United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge
November 17, 2016, Petitioner Andrew Kennedy, filed a
Petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, challenging his mandatory detention pursuant to
section 236(c) of the Immigration and Nationality Act (INA),
8 U.S.C. § 1226(c), by the United States Department of
Homeland Security, Immigrations and Customs Enforcement (ICE)
since October 15, 2015 without an individualized bond hearing
and determination to justify his detention. He contends his
prolonged and continued mandatory detention under §
1226(c) violates his due process rights. Kennedy seeks a bond
hearing before an Immigration Judge (IJ) or his release under
supervision. (ECF No. 1, Pet.) Respondent concurs with
Kennedy's request for a bond hearing before an IJ. (ECF
No. 8, Resp.)
reasons that follow, we will grant Kennedy's Petition and
direct an IJ to conduct a bond hearing within twenty-one days
of our Order.
Kennedy, a native and citizen of Jamaica, entered the United
States as an immigrant on December 6, 1984. (ECF No. 8-2, p.
3). On November 20, 1997, ICE initiated removal proceedings,
charging Kennedy as removable from the United States under
sections 237(a)(2)(A)(ii), 237(a)(2)(iii), 237(a)(2)(B)(I)
and 237(a)(2)(C) of the Immigration and Nationality Act
(INA), 8 U.S.C. §§ 1227, for convictions for
weapons and cocaine offenses in the United States District
Court for the District of Maryland and the State of New York.
(Id., pp. 2 - 4).
April 10, 1997, an IJ ordered Kennedy removed from the United
States and held he was not eligible for any form of relief
from removal because of the nature of his convictions.
(Id., pp. 5 - 8). Kennedy appealed to the Board of
Immigration Appeals (BIA), which affirmed the IJ's
decision. (Id., pp. 9 - 11).
officials took Kennedy into custody from the Federal
Correctional Institution in Otisville, New York on October
30, 2015. (Id., p. 16). On December 30, 2015, the
BIA denied Kennedy's motion to reopen. (Id., pp.
23 - 26). However, on February 29, 2016, the BIA granted
Kennedy's unopposed motion to reopen his immigration
proceedings and remanded the case to the Immigration Court
for consideration of an application for protection under the
Convention Against Torture. (Id., pp. 27 - 29). On
July 20, 2016, an IJ held that based on the evidence
presented, Kennedy “is likely to be targeted for
violence upon his return [to Jamaica] as a homosexual,
” and so finding granted him deferral of removal.
(Id., pp. 17 - 22). The Government appealed the
IJ's decision and the appeal is currently pending before
the BIA. (Id., pp. 30 - 47).
is being held pursuant to the mandatory detention statute
under 8 U.S.C. § 1226(c), or § 236 (c) of the INA.
This statute provides for the mandatory detention, without
bond while removal proceedings are pending, of those aliens
who committed certain enumerated categories of criminal and
other offenses. See 8 U.S.C. § 1226(c)(1).
“The Supreme Court left no doubt that the
Government's authority under section 1226(c) to detain
aliens without an opportunity for bond complies with the
Constitution.” Chavez-Alvarez, 783 F.3d 469,
473 (3d Cir. 2015) (citing Demore v. Kim, 537 U.S.
510, 531, 123 S.Ct. 1708, 1722, 155 L.Ed.2d 724 (2003)).
However, “there are limits to this power.”
Chavez-Alvarez, 783 F.3d at 473 (citing Diop v.
ICE/Homeland Sec., 656 F.3d 221, 235 (3d Cir. 2011)).
“[T]he statute 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 purpose of
ensuring that an alien attends proceedings and that his
release will not pose a danger to the community.”
Diop, 656 F.3d at 231 - 32; see also
Chavez-Alvarez, 783 F.3d at 475. “[W]hen detention
becomes 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.” Diop, 656 F.3d at
233. The Government must “produce individualized
evidence that [the alien's] detention was or is
necessary.” Chavez-Alvarez, 783 F.3d at 478.
establishing a bright-line rule as to when pre-removal
detention tips the scales in favor of an individualized bond
hearing for aliens held pursuant to § 1226, the Third
Circuit Court has held that the determination as to whether
an individual's detention is no longer reasonable in
length is a “fact- dependent” inquiry and thus
made on a case-by-case basis, with the government being
required to show more than a mere presumption that the alien
is dangerous or a flight risk based on past criminal charges.
Chavez-Alvarez, 783 F.3d at 474-75. The Court
further explained that “beginning sometime after the
six-month timeframe considered by Demore, and
certainly by the time Chavez-Alvaez had been detained for one
year, the burden to Chavez-Alvarez's liberties outweighed
any justification for using presumptions to detain him
without bond to further the goals of the statute.”
Id. at 478.
instance, Kennedy has been held in ICE custody pursuant to
§ 1226(c) for approximately fifteen months. In light of
Chavez-Alvarez, supra, and after weighing
all the factors, we conclude that Kennedy is entitled to an
individualized bond hearing before an IJ to determine
“whether [his] detention is still necessary to fulfill
the [INA'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. At such an individualized hearing, Respondent must
justify its continued detention of the detainee. The
Respondent shall bear the burden of proving, by clear and
convincing evidence, that Kennedy's continued detention
is still necessary to fulfill the purposes of the detention
statute. See Guerrero Sanchez v. Sabol, No.
1:15-CV-2423, 2016 WL 7426129, ** 5 - 6 (M.D. Pa. Dec. 23,
2016) (Caldwell, J.) (citing Lora v Shanahan, 804
F.3d 601, 616 (2d Cir 2015) and Sing v. Holder, 638
F.3d 1196, 1203 (9th Cir. 2011)). A section 1226
detainee's dangerousness and flight risk must be made on
a current basis. Id., 2016 WL 7426129, at ** 4 - 5
(reviewing Respondent's burden of proof at individualized
bond hearing of section 1226 detainees when assessing
present-day danger to the community and flight risk) (citing
Chi Thon Ngo v. I.N.S., 192 F.3d 390, 398 (3d Cir.
1999)). A federal district court granting habeas relief to a
section 1226 detainee in the form of a bond hearing before an
immigration judge may provide the Petitioner with its own
bond hearing or even release if the hearing before the