Miller v. Shanahan, No. 09-cv-09712 (WHP) (S.D.N.Y.)

Nature of Claims: This habeas corpus proceeding seeks either the release of, or an opportunity for a bond hearing for, a lawful permanent resident who has been contesting his removal to Jamaica for over two and one half years. The government takes the position that the immigrant is statutorily subject to mandatory detention and cannot be released on bond. The case seeks to establish the principle, as some recent decisions in other districts have held, that the INA or the due process clause requires an opportunity for a bond hearing for immigrants in removal proceedings if detention has been prolonged and was not the “fault of,” or at the request of, the immigrant.

Background: The government detained Mr. Miller in August 2007 and transferred him to Texas. At Miller’s request, he was transferred back to Bergen County, New Jersey, where he could be nearer his witnesses. While in Bergen County, Mr. Miller received ineffective legal assistance from Father Robert Vitaglione, a non-attorney representative, and an attorney working with him. Mr. Miller was ordered removed after a hearing in which his representatives failed to present relevant evidence. The decision was affirmed by the BIA after his representatives failed to file a timely appeal brief.

Current Status: In May 2009, The Legal Aid Society appeared on Mr. Miller’s behalf and moved to reopen the proceedings based on the ineffective assistance of counsel. In November 2009, by which time Mr. Miller had been detained for over two years, the Society filed this habeas corpus proceeding with the assistance of Hughes Hubbard. The matter was argued before Judge Pauley on January 11, 2010.

No. Persons Affected: Dozens of immigrants in the New York area would potentially benefit if a favorable decision is obtained and followed in similar cases.

Reported Decisions: None.