Ceesay v. BrophyCeesay v. Brophy
DECISION & ORDER
This case raises the question of whether a noncitizen subject to a final order of removal and released on an order of supervision is entitled to due process when the government decides—in its discretion—to revoke that release. The Court answers that question simply and forcefully: Yes. Noncitizens, even those subject to a final removal order, have constitutional rights just like everyone else in the United States. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001). And while the United States Department1
of Homeland Security (“DHS“) might want to enforce this country‘s immigration laws efficiently, it cannot do that at the expense of fairness and due process. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-68 (1954); Torres-Jurado v. Biden, 2023 WL 7130898, at *4 (S.D.N.Y. Oct. 29, 2023). As the framers recognized centuries ago, fair process—not just the correct outcome—matters. After all, without due process, there is no way to tell whether the result is in fact correct.
The petitioner in this case, Sering Ceesay, has been in DHS custody for more than two months. See Docket Item 7 at ¶ 1. On March 26, 2025, Ceesay filed a “[v]erified [p]etition for [a w]rit of [h]abeas [c]orpus and [c]omplaint for [i]njunctive [r]elief” challenging his detention, Docket Item 1; a few days later, he amended that pleading, Docket Item 7 (the “amended petition“). More specifically, Ceesay asks this Court to declare that his detention at the Buffalo Federal Detention Facility (“BFDF“) in Batavia, New York, violates the Constitution, the Immigration and Nationality Act (“INA“) and its related regulations, the Administrative Procedure Act (“APA“), and the Rehabilitation Act. Docket Item 7 at 20-24.2 And based on that declaration, Ceesay requests his release via a writ of habeas corpus under
argument and denied the government‘s motion to dismiss.3 Docket Item 17. The Court also ordered the government to answer Ceesay‘s claims, and it scheduled a hearing on the amended petition. See Docket Items 17 and 18.
The government filed an answer and supporting memorandum of law, Docket Items 19 and 19-6, opposing the relief sought in the amended petition and reiterating its arguments that the amended petition should be dismissed for lack of subject matter jurisdiction and failure to state a claim, Docket Item 19-6 at 14-24. After Ceesay responded, Docket Item 25, the Court held an evidentiary hearing, see Docket Item 28. Only two witnesses, Dr. Joseph Shin of Weill Cornell Medicine and Ceesay himself, testified. See id. Immediately after the hearing, the Court heard oral argument. See id. The Court then allowed both sides to submit supplemental briefing on their respective positions, see id., and the parties filed those briefs, Docket Items 29 and 32.
For the reasons that follow, the Court grants Ceesay‘s amended petition in part and orders his release from custody.
BACKGROUND4
Ceesay is a 63-year-old native of the Gambia who has lived in the United States—specifically, in the Bronx—for more than three decades. Docket Item 7 at ¶ 2.
He “never attended school” and has “limited reading and writing ability.” Id.; see also id. at ¶ 2 (stating that Ceesay “cannot read or write“).
Ceesay “suffers from a myriad of serious and chronic medical issues,” id., and he included with his petition a letter from a medical provider, Dr. Shin, see id. at ¶ 2; see also Docket Item 7-1 (letter). According to Dr. Shin, Ceesay has “a history of hypertension, hyperlipidemia, pre-diabetes, [and] coronary artery disease.” Docket Item 7 at ¶ 2 (quoting Docket Item 7-1 at 1). He has suffered two “heart attacks/myocardial infarctions” that “requir[ed] urgent stenting of his narrowed coronary artery . . . on two occasions“—one in 2016 and one in 2024. Id. (quoting Docket Item 7-1 at 1). Ceesay “also has chronic symptomatic peripheral artery disease and claudication . . ., chronic heart failure, . . . and MRI brain evidence of chronic cerebrovascular disease.” Id. (quoting Docket Item 7-1 at 1). And he recently was hospitalized in March 2025 “for a transient ischemic attack,” which is “a temporary stroke-like syndrome due to atherosclerotic plaque in the blood vessels of the brain.” Id. (quoting Docket Item 7-1 at 1).
that if he did not depart by then, the order would convert to a deportation order.6 See Docket Item 7-2 at 1; Docket Item 7 at ¶ 27 (stating that “voluntary departure order automatically converted to a final order of removal” when Ceesay did not depart); see also Docket Item 19 at ¶¶ 5-6 (same). But Ceesay apparently never left.
Sometime in 2010, Immigration and Customs Enforcement (“ICE“) “came to . . . Ceesay‘s home in the Bronx . . . and left a phone number [for] him to call.” Docket Item 7 at ¶ 28. When Ceesay called that number, he was instructed to meet ICE at a police precinct at a specific time, which he then did. Id. Upon Ceesay‘s arrival at the precinct, ICE detained him without prior notice that it intended to do so, and Ceesay spent the next three months in a New Jersey jail. Id. at ¶ 29.
At the end of that roughly three-month period, Ceesay was released on an order of supervision. Id. More specifically, according to documents provided by the government with its motion to dismiss, on May 3, 2011, ICE issued Ceesay a “Release Notification,”7 which began by informing Ceesay that ICE had “review[ed his] case” and “concluded that [he] may be released pending [his] removal.” See Docket Item 9-2 at 7. But the notification explicitly advised Ceesay that this release “d[id] not affect [his]
removal order,” which remained in effect. See id. According to the notification, Ceesay‘s “release w[ould] be subject to certain written conditions that w[ould] be provided to [him] shortly, and by which [he] must abide.” Id. Particularly relevant here, the notification stated: “Once a travel document is obtained, you will be required to surrender to ICE for removal. You will, at that time, be given the opportunity to prepare for an orderly departure.” Id.
Ceesay also was told that if he violated a condition of release or any law, he could be “taken back into custody” and that he was required to “keep ICE advised of [his] address at all times.” Id. Under the conditions, Ceesay was to regularly check in with ICE in Manhattan, something that he did for the next approximately fourteen years. Docket Item 7 at ¶ 30; see id. at ¶ 4.
On February 19, 2025, Ceesay appeared for one of his “regularly scheduled check-in[s]
Ceesay did not obtain counsel until after he was taken to BFDF, when he met lawyers from Robert F. Kennedy Human Rights—the organization that currently
represents him—“during a pre-scheduled legal presentation” on March 4, 2025. Id. at ¶ 37. The lawyers noticed that Ceesay appeared to be in significant “medical distress” and asked that he be taken to the BFDF medical unit, which then sent him to an “outside . . . medical provider.” Id. at ¶ 38. Ceesay had “suffered ‘a transient ischemic attack‘” that led him to be hospitalized overnight. Id. at ¶¶ 2, 38; Docket Item 7-1 at 1. He nonetheless was sent back to BFDF, where he remains. Docket Item 7 at ¶¶ 1, 4.
