Jackson Njai Ndungu, Petitioner v. Joseph E. Freden1, Respondent DECISION AND ORDER INTRODUCTION Petitioner Jackson Njai Ndungu (“Petitioner”), a civil immigration detainee currently held at the Buffalo Federal Detention Facility (“BFDF”) in Batavia, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. §2241. (Dkt. 1). Petitioner contends that his ongoing detention under 8 U.S.C. §1226(c) violates his right to procedural due process and “requests this Court to order Respondent to immediately release him from his custody or provide him a custody hearing before a neutral arbiter at which the Department must demonstrate it maintains a regulatory interest in detaining him.” (Id. at 2). For the reasons below, the Court denies the petition. BACKGROUND Petitioner is a citizen and national of Kenya. (Dkt. 1 at 3). He was admitted into the United States as a lawful permanent resident in 2008. (Id.). Petitioner was detained by United States Immigration and Customs Enforcement (“ICE”) on June 3, 2019. (Dkt. 7-1 at 25). That same date, the United States Department of Homeland Security (“DHS”) issued a notice to appear alleging that Petitioner is subject to removal under §237(a)(2)(ii) of the Immigration and Nationality Act (“INA”),??U.S.C. §1101 et. seq., for having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. (Id. at 26). DHS also issued a notice of custody determination requiring Petitioner’s detention pending adjudication of removal proceedings. (Id. at 27). Petitioner filed applications for relief from removal in July 2019. (Id. at 29). On October 2, 2019, an immigration judge (“IJ”) found Petitioner removable as charged, denied all applications for relief, and ordered Petitioner removed to Kenya. (Id. at 30). Petitioner appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). (Id. at 31). The BIA dismissed Petitioner’s appeal on June 30, 2020. (Id. at 32). On July 30, 2020, Petitioner filed a Petition for Review (“PFR”) and motion for stay of removal with the United States Court of Appeals for the Third Circuit.2 (Id. at 33). The Third Circuit granted Petitioner’s motion for a stay of removal on July 23, 2021. (Id. at 39). Petitioner’s PFR remains pending before the Third Circuit. Pursuant to the Third Circuit’s decision in Guerrero-Sanchez v. Warden York Cnty. Prison, 905 F.3d 208, 225 (3d Cir. 2018) (holding that certain detained noncitizens are entitled to a bond hearing after six months of detention), abrogated by Johnson v. Arteaga-Martinez, 596 U.S. 573 (2022), Petitioner received a bond hearing before an IJ on March 3, 2021. (Dkt. 7-1 at 36). At that bond hearing, the government bore the burden to show by clear and convincing evidence that Petitioner posed a danger to the community or a risk of flight. (Id.). On March 11, 2021, the IJ determined that Petitioner would be kept in custody based upon a finding of both danger and risk of flight. (Id. at 37). On January 10, 2022, Petitioner filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts. (Dkt. 1-3).3 In the Massachusetts action, Petitioner and the government entered into a stipulation pursuant to which Petitioner was granted “a constitutionally adequate individualized bond hearing in the Boston Immigration Court at which ICE bears the burden of establishing, by clear and convincing evidence, that he poses a danger to the community.” (Dkt. 1-4 at 4). The parties further stipulated that ICE would bear the burden of demonstrating risk of flight by a preponderance of the evidence and that the IJ would be required to “consider Petitioner’s ability to pay in setting the amount of bond and alternative conditions of release that reasonably assure the safety of the community and Petitioner’s future appearances.” (Id.). Pursuant to the stipulation entered in the Massachusetts action, Petitioner received a bond hearing on August 5, 2022. (Dkt. 1-5 at 2). The IJ determined that the government had proven by clear and convincing evidence that Petitioner was a danger to the community and by a preponderance of the evidence that Petitioner posed a risk of flight. (Id. at 3-5). The IJ further determined that “no monetary bond or alternatives to detention mitigate the danger or flight risk he presents.” (Id. at 5). Petitioner filed the instant petition on July 3, 2023. (Dkt. 1).4 The government opposes the petition. (Dkt. 7). Petitioner has filed a reply (Dkt. 8), and the parties have filed letter supplements regarding the Second Circuit’s recent decision in Black v. Decker, 103 F.4th 133 (2d Cir. 2024) (Dkt. 9; Dkt. 11). DISCUSSION I. Jurisdiction and Burden of Proof The federal habeas corpus statute gives district courts jurisdiction to hear immigration-related detention cases. See 28 U.S.C. §2241(c)(3); Demore v. Kim, 538 U.S. 510, 517-18 (2003) (holding federal courts have jurisdiction to review challenges to preremoval detention); Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding “§2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention” in immigration cases). District courts do not have jurisdiction over challenges to the legality of final orders of deportation, exclusion, and removal; jurisdiction to review such challenges rests exclusively in circuit courts. See Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005) (“[The