Opinion
Civil Action 3:21-CV-01129
01-03-2023
JOHN SMITH, Petitioner, v. ADAM OGLE, Warden of York County Prison, et al., Respondents.
RAMBO .J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE
On June 24, 2021, Petitioner John Smith (“Smith”), an immigration detainee in the custody of the United States Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”) formerly at the York County Prison in York, Pennsylvania, initiated this habeas action by filing a petition pursuant to 28 U.S.C. § 2241. (Doc. 1). Smith requests the Court conduct a constitutionally adequate bond hearing. (Doc. 1, at 17). On August 16, 2021, the Court entered an Order directing Respondents Adam Ogle, Simona Flores, Tae D. Johnson, Alejandro Mayorkas, and Merrick B. Garland (collectively, “Respondents”) to respond to the petition. (Doc. 2). On September 3, 2021, Respondents filed a response to the petition arguing that Smith is not entitled to any habeas relief. (Doc. 4). Thereafter, Smith filed a reply to Respondents' response. (Doc. 6). For the following reasons, it is respectfully recommended that Smith's petition (Doc. 1) be GRANTED.
Due to the closure of the York County Prison to immigration detainees, Smith was transferred to the Plymouth County Correctional Facility in Plymouth, Massachusetts. (Doc. 4, at 1 n.1). As of the date of this report, Smith is currently detained in the custody of ICE at the Buffalo Federal Detention Facility in Buffalo, New York. See https://locator.ice.gov/odls/#/index (last accessed Jan. 3, 2023).
I. Background and Procedural History
Smith is a native and citizen of Guatemala. (Doc. 1, ¶ 9; Doc. 1-1, at 3). Smith entered the United States on an unknown date and at an unknown time or location without being inspected, admitted, or paroled. (Doc. 4-1, at 2). On July 11, 2006, an immigration judge in Baltimore, Maryland terminated previously initiated removal proceedings and granted Smith's application for adjustment of status, effectively admitting him as a Lawful Permanent Resident. (Doc. 1, ¶ 10; Doc. 4-1, at 3).
On February 16, 2018, Smith was convicted in the United States District Court for the Eastern District of Pennsylvania for violating 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B), Conspiracy to Distribute 100 Grams or more of Heroin. (Doc. 1-1, at 3). Smith was sentenced to 21 months imprisonment. (Doc. 1, ¶ 11).
Smith has been in ICE custody since April 20, 2019. (Doc. 1-1, at 2). That day, Smith was served with a Notice to Appear charging him as being removable pursuant to INA § 237(a)(2)(A)(iii), as an alien convicted of an aggravated felony, and INA § 237(a)(2)(B)(i), as an alien convicted of a violation of any law or regulation of a state, the United States, or a foreign country relating to a controlled substance. (Doc. 1-1, at 3-5). After a continuance to obtain counsel, Smith appeared before the immigration court on May 16, 2019, where he denied the charges of removability and the case was continued until June 4, 2019, to allow the parties to exchange evidence. (Doc. 1-4, at 1-8). On June 4, 2019, the immigration judge sustained all charges of removability, designated the country of removal as Guatemala, and allowed Smith until June 26, 2019, to apply for relief from removal. (Doc. 1-4, at 9-19). On June 26, 2019, Smith submitted his application for relief from removal and the immigration judge set a hearing on the merits of that application for August 29, 2019. (Doc. 1-4, at 20-26). The immigration judge held an extensive hearing on the merits of Smith's application for relief from removal on August 29, 2019, and October 30, 2019. (Doc. 1-4, at 21-66; Doc. 1-5; Doc. 1-6).
