United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge
petitioner, a native and citizen of Taiwan, has resided in
the United States since January 27, 1999. She was convicted
of wire fraud in the United States District Court for the
District of Massachusetts on December 12, 2014, and sentenced
to eighteen (18) months of incarceration and one (1) year of
19, 2016, the petitioner was served with a Notice to Appear
and detained by U.S. Immigration and Customs Enforcement,
(“ICE”). She is charged as being removable from
the United States pursuant to Section 237(a)(2)(A)(iii) of
the Immigration and Nationality Act, (“INA”), for
having been convicted of an aggravated felony. The petitioner
was served with Additional Charges of
Inadmissibility/Deportability on June 28, 2016.
petitioner filed a request for release which was denied on
February 2, 2017, on the basis that she was “subject to
mandatory custody pursuant to Section 236(A) of the
INA.” However, on March 21, 2017, an immigration judge
granted the petitioner's Application for Adjustment of
Status and Waiver of Inadmissibility. The Department of
Homeland Security filed an appeal of the immigration
judge's ruling with the Board of Immigration Appeals,
(“BIA”), which was still pending on April 28,
2017, when the petitioner filed the instant petition for a
writ of habeas corpus pursuant to 28 U.S.C. §2241
through counsel. (Doc. 1).
pending before the court is the June 7, 2017, report of
Magistrate Judge Karoline Mehalchick, (Doc. 7),
recommending that the instant petition be granted to the
extent that the petitioner be afforded an individualized bond
hearing at which the immigration judge must make an
individualized inquiry into whether detention is still
necessary for the purposes of ensuring that the petitioner
attends removal proceedings and that her release will not
pose a danger to the community. Both the respondents and the
petitioner have indicated that they do no object to the
report and recommendation of Judge Mehalchick. (Doc. 8, Doc.
no objection is made to a report and recommendation, the
court should, as a matter of good practice, “satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation.” Fed. R.
Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Int'l, Inc., 702
F.Supp.2d 465, 469 (2010) (citing Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining
judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are
made or not, the district court may accept, not accept, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge. 28 U.S.C. §636(b)(1);
Local Rule 72.31.
court has reviewed Judge Mehalchick's report as well as
the applicable law and concurs with her recommendation. The
clear guidance of Chavez-Alvarez v. Warden York County
Prison, 783 F.3d 469 (3d Cir. 2015) and Diop v.
ICE/Homeland Security, 656 F.3d 222 (3d Cir. 2011)
indicate that the petitioner is entitled to a bond hearing to
justify her continued detention during removal proceedings.
Her continued detention will be justified only if it is
determined, on an individualized basis, that it is necessary
to achieving the goals of the immigration statute,
particularly, “ensuring participation in the removal
process and protecting the community from the danger [s]he
. . . poses.” Chavez-Alvarez, 783 F.3d at 475.
It is the government's burden to show that the
petitioner's continued detention is necessary to fulfill
the above-referenced purposes of the detention statute.
Diop, 659 F.3d at 233.
the court will ADOPT Judge Mehalchick's report (Doc.
7) and GRANT the instant habeas petition (Doc.
1) to the extent that the petitioner requests an
individualized bond hearing, and order that an immigration
judge conduct an individualized bond hearing within 30 days.
THEREFORE, IT IS HEREBY ORDERED, THAT:
report and recommendation of Judge Mehalchick, (Doc.
7), is ADOPTED;
Petitioner Ku's habeas petition, (Doc. 1), is
GRANTED to the extent that it seeks an individualized bond
individualized bond hearing shall be conducted by an
immigration judge within thirty (30) days of the date of this
the bond hearing, the government shall bear the burden of
demonstrating that the petitioner's continued detention
is still necessary to fulfill the purposes of ensuring that
she attends removal proceedings and that her release will not
pose a danger to the ...