# Franciszek v. Hoover

> District Court, M.D. Pennsylvania · April 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10408705

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** April 27, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

FRANCISZEK BYSTRON, :

Petitioner : CIVIL NO. 3:20-602

v. : (JUDGE MANNION)

ANGELA HOOVER, et al., :

Respondents :

MEMORANDUM
I. Procedural Background
On April 10, 2020, petitioner Franciszek Bystron, a detainee for about
five months of U.S. Immigration and Customs Enforcement (“ICE”) at the
Clinton County Correctional Facility (“CCCF”), located in McElhattan,
Pennsylvania, filed, through counsel, a petition for writ of habeas corpus
pursuant to 28 U.S.C. §2241, and a complaint for emergency injunctive relief.
(Doc. 1). Petitioner also submitted exhibits with his petition, including his Ex.
5 which consists of a letter to Congress from two medical experts for the
Department of Homeland Security discussing the unique dangers COVID-19
poses to ICE detention facilities. As relief, petitioner requests the court to
order his immediate release from ICE detention at CCCF while his appeal to
the Board of Immigration Appeals (“BIA”), of his March 11, 2020 removal
order is pending. Petitioner alleges that his continued detention by ICE
violates his due process rights under the 5th and 14th Amendments, that he

is being subject to unsafe and healthy conditions at the prison due to the
COVID-19 pandemic, and that he is not likely to be removed from the United
States in the reasonably foreseeable future. He also alleges that his

underlying health condition, namely, hypertension, “place[s] him at high risk
of severe illness or death if he contracts COVID-19.”
Due to the alleged emergency nature of the petition, the court issued
an Order on April 10, 2020, directing counsel for the parties to confer by

telephone within 72 hours and to advise the court if there was an agreed
upon resolution of the petition. If there was no resolution, respondents
Angela Hoover, Warden at CCCF, and Simona Flores-Lund, Field Office

Director of the Philadelphia Field Office of ICE, were directed to file an
expedited response to the petition. The court also directed the parties to
indicate if they thought a hearing was necessary in this case. (Doc. 3). Since
there was no resolution, (Doc. 4), respondents filed their response to the

petition on April 16, 2020, with an attached Declaration of Joshua Reid, ICE
Assistant Field Office Director with the Enforcement and Removal
Operations in the Philadelphia Field Office.1 (Doc. 5). Petitioner filed a
traverse on April 17, 2020, (Doc. 6), with his April 17, 2020 Declaration

attached, (Doc. 6-1), which was signed on petitioner’s behalf by Justin
Burton, one of Bystron’s attorneys. The Declaration regards Bystron’s
hypertension as well as the alleged unsafe and unsanitary conditions at

CCCF which do not meet the “health procedures put in place by the CDC
[with respect to COVID-19]”, such as social distancing recommendations and
the lack of soap and hand sanitizers in the bathroom. Significantly, Bystron’s
Declaration does not dispute Hoover’s contention that he has not contracted

the virus and Reid’s averment that there are no confirmed cases of COVID-
19 at CCCF. Neither party has indicated to the court that they believe a
hearing is necessary in this case.

For the reasons set forth below, the court will deny petitioner’s petition
for writ of habeas corpus pursuant to 28 U.S.C. §2241, and it will deny his
complaint for emergency injunctive relief seeking his immediate release from
CCCF.

1Since Hoover is the petitioner’s custodian, she is the only proper
respondent in this case. See 28 U.S.C. §2243; Rumsfeld v. Padilla, 542 U.S.
426, 435 (2004). As such, the court will hereinafter refer to respondent as
“Hoover.”
II. Factual Background

Petitioner, age 40, is a native and citizen of Poland. Petitioner entered
the United States on June 9, 1999, as a B-2 visitor. On June 28, 2003,
petitioner married a U.S. citizen and, he and his wife have two U.S. citizen

children. On June 2, 2005, petitioner’s status changed to a Lawful Permanent
Resident. Petitioner’s family resides in Park Ridge, Illinois. Also, petitioner
has hypertension which is admittedly controlled by medication.
Petitioner plead guilty to bank fraud, in violation of 18 U.S.C. §1344,

on September 13, 2018 in the U.S. District Court for the Northern District of
Illinois, and he was sentenced to 12 months and 1 day in prison. Petitioner
served approximately 11 months in prison.

