Barradas-Jacome v. Lowe

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ALEXIS FERNANDO : CIVIL ACTION NO. 1:22-CV-1412

BARRADAS-JACOME, :

: (Judge Conner)

Petitioner :

:

v. :

:

CRAIG A LOWE, :

:

Respondent :

MEMORANDUM

This is a habeas corpus case filed pursuant to 28 U.S.C. § 2241. Petitioner,

Alexis Fernando Barradas-Jacome, an immigration detainee currently detained in

the Pike County Correctional Facility, asserts that his continued detention violates

due process. We will deny the petition without prejudice.

I. Factual Background & Procedural History

Barradas-Jacome is a native and citizen of Mexico who entered the United

States on June 24, 2004 on a visitor visa. (Doc. 7-1 at 3, 5). He subsequently

overstayed his visa without permission. (Id. at 6). Barradas-Jacome was granted

relief under the Deferred Action for Childhood Arrivals (“DACA”) program on

October 11, 2013, but his DACA status expired on August 26, 2017 and has not been

renewed. (Id. at 6, 8).

On December 13, 2019, Barradas-Jacome was convicted of receiving stolen

property in violation of 18 Pa.C.S. § 3925 in the Northampton County Court of

Common Pleas. (Id. at 3). He was sentenced to a term of imprisonment of twelve to

twenty-four months. (Id.) On January 16, 2020, the Department of Homeland

Security (“DHS”) issued a notice of intent to issue a Final Administrative Removal

Order (“FARO”) against Barradas-Jacome based on his conviction for receiving

stolen property. (Id.)

The notice of intent issued by DHS triggered expedited removal proceedings

against Barradas-Jacome pursuant to 8 U.S.C. § 1228, which allows the government

to expedite removal proceedings against aliens who commit aggravated felonies.

An alien who receives such a notice has ten calendar days to file a response to the

notice. 8 C.F.R. § 238.1(c). Barradas-Jacome did not respond to the notice issued

under 8 U.S.C. § 1228 within the required ten days, which prompted DHS to issue a

FARO on February 4, 2020. (Doc. 7-1 at 9).

Barradas-Jacome was paroled from state custody on June 11, 2020 and was

immediately taken into custody by United States Immigration and Customs

Enforcement (“ICE”). (Id. at 8). In June 2020, Barradas-Jacome expressed fear of

persecution or torture, which halted his removal. (Doc. 7-1 at 10-11). His claim was

referred to an immigration judge (“IJ”), who ruled on July 2, 2020 that Barradas-

Jacome had not established a reasonable probability that he would be tortured or

persecuted if he were removed to Mexico. (Id. at 12). Barradas-Jacome appealed to

the United States Court of Appeals for the Third Circuit. See Barradas-Jacome v.

Att’y Gen. U.S., No. 20-2439 (3d Cir. filed July 13, 2020).

On May 7, 2021, Barradas-Jacome filed a motion for custody redetermination.

(Doc. 7-1 at 16). An IJ subsequently conducted a bond hearing on May 12, 2021 and

denied Barradas-Jacome’s request for custody redetermination, concluding that

ICE had established that Barradas-Jacome posed a danger to the community and

was a risk of flight. (Id. at 25-31). He appealed to the Board of Immigration Appeals

(“BIA”), which dismissed the appeal on September 30, 2021. (Id. at 32-37).

On June 30, 2022, our court of appeals denied Barradas-Jacome’s petition for

review and held that Barradas-Jacome was removable from the United States.

Barradas-Jacome v. Att’y Gen. United States, 39 F.4th 111 (3d Cir. 2022). Barradas-

Jacome moved to stay the court’s mandate pending the filing of a petition for writ of

certiorari to the United States Supreme Court, and the court granted the motion on

September 9, 2022. Barradas-Jacome, No. 20-2439, Doc. 69 (3d Cir. Sept. 9, 2022).

Barradas-Jacome filed a petition for writ of certiorari on December 22, 2022.

See Barradas-Jacome, No. 22-595 (U.S. filed Dec. 22, 2022). The Court granted the

government’s motion for extension of time to respond to the petition, and the

government filed a timely response on March 29, 2023. Id.

Barradas-Jacome has been detained in ICE custody since June 11, 2020.

