Elyardo v. Lowe

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LOFUL ELYARDO, :

Petitioner :

: No. 1:23-cv-01089

v. :

: (Judge Kane)

PATRICK LECHLEITNER,1 :

Respondent :

MEMORANDUM

Before the Court is a habeas corpus petition filed under 28 U.S.C. § 2241 through which

pro se Petitioner Loful Elyardo (“Elyardo”) asserts that his continued detention without a bond

hearing by United States Immigration and Customs Enforcement (“ICE”) pending his removal

from the United States violates his right to due process. For the following reasons, the Court will

grant the petition and order the Government to provide Elyardo an individualized bond hearing.

I. BACKGROUND

Elyardo entered the United States at John F. Kennedy Airport in New York, New York

on July 14, 1999, and subsequently became a lawful permanent resident on December 17, 2001.

(Id. at 6.) On January 6, 2015, he was arrested in Henrico County, Virginia for the sale of

marijuana. (Id. at 5–6, 26–27.) The Henrico County District Court issued a warrant for his

1 Because Petitioner has been transferred from this district to a facility located in the Western

District of Pennsylvania, see (Doc. No. 11), the Court has substituted Patrick Lechleitner, the

Deputy Director and Senior Official Performing the Duties of the Director of United States

Immigration and Customs Enforcement, see ICE Leadership, UNITED STATES IMMIGRATION AND

CUSTOMS ENFORCEMENT, https://www.ice.gov/leadership (updated July 3, 2023), as the

Respondent in this action. See Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004) (noting that “when

the Government moves a habeas petitioner after [he] properly files a petition naming [his]

immediate custodian, the District Court retains jurisdiction and may direct the writ to any

respondent within its jurisdiction who has legal authority to effectuate the prisoner’s release”);

accord Anariba v. Dir. Hudson Cnty. Corr. Ctr., 17 F.4th 434, 445 (3d Cir. 2021). Any

references to “Respondent” in this opinion shall be construed as references to Mr. Lechleitner.

arrest on April 21, 2015, based on his failure to appear in court on the marijuana charge. (Id. at

11–12.) He was arrested on April 24, 2015. (Id.) On May 19, 2015, he pleaded guilty to

possession with intent to deliver marijuana and contempt of court and was sentenced to twelve

months of incarceration for the marijuana charge and thirty days of incarceration for the

contempt charge. (Id. at 5, 26–28.)

On January 7, 2016, Elyardo was arrested in Henrico County and charged with armed

robbery and using a firearm during the commission of a felony. (Id. at 5, 22–23, 29–30.) He

pleaded guilty to the charges on July 5, 2016. (Id. at 22–23.) He was sentenced to a ten-year

term of imprisonment, with six years suspended and three years of mandatory imprisonment.

(Id. at 29–30.)

On November 1, 2019, Elyardo was arrested in Grayson County, Virginia and charged

with assault by mob. (Id. at 5–8.) He pleaded guilty to a lesser charge of assault and battery and

was sentenced to a one-year term of imprisonment on January 24, 2020. (Id. at 10.)

On June 22, 2022, ICE served Elyardo with a notice to appear that charged him as

removable from the United States because he had been convicted of two crimes involving moral

turpitude, because he had been convicted of two aggravated felonies, and because he had been

convicted of violation of a controlled substances statute. (Doc. No. 9-2 at 5.) Elyardo was taken

into ICE custody on June 23, 2022. (Doc. No. 9-7 at 1.)

Elyardo applied for asylum and withholding of removal on August 9, 2022. (Doc. No. 9-

3 at 2.) In doing so, he admitted the charges in the notice to appear and conceded that he was

removable from the United States. (Id.) An immigration judge denied his request for asylum

and withholding of removal on November 14, 2022, and ordered him to be removed to South

Sudan. (Id. at 2, 14.) Elyardo appealed to the Board of Immigration Appeals (“BIA”), which

remanded the case for further consideration by an immigration judge on June 26, 2023. (Doc.

No. 9-5 at 3–5.) Elyardo’s immigration proceedings remain pending. The Court takes judicial

notice that Elyardo’s immigration case is currently scheduled for a hearing before an

immigration judge on February 1, 2024. See Automated Case Information, EXECUTIVE OFFICE

FOR IMMIGRATION REVIEW, https://acis.eoir.justice.gov/en/caseInformation (last visited Nov. 28,

2023).

Elyardo filed the instant petition challenging his continued detention by ICE on June 16,

2023, and the Court received and docketed the petition on June 29, 2023. (Doc. No. 1 at 9.)

Briefing on the petition is complete and it is ripe for judicial review. (Doc. Nos. 8, 10, 12.)

Elyardo has additionally moved to expedite resolution of the petition. (Doc. No. 2.)

