Buleishvili v. Hoover

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

GIORGI BULEISHVILI, :

Petitioner : CIVIL ACTION NO. 1:20-1694

v. : (JUDGE MANNION)

AMANDA HOOVER, et al.,1 :

Respondent :

MEMORANDUM

Pending before the court is the report of Magistrate Judge Susan E.

Schwab, which recommends that the court grant the petition for writ of

habeas corpus pending in the above-captioned matter and order that an

immigration judge conduct a bond hearing in accordance with Santos v.

Warden Pike Cty. Corr. Facility, 965 F.3d 203 (3d Cir. 2020). (Doc. 17).

Based upon the court’s review of the record, Judge Schwab’s report will be

ADOPTED IN ITS ENTIRETY.

1 Also named as respondents are Simona Flores-Lund, an ICE Field

Office Director; William Barr, the former Attorney General; and Kirstjen

Nielsen, a former Secretary of the Department of Homeland Security. Judge

Schwab has correctly determined that the only proper respondent in this

case is Warden Amanda Hoover. As such, she recommends dismissal of

any other named respondent. No party has objected to Judge Schwab’s

report in this respect. The court finds no clear error of record with regard to

this recommendation and, therefore, any respondent, other than Warden

Hoover, will be dismissed.

The background and procedural history of the instant action set forth

by Judge Schwab in her report has not been challenged in any material

fashion. Judge Schwab’s report sets forth the following:

Buleishvili, who is a native and citizen of Georgia, was

admitted to the United States in 2003 as a nonimmigrant visitor.

In 2012, his status was adjusted to that [of] a lawful permanent

resident. In 2017, Buleishvili was convicted in the United States

District Court for Southern District of New York of conspiracy to

commit mail fraud, wire fraud, and health-care fraud, and he was

sentenced to 34 months in prison.

On August 27, 2019, the United States Department of

Homeland Security, Immigration and Customs Enforcement

(“ICE”) charged Buleishvili with being subject to removal from the

United States pursuant to Section 237(a)(2)(A)(iii) – 8 U.S.C.

§1227(a)(2)(A)(iii) – of the Immigration and Nationality Act

(“INA”) because he was convicted of an aggravated felony. On

February 14, 2020, ICE took Buleishvili into custody, and has

detained him since then. He is detained at the Clinton County

Correctional Facility.

Buleishvili’s first master calendar hearing was scheduled

for March 26, 2020. Buleishvili requested a continuance of that

hearing. About a month later, Buleishvili appeared for his next

master calendar hearing, but that hearing was adjourned after

the foreign-language interpreter was unable to connect to the

courtroom.

Another master calendar hearing was scheduled, but that

hearing was also adjourned. This hearing was adjourned at the

request of Buleishvili. His counsel explains that for Buleishvili “to

be eligible to apply for adjustment of status based upon his

marriage to the mother of his three children, he needed to legally

marry her[,]” but first he had to finalize his divorce from his then-

current wife, and the New York matrimonial court was closed due

to COVID-19.

On June 25, 2020, a master calendar hearing was held.

Although Buleishvili challenged the notice to appear, the IJ

sustained the allegations and charges of removability. An

individualized hearing was set for August 6, 2020, on Buleishvili’s

applications for asylum, withholding of removal under the INA,

and protection under the Convention Against Torture (“CAT”).

After Buleishvili’s divorce was completed he requested that

he be allowed to marry whiled (sic) detained at the Clinton

County Correctional Facility. And Buleishvili filed a motion to

adjourn the August 6, 2020 hearing so that he could “marry his

finance in order to apply for readjustment of status.” He explained

that he has three children, who are United States citizens, with

his fiancé, who is also a United States citizen, and that both his

children and his fiancé have had difficulties because of his

detention. The IJ denied that motion. And there were logistical

hurdles to obtaining a marriage license due to COVID-19

concerns and Buleishvili’s incarceration. But working with

counsel for ICE, Buleishvili’s counsel arranged for the issuance

of a marriage license and a video ceremony such that Buleishvili

did not need to be moved from the Clinton County Correctional

Facility to get married. The marriage ceremony was scheduled

for August 7, 2020.

