Dong

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

HUAZHEN DONG, :

Petitioner : CIVIL ACTION NO. 1:2'5-82

V. : (JUDGE MANNIGN)

ANGELA HOOVER, :

Respondent’ :

MEMORANDUM

Pending before the court is a report from United States Magistrate

Judge Susan E. Schwab which recommends that the petition for writ of

habeas corpus filed in the above-captioned matter be deniec. (Doc. 13). The

petitioner filed objections to the report (Doc. 14) to which ‘he: government

responded (Doc. 15). After initially reviewing the report anc objections, the

court ordered the respondent to file supplemental briefing. (Doc. 16). In

response, both parties submitted supplemental briefing. ‘Diocs. 17, 18).

‘ The petitioner named both Angela Hoover, the Warden of the Clinton

County Correctional Facility, and Brian McShane, identified ias the Acting

Field Director, Enforcement and Removal Operations, of mrnigraition and

Customs Enforcement, as respondents. As discussed by Judige Schwab in

her report, only the warden of the prison where the petifiorier is held is

considered a proper respondent. Rumsfeld v. Padilla, 542 U.S. 426, 442

(2004). As such, Brian McShane will be dismissed as a resporident.

Upon review of the record, the court will adopt the report in part and decline

to adopt the report in part as further discussed herein.

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.

2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, «satisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469

(M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987) (explaining judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or not,

the district court may accept, not accept, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge. 28 U.S.C.

§636(b)(1); Local Rule 72.31.

The full background and procedural history of this matter have been

summarized by Judge Schwab in her report. (Doc. 1, pp. 1-4). As neither

party raises any challenge to this aspect of the report, the court adopts Judge

Schwab’s summarization as if fully set forth herein. For purposes of this

memorandum, suffice it to say that the petitioner, an alien in immigration

custody, filed the instant action challenging her continued detention by the

Department of Homeland Security (“DHS’)/Immigration and Customs

Enforcement (“ICE”) pending her on-going removal proceedings. The

petitioner raises two challenges to her continued detention: (1) that she is

not subject to mandatory detention under 8 U.S.C. §1226(c) because she

was never taken into criminal custody and therefore was not “released” from

any form of criminal custody”; and (2) that her continued detention without a

bond hearing has become prolonged and violates her due process rights.

2 Title 8 U.S.C. §1226(c), which provides for mandatory detention of,

among others, aliens convicted of certain crimes, sets forth, in relevant part,

that “[t]he Attorney General shall take into custody any alien who [is

inadmissible or deportable for certain reasons] when the alien is released,

without regard to whether the alien is released on parole, supervised release,

or probation, and without regard to whether the alien may be arrested or

imprisoned again for the same offense.” 8 U.S.C. §1226(c)(1) (emphasis

added). The petitioner believes that because she was sentenced to

(footnote continued on next page)

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In considering the petitioner's claims, Judge Schwab first determined

that the petitioner is, in fact, subject to mandatory detention under §1226(c)

based upon her predicate offense® and despite her argument that she had

never been in criminal custody. In so finding, Judge Schwab relied largely

upon the Supreme Court's decision in Nie/son v. Preap, 586 U.S. 392 (2019).

In Preap, the Court provided that the scope of the term “the alien” in the when

released clause of §1226(c)(1) is “fixed by the predicate offenses identified”

in §1226(c)(1)(A)-(D).* /d. at 408. The Court further found that anyone who

falls under the description of the predicate offenses identified falls under the

probation and never placed into custody in her criminal case, she was never

“released” from custody and, therefore, she does not fall within the “when

the alien is released” clause of §1226(c)(1).

3 The petitioner was convicted under 8 U.S.C. §1324(a)(1)(A)(iii)

(providing criminal penalties for any person who “knowing or in reckless

disregard of the fact than an alien has come to, entered, or remains in the

United States in violation of law, conceals, harbors, or shields from detection,

or attempts to conceal, harbor, or shield from detection, such alien in any

place, including any building or any means of transportation”). She does not

argue that her conviction is not one of the predicate convictions that could

subject her to mandatory detention under §1226(c)(4). She argues only that

because she was never in custody in her criminal case, she was never

released from that custody, and therefore she does not come within the

“when the alien is released” clause of §1226(c)(1).

4 As noted by Judge Schwab, at the time of Preap, §1226(c) had only

two paragraphs. The Laken Riley Act, signed into law on January 29, 2025,

amended §1226(c), adding additional paragraphs. See Laken Riley Act, Pub.

L. No. 119-1, 139 Stat. 3 (Jan. 29, 2025).

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detention mandate even if the Secretary did not arrest them immediately

when they were released. /d. Of import here, the Court found that the “when

the alien is released” language applies only in those cases where the alien

was once in criminal custody. In other situations, when the alien had not been

in criminal custody, the Court found the phrase was irrelevant.® In this regard,

the Court concluded “[iJt follows that both of subsection (c)s mandates — for

arrest and for release — apply to any alien linked with a predicate offense

identified in subparagraphs (A)-(D), regardless of exacty when or even

whether the alien was released from criminal custody.” /d. at 418.