The government contends—and Ceesay has not disputed—that it executed a “Notice of Revocation of Release” on February 19, 2025.8 Docket Item 19 at ¶ 26; Docket Item 9-2 at 11 (copy of notice attached to motion to dismiss). The notice stated that the “decision [to revoke Ceesay‘s release was] made based on a review of [his] file and/or [his] personal interview, in light of the fact that ICE was“—that is, had been—“able to obtain a valid travel document to effect [his] repatriation.” Docket Item 9-2 at 11. The notice further informed Ceesay:
[P]ursuant to
8 [C.F.R §] 241.4 , you are to remain in ICE custody at this time. You will promptly be afforded an informal interview at which you will be given an opportunity to respond to the reasons for the revocation. If you are not released after the informal interview, you will receive notification of
a new review, which will occur within approximately three months of the date of this notice.
Id. It was digitally signed by Darius L. Robinson, the Assistant Field Office Director for ICE‘s New York Field Office, on February 19, 2025, at 7:54 p.m. Id.; see also Docket Item 19-2 at 11; Docket Item 19-4 at 1.
In its motion to dismiss, the government conceded that the notice revoking Ceesay‘s release included at least one inaccuracy: the statement that ICE “was able to obtain a valid travel document” for Ceesay. Docket Item 9-3 at 5 & n.4. “It appears,” the government said, “that the word ‘was’ should have been ‘is‘“; in fact, when the motion to dismiss was filed, ICE still did not have a travel document for Ceesay‘s removal, although it “anticipate[d] being able to obtain one forthwith.” Id. at 5 n.4.
As noted above, after the Court denied the government‘s motion to dismiss, see Docket Item 17, it held a hearing on Ceesay‘s petition, see Docket Items 27 and 28. At that hearing, Dr. Shin provided extensive testimony on Ceesay‘s health conditions and how those conditions impact his life. Docket Item 27 at 12-23.
Ceesay also testified. See id. at 23. In addition to describing his medical conditions, he provided an account of February 19, 2025, the day on which he was arrested and re-detained by ICE. Id. at 23-28. According to Ceesay, he left his house around five that morning to go to the ICE office, where he waited in line for “[a] long time” before finally going “in to report.” Id. at 25-26. The ICE officer—whom Ceesay did
not identify—“t[ook his] paper and ask[ed] if [he had a] passport.” Id. at 26. Ceesay, who testified that he had not been told to bring a passport, said that he had no passport and tried to explain the specifics of his situation, including the fact that he had come to the country 35 years ago without a valid passport. Id. at 26-27. But the ICE officer “[s]tarted yelling” at him, asking whether Ceesay “want[ed] to go home in handcuff[s].” Id. at 26. Two ICE officers then said that they were going to “find that travel document,” apparently referring to the document that would be used to deport Ceesay, and “took [Ceesay] to [another] floor” to interrogate him about how he had come to the United States and about his lack of a passport. See id. at 27. They accused him of being a “liar,” which he denied, and then “start[ed] asking [him] question[s].” Id. Ceesay told them that he “d[oes]n‘t answer questions.” Id. Indeed, he informed them that he is unable to “read,” “write,” or “sign” documents. Id.
Ceesay testified that the ICE officers then took him to another floor to be fingerprinted. Id. at 28. Later, after someone—Ceesay does not say who—“check[ed his] blood pressure,” which “was high,” ICE officers took him to the hospital, where he was given “some pills.” Id. ICE officers then took him to the Orange County Jail, where he stayed “one night.” Id. The next morning, he was taken to the Nassau County Jail, again for one night; a doctor at that jail “checked [him],” and he then was returned to the custody of ICE officers. Id. at 29. After a brief stop at the ICE office where he had first been detained, Ceesay was taken to BFDF. Id.
Neither side called any of the ICE officers involved in Ceesay‘s arrest or re-detention. See id. at 31-32. Instead, both sides submitted a joint stipulation stating that before February 19, 2025, no official “provide[d] advance notice to [Ceesay] . . . that he
would be detained” at his scheduled check-in “other than [that] set forth in the Release Notification dated May 3, 2011.”9 Docket Item 26 at ¶ 1. Both sides also stipulated that ICE did not “instruct . . . Ceesay . . . to bring a passport [to] his February 19” check-in, nor did they provide him with “a hearing upon arrest.” Id. at ¶¶ 2-3.
Ceesay‘s amended petition seeks several items of relief: He asks the Court to (1) “[e]njoin [his] removal or transfer outside
LEGAL PRINCIPLES
I. MOTION TO DISMISS
Under
petition according to the same principles as a motion to dismiss a civil complaint under
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings.” Id. (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)); see N-N v. Mayorkas, 540 F. Supp. 3d 240, 251 (E.D.N.Y. 2021) (“[C]ourts evaluating Rule 12(b)(1) motions ‘may resolve the disputed jurisdictional fact issues by referring to evidence outside . . . the pleadings, such as affidavits.‘” (quoting Zappia v. Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000))). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova, 201 F.3d at 113.
A complaint is properly dismissed for failure to state a claim under Rule 12(b)(6) if it does not include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
II. SECTION 2241 PETITION
DISCUSSION
As noted above, both in its motion to dismiss—which the Court denied from the bench on April 10, 2025—and in its answer to the amended petition, the government says that this Court must dismiss the amended petition for lack of subject matter jurisdiction. See Docket Item 9-3 at 7-9, 12-14; Docket Item 19-6 at 14-16. It also argues that the amended petition fails both to state a claim for relief and, necessarily, to establish Ceesay‘s entitlement to that relief. Docket Item 9-3 at 9-12; Docket Item 19-6
at 16-24. Mindful of its obligation to ensure that it has jurisdiction in any case, the Court begins by addressing the jurisdictional questions before turning to whether Ceesay is entitled to relief.
I. SUBJECT MATTER JURISDICTION
In its motion to dismiss, the government argues that
For the reasons that follow, the Court rejects each of the government‘s jurisdictional arguments.
A. Sections 1252(b)(9) and (g)
Section 1252(b)(9) provides that “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove a[ noncitizen] from the United
States under this subchapter shall be available only in judicial review of a final order.”
[e]xcept as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any [noncitizen] arising from the decision or action by [ICE] to commence proceedings, adjudicate cases, or execute removal orders
against any [noncitizen] under this chapter.