At the time he filed this case, Elyardo was detained in Pike County Correctional Facility,

located in this district. On August 11, 2023, Elyardo moved to transfer the case to the United

States District Court for the Western District of Pennsylvania because he had been transferred to

Moshannon Valley Correctional Center after the filing of this case. (Doc. No. 11.) The Court

denied the motion on October 23, 2023, noting that when a Section 2241 habeas corpus petition

is filed in the petitioner’s district of confinement and the petitioner is subsequently transferred to

another district, the original court retains jurisdiction over the petition. (Doc. No. 14.) The

Court additionally directed Respondent to provide information as to whether Elyardo remained

in ICE custody because an independent search of ICE’s online detainee locator system indicated

that he was no longer in ICE custody. (Doc. No. 15.) Respondent responded to the Court’s

Order on November 22, 2023, and stated that Elyardo remains in ICE custody and that any

results to the contrary on ICE’s detainee locator system were likely due to ICE’s records listing

Elyardo under his country of birth, Egypt, rather than his country of citizenship, South Sudan.

(Doc. No. 16.) Accordingly, because Elyardo remains in ICE custody and the petition is fully

briefed, the petition is now ripe for the Court’s review.

II. DISCUSSION

Elyardo is detained pursuant to 8 U.S.C. § 1226(c). (Doc. No. 8 at 6; Doc. No. 10 at 1.)

Section 1226(c) does not by its terms limit the length of time that the government may detain

aliens awaiting removal. See Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018). But petitioners

may nonetheless bring as-applied constitutional challenges under the Due Process Clause of the

Fifth Amendment if their continued detention under Section 1226(c) has become unreasonably

prolonged. See German Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 208–09 (3d

Cir. 2020).

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

factor is the duration of detention.” See 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.” See id. (quoting Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 478

(3d Cir. 2015)).

Having reviewed Elyardo’s petition in light of the above standard, the Court will grant

his request for a writ of habeas corpus. The most important factor in the analysis is the duration

of Elyardo’s detention. Elyardo has been detained for approximately nineteen (19) months.

Several courts in this district have recently required ICE to conduct bond hearings for petitioners

detained for a similar length of time. See, e.g., Williams v. Hoover, No. 3:19-cv-01619, 2020

WL 905600, at *1–3 (M.D. Pa. Feb. 25, 2020) (requiring bond hearing for petitioner detained for

approximately twenty months); Rodriguez-Castillo v. Lowe, No. 1:19-cv-01000, 2020 WL

820154, at *2–3 (M.D. Pa. Feb. 19, 2020) (requiring bond hearing for petitioner detained for

nineteen months); Chikerema v. Lowe, No. 1:18-cv-01031, 2019 WL 3891086, at *2–4 (M.D.

Pa. Aug. 19, 2019) (requiring bond hearing for petitioner detained for approximately seventeen

months).

The likelihood of continued detention also weighs in favor of habeas corpus relief.

Elyardo’s underlying immigration case has been remanded by the BIA for further proceedings by

an immigration judge and is scheduled for a hearing before an immigration judge on February 1,

2024. Given that the case is not scheduled for a hearing for approximately two months and that

Elyardo could appeal the immigration judge’s decision to the BIA and any subsequent

unfavorable decision by the BIA to a United States Court of Appeals, it appears that Elyardo’s

detention could continue for many more months.

The reasons for the delay are neutral. It appears from the record that the delays in the

underlying removal proceeding are largely due to Elyardo appealing the immigration judge’s

ruling, but a petitioner should not be punished for pursuing good faith challenges to the

government’s removal case against him. See German Santos, 965 F.3d at 211 (citing Chavez-

Alvarez, 783 F.3d at 476–77).

Finally, the conditions of Elyardo’s detention are also neutral. Although Elyardo asserts

that the conditions of his confinement are not meaningfully different from criminal detention,

that assertion is based on the conditions in Pike County Correctional Facility. Elyardo has

subsequently been transferred to Moshannon Valley Correctional Center, but he has not sought

to supplement his petition with any facts regarding the conditions of his detention in that facility.

Given the lengthy duration of Elyardo’s detention to this point and the likelihood that the

detention will continue for many more months, the Court concludes that his continued detention

without a bond hearing violates his right to due process. The Court will accordingly grant the

petition for writ of habeas corpus and direct Respondent to provide Elyardo with an

individualized bond hearing within twenty-one (21) days, at which the Government shall bear the

burden of proof. See, e.g., Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274, 279 (3d

Cir. 2018) (noting that the government bears the burden of proof in bond hearings conducted

under Section 1226(c)). Elyardo’s motion to expedite will be denied as moot.

III. CONCLUSION

For the foregoing reasons, the Court will grant Elyardo’s petition for writ of habeas

corpus, order Respondent to provide Elyardo with an individualized bond hearing within twenty-

one (21) days, and deny Elyardo’s motion to expedite as moot. An appropriate Order follows.

s/ Yvette Kane _

Yvette Kane, District Judge

United States District Court

Middle District of Pennsylvania