Opinion
CIVIL NO. 3:18-CV-1409
10-16-2018
IBRAHIM SORIE BAH, Petitioner, v. CLAIR DOLL, et al., Respondents.
(Judge Mannion)
( ) REPORT AND RECOMMENDATION I. Factual Background
We note that Bah filed a previous habeas petition Bah v. Doll, Civil No. 3:18-cv-0516 that was assigned to Judge Caputo. On October 12, 2018, that petition was transferred and consolidated with the instant case and referred to the undersigned.
This habeas corpus petition filed by an immigrant detainee who has been in custody without individualized bond consideration for the past 14 months illustrates how the law defining the due process rights of aliens who are detained pending completion of removal proceedings remains in a state of flux. Several factors combine to create a shifting legal terrain in this field. First, these claims are considered against a complex statutory and regulatory framework which draws distinctions between various classes of aliens based upon whether they have lawfully entered the country or are arriving aliens who present themselves at our nation's borders. The prior criminal record of the alien, if any, can also affect any statutory entitlement to bond consideration under the Immigration and Naturalization Act. Furthermore, the status of the agency administrative proceedings, which includes whether the alien's case is in pre-removal proceedings or whether the alien is subject to a final order of removal, is a material fact which must be considered when evaluating federal habeas corpus petitions filed by immigration detainees. Given the many variables that courts consider in deciding these cases, it is hardly surprising that, for litigants and the courts alike, the resolution of these petitions often calls upon us to traverse an uncertain legal landscape, mindful of the fact that our decisions profoundly affect the lives and liberties of others. This case aptly illustrates the shifting legal sands which define litigation in this field.
The pertinent facts can be simply stated: The petitioner, Ibrahim Bah, is a citizen and native of Sierra Leone who was admitted to the United States on December 27, 2002 as a Lawful Permanent Resident. (Doc. 6 Ex. 1, Notice to Appear, at 3; Ex. 2, Record of Deportable/Inadmissible Alien, at 2.) On September 4, 2013, Bah was convicted in the Court of Common Pleas of Bucks County of four counts of receiving stolen property and was sentenced to 4-8 years imprisonment. (Id., Ex. 1, at 3; Ex. 2 at 2.) As Bah's term of imprisonment drew to a close, on July 24, 2017, immigration officials issued a Notice to Appear charging that Bah was subject to removal from the United States pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) since he had been convicted of an aggravated felony. (Id., Ex. 1 at 3.) Shortly thereafter, following his release from this criminal sentence, immigration officials took Bah into custody and placed him into removal proceedings. (Id., Ex. 1 at 2.)
The precise date upon which Bah was brought into immigration custody is unclear on this docket but in his companion case, petition Bah v. Doll, Civil No. 3:18-cv-0516, Bah indicated that he was remanded to immigration custody by mid-August 2018, which means that he has remained in immigration detention for the past 14 months. --------
On January 11, 2018, an immigration judge ordered that Bah's applications for withholding of removal under the INA and for protection under Article 3 of the Convention Against Torture be denied and that he be removed from the United States to Sierra Leone. (Id., Ex. 3, Removal Order.) Bah has challenged this decision in a legal and bureaucratic journey which remains ongoing.
That journey began on February 15, 2018, when Bah filed an untimely appeal with the Board of Immigration Appeals. (Id., Ex. 4 BIA Appeal.) On February 27, 2018, DHS requested the BIA to summarily dismiss the appeal as untimely. (Id., Ex. 5, Motion for Summary Dismissal.) However, it appears the BIA accepted Bah's late appeal. Specifically, on April 9, 2018, the BIA issued a briefing schedule. (Id., Ex. 6, Briefing Schedule.) The BIA then subsequently granted Bah a briefing extension. (Id., Ex. 7, Briefing Extension.) On July 12, 2018, the BIA dismissed Bah's appeal. (Id., Ex. 8, BIA Decision.)
Having exhausted his administrative appeals, on July 27, 2018, Bah filed a Petition for Review with the Third Circuit and, pursuant to the Third Circuit's Standing Practice Order, was granted a temporary stay of removal. See Bah v. Att'y Gen., No. 18-2677 (3d Cir. 2018). Thus, despite the entry of a final order of removal, by operation of law, the appellate court's temporary stay reverted Bah's detention status to a pre-removal status governed by 8 U.S.C. § 1226(c) pursuant to Leslie v. Att'y Gen., 678 F.3d 265, 270 (3d Cir. 2012).