Section 1252 effectively strips district courts of jurisdiction to review a final order of deportation. See De Ping Wang v. Dep‘t of Homeland Sec., 484 F.3d 615, 615-16 (2d Cir. 2007). Indeed, the Second Circuit has held that section 1252 bars a district court from reviewing either a direct or an indirect challenge to an order of removal. See Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011) (finding that section 1252 stripped the district court of jurisdiction to hear an action seeking adjudication of an I-212 application for permission to reapply for admission because it was an indirect challenge to an order of removal). Instead, a noncitizen may challenge a final order of removal only by filing a timely “petition for review” in the “appropriate court of appeals.” See
In its motion to dismiss, the government argues that under section 1252, this Court can neither stay nor enjoin Ceesay‘s removal. Docket Item 9-3 at 6-7. This Court agrees that it has no jurisdiction to grant such relief. But in his response to the government‘s motion, Ceesay makes clear that his amended petition seeks no such relief, arguing that the government mischaracterizes his claims. Docket Item 12 at 12.
By letter reply, the government counters that it is Ceesay—not the government—who is mischaracterizing the amended petition. Docket Item 13 at 1-2.
The Court agrees with the government that Ceesay‘s amended petition is not a model of clarity on this point: In its prayer for relief, the amended petition asks this Court to “[e]njoin [p]etitioner‘s removal or transfer . . . pending . . . adjudication of this petition.” Docket Item 7 at 23. But Ceesay now has clarified that he “does not seek an [o]rder from this Court that stays his removal from the United States” and merely “requests that his transfer outside of the Court‘s jurisdiction and the United States be enjoined pending the adjudication of th[e amended p]etition.” Docket Item 12 at 12. So the Court does not construe the amended petition as asking this Court to enjoin Ceesay‘s removal—relief that, again, the Court has no power to grant.12 See
But the government does not simply argue that section 1252 bars any claims that would lead to enjoining Ceesay‘s order of removal; rather, it contends that section 1252 strips this Court of jurisdiction to entertain any of Ceesay‘s claims. Docket Item 9-3 at 7-9. Indeed, it says, “[t]his case arises out of the execution of [Ceesay‘s] removal order, and therefore this Court lacks jurisdiction to hear this case.” Id. at 7. According to the government, Ceesay has admitted that the purpose of “his ‘ongoing detention . . . is to remove him from the United States.‘” Id. at 9 (quoting Docket Item 7 at ¶ 13). Thus, the government says, this case stems from ICE‘s attempt to effect Ceesay‘s removal, and section 1252(g) therefore bars the Court from entertaining it.
This argument proves far too much. After all, detention under or in connection with a final order of removal always is related to the execution of an immigration order, but courts routinely hear habeas petitions filed by individuals subject to a final order of removal. Indeed,
More recently, in Jennings v. Rodriguez, the Supreme Court rejected a reading of section 1252(b)(9) that would have limited detained noncitizens to challenging their detentions only through petitions for review of the underlying removal orders in the court of appeals. 583 U.S. 281, 292-95 (2018) (plurality opinion). As Justice Alito explained, writing for a plurality of the Court, while “it [could] be argued that” such a challenge arose from the government‘s decision to remove the noncitizen “in the sense that if those actions had never been taken, the [noncitizens] would not be in custody at all,” such an “expansive interpretation of [section] 1252(b)(9) would lead to staggering results.” Id. at 293. Indeed, “[i]nterpreting ‘arising from’ in this extreme way would also make claims of prolonged detention effectively unreviewable.” Id.
Moreover, and as the Second Circuit has held, “a suit brought against immigration authorities is not per se a challenge to a removal order; whether the district court has jurisdiction . . . turn[s] on the substance of the relief that a [litigant] is seeking.” Delgado, 643 F.3d at 55 (italics omitted). Accordingly, district courts in this circuit have distinguished between challenges to ICE‘s discretion to execute a removal order, which are barred, and challenges to the manner in which ICE executes the removal order, which are not. See Torres-Jurado, 2023 WL 7130898, at *2 (collecting cases); Ahmed v. Freden, 744 F. Supp. 3d 259, 264 (W.D.N.Y. 2024)
(noting that while “[d]istrict courts do not have jurisdiction over challenges to the legality of final orders of deportation, exclusion, and removal,” they retain “jurisdiction to hear immigration-related detention cases“).
In Torres-Jurado, for instance, the court held that the petitioner‘s claims that ICE violated the Fifth Amendment‘s guarantee of due process by “revok[ing an] ICE Stay [of petitioner‘s removal] without providing notice or an opportunity to be heard” were not barred by section 1252(g).13 2023 WL 7130898, at *3. As the court explained, the petition did not challenge “the wisdom of ICE‘s decision to remove him“—which would be barred by section 1252(g)—“but [rather] challenge[d] ICE‘s legal authority to revoke the ICE Stay without process.” Id. (internal quotation marks omitted). And that latter challenge was not barred by section 1252(g). See id.; Michalski v. Decker, 279 F. Supp. 3d 487, 495 (S.D.N.Y. 2018) (finding that because immigration detainee‘s “petition only challenge[d] the extent of the Attorney General‘s authority to detain him as opposed to the Attorney General‘s exercise of discretion [to commence immigration proceedings, adjudicate cases, or execute removal orders], [section] 1252(g) [wa]s inapplicable“); see also Gordon v. Herron, 2009 WL 909640, at *3 (W.D.N.Y. Mar. 31, 2009) (noting that district court could “consider only issues surrounding [petitioner‘s] continued detention and should not address his derivative citizenship contentions” (emphasis omitted)).
The cases cited by the government, see Docket Item 9-3 at 8-9, do not change the above analysis. As an initial matter, the
In Singh, the petitioner claimed that his detention was unlawful because the United States Citizenship and Immigration Services (“USCIS“) had illegally terminated his grant of asylum, resulting in the final order of removal under which he was detained. 500 F. App‘x at 52. Because “the true error of law identified in [the] petition [wa]s [USCIS]‘s legal conclusion that [the petitioner wa]s subject to a final order of removal,” the court held, “[the] petition indirectly challenge[d] the validity of [a] final order of removal and the [government]‘s ability to execute that order.” Id. And so the district court had no jurisdiction over the petitioner‘s habeas claim. Id. at 54.
