Moises Acevedo v. Decker

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ALEJANDRO MOISES ACEVEDO, : Civil No. 1:20-CV-01679

:

Petitioner, :

:

v. :

: Judge Jennifer P. Wilson

THOMAS DECKER and ANGELA :

HOOVER, :

:

Respondents. : Magistrate Judge Martin C. Carlson

MEMORANDUM

This is a habeas corpus case under 28 U.S.C. § 2241 brought by an

immigration detainee who is detained pursuant to 8 U.S.C. § 1226(c). The case is

presently before the court on a report and recommendation issued by United States

Magistrate Judge Martin C. Carlson, which recommends denying the petition

without prejudice, and objections to the report and recommendation filed by

Petitioner Alejandro Moises Acevedo (“Acevedo”). For the reasons that follow,

the report and recommendation is adopted in its entirety.

BACKGROUND AND PROCEDURAL HISTORY

Acevedo is a native of the Dominican Republic and a lawful permanent

resident in the United States. (Doc. 1 at 1.) On April 30, 2018, Acevedo was

convicted of possession with intent to distribute 500 grams or more of cocaine in

the United States District Court for the District of Florida and sentenced to thirty

months in prison. (Id. at 1–2.) The Department of Homeland Security (“DHS”)

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then initiated removal proceedings against Acevedo on March 27, 2020. (Id. at 2.)

During the removal proceedings, Acevedo conceded that he was statutorily barred

from seeking asylum and withholding of removal due to his drug conviction, but

he nonetheless sought relief under the United Nations Convention Against Torture

(“CAT”). (Id.) An Immigration Judge (“IJ”) denied Acevedo’s request for relief,

and he then appealed to the Board of Immigration Appeals (“BIA”). (Id.)

Acevedo filed the petition for writ of habeas corpus that initiated the present

case on September 15, 2020, asserting that his continued detention without a bond

hearing violates the Due Process Clause of the Fifth Amendment. (Id. ¶ 22.)

Respondents filed a response to the petition on October 14, 2020, and Acevedo

filed a reply brief on October 28, 2020. (Docs. 5–6.)

Judge Carlson addressed the petition in a report and recommendation on

November 17, 2020. (Doc. 7.) Applying the four-factor standard set forth in

Santos v. Warden Pike Cty. Corr. Facility, 965 F.3d 203, 211 (3d Cir. 2020), the

report and recommendation concludes that Acevedo’s detention has not become

unreasonably prolonged and accordingly recommends that the petition be denied.

(Doc. 7 at 15–18.)

Acevedo filed objections to the report and recommendation along with a

supporting brief on December 1, 2020. (Docs. 8, 8-1.) Respondents filed a brief in

opposition to the objections on December 15, 2020, and Acevedo then filed a reply

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brief on December 22, 2020, making the report and recommendation ripe for the

court’s review. (See Docs. 9, 12.)

During the period of time in which the parties were briefing Acevedo’s

objections, the BIA issued a decision in Acevedo’s removal case. (See Doc. 13 at

4–5.) The BIA concluded that an IJ needed to make additional findings of fact in

accordance with the Third Circuit’s holdings in Myrie v. Att’y Gen., 855 F.3d 509

(3d Cir. 2017) and Quinteros v. Att’y Gen., 945 F.3d 772 (3d Cir. 2019). (Doc. 13

at 5.) The BIA accordingly remanded the case and required the IJ on remand to

“issue a new decision on [Acevedo’s] application for deferral of removal under the

CAT.” (Id.)

STANDARD OF REVIEW

When a party objects to a magistrate judge’s report and recommendation, the

district court is required to conduct a de novo review of the contested portions of

the report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3);

Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). The district court may

accept, reject, or modify the magistrate judge’s report and recommendation in

whole or in part. 28 U.S.C. § 636(b)(1). The district court may also receive

further evidence or recommit the matter to the magistrate judge with further

instructions. Id. “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

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the recommendations of the magistrate judge to the extent it deems proper.”

Weidman v. Colvin, 164 F. Supp. 3d 650, 653 (M.D. Pa. 2015) (citing Rieder v.

Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000)).

DISCUSSION

Although there is no statutory limit on the length of time a detainee may be

detained under 8 U.S.C. § 1226(c), Jennings v. Rodriguez, 583 U.S. __, 138 S. Ct.

830, 846 (2018), a petitioner may still bring an as-applied constitutional challenge

alleging that his continued detention has become unconstitutional under the Due

Process Clause of the Fifth Amendment. Santos, 965 F.3d at 208–09. When

considering whether the petitioner’s detention has become unconstitutional, “[t]he

most important factor is the duration of detention.” Id. at 211. In addition to the

duration of the petitioner’s detention, the court must also consider “all the other

circumstances” of the detention, including (1) “whether the detention is likely to

continue,” (2) “the reasons for the delay, such as a detainee’s request for

continuances,” and (3) “whether the alien’s conditions of confinement are

‘meaningfully different’ from criminal punishment.” Id. (quoting Chavez-Alvarez

v. Warden York Cty. Prison, 783 F.3d 469, 478 (3d Cir. 2015)).

The report and recommendation considered the above factors and

determined that Acevedo’s continued detention does not violate the Constitution.

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(Doc. 7 at 15–18.) Acevedo raises three objections to this conclusion. (Doc. 8-1.)

The court will consider these objections seriatim.

Acevedo’s first objection is that Judge Carlson erred by not treating his

detention as suspect under Santos given that his detention has continued for longer

than five months. (Id. at 3.) In Santos, the Third Circuit noted that detention that

lasts beyond five months “becomes more and more suspect” the longer it

continues. Santos, 965 F.3d at 211. The court clarified, however, that no

presumption of reasonableness or unreasonableness attaches to any duration of

detention. Id. Courts therefore are under no obligation to treat detention that lasts

for a period of longer than five months as presumptively suspect. Id.

In this case, Judge Carlson thoroughly analyzed the length of Acevedo’s

detention and concluded that it was not suspect. (Doc. 7 at 15–16.) The court sees

no reason to depart from this well-reasoned conclusion and will accordingly

overrule Acevedo’s first objection.

Acevedo’s second objection is that Judge Carlson did not give sufficient

weight to the fact that his detention is likely to continue. (Doc. 8-1 at 4.) In the

report and recommendation, Judge Carlson finds that the likelihood of continued

detention “weighs slightly” in Acevedo’s favor, given that there is “potential for

further extensive proceedings” in the underlying removal proceeding. (Doc. 7 at

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16–17.) Acevedo objects to this conclusion, noting that there is “a strong

likelihood of continued litigation” in his underlying removal case. (Id.)

A district court considering whether a detainee’s continued detention under

§ 1226(c) is constitutional must consider “whether the detention is likely to

continue.” Santos, 965 F.3d at 211. “When the alien’s removal proceedings are

unlikely to end soon, this suggests that continued detention without a bond hearing

is unreasonable.” Id.

In this case, the BIA’s December 18, 2020 decision supports Acevedo’s

contention that his detention is likely to continue, as the BIA has remanded

Acevedo’s removal case for further fact finding by an IJ. (See Doc. 13 at 4–5.)

Thus, although the report and recommendation notes that there is potential for

extensive litigation in the underlying removal proceeding, that potential now

appears to be more likely in light of the BIA’s remand of the case, and this factor

accordingly weighs more in Acevedo’s favor under Santos than it did prior to the

BIA’s decision.

Nevertheless, determining the effect that the BIA’s decision will have on the

duration of Acevedo’s detention still requires speculation. On remand, the IJ

might find in Acevedo’s favor, which could end the removal case in short order.

Either party might file another appeal to the BIA once the IJ has issued a new

decision, which could extend the duration of Acevedo’s detention. The court

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cannot state with certainty whether Acevedo’s removal proceedings “are unlikely

to end soon.” Santos, 965 F.3d at 211. Thus, although this factor weighs more

heavily in Acevedo’s favor than it did before the BIA’s decision, the court still sees

no reason to depart from Judge Carlson’s conclusion that Acevedo’s detention is

constitutional, as the likelihood that Acevedo’s detention will continue for a

significant amount of time remains in question.

