DULUE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ABRAHAM GBARBA DULUE, )

)

Petitioner, ) Case No. 3:25-cv-388

)

v. ) Judge Stephanie L. Haines

) Magistrate Judge Patricia L. Dodge

WARDEN OF THE MOSHANNON )

VALLEY PROCESSING CENTER, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

I. Recommendation

It is respectfully recommended that the Petition for a Writ of Habeas Corpus (ECF No. 1)

filed by Abraham Gbarba Dulue (“Petitioner”) pursuant to 28 U.S.C. § 2241 be granted.

II. Report

A. Background

Petitioner is a citizen of Ivory Coast. He entered the United States in 2004 as a refugee and

adjusted to lawful permanent resident status in 2010.

On August 9, 2023, at the end of his term in federal prison for a 2023 conviction in the

United States District Court for the Southern District of Iowa for possession of a firearm by an

unlawful user or addict of a controlled substance, Petitioner was served with a Notice to Appear

in removal proceedings and was placed in the custody of the United States Department of

Homeland Security (“DHS”). In the Notice to Appear, DHS alleged that Petitioner was removable

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) based on his conviction for an aggravated felony. He was

detained pursuant to 8 U.S.C. § 1226(c)(1)(B).

Petitioner had an initial hearing before an Immigration Judge (“IJ”) on August 24, 2023,

and a final hearing on January 2, 2024. At that time, the IJ entered an order of removal. Petitioner

appealed to the Board of Immigration Appeals (“BIA”). The BIA remanded the case to the IJ. On

August 8, 2025, the IJ again entered an order of removal. Petitioner’s appeal to the BIA is pending.

Petitioner filed the instant petition on October 30, 2025. (ECF No. 1.) At that time, he was

detained at the Moshannon Valley Processing Center but has since been moved to the Miami

Correctional Center in Indiana. Respondents filed an Answer on December 9, 2025. (ECF No. 6.)

Petitioner filed a Reply on January 21, 2026. (ECF No. 9.)

B. Legal Standard

The purpose of a writ of habeas corpus is to challenge the legal authority under which an

individual is being held in custody. See, e.g., Keitel v. Mazurkiewicz, 729 F.3d 278, 280 (3d Cir.

2013). The general habeas statute at 28 U.S.C. § 2241 confers jurisdiction on this Court to hear

both statutory and constitutional challenges to Petitioner’s detention. Zadvydas v. Davis, 533 U.S.

678, 687-88 (2001).

C. Discussion

In his petition, Petitioner asserts that his due process rights under the Fifth Amendment

have been violated by his prolonged detention without a hearing. This claim is governed by the

framework set forth by the United States Court of Appeals for the Third Circuit in German Santos

v. Warden Pike County Correctional Facility, 965 F.3d 203 (3d Cir. 2020).

German Santos involved a noncitizen detained by ICE pursuant to 8 U.S.C. § 1226(c). That

statute requires the government to detain noncitizens convicted of certain crimes while they await

decisions in their removal proceedings. Before German Santos, the Third Circuit had already held

“when detention becomes unreasonable, the Due Process Clause demands a hearing, at which the

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Government bears the burden of proving that continued detention is necessary to fulfill the

purposes of the detention statute.” Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011)

(continued detention under § 1226(c) is unconstitutional when it extends beyond a “reasonable”

period); see also Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 474-75 (3d Cir.

2015) (elaborating on the factors to consider in evaluating prolonged detention claims). In Diop,

the Third Circuit reasoned that the constitutionality of mandatory detention “is a function of the

length of the detention.” 656 F.3d at 232. Accordingly, the court explained, it becomes

unconstitutional when detention continues for “an unreasonable length of time without further

individualized inquiry into whether detention is necessary to carry out the purposes of the statute.”

Id. at 233 n. 11 (emphasis added); see also Chavez-Alvarez, 783 F.3d at 475.

After explaining that “our constitutional analysis in Diop and Chavez-Alvarez are still good

law[,]” 965 F.3d at 210,1 the Third Circuit in German Santos established a four-factor, non-

exhaustive, case-by-case balancing test to adjudicate as-applied challenges for noncitizens

asserting that their detention without a bond hearing has become unconstitutionally prolonged. Id.

at 212-13. The court emphasized that “[r]easonableness is a ‘highly fact-specific’ inquiry.” Id. at

210 (quoting Chavez-Alvarez, 783 F.3d at 474).

