Opinion
1:21-CV-00172
03-17-2021
ELIJAH PAUL EMA, Petitioner v. ROBERT WILKINSON, et al., Respondents
REPORT AND RECOMMENDATION
Susan E. Schwab, United States Magistrate Judge.
I. Introduction.
Petitioner Elijah Paul Ema, an alien in immigration custody, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his continued detention without a bond hearing. He requests that the court order his release on his own recognizance or under reasonable conditions. For the following reasons, we recommend that the court deny Ema's petition for a writ of habeas corpus.
II. Background and Procedural History.
Ema, who is a native and citizen of Liberia, was admitted to the United States in 2008 as an asylee. See doc. 6 at ¶ 20; doc. 7-1 at 8. On August 31, 2020, the United States Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) charged Ema with being subject to removal from the United States pursuant to Section 237(a)(2)(A)(iii)-8 U.S.C. § 1227(a)(2)(A)(iii)-of the Immigration and Nationality Act (“INA”) because he was convicted of an aggravated felony. Doc. 7-1 at 8-11. On September 23, 2020, ICE added an additional charge of removability under Section 237(a)(2)(A)(iii). Id. at 13. Ema has been in ICE custody since August 31, 2020. Doc. 6 at ¶ 29. He is detained at the York County Prison. Id.
An immigration judge sustained the charges of removability against Ema. Id. at ¶ 30. Ema is currently seeking various forms of relief from removal. Id. at ¶ 31. And on November 24, 2020, he submitted an application to the United States Citizenship and Immigration Services (“USCIS”) for adjustment of status under the Liberian Refugee Immigrant Fairness Act (“LRIF”). Id. at ¶ 32. His LRIF application is pending with USCIS. Id.
LRIF was enacted as part of the National Defense Authorization Act for Fiscal Year 2020 (“NDAA 2020”), Pub. L. No. 116-92, 133 Stat. 1198 (Dec. 20, 2019). LRIF is § 7611 of NDAA 2020. Under § 7611(b), (c), the Secretary of Homeland Security shall adjust the status of aliens who are nationals of Liberia (and certain family members of such nationals) to that of an alien lawfully admitted for permanent residence provided certain requirements are met. And under § 7611(d)(2)(ii), the Secretary of Homeland Security may not order an alien removed from the United States if the alien has a pending application for adjustment of status under the LRIF.
On January 25, 2021, an immigration judge held a hearing on Ema's applications for relief from removal. Id. at ¶ 33 But the immigration judge has not ruled on those applications yet. Id. Rather, he ordered the parties to submit briefs, and according to the respondents, those briefs were filed in February. Doc. 7 at 3.
In the meantime, on January 29, 2021, Ema began this action by filing a petition for a writ of habeas corpus. See doc. 1. Ema later filed an amended petition correcting a minor misstatement concerning the filing receipt for his LRIF application. Compare doc. 1 at ¶ 32 and doc. 6 at ¶ 32. The respondents filed a response to the amended petition. See doc. 7. Ema has not filed a reply.
III. Discussion.
A. The only proper respondent in this case is Warden Clair Doll.
The petition names as respondents: Robert Wilkinson, the then acting Attorney General; David Pekoske, the then acting Secretary of the Department of Homeland Security; ICE; Tae Johnson, the acting director of ICE; Simona Flores-Lund, an ICE Field Office Director; and Clair Doll, the Warden of the York County Prison. Pursuant to 28 U.S.C. § 2243, the writ of habeas corpus, or order to show cause, shall be directed to the petitioner's custodian. The warden of the prison where the petitioner is held is considered the custodian for purposes of a habeas action. Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004). Because Ema is incarcerated at the York County Prison, Warden Doll is the proper respondent.
Wilkinson, Pekoske, ICE, Johnson, and Flores-Lund are not Ema's custodians for purposes of a petition for a writ of habeas corpus. Thus, we recommend that they be dismissed as respondents.
