. In addition, they asked the three rotating ICE attorneys assigned to Bugianishvili's proceedings, on five separate occasions, to contact USCIS to facilitate expedited adjudication. Id . Ex. E ¶ 11. After the third request, on February 24, 2015, an ICE attorney stated that USCIS had already been contacted. Id . Ex. E ¶ 16. But after the fourth request, on March 24, 2015, a different ICE attorney stated that USCIS could not adjudicate the I-130 until it had physical custody of the singular government file related to Bugianishvili's case; as of that date, ICE had not yet transferred the file from its New York office to USCIS. Id . ¶ 18. The same ICE attorney rebuffed a fifth request on April 16, 2015 because she believed that the I-130 contained an error in Bugianishvili's identifying information, a claim his attorneys dispute. Id . ¶ 20-21. The issue became moot when, on April 24, 2015, USCIS rejected Bugianishvili's request to expedite the I-130 adjudication, stating that it does not view detention during removal proceedings as sufficient cause to do so. Petition, Ex. E ¶ 22.

On May 27, 2015, while Bugianishvili's habeas petition was pending before this Court, USCIS approved the I-130 petition six months after receiving it, enabling the IJ to consider the waiver and adjustment applications previously submitted in March 2015. ECF No. 15. The following week, the ...

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