The opinion of the court was delivered by: Magistrate Judge Carlson
I. Factual Background and Procedural History
A. Factual and Procedural Background
This case involves a habeas corpus petition filed by an immigration detainee, Neville Sylvester Leslie. This matter now comes before this Court after years of litigation on a remand from the United States Court of Appeals for the Third Circuit for the purpose of a bail determination for Leslie. Thus, in this case we do not write upon a blank slate. Quite the contrary, the prior legal proceedings in this matter largely shape and define the scope of the current hearing. That procedural history, which has been marked by prolonged detention of the petitioner, was aptly described by the court of appeals in the following terms:
In 1998, Neville Leslie, a native and citizen of Jamaica and a lawful permanent resident of the United States, was convicted of a felony offense of conspiracy to possess and distribute more than fifty grams of "crack" cocaine in violation of 21 U.S.C. § 846. He was subsequently sentenced to 168 months imprisonment, which he has served. On March 28, 2008, after Leslie's release from prison, ICE issued a warrant for Leslie's arrest and took Leslie into custody. He has been incarcerated under ICE custody since that time.
On April 16, 2008, an Immigration Judge ("IJ") held a hearing and found Leslie, who waived his right to counsel at the hearing, removable to Jamaica for having committed an aggravated felony. Leslie appealed that order to the Board of Immigration Appeals ("BIA"). His appeal was dismissed on July 11, 2008. On July 21, 2008, Leslie petitioned this court for review of the BIA's decision, and he also moved to stay his removal on July 24, 2008. On August 14, 2008, this court granted the stay of removal pending the resolution of his petition for review.
On July 8, 2010, this court, holding that the IJ failed to inform Leslie of the availability of free legal counsel, granted Leslie's petition for review and remanded the case to the BIA for a new hearing. On December 10, 2010, the BIA remanded the case to the IJ, who scheduled a hearing for February 22, 2011.
While still engaged before the immigration authorities and while still awaiting the immigration hearing of February 22, 2011, on February 2, 2011, Leslie filed a petition for a writ of habeas corpus in the District Court for the Middle District of Pennsylvania, challenging his continued immigration detention without hearing.
First, Leslie claimed that his original conviction was not an "aggravated felony," and that he therefore was not subject to criminal detention under 8 U.S.C. § 1226. Section 1226 concerns the arrest, detention, and release of aliens who have not yet been ordered to be removed, and, among other things, authorizes a bond hearing. Leslie also argued that his detention was unconstitutionally lengthy and that his continued detention without a bond hearing violated his procedural due process rights under the Fifth Amendment.
Before Leslie's habeas corpus petition was ruled on by the District Court, the IJ held the scheduled February 22, 2011 hearing, where Leslie requested a continuance of his removal proceedings for "medical reasons." The IJ continued the proceedings until March 30, 2011, at which time another hearing was held. At that hearing, Leslie again challenged the constitutionality of 8 U.S.C. § 1226 and again argued that his prior conviction was not an "aggravated felony." The IJ concluded that the prior conviction was an aggravated felony and did not decide the constitutional question of unreasonable detention. The IJ therefore ordered that Leslie be removed to Jamaica. Leslie appealed this decision to the BIA.
The BIA remanded Leslie's appeal of the IJ's order of removal to the IJ, noting that the audio recording of the March 30, 2011 hearing and the audio recording of the immigration judge's oral decision were missing from the record. The BIA therefore ordered the immigration judge to prepare a complete transcript of the March 30, 2011 proceedings and, if necessary, to hold a new hearing.
Meanwhile, on May 10, 2011, the District Court adopted a magistrate judge's report and recommendation which recommended denying Leslie's petition for a writ of habeas corpus "without prejudice to future requests when, and if, Leslie's continued detention becomes sufficiently prolonged to trigger constitutional concerns." The District Court then held that Leslie had been convicted of an aggravated felony and that his detention*fn1 was not unreasonable.
Leslie v. Attorney General, 11-2442, 2012 WL 898614, *1-2 (3d Cir. March 19, 2012).
Leslie timely appealed this May 2011 decision conditionally denying him habeas relief, and eleven months later, on March 19, 2012, the court of appeals entered an opinion and order which concluded that the on-going delay in this matter had now become excessive and warranted some habeas corpus relief in the form of bail consideration for Leslie. The appellate court's guidance in this regard was unmistakably clear, with the court stating in clear and precise terms that: "We therefore hold that Leslie's detention is unreasonably long, and he is therefore entitled to 'an individualized inquiry into whether detention is still necessary to fulfill the statute's purposes of ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community.' Diop, 656 F.3d at 231." Id., 2012 WL 898614 at *5.
The appellate court's reference to its recent prior decision in Diop further informed the bail review process contemplated by this remand ruling. As the court explained: "Diop laid out a two step-process: a reviewing court must first determine that a detention has been unreasonably long, and following such a determination, must determine whether the unreasonable detention is necessary to fulfill § 1226's purposes as outlined in Diop, supra." Leslie v. Attorney General, 2012 WL 898614 at *3. In this case the appellate court's explicit finding that "Leslie's detention is unreasonably long" plainly addressed the first question set forth in the analytical paradigm defined by Diop. Therefore, our task is to conduct the second step of this two-step analysis and engage in "an individualized inquiry into whether detention is still necessary to fulfill the statute's purposes of ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community." Diop, 656 F.3d at 231.