On December 4, 2019, the immigration judge denied all of Smith's applications for relief from removal and ordered him removed to Guatemala. (Doc. 1-7). Smith appealed this decision to the Board of Immigration Appeals (“BIA”), who, on April 10, 2020, dismissed the appeal for Smith's failure to file a brief outlining the factual and legal reasonings for the contention that the immigration judge erred in the decision. (Doc. 1, ¶ 20; Doc. 1-8). On April 16, 2020, Smith moved to reopen his case before the BIA due to the reasoning underlying his failure to file a brief together with a motion to accept a late-filed brief. (Doc. 1-9; Doc. 1-10). On April 17, 2020, the BIA granted Smith a stay of removal pending adjudication of his motion to reopen. (Doc. 4-1, at 7). On May 11, 2020, Smith filed a petition for review with the Third Circuit. (Doc. 1-8); see Smith v. Att'y, No. 20-CV-1994 (3d Cir. May 11, 2020), ECF No. 1. On August 17, 2020, the Third Circuit granted Smith's motion to hold the briefing schedule in abeyance pending a decision by the BIA on Smith's motion to reopen. Smith, No. 20-CV-1994 (3d Cir. Aug. 17, 2020), ECF No. 13. On August 27, 2021, DHS filed a motion to expedite a decision on Smith's motion to reopen. (Doc. 4-1, at 8-9).
On October 22, 2020, six months after the BIA's denial of his appeal, the immigration court denied Smith's request for custody redetermination after conducting an independent review before a judge in accordance with Guerrero-Sanchez v. Warden of York County Prison, 905 F.3d 208 (3d Cir. 2018). (Doc. 4-1, at 11). Considering the totality of the circumstances, the immigration judge found that DHS had met its burden by clear and convincing evidence that Smith is a danger to the community. (Doc. 4-1, at 11-14). Smith appealed this decision to the BIA and on April 27, 2021, the BIA affirmed the immigration judge's denial. (Doc. 4-1, at 16-17).
Prior to the BIA's decision on Smith's October 22, 2020, bond denial, Smith had a bond redetermination review pursuant to Fraihat v. U.S. Immigr. & Customs Enf't., 445 F.Supp.3d 709 (C.D. Cal. 2020), claiming that he is a person identified “as having one of more of the Risk Factors identified . . . as placing [Smith] ‘at heightened risk of severe illness and death upon contracting the COVID-19 virus.'” (Doc. 4-1, at 18-20). The review determined that despite Smith's existing medical conditions of hypertension, lipoprotein, and diabetes, he should remain detained as a threat to public safety. (Doc. 4-1, at 20). On January 27, 2021, pursuant to a request from Smith for an immigration judge review of this denial, the immigration judge denied Smith's appeal, finding that the court lacked jurisdiction to conduct a bond hearing because “[Smith]'s removal order is administratively final. As such, he is not eligible for a bond under INA 236(a). Even if the respondent's removal order was not administratively final, this court lacks authorization to conduct a bond hearing under INA 236(c) as [Smith]'s criminal conviction subjects him to mandatory custody.” (Doc. 4-1, at 22). In addition, the immigration judge determined that although Smith was entitled to a postremoval bond review pursuant to Guerrero-Sanchez, he had already received that independent review on October 22, 2022, been denied, and, at that time, had an appeal of that decision pending. (Doc. 4-1, at 22). On February 8, 2021, Smith appealed this decision to the BIA. (Doc. 4-1, at 25). On July 12, 2021, the BIA denied Smith's request to extend the briefing schedule where the due date of the initial brief was April 21, 2021, and the request for extension was not received until July 9, 2021. (Doc. 4-1, at 26).
On July 20, 2021, the immigration judge denied Smith's latest request for custody redetermination, explaining:
Previously on November 18, 2020, the Court found that DHS had met its burden of demonstrating by clear and convincing evidence that [Smith] constitutes a danger and a significant flight risk. [Smith] has submitted a request for a new bond hearing but he has failed to demonstrate a material change in circumstances under 8 CFR 1003.19(e). [Smith] merely cites to the fact that the York Immigration Court is closing but that does not alter[ ] the Court[']s findings regarding danger and flight risk. If [Smith] can no longer be detained at the York County Prison, ICE will transfer him to another facility.(Doc. 4-1, at 32).
In Smith's instant petition before the Court, he raises three claims for relief: (1) violation of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226, for “unreasonably prolonged mandatory detention;” (2) violation of Fifth Amendment procedural due process for “detention without a constitutionally adequate bond hearing at which the government bears the burden of justifying the detention;” and (3) violation of Fifth Amendment substantive due process and the INA for “unnecessary detention.” (Doc. 1, at 917). As relief, Smith requests that the Court conduct a bond hearing, an award of fees and costs consistent with the Equal Access to Justice Act, and any further relief the Court deems just and proper. (Doc. 1, at 17-18).
