United States District Court, M.D. Pennsylvania
CHRISTOPHER C. CONNER, CHIEF JUDGE UNITED STATES DISTRICT
Nery Wotbely Perez-Cobon (“Perez-Cobon”), a
detainee of the United States Immigration and Customs
Enforcement (“ICE”), currently confined in the
York County Prison, York, Pennsylvania, filed the instant
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Doc. 1). Perez-Cobon challenges his continued
detention by ICE pending removal. (Id.) He requests
that the court “issue an order declaring that
Petitioner['s] indefinite detention is not authorize[d]
by the INA and/or violates the 5th Amendment, grant [a]
preliminary injunction . . . and release [him from]
indefinite detention [and] any . . . further relief this
court may deem appropriate.” (Id. at 8). For
the reasons set forth below, the court will deny the
a native and citizen of Guatemala, entered the United States
at an unknown location on an unknown date. (Doc. 8-1, at 3,
Notice to Appear). Perez-Cobon was not inspected, admitted,
or paroled into the United States by an immigration officer.
April 3, 2013, ICE served a Notice to Appear on Perez-Cobon
indicating that he was subject to removal from the United
States pursuant to § 212(a)(6)(A)(i) of the Immigration
and Nationality Act (“INA”) as an alien present
in the United States without being admitted or paroled. (Doc.
8-1, at 3, Notice to Appear). He was taken into ICE custody
on April 3, 2013. (Doc. 8-1, at 6, Warrant for Arrest of
Alien; Doc. 8-1, at 8, Notice of Custody Determination).
Perez-Cobon was subsequently released on bond in the amount
of $12, 000.00. (Doc. 8-1, at 8, Notice of Custody
December 29, 2016, Perez-Cobon was arrested and charged with
assault, offensive touching, and endangering the welfare of a
child. (Doc. 8-1, at 11, Record of Deportable/Inadmissible
Alien). This incident was the second occurrence of Domestic
Violence and violation of a Protection from Abuse
(“PFA”) against his children and his former
domestic partner. (Id.) On December 30, 2016,
Perez-Cobon was encountered during routine ICE operations at
the Sussex Correctional Institution in Georgetown, Delaware.
(Doc. 8-1, at 9-12, Record of Deportable/Inadmissible Alien).
On February 24, 2017, Perez-Cobon was convicted of offensive
touching and received a fine. (Id.) On February 26,
2017, ICE informed Perez-Cobon that due to the severity of
the offenses and violation of the PFA, that upon his release
from the Sussex Correctional Institution, he would be
remanded into ICE custody. (Id.) He was taken into
ICE custody on February 27, 2017. (Doc. 1, at 5).
April 19, 2017, an immigration judge denied Perez-Cobon's
request for a change in his custody status. (Doc. 8-1, at 13,
Order of the Immigration Judge with Respect to Custody). On
July 28, 2017, an immigration judge ordered Perez-Cobon
removed from the United States to Guatemala and denied his
application for cancellation under § 240A(b)(1) of the
INA. (Doc. 8-1, at 14, Order of the Immigration Judge). On
August 2, 2017, Perez-Cobon filed a Notice of Appeal with the
Board of Immigration Appeals (“BIA”). (Doc. 8-1,
at 17, Filing Receipt for Appeal; Doc. 8-1, at 15-16, Notice
- Briefing Schedule). That appeal remains pending before the
instant petition was filed on August 30, 2017. (Doc. 1).
appeal of the immigration judge's order of removal
remains pending. Hence, the order of removal has not become
administratively final, and Perez-Cobon is still considered
to be in pre-removal immigration detention. See 8 U.S.C.
§ 1231(a)(1)(B)(i) (providing removal period begins on
the “date the order of removal becomes administratively
final”); see also 8 C.F.R. § 1241.1(a) (stating
that an order of removal from an Immigration Judge becomes
final “[u]pon dismissal of an appeal by the Board of
Immigration Appeals”). Thus, decisions concerning his
ongoing detention are at the discretion of the immigration
judge. See 8 U.S.C. § 1226(a).
Attorney General, through the Department of Homeland Security
(“DHS”) district director, has the authority to
detain aliens during the “pre-removal” period,
that is, while removal proceedings are ongoing but before the
issuance of a final order of removal. Pursuant to 8 U.S.C.
§ 1226(a), “an alien may be arrested and detained
pending a decision on whether the alien is to be removed from
the United States.” 8 U.S.C. § 1226(a). The
statute further authorizes the Attorney General to continue
to detain the arrested alien, release the alien on bond, or
release the alien on conditional parole. 8 U.S.C. §
1226(a)(1)-(2). The Attorney General's discretionary
judgment regarding the application § 1226 is not subject
to review and “[n]o court may set aside any action or
decision by the Attorney General under [§ 1226]
regarding the detention or release of any alien or the grant,
revocation, or denial of bond or parole.” 8 U.S.C.
§ 1226(e). Nonetheless, “Section 1226(e) contains
no explicit provision barring habeas review.”
Demore v. Kim, 538 U.S. 510, 517 (2003).
district director denies bond and the alien is not subject to
an administratively final order of removal, the alien may
seek his release by requesting an initial bond
redetermination hearing before an immigration judge. 8 C.F.R.
§§ 236.1(d), 1003.19. As to criminal aliens
eligible to be considered for release on bond or conditional
parole, the alien must demonstrate by clear and convincing
evidence that he does not pose a danger to persons or to
property and that he is not a flight risk. 8 C.F.R. §
236.1(c)(3). An immigration judge's decision on a bond
redetermination may be appealed to the BIA. 8 C.F.R. §
236.1(d)(3). The BIA's decision to detain or release an
arrested alien on bond is discretionary and is not subject to
judicial review. 8 U.S.C. § 1226(e). If denied bond, an
alien can subsequently request a bond redetermination hearing
before an immigration judge, in writing. 8 C.F.R. §
1003.19(e). This request “shall be considered only upon
a showing that the alien's circumstances have changed
materially since the prior bond redetermination.”
was taken into ICE custody on February 27, 2017 and has been
detained for nine (9) months. (Doc. 1, at 5). Perez-Cobon
asserts that his detention has become overlong and requests
that the court remedy his prolonged, mandatory detention
pursuant to 8 U.S.C. § 1226(c). (Docs. 1, 9). However,
Perez-Cobon is not an alien subject to mandatory detention
under the provisions of § 1226(c). (Doc. 9). Rather, he
is a discretionary detainee pursuant to 8 U.S.C. §
1226(a) who has received, by right, bond hearings.
Contant v. Holder, 352 F. App'x 692 (3d Cir.
2009), the Third Circuit addressed a habeas petition filed by
a pre-final order detainee in discretionary § 1226(a)
detention. Contant was taken into custody by the DHS and
ordered detained without bond. An immigration judge
subsequently conducted a redetermination hearing and denied
Contant release on bond. On appeal, the BIA affirmed the
immigration judge's decision, finding that Contant failed
to demonstrate that he was not a danger to the community.
Contant then filed a habeas petition in the district court
pursuant to 28 U.S.C. § 2241 claiming that his
indefinite detention without review was unreasonable and
violated his right to due process. While the habeas petition
was pending, an immigration judge again found that Contant
was a danger to the community, and that there was no changed
circumstance warranting redetermination of bond. The Contant
court ultimately found that the alien petitioner's
nineteen (19) month pre-removal immigration detention was not
“indefinite” in violation of due process, because
a decision on his removal appeared reasonably foreseeable and
there was no indication that he could not be removed to his
country of origin at the conclusion of his removal