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Jimenez v. Lowe

United States District Court, M.D. Pennsylvania

April 26, 2017

LUIS JIMENEZ, Petitioner
v.
CRAIG A. LOWE, et al. Respondents

          MEMORANDUM

          Robert D. Mariani, United States District Judge

         Petitioner, Luis Jimenez, 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. (Doc. 1). Jimenez challenges his continued detention by ICE pending removal. (Id). Jimenez seeks immediate release, or an individualized bond hearing, (id. at p. 19). The Government does not oppose Jimenez's request for a bond hearing. (Doc. 6). 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.

         I. Background

         On July 1, 1993, Jimenez, a native and citizen of the Dominican Republic, was admitted to the United States as a lawful permanent resident. (Doc. 6-2, p. 5).

         On December 11, 2003, Jimenez was arrested and charged with conspiracy to distribute, and possess with intent to distribute, more than one hundred (100) grams of heroin, in the United States District Court for the Southern District of New York. United States v. Jimenez, Criminal No. 1:04-cr-133-02 (S.D.N.Y.). On November 22, 2004, Jimenez pled guilty to conspiracy to distribute heroin. (Id. at Doc. 102). Jimenez was out on bail and, in January 2005, failed to surrender to the United States Marshals Service for his sentencing. (Id.). Jimenez evaded incarceration for more than eight (8) years, and was eventually arrested in March 2013. (Id.). On May 30, 2014, Jimenez was sentenced to a thirty-six (36) month term of imprisonment for conspiracy to distribute heroin. (Id.).

         Also on May 30, 2014, Jimenez pled guilty to one count of Failure to Appear, in the United States District Court for the Southern District of New York. (Doc. 1, p. 2; Doc. 6-2, p. 5). See also United States v. Jimenez, Criminal No. 1:07-cr-1080 (S.D.N.Y.). Jimenez was sentenced to a ten (10) month term of imprisonment, to be served consecutively to the thirty-six (36) month sentence imposed in case number 1:04-cr-133-02. (Id.).

         On December 5, 2014, based on Jimenez'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 federal aggravated felony convictions for drug trafficking and failure to appear at the sentencing for his drug trafficking conviction. (Doc. 6-2, pp. 5-6).

         On May 3, 2016, Jimenez was charged with being subject to removal. (Doc. 6-2, pp. 11-16, Order of the Immigration Judge). Jimenez sought deferral of removal pursuant to the Convention Against Torture, arguing that he would likely be subjected to torture if returned to the Dominican Republic because his conviction constitutes a "Particularly Serious Crime." [Id.). Jimenez stated that he received threats by criminal co-defendants for his cooperation with the Drug Enforcement Administration and the United States Attorney's Office. (Id.). The Immigration Judge denied Jimenez's application for deferral of removal based on fear of persecution, finding that his fear is of private individuals, and there is no indication that the Dominican Republic government would be responsible for any torture. (Id.). On May 11, 2016, Jimenez led an appeal with the Board of Immigration Appeals ("BIA"). (Doc. 1, p. 2).

         On June 22, 2016, Jimenez was first taken into ICE custody. (Doc. 1, p. 3).

         The BIA dismissed Jimenez's appeal on September 14, 2016. (Id.). On November 10, 2016, the Government moved in the Third Circuit to remand Jimenez's case to the BIA for further consideration of the application for deferral of removal under the Convention Against Torture. (Doc. 1-1, pp. 22-25). The Government noted that the evidence reveals that one of Jimenez's co-conspirators is a former police officer in the Dominican Republic and another co-conspirator's brother is the mayor of a city in the Dominican Republic. (Id.).

         On January 3, 2017, the BIA issued a notice of the pending remand. (Doc. 6-2, p.17, Notice of Pending Remand). On April 7, 2017, the BIA remanded the case to the Immigration Judge "to consider the government's unopposed motion to remand and enter a new decision." (Doc. 8-1, p. 2, BIA Decision).

         II- Discussion

         Jimenez 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/Homeiand Sec, 656 F.3d 221, 231-35 (3d Cir. 2011). (Doc. 1). Respondent asserts that the Court should order a bond hearing before an Immigration Judge. (Doc. 6).

         This Court has jurisdiction over the habeas petition and Jimenez's claims challenging his prolonged pre-final order detention by ICE at the Pike County Correctional Facility as illegal and unconstitutional. See Leslie v. Attorney Genera! 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 Jimenez is not subject to a final order of removal, as the immigration proceedings remain pending. Thus, this Court must address whether Jimenez is entitled to habeas relief in the nature of his ...


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