The opinion of the court was delivered by: Judge Munley
Petitioner Aneudy Nieves-Delossant (hereinafter "petitioner"), currently detained by the Department of Homeland Security's Bureau of Immigration and Customs Enforcement (hereinafter "ICE") at the Pike County Correctional Facility in Pike County, Pennsylvania (hereinafter "PCCF"), filed the above captioned petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Petitioner challenges his continued detention by ICE as a violation of his Fifth Amendment due process rights. Magistrate Judge Thomas M. Blewitt issued a report and recommendation, which advised that petitioner be afforded, within ten days of his return to ICE custody, an individualized inquiry into whether his continued detention is necessary to carry out the purposes of 8 U.S.C. § 1226(c). (Doc. 8). Respondents Holder, Napolitano, Decker and Lowe*fn1 (hereinafter "the government") objected to Magistrate Judge Blewitt's report and recommendation. (Doc. 13). Therefore, this case is ripe for disposition. For the reasons discussed below, we will adopt Magistrate Judge Blewitt's report and recommendation. Petitioner will be afforded, within ten days, with an individualized inquiry into whether his continued detention is necessary to carry out the purposes of 8 U.S.C. § 1226(c).
Procedural and Factual Background
A. Conviction and ICE Detention
Petitioner is a twenty-two year old native of the Dominican Republic and has lived as a lawful permanent resident in the United States for the past seven years. (Doc. 1, Habeas Pet. at 4). On November 23, 2010, petitioner was convicted of drug offenses (possession of cocaine and drug paraphernalia) in the Luzerne County Court of Common Pleas. (Id.)
ICE initiated removal proceedings against petitioner on February 11, 2011. (Id. at 4-5). On the same day ICE initiated removal proceedings against him, ICE took petitioner into custody and detained him at PCCF pursuant to 8 U.S.C. 1226(c). (Id. at 5). On February 24, 2011, petitioner appeared before an Immigration Judge (IJ) and requested time to seek counsel. (Doc. 13-1, Ex. A, Decl. of Kent J. Frederick ¶ 4). The IJ granted this request even though Attorney Raymond Lahoud already filed a notice of representation on behalf of petitioner.*fn2 (Id. ¶¶ 3-4). On March 17, 2011, petitioner appeared before the IJ with Attorney Lahoud participating in the hearing via telephone. (Id. ¶¶ 5-6). Over an objection from ICE, the IJ granted petitioner a continuance to explore the possibility of a Post Conviction Relief Act (PCRA) claim to vacate his underlying state court convictions. (Id. ¶ 6). As will be explained below, petitioner's state court convictions provide the basis for his potential deportation, therefore, petitioner will squash the removal proceeding if he successfully vacates the state court convictions.
Lahound withdrew from the case on May 18, 2011. (Id. ¶ 7). Petitioner appeared before the IJ with a new attorney, Theodore Murphy, on May 19, 2011. (Id. ¶ 8). At the May 19 hearing, the IJ granted Murphy a continuance to review the case. (Id.) The IJ rescheduled the hearing for July 14, 2011. (Id.) At the July 14, 2011 hearing, the IJ granted Murphy leave to withdraw from the case as he claimed that petitioner failed to pay his legal bills. (Id. ¶ 9). Petitioner sought a continuance to find a new lawyer, and the IJ reset the case for September 1, 2011. (Id.)
On August 29, 2011, petitioner requested an adjournment to collaterally attack his sentence. (Id. ¶ 10). Over opposition by ICE, the IJ granted petitioner's request. (Id. ¶¶ 10-11). ICE did not transfer petitioner to the custody of Luzerne County officials until September 23, 2011, despite the fact that ICE administratively terminated his immigration case on August 31, 2011. (Doc. 14, Mem. in Supp. of Objections at 6). Luzerne County officials held petitioner in the Luzerne County Prison in anticipation of the hearing on his PCRA petition scheduled for October 26, 2011.*fn3 (See Doc. 8, Report & Recommendation at 5 n.5, 9).
On October 31, 2011, Luzerne County officials transferred petitioner to PCCF and ICE custody, and ICE filed a motion to re-calendar his removal case. (Doc. 13-1, Ex. A, Decl. of Kent J. Frederick ¶ 12). As of December 21, 2011, petitioner has been in detention for a total period of 313 days; of that time, 275 days were spent in ICE custody at PCCF and 38 days were spent in the Luzerne County Prison.
B. Habeas Corpus Petition
On September 20, 2011, after his removal proceedings were administratively closed but prior to being transferred to Luzerne County custody, petitioner filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2241. (See Doc. 1). In his habeas petition, petitioner argues that ICE held him in custody for over seven months while awaiting completion of his removal proceedings. Petitioner contends that his detention is in excess of the reasonable amount of time ICE had to complete the removal proceedings against him and that he should be granted an individualized hearing as to whether he is dangerous or likely to flee. Petitioner claims that the failure to provide him the individual hearing violated his due process rights and that he should be released from ICE custody. Petitioner relied on the recent decision of Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011) to support his contentions regarding the unconstitutionality of his detention.
On September 27, 2011, Magistrate Judge Blewitt ordered the government to respond to the habeas petition. (Doc. 2). The government responded on October 13, 2011 and primarily argued that petitioner's Section 2241 motion is moot because petitioner was not in ICE custody at that time. (See Doc. 7).
C. Report and Recommendation
In his report and recommendation, Magistrate Judge Blewitt advised that the instant habeas corpus petition be dismissed in part and granted in part. (Doc. 8, Report and Recommendation at 13). Specifically, Magistrate Judge Blewitt recommended that the petition be dismissed with respect to the request for immediate release from ICE custody and granted with respect to the request for injunctive relief--namely that petitioner be afforded, within ten days of his return to ICE custody, an individualized inquiry into whether continued detention is necessary to carry out the purposes of Section 1226(c). (Id.) Magistrate Judge Blewitt found that petitioner's period of detention, while prolonged ...