The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARTIN M. CHIKEREMA, :
Petitioner, :
: No. 1:18-cv-1031
v. :
: (Judge Rambo)
CRAIG R. LOWE, : (Magistrate Judge Carlson)
Respondent. :
MEMORANDUM
Before the Court for disposition is Magistrate Judge Martin C. Carlson’s
Report and Recommendation (“R&R,” Doc. No. 12), entered on May 2, 2019, which
recommends that pro se Petitioner Martin M. Chikerema (“Petitioner”)’s petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. No. 1) be granted and
that the Government be ordered to conduct an individualized bond hearing to review
Petitioner’s detention by the Department of Homeland Security (“DHS”),
Immigration and Customs Enforcement (“ICE”). Respondent filed objections to the
R&R on May 15, 2019. (Doc. Nos. 13, 14.) On August 16, 2019, Petitioner filed a
motion to expedite the adjudication of his § 2241 petition. (Doc. No. 15.) For the
reasons set forth below, the Court will grant Petitioner’s motion to expedite (Doc.
No. 15), adopt Magistrate Judge Carlson’s R&R, overrule the Government’s
objections, grant Petitioner’s § 2241 petition, and direct that he receive an
individualized bond hearing.
I. BACKGROUND
As Magistrate Judge Carlson set forth, the pertinent facts are as follows:
The petitioner, Martin Chikerema, is a citizen and native of
Zimbabwe admitted to the United States at Pittsburgh, Pennsylvania on
or about December 24, 1994 as a nonimmigrant student. Chikerema
overstayed his student visa and on August 18, 2002, immigration
officials served him with a Notice to Appear and charged him as
removable pursuant to § 237(a)(1)(C)(i) of the Immigration and
Nationality Act (INA). Following immigration proceedings, on May
11, 2006, an immigration judge in Chicago, Illinois granted Chikerema
asylum, and his immigration status was adjusted to that of a lawful
permanent resident on October 26, 2011.
On April 4, 2017, Chikerema was convicted in the United States
District Court for the Southern District of Indiana of filing false tax
returns in violation of 26 U.S.C. § 7206(1), and was sentenced to six
months imprisonment. As Chikerema’s sentence drew to a close,
immigration officials encountered the petitioner while he was
incarcerated at Moshannon Valley Correctional Institution. On
October 11, 2017, immigration officials served Chikerema with a
Notice to Appear charging him with being removable from the United
States pursuant to § 237(a)(2)(A)(iii) of the INA due to his conviction
of an aggravated felony as defined in § 101(a)(43)(m) of the INA, a law
relating to an offense that involves fraud or deceit in which the loss to
the victim or victims exceeds $10,000.00, or is described in the Internal
Revenue Code of 1986, § 7201 (relating to tax evasion) as an offense
in which the revenue loss to the Government exceeds $10,000.00. On
November 7, 2017, an immigration judge sustained the charge of
removability against Chikerema. One week later, on November 14,
2017, Chikerema was remanded into ICE custody and has remained in
continuous immigration detention for the past 17 ½ months.
During this time, Chikerema has been actively contesting his
removal from the United States. Thus, on November 20, 2017,
Chikerema sought to stave off removal by asserting a claim of a fear of
persecution if returned to Zimbabwe. On January 16, 2018, Chikerema
had a merits hearing before an immigration judge to present his claims
of withholding of removal and protection under the Convention Against
Torture. Two weeks later, on February 26, 2018, an immigration judge
denied all of Chikerema’s applications for withholding.
(R&R at 2-3.) According to the automated immigration court’s information system,1
an immigration judge ordered Chikerema removed on July 29, 2019, and he has until
August 26, 2019 to appeal that decision to the Board of Immigration Appeals
(“BIA”).
Petitioner filed his § 2241 petition on May 16, 2018. (Doc. No. 1.) In his
R&R, Magistrate Judge Carlson noted that Petitioner had, by that date, “remained in
continuous immigration detention for the past 17 ½ months.” (Doc. No. 12 at 3.)