During this protracted 14-month period of removal litigation Bah has remained continuously in immigration custody and has not received any individualized bond consideration. This continuing custody without any bond consideration forms the gravamen of Bah's federal habeas corpus petition, which seeks relief in the form of an order directing an individualized bond hearing. This petition is fully briefed by the parties, (Docs. 1 and 6) and is, therefore, ripe for resolution.
For the reasons set forth below, given the current state of the law as it relates to individualized bond consideration for criminal aliens awaiting removal, we believe that Bah is entitled to a bond hearing before an immigration judge. Therefore, we recommend that this petition be granted, to the extent that Bah is afforded such a hearing.
II. Discussion
A. The Development of Due Process Principles Relating to Detention of Criminal Aliens
In a legal landscape where the particular factual context often defines the nature of substantive constitutional rights, this case presents a very specific factual scenario. The petitioner is a criminal alien, who has now been held in mandatory detention for 14 months as he has litigated legal claims concerning his removal from the United States. During this protracted period Bah has remained detained in a pre-removal status without having received any individualized bond consideration from an immigration judge.
Over time the legal landscape for such alien detainees has shifted and changed. Initially, as a matter of statutory interpretation, Bah's detention appears to be compelled by statute. Section 1226(c) of Title 8, United States Code, directs the Attorney General to detain certain aliens pending removal, stating in clear and precise terms as follows:
(c) Detention of Criminal Aliens--(1) Custody.--The Attorney General shall take into custody any alien who.-- (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[sic] to a term of imprisonment of at least 1 year.8 U.S.C. § 1226(c)(1)(C).
By enacting this mandatory detention requirement for a sub-class of aliens, including aliens like Bah who are convicted of theft offenses and are awaiting removal from the United States, Congress was responding to specific, immigration concerns caused by the failure to timely deport these aliens. As the Supreme Court has noted:
Congress adopted this provision against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens. See, e.g., Criminal Aliens in the United States: Hearings before
the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, 103d Cong., 1st Sess. (1993); S.Rep. No. 104-48, p. 1 (1995) (hereinafter S. Rep. 104-48) (confinement of criminal aliens alone cost $724 million in 1990). Criminal aliens were the fastest growing segment of the federal prison population, already constituting roughly 25% of all federal prisoners, and they formed a rapidly rising share of state prison populations as well. Id., at 6-9. Congress' investigations showed, however, that the INS could not even identify most deportable aliens, much less locate them and remove them from the country. Id., at 1. One study showed that, at the then-current rate of deportation, it would take 23 years to remove every criminal alien already subject to deportation. Id., at 5. Making matters worse, criminal aliens who were deported swiftly reentered the country illegally in great numbers. Id., at 3.The INS' near-total inability to remove deportable criminal aliens imposed more than a monetary cost on the Nation. First, as Congress explained, "[a]liens who enter or remain in the United States in violation of our law are effectively taking immigration opportunities that might otherwise be extended to others." S.Rep. No. 104-249, p. 7 (1996). Second, deportable criminal aliens who remained in the United States often committed more crimes before being removed.Demore v. Kim, 538 U.S. 510, 518 (2003).
Recognizing these concerns, Congress mandated the detention of several classes of aliens, including aliens, like Bah, who are convicted of property offenses since the immigration laws define excludable, inadmissible aliens to include aliens convicted of "a crime involving moral turpitude . . . or an attempt or conspiracy to commit such a crime." 8 U.S.C. § 1182 (a)(2)(A)(i)(I). Section 1227(a)(2)(A) of Title 8, United States Code, then provides that among these deportable, excludable aliens who are subject to mandatory detention are aliens like Bah who were:
convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent
resident status under section 1255(j) of this title) after the date of admission, and . . . convicted of a crime for which a sentence of one year or longer may be imposed.8 U.S.C. § 1227 (a)(2)(A)(i).
