# McDougall v. Immigration and Customs Enforcement

> District Court, M.D. Pennsylvania · September 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10413771

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 21, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARLON MCDOUGALL, Civil No. 3:23-cv-759
Petitioner (Judge Mariani)
:
WARDEN, PIKE COUNTY .
CORRECTIONAL FACILITY,
Respondent .
MEMORANDUM
Petitioner Marlon McDougall (“McDougall”) is an immigration detainee in the custody
of the United States Department of Homeland Security, Immigration and Customs
Enforcement (“ICE”). He is currently being detained at the Pike County Correctional
Facility, in Lords Valley, Pennsylvania. McDougall commenced this action by filing a
petition for a writ of habeas corpus under 28 U.S.C. § 2241. (Doc. 1). He seeks an
individualized bond hearing. (/d.). The petition is fully briefed and ripe for resolution. For
the reasons set forth below, the Court will deny habeas relief.
I. Factual Background
McDougall is a citizen and native of Guyana. (See Doc. 12-1, p. 4). He became a
lawful permanent resident of the United States on October 24, 1982. (id. at p. 6).
On September 7, 2006, McDougall was arrested in state court and subsequently
charged with carjacking, two counts of assault on a police officer, and statutory burglary.

(Id. at p. 5). On September 19, 2006, McDougall was rearrested and charged with crimes
related to a hit and run and obstruction of police. (/d.). On July 27, 2007, McDougall was
convicted of hit and run and eluding, related to the September 19, 2006 arrest. (/d. at pp. 5-
7). He was sentenced to five years’ incarceration. (/d.). On February 8, 2008, McDougall
was convicted of all four offenses related to the September 7, 2006 arrest. (/d.). He was
sentenced to eight years for the carjacking offense, two years for each count of assault on a
police officer, and one year for statutory burglary. (/d.).
McDougall was taken into ICE custody on August 5, 2022. (ld. at p. 8). He was
charged as removable under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(2)(A)(iii). (Doc. 12-2, p. 4). He challenged his removal, but his claim

was denied by an immigration judge on January 9, 2023, and he was ordered removed to
Guyana. (Doc. 12-5). McDougall appealed this decision to the Board of Immigration
Appeals (“BIA”), which remains pending. (See Doc. 12-12).
McDougall is being detained pursuant to 8 U.S.C. § 1226(c) and has been detained
by ICE for approximately 13 months. In the habeas petition, McDougall argues that his
mandatory, pre-removal detention without a bail hearing has become unreasonable and
thus unconstitutional.
ll. Legal Standard
Under 28 U.S.C. § 2241(c), a prisoner or detainee may receive habeas relief only if
he “is in custody in violation of the Constitution or laws or treaties of the United States.” See

28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). Because McDougall
filed the instant petition while he was detained within the jurisdiction of this Court, is still
currently detained by ICE, and asserts that his continued detention violates due process,
this Court has jurisdiction over his Section 2241 petition. See Zadvydas v. Davis, 533 U.S.
678, 699 (2001); Spencer v. Kemna, 523 U.S. 1, 7 (1998).
Ili. Discussion
In Jennings v. Rodriguez, 583 U.S. —, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018),
the Supreme Court of the United States rejected the premise that 8 U.S.C. § 1226(c)
contains an implicit time limit for pre-removal detention. Jennings, 138 S. Ct. at 846-47.
The United States Court of Appeals for the Third Circuit, however, has explained that
Jennings “did not call into question [the] constitutional holding in Diop [v. !CE/Homeland
Security, 656 F.3d 221 (3d Cir. 2011)] that detention under § 1226(c) may violate due

process if unreasonably long.” Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274,
278 (3d Cir. 2018). Thus, “even after Jennings, an alien lawfully present but detained under
§ 1226(c) can still challenge his detention under the Due Process Clause.” German Santos

v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 210 (3d Cir. 2020).
When reviewing such as-applied challenges to the constitutionality of continued
mandatory detention under Section 1226(c), “[t]he most important factor is the duration of
detention.” See id. at 211. Additionally, the Court must consider the other circumstances of
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.” /d.
(quoting Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 478 (3d Cir. 2015)).
There is no “bright-line” threshold for reasonableness; rather, whether continued detention
is reasonable is a “highly fact-specific” inquiry. /d. at 210 (quoting Chavez-Alvarez, 783
F.3d at 474).
Initially, the Court notes that it cannot grant McDougall release from custody.
Rather, the Court is limited to resolving whether, under the German Santos factors,
McDougall is entitled to an individualized bond hearing to determine if “detention is still

