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Giko v. Lowe

United States District Court, M.D. Pennsylvania

November 2, 2017

HENRIQUE HANSON GIKO, Petitioner,
v.
WARDEN LOWE, Respondent.

          MEMORANDUM OPINION

          Matthew W. Brann, United States District Judge

         I. BACKGROUND

         Henrique Hanson Giko initiated this pro se action seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2241 while detained by the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) at the York County Prison, York, Pennsylvania. Following service of the petition, Giko was transferred to a detention facility in the State of Louisiana and failed to notify the Court of his change in address.

         By Memorandum Opinion and Order dated October 16, 2017, a second, similar habeas corpus petition filed by Giko, now detained by ICE at the Pike County Prison, Lords Valley, Pennsylvania, was consolidated into this action.[1] The Respondent, Pike County Prison Warden Lowe, was directed to file a supplemental response.[2]

         Giko, a native of Liberia, entered the United States on or about November 9, 2004 as a refugee. While in this country he was convicted of multiple crimes. As a consequence of those convictions, an immigration judge ordered Petitioner's removal from the United States on February 3, 2016. See Doc. 1, p. 13. On March 13, 2017, the Board of Immigration Appeals (BIA) remanded the matter to the immigration judge.

         On July 7, 2017, an immigration judge denied Giko's application for deferral of removal. An appeal of that determination is presently pending before the BIA. As such, Petitioner is not yet subject to a final order of removal.

         Giko alleges that because he had been detained by ICE for over twenty-three (23) months and there is no likelihood that he will be deported in the foreseeable future, his continued indefinite detention by the ICE pending completion of his removal proceedings is improper under Demore v. Kim, 538 U.S. 510, 531 (2003), Zadvydas v. Davis, 533 U.S. 678 (2001), and related decisions.

         Respondent's supplemental response to the petition concludes that “[b]ased upon the facts and the procedural posture of this case, if the court enters an order directing this matter to an immigration judge for a bond hearing, Respondent will coordinate with the immigration court to schedule a bond hearing as expeditiously as possible.” Doc. 13, p. 1. For the reasons set forth below, I will grant the petition and order that an immigration judge conduct an individualized bond hearing within forty-five (45) days.

         II. DISCUSSION

         Petitioner 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. Federal district courts only have jurisdiction in ICE cases where a detainee is seeking immediate release on bond pending removal on the grounds that his continued detention is unconstitutional. See Clarke v. Department of Homeland Security, Civ. No. 4:09-cv-1382, 2009 WL 2475440 * 1 (M.D. Pa. Aug. 12, 2009)(Jones, J.).

         Title 8 U.S.C. § 1226(c) clearly provides 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, the United States Supreme Court concluded that “[d]etention during removal proceedings is a constitutionally permissible part of [the deportation] process.” Id. 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).

         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. A 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 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.” 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.

         In a subsequent decision, Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 477 (3d Cir. 2015), the Third Circuit 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 “weigh[ing] the various aspects of [the] case to determine whether, and when, a tipping point has been reached on the reasonableness of [the] detention.” Id.

         Courts 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.[3]Chavez-Alvarez, 783 F.3d at 476. In Chavez-Alvarez, the Third Circuit 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 ...


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