In this case, it appears that Bah falls within this class of aliens convicted of offenses involving moral turpitude who are subject to the mandatory detention provisions of 8 U.S.C. § 1226(c). However, this finding does not end our inquiry. Rather, it constitutes the beginning of this inquiry. Having concluded as a matter of statutory construction that Bah is initially subject to this mandatory detention, we must then consider whether the duration of this detention is now unreasonable.
The starting point of this analysis is the United States Supreme Court's decision in Demore v. Kim, 538 U.S.510 (2003). In Demore, the Supreme Court found that §1226(c)'s mandatory detention provision does not, by itself, violate due process, holding that: "Detention during removal proceedings is a constitutionally permissible part of that process." Demore, 538 U.S. at 531 (citations omitted). Yet, while reaching the conclusion that mandatory detention of certain criminal aliens did not violate due process, the Supreme Court emphasized the very brief duration of most removal proceedings which rarely exceeded five months, id. at 530, and noted that the six-month delay experienced by the alien in that case was a product of his own actions which delayed the entry of a final removal order. Id. at 531, n. 15. Given the fixed and finite term of any pre-removal detention, the Court held that the fact of this mandatory detention did not violate due process.
Thus, Demore held that mandatory detention of certain criminal aliens pending removal proceedings does not, by itself, offend due process. However, the Demore Court based this ruling upon its understanding of the short, fixed and finite term of any detention prior to removal. Therefore, while Demore addressed the due process issues that arise from the mere fact that, for certain aliens, detention pending removal is mandatory, subsequent cases have held that courts still have an independent responsibility to assess whether the duration of any mandatory detention is so extended and unreasonable as to violate due process. Moreover, in those instances where the period of detention has become excessive courts are obliged to grant habeas corpus relief to detained aliens. See, e.g., Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005); Ly v. Hanson, 351 F.3d 263 (6th Cir. 2004); Alli v. Decker, No. 09-698, 2009 WL 2430882 (M.D. Pa. Aug. 10, 2009); Occelin v. District Director, No. 09-164, 2009 WL 1743742 (M.D. Pa. June 17, 2009); Victor v. Mukasey, No. 08-1914, 2008 WL 5061810 (M.D. Pa. Nov. 25, 2008); Wilks v. U.S. Dep't of Homeland Security, No. 07-2171, 2008 WL 4820654 (M.D. Pa. Nov. 3, 2008); Nunez-Pimentel v. U.S. Dep't of Homeland Security, No. 07-1915, 2008 WL 2593806 (M.D. Pa. June 27, 2008); Prince v. Mukasey, 593 F. Supp. 2d 727 (M.D. Pa. 2008); Madrane v. Hogan, 520 F. Supp. 2d 654 (M.D. Pa. 2007) .
Initially, the courts adopted an as-applied approach to constitutional challenges to prolonged immigration detention, and focused upon several benchmarks when defining the contours of this constitutional protection against excessive detention pending removal proceedings. First, in assessing these claims, courts looked to the duration of the detention. Thus, in general, pre-removal detentions spanning a period of months did not present substantial constitutional issues. See e.g., Demore, 538 U.S. at 531(6 months); Rodrigques v. Holder, No. 09-1764, 2010 WL 830929, *3 (M.D. Pa. March 4, 2010)(one-year detention); Slebo v. District Director, No. 09-1335, 2009 WL 2151347 (M.D. Pa. July 17, 2009)(Munley, J.)(8 months); Rodney v. Mukasey, No. 08-1386, 2009 WL 427171 (M.D. Pa. Feb. 20, 2009)(Muir, J.)(18 months); Wright v. Bureau of Immigration and Customs Enforcement, No. 06-2278, 2007 WL 86263 (M.D. Pa. Jan. 9, 2007)(Conner, J.)(7 months). In contrast, periods of detention which exceeded one year, like the detention currently experienced by Bah, triggered more substantial constitutional concerns and often warranted relief. See, e.g., Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005)(2 years 8 months); Ly v. Hanson, 351 F.3d 263 (6th Cir. 2004)(500 days); Alli v. Decker, No. 09-698, 2009 WL 2430882 (M.D. Pa. Aug. 10, 2009)(9 and 20 months); Occelin v. District Director, No. 09-164, 2009 WL 1743742 (M.D. Pa. June 17, 2009)(2 years); Victor v. Mukasey, No. 08-1914, 2008 WL 5061810 (M.D. Pa. Nov. 25, 2008)(16 months); Wilks v. U.S. Dep't of Homeland Security, No. 07-2171, 2008 WL 4820654 (M.D. Pa. Nov. 3, 2008)(2 years); Prince v. Mukasey, 593 F. Supp.2d 727 (M.D. Pa. 2008)(16 months); Madrane v. Hogan, 520 F. Supp. 2d 654 (M.D. Pa. 2007)(3 years). In practice, over time a non-exhaustive list of the factors traditionally considered by the courts when conducting this due process analysis has included:
