Diahn v. Lowe

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TROKON MORRIS DIAHN, : Civ. No. 1:24-CV-1936

:

Plaintiff, : (Judge Munley)

:

v. : (Chief Magistrate Judge Bloom)

:

CRAIG LOWE, et al., :

:

Defendants :

REPORT AND RECOMMENDATION

Petitioner Trokon Morris Diahn, an alien in immigration custody

currently housed at the Pike County Correctional Facility, filed a petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his

continued detention without a bond hearing. (Doc. 1). The writ requests

Diahn’s immediate release or, in the alternative, an individualized bond

hearing before an immigration judge (“IJ”), where the government would

bear the burden of showing that Diahn’s continued detention is

necessary. ( at 24). For the following reasons, we recommend the court

grant the petition and order a bond hearing before an IJ.

I. Background

Diahn was born in August of 2001 in an Ivorian refugee camp to

Liberian parents fleeing Liberia’s civil war and the assassination of

Diahn’s uncle. (Doc. 1 ¶ 11). Diahn never set foot in Liberia: his family

was admitted to the United States as refugees in 2003 and have lived in

the Philadelphia area ever since. ( ¶ 12). Diahn’s father, stepmother,

and eight siblings are all United States citizens, and Diahn’s mother is a

lawful permanent resident. ( ). Diahn has apparently never sought

citizenship nor permanent residency.

At the age of 15, Diahn was involved in a fight with other high

school students. (Doc. 1 ¶ 14). As a result, Diahn incurred criminal

charges, with which he was charged as an adult, pled guilty to one count

of aggravated assault, and was sentenced to 23 months of confinement.

( ). Shortly after his release, in March of 2020, Diahn was arrested

again and charged with fifteen counts related to alleged bank fraud and

identity theft. (Doc. 9-2 at 2). In September of 2022, he pled guilty to

conspiracy to commit bank fraud. (Doc. 1-7 at 5-32). Diahn was

sentenced to time served (33 months and 25 days, for an expected release

date on or around January 7, 2023), plus two years of supervised release.

( at 33-46).

On December 16, 2022, while serving the remainder of his sentence,

Diahn was charged with being a removable alien pursuant to 8 U.S.C.

§§ 1227(a)(2)(A)(ii) and (iii), as an alien convicted of two crimes of moral

turpitude, and as an alien convicted of an aggravated felony, respectively.

(Doc. 1 ¶ 16). He appeared in the Baltimore Immigration Court in

January of 2023 before IJ Golparvar, who advised Diahn of the various

methods by which he could attempt to resist removal. (Doc. 15 at 7).

Diahn, acting , eventually applied for adjustment of status, an

inadmissibility waiver as to the same, asylum, withholding of removal,

and protection under the Convention Against Torture. ( at 17). Diahn

appeared before IJ Golparvar again in April of 2023, but because Diahn’s

various applications for relief were still pending, the IJ adjourned the

matter to allow United States Citizenship and Immigration Services

(“USCIS”) time to rule on those applications. (Doc. 16-9 at 3-4). IJ

Golparvar speculated that the ruling might be available in a month’s

time. ( ). Diahn appeared before IJ Golparvar twice more in June, once

in July, and once in August of 2023, and at all these appearances, the

matter was continued as the parties awaited USCIS’s decisions. (Docs.

16-10 - 16-13). USCIS denied the applications on September 1, 2023.

(Doc. 16-14 at 4).

In October of 2023, Diahn appeared before IJ McDermott at the

Philadelphia Immigration Court. (Doc. 16-14). IJ McDermott

acknowledged that he was empowered to reconsider USCIS’s denials but

ultimately found all of Diahn’s applications were properly denied. ( at

56). Diahn appealed to the Board of Immigration Appeals (“BIA”), and

in April of 2024, that appeal was denied, making his removal order

administratively final. (Doc. 1-3 at 2-6).

In May of 2024, Diahn appealed his removal to the Third Circuit

Court of Appeals and requested they appoint counsel for the appeal.

(Doc. 1 ¶ 19). In October of 2024, the Court ordered Diahn’s petition for

review transferred to the Fourth Circuit Court of Appeals because

Diahn’s immigration proceedings had been initiated at the Baltimore

Immigration Court, and the change to a Philadelphia Immigration Court

was made without a formal change of venue. ( ¶ 20). Diahn also filed

a motion with the BIA to reopen his case, which was denied in October of

2024, but which Diahn may still appeal to the Fourth Circuit. ( ¶ 21,

Doc. 1-4 at 2).

