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Walters v. Rowley

United States District Court, M.D. Pennsylvania

February 6, 2017

DWAYNE ANTHONY WALTERS, Petitioner
v.
JOHN A. ROWLEY, et al., Respondents

          MEMORANDUM

          William W. Caldwell, United States District Judge

         I. Introduction

         On November 21, 2016, Petitioner Dwayne Anthony Walters, 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). ICE has detained Petitioner since May 15, 2015. He contends his prolonged and continued mandatory detention under § 1226(c) violates his due process rights. Walters seeks a bond hearing before an Immigration Judge (IJ) or his release under supervision. (ECF No. 1, Pet.) Respondent concurs with Walters' request for a bond hearing before an IJ. (ECF No. 10, Resp.)

         For the reasons that follow, we will grant Walters' Petition and direct an IJ to conduct a bond hearing within twenty-one days of our Order.

         II. Background

         Dwayne Anthony Walters, a native and citizen of Jamaica, was admitted to the United States on January 15, 2003, as a B-2 non-immigrant, temporary visitor for pleasure. (ECF No. 10-1, p. 4.) Walters was authorized to remain in the United States for a temporary period not to exceed July 14, 2003. He did not depart and remained in the United States without authorization. (Id.)

         Walters has been arrested on multiple occasions. (Id., p. 5). On October 23, 2006, Petitioner was arrested by the Philadelphia Police Department for various drug offenses. (Id., p. 5). On September 4, 2009, he was convicted of manufacturing, delivering, or possessing with intent to manufacture or deliver and was sentenced to 11 months, 15 days to 23 months' confinement and 2 years' probation. (Id., p. 5). All other charges stemming from the October 23, 2006, arrest were nolle prossed. (Id.)

         In the interim, Walters was arrested by the Philadelphia Police Department on December 14, 2006, February 2, 2007, and June 5, 2007, for various drug offenses. In each instance the charges were withdrawn or dismissed. (Id.) On February 28, 2009, Petitioner was again arrested by the Philadelphia Police Department for the following offenses: Aggravated Assault; Criminal Conspiracy Engaging Aggravated Assault; Firearms Not to be Carried without a License; Possession of Instrument of Crime; and Terroristic Threats with intent to Terrorize Another; Simple Assault; and Recklessly Endangering Another Person. (Id., pp. 5 - 6). In May 2009, all charges were withdrawn.

         On March 4, 2011, Walters was arrested by the Bensalem Police Department on various drug charges. (Id., p. 6). On June 24, 2014, Walters was found guilty of manufacturing, delivering, or possessing with intent to manufacture or deliver. He received and 11 months 29 days to 23 months 28 days' incarceration and 3 years' probation. He also received one year of probation on his conviction for Use/Possession of drug paraphernalia. (Id., p. 6).

         On June 7, 2013, Walters was arrested by the Philadelphia Police Department for intent to possess a controlled substance. All charges were withdrawn on June 4, 2014. (Id.)

         On January 26, 2014, Petitioner was arrested for receiving stolen property, resisting arrest/other law enforcement, and the unauthorized use of a motor vehicle. On August 26, 2014, after pleading guilty to receiving stolen property and resisting arrest, he was placed on probation. See Commonwealth v. Walters, CP-51-CR-002825-2014 (Pa. Ct. Com. Pl. Phila. Cnty), available at https://ujsportal.pacourts.[1]

         On May 14, 2015, Walters was apprehended by the Philadelphia Police Department for an outstanding criminal warrant. (Id., p. 14). He was placed in ICE custody the same day. (Id.) On May 11, 2015, ICE officials issued a Notice of Intent to Issue a Final Administrative Removal Order charging Walters as removable from the United States pursuant to Section 237(a)(2)(A)(iii) of the INA based on his conviction for an aggravated felony. (Id., pp. 8 - 10). When served with ICE's Notice on May 15, 2015, Walters expressed a fear of being returned to Jamaica and requested withholding of removal. (Id., p. 9). After an interview, an Asylum Officer concluded that Walters had a reasonable fear of persecution or torture, and on June 30, 2015, referred the matter to an IJ. (Id., pp. 11 - 12).

         On August 13, 2015, the Department of Homeland Security (DHS) indicated it was ready to proceed with Walters' case and objected to any further continuances. (Id., p. 13). In the interim, at Walter's request for parole, DHS considered Walter for release. (Id., pp. 14 - 15). On August 21, 2015, Walters' request for parole was denied because DHS did not find his case presented an urgent humanitarian reason or significant public benefit to support his release. (Id.) DHS also told Walters that he:

must demonstrate that [he] does not pose a potential danger to the community or pose a flight risk to be eligible for release. The recidivist nature of your criminal history indicates you are not able to meet these requirements. You have been arrested and charged with criminal offenses on at least eight occasions. You have been convicted of several felony offenses including a crime that constitutes an aggravated felony. You also have a history of failing to abide by the conditions governing your release from custody, as you failed to attend criminal proceedings after being released on bond and were arrested and charged with criminal offenses after being released from ...

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