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Wilkins v. Doll

United States District Court, M.D. Pennsylvania

February 22, 2018

Linton Wayne Wilkins, Petitioner
v.
CLAIR DOLL, et al., Respondents

          RAMBO, D.J.

          REPORT AND RECOMMENDATION

          William I. Arbuckle U.S. Magistrate Judge

         I. Factual Background

         On December 20, 2017, Linton Wayne Wilkins filed a petition for writ of habeas corpus which alleged that the petitioner, a lawful permanent resident, was placed in removal proceedings, and has been detained. (Doc. 1.) Petitioner alleges he has been in immigration custody since March 31, 2017 and files his petition for writ of habeas corpus, seeking bond consideration. We directed a response to this petition (Doc 5), which was filed on February 9, 2018, (Doc. 6), and in that response the Respondents acknowledged the following essential facts:

         Wilkins is a citizen and native of Jamaica. Ex. 1 (Record of Deportable/Inadmissible Alien) at 1-2; Ex. 2 (Notice to Appear) at 3. On or about November 18, 2005, he entered the United States through Orlando, Florida as a B2 visitor for pleasure with authorization to remain in the United States until May 17, 2006. Ex. 1 at 2; Ex. 2 at 3. On May 23, 2011, immigrations officials adjusted Wilkins status to that of a lawful permanent resident. Id.

         On April 13, 2015, the Court of Common Pleas of Philadelphia County, Pennsylvania convicted Wilkins of violating 35 Pa. C.S.A. § 780-113(a30), for the manufacture, delivery, or possession with intent to manufacture or deliver Marijuana. Id. The Court sentenced Wilkins to eleven and a half (11.5) to twenty three (23) months incarceration. Id.

         On March 22, 2017, immigration officials charged Wilkins with being removable due to his conviction of a crime relating to a controlled substance, other than a single offense involving possession for one's own use of 30 grams or less of marijuana and due to his conviction of an aggravated felony relating to the illicit trafficking of a controlled substance. Ex. 2 at 3; Ex. 3a (Oral Decision of the Immigration Judge) at 6. He was served with a Notice to Appear and after review of his detention by an Immigration Judge, it was determined he would remain detained. Ex. 2 at 1-2, 4. On this same date, Wilkins was also served with a Warrant for Arrest and taken into ICE custody. Ex. 2 at 5.

         On March 31, 2017, an Immigration Judge ordered Wilkins removed from the United States to Jamaica. Ex. 3 (Order of the Immigration Judge); 3a at 7. Wilkins appealed the immigration judge's decision to the BIA. Ex. 4 (BIA decision dated November 14, 2017). The BIA dismissed his appeal. Id. at 5. Wilkins subsequently filed a Petition for Review which is currently pending in the Third Circuit Court of Appeals at Wilkins v. Attorney General United States of America, No. 17-3552 (3d Cir. 2017), and the Third Circuit granted a temporary stay of Wilkins' removal. (Doc. 6, pp 3-4).

         Given these undisputed facts, the Respondents do not appear to contest that the petitioner may now be entitled to some form of individualized bond consideration. In its response the government says that: “Based upon the current 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. 6, p.1-2.) In light of this apparent concession by the Government, it is recommended that the district court grant the petition and order an individualized bond hearing for the petitioner to be conducted before an Immigration Judge within 30 days, something the government appears to concede should take place in this case.

         II. Discussion

         The analysis of my colleague, Magistrate Judge Carlson, in Shnegelberger v. Doll, [1] appears to apply directly here. One of the statutory and constitutional duties conferred upon this court is the responsibility to address federal habeas corpus petitions filed by immigration detainees who challenge their immigration detention as unconstitutionally excessive. Over the past several years, case law in this field has evolved significantly, providing far greater clarity to the courts regarding the benchmarks they should apply when discharging this important responsibility, a duty rooted in our Constitution.

         In Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469 (3d Cir. 2015), the court of appeals has provided us with an analytical paradigm to apply when assessing these immigration excessive detention claims in a pre-removal context. As the court explained in outlining the legal terrain in this field:

Before 1996, significant numbers of aliens convicted of serious crimes were taking advantage of their release on bond as an opportunity to flee, avoid removal, and commit more crimes. Demore v. Kim, 538 U.S. 510, 518-19, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Congress fixed this problem by enacting section 1226(c), expanding the range of serious crimes for which the Government was required to detain convicted aliens. Notably, section 1226(c) does not give the Attorney General any authority to release these aliens on bond. Id. at 521, 123 S.Ct. 1708. The Supreme Court left no doubt that the Government's authority under section 1226(c) to detain aliens without an opportunity for bond complies with the Constitution. Id. at 531, 123 S.Ct. 1708. However, as we discuss below, we read Demore as also recognizing that there are limits to this power. Diop, 656 F.3d 221; Leslie v. Attorney Gen. of the United States, 678 F.3d 265 (3d Cir.2012). When the Supreme Court upheld the constitutionality of the law in Demore, it also gave us insight into how, from a due process perspective, section 1226(c)'s allowance of detention without bail worked. The Court reiterated the fundamental idea that aliens are protected by constitutional due process. Demore, 538 U.S. at 523, 123 S.Ct. 1708 (citing Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)). But, it put the alien's issue in perspective, saying “ ‘[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.' ” Id. at 521, 123 S.Ct. 1708 (quoting Mathews v. Diaz, 426 U.S. 67, 79-80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)). The Court went on to say that applying “ ‘reasonable presumptions and generic rules' ” to groups of aliens-for purposes of due process-can be ...

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