United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY UNITED STATES DISTRICT JUDGE
Cabrera Peralta, 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. Named as Respondent is Warden Craig Lowe
of the Pike County Prison. Service of the petition was
previously ordered. For the reasons set forth below, the
Court will grant the petition and order that an immigration
judge conduct an individualized bond hearing within thirty
describes himself as being a native of Ecuador who entered
the United States in 1981 as a lawful permanent resident.
While in this country, Petitioner admits that he was
convicted of conspiracy to distribute Methamphetamine in the
United States District Court for the Western District of
Virginia on July 15, 2015. Following his conviction,
Petitioner was sentenced to a forty-four (44) month term of
further consequence of his conviction, ICE initiated removal
proceedings. On March 29, 2017, an immigration judge ordered
Peralta's removal. However, Petitioner's case was
reopened and March 29, 2017 an immigration judge denied
Petitioner's request for withholding of removal as well
as his Convention against Torture application and ordered his
removal. An appeal of that determination is pending before
the Board of Immigration Appeals (BIA).
completion of his federal sentence Petitioner was transferred
into ICE custody on February 22, 2017. Peralta has remained
in ICE custody since that date.
§ 2241 petition challenges his indefinite continued
detention pending conclusion of his removal proceedings under
the standards announced in Zadvydas v. Davis, 533
U.S. 678 (2001). Petitioner claims that there is no
reasonable prospect that he will be removed from this country
in the foreseeable future. As relief, Petitioner seeks his
contends that Petitioner is removable and subject to
mandatory detention because of his prior criminal history in
this country. However, the Respondent adds that if this Court
determines that a discretionary bond hearing is required, the
"Respondent will coordinate with the Immigration Court
to schedule a bond hearing before an Immigration Judge as
expeditiously as possible." Doc. 6, p. 6.
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.
United States Supreme Court has clearly recognized that the
indefinite detention of aliens facing removal is not
permissible. See Zadvydas, 533 U.S. at 689. To
establish uniformity in the federal courts, the Supreme Court
recognized six (6) months as being a "presumptively
reasonable period of detention." Id. That said,
continued detention is permissible if a detainee refuses to
cooperate in obtaining necessary travel documents. See
U.S. ex rel Kovalev v. Ashcroft, 71 Fed.Appx. 919, 924
(3d Cir. 2003).
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. In 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." Ixi. at 531. 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).
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." Id.; 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 Court of Appeals 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, " and ...