At the August 6, 2020 hearing, counsel for ICE consented

to an adjournment of the hearing so that Buleishvili could

proceed with his marriage and his eventual application for a

green card. Another individual hearing was scheduled for

October 13, 2020.

Buleishvili’s new wife filed a Form I-130 “Petition for Alien

Relative,” which was approved. That hurdle cleared, Buleishvili

then filed a Form I-485 “Application to Register Permanent

Residence or Adjust Status,” and a Form I-601 “Application for

Waiver of Grounds of Inadmissibility.”

On September 17, 2020, Buleishvili, through counsel, filed

the current petition for writ of habeas corpus contending that his

continued detention without a bond hearing violates due process.

He requests that the court issue a writ of habeas corpus and

conduct a bond hearing. He also requests attorney fees and

“such further relief as the Court deems just and proper.”

(Doc. 17, pp. 2-5) (record citations omitted).

While briefing was ongoing in the instant action, on October 22, 2020,

the petitioner had a hearing before the IJ. On November 24, 2020, the IJ

issued a decision denying the petitioner’s applications for relief and ordering

him removed from the United States to Georgia. On December 1, 2020, the

petitioner appealed the IJ’s decision to the Board of Immigration Appeals

(“BIA”). There is no indication on the record as to the status of that appeal.

In her report, Judge Schwab applied the four-factor standard set forth

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

and concluded that two factors weighed in favor of a finding that the

petitioner’s detention without a bond hearing has become unreasonable and

two factors weighed against such a finding. Those factors consider the

duration of detention, the likelihood that detention will continue, the reasons

for the delay, and whether the conditions of confinement “are ‘meaningfully

different[ ]’ from criminal punishment.” Id. at 211. Given that the petitioner

faces the possibility of lengthy continued confinement while he pursues his

BIA appeal and given the conditions under which he is detained, including

his medical concerns, Judge Schwab concluded that due process demands

that the petitioner be given a bond hearing.

Respondent has objected to Judge Schwab’s report and

recommendation arguing that the petitioner’s detention has not become

unreasonable. To this extent, respondent argues that the petitioner’s

detention continues to fulfill the purpose of facilitating deportation and

protecting against flight or dangerousness, and that ICE is lawfully detaining

the petitioner for removal because his criminal record places him within the

ambit of §1226(c). As a result, respondent argues that the petitioner’s

detention has not become unreasonably prolonged or arbitrary.

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. '636(b)(1); 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, Asatisfy

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) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987) (explaining judges should give some review to every report and

recommendation)). Nevertheless, 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.

Although Judge Schwab found that two of the Santos factors weigh

against a finding that the petitioner’s continued detention without a bond

hearing has become unreasonable: the first factor that considers the duration

of the alien’s detention, which the Third Circuit has identified as the “most

important factor,” Santos, 965 F.3d at 211, and the third factor that considers

the reasons for any delay, respondent challenges these findings in the

objections. In doing so, respondent argues that these factors do not weigh

slightly against a finding of unreasonableness as determined by Judge

Schwab, but weigh heavily against any finding of unreasonableness.

However slightly, Judge Schwab determined that the above Santos

factors weigh against a finding of unreasonableness. The court has reviewed

Judge Schwab’s determination with respect to these factors and finds no

clear error of record. Therefore, the court will overrule the respondent’s

objections and adopt Judge Schwab’s findings as to these factors.

As to the remaining factors, Judge Schwab found that the second

factor, whether the petitioner’s detention is likely to continue, weighs in favor

of a finding of unreasonableness. In doing so, Judge Schwab determined

that the petitioner filed an appeal of the IJ’s decision to the BIA, the BIA had

yet to set a briefing schedule and that it could take months for the BIA to

decide the appeal. She further determined that the petitioner’s intention of

appealing any adverse decision by the BIA would “add months more in

prison.” Santos, 965 F.3d at 212. Given these considerations, Judge Schwab

found that the likelihood that the petitioner’s detention will continue supports

a finding of unreasonableness.

