United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY United States District Judge.
Jashim Reza, a detainee of the Bureau of Immigration and
Customs Enforcement (ICE) presently confined at the Pike
County Prison, Lords Valley, Pennsylvania, filed this pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. Named as Respondents are various federal
officials and Warden Craig A. Lowe of the Pike County Prison.
Service of the petition was previously ordered.
states that he is a native and citizen of Bangladesh who
first entered the United States on or about December, 1990.
He subsequently adjusted his status to that of a lawful
permanent resident. Reza is married to a United States
citizen and their son is a United States citizen. While in
this country, Reza was convicted of conspiracy to commit bank
fraud on November 18, 2014 in the United States District
Court for the Southern District of New York. He was sentenced
to a six month term of imprisonment. Removal proceedings were
initiated against him on the basis of that conviction and he
was taken into ICE custody on May 18, 2015. An immigration
judge ordered his removal on November 17, 2016. An appeal of
that decision was pending with the Board of Immigration
Appeals at the time this matter was initiated. Petitioner
indicates that he has been detained by ICE for a period of
over 19 months.
pending § 2241 petition challenges Petitioner's
continued indefinite detention. As relief, Reza seeks a bond
hearing or his release from custody. See Doc. 1, pp.
2-3. Respondent concedes that the Court should order that a
bond hearing be held before an immigration judge.
See Doc. 3, p. 3.
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, Reza 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., Gourzonq 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- ...