United States District Court, M.D. Pennsylvania
AL S. WATKINS, Petitioner
MARY SABOL Respondent
D. Mariani United States District Judge
Al Watkins, a detainee of the Immigration and Customs
Enforcement ("ICE"), currently confined in the York
County Prison, in York, 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
immediate release, or a hearing before an Immigration Judge.
[Id. at p. 4). For the reasons set forth below, the
Court will grant the petition and order that an Immigration
Judge conduct an individualized bond hearing within fourteen
(14) days of the accompanying order.
November 29, 2001, Petitioner, a native and citizen of
Jamaica, was admitted to the United States as a lawful
permanent resident. (Doc. 6-1, pp. 5-6).
criminal history dates back to 2007 and includes charges of
assault, reckless endangerment, resisting law enforcement
officers, theft, and robbery involving the infliction of
serious bodily injury on another individual. (Doc. 6-1, p.
8, 2015, Petitioner pled guilty in the Philadelphia County
Court of Common Pleas to manufacturing, delivery, or
possession with intent to manufacture or deliver a controlled
substance, and conspiracy to posses with intent to
manufacture or deliver a controlled substance. (Doc. 6-1, p.
5). See also Commonwealth v. Watkins,
CP-51-CR-0012885-2013 (Philadelphia Cty. Ct. Com.
Petitioner was sentenced to a seven year term of probation to
run concurrent with a previous conviction and sentence on
March 16, 2015. (Id.).
January 5, 2016, based on Petitioner's conviction, ICE
commenced removal proceedings charging him as removable from
the United States pursuant to sections 237(a)(2)(A)(iii) and
237(a)(2)(B)(i) of the Immigration and Nationality Act
("INA") for being convicted of drug trafficking
offenses based on his guilty plea to possession of 157 pounds
of marijuana. (Doc. 6-1, pp. 8-9). Petitioner argued to the
Immigration Judge that his conviction was not a removable
drug trafficking offense because the charging criminal
information did not state the exact amount of marijuana found
in his possession. (Doc. 6-1, pp. 11-13). The Immigration
Judge noted that the criminal information charged Petitioner
with possession with intent to deliver 50 to 1, 000 pounds of
marijuana. (Id.). The Immigration Judge determined
that under the "least culpable misconduct"
analysis, possession of even 50 pounds of marijuana is a
removable offense because it far exceeds an amount an
individual would possess for personal use. (Id.).
5, 2016, Petitioner was charged with being subject to
removal. (Doc. 6-1, pp. 11-14, Order of the Immigration
Judge). On May 31, 2016, Petitioner filed an appeal with the
Board of Immigration Appeals ("BIA"). (Doc. 6-1, p.
16). The May 31, 2016 appeal remains pending. (Doc. 17-1, p.
2, ¶3; Doc. 18).
December 8, 2016, Petitioner submitted a letter to ICE
stating that his 83 year old mother was diagnosed with stage
four cancer and was admitted to a nursing home in Brooklyn,
New York. (Doc. 17-1, p. 2, ¶ 4). He requested release
to visit his mother. (Id.). Immigration officials
denied Petitioner's request for release based on his
violent criminal history. (Doc. 17-1, p. 2, ¶5).
Immigration officials considered granting Petitioner a
"terminally-ill visit" with his mother in Brooklyn.
(Doc. 17-1, p. 3, ¶ 8). However, immigration officials
ultimately denied the visit due to operational constraints
and safety concerns. (Doc. 17-1, p.3, ¶¶9-11).
argues that he has been detained under 8 U.S.C. §
1226(c) for an unreasonable amount of time in violation of
the Due Process Clause of the Fifth Amendment and Diop v.
ICE/Homeland Sec, 656 F.3d 221, 231-35 (3d Cir. 2011).
(Doc. 1). Respondent contends that Petitioner's detention
is lawful and any delay in his immigration proceedings is
directly attributable to his dilatory tactics in raising a
meritless challenge to his removability, and appealing those
same issues. (Doc. 6, pp. 3-7; Doc. 17, pp. 4-6). Respondent
further argues that a bond hearing is not warranted.
Court has jurisdiction over the habeas petition and
Petitioner's claims challenging his prolonged pre-final
order detention by ICE at the York County Prison 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 must
address whether Petitioner is entitled to habeas relief in
the nature of his release from the York County Prison pending
the outcome of his immigration proceedings, or whether he is
entitled to an individualized bond hearing.
Petitioner's 2015 conviction, there was a clear legal
basis for ICE to detain him pending the outcome of removal
proceedings. Pursuant to 8 U.S.C. § 1226(c), the
Attorney General must take into custody any alien who
"is deportable by reason of having committed any offense
covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or
(D) of this title." 8 U.S.C. § 1226(c)(1)(B). Prior
to a final removal order, an alien must be detained without
being afforded a bond hearing. 8 U.S.C. § 1226(c).
However, this "mandatory detention" provision has
limits. 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 a/., 538 U.S. 510, 532
(2003), emphasizes 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.
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
has been detained by ICE since January 5, 2016, more than
fifteen (15) 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. Saboi,823 F.Supp.2d 266, 272 (M.D. Pa.
2011). As stated, 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 ...