Assuming the petitioner was never in criminal custody, Juclge Schwab

found that it follows she was not arrested by immigration authorities under

§1226(c)(1). However, Judge Schwab found that does not me:an that the

petitioner is not subject to mandatory detention under §1226(c)(«4), as Preap

held that what determines whether someone is subject to mandatory

detention is whether they fall within any of the predicate offenses of

§1226(c)(1), not when — or even whether — they were arrested ty imiiigration

authorities after being released from criminal custody. As such, Judge

Schwab found that the petition should be denied on this basis.

5 Judge ‘Schwab provides a thorough discussion of the: reasons the

Court came to this conclusion in her report. For the sake of brevity, the court

simply incorporates that discussion herein by reference.

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The petitioner has filed objections asking this court to reject Judge

Schwab's finding that she is subject to mandatory detention under §1226(c).

In doing so, she does not dispute that she has a requisite conviction identified

by the mandatory detention provision, but she continues to argue that she

cannot be subject to mandatory detention because she was never “released”

from any form of criminal custody. The petitioner does so acknowledging that

the Board of Immigration Appeals has interpreted Preap, albeit in an

unpublished decision, to mean that the mandatory detention provisions apply

even without any criminal custody whatsoever. (Doc. 1, Ex. E).

The court has carefully reviewed Judge Schwab's analysis of the issue.

Considering that analysis, including the discussion of Preap, the court finds

Judge Schwab's determination that the petitioner is subject to mandatory

detention under §1226(c), despite the fact that she was never “released”

from any form of custody, to be sound. Therefore, the court will overrule the

petitioner’s objections and adopt Judge Schwab's report in this regard.

Next, Judge Schwab considered the petitioner's argument that her

continued detention violates her due process rights. In doing so, Judge

Schwab looked to the Third Circuit's decisions in Diop v. |CE/Homeland Sec.,

656 F.3d 221 (3d Cir. 2011), and Chavez-Alvarez v. Warden York Cty.

Prison, 783 F.3d 469 (3d Cir. 2015), wherein the Third Circuit addressed the

ewe

prolonged detention of aliens under §1226(c). As discussed by Judge

Schwab:

In Diop, applying the cannon of constitutional avoidance,

the Third Circuit held that §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 reasoned that “[a]t a certain point, continued

detention becomes unreasonable and the Executive Branch’s

implementation of §1226(c) becomes unconstitutional unless the

Government has justified its actions at a hearing inquiring into

whether continued detention is consistent with the law’s

purposes of preventing flight and dangers to the community.” /d.

at 232. Thus, the court concluded that when detention becomes

unreasonable, which determination is based on a “fact-

dependent inquiry,” “the Due Process Clause demands a

hearing, at which the Government bears the burden of proving

that continued detention is necessary to fulfill the purposes of the

detention statute.” Id. at 233.

(Doc. 13, pp.17-18).

The Diop court provided that the case for continued detention without

a hearing into its necessity becomes “suspect” when detention continues

past the five-month period identified in Demore v. Kim, 538 U.S. 510, 531

(2003), as the time it generally takes to decide a case in which the alien

chooses to appeal. Diop, 656 F.3d at 234.

In Chavez-Alvarez, the Third Circuit further discussed at what point

continued detention without a bond hearing violates due process:

376

[DJue process requires us to recognize that, at a certain

point - which may differ case by case - the burden to an alien’s

liberty outweighs a mere presumption that the alien will flee

and/or is dangerous. At this tipping point, the Government can

no longer defend the detention against claims that it is arbitrary

or capricious by presuming flight and dangerousness: more is

needed to justify the detention as necessary to achieve the goals

of the statute. As we said in Diop, 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.” /d. at 231. In

Diop’s case, we weighed the goals of the statute against the

personal costs to his liberty resulting from his detention of

roughly two years, eleven months, and concluded that Diop’s

detention was unconstitutional. /d.

Chavez-Alvarez, 783 F.3d at 474-75. As discussed by Judge Schwab, the

Third Circuit concluded in Chavez-Alvarez that “beginning sometime after

the six-month timeframe considered by Demore, and certainly by the time

Chavez-Alvarez had been detained for one year, the burdens to Chavez-

Alvarez's liberties outweighed any justification for using presumptions to

detain him without bond to further the goals of the statute. /d. at 478.

Subsequently, in German Santos v. Warden Pike Cnty. Corr. Facility,

965 F.3d 203 (3d Cir. 2020), the Third Circuit identified a non-exhaustive list

of factors to consider in determining whether an alien’s detention has

become unreasonable. /d. at 210. That list includes: (1) the duration of the

alien's detention; (2) whether the alien’s detention is likely to continue; (3)

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the reasons for any delay; and (4) whether the conditions under which the

alien is confined are “‘meaningfully different’ from criminal punishment” /d. at

211 (quoting Chavez-Alvarez, 783 F.3d at 478).