Respondent objects to Judge Schwab’s finding on the second factor

arguing that whether the petitioner wins or loses his appeal is speculative

and that, even if he loses his appeal, if he is still detained six months after

he files his appeal, ICE will provide him with a bond hearing, thereby

providing him with any due process that is required. Upon review, Judge

Schwab’s analysis of this second factor is directly in line with that of Santos.

The court in Santos considered both any potential time it would take for the

BIA to issue its decision and, if the BIA dismissed the petitioner’s appeal, the

time it would take for the petitioner to file and the court to review any appeal,

as relevant to this factor. The court finds no clear error on this point.

Additionally as to this factor, respondent cites to the Executive Office

for Immigration Review Adjudication Statistics2 and argues that, based on

these statistics, despite the growing number of cases before the BIA, the

completion rate of appeals is comparatively faster, and that, because the

petitioner is detained, his appeal will proceed through the review process

faster than a person who is not detained. Initially, these statistics were not

before Judge Schwab when she rendered her report and recommendation.

Moreover, the statistics cited by respondent do not speak to the processing

of appeals for detained versus non-detained individuals. The court will,

therefore, overrule the respondent’s objections on this basis.

Finally, as to the fourth factor, whether the conditions under which the

petitioner is confined differ meaningfully from criminal punishment, Judge

Schwab determined that the petitioner is confined at the Clinton County

Correctional Facility which houses pre-trial and convicted detainees, as well

as ICE detainees. Citing to petitioner’s affidavit, Judge Schwab determined

that he is confined to his cell for more than 23 hours a day, he is allowed only

30 minutes in the morning to use the bathroom and shower and another 15

minutes later in the day to use the restroom and call his wife. While

2 https://www.justice.gov/eoir/page/file/1248506 (last accessed

February 18, 2021).

respondents argued that inmates at the Clinton County Correctional Facility

are not confined to their cells 23 hours a day unless in disciplinary

segregation or medical isolation, Judge Schwab noted that the respondent

failed to cite any evidence in support of such an assertion. Judge Schwab

considered the petitioner’s concerns regarding his contraction of COVID-19,

but provided that it was unnecessary for her to determine whether the

petitioner actually has or had COVID-19 given that the petitioner’s conditions

of confinement, which included being confined with criminals and being

confined to his cell 23 hours a day, weighed in favor of a finding of

unreasonableness.3

Due to the COVID pandemic, respondent argues that CDC guidelines

and policies suggest that an individual who exhibits symptoms be medically

isolated for 10-14 days, and that this can result in a detainee being subject

to isolation for 23 hours a day for that time period pending COVID testing

results or recovery. Respondent argues, however, that this is not common

practice at the Clinton County Correctional Facility because it is a medium

security facility. Respondent argues that the petitioner’s affidavit

3 As noted by Judge Schwab, petitioner had filed a separate petition

for writ of habeas corpus in this court seeking immediate release from

custody based on his concern that he may be exposed to and contract

COVID-19. Buleishvili v. Hoover, Civil Action No. 1:20-607. That petition was

denied.

demonstrates that he was confined for an extended period due to his

symptoms and not due to any regular practice at the facility. As a result,

respondent argues that the petitioner’s conditions of confinement were not

punitive or unreasonable.

Upon review, even if true that petitioner was placed in lockdown due to

his symptoms, respondent’s materials do not address the petitioner’s

contentions with respect the conditions of confinement while in lockdown for

his symptoms. For instance, the petitioner claims that he “wanted to see a

doctor or nurse,” but “[i]nstead of receiving medical attention, [he] kept being

ignored,” and was “given a ticket” for banging on his cell door to try to get

medical attention. (Doc. 16-4). He further claims that he was “denied

accommodations to talk to [his] family” and “had to refuse to eat to have

someone pay attention to [him] and allow [him] to call [his] wife.” (Id.). Such

conditions can reasonably be found to be punitive and support a finding of

unreasonableness with respect to this final Santos factor.

In light of all of the foregoing, the court will overrule the respondent’s

objections to the report and recommendation of Judge Schwab and adopt

the report and recommendation in its entirety. An appropriate order shall

issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: February 22, 2021

20-1694-01