In contrast, Ceesay does not ask this Court to rule—even indirectly—on the lawfulness of his removal order. In fact, the parties agree that Ceesay is subject to a valid final order of removal. See Docket Item 25 at 5 (petitioner‘s statement that “[i]t is undisputed that . . . Ceesay has a final order of removal[] dated November 22, 1997“). Instead, Ceesay argues that his detention is unlawful because the government improperly revoked the order of supervision under which he had been released for more than a decade. See generally Docket Item 7. So unlike the petitioner in Singh, Ceesay
does not challenge ICE‘s ability to remove him but only the legality of his current detention, and section 1252 therefore does not bar this Court from exercising jurisdiction. See Torres-Jurado, 2023 WL 7130898, at *2; Michalski, 279 F. Supp. 3d at 495.
Tazu also is distinguishable. There, the Third Circuit explicitly “h[e]ld [only] that a brief door-to-plane detention is integral to the act of ‘execut[ing] [a] removal order[ ]‘” and thus that under section 1252(g), such an abbreviated period of detention could not be challenged by way of a habeas action. Tazu, 975 F.3d at 298 (emphasis added) (alterations in original) (quoting
B. Section 1252(a)(2)(B)(ii)
In its memorandum of law in support of its answer, the government argues that yet another provision of section 1252 bars at least some of the relief that Ceesay seeks. Docket Item 19-6 at 20. More specifically, it argues that Ceesay‘s “APA challenge to ICE‘s . . . decision to revoke his supervised release fails . . . because the Court is deprived of subject[ ]matter jurisdiction by virtue of
The government is correct that the regulations at issue here allow specified ICE officials to revoke supervised release “in the exercise of discretion,” see
particularly because the Supreme Court precedent in Zadvydas and Jennings points it in a different direction. Indeed, while Westley attempts to distinguish those cases, the Court finds the distinction on which the Westley court relied somewhat troubling: Surely a court‘s jurisdiction over challenges to detention cannot turn on whether or not ICE officials intend—or say they intend—a noncitizen‘s detention to be brief.
Second Circuit has held, even when a “statute strips jurisdiction over a substantive discretionary decision, [it] does not strip jurisdiction over procedural challenges.” Mantena v. Johnson, 809 F.3d 721, 728 (2d Cir. 2015). In other words, while courts cannot question the discretion that is exercised, they can address the process used to exercise that discretion.
In Mantena, for example, the plaintiff challenged “USCIS‘s revocation of [a previously] approved [visa] petition” as well as its “subsequent denial of her [visa] application.” Id. at 727. More specifically, she argued that USCIS had failed to provide her with notice of its adverse decisions, “violat[ing] the agency‘s own regulations [as well as her] constitutional due process rights.” Id. After the district court dismissed her claims for lack of subject matter jurisdiction under
In his opinion for the court, Judge Guido Calabresi noted that while the Second Circuit previously had suggested that the decision on visa petitions was indeed committed to USCIS‘s discretion, “the actual issue [presented by Mantena‘s complaint was] a different one.” Id. “Regardless of whether the substantive revocation decision is shielded from judicial review,” Judge Calabresi explained,” no party has
Indeed, the Mantena court held that even if it were ultimately determined that procedural requirements did not bind USCIS in this instance, the district court still would have erred in dismissing the plaintiff‘s procedural claims for lack of subject matter jurisdiction. Instead, “[t]he proper course, under such circumstances, would be to find subject matter jurisdiction and then [, if appropriate, to] find that the plaintiff had no right to the asserted procedural safeguards, and, therefore, had provided no claim upon which relief could be granted.” Id. at 729-30.
Here, Ceesay does not challenge ICE‘s substantive decision to revoke his order of supervised release; instead, he challenges the manner in which ICE effected that revocation, asserting that it was done without adequate process and in violation of ICE‘s own regulations. See Docket Item 7 at ¶¶ 61-66; Docket Item 25 at 13-16.
In sum, while
Finally, the government argues that this action is nonjusticiable. Docket Item 9-3 at 12-14; Docket Item 19-6 at 15-16. More specifically, it says that because Ceesay challenges only the process under which he was detained—not ICE‘s authority to detain him—nothing would stop ICE from immediately detaining him again if this Court ordered his release. Docket Item 9-3 at 12-14; Docket Item 19-6 at 15-16 (arguing that “even if [the Court ordered Ceesay‘s] release[] from custody right now, ICE could merely re-detain him, follow whatever process this Court deems warranted, and remove himimmediately“; if that were to happen, “his alleged prior harm of being improperly taken into custody would not be remedied at all“).
The government‘s argument misses the point. Ceesay challenges the process under which he was detained, regardless of ICE‘s substantive authority to do so; that is, he challenges not only the fact that he is currently held but the fact that he is being held without the proper procedures. See Docket Item 7; see also Torres-Jurado, 2023 WL 7130898, at *2 (noting that notwithstanding ICE‘s discretion to execute a removal order, ICE “cannot remove” a noncitizen—even one subject to a final removal order—“in any manner [it] please[s]“). And because Ceesay‘s release would indeed ameliorate any harm that results from his detention without due process, release is an effective remedy even if the government immediately re-detains him in a way that follows the rules.
The only cases cited by the government in support of its justiciability argument—O‘Shea v. Littleton, 414 U.S. 488 (1974), and Yearwood v. Barr, 391 F. Supp. 3d 255 (S.D.N.Y. 2019)—are inapposite. See Docket Item 9-3 at 12-14. In O‘Shea, the plaintiffs brought civil rights claims against county officials, including a magistrate and associate judge, based on a pattern of allegedly “discriminatory enforcement and administration of criminal justice” in a particular Illinois county. 414 U.S. at 491. The Supreme Court dismissed the claims against the judges for lack of standing because none of the plaintiffs were currently “serving an allegedly illegal sentence or were on trial or awaiting trial,” even if they had been previously. Id. at 493, 496. Thus, the Court held, they had no standing to seek injunctive relief against the judges because “[p]ast exposure to illegal conduct does not in itself show a present case or controversyregarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” Id. at 495-96.
The government relies on this language to argue that because Ceesay challenges only past actions, his claims “sound in tort, not habeas or administrative law.” Docket Item 19-6 at 6, 15-16. But this argument ignores the fact that unlike the O‘Shea plaintiffs, Ceesay claims that he is suffering a “continuing, present adverse effect[]“: namely, his ongoing detention without the process he says is due to him. See Docket Item 7.
Yearwood likewise does not support the government‘s position. There, the noncitizen petitioner already had been deported, and he did not contest the fact that the government would have deported him regardless of the procedures provided. 391 F. Supp. 3d at 260-62. The court thus found that the petitioner could not bring a habeas petition seeking his return to the United States because he already had been released—albeit in another country. Id. (stating that “[i]t [wa]s possible that the
Furthermore, the government‘s suggestion—that a complaint about failing to follow proper process is nonjusticiable so long as the government says that the result would have been the same had it followed the required procedure—is downrightfrightening. Procedure is not mere puffery, a gesture that is irrelevant so long as the result is correct. The Constitution safeguards not just substantive rights under the law but due process as well.