"(1) whether detention has continued beyond the average times necessary for completion of removal proceedings which were identified in Demore ; (2) the probable extent of future removal proceedings; (3) the likelihood that removal proceedings will actually result in removal; and (4) the conduct of both the alien and the government during the removal proceedings." Hernandez v. Sabol, 823 F. Supp. 2d 266, 273 (M.D. Pa. 2011) (citing Alli v. Decker, 644 F.Supp.2d 535, 543-45 (M.D. Pa. 2009), rev'd in part, vacated in part on other grounds, 650 F.3d 1007 (3d Cir. 2011) ); see also Reid v. Donelan, 819 F.3d 486, 500 (1st Cir. 2016), cert. denied, 138 S. Ct. 1547 (2018).Vega v. Doll, No. 3:17-CV-01440, 2018 WL 3765431, at *10 (M.D. Pa. July 11, 2018), report and recommendation adopted, No. CV 3:17-1440, 2018 WL 3756755 (M.D. Pa. Aug. 8, 2018).
In 2015, the court of appeals then provided us with a more precise analytical paradigm to use when adjudicating claims of prolonged detention raised by immigration detainees like Bah. In Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015), the court of appeals 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 consistent with the idea that aliens can be treated differently. Id. at 526, 123 S.Ct. 1708 (quoting Flores, 507 U.S. at 313, 113 S.Ct. 1439); see also Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952). The Court, in essence, concluded that Congress lawfully required the Attorney General to make presumptions of flight and dangerousness about the alien solely because he belonged to the group of aliens convicted of the types of crimes defined in section 1226(c).Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 472-73 (3d Cir. 2015).
Thus, the court in Chavez-Alvarez recognized that Demore held that mandatory detention of certain criminal aliens pending removal proceedings does not, by itself, offend due process. However, in Chavez Alvarez, the court also recognized that there remains an independent responsibility to assess whether the duration of any mandatory detention is to ensure that this detention is not so extended and unreasonable as to violate due process.
Further, the court in Chavez-Alvarez provided us with guidance in assessing the reasonableness of the duration of any mandatory immigration detention. This determination entails a balancing test, and while noting that "[b]y its very nature, the use of a balancing framework makes any determination on reasonableness highly fact-specific," Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 474 (3d Cir. 2015), the court enjoined us that there are several guideposts which we should consider. First, in a case where an alien is prosecuting a good-faith challenge to his or her removal from the United States, the appellate court held that, "beginning sometime after the six-month time frame considered by Demore, and certainly by the time [the alien] had been detained for one year, the burdens to [the petitioner's] liberties outweigh[] any justification for using presumptions to detain him without bond to further the goals of the statute. We conclude that the underlying goals of the statute would not have been, and will not now be undermined by requiring the Government to produce individualized evidence that [the petitioner's] continued detention was or is necessary." Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 478 (3d Cir. 2015).
Thus, Chavez-Alvarez prescribed a six-month-to-one-year time continuum within which individualized bond consideration should take place. In prescribing this six-month-to-one-year time frame during which the presumption of detention is sufficiently eroded that individualized bond consideration is necessary, the appellate court also defined what showing the government must make in order to justify the continued detention of the petitioner. According to the court, the immigration statute " '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.' " Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 475 (3d Cir. 2015). Further, once "detention becomes 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." Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011).