In considering those factors in this case, Judge Schwab first looked at

the duration of the petitioner’s detention, which the Third Circuit has identified

as the “most important factor.” /d. At the time of Judge Schwab’s report, the

petitioner had been detained a little over nine months. Considering a plethora

of cases from this district considering at what point continued confinement

without a hearing becomes unreasonable, Judge Schwab found that the

petitioner's detention for a little more than nine months had not yet reached

the tipping point when the length of detention would weigh in favor of a bond

hearing.

As to the second German Santos factor, whether the alien’s detention

is likely to continue, Judge Schwab found that the petitioner's detention will

likely continue for some time and exactly how long could not be determined.

Thus, Judge Schwab found that this factor weighs in favor of a finding of

unreasonableness.

With respect to the third factor, the reasons for the delay, Judge

Schwab determined that this factor is neutral. In doing so, she found that

there is no evidence of bad faith on the part of the government. Moreover,

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despite the respondent’s argument that the court should find that the

petitioner has delayed her own proceedings by filing various motions in her

case, Judge Schwab found that the time it takes for the petitioner to file and

litigate her applications and motions should not be held against her. German

Santos, 965 F.3d at 212. Further, Judge Schwab found that there was no

evidence to indicate that the petitioner was doing anything other than

presenting good faith claims and was not trying to purposefully delay her

removal.

Finally, in considering the fourth factor, whether the conditions under

which the alien is confined differ meaningfully from criminal punishment,

Judge Schwab found that the petitioner is detained at the Clinton County

Correctional Facility where she is being held with individuals being punished

criminally. As such, Judge Schwab found the fourth factor weighs in favor of

a finding of unreasonableness. See German Santos, 965 F.3d at 213

(confinement at Pike County Correctional facility was indistinguishable from

criminal punishment). See a/so Chavez-Alvarez, 783 F.3d at 478 (although

termed “civil detention,” confinement at the York County Correctional Facility

with those imprisoned for criminal offenses cannot be differentiated from

penal measures).

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Although some factors weighed in favor of a finding of

unreasonableness, Judge Schwab found that others were either neutral or

weighed against a finding of unreasonableness. Considering that what has

been termed the “most important factor,” i.e., the length of confinement,

weighed against a finding of unreasonableness, Judge Schwab concluded

that due process did not demand a bond hearing in the petitioner's case.

The court has given careful consideration to the report of Judge

Schwab. While the reasoning for recommending that a bond hearing be

denied was sound at the time of the report, circumstances have changed. In

this regard, since the filing of the report and supplemental briefing in this

matter, the petitioner has now been detained for a period of approximately

twenty months without an individualized bond hearing. Further, it appears

that the petitioner faces being detained for several months more. The

Executive Office for Immigration Review's Automated Case Information

System reflects that, on August 20, 2025, the petitioner's adjustment of

status application was denied by the immigration judge.® The petitioner filed

an appeal of that decision to the Board of Immigration Appeals (BIA) on

September 10, 2025. A timely brief in support of that appeal was filed on

6 https://acis. eoir.justice.gov/en/caseinformation (last visited March 10,

2026).

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February 23, 2026. With the briefing schedule having expired, no brief was

received from DHS. At this stage, it is unknown exactly how long it will take

the BIA to decide the petitioner's appeal. However, the potential is for many

more months.

At the current time, the petitioner's detention is now comparable to the

detention at issue in Chavez-Alvarez wherein the Third Circuit granted the | □

habeas petition finding that the petitioner's right to due process was violated

by detaining him under §1226(c) for more than a year and a half at the time

of the court's decision without a bond hearing. Further, as outlined by Judge

Schwab, decisions from this district support a finding that the length of the

petitioner's current detention without an individualized bond hearing is

unreasonable. See, e.g., Baptista v. Lowe, 2024 WL 3410587, at *1 (M.D.

Pa. May 7, 2024) (granting habeas petition of an alien detained for 19

months); Clarke v. Doll, 481 F.Supp.3d 394, 397 (M.D.Pa. 2020) (granting

habeas petition of an alien detained for 20 months); Elyardo v. Lechleitner,

2023 WL 8259252, at *2 (M.D.Pa. Nov. 29, 2023) (granting habeas petition

of an alien detained for approximately 19 months); Malede v. Lowe, 2022

WL 3084304, at *5 (M.D.Pa. Aug. 3, 2022) (granting habeas petition of an

alien detained for nearly 18 months); Bah v. Doll, 2018 WL 5829668, at *1

(M.D. Pa. Nov. 7, 2018) (granting habeas petition where the petitioner had

□□ =

been in custody in excess of 14 months without an individualized bond

hearing).

Given the lengthy duration of the petitioner's detention to this point and

the likelihood that her detention will continue for many more months while

the BIA considers her appeal, the court concludes that the petitioner's

continued detention without an individualized bond hearing violates her right

to due process. As such, the Court will decline to adopt the report in this

respect, grant the petition for writ of habeas corpus, and direct the

respondent to provide the petitioner 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)).

An appropriate order shall issue.

United States District Judge

DATE: 3/13/24

25-82-01

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