This is crucial because determining what statute underlies Petitioner's detention is significant as it bears on whether Petitioner is entitled to an individualized bond hearing. "[I]t is well-established that aliens detained under § 1226 must receive bond hearings if their lengthy detentions violate Due Process." Bah v. Barr , 409 F. Supp. 3d 464, 467 (E.D. Va. 2019) (citing Diop v. ICE/Homeland Sec. , 656 F.3d 221, 232-33 (3d Cir. 2011), abrogated on other grounds, Borbot v. Warden Hudson Cty. Corr. Facility , 906 F.3d 274 (3d. Cir. 2018) ). The Court agrees with all parties that Petitioner is detained pursuant to 8 U.S.C. § 1226(c).

In the wake of Jennings, judges in this Court and elsewhere have concluded that when a petitioner's detention pursuant 8 U.S.C. § 1226(c) "becomes unreasonable, the Due Process Clause demands a hearing." Id. (quoting Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011)); Gutierrez v. Hott, No. 1:20-cv-712 (LMB/IDD), 2020 WL 4323157, at *3 (E.D. Va. July 27, 2020) (Brinkema, J.); Bah v. Barr, 409 F. Supp. 3d 464, 473 (E.D. Va. 2019) (Ellis, J.), appeal dismissed, No. 19-7653, 2020 WL 2126451 (4th Cir. Jan. 22, 2020); see Hamma v Adducci, 946 F.3d 875, 883 (6th Cir. 2020) (White, J., concurring) (internal quotation marks and citations omitted) ("[A]lthough criminal aliens may be incarcerated pending removal, the time of incarceration is limited by constitutional considerations, and must bear a reasonable relation to removal, and that the reasonableness of the length of detention is subject to review by federal courts in habeas proceedings."). But see Hamama v. Adducci, 946 F.3d 875, 879 (6th Cir. 2020) ("The Supreme Court, moreover, has separately upheld detention during deportation proceedings against constitutional challenge, allaying any constitutional concerns on that front."

Following the Supreme Court's recognition in both Zadvydas and Demore that the prolonged detention of aliens absent justification could violate Due Process, several district courts began ordering bond hearings for aliens detained for lengthy periods of time without one. See Bah v. Barr, 409 F.Supp.3d 464, 467, 470 (E.D. Va. 2019) (“[I]t is well-established that aliens detained under § 1226 must receive bond hearings if their lengthy detentions violate Due Process.”); Mbalivoto, 527 F.Supp.3d at 850 & n. 12 (joining other courts in recognizing that individualized bond hearings are required for those detained under 8 U.S.C. § 1225(b) when their “continued detention . becomes unreasonable and constitutionally infirm without one”).

” Bah v. Barr, 409 F.Supp.3d 464, 467 (E.D. Va. 2019) (internal citation omitted). The Court must therefore assess whether Petitioner's continued detention without an individualized bond hearing raises due process concerns.

Some judges have characterized the first factor, the length of detention without a bond hearing, as “‘the most important.'” Portillo, 322 F.Supp.3d at 707 (citation omitted); see Bah v. Barr, 409 F.Supp.3d 464, 471 n. 9 (E.D. Va. 2019) (noting that courts “give duration of the detention significant weight due”). Mansaray has been in ICE custody since April 22, 2020, which exceeds thirteen months.

