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Chikerema v. Lowe

United States District Court, M.D. Pennsylvania

August 19, 2019

CRAIG R. LOWE, Respondent.

          Magistrate Judge Carlson



         Before the Court for disposition is Magistrate Judge Martin C. Carlson's Report and Recommendation (“R&R, ” Doc. No. 12), entered on May 2, 2019, which recommends that pro se Petitioner Martin M. Chikerema (“Petitioner”)'s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. No. 1) be granted and that the Government be ordered to conduct an individualized bond hearing to review Petitioner's detention by the Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”). Respondent filed objections to the R&R on May 15, 2019. (Doc. Nos. 13, 14.) On August 16, 2019, Petitioner filed a motion to expedite the adjudication of his § 2241 petition. (Doc. No. 15.) For the reasons set forth below, the Court will grant Petitioner's motion to expedite (Doc. No. 15), adopt Magistrate Judge Carlson's R&R, overrule the Government's objections, grant Petitioner's § 2241 petition, and direct that he receive an individualized bond hearing.

         I. BACKGROUND

         As Magistrate Judge Carlson set forth, the pertinent facts are as follows:

The petitioner, Martin Chikerema, is a citizen and native of Zimbabwe admitted to the United States at Pittsburgh, Pennsylvania on or about December 24, 1994 as a nonimmigrant student. Chikerema overstayed his student visa and on August 18, 2002, immigration officials served him with a Notice to Appear and charged him as removable pursuant to § 237(a)(1)(C)(i) of the Immigration and Nationality Act (INA). Following immigration proceedings, on May 11, 2006, an immigration judge in Chicago, Illinois granted Chikerema asylum, and his immigration status was adjusted to that of a lawful permanent resident on October 26, 2011.
On April 4, 2017, Chikerema was convicted in the United States District Court for the Southern District of Indiana of filing false tax returns in violation of 26 U.S.C. § 7206(1), and was sentenced to six months imprisonment. As Chikerema's sentence drew to a close, immigration officials encountered the petitioner while he was incarcerated at Moshannon Valley Correctional Institution. On October 11, 2017, immigration officials served Chikerema with a Notice to Appear charging him with being removable from the United States pursuant to § 237(a)(2)(A)(iii) of the INA due to his conviction of an aggravated felony as defined in § 101(a)(43)(m) of the INA, a law relating to an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10, 000.00, or is described in the Internal Revenue Code of 1986, § 7201 (relating to tax evasion) as an offense in which the revenue loss to the Government exceeds $10, 000.00. On November 7, 2017, an immigration judge sustained the charge of removability against Chikerema. One week later, on November 14, 2017, Chikerema was remanded into ICE custody and has remained in continuous immigration detention for the past 17 ½ months.
During this time, Chikerema has been actively contesting his removal from the United States. Thus, on November 20, 2017, Chikerema sought to stave off removal by asserting a claim of a fear of persecution if returned to Zimbabwe. On January 16, 2018, Chikerema had a merits hearing before an immigration judge to present his claims of withholding of removal and protection under the Convention Against Torture. Two weeks later, on February 26, 2018, an immigration judge denied all of Chikerema's applications for withholding.

         (R&R at 2-3.) According to the automated immigration court's information system, [1]an immigration judge ordered Chikerema removed on July 29, 2019, and he has until August 26, 2019 to appeal that decision to the Board of Immigration Appeals (“BIA”).

         Petitioner filed his § 2241 petition on May 16, 2018. (Doc. No. 1.) In his R&R, Magistrate Judge Carlson noted that Petitioner had, by that date, “remained in continuous immigration detention for the past 17 ½ months.” (Doc. No. 12 at 3.) Because of this, he found that Petitioner's detention had reached a duration suggesting that a bond hearing is constitutionally required and recommended granting Petitioner's § 2241 petition. Respondent has objected, arguing that (1) the cases relied upon by Magistrate Judge Carlson to recommend granting a bond hearing-Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011) and Chavez-Alvarez v. Warden York Co. Prison, 783 F.3d 460 (3d Cir. 2015)-have been overruled by the Supreme Court's decision in Jennings v. Rodriguez, 138 S.Ct. 830 (2018); (2) Petitioner's detention does not violate due process; and (3) there is no constitutional requirement to shift the evidentiary burden from the detainee to the government. (Doc. No. 14.)


         When objections are timely filed to a magistrate judge's report and recommendation, the district court must review de novo those portions of the report to which objections are made. 28 U.S.C. § 636(c); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D. Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

         For those sections of the report and recommendation to which no objection is made, the court should, as a matter of good practice, “satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D. Pa. 2010) (citation omitted). Nonetheless, whether timely objections are made or not, the district court may accept, not accept, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Local Rule 72.31.

         III. ...

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