Leslie v. Attorney Gen. of U.S.

• Decision Date: 19 March 2012
• Docket Number: No. 11–2442.,11–2442.
• Citation: 678 F.3d 265
• Parties: Neville Sylvester LESLIE, Appellant v. ATTORNEY GENERAL OF the UNITED STATES; Mary Sambol, Warden of York County Prison; Thomas Decker, District Director of Pennsylvania Field Office for Detention; Janet Napolitano, Secretary of the U.S. Department of Homeland Security.
• Court: U.S. Court of Appeals — Third Circuit

678 F.3d 265

Neville Sylvester LESLIE, Appellant

v.ATTORNEY GENERAL OF the UNITED STATES; Mary Sambol, Warden of York County Prison; Thomas Decker, District Director of Pennsylvania Field Office for Detention; Janet Napolitano, Secretary of the U.S. Department of Homeland Security.

No. 11–2442.

United States Court of Appeals, Third Circuit.

Argued Feb. 6, 2012.

Filed: March 19, 2012.

Neville Leslie, York, PA, Pro Se Appellant.

Tony West, David J. Kline, Victor M. Lawrence, Flor M. Suarez (Argued), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Appellee.

Valerie Burch, ACLU Foundation of Pennsylvania, Harrisburg, PA, for Amicus Curiae American Civil Liberties Union Foundation of Pennsylvania.

Judy Rabinovitz (Argued), Michael K.T. Tan, ACLU Foundation Immigrants' Rights Project, New York, NY, for Amicus Curiae American Civil Liberties Union Foundation.

Before: SLOVITER, VANASKIE and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

Petitioner Neville Leslie, a Jamaican alien, has been incarcerated since March 28, 2008 without a bond hearing. He now seeks a bond hearing as provided by 8 U.S.C. § 1226, contending that his continued detention by United States Immigration and Customs Enforcement (“ICE”) for four years is unconstitutional. ¹

Leslie's appeal from the District Court's denial of his petition for a writ of habeas corpus reveals a mixture of agency and court rulings (detailed below), all of which seek his removal to Jamaica and involve the pre-removal statute (8 U.S.C. § 1226) and the post-removal statute (8 U.S.C. § 1231). We now remand to the District Court and reverse the denial of Leslie's petition for a writ of habeas corpus. We also order that Leslie be afforded a bond hearing no later than ten days from the date this opinion and order are filed.

I.

In 1998, Neville Leslie, a native and citizen of Jamaica and a lawful permanent resident of the United States, was convicted of a felony offense of conspiracy to possess and distribute more than fifty grams of “crack” cocaine in violation of 21 U.S.C. § 846. He was subsequently sentenced to 168 months imprisonment, which he has served. On March 28, 2008, after Leslie's release from prison, ICE issued a warrant for Leslie's arrest and took Leslie into custody. He has been incarcerated under ICE custody since that time.

On April 16, 2008, an Immigration Judge (“IJ”) held a hearing and found Leslie, who waived his right to counsel at the hearing, removable to Jamaica for having committed an aggravated felony. Leslie appealed that order to the Board of Immigration Appeals (“BIA”). His appeal was dismissed on July 11, 2008. On July 21, 2008, Leslie petitioned this court for review of the BIA's decision, and he also moved to stay his removal on July 24, 2008. On August 14, 2008, this court granted the stay of removal pending the resolution of his petition for review.²

On July 8, 2010, this court, holding that the IJ failed to inform Leslie of the availability of free legal counsel, granted Leslie's petition for review and remanded the case to the BIA for a new hearing. On December 10, 2010, the BIA remanded the case to the IJ, who scheduled a hearing for February 22, 2011.

While still engaged before the immigration authorities and while still awaiting the immigration hearing of February 22, 2011, on February 2, 2011, Leslie filed a petition for a writ of habeas corpus in the District Court for the Middle District of Pennsylvania, challenging his continued immigration detention without hearing.

First, Leslie claimed that his original conviction was not an “aggravated felony,” and that he therefore was not subject to criminal detention under 8 U.S.C. § 1226. Section 1226 concerns the arrest, detention, and release of aliens who have not yet been ordered to be removed, and, among other things, authorizes a bond hearing. Leslie also argued that his detention was unconstitutionally lengthy and that his continued detention without a bond hearing violated his procedural due process rights under the Fifth Amendment.