653 (2001) (six months presumptively unreasonable under § 1231 ); Lett v. Decker , 346 F. Supp. 3d 379, 2018 WL 4931544 (S.D.N.Y. Oct. 10, 2018) (ten months’ detention unreasonable under § 1225(b) ); Perez v. Decker , 2018 WL 3991497 (S.D.N.Y. Aug. 20, 2018) (one-year detention unreasonable under § 1225(b) ); Ly v. Hansen , 351 F.3d 263, 270 (6th Cir. 2003) (bond hearing required after 18 months of detention under § 1226(c) ); Portillo v. Hott , 322 F. Supp. 3d 698, 707 (E.D. Va. 2018) (bond hearing required after 14 months’ detention under § 1226(c) ); Mauricio-Vasquez v. Crawford , No. 116CV01422AJTTCB, 2017 WL 1476349, at *4 (E.D. Va. Apr. 24, 2017) (bond hearing required after 15 months’ detention under § 1226(c) ); Haughton v. Crawford , No. 116CV634LMBIDD, 2016 WL 5899285, at *9 (E.D. Va. Oct. 7, 2016) (bond hearing required after 12 months’ detention under § 1226(c) ); Tuser v. Rodriguez , 370 F. Supp. 3d 435, 442–43 (D.N.J. 2019) (20 months unreasonable under § 1225(b) ); see alsoBah v. Barr , 409 F. Supp. 3d 464, 470 (E.D. Va. 2019), appeal dismissed , No. 19-7653, 2020 WL 2126451 (4th Cir. Jan. 22, 2020) (bond hearing required after 24 months under § 1226(c) ); Pierre v. Doll , 350 F. Supp. 3d 327, 332 (M.D. Pa. 2018) (24 months’ detention unreasonable under § 1225(b) ). The Court has also considered whether the length of his detention should be attributed to the Petitioner or the Respondents.

In determining whether prolonged detention without a bond hearing violates due process, "district courts in this district have applied a five-factor balancing test." Bah v. Barr, 409 F. Supp. 3d 464, 471 n.9 (E.D. Va. 2019) (collecting cases, including Portillo v. Hott, 322 F. Supp. 3d 698 (E.D. Va. 2018), Mauricio-Vasquez v. Crawford, No. 1:16-cv-1422, 2017 WL 1476349 (E.D. Va. Apr. 24, 2017), and Haughton v. Crawford, No. 1:16-cv-534, 2016 WL 5899285 (E.D. Va. Oct. 7, 2016) ); see also Urbina v. Barr, No. 1:20-cv-325, 2020 WL 3002344 (E.D. Va. June 4, 2020). "The five factors are: (1) the duration of detention, including the anticipated time to completion of the aliens' removal proceedings; (2) whether the civil detention exceeds the criminal detention for the underlying offense; (3) dilatory tactics employed in bad faith by the parties or adjudicators; (4) procedural or substantive legal errors that significantly extend the duration of detention; and (5) the likelihood that the government will secure a final order of removal."

"A careful review of the applicable INA statutory language makes clear that where, as here, a court stays an administratively final removal order pending judicial review, it is § 1226, not § 1231, that is applicable." Bah v. Barr , 409 F. Supp. 3d. 464, 467 (E.D. Va. 2019). Mr. Khan's motion for a stay of removal was granted by the Fourth Circuit on August 11, 2021.

"[D]istrict courts in this district have applied a five-factor balancing test to determine whether prolonged detention without a bond hearing violates Due Process." Bah v. Barr, 409 F. Supp. 3d 464, 471 n.9 (E.D. Va. 2019) (collecting cases, including Portillo v. Hott, 322 F. Supp. 3d 698 (E.D. Va. 2018), Mauricio-Vasquez v. Crawford, 2017 WL 1476349 (E.D. Va. Apr. 24, 2017), and Haughton v. Crawford, 2016 WL 5899285 (E.D. Va. Oct. 7, 2016)). "The five factors are: (1) the duration of detention, including the anticipated time to completion of the aliens' removal proceedings; (2) whether the civil detention exceeds the criminal detention for the underlying offense; (3) dilatory tactics employed in bad faith by the parties or adjudicators; (4) procedural or substantive legal errors that significantly extend the duration of detention; and (5) the likelihood that the government will secure a final order of removal."

The Court will not ignore binding, Supreme Court precedent in favor of this argument.Additionally, Petitioner cites to Bah v. Barr , 409 F. Supp. 3d 464, 472 (E.D. Va. 2019), and Portillo v. Hott , 322 F. Supp. 3d 698, 708-09 (E.D. Va. 2018), where this Court ordered that the petitioners receive a bond hearing before an immigration judge.However, Petitioner's reliance on these cases is misplaced.