II. Standard of Law
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.” See 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). Generally, a petitioner may seek § 2241 relief only in the district in which he is in custody. United States v. Figueroa, 349 Fed.Appx. 727, 730 (3d Cir. 2009). However, the government's post-filing transfer of a § 2241 petitioner out of the district court's territorial jurisdiction does not strip the court of jurisdiction over the petition. See Ex parte Catanzaro, 138 F.2d 100 (3d Cir. 1943) cert. denied 321 U.S. 793 (1944) (“where one has become subject to the jurisdiction of a court, the jurisdiction continues in all proceedings arising out of the litigation such as appeals and writs of error.”); see also, e.g., McGee v. Martinez, 490 Fed.Appx. 505, 506 (3d Cir. 2012) (noting that the post-filing transfer of a § 2241 petitioner from a facility in Pennsylvania to one in Miami did not divest the district court of jurisdiction over the habeas petition, nor did it divest the Court of jurisdiction over the appeal); Brown v. Yates, 154 Fed.Appx. 319, 320 (3d Cir. 2005) (holding that Third Circuit retained jurisdiction over petitioner's appeal of the district court's dismissal of his habeas petition despite his post-filing transfer from a facility in Pennsylvania to one in Kentucky).
Here, when Smith filed the § 2241 petition in June 24, 2021, he was detained in Pennsylvania, at the York County Prison. (Doc. 1). He named Adam Ogle, in his official capacity as Acting Warden of the York County Prison, as a respondent, and he filed the petition in his district of confinement, the Middle District of Pennsylvania. (Doc. 1). There is no dispute that the Court acquired jurisdiction over Smith's petition at the time of filing. See Figueroa, 349 Fed.Appx. at 730.
Due to the closure of the York County Prison to immigration detainees, the government transferred Smith to the Plymouth County Correctional Facility in Plymouth, Massachusetts. (Doc. 4, at 1 n.1). As of the date of this report, Smith is currently detained in the custody of ICE at the Buffalo Federal Detention Facility in Buffalo, New York. See https://locator.ice.gov/odls/#/index (last accessed Jan. 3, 2023). Because Smith filed the instant petition while he was detained within the jurisdiction of this Court, is still currently detained by ICE, and asserts that his continued detention violates due process, this Court has jurisdiction over his Section 2241 petition. See Anariba v. Dir. Hudson Cty. Corr. Ctr., 17 F.4th 434, 446 (3d Cir. 2021) (district court retained jurisdiction over § 2241 petition even after government transferred petitioner out of district because court already had acquired jurisdiction over petitioner's properly filed habeas petition that named his then-immediate custodian, and noting that “passing about of the body of a prisoner from one custodian to another after a writ of habeas corpus has been applied” does not defeat the court's jurisdiction to consider the merits of the habeas petition) (quoting Catanzaro, 138 F.2d at 101)).
III. Discussion
Smith's request for habeas corpus relief is based on a line of cases holding that petitioners detained under 8 U.S.C. § 1226(c) are entitled to a bond hearing after their detention becomes unreasonably prolonged. (Doc. 1, ¶¶ 33-38) (citing Diop v. ICE, 656 F.3d 221 (3d Cir. 2011) and Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469 (3d Cir. 2015))).
Section 1126 ““is the pre-removal provision of the INA and ‘generally governs the process of arresting and detaining . . . aliens pending their removal.'” Guerrero-Sanchez, 905 F.3d at 213-14 (quoting Jennings v. Rodriguez, 138 S.Ct. 830, 837 (2018)). That provision “distinguishes between two different categories of aliens”-those detained under § 1226(a) and those detained under § 1226(c). Jennings, 138 S.Ct. at 837. “[A]n alien detained under § 1226(a) must be afforded a bond hearing before an immigration judge to determine if the alien's detention is necessary while he or she awaits immigration proceedings.” Guerrero-Sanchez, 905 F.3d at 214. But § 1226(c) provides for mandatory detention of, among others, aliens who were convicted of certain crimes. 8 U.S.C. § 1226(c). Section 1226(c) “mandates detention of any alien falling within its scope and that detention 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. Here, the parties agree that Smith is being held pursuant to § 1226(c).