REAL ID Act, 119 Stat. 231, §106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of deportation, exclusion, and removal, providing instead for petitions of review…which circuit courts alone can consider.”). “When a petitioner brings a habeas petition pursuant to §2241, the petitioner ‘bears the burden of proving that he is being held contrary to law; and because the habeas proceeding is civil in nature, the petitioner must satisfy his burden of proof by a preponderance of the evidence.’” Dzhabrailov v. Decker, No. 20-CV-3118 (PMH), 2020 WL 2731966, at *3 (S.D.N.Y. May 26, 2020) (quoting Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011)). II. Legal Framework “Section 1226 of title 8 authorizes the government to detain a noncitizen pending a decision on whether the alien is to be removed from the United States.” Black, 103 F.4th at 140 (quotation omitted). Petitioner is detained pursuant to §1226(c), under which “noncitizens who have committed one of certain listed offenses or who have been identified by the government as involved in terrorist activities are subject to mandatory detention.” Id. at 140-41. In Demore, the Supreme Court “held that detention under section 1226(c) without an initial bond determination does not, on its face, violate the detainee’s due process rights where detention is ‘for the limited period of…removal proceedings.’” Black, 103 F.4th at 141 (emphasis and alteration in original and quoting Demore, 538 U.S. at 531). But numerous courts — including this Court and the Court of Appeals for the Second Circuit — have found that “a noncitizen’s right to due process precludes his unreasonably prolonged detention under section 1226(c) without a bond hearing.” Id. at 143; see also, e.g., Vazques v. Garland, No. 1:21-CV-00477 EAW, 2022 WL 2467655, at *2 (W.D.N.Y. July 6, 2022) (“unreasonably prolonged immigration detention without appropriate procedural protections may constitute a due process violation”). Prior to Black, this Court (and many district courts within the Second Circuit) applied “the multi-factor approach articulated by the court in Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *1 (S.D.N.Y. May 23, 2018)…for addressing procedural due process claims for aliens — like Petitioner — who are detained pursuant to §1226(c).” Vazquez, 2022 WL 2467655, at *2. But in Black, the Second Circuit held as a matter of first impression that due process challenges to prolonged detention under §1226(c) should be reviewed using “the three-factor balancing test established in Mathews [v. Eldridge, 424 U.S. 319 (1976)].” Black, 103 F.4th at 147. The three Mathews factors are: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. Applying the Mathews factors, the Second Circuit concluded that the petitioners in Black, who had been detained pursuant to §1226(c) without a bond hearing for seven months and 21 months, respectively, were entitled to “individualized bond hearings by an IJ.” Black, 103 F.4th at 155. The Second Circuit further held that the burden was properly on the government to justify detention by clear and convincing evidence and that the IJ was required to consider the ability to pay and alternatives to detention when setting any bond amount. Id. at 155-58. III. Due Process Does Not Entitle Petitioner to a Third Bond Hearing Following the Second Circuit’s instruction in Black, the Court applies the Mathews factors to determine whether Petitioner is entitled to a third bond hearing.5 The first Mathews factor weighs in Petitioner’s favor. As in Black, Petitioner’s private interest “is the most significant liberty interest there is — the interest in being free from imprisonment.” 103 F.4th at 151 (quoting Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)). Further, Petitioner’s private interest has been “seriously affected by [his] prolonged detention.” Id. Petitioner has submitted information to the Court indicating that he has individualized mental health concerns that make detention particularly difficult for him. (See Dkt. 5). The second Mathews factor, on the other hand, favors the government under the circumstances of this specific case. Petitioner has had two bond hearings at which the government was required to demonstrate dangerousness by clear and convincing evidence. At the second bond hearing, the IJ also was expressly required to consider (and did consider) “Petitioner’s ability to pay in setting the amount of bond and alternative conditions of release that reasonably assure the safety of the community and Petitioner’s future appearances.” (Dkt. 1-4 at 4). Under these circumstances, the risk of an erroneous deprivation is extremely low. Nor do Petitioner’s individual circumstances suggest a high likelihood that he has been subject to an erroneous deprivation of liberty. See Black, 103 F.4th at 153 (considering the petitioners’ individual circumstances, such as having “led a peaceful life” for almost 20 years, in concluding that there was a high likelihood of an erroneous deprivation of liberty). The record before this Court indicates that Petitioner has a lengthy criminal history, which includes two criminal convictions for fleeing or attempting to elude an officer. (Dkt. 7-1 at