While Chavez Alvarez provided this additional measure of analytical clarity to decision-making in this field, both Chavez Alvarez, and the principal appellate case which it relied upon, Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011), contained within them the seeds of a future ambiguity, since these decisions suggested two alternate rationales for imposing 6-to-12 month presumptively reasonable time frame for mandatory immigration detention, beyond which an alien was entitled to a bond hearing. In Diop and Chavez Alvarez, the appellate court relied upon basic due process principles, as well as a related doctrine, the principle of constitutional avoidance, to support this imposition of these presumptive time frames. The doctrine of constitutional avoidance is a canon of statutory interpretation which calls upon us, whenever possible, to construe a statute in a way which avoids a direct conflict between the statute and the Constitution.
These references in Diop and Chavez Alvarez to the doctrine of constitutional avoidance in fashioning this presumptively reasonable period of detention would later create confusion when in 2018 the United States Supreme Court decided Jennings v. Rodriguez, 583 U.S. ___, 138 S. Ct. 830 (2018). In Jennings the Supreme Court expressly rejected the Ninth Circuit's determination in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) (Rodriguez III) that 8 U.S.C. §§ 1225, 1226(a), and 1226(c) require bond hearings after six months of immigration detention. See Jennings, 138 S. Ct. at 836. In reversing, the Supreme Court held that the Ninth Circuit improperly applied the canon of constitutional avoidance to find that bond hearings were required under the relevant statutory provisions, id., noting that the plain text of 8 U.S.C. § 1226(c) mandates detention until the completion of proceedings and these provisions cannot be read to limit detention to six months. See id. at 845, 847. Significantly, however, the Supreme Court did not address the constitutional question of whether aliens had a due process right to a pre-removal bond hearing after some period of detention had elapsed. Instead, the Court "remand[ed] the case to the Court of Appeals to consider the [due process questions] in the first instance." Jennings v. Rodriguez, 138 S. Ct. 830, 851, 200 L. Ed. 2d 122 (2018).
In the wake of Jennings, the government has argued that the Jennings decision entirely abrogated Chavez Alvarez. If Chavez Alvarez was simply a decision which rested exclusively upon the canon of constitutional avoidance, then this argument was undoubtedly correct. In contrast, if Chavez Alvarez relied upon constitutional due process principles to define the presumptively reasonable duration of immigration detention without a hearing, then Jennings' holding, which eschewed any due process analysis, would not have completely abrogated the rule announced in Chavez Alvarez. Presented with this shifting legal landscape, and these ambiguities, judges of this court initially reached competing conclusions. Some have suggested that Jennings abrogated Chavez Alvarez. See, e.g., Chica-Iglesia v. Lowe, No. 1:18-CV-0035, 2018 WL 1960438, at *3 (M.D. Pa. Apr. 25, 2018); Coello-Udiel v. Doll, No. 3:17-CV-1414, 2018 WL 2198720, at *1 (M.D. Pa. May 14, 2018); Destine v. Doll, No. 3:17-CV-1340, 2018 WL 3584695, at *2 (M.D. Pa. July 26, 2018); Fatule-Roque v. Lowe, No. 3:17-CV-1981, 2018 WL 3584696, at *2 (M.D. Pa. July 26, 2018); Fernandez v. Lowe, No. 3:17-CV-2301, 2018 WL 3584697, at *3 (M.D. Pa. July 26, 2018) ; Okyere v. Doll, No. 1:18-CV-178, 2018 WL 3585080, at *3 (M.D. Pa. July 26, 2018). Others have considered Chavez Alvarez a rule of constitutional dimension and suggested that this ruling may remain unaffected by the narrow Jennings holding which was limited to the canon of constitutional avoidance, a rule of statutory interpretation. See e.g., Vega v. Doll, No. CV 3:17-1440, 2018 WL 3756755, at *3 (M.D. Pa. Aug. 8, 2018).