Although 8 U.S.C. § 1226(c) provides for mandatory detention and the Supreme Court has determined that “[d]etention during removal proceedings is a constitutionally permissible part of” the removal process, prolonged detention raises due process concerns. Demore v. Kim, 538 U.S. 510, 531 (2003). The Third Circuit addressed the prolonged detention of aliens under § 1226(c) in Diop v. ICE, 656 F.3d 221 (3d Cir. 2011), and Chavez-Alvarez v. Warden York Cty.Prison, 783 F.3d 469 (3d Cir. 2015).
In Diop, applying the canon of constitutional avoidance, the Third Circuit held that § 1226(c) “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.” 656 F.3d at 231. The court reasoned that “[a]t a certain point, continued detention becomes unreasonable and the Executive Branch's implementation of § 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community.” Diop, 656 F.3d at 232. Thus, the court concluded that when detention becomes unreasonable, which determination is based on a “fact-dependent inquiry,” “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, 656 F.3d at 233.
The Third Circuit in Diop stated that “the constitutional case for continued detention without inquiry into its necessity becomes more and more suspect as detention continues past” the five-month threshold identified in Demore as the time it generally takes to decide a case in which the alien chooses to appeal. Diop, 656 F.3d at 234. And the court concluded that “there can be no question that Diop's detention for nearly three years without further inquiry into whether it was necessary to ensure his appearance at the removal proceedings or to prevent a risk of danger to the community, was unreasonable and, therefore, a violation of the Due Process Clause.” Diop, 656 F.3d at 234-35.
In Chavez-Alvarez, the Third Circuit granted the habeas petition of an alien who claimed that the Government was violating his right to due process by detaining him under 8 U.S.C. § 1226(c) for a prolonged period without a bond hearing. 783 F.3d at 478. In that case, Chavez-Alvarez had been detained for over a year and a half at the time of the district court's decision. Chavez-Alvarez, 783 F.3d at 477 n.11. Noting that whether detention has become unreasonable is “highly fact-specific,” the court recognized that at a certain point continued detention without a bond hearing violates due process:
[D]ue process requires us to recognize that, at a certain point-which may differ case by case-the burden to an alien's liberty outweighs a mere presumption that the alien will flee and/or is dangerous. At this tipping point, the Government can no longer defend the detention against claims that it is arbitrary or capricious by presuming flight and dangerousness: more is needed to justify the detention as necessary to achieve the goals of the statute. As we said in Diop, section 1226(c) “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.” In Diop's case, we weighed the goals of the statute against the personal costs to his liberty resulting from his detention of roughly two years, eleven months, and concluded that Diop's detention was unconstitutional.Chavez-Alvarez, 783 F.3d at 474-75 (quoting Diop, 656 F.3d at 231).
And the court concluded that “beginning sometime after the six-month timeframe considered by Demore, and certainly by the time Chavez-Alvarez had been detained for one year, the burdens to Chavez-Alvarez's liberties outweighed any justification for using presumptions to detain him without bond to further the goals of the statute.” Chavez-Alvarez, 783 F.3d at 478. The court concluded that Chavez-Alvarez was entitled to a bond hearing. Chavez-Alvarez, 783 F.3d at 478.
To the extent the holdings in Diop and Chavez-Alvarez were grounded in the canon of constitutional avoidance, those holdings did not survive Jennings. Santos v. Warden Pike Cty. Corr. Facility, 965 F.3d 203, 209 (3d Cir. 2020). But Jennings did not call into question the Third Circuit's holdings that detention under § 1226(c) without a bond hearing violates due process if unreasonably prolonged. Borbot v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274, 278 (3d Cir. 2018). Rather, Jennings left Diop and Chavez-Alvarez's “framework for assessing as-applied constitutional challenges intact.” Santos, 965 F.3d at 210. Under that framework, aliens detained under § 1226(c) are entitled to a bond hearing once their detention becomes unreasonable. Santos, 965 F.3d at 210.
