United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
Mukesh Kumar, a detainee of the United States 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).
Petitioner challenges his continued detention by ICE pending
removal, (/of, ). Petitioner seeks immediate release or an
individualized bond hearing. (Id. at p. 9).
Respondent indicates that if the Court enters an order
directing an individualized bond hearing before an
Immigration Judge, Respondent will coordinate with the
Immigration Court to schedule a bond hearing as expeditiously
as possible. (Doc. 5, p. 1). For the reasons set forth below,
the Court will grant a writ of habeas corpus directing an
Immigration Judge to conduct a bond hearing to determine if
Petitioner is a flight risk or danger to the community.
a native and citizen of India, arrived in the United States
at an unknown date and time, at an unknown location, and
without admission or parole from a United States immigration
officer. (Doc. 5-1, p. 3, Notice to Appear).
23, 2016, Petitioner was convicted of simple assault in
violation of 18 Pa.C.S. § 2701(a)(3) in the Court of
Common Pleas of Delaware County, Pennsylvania. (Doc. 1, pp.
3-4; Doc. 5-1, pp. 5-7, Record of Deportable/ inadmissible
Alien). See also Commonwealth v. Kumar,
CP-23-CR-0006727-2015 (Delaware Cty. Ct. Com.
PI.).Petitioner was sentenced to two (2) years
14, 2016, based on Petitioner's conviction, ICE commenced
removal proceedings against him charging him as removable
from the United States pursuant section 212(a)(6)(A)(i) of
the Immigration and Nationality Act ("INA") for
being "an alien present in the United States without
being admitted or paroled, or who arrived in the United
States at any time or place other than as designated by the
Attorney General." (Doc. 5-1, p. 3, Notice to Appear).
Petitioner was taken into ICE custody on that same date.
(Doc. 1, p. 1).
sought a change in his custody status pursuant to 8 C.F.R.
§ 236.1(c). (Doc. 5-1, p. 8, Order of Immigration Judge
dated August 8, 2016). On August 8, 2016, an Immigration
Judge denied Petitioner's request for a change in custody
August 9, 2016, ICE filed additional charges of
Inadmissibility/ Deportability pursuant to section
212(a)(2)(A)(i)(1) of the INA, because Petitioner was
convicted of a crime involving moral turpitude. (Doc. 5-1, p.
9, Additional Charges of Inadmissibility/ Deportability).
filed a motion to reconsider the August 8, 2016 order denying
his request for a change in custody status. (Doc. 5-1, pp.
10-12, Order of the Immigration Judge on Motion to Reconsider
August 8, 2016 Order). On September 7, 2016, an Immigration
Judge denied Petitioner's motion to reconsider.
March 7, 2017, an Immigration Judge ordered Petitioner
removed from the United States to India. (Doc. 5-1, pp.
13-28, Order of the Immigration Judge). The March 7, 2017
order also denied Petitioner's application for asylum
pursuant to section 208(a) of the INA, denied
Petitioner's application for withholding of removal, and
denied Petitioner's application for protection under the
Convention Against Torture. (Id.).
March 28, 2017, Petitioner filed a notice of appeal of the
Immigration Judge's decision. (Doc. 5-1, pp. 29-31,
Notice of Appeal from a Decision of an Immigration Judge).
The appeal remains pending before the Board of Immigration
Appeals ("BIA"). (Id.).
Court has jurisdiction over Petitioner's habeas petition
and his claims challenging his prolonged pre-final order
detention by ICE at the Pike County Correctional Facility 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, the Court
notes that Petitioner is not subject to a final order of
removal, as the immigration proceedings remain pending. Thus,
this Court is forced to address whether Petitioner is
entitled to habeas relief in the nature of his release from
the Pike County Correctional Facility pending the outcome of
his immigration proceedings, or to order a bond hearing.
Respondent indicates that if the Court orders an
individualized bond hearing before an Immigration Judge,
Respondent will coordinate with the Immigration Court to
schedule a bond hearing as expeditiously as possible. (Doc.
5, p. 1).
Petitioner's 2016 conviction, there did exist a clear
legal basis for ICE to detain him pending the outcome of
removal proceedings. See Diop v. ICE,656 F.3d 221,
230 (3d Cir. 2011). Pursuant to 8 U.S.C. § 1226(c), the
Attorney General must take into custody any alien who
"is inadmissible by reason of having committed any
offense covered in section 1182(a)(2) of this title." 8
U.S.C. § 1226(c)(1)(A). However, this "mandatory
detention" provision has limits. See Diop v.
ICE/Homeland Security,656 F.3d 221, 232 (3d Cir. 2011).
The Courts have cautioned that the constitutionality of
detention is, at least to some extent, a function of the
length of detention, id. Although mandatory
detention for some classes of aliens under § 1226(c) is
constitutional, Justice Kennedy's concurring opinion in
Demore v. Kim, et al., 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 stated
purposes of preventing flight and minimizing potential