After his release from prison, ICE commenced removal proceedings
against Petitioner charging him as being removable under INA
§237(a)(2)(A)(iii), for having been convicted of an aggravated felony
involving fraud or deceit with loss to the victims in excess of $162,000.

Petitioner was then taken into custody by ICE, and he has been continually
detained by ICE at CCCF since December 2019.
Petitioner was ordered removed from the United States to Poland by

an Immigration Judge (“IJ”) on March 11, 2020. The IJ denied petitioner’s
application to re-adjust his status and his request for waiver of removal based
on his U.S. citizen wife and children.

On March 18, 2020, petitioner appealed his removal order to the BIA
and his appeal is presently pending before the BIA. Thus, petitioner is not
yet subject to a final removal order as he is still in removal proceedings.

On April 10, 2020, petitioner filed his emergency §2241 habeas petition
and complaint for injunctive and declaratory relief. In his petition, petitioner
alleges that based on his medical condition, “he is presently being subject to
unsafe, unhealthy and hazardous detention conditions due to the

coronavirus pandemic, otherwise known as ‘COVID-19’”, and his potential
exposure to the virus at CCCF. Petitioner states that his “chronic medical
condition places him at high risk of contracting COVID-19, and at imminent

risk of death or serious injury if exposed.” He requests immediate release
alleging that his continued detention by ICE during the pendency of his
removal proceedings is unconstitutional.
In addition to relying upon §2241 for relief, petitioner cites to the

Declaratory Relief Act, 28 U.S.C. §2201, et seq., the All Writs Act, 28 U.S.C.
§1651.
Subject matter jurisdiction over this case is proper with this court under

§2241 “because, at the time he filed his petition, Petitioner was detained
within its jurisdiction by a custodian within its jurisdiction.” Ousman v. Decker,
2020 WL 1857704, *6 (D.N.J. April 13, 2020) (citations omitted). Also, the

district court “may issue a writ of habeas corpus when a petitioner ‘is in
custody in violation of the Constitution or laws or treaties of the United
States.’” Saillant v. Hoover, 2020 WL 1891854, *3 (M.D.Pa. April 16, 2020)

(citing 28 U.S.C. §2241(c)(3)).

III. Discussion2

Initially, Hoover argues that the habeas petition should be dismissed
since it challenges conditions of confinement at CCCF which are claims that
must be presented in a civil rights action under 42 U.S.C. §1983. The court
finds no merit to this contention.

2Since several cases in this district, as well as in many other districts,
have recently detailed the backdrop of habeas cases similar to our
petitioner’s in which aliens seek immediate release from ICE detention due
to the COVID-19 pandemic, the court sees no need to rehash this
background and does not repeat this discussion herein. See eg., Saillant,
2020 WL 1891854, *1; Umarbaev v. Lowe, 2020 WL 1814157, *2 (M.D.Pa.
April 9, 2020). The briefs of the parties also discuss the COVID-19 pandemic.
Suffice to say that this court is well-aware of the COVID-19 pandemic and its
effects on the United States as well as the special considerations that must
be made to protect detainees confined in detention facilities. See also CDC’s
guidelines for institutions that detain individuals, Interim Guidance on
Management of Coronavirus Disease 2019 (Covid-19) in Correctional and
Detention Facilities, CDC, https://www.cdc.gov/coronavirus/2019-
ncov/community/correction-detention/guidance-correctional-detention.html
The Supreme Court has held that §2241 confers jurisdiction upon the
federal district courts to consider cases challenging the detention of aliens

during removal proceedings. Demore v. Kim, 538 U.S. 510 (2003); Zadvydas
v. Davis, 533 U.S. 678 (2001). Thus, a habeas petition under §2241 is the
proper vehicle for an inmate to challenge “the fact or length of confinement”,

Presser v. Rodriguez, 411 U.S. 475, 494 (1973), or the “execution” of his
confinement. Woodall v. Fed. BOP, 432 F.3d 235, 241-42 (3d Cir. 2005).
Further, the court must look to the remedy requested by the inmate to
determine if he is seeking relief available in a habeas petition. “When a

petitioner seeks immediate release from custody, the ‘sole federal remedy’
lies in habeas corpus.” Camacho Lopez v. Lowe, Civil No. 3:20-563, 2020
WL 1689874 (M.D.Pa. April 7, 2020), at 8 (citing Presser, 411 U.S. at 500).