Because of this, he found that Petitioner’s detention had reached a duration
suggesting that a bond hearing is constitutionally required and recommended
granting Petitioner’s § 2241 petition. Respondent has objected, arguing that (1) the
cases relied upon by Magistrate Judge Carlson to recommend granting a bond
hearing—Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011) and Chavez-
Alvarez v. Warden York Co. Prison, 783 F.3d 460 (3d Cir. 2015)—have been
overruled by the Supreme Court’s decision in Jennings v. Rodriguez, 138 S. Ct. 830
(2018); (2) Petitioner’s detention does not violate due process; and (3) there is no
constitutional requirement to shift the evidentiary burden from the detainee to the
government. (Doc. No. 14.)
1 The phone number for this system is 1-800-898-7180. See
https://www.justice.gov/eoir/customer-service-initiatives.
II. LEGAL STANDARD
When objections are timely filed to a magistrate judge’s report and
recommendation, the district court must review de novo those portions of the report
to which objections are made. 28 U.S.C. § 636(c); Brown v. Astrue, 649 F.3d 193,
195 (3d Cir. 2011). Although the standard is de novo, the extent of review is
committed to the sound discretion of the district judge, and the court may rely on the
recommendations of the magistrate judge to the extent it deems proper. Rieder v.
Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000) (citing United States v. Raddatz,
447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no objection is
made, the court should, as a matter of good practice, “satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.” Fed.
R. Civ. P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply
Intern., Inc., 702 F. Supp. 2d 465, 469 (M.D. Pa. 2010) (citation omitted).
Nonetheless, whether timely objections are made or not, the district court may
accept, not accept, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge. 28 U.S.C. § 636(b)(1); Local Rule 72.31.
III. DISCUSSION
The Court has reviewed Magistrate Judge Carlson’s R&R, as well as the
applicable evolving case law, and concurs with his rationale and recommendation.
The parties do not dispute that Petitioner is detained pursuant to 8 U.S.C. § 1226(c),
which mandates pre-removal detention of aliens who are removable based on certain
enumerated offenses. Furthermore, as Magistrate Judge Carlson explains, the
Supreme Court’s decision in Jennings “explicitly rejected the practice of reading
implicit time limitations into unambiguous statutes such as § 1226(c), and found
“that the statute contains no implicit time limitations.” Dryden v. Green, 321 F.
Supp. 3d 496, 500, 501 (D.N.J. 2018).
The United States Court of Appeals for the Third Circuit, however, recently
stated that “Jennings did not call into question [the] constitutional holding in Diop
that detention under § 1226(c) may violate due process if unreasonably long.”
Borbot v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274, 278 (3d Cir. 2018).
Thus, “only an individualized as applied constitutional challenge to the statute
remains for Petitioner and those in similar circumstances.” Dryden, 321 F. Supp. 3d
at 501-02. The Dryden court then explained:
Although the Third Circuit’s ultimate rulings in Diop and
Chavez-Alvarez have been abrogated by Jennings, and those two cases
are no longer binding upon this Court, it does not follow that those two
cases should be ignored. The constitutional reasoning that underlay the
Third Circuit’s invocation of the constitutional avoidance canon still
provides some persuasive guidance as to how this Court should address
§ 1226(c) claims. Specifically, the Court accepts that the
“constitutionality of [detention pursuant to § 1226(c) without a bond
hearing] is a function of the length of the detention [and t]he
constitutional case for continued detention without inquiry into its
necessity becomes more and more suspect as detention continues past
[certain] thresholds.” Chavez-Alvarez, 783 F.3d at 474 (quoting Diop,
656 F.3d at 232, 234). This Court likewise is mindful that “any
determination on unreasonableness [must be] highly fact specific” and
that “at a certain point—which may differ case by case[]—the burden
to an alien’s liberty outweighs” the Government’s interest in detention
without bond,” id. at 474-75, and that detention which is so
unreasonable as to amount to an arbitrary deprivation of liberty cannot
comport with the requirements of the Due Process Clause. Id. at 474;
see also Demore, 538 U.S. at 432, 123 S. Ct. 1513 (Kennedy, J.,
concurring). Because, however, Jennings foreclosed the constitutional
avoidance basis provided by the Third Circuit in its determination that
detention will normally become suspect between six months and a year,
and because Jennings leaves open only the question of whether §
1226(c) is unconstitutional as applied to the petitioner, it is insufficient
that Petitioner’s detention has merely become suspect by reaching this
six-month to a year threshold, in order for Petitioner to be entitled to
release he must show that his ongoing detention is so unreasonable or
arbitrary that it has actually violated his rights under the Due Process
Clause. If Petitioner’s detention has not become so unreasonable or
arbitrary that continued application of the statute is unconstitutional as
applied to Petitioner, § 1226(c) authorizes his continued detention until
a final order of removal is entered and Petitioner would not be entitled
to relief. Jennings, 138 S. Ct. at 846-47.