The opinion and mandate of the court of appeals also prescribed when and how this process should occur, stating that: "Leslie's appeal will be remanded to the District Court with instructions to conduct an individualized bond hearing as required by Diop within ten days of the date when this opinion and order are filed."Leslie v. Attorney General, 2012 WL 898614 at *5.
B. Proceedings Following Remand from the Court of Appeals
Like the underlying immigration proceedings in this case, the proceedings before this Court following this remand by the court of appeals have been marked by invitations to follow legal detours. Thus, immediately upon the issuance of the court of appeals mandate, the District Court directed the undersigned to conduct the bail hearing ordered by the appellate court. (Doc. 22) We, in turn, appointed counsel for Leslie, and scheduled a hearing within the 10-day time frame dictated by the court of appeals. (Doc. 23)
The respondents immediately objected to judicial review of Leslie's four-year detention, and requested instead that an Immigration Judge be first given the opportunity to conduct a bail review for Leslie which would, according to the respondents would comply with the dictates of Diop, and the express mandate of the court of appeals in this case. (Doc. 27) Mindful of the deference which should be accorded in the first instance to agency decision-making processes, the District Court agreed to this request, and permitted the respondents have a bail review initially conducted by an Immigration Judge. (Doc. 28)
Having sought leave of court for the express purpose of permitting an IJ to conduct a bail hearing which would comply with the mandate of the court of appeals, the respondents then held a proceeding on March 23, 2012, which failed to comport with that appellate court mandate in several material respects. (Doc. 29) First, despite the court of appeals' express direction that this hearing must "determine whether the unreasonable detention is necessary to fulfill § 1226's purposes as outlined in Diop, supra." Leslie v. Attorney General, 2012 WL 898614 at *3, the respondents ignored Diop's guidance that the government bore the burden of proof at this hearing, and instead apparently assigned the burden of proof to Leslie in accordance with their own agency rules.*fn2 Having apparently mis-allocated the burden of proof in this fashion, the respondents then conducted an administrative hearing which appears to have neglected to fully address crucial procedural safeguards that are implicit in Diop and in the court of appeals' mandate, which in our view clearly contemplated meaningful participation by counsel in this bail hearing, as well as a full opportunity to present evidence. Instead, due to the hurried nature of the agency proceeding, counsel merely participated by telephone, and it seems that Leslie did not have a complete opportunity to present evidence in support of his request for bail. Furthermore, immigration officials then took steps which frustrated any effort to conduct meaningful judicial review of this agency determination, since the respondents have refused to provide petitioner's habeas counsel which any transcript or record of these proceedings. This agency determination that the parties in this habeas proceeding could not see what transpired at the IJ bail hearing effectively precluded any meaningful review of this March 23 administrative hearing, and undermines confidence in the outcome of that proceeding.*fn3
In addition, the March 23, IJ opinion itself was notable in several respects. Despite the court of appeals' explicit instruction that: "Leslie's appeal will be remanded to the District Court with instructions to conduct an individualized bond hearing as required by Diop within ten days of the date when this opinion and order are filed," Leslie v. Attorney General, 2012 WL 898614 at *5, (emphasis added), the IJ adopted an approach to this issue which imposed categorical barriers to release without any individualized consideration of Leslie's personal circumstances, announcing in part that "[Leslie's] ability to pay is not a factor in determining whether to reduce the bond." (Doc. 29) Having set this absolute bar to release based upon Leslie's economic status, the IJ went on, though, to find that Leslie " is not a danger to the community. He has learned his lesson and served considerable time in prison." (Id.) Instead, the IJ refused to modify Leslie's bail after finding that Leslie "does pose some degree of risk of flight." However, in this regard the IJ finding was internally inconsistent, since the IJ supported this risk of flight assessment by evidence which traditionally is relied upon to rebut a risk of flight, citing Leslie's "extensive family ties in this country" as a factor which suggested that he would flee. (Id.)
Given the profoundly flawed nature of this administrative hearing process, the petitioner renewed his request for the type of hearing expressly ordered by the court of appeals: a hearing before the District Court with instructions to conduct an individualized bond hearing as required by Diop. (Doc. 30) The District Court granted this request and on March 26, 2012, referred this matter to the undersigned. (Doc. 32) Respondents then once again sought to avoid judicial consideration of this matter by filing a second emergency motion for reconsideration which asked that no independent judicial review be conducted here. (Doc. 34) That motion was denied by the District Court on March 27, 2012, (Doc. 36), and on March 28, 2012--approximately 1,451 days after he first came into immigration custody -- Leslie received an individualized bail consideration by this Court consistent with the opinion and mandate of the court of appeals.
A. This Court May Conduct a Bail Hearing in a Habeas Corpus Proceeding Under Its Habeas Corpus Jurisdiction
In connection with this expedited habeas corpus bail hearing, the parties have submitted contrasting views regarding a threshold legal issue; namely, whether this Court can independently entertain a bail hearing in this pending habeas corpus proceeding. On this threshold question, the parties advocate dramatically different courses. The petitioner contends that such hearings, incident to the court's habeas corpus jurisdiction, are authorized by law, are contemplated by the court of appeals' mandate, and have often been conducted by the federal courts in the past. In contrast, the United States argues that this Court may not conduct bail proceedings in this federal ...