United States District Court, M.D. Pennsylvania
D. Mariani, United States District Judge
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.
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).
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.).
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.
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).
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).
22, 2016, Jimenez was first taken into ICE custody. (Doc. 1,
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.).
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
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).
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 ...