The court of appeals has now added some measure of clarity, while retaining an element of ambiguity, in this legal discussion. In Guerrero-Sanchez v. Warden York Cnty. Prison, No. 16-4134, 2018 WL 4608970, at *10 (3d Cir. Sept. 26, 2018), the appellate court discussed the interplay between the Supreme Court's ruling in Jennings and its own prior decisions in Chavez Alvarez and Diop, stating that:
In Diop, applying the canon of constitutional avoidance, we construed § 1226(c) to contain an implicit "reasonable" time limit on the period for which detention without a bond hearing was statutorily authorized. 656 F.3d at 231. This statutory holding has been abrogated by Jennings, where the Court held that the text of § 1226(c) is clear and that "detention [under § 1226(c) ] may end prior to the conclusion of removal proceedings 'only if' the alien is released for witness-protection purposes." Jennings, 138 S.Ct. at 847 (quoting 8 U.S.C. § 1226(c) ). Diop, however, also reached a constitutional holding and found that "when detention becomes 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." 656 F.3d at 233 (emphasis added); see also id. at 223 ("[T]he Due Process Clause of the Fifth Amendment to the Constitution requires that the Government establish that continued detention is necessary to further the purposes of [§ 1226(c) ]."); id. at 235 (holding that Diop's detention constituted "a violation of the Due Process Clause"). We reasoned, inter alia, that "[t]he constitutionality of [mandatory detention] is a function of the length of the detention" and that "[a]t a certain point, continued detention ... becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purpose of preventing flight and dangers to the community." Id. at 232 (emphasis added). Since we hold that Guerrero-Sanchez's detention is governed by § 1231(a)(6) and not § 1226(c), we have no occasion to determine here whether Diop's constitutional holding survives Jennings.Guerrero-Sanchez v. Warden York Cty. Prison, No. 16-4134, 2018 WL 4608970, at *10 n. 11 (3d Cir. Sept. 26, 2018).
Thus, the court of appeals has now reaffirmed that its prior holding in Diop was a constitutional holding which found that "when detention becomes 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." 656 F.3d at 233 (emphasis added).
B. Bah is Entitled to an Individualized Bond Hearing
Applying these principles to the instant case, we recommend that this petition for writ of habeas corpus be granted, and Bah be afforded an individualized bond hearing. At the outset, if we construe the holding in Chavez Alvarez that "beginning sometime after the six-month time frame considered by Demore, and certainly by the time [the alien] had been detained for one year, the burdens to [the petitioner's] liberties outweigh[] any justification for using presumptions to detain him without bond to further the goals of the statute," Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 478 (3d Cir. 2015), to be a constitutional holding, then Bah's detention, which now exceeds 14 months has reached a duration where a bond hearing is compelled by Chavez Alvarez.
But even if we applied the more generous as-applied due process framework relied upon by courts prior to Chavez Alvarez we would still recommend that Bah receive an individualized bond hearing. As we have noted that traditional as-applied due process analysis typically examined four factors:
"(1) whether detention has continued beyond the average times necessary for completion of removal proceedings which were identified in Demore ; (2) the probable extent of future removal proceedings; (3) the likelihood that removal proceedings will actually result in removal; and (4) the conduct of both the alien and the government during the removal proceedings." Hernandez v. Sabol, 823 F. Supp. 2d 266, 273 (M.D. Pa. 2011) (citing Alli v. Decker, 644 F.Supp.2d 535, 543-45 (M.D. Pa. 2009), rev'd in part, vacated in part on other grounds, 650 F.3d 1007 (3d Cir. 2011) ); see also Reid v. Donelan, 819 F.3d 486, 500 (1st Cir. 2016), cert. denied, 138 S. Ct. 1547 (2018).Vega v. Doll, No. 3:17-CV-01440, 2018 WL 3765431, at *10 (M.D. Pa. July 11, 2018), report and recommendation adopted, No. CV 3:17-1440, 2018 WL 3756755 (M.D. Pa. Aug. 8, 2018).
In the instant case, an assessment of these four factors weighs in favor of providing Bah the rudiments of due process, a bond hearing. At the outset, we note that the duration of Bah's detention—14 months—is now more than twice as long as the six-month period identified by the Supreme Court in Demore. Thus, this factor—length of the delay—which courts concede is "the most important," Vega v. Doll, No. 3:17-CV-01440, 2018 WL 3765431, at *10 (M.D. Pa. July 11, 2018), report and recommendation adopted, No. CV 3:17-1440, 2018 WL 3756755 (M.D. Pa. Aug. 8, 2018), favors granting habeas relief to Bah.
As for the second factor, the probable extent of future removal proceedings, all that can be said with certainty is that additional delay of an undefined duration will continue to accrue pending a ruling by the court of appeals, and any further administrative proceedings that may be necessary following that appellate court decision. "Accordingly, this factor weighs slightly in favor of [the petitioner], as there is the potential for further extensive proceedings." Vega v. Doll, No. 3:17-CV-01440, 2018 WL 3765431, at*10 (M.D. Pa. July 11, 2018), report and recommendation adopted, No. CV 3:17-1440, 2018 WL 3756755 (M.D. Pa. Aug. 8, 2018).