Id. at 502. Thus, “courts now use a case-by-case approach, post-Jennings, to
determine whether a § 2241 habeas petitioner has demonstrated that his prolonged
mandatory detention under § 1226(c) is unconstitutional as applied to him.” Vega
v. Doll, No. 3:17-1440, 2018 WL 3756755, at *3 (M.D. Pa. Aug. 8, 2018).
The Court finds that Magistrate Judge Carlson has thoroughly examined the
various factors considered by courts and properly concluded that under the
circumstances of this case, Petitioner’s prolonged mandatory detention under
§ 1226(c) “has reached a duration where . . . a bond hearing is constitutionally
required.” (Doc. No. 12 at 17.) Respondent objects, arguing that Magistrate Judge
Carlson’s analysis of Petitioner’s circumstances was “flawed.” (Doc. No. 14 at 15.)
Respondent maintains that there is no “outer limit for what constitutes a permissible
period of detention.” (Id.) Here, however, Petitioner has been in ICE custody for
more than twenty (20) months, a period of detention that courts within the Third
Circuit have found to be so prolonged as to be an arbitrary and therefore
unconstitutional application of § 1226(c). See, e.g., Vega, 2018 WL 3756755, at *5
(concluding that detention for 21 months was so prolonged that it had become
arbitrary and unreasonable, and granting an individualized bond hearing); K.A. v.
Green, No. 18-3436, 2018 WL 3742631, at *4 (D.N.J. Aug. 7, 2018) (detention for
nineteen (19) months absent bad faith on petitioner’s part warranted a bond hearing).
Respondent also argues that “[c]ontrary to the Magistrate Judge’s finding, the
government has not delayed or unreasonably prolonged Chikerema’s removal
proceedings.” (Doc. No. 14 at 16.) Respondent suggests that the delay in removal
proceedings is attributable to Petitioner’s “numerous motions and requests for
relief.” (Id.) However, like the petitioner in Vega, the Court does not find that
Petitioner has been filing frivolous requests for relief. Rather, he has filed defenses
to his removal, which is a factor to be considered in determining whether detention
under § 1226(c) has become unreasonable. See Sajous v. Decker, No. 18-CV-2447
(AJN), 2018 WL 2357266, at *11 (S.D.N.Y. May 23, 2018).
As the United States District Court for the Southern District of New York has
noted, “[t]he first, and most important, factor that must be considered is the length
of time the alien has already been detained.” Id. at *10. As noted above, Petitioner
has been detained by ICE for over twenty (20) months. As Judge Mannion stated in
Vega, “it is relevant that petitioner’s detention . . . for almost two years is comparable
to a considerable prison sentence even though he was not convicted of any new
crimes.” Vega, 2018 WL 3756755, at *4. As such, the Court concurs with
Magistrate Judge Carlson that Petitioner’s continued detention has become so
prolonged that it has become arbitrary and unreasonable in his particular case and
that he is therefore entitled to an individualized bond hearing.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Petitioner’s motion to expedite
(Doc. No. 15), adopt Magistrate Judge Carlson’s R&R (Doc. No. 12) and overrule
Respondent’s objections (Doc. No. 13, 14.) The Court will grant Petitioner’s § 2241
petition (Doc. No. 1) and direct that Petitioner receive an individualized bond
hearing before an immigration judge. An appropriate Order follows.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: August 19, 2019