(Doc. 7-1 at 8). This is the second petition for writ of habeas corpus he has filed with

this court to challenge his detention. With respect to the first petition, we denied

relief on January 26, 2022, finding that Barradas-Jacome was not entitled to habeas

corpus relief under the standards of Santos v. Warden Pike Cnty. Corr. Facility, 965

F.3d 203, 208-09 (3d Cir. 2020). See Barradas-Jacome v. Lowe, No. 1:21-CV-1885,

2022 WL 256299, at *2-3 (M.D. Pa. Jan. 26, 2022) (Conner. J.).

Barradas-Jacome filed the instant petition on September 6, 2022, and the

court received and docketed the petition on September 12, 2022. (Doc. 1). He

contends that his continued detention violates the Due Process Clause of the Fifth

Amendment. (Id.) The petition is ripe for review. (See Docs. 1, 7-8). He has

additionally filed a motion to expedite review of the petition. (Doc. 9).

II. Discussion

As we noted in our opinion addressing Barradas-Jacome’s previous habeas

corpus petition, he is detained pursuant to 8 U.S.C. § 1226(c). See Barradas-

Jacome, 2022 WL 256299, at *2. Section 1226(c) does not by its terms limit the

length of time that the government may detain aliens awaiting removal. Jennings v.

Rodriguez, 583 U.S. __, 138 S. Ct. 830, 846 (2018). But petitioners may nonetheless

bring as-applied constitutional challenges if their continued detention under

Section 1226(c) has become unreasonably prolonged under the Due Process Clause

of the Fifth Amendment. Santos, 965 F.3d at 208-09.

When considering the constitutionality of a petitioner’s detention, “[t]he most

important factor is the duration of detention.” Id. at 211. The court, however, 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)).

Having reviewed Barradas-Jacome’s petition in light of the above standard,

we find that he is not entitled to habeas corpus relief at this time. Assuming,

arguendo, that petitioners detained under Section 1226(c) who have already

received a bond hearing may be entitled to a second bond hearing when they have

been detained for an unreasonably prolonged period of time after the first bond

hearing,1 Barradas-Jacome is not entitled to relief because he has not shown that

his continued detention since his May 12, 2021 bond hearing is unconstitutional.

The most important factor in the analysis is the duration of Barradas-

Jacome’s detention. This factor weighs in favor of habeas corpus relief. Barradas-

Jacome has been detained for approximately 22 months since the May 12, 2021

bond hearing. Several courts in this district have required ICE to conduct a bond

hearing after 22 months of detention. See, e.g., Gichuhi v. Doll, No. 3:17-CV-1041,

2018 WL 5660744, at *1 (M.D. Pa. Aug. 21, 2018); Martinez-Paredes v. Lowe, No.

1:17-CV-353, 2017 WL 4883197, at *1-3 (M.D. Pa. Oct. 30, 2017); Miller v. Johnson,

No. 3:14-CV-2263, 2016 WL 4059698, at *2-3 (M.D. Pa. July 5, 2016). Although

petitioners in those cases were seeking initial bond hearings rather than a

subsequent bond hearing like Barradas-Jacome, we find their reasoning instructive

in determining whether Barradas-Jacome’s 22-month detention since his bond

hearing is reasonable. See Diop, 656 F.3d at 232 (noting that unreasonably

prolonged detention might violate Due Process Clause even if petitioner has been

1See Diop v. ICE/Homeland Security, 656 F.3d 221, 232 (3d Cir. 2011) (noting

that a detainee’s continued detention “might still violate the Due Process Clause”

even if the alien has been given “an initial hearing” if his continued detention

becomes “unreasonable or unjustified” (citing Demore v. Kim, 538 U.S. 510, 532

(2003) (Kennedy, J., concurring))), abrogated in nonrelevant part by Jennings, 138 S.

Ct. at 847, as recognized in Guerrero-Sanchez v. Warden York Cnty. Prison, 905 F.3d

208, 220 (3d Cir. 2018). But see Borbot v. Warden Hudson Cty. Corr. Facility, 906

F.3d 274, 279 n. 4 (3d Cir. 2018) (speculating in dicta that the foregoing language in

Diop might only apply when the initial hearing afforded to the petitioner was a

Joseph hearing—that is, a discretionary hearing given to a petitioner at the

beginning of removal proceedings to determine whether the petitioner is properly

detained under 8 U.S.C. § 1226(a) or 8 U.S.C. § 1226(c)—and not when the petitioner

has previously been afforded a bond hearing).

