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Enoh v. Sessions

United States District Court, W.D. New York

May 15, 2017

TERENCE ENOH, Petitioner,
JEFFERSON B. SESSIONS III, Attorney General of the United States; THOMAS P. BROPHY, Acting Director, Buffalo Field Office, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; DEPARTMENT OF HOMELAND SECURITY; and TODD TRYON, Facility Director, Buffalo Federal Detention Facility, Respondents.[1]




         The petitioner, Terence Enoh, is a civil immigration detainee currently held at the Buffalo Federal Detention Facility. On January 27, 2016, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Docket Item 1; see also Docket Item 4 (Amended Petition). On April 25, 2016, the respondents submitted their opposition. Docket Items 8 & 9. And on February 22, 2017, this Court ordered the respondents to provide Enoh with a bond hearing before an Immigration Judge (“IJ”) pursuant to Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015). Docket Item 23. This Court further ordered that (1) “[a]t that hearing, Enoh will be entitled to release on bail unless the government establishes by clear and convincing evidence that he poses a risk of flight or a risk of danger to the community”; (2) the government must file a status report “[w]ithin 3 days of holding a bond hearing or stipulating to a bond amount”; and (3) Enoh's petition for a writ of habeas corpus was otherwise denied as premature. Id. at 16-17.

         Because the respondents failed to comply with this Court's February 22, 2017 order requiring them to provide Enoh with a Lora bond hearing, the respondents are ordered to release Enoh under appropriate conditions of supervision.


         The factual and procedural background leading up to this Court's order of February 22, 2017, is generally set forth in that order. See Docket Item 23 at 2-4.

         On March 2, 2017, the government filed a status report, which stated that a bond hearing had been held on February 28, 2017, “pursuant to this Court's Order.” Docket Item 24 at ¶ 1. At the hearing, the IJ denied Enoh release on bond. Id. at ¶ 2. The hearing was not recorded. Docket Item 40 at ¶ 10. The government's status report omitted any reference to the standard of proof applied at the hearing, see Docket Item 24, and the IJ's order attached to the status report stated only that “DHS has shown that respondent is a substantial flight risk.” Docket Item 24-1.

         Perhaps predictably, Enoh followed that up with a half-dozen filings-including a Rule 60(b) motion for relief from judgment-in which he argues that the hearing he received on February 28, 2017, failed to comply with this Court's order. More specifically, Enoh claims that “the proper standard by ‘clear and convincing evidence' as required by the Second Circuit Court of Appeals decision in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) was not met, in violation of this court's order.” Docket Item 26 at 1-2.

         On March 15, 2017, this Court issued a text order directing the government to respond to Enoh's Rule 60(b) motion for relief from judgment. Docket Item 30. On March 28, 2017, this Court issued another text order, which granted the government an extension of time. Docket Item 32. Both text orders directed the government to address the standard of proof applied at the bond hearing. Docket Items 30 & 32.

         On April 14, 2017, the government submitted its response. Docket Items 40 & 41. On April 24, 2017, Enoh replied. Docket Item 45. And on May 5, 2017, the government moved for leave to file a sur-reply, Docket Item 50, which motion now is granted. This Court has considered the proposed sur-reply attached to the motion for leave, so a separate filing is unnecessary.

         Additionally, on April 24, 2017, the government filed a notice of appeal from this Court's order of February 22, 2017. Docket Item 46.


         The nature and procedural posture of this matter raise a number of jurisdictional issues that are worth briefly addressing.

         A. A District Court's Power to Enforce a Conditional Writ of Habeas Corpus

         This Court's order of February 22, 2017, which resulted from and was intended to resolve Enoh's petition for a writ of habeas corpus, was meant as a “conditional order.”[2] That is, it required the government to comply with certain conditions, including providing the petitioner with a Lora bond hearing and filing a status report, within certain time periods. Implicit in that order-although not explicitly stated-was that a failure to comply would result in the petitioner being afforded further habeas relief, up to and including release.[3]

         In fact, ordering a petitioner's release is “the very essence of habeas relief.” Phifer v. Warden, U.S. Penitentiary, Terre Haute, Ind., 53 F.3d 859, 864 (7th Cir. 1995). As the Supreme Court put it: “Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him.” Fay v. Noia, 372 U.S. 391, 430-31 (1963). Therefore, as a general matter, this Court retained the power to grant that relief if the government failed to comply with the February 22, 2017 order. See Phifer, 53 F.3d at 864 (“[I]f the state fails to meet the condition specified in the conditional order, the district court may order the petitioner's release.”); Judulang v. Chertoff, 562 F.Supp.2d 1119, 1126 (S.D. Cal. 2008) (“habeas courts are empowered to make an assessment concerning compliance with their mandates”) (citing Harvest v. Castro, 520 F.3d 1055, 1064 (9th Cir. 2008)); see also Gall v. Scroggy, 603 F.3d 346, 352 (6th Cir. 2010) (“a federal court always retains jurisdiction to enforce its lawful judgments, including habeas judgments”).