Indeed, courts have repeatedly recognized the importance of process, particularly where, as here, a person‘s freedom stands in the balance. See Accardi, 347 U.S at 268 (holding that if petitioner showed regulations had been violated, he was entitled to a new hearing because while he “may still fail to convince the Board or the Attorney General, in the exercise of their discretion, that he is entitled to suspension [of a removal order,] at least he will have been afforded that due process required by the regulations in such proceedings“); United States v. Tateo, 214 F. Supp. 560, 567 (S.D.N.Y. 1963) (“No matter how heinous th[e] offense charged, how overwhelming the proof of guilt may appear, or how hopeless the defense, a defendant‘s right to continue with his trial may not be violated.“); see also United States v. Haymond, 588 U.S. 634, 637 (2019) (“Only a jury, acting on proof beyond a reasonable doubt, may take a person‘s liberty. That promise stands as one of the Constitution‘s most vital protections against arbitrary government.“). In the United States, even a scoundrel has the right to remain free until due process has proven him a scoundrel.
The Supreme Court‘s seminal decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), makes that very point. The Court began by finding that the federal government indeed had “the authority to detain citizens who qualify as ‘enemy combatants.‘” Id. at 516-24. It nonetheless held that even when detention was “legally authorized, there remain[ed] the question of what process is constitutionally due to a citizen who disputeshis enemy-combatant status,” ultimately holding that some process was due. Id. at 524, 533. In other words, the mere fact that the government has the authority to detain someone does not mean that it may do so in any manner it chooses, without affording due process. See, e.g., Torres-Jurado, 2023 WL 7130898, at *2.
Of course,
Moreover, at least in this circuit, “when a regulation is promulgated to protect a fundamental right derived from the Constitution or a federal statute, and [thegovernment] fails to adhere to it, the challenged deportation proceeding is invalid and a remand to the agency is required“—even in the absence of a showing of prejudice. See Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir. 1993). And that may be so “even when the regulation requires more than would the specific provision of the Constitution or statute that is the source of the right.” Id. So to the extent that the Court agrees with Ceesay that his constitutional rights have been violated, it is not enough for the government to say that even if he was detained improperly, he will be re-detained anyway. It is not enough for the government to rhetorically ask: why bother?
In sum, requiring an arm of the government to redo a procedurally deficient decision as the Constitution and the law require is not a meaningless exercise. It cannot be meaningless if this country is to be governed by the rule of law. Accordingly, this case is indeed justiciable, and the Court proceeds to address whether Ceesay is owed the relief he requests.
II. LAWFULNESS OF CEESAY‘S DETENTION
Ceesay says that ICE officials detained him in violation of his due process rights and ICE‘s own regulations.20 See Docket Item 7 at ¶¶ 70-77. More specifically,Ceesay says that the government violated his rights in three ways. First, Ceesay says that ICE violated his rights because the official who revoked his release did not have the authority to do so under ICE regulations. See id. at ¶¶ 33-36, 61, 63. Second, Ceesay says that ICE failed to provide him with “an initial informal interview” so that he could “respond to the reasons for revocation stated in the notification.” Id. at ¶¶ 61, 63; see
Both sides have stipulated to the key facts underlying Ceesay‘s re-detention.21 For example, both sides now agree that the government did not provide Ceesay with either “advanced notice of arrest” or a “hearing upon arrest.” Docket Item 26 at ¶¶ 3-4. Similarly, both sides do not seem to dispute that Robinson, the Assistant Field OfficeDirector for ICE‘s New York Field Office, signed the order revoking Ceesay‘s release. See Docket Item 9-2 at 11; Docket Item 19-6 at 9; Docket Item 25 at 13.
The core of the parties’ dispute is whether Ceesay was legally entitled to any of the process at issue and thus whether his current detention without that process violates the law. With that in mind, the Court addresses each of the three procedural deprivations that Ceesay raises.
A. Authority to Revoke Release
Ceesay alleges that Robinson, the official who signed his release revocation, lacked the authority to do so. Before addressing that claim, the Court provides some context by looking briefly at the statutory and regulatory framework governing the revocation of release.
Both sides agree that after Ceesay had been detained for about three months without the government‘s obtaining the required documents to facilitate his deportation, he was released on an order of supervision under
Subsection 241.4(l)(2), entitled “Determination by the Service,” provides that
[t]he Executive Associate Commissioner shall have authority, in the exercise of discretion, to revoke release and return to Service custody a[ noncitizen] previously approved for release under the procedures in this section. A district director may also revoke release of an alien when, in thedistrict director‘s opinion, revocation is in the public interest and circumstances do not reasonably permit referral of the case to the Executive Associate Commissioner.
[r]elease may be revoked in the exercise of discretion when, in the opinion of the revoking official:
(i) The purposes of release have been served;
(ii) The [noncitizen] violates any condition of release;
(iii) It is appropriate to enforce a removal order or to commence removal proceedings against a[ noncitizen]; or
(iv) The conduct of the [noncitizen], or any other circumstance, indicates that release would no longer be appropriate.
On its face, the regulation seems straightforward enough: According to its terms, only the “Executive Associate Commissioner” or the “district director“—if the latter finds that “revocation is in the public interest and circumstances do not reasonably permit referral of the case to the Executive Association Commissioner“—may revoke a noncitizen‘s release. See
For decades, immigration proceedings were within the purview of INS. See Zhang v. Holder, 617 F.3d 650, 655 n.3 (2d Cir. 2010). But in 2002, Congress passed the Homeland Security Act, “transferr[ing] authority to commence removal proceedings from [INS] to . . . DHS,” which, of course, now includes ICE. See Ali v. Mukasey, 524 F.3d 145, 150 (2d Cir. 2008); Lopez v. Sessions, 2018 WL 2932726, at *9 (S.D.N.Y. June 12, 2018). And when the Homeland Security Act transfers functions to DHS,“statutory references to the authority that was formerly responsible for those functions will be deemed to refer to DHS.” Ali, 524 F.3d at 150 (citing
ICE regulations include a similar provision. See
Commissioner means the Commissioner of the Immigration and Naturalization Service prior to March 1, 2003. Unless otherwise specified, references after that date mean the Director of U.S. Citizenship and Immigration Services, the Commissioner of U.S. Customs and Border Protection, and the Director of U.S. Immigration and Customs Enforcement, as appropriate in the context in which the term appears.