Diahn avers that, since September of 2024, he has been cooperative

with Immigration and Customs Enforcement (“ICE”) in their efforts to

procure travel documents to facilitate his removal to Liberia. (Doc. 1 ¶¶

22-23). Those efforts have not been fruitful—Diahn alleges that an ICE

official indicated to him that the travel documents were not forthcoming,

and that Liberia was to blame. ( ). The Government has not

controverted this statement nor presented evidence that travel

documents have been obtained.

Although Diahn did not initially seek a stay of removal along with

his appeal to the Third Circuit, he did so with the Fourth Circuit in

January of 2025. ( Docs. 12-13). The Fourth Circuit granted a

temporary stay of removal through January 16 (Doc. 12-1 at 2), and then

on January 15, 2025, formally stayed Diahn’s removal pending review of

his appeal. (Doc. 13-1 at 1). The parties agree that the effect of the

Fourth Circuit’s stay is to effectively “regress” Diahn’s status as being

detained pursuant to 8 U.S.C. § 1226(c). (Docs. 12 at 1, 15 at 11-12, n. 3).

The parties also agree that Diahn has been in ICE custody since

November 1, 2023, and has been detained at the Pike County

Correctional Facility for the majority of his detention. (Doc. 15 at 11).

Diahn argues that his 18-month detention pursuant to 8 U.S.C.

§ 1226(c) without a bail hearing is unreasonable and a violation of the

due process clause of the Fifth Amendment. He asks the court to issue a

writ of habeas corpus ordering either his release or an individualized

bond hearing before an IJ. As explained below, we recommend the Court

grant the writ and order an individualized bond hearing.

II. Discussion

a. Individualized Bond Hearings for Persons Detained Under

§ 1226(c) – Standard of Review

The petitioner is being held pursuant to 8 U.S.C. § 1226, which

distinguishes between two categories of removable aliens: those held

under Section 1226(a) who may be released on conditional parole, and

those held under Section 1226(c), which permits conditional parole only

if release is necessary for witness protection purposes and the alien can

demonstrate they are neither a danger to their community nor a flight

risk. , 583 U.S. 281, 288-89 (2018). “[A]n alien

detained under § 1226(a) must be afforded a bond hearing before an

immigration judge to determine if the alien’s detention is necessary while

he or she awaits immigration proceedings.”

, 905 F.3d 208, 214 (3d Cir. 2018). But Section 1226(c)’s

mandatory detention of certain persons, including aliens convicted of

certain enumerated crimes, does not require a hearing to begin or

continue an alien’s detention under that statute. 8 U.S.C. § 1226(c);

583 U.S. at 288.

The Supreme Court has held that while “[d]etention during removal

proceedings is a constitutionally permissible part of” the removal process,

especially prolonged detention nonetheless implicates due process.

, 538 U.S. 510, 531 (2003). Considering when a detention

would qualify as especially prolonged, the Court noted that

detention under Section 1226(c) is typically less than 90 days, and in the

85 percent of cases featuring no appeal by the detainee, “removal

proceedings are completed in an average time of 47 days and a median of

30 days. In the remaining 15% of cases, in which the alien appeals . . .

appeal takes an average of four months [.]” at 530. The Court found

the petitioner in was not due a hearing because the length of his

detention (six months) was only “somewhat longer than average” and the

delay was largely due to petitioner’s decision to exercise his appellate

rights. at 531.

After , the Third Circuit Court of Appeals considered the

issue of due process in the context of detention under Section 1226(c) in

, 656 F.3d 221 (3d Cir. 2011) and again in

, 783 F.3d 469 (3d Cir. 2015).

In , the Third Circuit explained that Section 1226(c) “implicitly

authorizes detention for a reasonable amount of time, after which the

authorities must make an individualized inquiry into whether detention

is still necessary to fulfill the statute’s purposes of ensuring that an alien

attends removal proceedings and that his release will not pose a danger

to the community.” 656 F.3d at 231. The Court held that at “a

certain point [,]” continued detention under Section 1226(c) “becomes

unconstitutional,” at which time due process requires an individualized

hearing in which the Government bears the burden to justify the

detention by showing the detainee is either a flight risk or a danger to

the community. at 232-33. The Third Circuit did not draw a specific

temporal line in the sand, instead finding established detention

up to six months was reasonable, but after six months, “continued

detention without inquiry into its necessity becomes more and more

suspect as detention continues [.]” at 234.

