Opinion
Civil Action 4:22-CV-0020
08-18-2022
DAMION G.V. DAVIS, Petitioner v. WARDEN OF PIKE COUNTY CORRECTIONAL FACILITY[1]Respondent
RAMBO, D.J.
REPORT AND RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
I revisit the case of Damion G.V. Davis, who has been a civil immigration detainee for almost three years. He asks to be released from custody, or in the alternative, to receive a bond hearing. To that end, he filed two near identical habeas corpus petitions in this Court. While sympathetic to Mr. Davis' prolonged detention, the Court cannot grant his request for release. With respect to his request for a bond hearing, Mr. Davis received one on April 6, 2022. These facts were fatal to first habeas petition, so likewise, his second petition should also be denied. Therefore, I recommend that this second Petition be denied as to his request for release from detention, and his request for a bond hearing be denied as moot.
II. FACTUAL BACKGROUND & PROCEDURAL HISTORY
On January 4, 2022, Damion G.V. Davis (Mr. Davis or “Petitioner”), a United States Immigration and Customs Enforcement (“ICE”) detainee then held at the Pike County Correctional Facility, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc. 1). Mr. Davis named four respondents: (1) Merrick Garland, the Attorney General of the United States; (2) the Secretary of Homeland Security, (3) David O'Neil, Director of the Philadelphia ICE field office, and (4) the Warden of Pike County Correctional Facility. (Id. at ¶¶ 7-10). The Court ordered Mr. Davis to refile his petition on a standard form pursuant to this Court's local rules for pro se habeas petitioners. (Doc. 6). On January 28, 2022, Mr. Davis filed an Amended Petition on the standard form, which is now the operative petition. (Doc. 7).
The Government represents that Mr. Davis is currently detained at the Buffalo (Batavia) Service Processing Center in New York. (Doc. 18, p. 3).
Mr. Davis' Amended Petition is not as detailed as his original. Therefore, some of the factual background will be drawn from the original petition.
Mr. Davis has been detained by ICE since October 17, 2019. (Doc. 1, ¶ 12); (Doc. 17). Petitioner is a citizen and native of Jamaica and is a Lawful Permanent Resident of the United States. (Doc. 1, ¶ 11). Despite being born in Jamaica, Mr. Davis claims he received derivative U.S. citizenship because his father was a U.S. citizen. (Id.). On February 21, 2020, an Immigration Judge ordered Petitioner removed from the United States. (Doc. 1, ¶ 15). The Board of Immigration Appeals (“BIA”) affirmed this decision. (Id.).
In his Amended Petition, Mr. Davis argues that he should qualify for bail. He asserts three claims for relief: (1) that 8 U.S.C. § 1231 forbids Mr. Davis' prolonged detention, (2) that his detention violates the Substantive Due Process clause of the Fifth Amendment, and (3) that his detention violates the Procedural Due Process clause of the Fifth Amendment. (Doc. 7 at pp. 7-8). In his Petition, he explicitly asks for five forms of relief, most relevant of which is that he asks for his release from detention (and if necessary, with conditions of supervision) an injunction against Respondents from further detaining him, attorney's fees, and any other relief the Court sees fit. (Id. at p. 9).
I note that since Mr. Davis wrote his Petition, Mr. Davis shifted back to a “prefinal” status and is detained under the provisions of 8 U.S.C. § 1226, not 8 U.S.C. § 1331. That will be discussed later in this Report and Recommendation.
About six months before he filed this Petition, Mr. Davis appealed the BIA's decision to the Third Circuit on June 22, 2021. Davis v. Attorney General of the United States, No. 21-2235 (3d Cir.), ECF No. 1. In keeping with the Third Circuit's standing order on immigration cases, on June 28, 2021, the Clerk of Court administratively stayed Petitioner's removal order. Order, Davis, No. 21-2235 (3d Cir.), ECF No. 4. However, roughly two months later, on August 30, 2021, a panel of the court lifted the stay. Order, Davis, No. 21-2235 (3d Cir.), ECF No. 16. ICE “cleared [Petitioner] for removal” on November 9, 2021. (Doc. 25, p. 2). But before his removal could be effectuated, on December 30, 2021, a different panel of the Third Circuit reinstituted the stay. Order, Davis, No. 21-2235 (3d Cir.), ECF No. 34. As of the date of this Report and Recommendation, the Third Circuit's stay is still in effect.
Petitioner's motion to proceed in forma pauperis was granted on February 8, 2022, (Doc. 8), and I issued a show cause order directing the Clerk of Court to serve Mr. Davis' Petition on the U.S. Attorney's Office and the Warden of the Pike County Correctional Facility. (Doc. 9). On February 22, 2022, Respondents filed a Response. (Doc. 11). Respondents argued that this Petition should be denied under the first filed rule, because Mr. Davis had a near identical petition in this Court that was pending before Judge Wilson. (Id.). On April 13, 2022, Petitioner filed a Supplement replying to Respondent's Response. (Doc. 13).