The third governing consideration, the likelihood that removal proceedings will actually result in removal, is unknowable at this time, although the government has not shown that Bah's petition is so utterly frivolous or lacking in merit that it can rely upon this factor to deny habeas corpus relief at this time.
Finally, with respect to the fourth factor we should consider, the conduct of both the alien and the government during the removal proceedings, while we concede some delay has been attributable to Bah's failure to meet prescribed deadlines, we cannot at this time say that Bah has acted improperly in these removal proceedings. Rather, it appears that Bah is simply exercising his legal rights in an effort to stave off his removal, something he is entitled to do under our system of laws. In the absence of clear evidence of bad faith on Bah's part, "given that a variety of due process considerations must be evaluated by the Court, the absence of an improper delay is not ultimately determinative of the instant constitutional analysis." Vega v. Doll, No. 3:17-CV-01440, 2018 WL 3765431, at *11 (M.D. Pa. July 11, 2018), report and recommendation adopted, No. CV 3:17-1440, 2018 WL 3756755 (M.D. Pa. Aug. 8, 2018).
In sum both the duration of the detention experienced by Bah to date, and the prospect of an additional undefined period of further detention in the future, weigh in favor of granting relief to the petitioner. The likelihood that removal proceedings will actually result in removal is unknown and unknowable at this time. Accordingly, this factor warrants little weight in our merits evaluation. Finally, while Bah has caused some of this delay through his occasionally halting approach to litigation, we cannot conclude that he has acted in bad faith and "given that a variety of due process considerations must be evaluated by the Court, the absence of an improper delay is not ultimately determinative of the instant constitutional analysis." Vega v. Doll, No. 3:17-CV-01440, 2018 WL 3765431, at *11 (M.D. Pa. July 11, 2018), report and recommendation adopted, No. CV 3:17-1440, 2018 WL 3756755 (M.D. Pa. Aug. 8, 2018). Therefore, taking all of these factors into consideration, we find that Bah has made a sufficient showing to justify habeas relief in the form of an individualized bond hearing. Finding that an individualized bond hearing is appropriate in this case, it is recommended that this Court order that an Immigration Judge in the first instance conduct this individualized bond hearing. Indeed, the appellate court suggested that, in many instances, this initial bond determination can, and should, be made by the Immigration Judge, applying the constitutional benchmarks outlined by the courts. Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 478 n.12 (3d Cir. 2015). This guidance, in turn, is consistent with other case law in this field, where federal courts have frequently referred these bond questions to Immigration Judges in the first instance. See, e.g., Casas-Castrillon v. Dep't of Homeland Security, 535 F.3d 942 (9th Cir. 2008); Reid v. Donelan, 991 F. Supp. 2d 275 (D. Mass. 2014); Chen v. Aitken, 917 F. Supp. 2d 1013 (N.D. Cal. 2013); Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009); Sengkeo v. Horgan, 670 F. Supp. 2d 116 (D. Mass. 2009); Wilks v. U.S. Dep't of Homeland Security, No. 07-2171, 2008 WL 4820654 (M.D. Pa. Nov. 3, 2008). Moreover, this course of action is entirely consistent with settled case law directing such hearings before immigration judges for petitioners whose pre-removal detention falls within the ambit of the ruling in Chavez-Alvarez. See e.g., Vale v. Sabol, No. 1:15-CV-2249, 2015 WL 8602751, at *1 (M.D. Pa. Dec. 14, 2015); Singh v. Sabol, No. 1:14-CV-1927, 2015 WL 3519075, at *1 (M.D. Pa. June 4, 2015), appeal dismissed (Sept. 9, 2015).
Further, we note that while we recommend that such a hearing be conducted in this case, nothing in this recommendation should be construed as suggesting what the outcome of that hearing should be. We leave that assessment to the sound discretion of the Immigration Judge.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the district court GRANT the petition and order an individualized bond hearing for the petitioner within 21 days.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 16th day of October, 2018
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge