Ahad v. Lowe

• Citation: 235 F.Supp.3d 676
• Decision Date: 06 January 2017
• Docket Number: No. 1:16–cv–01864,1:16–cv–01864
• Parties: Abdul AHAD, Petitioner v. Warden Craig A. LOWE, et al., Respondents
• Court: U.S. District Court — Middle District of Pennsylvania

235 F.Supp.3d 676

Abdul AHAD, Petitioner

v.Warden Craig A. LOWE, et al., Respondents

No. 1:16–cv–01864

United States District Court, M.D. Pennsylvania.

Signed January 6, 2017

Sandra L. Greene, Law Office of Sandra Greene, York, PA, for Petitioner.

Kate Mershimer, Melissa Swauger, U.S. Attorney's Office, Harrisburg, PA, for Respondents.

ORDER

Yvette Kane, District Judge

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Before the Court is Magistrate Judge Carlson's November 14, 2016 Report and Recommendation (Doc. No. 9), that recommends that the Court grant in part Petitioner Abdul Ahad's petition for writ of habeas corpus submitted pursuant to 28 U.S.C. § 2241 (Doc. No. 1), challenging the constitutionality of Petitioner's twenty-month detention under 8 U.S.C. § 1225(b) while awaiting the completion of immigration removal proceedings without an individualized bond hearing and determination to justify his continued detention. Specifically, relying on Chavez–Alvarez v. Warden York County Prison , 783 F.3d 469 (3d Cir. 2015), Rodriguez v. Robbins , 804 F.3d 1060 (9th Cir. 2015), cert. granted sub nom. Jennings v. Rodriguez , –––U.S. ––––, 136 S Ct. 2489, 195 L.Ed.2d 821 (2016), and other persuasive authority imposing temporal limitations on pre-removal detention in the immigration context, Magistrate Judge Carlson recommends granting the instant petition insofar as it requests an order directing that Petitioner be afforded a prompt individualized bond hearing, as "[f]undamental principles of fairness and due process compel that these aliens have some rights to bond consideration and may not face prolonged, indefinite immigration detention bereft of any right to due process in the form of an individualized bond determination." (Doc. No. 9 at 2.)

Respondent has objected to Magistrate Judge Carlson's Report and Recommendation, arguing that "[t]his Court should decline to import a reasonableness requirement into 8 U.S.C. § 1225(b)(2)(A)," but rather, adopt "the approach taken by the courts that have found that neither the statute nor the Constitution requires that aliens who are detained while seeking admission to the United States be provided with a bond hearing." (Doc. Nos. 10, 11 at 4.) Principally, Respondent disagrees with Magistrate Judge Carlson's interpretation and application of the developing due process jurisprudence in this field to support his finding that 8 U.S.C. § 1225(b) contains an implicit statutory reasonableness requirement and his recommendation that Petitioner be afforded an individualized bond hearing. (See Doc. No. 11.)

Having thoroughly considered the arguments raised in Respondent's brief in support of its objections to the Report and Recommendation (Doc. No. 11), this Court finds that Magistrate Judge Carlson correctly and comprehensively addressed the substance of Respondent's objections in the Report and Recommendation itself. Thus, the Court will not write separately to address Respondent's objections and will adopt Judge Carlson's Report and Recommendation, with a slight modification, as provided below.

ACCORDINGLY, on this 6th day of January 2017, upon detailed review of the record and the applicable law, IT IS HEREBY ORDERED THAT :

1. The Court adopts the Report and Recommendation (Doc. No. 9), of Magistrate Judge Carlson;

2. Petitioner's petition for writ of habeas corpus submitted pursuant to 28 U.S.C. § 2241 is GRANTED IN PART insofar as it seeks an individualized bond hearing;

3. An individualized bond hearing shall be conducted by an immigration judge within thirty (30) days of the issuance of this Order;

4. At this hearing, the immigration judge shall make an individualized inquiry into whether detention remains necessary to fulfill the purposes of ensuring that the Petitioner attends removal proceedings and that his release will not pose a danger to the community in accordance with Chavez–Alvarez v. Warden York County Prison , 783 F.3d 469, 475 (3d Cir. 2015) ;

5. At this hearing, the government shall bear the burden of presenting evidence and proving that Petitioner's continued detention is necessary to fulfill the purposes of the detention statute in accordance with Diop v. ICE/Homeland Security , 656 F.3d 221, 233 (3d Cir. 2011) ; and