As noted above,
The regulation also provides that
[o]n or after March 1, 2003, pursuant to delegation from the Secretary of Homeland Security or any successive re-delegation, the terms mean, to the extent that authority has been delegated to such official: asylum office director; director, field operations; district director for interior enforcement; district director for services; field office director; service center director; or special agent in charge. The terms also mean such
other official . . . who is delegated the function or authority above for a particular geographic district, region, or area.
Both sides agree that Robinson is the Assistant Field Office Director of ICE‘s New York Field Office—not the Executive Associate Director of ICE. See Docket Item 25 at 12-13 & n.4; Docket Item 29 at 6. The government nonetheless contends that Robinson had the authority to revoke Ceesay‘s release because “[b]y order dated July 25, 2019, Executive Associate Director Nathalie R. Asher delegated her authority under
Ceesay says that for two reasons, the delegation order provided by the government does not give Robinson the authority to revoke Ceesay‘s release. First, Ceesay notes that “[i]t is unclear whether [the delegation order] is a public document.” Docket Item 15 at 1. In fact, the Court has been unable to find a public version of the order, nor has the government suggested that the delegation order is a public document. See Docket Item 29 at 6-7.
What is more, and more important, Ceesay notes that the delegation order does not delegate the authority to revoke orders of release. Docket Item 15 at 1; Docket Item 25 at 13 n.4. And he is correct: As relevant here, the order specifically delegates to assistant field officer directors the “[a]uthority under . . .
The government says that Ceesay‘s argument ignores the fact “that when only a specific authority is delegated, that specific authority is listed by subpart” and that the order clearly delegates all of the Executive Associate Director‘s powers under “part 241.” Docket Item 29 at 6. While the Court agrees with the government that the order clearly refers to part 241, that does not change the fact that it explicitly delegates only specific powers under that part—namely, powers “relating to warrants of removal, reinstatement of removal, self-removal, and release of [noncitizens] from detention.” See Docket Item 14 at 2.
The government also argues that “[b]ecause [assistant field office directors] had the authority to arrest, apprehend, and detain [noncitizens] at the outset, and the power to release them (which implicitly would include the authority to revoke release, an authority which is contained within the very same subpart as the authority to release,
On its face, the delegation order submitted by the government refers only to a limited set of powers under part 241 that do not include the power to revoke release. And the language of
In sum, there is no delegation order clearly giving Robinson the authority to revoke release, and even if there were, there is no caselaw supporting the validity of such a delegation order. The government has not argued that Robinson had that authority because an assistant field office director is the equivalent of a district director, see Docket Item 29 at 6-7, and even if it had, there is no evidence that Robinson made the findings that a district director is required to make before revoking Ceesay‘s release. As a result, this Court cannot conclude that Robinson had the authority to revoke release, finds that Ceesay‘s release was not lawfully revoked, and holds that he is entitled to release on that basis alone. See Rombot, 296 F. Supp. 3d at 386-89.
B. Informal Interview
Ceesay also argues that the government violated its own regulations and his due process rights by failing to provide him with the interview required under
The first subsection of
[a]ny [noncitizen] . . . who has been released under an order of supervision or other conditions of release who violates the conditions of release may bereturned to custody. . . . Upon revocation, the [noncitizen] will be notified of the reasons for revocation of his or her release or parole. The [noncitizen] will be afforded an initial informal interview promptly after his or her return to Service custody to afford the [noncitizen] an opportunity to respond to the reasons for revocation stated in the notification.
Again, the government appears to concede that Ceesay was not afforded an informal interview or the opportunity “to respond to the reasons for revocation stated in the notification.” Docket Item 26 at ¶¶ 3-4 (stipulating that “[r]espondents did not provide” Ceesay with “a hearing upon arrest” and stating that in light of the failure to provide notice to Ceesay‘s counsel, the government would not rely on the interview allegedly provided Ceesay on April 2, 2025, after the commencement of this case).23
The government nonetheless
As an initial matter, the interpretation the government now proposes is contrary to ICE‘s explicit statement in Ceesay‘s February 2025 “Notice of Revocation of Release” that he would “promptly be afforded an informal interview” and “an opportunity to respond to the reasons for the revocation” of release. Docket Item 9-2 at 11. This suggests that the government‘s stance that no informal interview is required in Ceesay‘s situation is a “post hoc rationalization[] of past agency action” that should not be given deference. See Lockheed Martin Corp. v. Morganti, 412 F.3d 407, 411 (2d Cir. 2005).
Courts likewise have interpreted
Moreover, the third subsection—entitled “[t]iming of review when release is revoked“—suggests that noncitizens are entitled to an informal interview when their release is revoked regardless of the reason. See
The third subsection then says that the review process given to noncitizens who are not released begins with “a records review and scheduling of an interview, which will ordinarily be expected to occur within approximately three months after release is revoked.”
Therefore, consistent with the requirements of
First, “under deeply rooted principles of administrative law, not to mention common sense, government agencies are generally required to follow their own regulations.” Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, 954 F.3d 118, 130 (2d Cir. 2020); see Torres-Jurado, 2023 WL 7130898, at *2 (“Defendants cannot remove [a noncitizen] in any manner they please.“). In Accardi, for instance, the Supreme Court reversed the dismissal of a habeas petition in which the petitioner alleged that the Board of Immigration Appeals had failed to follow its own regulations. 347 U.S. at 267. “[E]mphasizing that [it was] not . . . reviewing and reversing the manner in which discretion was exercised,” the Court held that the petitioner was entitled to a hearing on “the Board‘s alleged failure to exercise its own discretion, contrary to existing valid regulations.” Id. at 268. If he could prove that allegation, the Court held, the petitioner would be owed “a new hearing before the Board” under the proper procedures.26 Id.
At least one court has found that ICE‘s failure to adhere to its own regulations may warrant the release of a detained noncitizen in circumstances like these. In Rombat, 296 F. Supp. 3d at 384, which involved a set of facts similar to those here, the petitioner “reported to the Manchester, New Hampshire[,] ICE office, as required by his Order of Supervision” when “[w]ithout advance notice, he was detained, placed in shackles, and later given a ‘Notice of Revocation of Release.‘” Id. at 385. After conducting a hearing, Judge Patti B. Saris found that there was no evidence that the detainee had been afforded the informal interview required by ICE‘s regulations or that the decision to revoke release was made by an official who was authorized to make it. See id. at 385-86. Because ICE had failed to follow its own regulations in detaining the petitioner, the court held that his detention was unlawful and ordered his release. See id. at 389 (“While ICE does have significant discretion to detain, release, or revoke aliens, the agency still must follow its own regulations, procedures, and prior written commitments.“).