B. Ema is not entitled to a bond hearing before an Immigration Judge.
Ema contends that his mandatory detention under 8 U.S.C. § 1226(c) without a bond hearing is indefinite and unreasonable and, thus, a violation of due process.For the reasons set forth below, we disagree. 8 U.S.C. § 1226 “is the pre-removal provision of the INA and ‘generally governs the process of arresting and detaining . . . aliens pending their removal.'” Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 213-14 (3d Cir. 2018) (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 Ema is being held pursuant to § 1226(c).
Although Ema requests release from custody, if there has been a due process violation, the proper remedy would be for the court to order a bond hearing before an immigration judge. See German Santos v. Warden Pike Cty. Corr. Facility, 965 F.3d 203, 214 (3d Cir. 2020) (remanding the case to the district court for the district court to order a bond hearing within 10 days); Clarke v. Doll, 481 F.Supp.3d 394, 398 (M.D. Pa. 2020) (ordering individualized bond hearing before an immigration judge within 30 days).
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, Demore v. Kim, 538 U.S. 510, 531 (2003), prolonged detention raises due-process concerns. The Third Circuit addressed the prolonged detention of aliens under § 1226(c) in Diop v. ICE/Homeland Sec., 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 cannon 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.” Id. 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.” Id. 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. Id. 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.” Id. at 234-35.
In Demore, the Supreme Court rejected a challenge to the constitutionality of 8 U.S.C. § 1226(c) and held that “Congress . . . may require that persons such as respondent be detained for the brief period necessary for their removal proceedings.” Demore, 538 U.S. at 513. The petitioner in Demore had been detained for six months. Id. at 530. Observing that that was “somewhat longer than the average, ” the Supreme Court noted that “the detention at stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.” Id. at 530-31. In connection with a later case, however, the Government acknowledged that the statistics it provided in Demore were not correct. See Jennings, 138 S.Ct. at 869 (Breyer, J., dissenting) (“The Government now tells us that the statistics it gave to the Court in Demore were wrong.”).
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 has been detained for over a year and a half at the time of the district court's decision. Id. 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.” Id. at 231. 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. Id.Id. at 474-75. 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.” Id. at 478. The court determined that Chavez-Alvarez was entitled to a bond hearing. Id.
To the extent the holdings in Diop and Chavez-Alvarez were grounded in the cannon of constitutional avoidance, those holdings did not survive Jennings. German 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.” German 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. Id.
Reaffirming that “[Reasonableness is a ‘highly fact-specific' inquiry[, ]” in German 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.” Id. (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.” Id. at 211 (quoting Chavez-Alvarez, 783 F.3d at 478). In German Santos, applying those factors, the Third Circuit concluded that German 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. Id. at 206.
Applying the factors set forth in German Santos, we conclude that Ema's detention has not become unreasonable.
1. The First German Santos Facto r.
The first German Santos factor is the duration of the alien's detention. The Third Circuit has identified this factor as the “most important factor.” Id. at 211. Here, Ema has been detained since August 31, 2020, a period of approximately six and a half months to date. He has been detained less time than the detention at issue in Diop (nearly three years), Chavez-Alvarez (more than a year and a half at the time of the district court's decision), and German Santos (more than two-and-a-half years). But it is more time than the detention upheld in Demore (six months). And it falls within the six-month to one-year timeframe that the court in Chavez-Alvarez identified as the period during which “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. It is also longer than the five months identified in Diop after which continued detention without a bond hearing “becomes more and more suspect.” Diop, 656 F.3d at 234.