         B. Exhaustion

         Enoh appealed the IJ's decision at the February 28, 2017 hearing to the Board of Immigration Appeals (“BIA”). See Docket Item 40-1. The government's sur-reply therefore counsels this Court to await a decision from the BIA-i.e., to require that Enoh exhaust his administrative remedies. See Docket Item 50-1 at 3-4 (arguing that “[i]f the BIA affirms the immigration judge's bond determination, Enoh may then file a new habeas petition”). Along the same lines, the government's sur-reply argues that this Court should not reach “two new constitutional claims” that Enoh raised his in reply brief and that arise from the hearing that he received on February 28, 2017. Id. at 2. One of the new claims apparently is based on equal protection and the treatment of other detainees, while the other new claim is based on due process and the fact that there is no contemporaneous recording of the February 28, 2017 hearing. See id.

         This Court agrees that it would be inappropriate to consider any new constitutional claims that Enoh may be attempting to raise in his reply, even if they are based on the hearing of February 28, 2017.[4] In the somewhat analogous[5] situation where a federal court grants a conditional writ requiring a state to retry a petitioner, it is well established that the federal court does not maintain continuing jurisdiction over new claims that arise from the new trial. See, e.g., Klein v. Crawford, 2008 WL 942511, at *2 (D. Nev. Apr. 7, 2008) (citing Pitchess v. Davis, 421 U.S. 482, 490 (1975)). Stated another way, once the state complies with the conditional writ, new claims based on the new trial need to be raised in a new petition. But as previously noted, if the issue simply is whether the government complied with the conditional writ, the federal court still can make a determination concerning compliance with its mandate. See, e.g., Gardner v. Forister, 472 F.Supp. 1, 3 (W.D. N.C. 1979) (finding that blame lay with state for failing to retry petitioner within the time frame ordered in a conditional writ).

         Thus, the sole issue before this Court is whether the government complied with the February 22, 2017 order, which required the government to justify Enoh's continued detention by “clear and convincing” evidence. To the extent that Enoh challenges the government's compliance, it is not a new claim. For the same reason-i.e., because it is not a new claim-this Court need not wait for Enoh to exhaust his administrative remedies. Indeed, this Court's order required the government to provide Enoh with a Lora bond hearing “within 10 days”-not within the time that it will take the BIA to review the hearing. If this were otherwise, then this Court's order of February 22, 2017, and the similar orders of other courts, including in Lora itself, would have no teeth. And if exhaustion or a new petition were required simply to challenge compliance with an order requiring a Lora bond hearing, it would result in the very harm that Lora should prevent: “prolonged” detention without due process during lengthy and backlogged removal proceedings.

         C. The Government's Notice of Appeal

         The government maintains that it already has complied with this Court's order of February 22, 2017, by providing Enoh with a bond hearing on February 28, 2017. On April 24, 2017, however, the government nevertheless filed a notice of appeal from the February 22, 2017 order. See Docket Item 46. “As a general matter, ‘[t]he filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.'” United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)). Neither side has asserted that, by reason of the appeal, this Court lacks subject matter jurisdiction to issue a follow-up order regarding whether the government has complied with the conditions in the February 22, 2017 order. Nevertheless, it is worth raising the issue to avoid any intrusion into the Second Circuit's exclusive jurisdiction.

         First, this Court has jurisdiction to rule on Enoh's fully briefed Rule 60(b) motion, which he filed prior to the government's notice of appeal. Under Federal Rule of Appellate Procedure 4(a)(4)(A)(vi) and (B)(i), the government's notice of appeal would not become effective, and would not divest this Court of jurisdiction, until after this Court rules on any timely Rule 60(b) motions. See Miller v. Marriott Int'l., Inc., 300 F.3d 1061, 1064 (9th Cir. 2002).

         Beyond that, it generally is appropriate for a district court to follow up on a conditional writ of habeas corpus, regardless of whether an appeal is filed, because doing so essentially does nothing more than enforce a judgment.[6] Satterlee v. Wolfenbarger, 453 F.3d 362 (6th Cir. 2006)-a case in which the Sixth Circuit emphatically affirmed a district court's power to follow up on a state's failure to comply with a conditional writ even though a notice of appeal had been filed prior to the district court's follow-up decision[7]-illustrates the point:

The district court issued a conditional writ, allowing Satterlee to apply for immediate release unless the state made within sixty days a plea offer of six to twenty years. Because the state made no such offer in the allotted time, the district court granted an unconditional writ ordering Satterlee's immediate release. The state contends that the district court did not have the power to order this remedy.
What the state appears to have forgotten is that it did not comply with the conditional writ . . . . When the state fails to cure the error, i.e., when it fails to comply with the order's conditions, “[a] conditional grant of a writ of habeas ...

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