What is more, if ICE regulations and the enabling statutes did not afford a noncitizen the right to at least some sort of process promptly after being detained, that statutory and regulatory scheme would be unconstitutional. When someone‘s most basic right of freedom is taken away, that person is entitled to at least some minimal process; otherwise, we all are at risk to be detained—and perhaps deported—because someone in the government thinks we are not supposed to be here.
requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” (citation and internal quotation marks omitted)).
The government says that Ceesay‘s due process rights were not implicated by the revocation of his order of supervision. It says that Ceesay “already had extensive due process rights during his immigration removal proceedings” decades ago. Docket Item 19-6 at 6. And it says that no further process was due to him when the government revoked his order of supervision. See id. at 16. Indeed, it says, “[t]he Due Process Clause does not protect a ‘benefit . . . if government officials may grant or deny
The government‘s argument, however, confuses Ceesay‘s right to an order of supervision, which ICE indeed has discretion to grant or deny, with his right not to be detained without adequate—in fact, without any—process. The right to be free from detention can never be dismissed as discretionary. As the Supreme Court has stated, “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty [the
It may be easy to say that we want noncitizens who are in this country illegally removed immediately. It may be popular to say that noncitizens who—at least allegedly—are members of violent gangs should be deported without a hearing. But how do we know that someone is who the arresting officers say he is? How do we know that a correctly identified noncitizen is a violent gang member and not a family man working hard to put food on the table of his wife and kids? How can anyone feel safe from being swept up and put in jail or deported simply based on being targeted by the government? More to the point: how can we pride ourselves on being a nation of laws if we are not willing to extend that most fundamental right to all—if we are not at least willing to ask, before we lock you up, do you have anything to say?
The answer is simple: due process. Everyone—citizen and noncitizen, the innocent and the guilty—is entitled to that sacred right. Ceesay did not get that here. And for that reason, even if ICE regulations did not give him the right to an informal interview, he still would be released.
In sum, because ICE did not follow its own regulations in deciding to re-detain Ceesay, his due process rights were violated, and he is entitled to release. And even if that were not so, he still would be released because he was not afforded even the minimal due process that protects everyone—citizens and noncitizens—in the United States.
C. Orderly Departure
Finally, Ceesay argues that he was entitled to an “orderly departure.” See Docket Item 7 at ¶ 14; Docket Item 25 at 5, 10. The basis for his claim is a statement in the Release Notification issued to him in 2011 when he was released under an order of supervision. Docket Item 25 at 5. That notification informed Ceesay that “ICE [would] continue to make efforts to obtain a travel document that [would] allow the United States . . . to carry out [his] removal.”
Ceesay says that an orderly departure means “advanced notice” of deportation, and he asserted at oral argument that a period of 30 days would be “sufficient.” Docket Item 27 at 10; see Docket Item 25 at 18-19 (“[A]n orderly departure provides an individual with notice of their planned re-detention and removal from the United States such that they can make preparations to organize their affairs.“). “For medically disabled people like [himself],” Ceesay says, “this preparation is life-sustaining.” Docket Item 25 at 19. More specifically, Ceesay notes,
In detention, [his] ability to coordinate his affairs is all but nonexistent. By virtue of his incarceration, [he] is physically isolated from his medical support team. And because he must pay to make phone calls at BFDF and is currently indigent, [he] is not able to speak with his doctors at the Jacobi Medical Center in the Bronx to coordinate a care plan.
Id. (internal citation omitted). “BFDF is located hundred miles [sic] from [his] home,” Ceesay says, “a home he left on February 19, 2025, without anything—not even his medication—with the full expectation based upon the representations of the government for 14 years[ ]that he would return to his home.” Docket Item 32 at 6.
The caselaw addressing a noncitizen‘s right to an orderly departure is sparse. Perhaps the seminal case recognizing such a right is Ragbir v. Sessions, 2018 WL 623557 (S.D.N.Y. Jan. 29, 2018), vacated and remanded on other grounds sub nom. Ragbir v. Barr, 2019 WL 6826008 (2d Cir. July 30, 2019). In that case, the petitioner, Ravidath Ragbir, “was suddenly taken into custody” after “nine years [of] . . . reporting as required to immigration authorities” when his order of supervision was abruptly revoked “without further ado” and “without the freedom to say goodbye.” Id. at *1-2. That occurred despite the fact that—like Ceesay here—Ragbir had been given an order of release informing him that “[o]nce a travel document has been obtained, you will be required to surrender to ICE for removal. You will, at that time, be given an opportunity to prepare for an orderly departure.” Id. at *2 n.9.
United States District Judge Katherine B. Forrest found that under those circumstances, Ragbir‘s release was warranted. Id. at *3. As she wrote:
There is, and ought to be in this great country, the freedom to say goodbye. That is, the freedom to hug one‘s spouse and children, the freedom to organize the myriad of human affairs that collect over time. It ought not to be—and it has never before been—that those who have lived without incident in this country for years are subjected to treatment we associate with regimes we revile as unjust, regimes where those who have long lived in a country may be taken without notice from streets, home, and work[ a]nd sent away. We are not that country; and woe be the day that we become that country under a fiction that laws allow it. We have a law higher than any that may be so interpreted—and that is our Constitution.
Id. at *1. Thus, she held, “[c]onstitutional principles of due process and the avoidance of unnecessary cruelty here allow and provide for an orderly departure” and under those principles, Ragbir was “entitled to the freedom to say goodbye.” Id. at *3.
At least one other court also has found a right to an orderly departure when ICE
By contrast, a court in the Western District of Washington held that the petitioner did not have the right to an orderly departure of the kind recognized in Ragbir because that petitioner‘s notice of release had not committed to providing him such a departure. Ahmad v. Whitaker, 2018 WL 6928540, at *6 (W.D. Wash. Dec. 4, 2018), report and recommendation adopted, 2019 WL 95571 (W.D. Wash. Jan. 3, 2019). Because, unlike in Ragbir, “ICE [had] made no such promise to” the petitioner, the court held, there was no basis to find that he had been denied a previously conferred right to an orderly departure. See id.; see also Doe, 2018 WL 4696748, at *10 (assuming without deciding that ICE violated petitioner‘s due process rights by failing to provide her with an “orderly departure” as promised but finding that the remedy for such an injury would be damages not release).
