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Singh v. Lowe

United States District Court, M.D. Pennsylvania

March 7, 2017

GURSAHIB SINGH, Petitioner,
v.
CRAIG LOWE, et al., Respondents

          Mannion Judge.

          REPORT AND RECOMMENDATION

          Martin C. Carlson United States Magistrate Judge.

         I. Statement of Facts and of the Case

         As we have recently observed:

         For the past fifteen years federal courts have frequently been tasked with the responsibility of defining the contours of the due process protections afforded to aliens who are detained for extended periods of time while awaiting the completion of immigration removal proceedings and removal from the United States. These cases have come before the courts in a variety of factual settings, against the backdrop of a statutory immigration system which often called for mandatory detention of classes of aliens facing removal from the United States. Yet, while the claims and legal contexts of these cases have varied widely, one recurring theme has emerged over time: Fundamental principles of fairness and due process compel that these aliens have some rights to bond consideration and may not face prolonged, indefinite immigration detention bereft of any right to due process in the form of an individualized bond determination. Ahad v. Lowe, No. 1:16-CV-1864, 2017 WL 66829, at *2 (M.D. Pa. Jan. 6, 2017).[1]

         This case involves the latest legal variation on these emerging themes: the question of the degree of due process protection afforded “arriving aliens, ” aliens who arrive at the United States border and present themselves to immigration officials seeking refuge in this country. The pertinent facts in this case can be simply stated: The petitioner, Gursahib Singh, is a native and citizen of India. Some sixteen months ago, on November 17, 2015, Singh was encountered by immigration officers at the Gateway to the Americas Bridge I in Laredo, Texas. (Doc. 4, Withdrawal of Application for Admission/Consular Notification, Ex. 1, at 1.) Singh applied for admission to the United States by requesting political asylum, claiming he was afraid to return to his native India. (Id.)

         As an alien who presented himself for admission at the border, Singh was classified as an “arriving alien, ” under 8 C.F.R. § 1001.1(q); that is, “an applicant for admission coming or attempting to come into the United States at a port-of-entry.” 8 U.S.C. § 1225(b) applies to “arriving aliens” like Singh and sets forth procedures for the inspection and detention of aliens who are applicants for admission to the United States. Specifically, under § 1225(b), arriving aliens are inspected immediately upon arrival in the United States by an officer of the Department of Homeland Security Bureau of Customs and Border Protection. If, during that screening, the immigration officer determines that the alien is inadmissible because of the alien's inability to produce a “valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document . . ., ” 8 U.S.C. § 1182(a)(7), “the officer shall order the alien removed from the United States without further hearing or review, ” a process referred to as expedited removal. See 8 C.F.R. § 1235.3(b)(1)(I), (b)(2)(ii) (providing that arriving aliens subject to expedited removal are not entitled to a hearing or appeal of this decision). However, if the alien “indicates an intention to apply for asylum . . . or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer.” 8 U.S.C. § 1225(b)(1)(A)(ii); see 8 C.F.R. § 235.3(b)(4) (“If an alien subject to the expedited removal provisions indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country, the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer . . . .”).

         If the asylum officer determines at the time of the interview that the alien has a credible fear of persecution, that alien “shall be detained for further consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). Should the alien receive a positive credible fear determination, the alien will be subsequently placed in removal proceedings. 8 C.F.R. § 235.6(a)(1)(ii). However, during the pendency of these proceedings the statute and regulations provide that the alien will remain detained pursuant to 8 U.S.C. § 1225(b)(2)(A), subject only to the exercise of the Attorney General's discretionary parole authority. Thus, the only prescribed statutory mechanism for an alien's release from § 1225(b) custody is under 8 U.S.C. § 1182(d)(5)(A), which vests the Attorney General with discretion to release an alien temporarily on parole “under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit . . . .” Parole decisions under § 1182 are purely discretionary and immigration judges lack statutory authority to determine whether an arriving alien may be released on bond during removal proceedings. See 8 C.F.R. § 1003.19(h)(2)(i)(B) (“[A]n immigration judge may not redetermine conditions of custody imposed by the Service with respect to the following classes of aliens: . . . (B) Arriving aliens in removal proceedings, including aliens paroled after arrival pursuant to section 212(d)(5) of the Act . . . .”).