granted an initial hearing); see also Ndungu v. Doll, No. 4:20-CV-2268, 2021 WL

1916700, at *5 (M.D. Pa. Apr. 9, 2021) (noting that reasonableness of period of

detention for petitioner who has been afforded initial bond hearing should be

determined based on the length he has been detained since receiving a bond

hearing), report and recommendation adopted, No. 4:20-CV-2268, 2021 WL 1910083,

at *1 (M.D. Pa. May 12, 2021). We find that this factor only slightly favors habeas

corpus relief, however, because Barradas-Jacome seeks a second bond hearing and

the duration of his detention since his first bond hearing is not substantially longer

than other periods of detention that have been approved by courts in this circuit

following a petitioner’s initial bond hearing. See, e.g., Borbot, 906 F.3d at 280

(declining to find due process violation where petitioner had been detained for

approximately eighteen months following his first bond hearing); Flores-Lopez v.

Lowe, No. 1:21-CV-1839, 2021 WL 6134453, at *2 (M.D. Pa. Dec. 29, 2021) (Conner, J.)

(denying habeas corpus relief where petitioner had been detained for

approximately nineteen months after his first bond hearing).

The likelihood of continued detention weighs against habeas corpus relief.

As Barradas-Jacome acknowledged when he moved to stay the court of appeals’

mandate, his appeal to the Supreme Court is the only factor delaying his removal

from the United States, and if he is unsuccessful in the appeal the government will

be able to promptly remove him from the country. See Barradas-Jacome, No. 20-

2439, Doc. 68. As of the date of this memorandum, the appeal is currently pending

on Barradas-Jacome’s petition for writ of certiorari. The Supreme Court receives

approximately 5,000-6,000 petitions for writ of certiorari in a year and grants

certiorari in only approximately 60-70 cases. SUPREME COURT, A REPORTER’S GUIDE

TO APPLICATIONS PENDING BEFORE THE SUPREME COURT OF THE UNITED STATES 14

(revised Nov. 2022), https://www.supremecourt.gov/publicinfo/reportersguide.pdf.

The Supreme Court also typically rules on a petition for writ of certiorari within six

weeks of the petition being filed. Id. at 15. That period has been extended in

Barradas-Jacome’s case because the Court granted the government’s motion for

extension of time to respond to the petition for writ of certiorari, but the

government timely responded to the petition on March 29, 2023. Thus, based on the

Supreme Court’s average time for disposition of petitions for writ of certiorari and

the slim chance of any particular petition for writ of certiorari being granted,2 there

is a significant likelihood that the appeal will be resolved, and that Barradas-

Jacome’s detention will correspondingly end, in the near future.

The reasons for the delay do not weigh one way or the other. It appears from

the record that the delays in the underlying removal proceeding are largely due to

Barradas-Jacome’s appeals, but a petitioner should not be punished for pursuing

good faith challenges to the government’s removal case against him. See Santos,

965 F.3d at 211 (citing Chavez-Alvarez, 783 F.3d at 476-77).

Finally, the conditions of Barradas-Jacome’s detention weigh in favor of

habeas corpus relief. Barradas-Jacome is detained in the same facility as the

petitioner in Santos, where the court concluded that “despite its civil label,” the

2 We express no opinion on the merits of Barradas-Jacome’s petition for writ

of certiorari. Our conclusion is justified solely by the base rate at which the

Supreme Court grants petitions for writ of certiorari.

petitioner’s detention was “indistinguishable from criminal punishment,” see id. at

213, and respondent has not offered any evidence that would support the court

reaching a contrary conclusion in this case.

Taking the above factors and the other circumstances of his detention into

consideration, we conclude that Barradas-Jacome is not entitled to habeas corpus

relief at this time. Although the duration of his detention and the conditions of his

confinement weigh in favor of granting habeas corpus relief, we find that these

factors are outweighed by the significant likelihood that Barradas-Jacome’s

immigration proceedings will end in the near future combined with the fact that he

has already been afforded a bond hearing. We will accordingly deny the petition

without prejudice to Barradas-Jacome’s right to file a renewed petition for writ of

habeas corpus within a few short months if the circumstances of his detention

change or the Supreme Court grants his petition for writ of certiorari.

III. Conclusion

We will deny the petition for writ of habeas corpus without prejudice.

Barradas-Jacome’s motion to expedite will be denied as moot. An appropriate

order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: March 31, 2023