The government argues that “the concept of orderly departure is entirely amorphous.” Docket Item 29 at 3. Indeed, it notes, “[n]o statute or regulation defines the term” and “[c]aselaw does not offer much clarity as to what [it] entails.” Id. That is doubtless true. Nonetheless, this Court—like the Court in Ragbir—finds it difficult to accept that because it is “amorphous,” it must be meaningless.
The government cites Ahmad for the proposition that a right—or even a privilege—that is “so fragile as to turn on the inclusion (or not) of a sentence in a document” is no right at all. Id. at 4 (citing Ahmad, 2018 WL 6928540, at *6). Indeed, it says, “courts holding that language regarding ‘orderly departure’ entitles a foreign national to such process upon revocation of release” ignore “the fact that ‘ruses and deception may be a perfectly valid tactic for law enforcement.‘” Id. (quoting United States v. Hardin, 539 F.3d 404, 425 (6th Cir. 2008)). The government adds:
Hypothetically, language regarding an “orderly departure” could be viewed as a ruse or deception to give foreign nationals a sense of security when appearing at check-ins, even if they may be subject to arrest and removal at that time. ICE‘s mandate is to remove people before they abscond and courts lack jurisdiction to second guess its tactics.
The Court finds that statement profoundly troubling. It is true, of course, that courts have upheld the right of law enforcement to employ “ruses” in certain contexts. In Hardin, for example, the Sixth Circuit noted that “in many circumstances (such as undercover activity designed to uncover illegal conspiracies and acts), ruses and deception may be a perfectly valid tactic for law enforcement.” 539 F.3d at 425 n.12. “[I]n many circumstances.” But not in all of them.
The government does not have carte blanche to enforce the law, even the immigration law, in any manner that it chooses, provided that at the end of the
Indeed, the situation presented here is something quite different from “undercover activity designed to uncover illegal conspiracies and acts” when deception might be warranted. See Hardin, 539 F.3d at 425 n.12. Noncitizens like Ceesay who are released on orders of supervision under section 241.4 necessarily have been found not to constitute either a danger to the community or a flight risk. See
The idea that ICE would be justified in lying to such people about such a small but profound thing—the freedom to say goodbye, as Judge Forrest put it; the freedom to put a few photos of loved ones in your pocket, as this Court suggested at oral argument—boggles the mind. In such circumstances, a ruse disguised as a promise is not a tool for effective law enforcement—it is manifest cruelty. See Ragbir, 2018 WL 623557, at *3. “The Constitution commands better.” Id.
That being said, this Court is conscious of its role, which is to interpret the law and to ensure that the executive branch does not exceed its authority or run afoul of the Constitution. And just as the executive branch must not interfere with this Court‘s decision-making, this Court cannot tell the executive branch how to do its job, so long as it complies with the laws and regulations. Here, the Court agrees with Ceesay that the promise of an orderly departure cannot mean nothing. The Court finds that such a promise must include—at a minimum—the chance to make some preparations for serious healthcare concerns and perhaps the chance to pack certain belongings.27
Nonetheless, the Court agrees with the government that the promise of an “orderly departure” is amorphous and largely left to ICE to define. See Docket Item 29 at 3; see also Doe, 2018 WL 4696748, at *10 (“It is . . . unclear what, exactly, constitutes
The government has asked this Court to specify whether “there are any time constraints on [Ceesay‘s] being taken back into custody by ICE.” Docket Item 33. Based on the caselaw, the statutory and regulatory authority, and the record before it, this Court cannot say that there is a specific period of time that Ceesay must be allowed to remain out of custody to prepare for an orderly departure. And while Ceesay has asked for 30 days, he has no authority to support that request without ICE‘s agreement.28 In fact, as the government observes, it is not entirely clear that the allowance for an “orderly departure” necessarily means a certain preparation period out of custody. See Docket Item 29 at 5.
In sum, the government, having made a promise to Ceesay to provide him with an “opportunity to prepare for an orderly departure,” cannot now renege on the promise such that its words meant nothing. The government therefore must give Ceesay that opportunity, and its definition of “an orderly departure” must be reasonable. But unless presented with facts that lead it to believe that the government has not followed this Court‘s directive, the Court will not require more.29
CONCLUSION
For the reasons explained above, the government‘s motion to dismiss the amended petition is DENIED. Ceesay‘s petition is GRANTED in part and DENIED in part. More specifically, within 24 hours of the issuance of this order, Ceesay must be released to a public place30 under the conditions of his order of supervision, and he must be afforded the “opportunity to prepare for an orderly departure” promised in his Release Notification.
The government has advised that Ceesay will be deported on May 7, 2025. Docket Item 35. The Court will hold a status conference on Monday, May 5, 2025, where the government shall confirm, and provide the Court with details of, its compliance with this order.
SO ORDERED.
Dated: May 2, 2025
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
Notes
Ceesay also asked this Court to enjoin ICE from transferring him from this district or, in the alternative, for “the government [to] be ordered to provide at least . . . 72[] hours’ notice prior to any transfer to [his] counsel.” Docket Item 12 at 11; see Docket Item 7 at 23 (asking the Court to enjoin Ceesay‘s transfer). The government argues that the request to enjoin Ceesay‘s transfer should be denied, noting that this Court frequently has held that because “jurisdiction attaches on the initial filing for habeas corpus relief,” enjoining transfer is not required to protect the Court‘s jurisdiction. Docket Item 9-3 at 6-7; see, e.g., Walker v. Searls, 2024 WL 1735213 (W.D.N.Y. Apr. 23, 2024) (this Court‘s holding that “regardless of where [the petitioner] is housed, this Court retains jurisdiction over his habeas petition” so enjoining transfer was unnecessary). Therefore, the government says, there is no need “to interfere with DHS‘s authority . . . to arrange for appropriate places of detention.” While that certainly is true, see Santillanes v. U.S. Parole Comm‘n, 754 F.2d 887, 888 (10th Cir. 1985) (stating that a court‘s jurisdiction over a habeas petition “is not destroyed by a transfer of the petitioner and the accompanying custodial change“), courts have on occasion enjoined transfer in light of detainees’ health concerns, such as during the height of the COVID-19 pandemic, see, e.g., Garcia v. Wolf, 2020 WL 4668189, at *1 (E.D. Va. Aug. 11, 2020). And Ceesay raises health concerns here. Docket Item 7 at ¶¶ 2, 6; see Docket Item 12 at 11.
Nevertheless, this Court need not and does not reach that issue. Because the Court orders Ceesay‘s release, see infra Section II, it denies his motion to enjoin transfer as moot.
Even if the government did not intend to concede this point, the Court would find, based on the evidence presented, that Ceesay was not provided with the interview referenced in