United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY UNITED STATES DISTRICT JUDGE
Mateo Tipantiza, a detainee of the Bureau of Immigration
and Customs Enforcement (ICE) presently confined at the Pike
County Prison, Lords Valley, Pennsylvania, filed this pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. Service of the petition was previously
states that he is a native and citizen of Ecuador who Dated
this country on August 9, 2009 as a student. Petitioner
became a conditional permanent resident of the United States
on March 23, 2014. See Doc. 1, ¶ 5. While in
this country, Tipantiza plead guilty to child pornography
related charges of sexual abuse of children and criminal use
of a communication facility in the Dauphin County,
Pennsylvania Court of Common Pleas. He was sentenced to a
four year term of probation on October 13, 2015.
was taken into ICE custody on November 20, 2015. See
id. at ¶ 18. His petition indicates that he has
been detained by ICE for a period of over fifteen (15)
months. Tipantiza challenges his indefinite mandatory
detention pending completion of his removal proceedings. As
relief, Petitioner seeks his immediate release. See
Doc. 1, p. 14.
to the Respondent, the Petitioner is removable because of his
conviction of an aggravated felony relating to child
pornography and related factors pertaining to his conviction.
See Doc. 18, p. 5. However, the Respondent notes
that Tipantiza's case has been administratively closed by
an Immigration Judge pending disposition of his petition for
alien relative which is presently pending before the United
States Citizenship and Immigration Services. As such,
Tipantiza is not yet subject to a final order of removal.
response to the pending petition concludes that "[i]f
the court determines that a discretionary bond hearing is
warranted under the facts and circumstances of this case,
Respondents will coordinate with the Immigration Court to
schedule a bond hearing before an immigration judges as
expeditiously as possible." Doc. 18, p. 8. For the
reasons set forth below, the Court will grant the petition in
part and order that an immigration judge conduct an
individualized bond hearing within thirty (30) days.
contends that he has been detained for an unreasonable amount
of time while his removal proceedings are ongoing in
violation of the Due Process Clause of the Fifth Amendment
and. 8 U.S.C. Section 1226(c) clearly requires that, prior to
a final removal order, an alien may be detained without being
afforded a bond hearing. However, this "mandatory
detention" provision is not without limits.
Demore v. Kim, 538 U.S. 510, 531 (2003), the United
States Supreme Court concluded that "[d]etention during
removal proceedings is a constitutionally permissible part of
[the deportation] process." The United States Court of
Appeals for the Third Circuit has interpreted Demore
and "conclude[d] that [§1226(c)] implicitly
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." Diop v. ICE/Homeland
Sec,, 656 F.3d 221, 231 (3d Cir. 2011). 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 statute." Id. at 233.
determination as to whether an individual's detention is
no longer reasonable in length is "a fact-dependent
inquiry that will vary depending on individual
circumstances." Jd.; see also Leslie v. Attorney
Gen, of U.S., 678 F.3d 265, 269 (3d Cir. 2012). Such an
inquiry must account for delay caused by errors necessitating
appeal, as well as any continuances or delays favorable to
the detainee. Diop, 656 F.3d at 233-34. While
declining to establish a bright-line rule for the length of
time that would constitute an unreasonable detention, the
Third Circuit noted that "detention under §1226
lasts roughly a month and a half in the majority of cases in
which it is invoked, and about five months in the minority of
cases in which an alien chooses to appeal, " id., and as
a result, "the constitutional case for continued
detention without inquiry into its necessity becomes more and
more suspect as detention continues past those
thresholds." Id. at 234.
Third Circuit Court of Appeals, in Chavez-Alvarez v.
Warden York Ctv. Prison, 783 F.3d 469, 477 (3d Cir.
20151 characterized the fact-dependent inquiry described in
Diop as a balancing test. It noted that the
reasonableness of government conduct and merit of the
petitioner's challenges are not dispositive standing
alone, and are only relevant when "weighting] the
various aspects of [the] case to determine whether, and when,
a tipping point has been reached on the reasonableness of
[the] detention." Id.
should not find that delay caused by a detainee's
challenges precludes a finding of unreasonable detention
because such a finding essentially constitutes punishment for
pursuing applicable legal remedies. Id. at 475
(citing Leslie, 678 F.3d at 265). However, under
narrow circumstances, when a petitioner acts in bad faith to
delay or stall the proceeding, this tactic may preclude a
finding of unreasonable detention. Chavez-Alvarez, 783
F.3d at 476.
Chavez-Alvarez, the Court of Appeals found that
"beginning sometime after the six-month timeframe
considered by Demore, and certainly by the time
Chavez-Alvarez had been detained for one year, the burdens to
Chavez-Alvarez's liberties outweighed any justification
for using presumptions ...