In Camacho Lopez, the petitioner was an ICE detainee subject to a
final removal order whose removal was set for March 30, 2020, but delayed
due to his COVID-19 diagnosis. The petitioner filed a §2241 habeas petition
seeking immediate release from confinement based on “the threat posed by

the COVID-19 viral pandemic.” The respondent argued that Camacho
Lopez’s petition should be construed as a civil rights action under 42 U.S.C.
§1983. The court found that “the extraordinary conditions of confinement”

“where the petitioner tested positive for and had been hospitalized by a
potentially deadly pandemic virus and claims that officials cannot properly
treat him---constitute the extreme case in which habeas relief might be

available.” Id. at 13. The court then concluded that based on the case’s
unique circumstances, “both the claim brought and the remedy sought are
cognizable in habeas corpus.” Id. The court found, however, that Camacho

Lopez’s continued detention in prison was proper and dismissed his habeas
petition. See also Verma v. Doll, Civil No. 4:20-14, 2020 WL 1814149
(M.D.Pa. April 9, 2020) (court found petitioner, an ICE detainee, “plainly
seeks a habeas remedy” where he requested immediate release from

custody based on alleged “constitutionally deficient conditions of
confinement that threaten his life and health” in light of the COVID-19
pandemic); Saillant, 2020 WL 1891854, *3 (the court agreed with the

conclusions of the courts in Verma and Camacho Lopez “finding that a claim
based on the COVID-19 pandemic [at CCCF] is exactly the sort of ‘extreme
case’ contemplated in [Ali v. Gibson, 572 F.2d 971 (3d Cir. 1978)]” “in which
a petitioner may challenge the conditions of his confinement through a

petition for writ of habeas corpus.”); Umarbaev, 2020 WL 1814157.
In the present case, as in Camacho Lopez, petitioner is an ICE
detainee subject to a removal order, and he similarly seeks immediate

release from custody at CCCF since he believes his health is in imminent
risk at the prison due to alleged unsafe and unhealthy conditions and due to
his potential exposure to COVID-19, which “is unequivocally a habeas

remedy.” Id. (citation omitted). Even though petitioner Bystron has not been
diagnosed with COVID-19, unlike the petitioner in Camacho Lopez, he can
still proceed with his claims via a habeas petition. See Verma, 2020 WL

1814149, at *4; Saillant, 2020 WL 1891854, *3 (both Verma and Saillant
cases involved petitioners who had not been diagnosed with COVID-19 and
despite this fact these courts in this district found that their cases “presented
the kind of extreme case in which a habeas corpus petition could be used to

challenge conditions of confinement.”); Umarbaev, 2020 WL 1814157, *5
(court held that “[w]hile the issue of whether Petitioner [an ICE detainee] may
pursue … a claim [“that his detention violates due process because he is at

heightened risk of serious illness or death should he contract the COVID-19
virus”] in a §2241 petition has not been resolved, the Court will examine his
claim in the context of habeas corpus because Petitioner is seeking
immediate release from confinement based upon the COVID-19

pandemic.”); Singh v. Hoover, 2020 WL 1904470 (M.D.Pa. April 17, 2020)
(court considered habeas petition of ICE detainee at CCCF who had not
contracted the virus to the extent that it sought release from detainment

based on the risks from COVID-19 and denied petition in this regard).
As such, even though petitioner Bystron does not have the COVID-19
virus and, as of April 17, 2020, there have been no confirmed cases of the

virus at CCCF, this court concurs with the courts in Verma, Saillant, Singh,
and Umarbaev, and finds that he can proceed with his §2241 habeas petition
insofar as he seeks release from detainment at CCCF based on the COVID-

19 pandemic.
Next, Hoover argues that if petitioner Bystron is allowed to proceed
with his habeas petition, “[i]t is inappropriate for a court to order release as a
remedy for unconstitutional conditions of confinement.” She contends that

the court should limit Bystron’s remedy to a cure of the alleged violative
conditions of confinement and/or an award of damages, i.e., limit the remedy
to the nature and scope of the constitutional violation.