6. The Clerk of Court is directed to close this case.¹

REPORT AND RECOMMENDATION

Martin C. Carlson, United States Magistrate Judge

I. Statement of Facts and of the Case

For the past fifteen years federal courts have frequently been tasked with the responsibility of defining the contours of the due process protections afforded to aliens who are detained for extended periods of time while awaiting the completion of immigration removal proceedings and removal from the United States. These cases have come before the courts in a variety of factual settings, against the backdrop of a statutory immigration system which often called for mandatory detention of classes of aliens facing removal from the United States.¹ Yet, while the claims and legal contexts of these cases have varied widely, one recurring theme has emerged over time: Fundamental principles of fairness and due process compel that these aliens have some rights to bond consideration and may not face prolonged, indefinite immigration detention bereft of any right to due process in the form of an individualized bond determination.

This case involves a yet another variation on these emerging legal themes. The pertinent facts in this case can be simply stated: The petitioner, Abdul Ahad, is a native and citizen of Bangladesh who applied for admission to the United States on March 1, 2015, at or near Hidalgo, Texas. (Doc. 5 Ex. 1, Record of Inadmissible Deportable Alien at 2; Ex. 2 Notice to Appear.) At the time that he presented himself at the border Ahad had no valid entry documents but indicated he wanted admission to the United States and wished to seek asylum. (Id. )

As an alien who presented himself for admission at the border, Ahad was classified as an "arriving alien," under 8 C.F.R. § 1001.1(q) ; that is, "an applicant for admission coming or attempting to come into the United States at a port-of-entry." 8 U.S.C. § 1225(b) applies to "arriving aliens" like Ahad and sets forth procedures for the inspection and detention of aliens who are applicants for admission to the United States. Specifically, under § 1225(b), arriving aliens are inspected immediately upon arrival in the United States by an officer of the Department of Homeland Security Bureau of Customs and Border Protection. If, during that screening, the immigration officer determines that the alien is inadmissible because of the alien's inability to produce a "valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document ...," 8 U.S.C. § 1182(a)(7), "the officer shall order the alien removed from the United States without further hearing or review," a process referred to as expedited removal. See 8 C.F.R. § 1235.3(b)(1)(I), (b)(2)(ii) (providing that arriving aliens subject to expedited removal are not entitled to a hearing or appeal of this decision). However, if the alien "indicates an intention to apply for asylum ... or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer." 8 U.S.C. § 1225(b)(1)(A)(ii) ; see 8 C.F.R. § 235.3(b)(4) ("If an alien subject to the expedited removal provisions indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country, the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer....").

If the asylum officer determines at the time of the interview that the alien has a credible fear of persecution, that alien "shall be detained for further consideration of the application for asylum." 8 U.S.C. § 1225(b)(1)(B)(ii). Should the alien receive a positive credible fear determination, the alien will be subsequently placed in removal proceedings. 8 C.F.R. § 235.6(a)(1)(ii). However, during the pendency of these proceedings the statute and regulations provide that the alien will remain detained pursuant to 8 U.S.C. § 1225(b)(2)(A), subject only to the exercise of the Attorney General's discretionary parole authority. Thus, the only prescribed statutory mechanism for an alien's release from § 1225(b) custody is under 8 U.S.C. § 1182(d)(5)(A), which vests the Attorney General with discretion to release an alien temporarily on parole "under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit...." Parole decisions under § 1182 are purely discretionary and immigration judges lack statutory authority to determine whether an arriving alien may be released on bond during removal proceedings. See 8 C.F.R. § 1003.19(h)(2)(i)(B) ("[A]n immigration judge may not redetermine conditions of custody imposed by the Service with respect to the following classes of aliens: ... (B) Arriving aliens in removal proceedings, including aliens paroled after arrival pursuant to section 212(d)(5) of the Act....").

In this case, pursuant to this statutory scheme, on March 27, 2015, Ahad was served with a Notice to Appear, which informed him that he was an arriving alien and charged him with inadmissibility as an alien with no valid entry documents. (Id. , Ex. 2 at 1.) Ahad then submitted to interviews and immigration judge proceedings aimed at determining whether he had a credible fear of persecution in his homeland, Bangladesh. During these interviews and proceedings, Ahad detailed the nature of his fear of persecution in his homeland. After hearing this evidence, on February 24, 2016, the Immigration Judge granted Ahad's application for protection under the Convention Against Torture (CAT), but denied his applications for asylum and withholding of removal. (Id. , Ex. 3 Board of Immigration Appeal's (BIA) Decision of August 5, 2016 at...