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Narain v. Searls

United States District Court, W.D. New York

January 8, 2020

GAMDUR NARAIN, Petitioner,




         Petitioner 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.


         Narain 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 ¶ 5.

         In 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.

         On July 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.

         At his 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.

         On 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. Id.

         On 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.

         On May 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.

         Narain 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.

         While 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).


         28 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 ...

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