The court finds that it has the authority to order the release of Bystron
from detainment by ICE if it finds merit to his habeas petition and request for
equitable relief. See Thakker v. Doll, --- F.3d ---, 2020 WL 1671563 (M.D.Pa.
March 31, 2020); Saillant, 2020 WL 1891854 (court found that a habeas

petition was an appropriate remedy for an ICE detainee at CCCF despite the
fact that the petitioner did not test positive for COVID-19); Basank v. Decker,
––– F.Supp.3d ––––, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) (court

ordered ten immigration detainees held in a county jail with confirmed cases
of COVID-19 to be released); Sacal-Micha v. Longoria, --- F.3d ---, 2020 WL
1518861, *3 (S.D.Tx. Mar. 27, 2020) (court held that ICE detainee filing

habeas petition and seeking release from detainment due to conditions of
confinement and COVID-19 virus, had authority to grant petitioner bail if
“[t]he petitioner … demonstrate[s] that the habeas petition raises substantial

claims and that ‘extraordinary circumstances exist that make the grant of bail
necessary to make the habeas remedy effective.’”) (citation omitted).
However, the court finds that petitioner has not demonstrated a
likelihood of success on the merits of his claims. In order to prevail on a

motion for injunctive relief, petitioner must initially demonstrate “the two ‘most
critical’ factors: likelihood of success on the merits and irreparable harm.”
Camacho Lopez, 2020 WL 1689874, *3 (citing Reilly v. City of Harrisburg,

858 F.3d 173, 179 (3d Cir. 2017)). As the court in Camacho Lopez, id., then
explained:
Under the first factor, the movant must show that “it can win on the
merits.” Id. This showing must be “significantly better than negligible
but not necessarily more likely than not.” Id. The second factor carries
a slightly enhanced burden: the movant must establish that it is “more
likely than not” to suffer irreparable harm absent the requested relief.
Id. Only if these “gateway factors” are satisfied may the court consider
the third and fourth factors, which aim to balance the equities by
examining the potential for harm to others if relief is granted and
whether the public interest favors injunctive relief. Id. at 176, 179. The
court must then balance all four factors to determine, in its discretion,
whether the circumstances warrant injunctive relief. Id. at 179.
“Irreparable harm is injury of such an irreversible character that
prospective judgment would be inadequate to make the movant whole. Id. at

*8 (citations omitted). “Mere risk of injury is not enough”, and “the moving
party must establish that the claimed harm is imminent and probable.” Id.
(citation omitted).

Further, “the law in the Third Circuit is clear that a civil immigration
detainee is entitled to the ‘same due process protections’ as a pretrial
detainee”, and ‘[a]n immigration detainee can bring a claim for violation of
those protections when the conditions of confinement fall below

constitutional minimums.” Camacho Lopez, 2020 WL 1689874, *6 (internal
citations omitted). Thus, to obtain injunctive relief, “[Bystron] must
demonstrate that the conditions of confinement at [C]CCF amount to

‘punishment’ lacking any reasonable relationship to ‘a legitimate
governmental objective.’” Id. (citation omitted).
In support of his petition and request for emergency injunctive relief in
the nature immediate release from detainment at CCCF, petitioner cites to

the Thakker case decided in this district as well as to various other cases
decided in courts across the country that he states have found “COVID-19,
coupled with the lack of hygiene and overcrowding present in detention

facilities, will pose a greatly heightened risk to inmates, particularly those
with underlying medical conditions.” Since petitioner cites to some of the
cases in his reply brief for support, and since the court has reviewed them

and is cognizant of them, the court does not repeat the cases herein. (Doc.
6 at 7-8). Suffice to say that in Thakker, “this court granted the immediate
release of a group of medically vulnerable detainees in ICE custody in hopes

of mitigating their risk of contracting the [COVID-19 virus].” Camacho Lopez,
2020 WL 1689874, *6. In particular, the petitioners in Thakker were ICE
detainees who were not yet sick, and the court granted habeas relief finding
that “their respective medical conditions placed them at risk of experiencing

serious complications if they contracted the COVID-19 virus.” Id. at n. 6. The
court in Thakker, ordered “petitioners immediate release based upon: (1)
their heightened vulnerability to the virus, and (2) the conditions of

confinement in several ICE detention facilities, including PCCF.” Id. (citation
omitted).
In Camacho Lopez, 2020 WL 1689874, *6, the petitioner had
contracted COVID-19 and the court held that “claimed deficiencies in

disease prevention efforts [at the prison] cannot serve as a basis, in habeas,
to release a detainee who has already contracted the disease.” Although
Bystron has not contracted the virus, similar to the petitioner in Camacho