Before Leslie's habeas corpus petition was ruled on by the District Court, the IJ held the scheduled February 22, 2011 hearing, where Leslie requested a continuance of his removal proceedings for “medical reasons.” The IJ continued the proceedings until March 30, 2011, at which time another hearing was held. At that hearing, Leslie again challenged the constitutionality of 8 U.S.C. § 1226 and again argued that his prior conviction was not an “aggravated felony.” The IJ concluded that the prior conviction was an aggravated felony and did not decide the constitutional question of unreasonable detention. The IJ therefore ordered that Leslie be removed to Jamaica. Leslie appealed this decision to the BIA.

The BIA remanded Leslie's appeal of the IJ's order of removal to the IJ, noting that the audio recording of the March 30, 2011 hearing and the audio recording of the immigration judge's oral decision were missing from the record. The BIA thereforeordered the immigration judge to prepare a complete transcript of the March 30, 2011 proceedings and, if necessary, to hold a new hearing.

Meanwhile, on May 10, 2011, the District Court adopted a magistrate judge's report and recommendation which recommended denying Leslie's petition for a writ of habeas corpus “without prejudice to future requests when, and if, Leslie's continued detention becomes sufficiently prolonged to trigger constitutional concerns.” The District Court then held that Leslie had been convicted of an aggravated felony and that his detention was not unreasonable. Leslie timely appealed the denial of his petition to this court, which we address today.

Leslie was ordered removed by the IJ on December 15, 2011. Leslie appealed this order of removal to the BIA on December 22, 2011, and on February 3, 2012, DHS requested that the BIA expedite that appeal. As of this time, Leslie's appeal is still pending before the BIA, and Leslie's detention is continuing without Leslie having been afforded a bond hearing.

II.

This appeal requires us to resolve a single issue: whether the District Court properly determined that Leslie's continued detention is reasonable, and that he is therefore not entitled to a bond hearing.³

We begin by reviewing the statutory framework under which aliens can be detained during and subsequent to removal proceedings:

Under the pre-removal statute—8 U.S.C. § 1226(a)—ICE can detain any alien pending a decision in removal proceedings against that alien, and can release on bond any alien not otherwise ineligible for such release. Section 1226 expressly provides for mandatory detention during removal proceedings of aliens who are removable on account of their commission of certain enumerated offenses, including aggravated felonies such as Leslie's. Once removal proceedings terminate in an order of removal, however, the alien's detention is governed by 8 U.S.C. § 1231(a).

Under the post-removal statute—8 U.S.C. § 1231—ICE must remove the alien within 90 days of a final order of removal, and must detain the alien during that period. Certain removable aliens, including aliens who, like Leslie, are removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having committed an aggravated felony “may be detained beyond the removal period” pursuant to 8 U.S.C. § 1231(a)(6).

Because detention under § 1231(a) serves to detain for removal an alien who will in fact be subjected to removal, the Supreme Court has held that the extended mandatory detention provided for by § 1231(a)(6) is constitutional only if it is not indefinite and when a “significant likelihood of removal in the reasonably foreseeable future” exists. Zadvydas v. Davis, 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). In contrast, the Supreme Court did not expressly place any limits on ICE's authority to detain aliens prior to a final order under § 1226. Demore v. Kim, 538 U.S. 510, 520–21, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).

This court, however, in considering Zadvydas, has determined that § 1226 “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.” Diop v. ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir.2011). ⁴ The court in Diop further noted that determining the point at which the length of detention is no longer reasonable is “a fact-dependent inquiry that will vary depending on individual circumstances. We decline to establish a universal point at which detention will always be considered unreasonable.” Id. at 233. The fact-dependent inquiry must take into account delay caused by errors which necessitated appeals as well as the extent to which continuances or other delays favorable to the alien have lengthened the period of detention. Id. at 233–34.

The Diop court began its “reasonableness” analysis with the observation that “detention under § 1226 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 an alien chooses to appeal.” Id. (Internal quotation marks and internal citations omitted). The court then observed that Diop had been detained for 35 months, and concluded that such a period of time, approximately six times longer than the regular period of detention, was unreasonable. Furthermore, as here, the government in Diop argued that the alien was responsible for a significant portion of that delay because he had requested continuances and filed several appeals. The Diop court concluded that as a general principle “the reasonableness determination must take into account a given individual detainee's need for more or less time, as well as the exigencies of a particular case,” id. at 234, even though...