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McDonald v. Lowe

United States District Court, M.D. Pennsylvania

February 23, 2017

CRAIG A. LOWE, et al., Respondents


          Robert D. Mariani United States District Judge

         Petitioner, Julian Dain McDonald, 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). Petitioner seeks release pursuant to an order of supervision, or an individualized bond hearing. (Id. at p. 14). The Government does not oppose Petitioner's request, for a bond hearing. (Doc. 5). 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.

         I. Background

         On or about July 21, 2000, Petitioner, a native and citizen of Jamaica, was admitted to the United States as a lawful permanent resident. (Doc. 5-1, Ex. 1).

         On September 9, 2010, Petitioner was convicted of manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance in the Bedford County Pennsylvania Court of Common Pleas. (Doc. 1, pp. 5-6; Doc. 5-1, Ex. 1). See also Commonwealth v. McDonald, CP-05-CR-0000328-2009 (Bedford Cty. Ct. Com. PI.).[1]Petitioner was sentenced to a six to eleven year term of imprisonment. (Id.).

         On or about April 6, 2012, based on Petitioner's conviction, ICE commenced removal proceedings against him charging him as removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) for his conviction of a controlled substances offense, other than an offense involving possession for one's own use of thirty grams or less of marijuana; 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii) for his conviction of an aggravated felony controlled substances offense; and, 8 U.S.C. §§ 1101(a)(43)(U), 1227(a)(2)(A)(iii) for his conviction of an aggravated felony conspiracy offense. (Doc. 5-1, Ex. 1, pp. 1-2).

         On May 24, 2013, Petitioner was charged with being subject to removal. (Doc. 5-2, Ex. 2, Order of the Immigration Judge). Petitioner did not file an appeal, and his removal order became final thirty days later on June 24, 2013. (Id.); see also 8 C.F.R. § 1003.39.

         On May 3, 2016, Petitioner was released from state custody after serving six years and nine months of his six to eleven year prison sentence. (Doc. 1, p. 6). On May 3, 2016, Petitioner entered ICE custody. [Id.).

         Petitioner filed an untimely motion to reopen removal proceedings with the Immigration Judge. (Doc. 5-3, Ex. 3, July 5, 2016 Order of the Immigration Judge). On July 5, 2016, the Immigration Judge considered the untimely motion, but ultimately denied the motion. (Id.). The Immigration Judge found, inter alia, that sua sponte reopening was not warranted because Petitioner remained convicted of an aggravated felony offense, and therefore remained precluded from establishing his eligibility for cancellation of removal. [Id.). Petitioner filed a timely appeal. (Doc. 5-4, Ex. 4). On November 17, 2016, the Board of Immigration Appeals ("BIA") affirmed the Immigration Judge's decision and dismissed the appeal. (Id.).

         On December 14, 2016, Petitioner filed a petition for review of the BIA's final order of removal with the United States Court of Appeals for the Third Circuit. See McDonald v. Attorney General of the U.S., No. 16-4323 (3d Cir.). Petitioner also filed a motion for a stay of his removal. Id. The Government opposed the stay of removal. Id. On December 14, 2016, the Third Circuit granted a temporary stay of removal, until the Court can fully consider the motion for stay of removal. Id. The petition for review and motion for a stay of removal remain pending before the Third Circuit. Id.

         II. Discussion

         Although Petitioner's removal proceedings were final, the Third Circuit entered an order staying his removal. Because Petitioner appealed to the Third Circuit, the final order was essentially "revoked" and no final order has yet been entered due to Petitioner's current pending appeal. See 8 U.S.C. § 1231(a)(1)(B)(ii) ("The removal period begins on the latest of the following ... [i]f the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order."); see also Leslie v. Attorney General of U.S., 678 F.3d 265, 270 (3d Cir. 2012). Thus, Petitioner is subject to pre-final order detention, and the Court must determine whether he 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. Respondent does not oppose Petitioner's request for a bond hearing, and argues that the Court should order the Immigration Judge to conduct a bond hearing. (Doc. 5, pp. 4-7).

         Following Petitioner's 2010 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, et ai, 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.

         Petitioner 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 ...

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