         In accordance with this statutory and regulatory scheme, Singh was taken into immigration custody when he presented himself at the border and on December 31, 2015, immigration officials issued a Notice to Appear charging that Singh was removable pursuant to Section 212(a)(7) (A)(i)(I) of the Immigration and Nationality Act as an arriving alien under 8 U.S.C. §1225(b) who lacked adequate documentation. (Id., Notice to Appear, Ex. 2.) On February 24, 2016, DHS performed an administrative custody review and determined that Singh would remain detained pending removal efforts. Singh's efforts to secure further consideration of his requests for bond or release pending removal through the immigration system were unavailing. Thus, on March 7, 2016, a hearing was held regarding a change in custody status per 8 C.F.R. 236.1(c) request by Singh. Bound by the provisions of the Act, the Immigration Judge denied a change in custody because Singh was an arriving alien and the immigration court had no jurisdiction to make that determination. (Id., Order of the Immigration Judge with Respect to Custody, Ex. 3.)

         On August 30, 2016, the Immigration Judge then held an Individual Merits Hearing in Singh's case and ordered Singh removed to India. (Id., Amended Order of the Immigration Judge, dated August 30, 2016, Ex. 4.) Singh's applications for asylum and withholding of removal were also denied at this time. (Id.) Singh appealed these rulings to the Board of Immigration Appeals (BIA) and that appeal is currently pending. (Id., Notice-Briefing Extension Request Granted, Ex. 5.)

         In the meanwhile, Singh has remained detained in immigration custody for the past 16 months without any meaningful bond consideration. This prolonged pre-removal detention inspired Singh to file this petition for writ of habeas corpus on January 20, 2017, seeking individualized bond consideration. (Doc. 1.) The government opposes this petition. (Doc. 4.) In its opposition the government adopts a categorical view, arguing that it possesses the authority to detain Singh for an indefinite and prolonged period without any bond consideration pursuant to 8 U.S.C. §1225(b)(2)(A). This argument rests upon several legal pillars. First, the government relies upon the statutory text of §1225(b), which requires mandatory civil detention during the pendency of Singh's removal proceedings, but also vests the Attorney General with unreviewable authority to parole an arriving alien. The Government then argues that cases which have provided some due process protections to other detained aliens awaiting removal like Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 472-73 (3d Cir. 2015), are inapplicable here, given that Singh's detention as an arriving alien is controlled by a different immigration detention statute than that addressed in Chavez-Alvarez. Finally, the Government argues that “arriving aliens, ” like Singh, who have never been admitted to the United States, enjoy far less constitutional protections than other detained aliens, are subject to the executive's plenary power to control the borders and thus, can be subject to indefinite detention. (Doc. 4.)

         For the reasons set forth below, we find that the legal pillars of the respondent's position fail when cast against the rising tide of case law which recognizes certain basic and minimal due process protections in this field. Therefore, we recommend that this petition be granted, and Singh be afforded bond consideration.

         II. Discussion

         A. Development of Due Process Protections for Immigration Detainees

         The instant federal habeas corpus petition called upon us to reflect upon the development of constitutional case law defining the contours of the right of immigration detainees to receive a minimal level of due process protection, an individualized bond hearing when confronted with indefinite confinement. As we have observed, these cases defining the due process which an detained alien is entitled to receive have arisen in a variety of factual contexts. Some cases have involved detention following the entry of a final removal order; others have examined the requirements of due process in the setting where an alien is detained pending final removal hearings. Furthermore, courts have assessed these due process considerations when examining claims brought both by aliens who had been admitted to the United States, but now are subject to removal, as well as due process arguments advanced by aliens like Singh who were never legally admitted to the United States. While these cases have been many and varied, one theme runs through the case law; an emerging recognition that the rising tide of case law holds that the basic requirements of due process call for some individualized bond consideration before persons are consigned to detention of an indefinite and unreasonable duration.

         This developing legal consensus first began to emerge in cases involving detained aliens who were the subject of final removal orders. For aliens awaiting removal, the contours of this right to due process was defined by the United States Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the United States Supreme Court extended due process protections to aliens who were subject to final removal orders and were awaiting removal from the United States. While the Court sustained the validity of the initial mandatory detention period for such aliens during the ninety-day removal period prescribed by 8 U.S.C. ยง 1231(a)(1) (A), ...


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