The opinion of the court was delivered by: Judge Conner
Ronnish Gupta ("Gupta"), presently a detainee of the Bureau of Immigration and Customs Enforcement ("ICE"), incarcerated at the York County Prison, York, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2241on June 3, 2011, requesting that "this Honorable Court grant the requested writ, and order the release of Petitioner, or, in the alternative, require Respondents at a hearing before this Court to justify Petitioner's detention by bearing the burden of proving the petitioner to be a flight risk or danger to the community." (Doc. 1, at 5.) For the reasons set forth below, the petition for writ of habeas corpus will be granted.*fn1
I. Immigration Proceedings
Petitioner, a native and citizen of India, is presently in removal proceedings. (Doc. 1, at 2, ¶ 9). He entered the United States as a lawful permanent resident on or about July 22, 1980. (Doc. 1, at 2, ¶ 8.) On or about March 30, 2009, he submitted an N-600 Application for Certificate of Citizenship to United States Citizenship and Immigration Services (USCIS). (Doc. 6-1, at 13.) USCIS denied the application on May 13, 2009 because he did not meet the requirements to establish derivative citizenship through either of his parents. (Id. at 15.) Petitioner appealed, and on November 18, 2009, a decision was issued upholding the agency determination. (Id. at 16-21.)
On June 22, 2009, ICE served a Notice to Appear on petitioner indicating that he was subject to removal pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), as amended, based on his conviction of an aggravated felony. (Doc. 6-1, at 3-5.) He was taken into ICE custody on January 8, 2010. (Doc. 1, at 2, ¶ 11.) On January 14, 2010, an Immigration Judge ("IJ") denied petitioner's request that he be released on bond and noted that he is subject to mandatory detention under INA § 236(c). (Doc. 6-1, at 22.) His request for relief from removal based on derivative citizenship was denied and he was ordered removed to India on May 10, 2010. (Doc. 1, at 2, ¶ 13; Doc. 6-1, at 24-29) His request to reopen his case based on new evidence was subsequently denied. (Id. at 2, ¶ 14.)
On June 8, 2010, petitioner filed a Notice of Appeal with the Board of Immigration Appeals ("Board"). (Doc. 1, at 2, ¶ 15.) On or about August 12, 2010, he made another request for parole to ICE. The request was denied on September 9, 2010 because under ICE's guidelines for detention, he is subject to mandatory detention under section 236(c) of the INA. (Id. at ¶ 16; Doc. 6-1 at 30.)
On December 2, 2010, the appeal to the Board was granted in that a three-member panel of the Board remanded the proceedings back to the IJ based on several errors that were made in determining the existence of derivative citizenship. (Doc. 6-1, at 31-33.)
On March 29, 2011, in a written decision, the IJ again denied petitioner's claim for derivative citizenship, and ordered him removed to India. (Id. at 34-38.) A Notice of Appeal was filed with the Board on April 29, 2011, and is currently pending. (Doc. 1, at ¶ 20.)
The instant petition was filed on June 3, 2011.
The apprehension and detention of aliens who are pending final removal decisions are governed by § 236 of INA, 8 U.S.C. § 1226. Section 1226(c)(1)(B), instructs the Attorney General to take into custody and detain any alien who is deportable by reason of having committed any offense covered in section 8 U.S.C. § 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D). In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court found that mandatory detention prior to the entry of a final order of removal under § 1226(c) does not violate the protections guaranteed under the Constitution. In Demore, a lawful permanent resident filed a habeas petition challenging the no-bail provision of § 1226(c), pursuant to which he had been held for six months during the pendency of removal proceedings against him. The Supreme Court held that detention of lawful permanent residents during removal proceedings is constitutionally permissible even where there has been no finding that they are unlikely to appear for their deportation proceedings. See id. at 524-529.
However, in this case, the Court concurs with the position recently taken by the United States Court of Appeals for the Third Circuit, which is a growing consensus within this district and throughout the federal courts, that prolonged detention of aliens under § 1226(c) raises serious constitutional concerns. Diop v. ICE/Homeland Security, --- F.3d ----, Civil No. 10-1113, 2011 WL 3849739 (C.A.3 (Pa.)); see, Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005); Ly v. Hansen, 351 F.3d 263, 267-68 (6th Cir. 2003); Prince v. Mukasey, 593 F. Supp. 2d 727, 734 (M.D.Pa. 2008). The Demore court repeatedly qualified its holding by noting that mandatory detention is constitutionally permissible for the "brief," id. at 513, 523, "limited," id. at 526, 529 n. 12, 531 and "temporary," id. at 531, period necessary for removal proceedings. Although prolonged detention serves the statutory purpose of guaranteeing an alien's presence at removal proceedings, it does not satisfy the expectation that such proceedings will be conducted in an expeditious manner. Ly, 351 F.3d at 269; see also Patel v. Zemski, 275 F.3d 299, 304 (3d Cir. 2001), overruled on other grounds by Demore, 538 U.S. at 516 (noting "[t]he current immigration laws reflect part of a growing effort by Congress to expedite the removal of criminal aliens"). Recently, the United State Court of Appeals for the Third Circuit in Diop, joined the above courts in concluding as follows:
It was unconstitutional to detain Diop for nearly three years under the authority granted by Congress in § 1226(c). Nevertheless, "if Congress has made its intent in the statute clear, we must give effect to that intent." Zadvydas, 533 U.S. at 696 (internal quotation marks omitted). We do not believe that Congress intended to authorize prolonged, unreasonable, detention without a bond hearing. For one, the parties have not provided any legislative history in support of such a conclusion. Furthermore, in Demore, the Supreme Court observed that Congress directed the INS to "complete removal proceedings against [criminal aliens] as promptly as possible." 538 U.S. at 530 n. 13. This, combined with statistics showing that detention is often for only a brief period of time, leads us to believe that Congress did not intend to authorize prolonged detention pursuant to § 1226(c) without, at some point, requiring further inquiry into whether detention is necessary to carry out that statute's purpose. Accordingly we conclude that § 1226(c) contains an implicit limitation of reasonableness: the statute authorizes only mandatory detention that is reasonable in length. After that, § 1226(c) yields to ...