In , the Third Circuit held that continued detention

under Section 1226(c) without a bond hearing “certainly” became

unreasonable after one year. , 783 F.3d at 478. However,

to the extent that created a Third Circuit rule that

detention under Section 1226(c) became presumptively unreasonable

after one year, the Supreme Court abrogated that rule in .

, 965 F.3d 203, 209 (3d

Cir. 2020). While disapproved of a temporal rule, it left intact

the proposition that unreasonably long detentions under Section 1226(c)

violate due process unless an individualized bond hearing shows

detention is necessary to serve the goals of that statute.

, 906 F.3d 274, 278 (3d Cir. 2018);

, 965 F.3d at 210.

After , the Third Circuit revisited Section 1226(c) in

where the court “distilled from and

a non-exhaustive list of four factors to consider in assessing whether an

alien’s detention has grown unreasonable.” , No. 1:22-

CV-1031, 2022 WL 3084304, at *5 (quoting ) (citation

modified). Those four factors are: (1) the duration of detention so far; (2)

the likelihood of continued detention; (3) if either party has improperly

caused delay, and; (4) the conditions of confinement, particularly if they

are “‘meaningfully different’ from criminal punishment.”

, 965 F.3d at 211 (quoting , 783 F.3d at 478).

b. The Factors Show a Hearing is Necessary

Here.

Below, we consider the factors and conclude that

Diahn’s detention without a hearing has become unreasonable. Thus, we

recommend the court grant his writ of habeas corpus and order an

individualized bond hearing in front of an IJ.

The first factor, the duration of the detention, is the

“most important” of the four. , 965 F.3d at 211. As

discussed, Diahn has been in ICE custody for approximately 19 months

since November 1, 2023. That is significantly longer than the one year

which Third Circuit found objectionable in and more

than four times longer than the four-month average the Supreme Court

identified in . But it is shorter than the detention of the

petitioner in (31 months). at 207. Courts in this

district have found that 18 months’ detention is unreasonably long in

some cases but not in others. , No. 1:23-

CV-1089, 2023 WL 8259252, at *3 (M.D. Pa. Nov. 29, 2023) (finding 19

months of detention unreasonable) , No. 1:18-CV-47,

2018 WL 6649945, at *2 (M.D. Pa. Dec. 19, 2018) (finding 18 months

detention reasonable because the case had “proceeded through the

removal process at a reasonable pace [.]”).

Cases finding this period of time reasonable seemingly turn on

factors other than the length of detention. For example, in

, the Court held an 18-month period of detention was reasonable but

explained that this was because the petitioner had received a bond

hearing after eight months of detention. , 1:20-CV-1054,

2021 WL 268996, at *3 (M.D. Pa. Jan. 27, 2021);

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

2021) (petitioner held pursuant to § 1226(a) for 18 months was not due a

hearing because only applies to subsection (c) and

persons detained pursuant to subsection (a) get an initial bond hearing).

But in other cases, courts have determined that detention for 18 months

(or less) was unreasonable and required a bond hearing. ,

2022 WL 3084304, at *5 (18 months detention held unreasonable);

, No. CV 20-3849 (SDW), 2020 WL 2111028, at *2

(D.N.J. May 4, 2020) (12 months detention held unreasonable);

, No. 2:20-CV-3220 (BRM), 2020 WL 1864583, at *4

(D.N.J. Apr. 14, 2020) (12 months detention held unreasonable);

, No. 4:17-CV-02176, 2019 WL 3302236, at *6 (M.D.

Pa. July 23, 2019) (12 months detention held unreasonable); ,

No. CV 3:18-1409, 2018 WL 5829668, at *1 (M.D. Pa. Nov. 7, 2018) (14

months detention held unreasonable).

In our view, this case is in line with those finding eighteen months

an unreasonable period of detention. Particularly because, as discussed

below, this case has not moved through the removal process at a normal

pace. We conclude this factor weighs in favor of granting a hearing.

The second factor considers the likelihood of continued detention.