1 In German Santos, the Third Circuit explained that the Supreme Court’s 2018 decision in

Jennings v. Rodriguez,138 S. Ct. 830 (2018) abrogated only that part of Diop and Chavez-Alvarez

in which the Third Circuit had applied the canon of constitutional avoidance and ruled on what it

found to be § 1226(c)’s statutory requirements. German Santos, 965 F.3d at 208. The Third Circuit

explained in German Santos that Jennings “left the framework for as-applied constitutional

challenges intact.” Id.; see also Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274, 278

(3d Cir. 2018) (“Jennings did not call into question our constitutional holding in Diop that

detention under § 1226(c) may violate due process if unreasonably long.”) Thus, in German

Santos, the Third Circuit reiterated that a noncitizen detained pursuant to § 1226(c) may file a

habeas petition bringing an as-applied due process challenge to his or her “unreasonable”

continued detention without a bond hearing. 965 F.3d at 208-11.

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The first and “most important” factor for the habeas court to consider is the “duration of

detention.” Id. at 211. Although in German Santos the court refused to adopt a presumption of

reasonableness of any specific duration, it recognized that the petitioner’s two-and-a-half-year

detention was “five times longer than the six months that [the Supreme Court in Demore v. Kim,

538 U.S. 510 (2003)] upheld as only ‘somewhat longer than average.’”2 Id. at 211, 212. Here,

Petitioner has been detained since August 9, 2023, i.e., approximately two and a half years. As

Respondents concede (ECF No. 6 at 12), the length of Petitioner’s detention without a bond

hearing weighs strongly in his favor.

The second factor the habeas court must consider is “whether the detention is likely to

continue.” Id. at 211. When a noncitizen’s removal proceedings “are unlikely to end soon, this

suggests that continued detention without a bond hearing is unreasonable.” Id. This factor weighs

in Petitioner’s favor too. His appeal is pending before the BIA; the briefs in that proceeding are

not due until February 20, 2026. Neither this Court nor the parties can predict when the BIA will

decide the appeal. Thus, Petitioner has shown that his detention is likely to continue for some time.

The third factor the habeas court must consider is “the reasons for the delay such as a

detainee’s request for continuances.” German Santos, 965 F.3d at 211. In this analysis, the Court

“ask[s] whether either party made careless or bad-faith ‘errors in the proceedings that causes

unnecessary delay.’” Id. (quoting Diop, 656 F.3d at 234). Courts are not to “hold an alien’s good-

faith challenge to his removal against him, even if his appeals or applications for relief have drawn

out the proceedings” because “[d]oing so, and counting this extra time as reasonable, would

2 In Demore, the Supreme Court rejected a facial challenge to § 1226(c) based on the government’s

representation that detention under that statute typically only lasts between one-and-a-half and five

months. 538 U.S. at 529-30.

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effectively punish [him] for pursuing applicable legal remedies.” German Santos, 965 F.3d at 211

(citations and internal quotation marks omitted). Respondents argue that Petitioner has requested

continuances that account for 5 months of delay. (ECF No. 6 at 14-15.) This argument is based, in

part, on Petitioner’s utilization of much of the relevant appeal periods before filing appeals to the

BIA. These “delays” were not continuances. Petitioner concedes that he utilized a period of 32

days to obtain counsel following his initial hearing and received a 22-day extension for filing his

BIA brief. (ECF No. 9 at 6-7.) These minimal delays in a case of this length are not substantial.

This factor does not favor either side.

The fourth and final factor the habeas court considers is “whether the alien’s conditions of

confinement are meaningfully different from criminal punishment.” Id. As set forth above,

Petitioner is now, and has been since November 1, 2025, at the Miami Correctional Facility in

Indiana. Petitioner asserts that conditions there are substantially similar to criminal detention and

are significantly worse that those at Moshannon. (ECF No. 9. At 8.) He asserts that detainees “are

held in prison settings, wear prison garb, follow strict prison schedules for all activities, and

communication is limited to services of expensive, for-profit providers.” (Id. at 9.) He finally

asserts that relocation across multiple states interferes with family and attorney visits. (Id.)

Respondents have not disputed these reports. Thus, this factor also weighs in Petitioner’s favor.

Accordingly, Petitioner has shown that, when the Court weighs the relevant factors set

forth in German Santos, his detention has become unreasonable and that his continued detention

without a bond hearing violates his due process rights.

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D. Conclusion

For these reasons, it is respectfully recommended that the petition be granted to the extent

that Respondents shall arrange for Petitioner to have a bond hearing before an immigration judge

within 30 days.

Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2

of the Local Civil Rules, the parties may, within fourteen (14) days, file objections to this Report

and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637

F.3d 187, 193 n.7 (3d Cir. 2011).

Dated: February 9, 2026 /s/ Patricia L. Dodge

PATRICIA L. DODGE

UNITED STATES MAGISTRATE JUDGE

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