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Marlon v. Holder

United States District Court, Middle District of Pennsylvania

February 28, 2014

HENRY A. MARLON, Petitioner
v.
ERIC HOLDER, et al., Respondents

Kane Judge

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT United States Magistrate Judge

I. Procedural Background.

On September 13, 2013, Petitioner, Henry A. Marlon, a detainee of the Bureau of Immigration and Customs Enforcement (“ICE”) confined at York County Prison, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Petitioner, proceeding pro se, names as Respondents: Attorney General Eric Holder; Janet Napolitano, Secretary of the Department of Homeland Security; Thomas L. Decker, District Director of the Pennsylvania Field Office for ICE; and Mary Sabol, Warden of the York County Prison (“YCP”) (collectively, “Respondents”)[1], where Petitioner is currently confined.[2] (Doc. 1). Petitioner attached Exhibits to his habeas petition. Petitioner also filed a Motion to proceed in forma pauperis, but we denied it since Petitioner had sufficient funds in his inmate account to pay the filing fee. Petitioner then paid the filing fee. (Docs. 2, 6, 7 & 9).

The Court issued an Order to Show Cause on October 24, 2013, and directed Respondents to respond to the habeas petition. (Doc. 11). On November 13, 2013, Respondents filed a Response to the Habeas Petition, with attached unpublished decisions and Exhibits. (Docs. 14, 14-1 & 14-2). On November 27, 2013, Petitioner filed a Motion for an Extension of Time to file his Traverse and for a copy of Respondents’ Response. (Doc. 15). Petitioner filed an 8-page Traverse, styled as a “Response to the Respondent’s Motion to Dismiss the Writ of Habeas Corpus, ” on December 19, 2013. (Doc. 17). On January 13, 2014, Respondents filed an Amended Certificate of Service regarding their Response to Petitioner ‘s habeas petition stating that their Response that was initially mailed to Petitioner at YCP was returned as undeliverable since it had an incorrect Alien number for Petitioner. (Doc. 18). Regardless, Petitioner stated that he received a copy of the Respondents’ Response from the Clerk of Court on December 13, 2013. (Doc. 19, p. 1, ¶ 5).

We find Petitioner’s Motion for an Extension of Time to file his Traverse and for a copy of Respondents’ Response (Doc. 15) to now be moot.

On January 21, 2014, Petitioner filed a “Motion for Reconsideration to Compel/or to Proceed on the Petitioner ‘s Habeas Corpus.” (Doc. 19). The Clerk of Court docket Petitioner ‘s Doc. 19 Motion as a Motion to Expedite his case. In his Motion, Petitioner requests that this Court grant him a bond hearing, and he states that he is not a danger to the community and that he is not a flight risk. Petitioner also requests the Court to rule on his habeas petition and to deny Respondents’ request to dismiss it.

In his habeas petition, Petitioner basically claims that the mandatory detention provision of §236(c) of the INA does not apply to him since ICE did not take him into custody when he was released from prison, rather, 10 months lapsed before he was taken into custody by ICE. In his habeas petition, Petitioner requests that this Court grant him a bond hearing under §236(a) of the INA.

As discussed below, we agree with Respondents that the Third Circuit Court of Appeals’ precedential decision in Sylvain v. Attorney General of the United States, 714 F.3d 150, 2013 WL 1715304 (3d Cir. April 22, 2013), is directly on point with the main issue in the instant case, namely, whether Petitioner is subject to mandatory detention under 8 U.S.C. §1226(c) [§236(c) of the INA] since he was not immediately taken into custody by ICE “when released” from custody on his removable offense.[3] We agree with Respondents, based on the Third Circuit’s decision in Sylvain v. Attorney General of the United States, supra, that Petitioner’s claim he is not subject to mandatory detention is without merit. See Espinosa-Almonte v. Sabol, Civil No. 12-2514, M.D. Pa., 2013 WL 3894861 (M.D.Pa. July 26, 2013).

The habeas petition is now ripe for disposition.