The Third Circuit has declined, however, “to adopt a presumption of reasonableness or unreasonableness of any duration.” German 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 unreasonable. See, e.g., Kleinauskaite v. Doll, No. 4:17-CV-02176, 2019 WL 3302236, at *6 (M.D. Pa. July 23, 2019) (finding that “Ms. Kleinauskaite's detention escaped the realm of reason” after twelve months); Bah v. Doll, No. CV 3:18-1409, 2018 WL 5829668, at *1 (M.D. Pa. Nov. 7, 2018) (granting habeas petition where the petitioner had been “in custody in excess of 14 months without an individualized bond hearing”); Rosales v. Lowe, No. 1:18-CV-1302, 2018 WL 6650304, at *3 (M.D. Pa. Dec. 19, 2018) (denying habeas petition where petitioner had been subject to mandatory detention for less than 15 months); Crooks v. Lowe, No. 1:18-CV-0047, 2018 WL 6649945, at *2 (M.D. Pa. Dec. 19, 2018) (denying habeas petition where the petition was “subject to mandatory detention for approximately eighteen months” during which “his case has proceeded through the removal process at a reasonable pace and there is no indication in the record that the government has improperly or unreasonably delayed the proceedings”); Fernandez v. Lowe, No. 3:17-CV-2301, 2018 WL 3584697, at *5 (M.D. Pa. July 26, 2018) (holding that 15-month detention not unconstitutional where the case had “proceeded at a reasonable pace”). After Jennings, however, “district courts in this circuit have largely found that detention for just over a year pursuant to § 1226(c) is insufficient to amount to an arbitrary deprivation of liberty and will thus not suffice to prove that the statute has been unconstitutionally applied.” Rodriquez-Castillo v. Lowe, No. 1:19-CV-1000, 2020 WL 820154, at *3 (M.D. Pa. Feb. 19, 2020) (citing cases). And post German Santos, courts in this district have determined that detention for longer than the six and half months at issue in this case does not weigh in favor of a finding of unreasonableness. See, e.g., Gabriel v. Barr, No. 1:20-CV-1054, 2021 WL 268996, at *3 (M.D. Pa. Jan. 27, 2021) (concluding post German Santos that 18 months of detention weighed against relief where the alien's custody had been reviewed within the last ten to eleven months); Acevedo v. Decker, No. 1:20-CV-01679, 2021 WL 120473, at *2, *4 (M.D. Pa. Jan. 13, 2021) (concluding post German Santos that detention for nine months was not suspect); Buleishvili v. Hoover, 1:20-cv-01694 (M.D. Pa.) (Dec. 21, 2020) (report and recommendation of the undersigned) (recommending that based on all the German Santos factors that the petition for a writ of habeas corpus be granted but concluding that the first factor-the length of detention (10 months in that case)-weighed slightly against a finding that the detention had become unreasonable), report and recommendation adopted, 2021 WL 674226 (M.D. Pa. Feb. 22, 2021); Mariazza-Chavez v. Doll, No. 4:20-CV-1651, 2020 WL 7755438, at *4 (M.D. Pa. Dec. 1, 2020) (concluding post German Santos that the petitioner's four month detention was not unreasonable), report and recommendation adopted, 2020 WL 7711353, at *1 (M.D. Pa. Dec. 29, 2020); but see Clarke, 481 F.Supp.3d at 397 (concluding post German Santos that 20 months detention was unreasonable).
Here, Ema's six-and-a-half-month detention has not yet reached the tipping point when the length of the detention would weigh in favor of a bond hearing. Thus, the first German Santos factor weighs against a finding of unreasonableness.
2. The Second German Santos Factor.
The second German Santos factor is whether the alien's detention is likely to continue. Ema asserts that there is no time limit on how long the Immigration Judge has to decide his requests for relief from removal. See doc. 6 at ¶ 34. Moreover, he points out that he cannot be ordered removed until the USCIS adjudicates his LRIF application. Id. at ¶ 45. And who knows how long that may take given that regulations implementing the LRIF have yet to be implemented and there is no time limit for adjudication of an LRIF application. Id. The respondents assert that USCIS has advised ICE and their counsel that because Ema is detained, it will expedite the adjudication of his LRIF application. Id. But still there is no way to know how long it will take for Ema's LRIF and other applications for relief from removal to be decided. And administrative and judicial appeals may add to the time that Ema will be detained. Thus, the second German Santos factor weighs in favor of a finding of unreasonableness.
