United States District Court, W.D. New York
DECISION AND ORDER
CHARLES J. SIRAGUSA UNITED STATES DISTRICT JUDGE
Gamdur Narain (“Narain”) has been in custody
since January 12, 2018, when he was detained by United States
Immigration and Customs Enforcement (“ICE”). Now
before the Court is Narain's petition for habeas corpus
pursuant to 28 U.S.C. § 2241, alleging that his
prolonged detention by Respondent Jeffrey Searls
(“Searls”) is in violation of the Fifth and
Eighth Amendments to the United States Constitution. For the
reasons set forth below, Narain's petition is denied.
is a native and citizen of India, who illegally entered the
United States at an unknown time and location. Decl.
Off'r Hanson, ¶ 5, Aug. 9, 2019, ECF No. 8-2. In
January 1994, Narain was convicted of driving while
intoxicated. Ex. A, 84, Aug. 9, 2019, ECF No. 8-3. In 1996,
Narain applied for advance parole, departed the United States
to visit his mother in India, and was subsequently paroled
back into the United States on February 14, 1996 for a period
not to exceed August 18, 1996. Decl. Off'r Hanson at
February 2002, Narain submitted an I-485 application to
register as a permanent resident or adjust his status under
the Legal Immigration Family Equity Act. However, that
application was denied in September 2006. Id. at
¶ 6. His appeal to the Administrative Appeals Office was
dismissed in May 2008. Id.
20, 2011, Narain was arrested for selling tobacco to a minor.
Id. at ¶ 7. On July 28, 2011, he was placed in
removal proceedings with a Notice to Appear (NTA) that
charged him as removable from the United States pursuant to 8
U.S.C. § 1227(a)(7)(i)(I) (“an immigrant who, at
the time of application for admission, is not in possession
of a valid . . . entry document”). Id. at
¶ 8. That same day, Narain was released on a $5, 000
bond. Id. at ¶ 9.
merits hearing before an Immigration Judge (“IJ”)
on July 8, 2014, Narain, through counsel, conceded the charge
of removability. Id. at ¶ 10. On September 2,
2016, the IJ denied Narain's application for cancellation
of removal. Id. at ¶ 11; Ex. A, ECF No. 8-3 at
10. Narain appealed, but the Board of Immigration Appeals
(“BIA”) dismissed the application on September
29, 2017. Ex. A at 56. Narain did not file a petition for
review with the Second Circuit at that time. Id.
October 10, 2017, DHS made a demand on the 2011 bondholder to
produce Narain, but Narain did not appear. Ex. A at 76. A
notice of breach of bond was issued on November 21, 2017.
January 12, 2018, federal ICE officers arrested Narain
outside of his home in Little Falls, New York, and took him
into custody. Ex. A at 70. On January 22, 2018, ICE requested
travel documents for Narain from the Consulate of India, and
soon thereafter issued a Warrant of Removal. Id. at
64─65. On January 29, 2018, Narain filed a motion to
reopen his removal proceedings with the BIA, and filed a
second motion with additional evidence on February 13, both
of which argued ineffective assistance of counsel in prior
proceedings. Id. at 77. On April 6, 2018, the BIA
denied Narain's motion to reopen. Id. at 79.
2, 2018, Narain filed with the Second Circuit a petition for
review of the BIAs denial of his motion to reopen. Pet.,
Narain v. Barr, 2d Cir., No. 18-1336, May 2, 2018,
ECF No. 1. He filed a motion to stay his removal on May 25,
2018. Mot. Stay of Removal, No. 18-1336, ECF No. 13. The
government opposed Narain's motion to stay. Opp. to Mot.
Stay of Removal, No. 18-1336, June 1, 2018, ECF No. 23. To
date, the Second Circuit has not ordered a stay of removal.
has been detained since January 12, 2018. ICE provided him
with a “Notice to Alien of File Custody Review”
on February 28, 2018, which notified Narain of a review of
his custody status on April 4, 2018, and invited him to
submit documents he wanted the district director to consider
regarding his release. Ex. A, at 80. The result of that
review was a determination that Narain would continue to be
detained. Id. at 81. Narain's custody status was
reviewed again in 2019, and on May 2, 2019 he received
another “Decision to Continue Detention” letter.
Id. at 84─86.
his petition for review of his motion to reopen is under
consideration with the Second Circuit, Narain brings the
instant petition for habeus corpus pro se under 28 U.S.C.
§ 2241. “It is well established that the
submissions of a pro se litigant must be construed liberally
and interpreted to raise the strongest arguments that they
suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (citations and internal
quotation marks omitted).
U.S.C. § 2241(c)(3) provides that a district court may
grant a writ of habeas corpus within its jurisdiction to
prisoners who are “in custody in violation of the
Constitution or laws or treaties of the United States.”
In his petition, Narain asserts that his “detention
without a meaningful and constitutionally sufficient bond
hearing by a neutral decision maker without clear and
convincing proofs of him being danger [sic] to community and
flight risk violates the due process clause of the fifth
amendment and the eighth amendment's excessive bail
clause.” Pet., ¶ 3, May 14, 2019, ECF No. 1.
Therefore, Narain asks this Court to order his release
“with appropriate conditions of supervision” or,
in the alternative, order his “release unless [the