United States District Court, M.D. Pennsylvania
Richard P. Conaboy, United States District Judge
Irwin Rhoden, a detainee of the Bureau of Immigration and
Customs Enforcement (ICE) presently confined at the York
County Prison, York, Pennsylvania, filed this pro se
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. Service of the petition was previously ordered.
states that he is a native and citizen of Jamaica who entered
the United States on or about March 16, 1996 as a lawful
permanent resident. On August 21, 2014, Petitioner plead
guilty to drug related charges in the Commonwealth of
was taken into ICE custody on March 4, 2015. Removal
proceedings were initiated against him on the basis of his
Pennsylvania state conviction and an immigration judge
ordered his removal on April 9, 2015. An appeal of that
decision with the Board of Immigration Appeals (BIA) resulted
in his case being remanded to the immigration judge for
further proceedings. An appeal of a subsequent decision by
the immigration judge is presently pending before the BIA.
Petitioner indicates that he has been detained by ICE for a
period of over a year.
pending § 2241 petition challenges Petitioner's
continued indefinite detention. As relief, Rhoden seeks a
constitutionally adequate bond hearing or his release under
supervision. Respondent concedes that "[t]he Court
should order that a bond hearing be held before an
immigration judge." Doc. 9, p. 1. For the reasons set
forth below, the Court will grant the petition and order that
an immigration judge conduct an individualized bond hearing
within thirty (30) days.
contends that he has been detained for an unreasonable amount
of time while his removal proceedings are ongoing in
violation of the Due Process Clause of the Fifth Amendment
and Demore v. Kim, 538 U.S. 510, 531 (2003).
1226(c) clearly requires that, prior to a final removal
order, an alien may be detained without being afforded a bond
hearing. However, this "mandatory detention"
provision is not without limits. In Demore, the
United States Supreme Court concluded that "[d]etention
during removal proceedings is a constitutionally permissible
part of [the deportation] process." Id. at 531.
The United States Court of Appeals for the Third Circuit has
interpreted Demore and "conclude[d] that
[§1226(c)] implicitly authorizes detention for a
reasonable amount of time, after which the authorities must
make 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 v. ICE/Homeland Sec, 656 F.3d 221, 231 (3d Cir.
2011). 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.
determination as to whether an individual's detention is
no longer reasonable in length is "a fact-dependent
inquiry that will vary depending on individual
circumstances." Id.; see also Leslie v.
Attorney Gen, of U.S., 678 F.3d 265, 269 (3d Cir. 2012).
Such an inquiry must account for delay caused by errors
necessitating appeal, as well as any continuances or delays
favorable to the detainee. Diop, 656 F.3d at 233-34.
While declining to establish a bright-line rule for the
length of time that would constitute an unreasonable
detention, the Third Circuit Court of Appeals noted that
"detention under §1226 lasts roughly a month and a
half in the majority of cases in which it is invoked, and
about five months in the minority of cases in which an alien
chooses to appeal, " id., and as a result, "the
constitutional case for continued detention without inquiry
into its necessity becomes more and more suspect as detention
continues past those thresholds." .Id. at 234.
Third Circuit in Chavez-Alvarez v. Warden York Cty.
Prison, 783 F.3d 469, 477 (3d Cir. 2015) characterized
the fact-dependent inquiry described in Diop as a
balancing test. It noted that the reasonableness of
government conduct and merit of the petitioner's
challenges are not dispositive standing alone, and are only
relevant when "weigh[ing] the various aspects of [the]
case to determine whether, and when, a tipping point has been
reached on the reasonableness of [the] detention."
should not find that delay caused by a detainee's
challenges precludes a finding of unreasonable detention
because such a finding essentially constitutes punishment for
pursuing applicable legal remedies. Id. at 475
(citing Leslie, 678 F.3d at 265). However, under
narrow circumstances, when a petitioner acts in bad faith to
delay or stall the proceeding, this tactic may preclude a
finding of unreasonable detention. Chavez-Alvarez, 783
F.3d at 476.
Chavez-Alvarez, the Third Circuit Court of Appeals
found that "beginning sometime after the six-month time
frame considered by Demore, and certainly by the
time Chavez-Alvarez had been detained for one year,
the burdens to Chavez-Alvarez's liberties outweighed any
justification for using presumptions to detain him without
bond to further the goals of the statute." Id.
acknowledges that based upon Chavez-Alvarez, Rhoden
is entitled to an individualized bond hearing since he has
been detained for approximately twenty (20) months. This
Court agrees and also recognizes that deference is owed to
the decision-making agency to oversee matters within its
jurisdiction. See, e.g., Gourzong v.
Lowe, No. 3:15-CV-1969, 2016 WL 109851, at *2 (M.D. Pa.
Jan. 11, 2016)(Mariani, J.). Based upon the Respondent's
concurrence and since the immigration court has the
expertise, familiarity, and authority to exercise
jurisdiction over bond hearings such as those contemplated
under Chavez- ...