Acevedo’s third objection is that Judge Carlson erred by failing to consider

the fact that he is detained in a facility in which the conditions of his confinement

do not differ from those individuals who are incarcerated in the facility pursuant to

criminal charges. (Doc. 8-1 at 4–5.)

A district court considering a petitioner’s detention under § 1226(c) must

consider whether the conditions of the petitioner’s detention are “meaningfully

different” from criminal punishment. Santos, 965 F.3d at 211. “[I]f an alien’s

civil detention under § 1226(c) looks penal, that tilts the scales toward finding the

detention unreasonable. And as the length of detention grows, so does the weight

that we give this factor.” Id. (internal citation omitted).

Here, Acevedo argues that the conditions of his confinement are not

meaningfully different from criminal punishment because he “is currently being

held in a Pennsylvania county jail ‘under conditions similar to those used to house

persons accused of serious crimes.’” (Doc. 8-1 at 5 (quoting Aneury R.T.M. v.

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Green, No. 18-CV-14908, 2019 WL 3543670, at *3 (D.N.J. Aug. 5, 2019))).

Respondents contend that although Acevedo is housed in a facility with individuals

who have been accused of serious crimes, the conditions of his confinement differ

from those individuals’ conditions of confinement, as immigration detainees like

Acevedo “are housed in either dormitory style housing or cell blocks,” both of

which “contain day rooms with television and game availability.” (Doc. 9 at 5–6.)

Respondents also note that no immigration detainees, unless they are housed in

disciplinary segregation or medical isolation, are confined to their cells for twenty-

three hours a day. (Id. at 6.)

Acevedo is correct that the report and recommendation does not specifically

address the conditions of his confinement in its analysis of whether his detention is

constitutional. When that factor is considered as required by Santos, it tilts in

Acevedo’s favor. See Chavez-Alvarez, 783 F.3d at 478 (finding that detention

appeared to be punitive in nature where detainee was “being held in detention at

the York County Prison with those serving terms of imprisonment as a penalty for

their crimes”).

That finding, however, is not by itself sufficient to conclude that Acevedo’s

detention has become unconstitutional. Other courts in this district have

considered cases in which detainees were detained under § 1226(c) in facilities that

also housed criminal defendants for approximately the same amount of time that

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Acevedo has been detained and have concluded that the detention did not violate

the Constitution. See, e.g., Tomlinson v. Doll, No. 4:20-CV-01369, 2020 WL

7049531, at *4 (M.D. Pa. Oct. 13, 2020) (concluding that detention for eight

months was constitutional); report and recommendation adopted, No. 4:20-Cv-

01369, 2020 WL 7048287, at *1 (M.D. Pa. Dec. 1, 2020); James v. Doll, No. 1:19-

CV-01440, 2020 WL 820152, at *3 (M.D. Pa. Feb. 19, 2020) (holding that

detention for “less than nine months” was constitutional); Ohaimhirgin v. Lowe,

No. 1:18-CV-01934, 2018 WL 6650270, at *3 (M.D. Pa. Dec. 19, 2018) (holding

that detention for “approximately nine months” was constitutional).

Like the petitioners in those cases, Acevedo has been detained under §

1226(c) for approximately nine months in conditions that are similar to the

conditions in which criminal defendants are confined. The court finds no reason to

depart from this body of case law, and accordingly finds that Acevedo’s continued

detention does not violate the Constitution, despite the fact that his conditions of

confinement do not significantly differ from the conditions in which criminal

defendants are confined. The court will therefore adopt the report and

recommendation in its entirety and deny the petition without prejudice to

Acevedo’s right to file a renewed petition at some future time if his detention

becomes unreasonable.

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CONCLUSION

For the foregoing reasons, Judge Carlson’s report and recommendation is

adopted in its entirety, Acevedo’s objections are overruled, and the petition is

denied without prejudice. An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: January 13, 2021

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