In a Briefing Order, (Doc. 14), I noted that I was skeptical that the first filed rule applies in this case because this doctrine only applies to cases heard by different courts. See, e.g., Haag v. Janney Montgomery Scott, LLC, No. 06-cv-5634, 2007 WL 1240206, at *2-3 (E.D. Pa. Apr. 26, 2007) (rejecting dismissal by way of the first filed rule because the two cases were filed in the same court). Regardless, because the Court asked for briefing on mootness, I will not substantially address this aspect of the Government's argument.
Judge Wilson denied Mr. Davis' Petition on June 13, 2022. ECF No. 42, Davis v. Attorney General of the United States, No. 4:21-CV-1260 (M.D. Pa.).
On April 28, 2022, I asked the Government to update the Court on whether Mr. Davis received a bond hearing, and if he did, whether that makes this Petition moot. (Doc. 14). Before the Government responded, Mr. Davis filed a letter notifying the Court that he received a bond hearing, and that he wished to “discontinue the civil action case that is stated above [4:22-CV-0020] . . .” (Doc. 17). In the Government's response, it confirmed that Mr. Davis had an unfavorable bond hearing on April 6, 2022. (Doc. 18). The Government further argued that Mr. Davis' Petition should be denied as moot. (Id.).
Additionally, Mr. Davis' near identical petition before Judge Wilson was denied on June 13, 2022. ECF No. 42, Davis v. Attorney General of the United States, No. 4:21-CV-1260 (M.D. Pa.).
III. LEGAL STANDARD
Under 28 U.S.C. § 2241(c), a prisoner or detainee may receive habeas relief only if he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). When a petitioner seeks immediate release from custody, the “sole federal remedy” lies in habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500, (1973). Because Petitioner is in federal custody and seeks release, Section 2241 is the appropriate statute under which he may seek habeas relief.
IV. DISCUSSION
In this section, I will discuss the law regarding civil immigration detention, and why Mr. Davis' Petition cannot give him the relief he requests.
A. THE LAW GOVERNING IMMIGRATION DETENTION
The Government derives its authority to detain removable aliens from two different statutes: 8 U.S.C. § 1226 and 8 U.S.C. § 1231. Each statute allows the Government to detain an individual depending on if the individual is awaiting a final order of removal, or if an individual has been ordered removed.
Section 1226 detention permits the Government to detain individuals who have not received an administratively final order of removal. Section 1226 contains two relevant passages for us: subsection (a) and subsection (c). They state:
(a) Arrest, detention, and release.
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General-
(1) may continue to detain the arrested alien; and
(2) may release the alien on-
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole
....
(c) Detention of criminal aliens.
(1) Custody.
The Attorney General shall take into custody any alien who-
(A) is inadmissible by reason of having committed any offense covered in section 212(a)(2),
(B) is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),
(C) is deportable under section 237(a)(2)(A)(i) on the basis of an offense for which the alien has been sentence [sentenced] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B),
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.8 U.S.C. § 1226
Subsection (a) applies to most aliens. These aliens may be granted bond and a conditional release. Subsection (c) applies to a narrower subset of aliens who have committed one of the crimes listed in subparagraphs (A) to (D). For these aliens, their detention is mandatory, and statute does not explicitly allow for a bond hearing. Further, the Government does not lose its ability to detain criminal aliens under Section 1226(c) just because the Government did not detain the alien immediately after the alien is released from incarceration. Sylvain v. AG of the United States, 714 F.3d 150, 161 (3d Cir. 2013).
When an alien receives an administratively final order of removal, the statutory basis for their detention shifts to Section 1231. Under this statute, “[t]he Attorney General shall remove [an] alien [subject to an order of removal] from the United States within a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A). The removal period begins the latest of:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.8 U.S.C. § 1231(a)(1)(B). “During the removal period, the Attorney General shall detain the alien. Under no circumstance during the removal period shall the Attorney General release an alien who has been found . . . deportable under section 1227(a)(2) ....” 8 U.S.C. § 1231(a)(2). After the 90-day removal period, an alien shall be subject to continued supervision on conditions, but detention is no longer mandatory. 8 U.S.C. § 1231(a)(3). However, if an alien appeals the Board of Immigration Appeals' final decision to the appropriate court of appeals and that court issues a stay of proceedings, an alien's removal status is no longer final. Leslie v. AG of the United States, 678 F.3d 265, 269 (3d Cir. 2012). Their detention then shifts from Section 1331 back to Section 1226. Id.