The Government argues that “this factor relies on unhelpful

hypothesizing of future events, and improperly requires litigants to argue

to this Court the merits of their position at the procedural level.” (Doc.

15 at 26). Despite that, the Government urges us to find this factor

weighs against holding a hearing, arguing that Diahn’s future is “quite

clear” because the Fourth Circuit will deny his petition for review. ( ).

They argue that the Fourth Circuit holding in Diahn’s favor is “unlikely

given the BIA’s previous review.” ( ). We note that the Government

made a similar argument earlier in this case, arguing in December of

2024 that Diahn’s “removal to Liberia is not only reasonably foreseeable,

but scheduled to occur within the next [45] days.” (Doc. 8 at 11). That

removal did not occur. We mention this only to emphasize, as the

Government did, that their only avenue for argument on this factor

necessarily involves speculation.

There is no question that Diahn will remain in detention for some

amount of time while the Fourth Circuit considers his appeal. On the

one hand, we hesitate to credit the admittedly speculative argument that

because Diahn is inching closer to a final outcome, we may assume he

will not be detained for a considerable period past what he has already

endured. Additionally, there is uncertainty injected by the apparent

failure to secure Liberia’s cooperation in this matter. On the other hand,

we need not bury our heads in the sand as to the case’s status: the

Government is correct that Diahn’s legal options to extend the life of the

case are mostly exhausted, and we agree that it is reasonably likely the

Fourth Circuit rules on Diahn’s appeal relatively soon. Given the myriad

uncertainties here, we conclude this factor is neutral.

The third factor considers if the delay is attributable to either party.

The Government urges us to consider this factor as being neutral,

arguing that the “proceedings have moved forward at the normal rate[.]”

(Doc. 15 at 27). We disagree. First, we note that suggested the

average time for a case like this that is being appealed is roughly four

months, and this case has reached 19 months. Second, we do not think

that IJ Golparvar would have scheduled five different hearings over five

months in anticipation of USCIS having ruled on Diahn’s applications if

it was “normal” for USCIS to take five months to rule on those

applications. Finally, and most impactfully, we note that Diahn’s appeal

was before the Third Circuit Court of Appeals for over four months before

the Court transferred the matter to the Fourth Circuit due to an improper

venue. Neither party has suggested how or why the improper venue

change occurred, but we are hesitant to conclude that it occurred due to

any action by Diahn as the petitioner. We presume the error, wherever

it occurred, to be unmalicious, but conclude that it caused four months of

delay. For all those reasons, we conclude this factor weighs in favor of

granting a hearing.

Finally, as to the fourth factor, the parties agree that Diahn’s

present conditions of confinement are essentially indistinguishable from

criminal incarceration and that this factor weighs in favor of a hearing.

(Docs. 12 at 5, 15 at 28). We concur. 965 F.3d at

212-13 (finding that detention in Pike County Correctional Facility was

“indistinguishable from criminal punishment” and that “strongly favor[s]

a finding of unreasonableness.”).

In sum, we conclude three of four factors, including

the “most important” factor, weigh in favor of a hearing. Given those

findings, we have little difficulty concluding that due process demands

Diahn be granted an individualized bond hearing. We therefore

recommend the Court grant the writ and order such a hearing before an

immigration judge.

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED

that the petition for the writ of habeas corpus (Doc. 1) be GRANTED, and

an individualized bond hearing held within 30 days of the Court’s order.

The parties are further placed on notice that pursuant to Local Rule

72.3:

Any party may object to a magistrate judge’s proposed

findings, recommendations or report addressing a motion or

matter described in 28 U.S.C. § 636 (b)(1)(B) or making a

recommendation for the disposition of a prisoner case or a

habeas corpus petition within fourteen (14) days after being

served with a copy thereof. Such party shall file with the clerk

of court, and serve on the magistrate judge and all parties,

written objections which shall specifically identify the

portions of the proposed findings, recommendations or report

to which objection is made and the basis for such objections.

The briefing requirements set forth in Local Rule 72.2 shall

apply. A judge shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made and may accept,

reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. The judge,

however, need conduct a new hearing only in his or her

discretion or where required by law, and may consider the

record developed before the magistrate judge, making his or

her own determination on the basis of that record. The judge

may also receive further evidence, recall witnesses or

recommit the matter to the magistrate judge with

instructions.

Submitted this 11th day of July 2025.

Daryl F. Bloom