Lopez, he claims that he should be released from detainment based on
“[C]CCF’s alleged inability to comply with federal guidance for preventing the
spread of the COVID-19 virus within the facility.” Id. In support of his

contention, Bystron submitted his Declaration averring unsanitary and
unsafe conditions in the prison based on the COVID-19 directives for prisons.
Hoover has submitted Reid’s Declaration indicating that CCCF has

implemented procedures consistent with all of the recommendations and
protocols for protecting inmates and staff from contracting COVID-19.
Bystron has also submitted the letter from two doctors to DHS regarding
prison conditions and safety measures in general , but it does not specifically

address CCCF.
Petitioner Bystron also states that “Courts have even specifically held
that COVID-19 constitutes an irreparable harm that supports the grant of a

TRO.” (Doc. 6 at 9) (citations omitted). Petitioner points out that there are
ways in which detainees like himself can be monitored remotely if released
to ensure their appearances at future removal proceedings. As such,
petitioner concludes that “[b]ecause there are no legal justifications for

continuing the detention of low-risk, non-violent immigrant detainees in an
unhealthy or hazardous manner, and the only method to properly protect
Petitioner is through release from custody.” (Id.).
This court concurs with the two very recent and well-reasoned
decisions by Judge Wilson of this district in the Saillant and Singh cases,

which are directly on point, and she considered habeas claims by ICE
detainees at CCCF seeking immediate release from confinement based on
the COVID-19 pandemic. Similar to Bystron, the petitioners in Saillant and

Singh did not test positive for the virus, and the court considered the fact that
there were no confirmed cases of the virus in CCCF. Also, in Judge Wilson’s
two cases, the petitioners were relying upon alleged unsanitary and unsafe
conditions at CCCF based on the CDC’s guidance pertaining to COVID-19

just like Bystron.3 Nonetheless, Judge Wilson, in Saillant, 2020 WL 1891854,
*5, found that “CCCF has adequately addressed [petitioner’s] concerns
regarding CCCF’s preventive measures,” and that “[petitioner] is not entitled

to habeas corpus relief because he has not otherwise made an individualized
showing that he is entitled to such relief.” (citing Verma, 2020 WL 1814149,
at *5-7). Bystron, like Saillant, is not elderly, and although he has
hypertension and alleges that his condition makes him more susceptible to

complications if he does contract COVID-19, his condition is admittedly

3Since the court in Saillant and Singh discussed in detail CCCF’s
“significant action to prevent the spread of COVID-19 in the facility”, as well
as the averments in Reid’s Declaration, which is essentially the same one
submitted in this case, the court does not repeat them herein. See Saillant,
2020 WL 1891854, *5.
under control with medication. Further, similar to the petitioners in Saillant
and Singh, Bystron “does not allege that he has been diagnosed with

COVID-19, he does not [demonstrate] that he has any symptoms of the
disease, and he does not allege that he has been directly exposed to the
disease.” Id. Thus, “[a]bsent any of those allegations, his claim amounts to

an argument that he is entitled to a writ of habeas corpus because he is
detained and subjected to a generalized risk of contracting COVID-19”, and
“[s]uch a claim, …, is insufficient to establish entitlement to a writ of habeas
corpus.” Id. (citing Verma, 2020 WL 1814149, at *5–7 (requiring a

particularized showing of the grounds for habeas corpus relief); cf. Raia, [954
F.3d 594], 2020 WL 1647922, at *2 [(3d Cir. April 2, 2020)] (“[T]he mere
existence of COVID-19 in society and the possibility that it may spread to a

particular prison alone cannot independently justify compassionate release
[under the First Step Act].”)).
At bottom, the court concurs with Judge Wilson in Saillant and Singh,
and finds that since there are presently no confirmed cases at CCCF, it

appears that the prison is adequately complying with hygiene directives and
recommendations for prisons, and Bystron’s speculation that sometime in
the future the prison will have confirmed cases of COVID-19 and he will be

at risk are not sufficient to show irreparable harm. As Hoover, concludes,
(Doc. 5 at 25), “Petitioner, …, cannot show Respondents are deliberately
indifferent particularly where he alleges no lack of medical care in a facility

with zero confirmed COVID-19 cases.”
Since the first two ‘“most critical” factors of likelihood of success on the
merits and irreparable harm have not been satisfied, the court does not

address the two remaining factors. See Reilly, 858 F.3d at 176, 179.
In short, as the court in United States v. Gabelman, 2020 WL 1430378,
at *1 (D.Nev. Mar. 23, 2020), succinctly stated: “The court acknowledges that
the spread of COVID-19 may be acutely possible in the penological context,

but the court cannot release every detainee at risk of catching COVID-19
because the court would be obligated to release every detainee.” Thus,
Bystron’s complaint for emergency injunctive relief will be denied.