Reaffirming that “[r]easonableness is a ‘highly fact-specific' inquiry[,]” in Santos, the Third Circuit distilled from Diop and Chavez-Alvarez, “a nonexhaustive list of four factors to consider in assessing whether an alien's detention has grown unreasonable.” Santos, 965 F.3d at 210 (quoting Chavez-Alvarez, 783 F.3d at 474). Those four factors are: (1) the duration of the alien's detention; (2) whether the alien's detention is likely to continue; (3) the reasons for any delay; and (4) whether the conditions under which the alien is confined are “ ‘meaningfully different' from criminal punishment.” Santos, 965 F.3d at 211 (quoting Chavez-Alvarez, 783 F.3d at 478). In Santos, applying those factors, the Third Circuit concluded that Santos's detention, which had lasted for more than two-and-a-half years, had become unreasonable, and thus, he was entitled to a bond hearing. Santos, 965 F.3d at 206. Applying the factors set forth in Santos, the undersigned concludes that Smith's detention has become unreasonable.
A. The First Santos Factor
With respect to the first, and most important, consideration-duration of detention- Smith has been detained in ICE custody since April 20, 2019, for over forty-three (43) months. The Third Circuit has declined, however, “to adopt a presumption of reasonableness or unreasonableness of any duration.” Santos, 965 F.3d at 211. Given the lack of such a presumption, and given that the inquiry is fact-specific, courts have reached different conclusions as to the length of detention that qualifies as reasonable or unreasonable. Recent decisions from this Court as well as other courts within the Third Circuit suggest that the length of Smith's detention weighs in favor of granting his § 2241 petition. See Malede v. Lowe, No. 1:22-CV-01031, 2022 WL 3084304, at *5 (M.D. Pa. Aug. 3, 2022) (concluding that petitioner's “near 18-month detention has reached the tipping point when the length of the detention begins to weigh in favor of a bond hearing”); see also Davydov v. Doll, No. 1:19-CV-2110, 2020 WL 969618, at *4 (M.D. Pa. Feb. 28, 2020) (concluding that an alien who had been detained for over fourteen (14) months was entitled to a bond hearing); Kleinauskaite v. Doll, No. 4:17-CV-2176, 2018 WL 6112482, at *12 (M.D. Pa. Oct. 9, 2018) (concluding that an alien who had been detained for more than sixteen (16) months was entitled to a bond hearing), report and recommendation adopted, 2018 WL 6079544 (M.D. Pa. Nov. 21, 2018); but see Santos v. Lowe, No. 1:18-CV-1553, 2019 WL 1468313, at *3-4 (M.D. Pa. Apr. 3, 2019) (concluding that an alien who had been detained for fifteen (15) months was not entitled to a bond hearing); Crooks v. Lowe, No. 1:18-CV-47, 2018 WL 6649945, at *2 (M.D. Pa. Dec. 19, 2018) (denying a bond hearing to a petitioner who had been detained for eighteen (18) months because “his case ha[d] proceeded through the removal process at a reasonable pace and there [was] no indication on the record that the government ha[d] improperly or unreasonably delayed the proceedings”); Rosales v. Lowe, No. 1:18-CV-1302, 2018 WL 6650304, at *3 (M.D. Pa. Dec. 19, 2018) (concluding that a petitioner who had been detained for less than fifteen (15) months was not entitled to a bond hearing); Fernandez v. Lowe, No. 3:17-CV-2301, 2018 WL 3584697, at *5 (M.D. Pa. July 26, 2018) (concluding that fifteen (15)-month detention was not unconstitutional because the alien's proceedings had “proceeded at a reasonable pace”).
Here, Smith's 43-month detention has reached beyond the point when the length of the detention begins to weigh in favor of a bond hearing. Thus, the undersigned finds that the first Santos factor weighs in favor of a finding of unreasonableness.
B. The Second Santos Factor
As to whether the detention is likely to continue, all that the Court can conclude with certainty is that “additional delay of an undefined duration will continue to accrue pending a ruling by the [c]ourt of [A]ppeals, and any further administrative proceedings that may be necessary following that appellate court decision.” SeeBah v. Doll, No. 3:18-cV-1409, 2018 WL 6733959, *8 (M.D Pa. oct. 16, 2018). As noted supra, Smith's appeal is still pending before the Third circuit where the court recently granted Smith's motion to reopen case and to file brief and appendix out of time, reinstating the stay of removal granted by the Third circuit on June 1, 2022. Smith, No. 20-cV-1994 (3d cir. Nov. 18, 2022), EcF No. 33. A review of the Third circuit's docket indicates that the government's response answering brief in that case is due on January 18, 2023. Smith, No. 20-cV-1994 (3d cir. Nov. 29, 2022), EcF No. 39. At this time the undersigned simply cannot determine how long Smith's petition for review and motion to stay removal will be pending before the Third circuit. However, because the government's responsive brief is not due until January 18, 2023, Smith will remain detained for, at a minimum, an additional month. This factor supports a finding of unreasonableness. See Santos, 965 F.3d at 212.
