United States District Court, M.D. Pennsylvania
William W. Caldwell, United States District Judge
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.)
reasons that follow, we will grant Walters' Petition and
direct an IJ to conduct a bond hearing within twenty-one days
of our Order.
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
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.
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charges were withdrawn or dismissed.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 In May 2009, all charges were withdrawn.
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).
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.)
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
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 -
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 ...