Next, the court considers petitioner’s claim that his continued detention
by ICE since December 2019 violates his constitutional due process rights
alleging that there is no indication that his removal to Poland will occur in the
reasonably foreseeable future. As mentioned, Bystron’s removal cannot

occur now since his appeal of the IJ’s removal order is still pending with the
BIA.
Since Bystron’s has been convicted of a criminal offense subjecting

him to removal and since his appeal is still pending with the BIA and his order
of removal is not yet administratively final, the authority for his mandatory
detention by ICE falls under 8 U.S.C. §1226(c). See Davydov v. Doll, 2020

WL 969618, *2 (M.D.Pa. Feb. 28, 2020) (citations omitted). “An individual
detained under §1226(c) may be released only if the Attorney General
decides that release is necessary to protect a witness and that the individual

is not a flight risk and does not pose a danger to society.” Id. (citing
§1226(c)(2)). As such, “section 1226(c) does not give the Attorney General
any authority to release these [individuals] on bond.” Id. (citations omitted).
The court concurs with the conclusion of the court in Davydov, 2020

WL 969618, *3, that “to the extent that the Third Circuit’s holdings in Diop
and Chavez-Alvarez were grounded in the canon of constitutional avoidance,
those holdings do not survive the Supreme Court’s decision in [Jennings v.

Rodriguez, 583 U.S. ---, 138 S.Ct. 830 (2018)].” (citing Guerrero-Sanchez v.
Warden York Cty. Prison, 905 F.3d 208, 222 & n.11 (3d Cir. 2018)). The
Third Circuit in Borbot v. Warden Hudson County Correctional Facility, 906
F.3d 274, 278 (3d Cir. 2018), explained that “[t]he Court held in Jennings that

Ԥ1226(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.” (citation omitted)

(emphasis original). However, the Third Circuit stated that “Jennings did not
call into question our constitutional holding in Diop that detention under
§1226(c) may violate due process if unreasonably long.” Id. Thus, “only an

individualized as applied constitutional challenge to [§1226(c)] remains for
Petitioner and those in similar circumstances.” Davydov, 2020 WL 969618,
*3 (citing Dryden v. Green, 321 F.Supp. 3d 496, 501-02 (D.N.J. 2018)).

As the court in Dryden, 321 F.Supp. 3d at 502, explained:
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.

(citing Jennings, 138 S. Ct. at 846-47).
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.” See Vega v. Doll, No. 3:17-1440, 2018 WL
3756755, at *3 (M.D. Pa. Aug. 8, 2018). In making this determination,
this Court has set forth the following four (4) factors to be considered:
“(1) whether detention has continued beyond the average times
necessary for completion of removal proceedings which were identified
in Demore; (2) the probable extent of future removal proceedings; (3)
the likelihood that removal proceedings will actually result in removal;
and (4) the conduct of both the alien and the government during the
removal proceedings.” See Hernandez v. Sabol, 823 F. Supp. 2d 266,
273 (M.D. Pa. 2011).

Davydov, 2020 WL 969618, *4.
No doubt that “[t]he ‘most important’ factor is the first factor, the
duration of detention already experienced by the petitioner.” Id. (citation

omitted). Bystron has been detained by ICE at CCCF since December of
2019. The 5-month duration of Bystron’s detention does not weigh in favor
of granting him habeas relief regarding his constitutional challenge to his

continued detention by ICE. See id. (citing Santos v. Lowe, No. 1:18-cv-1553,
2019 WL 1468313, at *3-4 (M.D. Pa. Apr. 3, 2019) (concluding that an alien
who had been detained for fifteen (15) months was not entitled to a bond
hearing); Crooks v. Lowe, No. 1:18-cv-47, 2018 WL 6649945, at *2 (M.D.

