Nikolic v. Decker

Background

Dejan Nikolic sought relief under 28 U.S.C. § 2241, which permits a federal district court to review whether a person is being held in violation of federal law or the Constitution. The opinion states that Nikolic had been detained by the Department of Homeland Security since November 28, 2018, under 8 U.S.C. § 1226(c), a statute requiring detention of certain noncitizens with specified criminal convictions during removal proceedings.

Nikolic was a lawful permanent resident and was charged as removable based on convictions for multiple crimes involving moral turpitude and violations of protection orders. During the removal proceedings, an immigration judge found him incompetent but ordered safeguards for the hearing instead of terminating the proceedings. The immigration judge later denied Nikolic’s applications for relief from removal and ordered his removal to Serbia. Nikolic appealed that decision to the Board of Immigration Appeals.

Claims Concerning the Removal Proceedings

Nikolic claimed that the process used to remove him violated the Fifth Amendment, the Rehabilitation Act, the Administrative Procedure Act, and the Suspension Clause. He specifically alleged that the government failed to accommodate his disability and sought termination of the removal proceedings.

The court held that the Immigration and Nationality Act, as amended by the REAL ID Act, makes a petition for review in the appropriate federal appeals court the exclusive method for reviewing legal and factual issues arising from removal proceedings. Because Nikolic’s requested relief would require invalidating or terminating the removal order, the district court held that it lacked jurisdiction over these claims. The court dismissed the First, Second, Third, Fourth, and Eighth Causes of Action for lack of jurisdiction.

Continued Detention

Nikolic argued in his Fifth and Sixth Causes of Action that his continued detention without an individualized bond hearing violated the Due Process Clause. The court applied a fact-based analysis that considered the length of detention, responsibility for delays, asserted defenses to removal, the relationship between immigration detention and prior criminal custody, and whether the detention facility differed meaningfully from a penal institution.

The court acknowledged that Nikolic had been detained for more than eleven months, but found that his detention was unlikely to continue much longer because the immigration judge had completed the removal proceedings and ordered his removal. The court also found that Nikolic was primarily responsible for delays, that his defenses had been rejected by the immigration judge, and that his immigration detention was consistent with the time he had spent in custody for the crimes underlying his removability. The court concluded that Nikolic had not shown that his detention was unreasonable and unjustified, and dismissed the Fifth and Sixth Causes of Action.

Eighth Amendment Claim and Injunction

Nikolic’s Seventh Cause of Action argued that denying bail to certain noncitizens violated the Eighth Amendment. The court rejected that claim, explaining that deportation is not a criminal proceeding and that the Eighth Amendment does not require bail in removal proceedings. The court dismissed the Seventh Cause of Action.

Nikolic also requested an injunction barring the respondents from transferring him outside the New York City area. The court found no basis for issuing that injunction and denied the request.

Costs and Attorneys’ Fees

Nikolic sought costs and reasonable attorneys’ fees under the Equal Access to Justice Act. The court held that he was not the prevailing party because it had dismissed all of his claims. It therefore denied the request for costs and attorneys’ fees.

Disposition

Judge Laura Taylor Swain denied the petition in its entirety, directed entry of judgment in the respondents’ favor, and directed the Clerk of Court to close the case. The court’s order combined merits rulings on the detention and bail claims with a jurisdictional dismissal of the claims challenging the removal process.