necessary to fulfill [Section 1226(c)]’s purposes of ensuring that an alien attends removal
proceedings and that his release will not pose a danger to the community.” Diop, 656 F.3d
at 231. The Court considers each factor in turn.
With respect to the first, and most important, consideration—duration of detention—
McDougall has been detained in ICE custody since August 5, 2022, a little over 13 months.
District courts in this circuit have frequently found that detention under Section 1226(c) for
just over a year does not, in itself, amount to an arbitrary deprivation of liberty or weigh in
favor of habeas relief. See Gabriel v. Barr, No. 1:20-cv-1054, 2021 WL 268996, at *3 (M.D.
Pa. Jan. 27, 2021) (collecting cases). The decisions cited in Gabriel stand in contrast to

cases where detention was approaching, or exceeded, two years in length. See, e.g.,
German Santos, 965 F.3d at 212 (two-and-a-half years’ detention); Clarke v. Doll, No. 3:20-

cv-31, 481 F.Supp.3d 394, 2020 WL 4933696, at *1 (M.D. Pa. Aug. 24, 2020) (20 months);
Chikerema v. Lowe, No. 1:18-cv-1031, 2019 WL 3891086, (M.D. Pa. Aug. 19, 2019) (over
20 months): Vega v. Doll, No. 3:17-cv-1440, 2018 WL 3756755, at *5 (M.D. Pa. Aug. 8,
2018) (21 months). Consequently, McDougall’s duration of detention—approximately 13
months—does not weigh in favor of relief.
As to whether detention will continue, the Court finds that McDougall’s detention will
likely continue into the foreseeable future. His appeal is still pending before the BIA, and

even if he were to receive an unfavorable decision from the BIA, he could then seek relief
from the Third Circuit. See 8 U.S.C. § 1252(a)(5). This factor supports a finding of
unreasonableness. See German Santos, 965 F.3d at 212.
The reasons for delay provide no support for McDougall’s petition. There is no
evidence that the government has unreasonably delayed the immigration proceedings, nor
that McDougall is operating in anything other than good faith in his pursuit of relief from
removal. During his removal proceedings, McDougall’s case was initially extended to afford
him the opportunity to obtain counsel. (Doc. 12-3, p. 6). McDougall later requested, and

was granted, an extension of time to submit a brief to the BIA. (Docs. 12-8, 12-9). He
requested another extension of time to submit a brief to the BIA, which was denied. (Docs.
12-10, 12-11). Such delays cannot be attributed to either party. Consequently, this factor
does not weigh in favor or against either party.

The final factor to be considered is whether the petitioner's conditions of confinement

are “meaningfully different’ from criminal punishment.” German Santos, 965 F.3d at 211
(quoting Chavez-Alvarez, 783 F.3d at 478). Respondent provides no evidence or details on
McDougall’s current conditions of confinement other than to state that he is “detained in the

same correctional facility as discussed in Santos,” but has only been there for approximately
70 days out of his approximately 10 months of confinement. (Doc. 11, p. 18). While that

may be true, Respondent does not explain how such detention-center conditions differ from
those found in a prison setting. Nevertheless, it must also be noted that McDougall has
failed to even mention this factor. Accordingly, this final consideration does not support
either side’s argument.
When reviewing the totality of the circumstances, as discussed above, the Court
concludes that relief is not warranted. The German Santos factors, on whole, do not militate
in favor of finding that McDougall’s continued mandatory detention under Section 1226(c) is
unreasonable and thus unconstitutional. Only one of the four factors supports McDougall’s
claim. Nonetheless, should this detention become prolonged to the point where it does
become unreasonable, McDougall may file a new Section 2241 petition in the appropriate
court.

IV. Conclusion
The Court will deny McDougall’s petition (Doc. 1) for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 without prejudice to his right to file a new petition in the
appropriate court should his detention become unreasonable. A separate Order shall issue.

GZ V.. WMA,
Robert D. Mariani_
United States District Judge
Dated: September wu , 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413771. Public record. Not legal advice.