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Ankwari v. Lowe

United States District Court, M.D. Pennsylvania

October 10, 2017

MOHAMMAD MUNIR ANWARI, Petitioner
v.
CRAIG A. LOWE, Respondent

          MEMORANDUM

          Robert D. Mariani Judge

         Petitioner, Mohammad Munir Anwari, 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. (Id.). Petitioner seeks release from custody. (Id.). 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. 3, 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.

         I. Background

         Petitioner, a native and citizen of Afghanistan, last entered the United States on April 5, 2006 as a refugee. (Doc. 3-1, p. 5, Notice to Appear).

         On August 15, 2008, Petitioner was convicted of conspiracy to import and distribute, and conspiracy to possess with intent to distribute, one (1) kilogram or more of heroin, in violation of 21 U.S.C. §§ 846, 952(a), 959 and 963. (Doc. 3-1, p. 5, Notice to Appear). Petitioner was sentenced to one hundred fifty-one (151) months' imprisonment, (Id.).

         On November 21, 2016, based on Petitioner's conviction, ICE commenced removal proceedings against him charging him as removable from the United States pursuant sections 237(a)(2)(B)(i) and 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA") for his violation of a controlled substance law and as an aggravated felon. (Doc. 3-1, p. 5, Notice to Appear). On January 4, 2017, the Bureau of Prisons released Petitioner into ICE custody. See https://www.bop.gov/inmateloc/.

         On June 26, 2017, an Immigration Judge ordered Petitioner removed from the United States to Afghanistan. (Doc. 3-1, p. 6, Order of the Immigration Judge). The June 26, 2017 order also denied Petitioner's application for deferral of removal under Article III of the Convention Against Torture. (Id.).

         On July 21, 2017, Petitioner appealed the Immigration Judge's decision to the Board of Immigration Appeals ("BIA"). (Doc. 3-1, p. 7, Filing Receipt for Appeal). The appeal remains pending before the BIA. (Id.).

         On August 27, 2017, the Immigration Judge denied Petitioner's request for a change in custody status due to lack of jurisdiction based on Petitioner's mandatory detention status. (Doc. 3-1, p. 8, Custody Decision).

         II. Discussion

         This 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 Fed.Appx. 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. 3, p. 1).

         Following Petitioner's 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 deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title." 8 U.S.C. § 1226(c)(1)(B). However, this "mandatory detention" provision has limits. See Diop v. ICBHomeland 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's stated purposes of preventing flight and minimizing potential dangers to the community. Diop, 656 F.3d at 233. 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.

         In Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015), the Third Circuit further examined excessive detention claims under § 1226(c). The Third Circuit held that in cases where a petitioner brings a good faith challenge to his or her removal from the United States:

beginning sometime after the six-month time frame considered by Demore, and certainly by the time [the alien] had been detained for one year, the burdens to [the petitioner's] liberties outweigh[ ] any justification for using presumptions to detain him without bond to further the goals of the statute... . [T]he underlying goals of the statute would not have been, and will not now be undermined by requiring the Government ...

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