II. Factual Background.

Petitioner is a citizen and native of Trinidad and Tobago. (Docs. 1 and 14, Ex. 1). He entered the United States as a nonimmigrant visitor for pleasure on June 21, 1990. (Doc. 14, Ex. 2). Petitioner ‘s status was adjusted to lawful permanent resident on December 2, 1993. (Id.).

On February 27, 2007, Petitioner was convicted in the Court of Common Pleas, Philadelphia County, Pennsylvania, of Involuntary Deviate Sexual Intercourse and Sexual Assault. (Doc. 14, Ex. 2 & Ex. 4). As a result of that conviction, Petitioner was sentenced to three years and six months to seven years in prison. (Id.). Also, as a result of that conviction, on May 22, 2013, ICE issued a Notice to Appear, charging that Petitioner Marlon was removable pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Naturalization Act (“INA”), for committing an aggravated felony as defined by Section 101(a)(43)(F), and for committing an aggravated felony related to the sexual abuse of a minor as defined by Section 101(a)(43)(A). (Doc. 14, Exs. 1 & 2).

On May 30, 2013, at about 8:00 a.m., Petitioner was arrested and taken into custody by ICE officials at Willows Avenue in Philadelphia. ICE determined that Petitioner was subject to mandatory detention under §236(c) of the INA, and that he would remain in ICE custody with no bond hearing. (Doc. 14, Ex. 1).

Petitioner made a request for release on bond, and on June 26, 2013, an Immigration Judge (“IJ”) denied it. (Doc. 14, Ex. 5). The IJ issued a Memorandum of Decision and Order on July 21, 2013, regarding Petitioner’s request for release on bond. (Doc. 14, Ex. 6). The IJ found no merit to Petitioner ‘s contention that he was not subject to mandatory detention under §236(c) of the INA since ICE officials did not immediately take him into custody when he was released from his prison sentence. The IJ relied upon the Third Circuit’s decision in Sylvain, supra, as well as the case of Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), and found that even though Petitioner was not immediately taken into custody by ICE when he was released from confinement, Petitioner was still subject to mandatory detention.

In August 2013, Petitioner, through counsel, filed a Motion for Bond Redetermination with the Board of Immigration Appeals (“BIA”) arguing that he was not subject to mandatory detention under §236(c) of the INA since he was released from prison after serving his Philadelphia County sentence about 10 months before ICE officials took him into custody. Petitioner claimed that he was improperly subjected to mandatary detention. Petitioner relied on the New Jersey District Court’s June 28, 2011 decision in Sylvain v. Attoreny General of the United States, 2011 U.S.Dist. LEXIS 69591 (D.N.J. June 28, 2011). Respondents attached a copy of this unpublished decision to their Response. (Doc. 14-1). However, the New Jersey District Court’s June 28, 2011 decision in Sylvain v. Attoreny General of the United States, 2011 U.S.Dist. LEXIS 69591 (D.N.J. June 28, 2011), was overturned by Sylvain v. Attorney General of the United States, 714 F.3d 150 (3d Cir. April 22, 2013). On August 27, 2013, the BIA dismissed Petitioner ‘s appeal of the IJ’s decision denying his request for release on bond.[4] (Doc. 14, Ex. 8).

Petitioner’s removal proceedings before the immigration court were initially rescheduled for June 26, 2013, in York County, Pennsylvania, and then re-scheduled for August 12, 2013, and for September 4, 2013, and finally re-scheduled for November 13, 2013. (Doc. 14, Ex. 9). Respondents stated that “[t]he time needed to adjudicate Marlon’s challenge to his detention has delayed the removal proceedings.” (Doc. 14, p. 4). Respondents’ Ex. 9 indicates that Petitioner’s removal hearing, which was re-scheduled for November 13, 2013, was to be a “merits” hearing. Since Respondents’ instant Response in this case was filed on November 13, 2013, they did not state whether Petitioner had his merits removal hearing, and if so, the result. Nor does Petitioner state in his December 19, 2013 Traverse (Doc. 17) whether ...


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