United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
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
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).
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.).Petitioner was sentenced to a six to eleven
year term of imprisonment. (Id.).
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.
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.
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.).
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.
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.
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.
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.
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