Leslie v. Holder

• Decision Date: 29 March 2012
• Docket Number: Civil No. 3:11–CV–249.
• Citation: 865 F.Supp.2d 627
• Parties: Neville Sylvester LESLIE, Petitioner, v. Eric HOLDER, et al., Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

865 F.Supp.2d 627

Neville Sylvester LESLIE, Petitioner,

v.Eric HOLDER, et al., Respondents.

Civil No. 3:11–CV–249.

United States District Court, M.D. Pennsylvania.

March 29, 2012.

Frederick W. Ulrich, Federal Public Defender, Federal Public Defender's Office, Harrisburg, PA, for Petitioner.

Flor M. Suarez, Neelam Ihsanullah, Samuel P. Go, Department of Justice—Office of Immigration Litigation, Washington, DC, Mark Morrison, Harrisburg, PA, for Respondents.

MEMORANDUM OPINION

MARTIN C. CARLSON, United States Magistrate Judge.

I. Factual Background and Procedural History

A. Factual and Procedural Background

This case involves a habeas corpus petition filed by an immigration detainee, Neville Sylvester Leslie. This matter now comes before this Court after years of litigation on a remand from the United States Court of Appeals for the Third Circuit for the purpose of a bail determination for Leslie. Thus, in this case we do not write upon a blank slate. Quite the contrary, the prior legal proceedings in this matter largely shape and define the scope of the current hearing. That procedural history, which has been marked by prolonged detention of the petitioner, was aptly described by the court of appeals in the following terms:

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.

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 therefore ordered 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 ¹ was not unreasonable.

Leslie v. Attorney General, 678 F.3d 265, 267–68 (3d Cir.2012).

Leslie timely appealed this May 2011 decision conditionally denying him habeas relief, and eleven months later, on March 19, 2012, the court of appeals entered an opinion and order which concluded that the on-going delay in this matter had now become excessive and warranted some habeas corpus relief in the form of bail consideration for Leslie. The appellate court's guidance in this regard was unmistakably clear, with the court stating in clear and precise terms that: “We therefore hold that Leslie's detention is unreasonably long, and he is therefore entitled to ‘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, 656 F.3d at 231.” Id., 678 F.3d at 271.

The appellate court's reference to its recent prior decision in Diop further informed the bail review process contemplated by this remand ruling. As the court explained: “Diop laid out a two step-process: a reviewing court must first determine that a detention has been unreasonably long, and following such a determination, must determine whether the unreasonable detention is necessary to fulfill § 1226's purposes as outlined in Diop, supra.” Leslie v. Attorney General, 678 F.3d at 269–70. In this case the appellate court's explicit finding that “Leslie's detention is unreasonably long” plainly addressed the first question set forth in the analytical paradigm defined by Diop. Therefore, our task is to conduct the second step of this two-step analysis and engage in “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, 656 F.3d at 231.

The opinion and mandate of the court of appeals also prescribed when and how this process should occur, stating that: “Leslie's appeal will be remanded to the District Court with instructions to conduct an individualized bond hearing as required by Diop within ten days of the date when this opinion and order are filed.” Leslie v. Attorney General, 678 F.3d at 271.

B. Proceedings Following Remand from the Court of Appeals

Like the underlying immigration proceedings in this case, the proceedings before this Court following this remand by the court of appeals have been marked by invitations to follow legal detours. Thus, immediately upon the issuance of the court of appeals mandate, the District Court directed the undersigned to conduct the bail hearing ordered by the appellate court. (Doc. 22) We, in turn, appointed counsel for Leslie, and scheduled a hearing within the 10–day time frame dictated by the court of appeals. (Doc. 23)

The respondents immediately objected to judicial review of Leslie's four-year detention, and requested instead that an Immigration Judge be first given the opportunity to conduct a bail review for Leslie which would, according to the respondents would comply with the dictates of Diop, and the express mandate of the court of appeals in this case. (Doc. 27) Mindful of the deference which should be accorded in the first instance to agency decision-making processes, the District Court agreed to this request, and permitted the respondents have a bail review initially conducted by an Immigration Judge. (Doc. 28)

Having sought leave of court for the express purpose of permitting an IJ to conduct a bail hearing which would comply with the mandate of the court of appeals, the respondents then held a proceeding on March 23, 2012, which failed to comport with that appellate court mandate in several material respects. (Doc. 29) First, despite the court of appeals' express direction that this hearing must “determine whether the unreasonable detention is necessary to fulfill § 1226's purposes as outlined in Diop, supra.” Leslie v. Attorney General, 678 F.3d at 269–70, the respondents ignored Diop's guidance that the government bore the burden of proof at this hearing, and instead apparently assigned the burden of proof to Leslie in accordance with their own agency rules.² Having apparently misallocated the burden of proof in this fashion, the respondents then conducted an administrative hearing which appears to have neglected to fully address crucial procedural safeguards that are implicit in Diop and in the court of appeals' mandate, which in our view clearly contemplated meaningful participation by counsel in this bail hearing, as well as a full opportunity to present evidence. Instead, due to the hurried nature of the agency proceeding, counsel merely participated by telephone, and it seems that Leslie did not have a complete opportunity to present evidence in support of his request for bail. Furthermore, immigration officials then took steps which frustrated...