C. The Third Santos Factor
The third Santos factor is the reasons for any delay. Santos, 965 F.3d at 212. While the record reflects that some delay occurred when Smith requested an extension of the briefing schedule from the BIA, the undersigned cannot find that Smith has acted in bad faith during removal proceedings. (Doc. 4-1, at 26). Rather, Smith is exercising his right to pursue a defense to his removal by seeking judicial review of the denial of his request for cancellation of removal. See Bah, 2018 WL 6733959, at *8. Smith notes that the COVID-19 pandemic resulted in multiple continuances, but such delay was unavoidable and cannot be attributed to either party. (Doc. 1-9, at 7-8). Thus, “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.” See Vega v. Doll, No. 3:17-CV-1440, 2018 WL 3765431, at *11 (M.D. Pa. July 11, 2018), report and recommendation adopted, 2018 WL 3756755 (M.D. Pa. Aug. 8, 2018). This factor-the reasons for the delay-weighs slightly in favor of a finding of unreasonableness.
D. The Fourth Santos Factor
The final factor to be considered is whether the conditions under which the alien is confined “‘meaningfully different' from criminal punishment.” Santos, 965 F.3d at 211 (quoting Chavez-Alvarez, 783 F.3d at 478). In Santos, the Third circuit determined that “[d]espite its civil label,” Santos's detention at the Pike county correctional Facility was “indistinguishable from criminal punishment.” 965 F.3d at 213. And noting that Santos was detained in a prison with convicted criminals and was confined to his cell for 23 hours a day, it concluded that “[t]hose conditions strongly favor a finding of unreasonableness.” Santos, 965 F.3d at 213 .
Here, Smith is detained in the Plymouth County Correctional Facility in Plymouth, Massachusetts. (Doc. 4, at 1 n.1). Smith asserts that he:
seeks removal from detention because of the life threatening conditions now existing in York County Prison where he is detained and exposed to a rampant Covid-19 infection even though he is at a higher risk for being infected and experiencing serious possibly fatal consequences if infected as [Smith] is a diabetic with a history of coronary heart disease.(Doc. 1, at 2).
In response, Respondents provide no evidence, details, or elucidation on Smith's current conditions of confinement other than to state that he is an immigration detainee in the custody of ICE. (Doc. 4, at 1). While that may be true, Respondents have failed to even mention this factor and do not explain how such detention-center conditions differ from those found in a prison setting. Given that the final Santos factor-the conditions of confinement-“strongly favor[ed] a finding of unreasonableness” in Santos, where the petitioner was confined in a facility with convicted criminals and confined to his cell for 23 hours a day, Santos, 965 F.3d at 213, it follows that Smith's conditions of confinement also strongly favor a finding of unreasonableness, particularly in light of his medical concerns.
Given the length of time Smith has already been detained, that he faces possibly lengthy continued confinement while he pursues his appeal to the Third Circuit and that the cause for delay is not rightfully attributed to him, and given the conditions under which he is detained, particularly his medical concerns, the undersigned concludes that due process demands that Smith be given a bond hearing before an immigration judge under the standards set forth in Santos. Although Smith requests that the Court conduct the bond hearing, an immigration judge should conduct the bond hearing. See Santos, 965 F.3d at 214 (remanding the case to the district court for the district court to order a bond hearing within 10 days); Malede, 2022 WL 3084304, at *7 (ordering individualized bond hearing before an immigration judge), appeal filed, Malede v. Warden Pike County Correctional Facility, 22-2842 (3d Cir. Oct. 3, 2022).
IV. Recommendation
Based on the foregoing reasons, it is respectfully recommended that Smith's 28 U.S.C. § 2241 petition for a writ of habeas corpus (Doc. 1) be GRANTED and that the Court order an immigration judge conduct a bond hearing in accordance with Santos. In addition, it is recommended that the Clerk of Court be directed to Close this case
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 3, 2023. Any party may obtain a review of the Report and Recommendation pursuant to 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.