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Flores v. Tryon

United States District Court, W.D. New York

August 28, 2017

EDSON FLORES, Plaintiff,
v.
TODD L. TRYON, Facility Director, MICHAEL PHILLIPS, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement, Department of Homeland Security, MR. D. HENDERSON, Supervisory Deportation and Detention Officer, and Plaintiffs Ex-Deportation Officer at Buffalo Federal Detention Facility, MR. D. BALL, Plaintiffs Deportation Officer at Buffalo Federal Detention Facility, and SCOTT SCHRADER, Supervisory of Deportation and Detention Officer at Buffalo Federal Detention Facility, Defendants.

          DECISION AND ORDER

          ELIZABETH A. WOLFORD UNITED STATES DISTRICT JUDGE

         BACKGROUND

         On October 16, 2015, Plaintiff Edson Flores ("Plaintiff), an alien subject to various immigration proceedings before the Department of Homeland Security ("DHS"), [1]commenced this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), claiming that he has been unlawfully detained in violation of 8 C.F.R. § 287.7, as well as his Fourth, Fifth, Eighth, and Fourteenth Amendment rights. (Dkt. 1). Each of Plaintiff s claims is based upon the duration of his detention to the present day. (See Dkt. 1 at 5). Plaintiff alleges that he has complained of this allegedly illicit detention to defendants Todd L. Tryon, Michael Phillips, D. Henderson, and D. Ball (collectively, "Defendants")[2] on various occasions, but these complaints were either denied or simply ignored. (Dkt. 1 at 6-8).

         Presently pending before the Court is Defendants' motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 11). Defendants have also submitted evidence outside of the complaint, and have requested that this Court consider their application as a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. 15 at 2). Plaintiff has not filed a response to Defendants' motion. For the following reasons, Defendants' motion to dismiss is granted, and Plaintiffs complaint is dismissed without prejudice.

         PROCEDURAL HISTORY [3]

         Plaintiff, a native and citizen of Honduras, entered the United States without being admitted or inspected by an immigration officer. Flores v. Holder, 977 F.Supp.2d 243, 244 (W.D.N.Y. 2013). On two separate occasions-on or about December 22, 2008, and on or about January 29, 2009-Plaintiff was convicted of two counts of Sexual Abuse in the First Degree in New York State Supreme Court and was sentenced to 42 months of incarceration both times. See Id. Plaintiff was released into the custody of DHS on June 10, 2011. Id.

         On April 9, 2009, while still incarcerated, Plaintiff was served with a Notice to Appear, charging him with being subject to removal "as an alien present in the United States without being admitted or paroled" pursuant to § 212(a)(6)(A)(I) of the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1182(a)(6)(A)(I); see Flores, 977 F.Supp.2d at 244. On July 21, 2011, Plaintiff was served with additional charges "as an alien convicted of a crime of moral turpitude." Id.; see 8 U.S.C. § 1182(a)(2)(A)(iii). Plaintiff successfully sought several continuances in the disposition of his immigration matter before eventually conceding that he was subject to removal for entering the United States without inspection. Flores v. Holder, 779 F.3d 159, 162 (2d Cir. 2015). However, he sought an additional continuance to adjust his citizenship status, and also applied for asylum "based on his fear of gangs in Honduras." Id. at 162-63. The Immigration Judge ("IJ") denied Plaintiffs requests and addressed the merits of Plaintiff s removal action. Id. at 163. On January 6, 2012, the IJ issued an order of removal ("Removal Order"), requiring that Plaintiff be removed to Honduras. Fibres, 977 F.Supp.2d at 244. On May 22, 2012, the Board of Immigration Appeals ("BIA") dismissed Plaintiffs administrative appeal of the Removal Order, causing the Removal Order to become the final decision of DHS. Id. On June 15, 2012, Plaintiff filed a petition to the Second Circuit for review of the BIA's decision ("Review Petition"), along with a request for a stay of the Removal Order. Id. at 245.

         On February 6, 2013, Plaintiff filed a petition for a writ of habeas corpus on the ground that his continued detention exceeded the presumptively reasonable six-month period established for due process concerns in deportation proceedings. Id.; see Zadvydas v. Davis, 533 U.S. 678, 701 (2001). On February 28, 2013, the Second Circuit granted Plaintiffs motion to stay the Removal Order pending the resolution of the Review Petition. Flores, 911 F.Supp.2d at 245.

         On June 7, 2013, this Court denied Plaintiffs petition for a writ of habeas corpus, finding that Plaintiffs detention had been prolonged by his "own pursuit of judicial review of the final order of removal, " and that Plaintiff failed to "set[] forth [any] factual basis to substantiate [his] belief that there is no significant likelihood he can be removed to Honduras in the reasonably foreseeable future." Id. at 248-49.

         On October 1, 2013, Plaintiff filed a second petition for a writ of habeas corpus, alleging that his continued detention was unconstitutional, and that he had been unlawfully detained by the New York State Department of Corrections and Community Supervision ("DOCCS") "for four days before he was taken into DHS custody and that DHS failed to immediately take him into custody upon completion of his state sentence in accordance with the applicable law and regulations." Flores v. Tryon, No. 13-CV-987-JTC, 2014 WL 2002830, at *3 (W.D.N.Y. May 15, 2014). The Court denied Plaintiffs second petition-stating that "[n]othing has changed since [Plaintiff] filed his initial petition for habeas relief in June 2013"-on virtually the same grounds as the first petition. Id. at *5-7.

         On February 26, 2015, the Second Circuit issued a decision granting Plaintiffs Review Petition in part and denying it in part. Flores, 779 F.3d at 167. Specifically, the Second Circuit determined that the BIA, in applying the incorrect legal standard, abused its discretion in denying Plaintiffs motion for a continuance. Id. at 164-65. In addition, while the Second Circuit held that the BIA did not err in finding that Plaintiff was ineligible for asylum because his New York State criminal convictions constituted "particularly serious crimes, " id. at 167; see 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii), it also determined that the BIA incorrectly evaluated these convictions as "aggravated felonies." Flores, 779 F.3d at 165-66; see 8 U.S.C. § 1101(a)(43)(A); see also 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i). Moreover, the Second Circuit declined to find this error to be harmless "in light of the potential impact of an aggravated felony determination on the availability of future relief and the exercise of discretion." Flores, 779 F.3d at 167. The Second Circuit then vacated the BIA's decision and remanded the matter for further administrative proceedings. Id.

         On October 16, 2015, Plaintiff filed the instant action against Defendants seeking monetary compensation pursuant to Bivens for various alleged constitutional violations. Plaintiff asserts that DHS failed to comply with the temporal requirements of 8 C.F.R. § 287.7(d) when he was initially detained, and that his continued detention has violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments. (Dkt. 1 at 5). On December 14, 2016, Defendants moved to dismiss the complaint (Dkt. 11), and Plaintiff did not file a response. For the following reasons, Defendants' motion to dismiss is granted, and Plaintiffs complaint is dismissed without prejudice.

         DISCUSSION

         I. ...


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