The only remedy for an alien challenging their mandatory detention is a bond hearing. Hernandez T. v. Wolf, No. 19-cv-12584, 2020 WL 634235, at *2-3 (D.N.J. Feb. 11, 2020) (“[challenges to detention under Section 1226(c)] has but a single remedy - a bond hearing . . . .”). The Third Circuit in German Santos v. Warden Pike County Correctional Facility, 965 F.3d 203, 210-11 (3d Cir. 2020) set forth the factors courts must use in analyzing a bond hearing request for Section 1226(c) detainees. In German Santos, the Third Circuit reaffirmed its prior decisions in Diop v. ICE/ Homeland Sec., 656 F.3d 221 (3d Cir. 2011) and Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015), holding, “when detention becomes unreasonable, the Due Process Clause demands a hearing.” German Santos, 965 F.3d at 210 (citing Diop, 656 F.3d at 233). In evaluating reasonableness, the Court must consider four factors: (1) the length of detention, (2) whether the detention is likely to continue, (3) the reasons for the delay “including whether either party made errors in bad faith or out of carelessness, which unnecessarily prolonged removal the proceedings,” and (4) “whether the conditions of confinement are meaningfully different from criminal detention.” Ordanny E.G. v. Ortiz, No. 21-cv-5502, 2021 WL 2910741, at * 2 (D.N.J. July 8, 2021) (quoting German Santos, 965 F.3d at 21011). The most important factor is the duration of detention, and duration is measured against “the Government's representation [in the Supreme Court case Demore v. Kim, 538 U.S. 510 (2003)] that [Section 1226(c)] detention lasts between one-and-a half and five months.” German-Santos, 965 F.3d at 211.
B. MR. DAVIS' PETITION FAILS
Mr. Davis challenges his dentition in three ways: (1) that his Section 1231(a)(6) detention has passed six months and is therefore unlawful, (2) that his detention violates the due process clause of the Fifth Amendment because his detention has been presumptively unreasonable, and (3) that procedural due process requires that he be given a bond hearing, but that “ICE does not make decisions concerning a person's custody status in a neutral and impartial manner.” (Doc. 7, pp. 7-8). I will address each in turn.
1. Mr. Davis is Not Currently Detained Under Section 1231
As of the date of this Report and Recommendation, Mr. Davis is no longer detained under Section 1231. Because the Third Circuit placed a stay on his removal, Petitioner is currently detained pursuant to the provisions of Section 1226. Leslie v. AG of the United States, 678 F.3d 265, 269 (3d Cir. 2012). Therefore, his argument about his Section 1231 detention fails.
2. Mr. Davis' Substantive Due Process Claim
Mr. Davis challenges his detention, arguing it runs afoul of the Fifth Amendment's due process clause. While the Court is very sympathetic because of Petitioner's prolonged civil detention, he just received the only remedy available to him in this Court: a bond hearing. As such, I will discuss in this section why this Court will not order his release from detention, and why his request for a bond hearing is moot.
a. Mr. Davis' Request for Release
Petitioner, as Respondent contends, is currently detained subject to the preremoval statute: Section 1226(c). (Doc. 18, p. 2) (citing Leslie, 678 F.3d at 269). Courts are unable to release immigration detainees held under Section 1226(c). See, e.g., Jacques v. Dep't of Homeland Sec., 2021 WL 4494623, at *3-4 (M.D. Pa. Sept. 29, 2021) (“[a]t the outset, the Court notes that it cannot grant Saint Jacques' requested relief of immediate release from custody[,] [r]ather, the Court is limited to resolving whether . . . [he] is entitled to an individualized bond hearing ....”). Therefore, the Court cannot grant his request to be released from custody.
b. Mr. Davis' Request for a Bond Hearing
Mr. Davis also requests a bond hearing. See (Doc. 7, p. 9) (requesting the Court to grant any other relief the Court deems just and proper). However, Mr. Davis had a bond hearing on April 6, 2022. (Doc. 17); (Doc. 18, p. 2). Therefore, this aspect of his petition should be denied as moot. See, e.g., Sanchez v. Sabol, 2016 WL 7426129, * 8-9 (M.D. Pa. Dec. 23, 2016) (denying as moot petitioner's request for a bond hearing when provided such a hearing). ECF. No. 39, at *11-12, Davis v. Attorney General of the United States, No. 21-cv-1260 (M.D. Pa.), report and recommendation adopted by ECF. No. 42. And while Petitioner is unquestionably disappointed with the Immigration Judge's decision to deny him bond, the proper remedy at this stage would be to ask for a bond redetermination hearing. See 8 U.S.C. 1226(e) (“The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien, or the grant, revocation, or denial of bond or parole.”); 8 C.F.R. § 1003.19(e).
3. Mr. Davis' Procedural Due Process Claim
Petitioner, in a very cursory fashion, claims that “ICE does not make decisions concerning a person's custody status in a neutral and impartial manner.” (Doc. 7, p. 8). He continues, stating “[t]he failure of respondents to provide a neutral decisionmaker to review the continued custody of plaintiff violates right to procedural due process.” (Id. at ¶ 68). Petitioner's claim fails for two reasons. First, Mr. Davis has not pleaded any facts that ICE, as applied to him, made a biased decision in his bond hearing. Second, Petitioner appears to use his procedural due process claim re-state his arguments for a bond hearing. However, he has already received a bond hearing. So, in sum, Mr. Davis' procedural attack fails.
V. RECOMMENDATION
Mr. Davis has received the only relief that is available to him: a bond hearing. Accordingly, IT IS RECOMMENDED that:
(1) Mr. Davis' Petition (Doc. 7) be DENIED as to his request to be released from detention.
(2) Mr. Davis' Petition (Doc. 7) be DENIED as MOOT as to his request for a bond hearing.
(3) The Clerk of Court be DIRECTED to CLOSE this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
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.