3. The Third German Santos Factor.
The third German Santos factor is the reasons for any delay. There is no evidence in this case of the “kind of careless or bad-faith mishaps that we hold against the Government.” German Santos, 965 F.3d at 212 (“Absent carelessness or bad faith, we will not scrutinize the merits of immigration proceedings and blame whichever party has the weaker hand.”). The respondents suggest, however, that “some portion of the length of [Ema]'s detention is attributable to his own delay as he has sought continuances and extensions at the administrative level.” Doc. 7 at 1819. But the respondents have not presented any evidence to support that assertion, and they have not even specified what continuances or extensions Ema sought or the length of those continuances or extensions. And we cannot hold the time it takes for Ema to file and litigate his applications for discretionary relief against him.
German Santos, 965 F.3d at 212. Further, there is no evidence that Ema was or is “merely gaming the system to delay [his] removal[, ]” rather than presenting good faith claims. Chavez-Alvarez, 783 F.3d at 476 (“An argument could be made that aliens who are merely gaming the system to delay their removal should not be rewarded with a bond hearing that they would not otherwise get under the statute. Requiring a bond hearing in such cases might return us to the very situation that Congress was trying to fix.” (footnote omitted)). Thus, the third German Santos factor is neutral in this case.
4. The Fourth German Santos Factor.
The fourth German Santos factor is whether the conditions under which the alien is confined differ meaningfully from criminal punishment. In German Santos, the Third Circuit determined that “[d]espite its civil label, ” German Santos's detention at the Pike County Correctional Facility was “indistinguishable from criminal punishment.” 965 F.3d at 213. And noting that German 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.” Id.
Here, Ema is detained at the York County Prison. The respondents contend that his conditions of confinement are not punitive. According to the respondents, unlike German Santos, Ema is not confined in his cell for 23 hours a day, and no one at the York County Prison is confined to a cell for 23 hours a day unless housed in disciplinary segregation or under medical isolation. Doc. 7 at 19. But none of the parties have presented the court with any evidence as to Ema's actual conditions of confinement. Nevertheless, “the Third Circuit has already said that the conditions of confinement for immigration detainees at York County Prison look penal.” Clarke, 481 F.Supp.3d at 398 (citing Chavez-Alvarez, 783 F.3d at 478). In Chavez-Alvarez, after noting that “Chavez-Alvarez is being held in detention at the York County Prison with those serving terms of imprisonment as a penalty for their crimes[, ]” the Third Circuit observed that “[a]mong our concerns about deprivations to liberties brought about by section 1226(c) is the reality that merely calling a confinement ‘civil detention' does not, of itself, meaningfully differentiate it from penal measures.” Chavez-Alvarez, 783 F.3d at 478. “As the length of the detention grows, the weight given to this aspect of his detention increases.” Id.
In support of that latter assertion, the respondents provide a link to a copy of the York County Prison's handbook revised on August 8, 2016. See doc. 7 at 19. ---------
Here, because Ema is detained at the York County Prison along with those being punished criminally, the fourth German Santos factor weighs in favor of a finding of unreasonableness.
Although some of the German Santos factors weigh in favor of a finding that Ema's detention without a bond hearing has become unreasonable, others are either neutral or weigh against such a finding. In sum, after weighing the relevant factors and given that Ema has been detained for only approximately six and a half months, we conclude that at this time, due process does not demand that Ema be given a bond hearing before an immigration judge under the standards set forth in German Santos.
IV. Recommendations.
Accordingly, for the foregoing reasons, we recommend that the court deny Ema's petition for a writ of habeas corpus. We further recommend that the court dismiss Wilkinson, Pekoske, ICE, Johnson, and Flores-Lund as respondents.
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.