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Polanco v. Lowe

United States District Court, Middle District of Pennsylvania

March 17, 2015

DIONI M. POLANCO, Petitioner
v.
WARDEN CRAIG LOWE, et al. Respondents

MEMORANDUM

MALACHY E. MANNION United States District Judge

Petitioner Dioni M. Polanco, a detainee of Immigration and Customs Enforcement (“ICE”) has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2241. (Doc. 1). He requests that this Court order his release from custody pending adjudication of his removal proceedings. (Doc. 1). For the reasons set forth below, the petition is denied without prejudice.

I. Background

Polanco, a native and citizen of the Dominican Republic, entered the United States on November 29, 2006 on a visitor visa, with authorization to stay until May 27, 2007. (Doc. 7, Ex. 1, 2). Polanco did not depart from the United States and on May 28, 2010, he was charged as removable for overstaying his visa. Id. at Ex. 2. Polanco’s removal was delayed as he sought an adjustment of immigration status based on marriage to a United States citizen. Id. at Ex. 3.

On May 13, 2013, Polanco pleaded guilty to possession of a controlled substance (cocaine) and conspiracy to possess a controlled substance. Id. at Ex. 7. He was sentenced to two one-year terms of probation, and was immediately released from custody of the State. Id. On May 17, 2013, Polanco was taken into ICE custody. Id. at Ex. 3, ¶ 15.

Polanco appeared before an immigration judge (“IJ”) on June 17, 2013 and requested a continuance in order of obtain counsel. Id. at ¶ 17. On July 1, 2013, Polanco again appeared before the IJ and indicated that he had obtained counsel who could not be present that day. Id. Proceedings were therefore delayed until July 29, 2013, when Polanco again appeared without counsel. Id. at ¶ 19. Polanco reiterated that he had obtained counsel and the IJ again continued the hearing to allow counsel to appear. Id. On August 12, 2013, Polanco again appeared before the IJ without counsel. Id. at ¶ 20. Despite no entry of appearance by an attorney having been filed with the court, Polanco continued to insist that he had retained counsel. Id. Therefore, the IJ again continued the hearing. Id.

On August 8, 2013, ICE served additional charges of deportability on Polanco, charging him as removable under 8 U.S.C. §1227(a)(2)(B)(I). Id. at Ex. 10. On August 12, 2013, ICE filed a Notice of Readiness and Objection to Continuances with the IJ. Id. at Ex. 11. On August 22, 2013, attorney Greg Felixson filed an entry of appearance and emergency motion for a continuance, stating that he had been retain by Polanco that day. Id. at Ex. 3, ¶ 21. The IJ granted this request, and again delayed the proceedings. Id.

On September 9, 2013, ICE officials served Polanco’s attorney with additional evidence in support of removability. Id. at ¶ 23. On September 30, 2013, more than four months after being detained, Polanco for the first time appeared with his attorney before the IJ. Id. at ¶ 24. Polanco stated that he had a pending application for adjustment of status that had not been adjudicated. Id. ICE officials argued that the application was irrelevant because Polanco was ineligible for adjustment of status due to his criminal convictions. Id. On October 28, 2013, Polanco conceded removability based upon his criminal convictions. Id. at ¶ 25. However, he notified the IJ of his desire to apply for asylum, and therefore removal was stayed pending a hearing. Id.

On December 23, 2013, all evidence in the matter of Polanco’s asylum hearing was filed. Id. at ¶ 26. On February 26, 2014, while his asylum application was pending, Polanco filed a petition for writ of habeas corpus with this Court. (Doc. 1). On April 9, 2014, the IJ held an asylum hearing and denied Polanco’s application, ordering him removed to the Dominican Republic. (Doc. 10, Ex. 2). On May 8, 2014, Polanco appealed this decision to the Board of Immigration Appeals (“BIA”), and on October 24, 2014, the BIA remanded the case due to missing audio records from the asylum hearing. Id. at Ex. 1, 2.

On January 21, 2015, the IJ denied a request for a continuance to allow a witness to testify in person. Id. at Ex. 4. A hearing was scheduled for January 22, 2015, but the hearing was postponed when Polanco’s attorney could not appear due to weather. Id. at Ex. 1, ¶ 7. The hearing was held on February 4, 2015, and on February 26, 2015, the IJ issued a decision denying Polanco’s asylum application. Id. at Ex. 1, ¶ 7, Ex. 5.

II. Discussion

Polanco has filed this petition raising a single argument: his detention has lasted for an unreasonable duration, and therefore he should be granted a bond hearing pursuant to Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011). (Doc. 1). Respondents contend that Polanco’s detention has not become unreasonably lengthy as most of the delays were caused by Polanco himself. (Doc. 7).

Polanco has been detained by ICE based upon his state court conviction for possession of cocaine. Id. at Ex. 10. Polanco conceded removability from the United States based on this conviction. Id. at Ex. 3, ¶ 26. This conviction renders an individual removable from the United States pursuant to 8 U.S.C. §1227(a)(2)(B)(I). However, because Polanco is pursuing relief under the Convention Against Torture, his order of removal is not yet final. Consequently, Polanco is subject to mandatory detention without release on bond pursuant to 8 U.S.C. §1226(c)(1)(B).

Although Section 1226(c) requires detention without a bond hearing, the Third Circuit has concluded that Section 1226(c) “contains an implicit limitation of reasonableness: the statute authorizes only mandatory detention that is reasonable in length.” Diop, 656 F.3d at 235. Where detention has become unreasonable, “the Due Process Clause demands a hearing, at which the Government bears the burden of proving that continued detention is necessary to fulfill the purposes of the detention statute.” Id. at 233. Thus, the Third Circuit “laid out a two step-process: a reviewing court must first determine that a detention had been unreasonably long, and following such a determination, ...


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