Pa. Dec. 19, 2018) (denying a bond hearing to a petitioner who had been
detained for eighteen (18) months because “his case ha[d] proceeded
through the removal process at a reasonable pace and there [was] no

indication on the record that the government ha[d] improperly or
unreasonably delayed the proceedings”); Rosales v. Lowe, No. 1:18-cv-
1302, 2018 WL 6650304, at *3 (M.D. Pa. Dec. 19, 2018) (concluding that a
petitioner who had been detained for less than fifteen (15) months was not

entitled to a bond hearing); Fernandez v. Lowe, No. 3:17-cv-2301, 2018 WL
3584697, at *5 (M.D. Pa. July 26, 2018) (concluding that fifteen (15)-month
detention was not unconstitutional because the alien’s proceedings had
“proceeded at a reasonable pace”)).4

Regarding the second factor, the probable extent of future removal
proceedings, Bystron’s recent appeal to the BIA is still pending and it is not
clear as to when a decision will be rendered. Further, the losing party may

then file a petition for review with the Third Circuit after the BIA issues a
decision. Thus, the court simply cannot determine how long future removal
proceedings will take in this case but it notes that they appear to be
proceeding at “a reasonable pace.”

As to the third factor, i.e., the “likelihood that removal proceedings will
actually result in removal”, Hoover notes that “there is no question of whether
[Bystron’s removal] proceedings will result in removal where at least one

charge of removability has already been sustained and there have not been
unreasonable delays in the removal proceedings.” (Doc. 5 at 51 n. 8).
However, in Bystron’s case, the court finds that “Respondent has not
conclusively shown that Petitioner’s [appeal] is so utterly frivolous or lacking

4As Hoover notes, (Doc. 5 at 51 n. 8), “[o]n November 7, 2018, this
Court granted a bond hearing for a detainee who had been held pursuant to
1226(c) for fourteen months”, in Bah v. Doll, Civil No. 3:18-cv-1409 (M.D. Pa.
Nov. 7, 2018), however, “[t]hat decision is distinguishable from Bystron’s
because the length of detention at issue in Bah was almost three times the
length of Bystron’s.”
in merit such that the Court can rely upon this factor to deny habeas corpus
relief to Petitioner at this time.” Davydov, 2020 WL 969618, *5.

As to the fourth factor, the court finds that there is no evidence that
either party has acted in bad faith during the removal proceedings or
intentionally caused any delay. As such, “the absence of an improper delay

[in the removal proceedings] is not ultimately determinative of the instant
constitutional analysis.” Id. (citation omitted).
Hoover states that the government has a compelling interest along with
the public in petitioner’s continued detention pending the completion of his

removal proceedings, since he has been found to be ineligible for release
because he poses a danger to society based on his criminal record.
As Hoover explains, (Doc. 5 at 50), in her brief:

When an alien is detained incident to removal proceedings under 8
U.S.C. §1226(c), as Petitioner has been, those proceedings
themselves supply extensive safeguards against the arbitrary
deprivation of liberty. As of this filing, Petitioner has been detained for
approximately 5 months. During the course of his detention, Petitioner
has availed himself of those procedural safeguards. Since he was
taken into custody, Petitioner has had two evidentiary hearings on his
relief applications, been denied relief, and appealed that decision to
the Board of Immigration Appeals.

In short, based on the stated factors, and despite the possibility of an
unknown period of continued detention by ICE due to the ongoing removal
proceedings, the court finds that Bystron’s 5-month detention under
§1226(c), while his appeal to the BIA is pending, is not unconstitutional and
does not exceed a presumptively reasonable period of detention. The court

finds that based on the Supreme Court’s decision in Jennings, in which “[t]he
Supreme Court, …, has explicitly rejected the practice of reading an implicit
time limit into §1226(c)”, Davydov, 2020 WL 969618, *3, Bystron’s detention

by ICE for about five months is not unreasonably long under the facts of this
case.5
Thus, Bystron’s §2241 habeas petition challenging the constitutionality
of his continued detention by ICE under §1226(c) while his removal

proceedings are pending will be denied.

III. Conclusion
Bystron’s complaint for emergency injunctive relief seeking his
immediate release from CCCF will be denied. Bystron’s petition for writ of
habeas corpus pursuant to 28 U.S.C. §2241 on the ground that his continued

5If Bystron’s continued detention becomes prolonged and he is subject
to an additional undefined period of further detention during the pendency of
his removal proceedings, he can file another §2241 habeas petition to try
and make a showing which would entitle him to an individualized bond
hearing before an immigration judge.
detention by ICE violates his due process rights will be denied. An
appropriate order shall issue.

s/ Malachy E. Mannion _____
MALACHY E. MANNION
United States District Judge

Dated: April 27, 2020

20-602-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408705. Public record. Not legal advice.