United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
Xian Chen-Chen, a detainee of the Immigration and Customs
Enforcement ("ICE"), currently confined in the Pike
County Correctional Facility, Lords Valley, Pennsylvania,
filed the above-captioned petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petitioner challenges his
continued detention by ICE pending removal. (Doc. 1).
Specifically, he states that since being taken into ICE
custody, he has not received a custody review.
(Id.). Petitioner challenges the mandatory detention
provision in 8 U.S.C. § 1226(a) and 236(c), arguing that
it is unreasonable and unconstitutional. (Id. at p.
6). Petitioner seeks immediate release, or a bond hearing to
determine the possibility of release from custody pending
removal. (Id. at p. 17). The Government does not
oppose Petitioner's request for a bond hearing. (Doc. 4).
For the reasons set forth below, the Court will grant a writ
of habeas corpus directing the Immigration Judge to conduct a
bond hearing to determine if Petitioner is a flight risk or
danger to the community.
August 4, 2009, Petitioner, a native and citizen of the
Peoples Republic of China, was admitted to the United States
as a lawful permanent resident. (Doc. 4-1, Ex. 1).
March 3, 2016, Petitioner was convicted in two separate cases
of Entry of Goods by Means of False Statements in the United
States District Court for the Northern District of West
Virginia. (Doc. 4-1, Ex. 3, p. 2). Petitioner was sentenced
to one month of confinement. (Id.).
about May 24, 2016, based on Petitioner's conviction, ICE
commenced removal proceedings against him charging him as
removable from the United States pursuant to section
237(a)(2)(A)(ii) of the Immigration and Nationality Act
("INA"). (Doc. 4-1, Ex. 1, p. 2; Doc. 4-1, Ex. 3,
p. 1). He was charged as being removable because he was
"convicted of two crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct."
(Doc. 4-1, Ex. 3, p. 1).
October 20, 2016, Petitioner was charged with being subject
to removal. (Doc. 4-1, Ex. 2, Order of the Immigration
Judge). On November 2, 2016, Petitioner appealed the
Immigration Judge's October 20, 2016 decision to the
Board of Immigration Appeal. (Doc. I, p. 3). The immigration
proceedings remain pending. (Id.).
Court has jurisdiction over Petitioner's habeas petition
and his claims challenging his prolonged pre-final order
detention by ICE at the Pike County Correctional Facility as
illegal and unconstitutional. See Leslie v. Attorney
General of U.S., 363 F.App'x 955, 957, n.1 (3d Cir.
2010) (per curiam) (citation omitted). In
considering the petition for writ of habeas corpus, this
Court notes that Petitioner is not subject to a final order
of removal, as the immigration proceedings remain pending.
Thus, this Court is forced to address whether Petitioner is
entitled to habeas relief in the nature of his release from
the Pike County Correctional Facility pending the outcome of
his immigration proceedings, or to order a bond hearing.
does not oppose Petitioner's request for a bond hearing,
and asserts that the Court should order the Immigration Judge
to conduct a bond hearing. (Doc. 4, p. 6).
Petitioner's 2016 conviction, there did exist a clear
legal basis for ICE to detain him pending the outcome of
removal proceedings. See Diop v. ICE, 656 F.3d 221,
230 (3d Cir. 2011). However, the Courts have cautioned that
the constitutionality of detention is also, at least to some
extent, a function of the length of detention. See
Diop, 656 F.3d at 232. Although mandatory detention for
some classes of aliens under § 1226(c) is
constitutional, Justice Kennedy's concurring opinion in
Demore v. Kim, etai, 538 U.S. 510, 532, (2003),
helps inform the Diop Court's emphasis that
continued detention can become unconstitutional unless the
government justifies its actions at a hearing designed to
ascertain whether continued detention of the
alien is necessary to achieve the law's stated purposes
of preventing flight and minimizing potential dangers to the
community. Diop, 656 F.3d at 233. The Court in
Diop stresses that, at some point, absent an
individualized bond hearing, continued detention becomes
presumptively unreasonable. Id.
has now been detained by ICE for approximately nine (9)
months. Although the statutory law does seemingly dictate
mandatory custody, "[w]e do not believe that Congress
intended to authorize prolonged, unreasonable, detention
without a bond hearing." Hernandez v. Sabol,
823 F.Supp.2d 266, 272 (M.D. Pa. 2011). Section 1226(c)
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. See Diop, 656 F.3d at 231.
Thus, the Court will direct that Petitioner be granted a bond
hearing to ascertain whether the immigration court considers
him a flight risk or a danger to the community were he to be
released pending the outcome of his immigration proceedings.
Court's decision is entirely consistent with other case
law from the Middle District of Pennsylvania, as well as with
the Diop Court's caution that prolonged
detention of an alien (35-month detention in Diop),
absent an individualized bond hearing, can become
presumptively unreasonable. See Bautista v. Sabol,862 F.Supp.2d 375 (M.D. Pa. 2012). Following Diop,
the Middle District Court has ruled that a petitioner,
detained for approximately twenty (20) months under §
1226(c), was entitled to release while his appeal of removal
was pending in the immigration court and the Board of
Immigration Appeals. See Gupta v. Sabol, 2011 WL
3897964, *1 (M.D. Pa. 2011). The Gupta Court stated
that such decisions reflect "a growing consensus within
this district and throughout the federal courts [ ] that
prolonged detention of aliens under § 1226(c) ...