GAYLE v. ELWOOD et al

Filing 80

OPINION filed. Signed by Judge Freda L. Wolfson on 8/23/2013. (mmh)

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
SHELDON FRANCOIS
:
:
Petitioner
:
Civil Action No. 12-2806 (FLW)
:
v.
:
:
OPINION
:
JANET NAPOLITANO, et al.,
:
:
Respondents
:
:
________________________________ ___ :

WOLFSON, United States District Judge:
Sheldon Francois (“Petitioner” or “Francois”) is currently being detained by the
Department of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”)
at the Bergen County Jail in Hackensack, New Jersey, under 8 U.S.C. § 1226(c). On
August 5, 2013, Petitioner filed his Third Amended Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241 (the “Third Amended Petition” or “TAP”), in which he
challenges, inter alia, his mandatory detention throughout the duration of his removal
proceedings.

1

According to Respondents

1

2

(hereinafter, “the Government” or

The Third Amended Petition also contains claims on behalf of a class consisting
of individuals claiming to be subjected to unauthorized and/or unconstitutional
mandatory immigration detention under 8 U.S.C. § 1226(c). This Opinion addresses only
Francois’s individual habeas claim.
2
Because I decide only Petitioner’s individual habeas claim in this Opinion, see
supra Footnote 1, it appears that for the purposes of this decision, the only proper
defendant is Defendant Robert Bigott, Warden of the Bergen County Jail, where
Petitioner currently is detained.
1

“Respondents”), this detention is authorized by § 1226(c) and is not unreasonable in
length. For the reasons stated below, the Court grants Gayle’s request for habeas relief,
and directs an Immigration Judge to conduct a bond hearing pursuant to 8 U.S.C. §
1226(a)(2), to determine if Petitioner is a flight risk or danger to the community.
I.

BACKGROUND

Petitioner states that he is a citizen of Trinidad and Tobago and a lawful
permanent resident (“LPR”) of the United States. TAP, ¶ 9. He has lived in the United
States for approximately 20 years, most of the time in New York City. Id. at ¶ 33.
Petitioner has several misdemeanor convictions. In 2011, Petitioner was convicted of
petit larceny under New York State Penal Law § 155.25. He was sentenced to time
served of approximated one day. After satisfying all conditions of parole, Petitioner was
discharged in May 2001. Id. at ¶ 35. Also in 2011, Petition was convicted of criminal
possession of a controlled substance in the seventh degree under New York State Penal
Law § 220.03, was sentenced to time served of approximately one day, and had his driver
license suspended for six months. Id. In March 2012, Petitioner was again convicted for
petit larceny under the same statute as his 2011 conviction, and ultimately sentenced to
30 days of incarceration. Id.

The other named defendants in are Janet Napolitano, Secretary of the DHS; Eric
Holder, United States Attorney General; John Morton, Director of ICE; Juan Osuna,
Director of the Office of Immigration Review; John Tsoukaris, Field Office Director for
Enforcement and Removal Operations, Newark Field Office of ICE; Christopher
Shanahan, Field Office Director for Enforcement and Removal Operations, New York
City Field Office of ICE; Ray Simonse, Acting Field Office Director for Enforcement
and Removal Operations, New York City Field Office of ICE; Joseph Trabucco, Director
of the Delaney Hall Detention Facility; Orlando Rodriguez, Warden of the Elizabeth
Contract Detention Facility; Roy L. Hendricks, Warden of the Essex County Correctional
Facility; Oscar Aviles, Director of the Hudson County Correctional Facility; and Brian
Elwood, Warden of the Monmouth County Correctional Institution.
2

On August 6, 2012, ICE officers arrested Petitioner. ICE charged Petitioner with
removal on the grounds that his (1) 2011 drug possession conviction, and/or (2) 2011 and
2012 petit larceny convictions each rendered him removable3, and subject to mandatory
detention. Id. at ¶ 36. Petitioner did not, and has not, received any hearing to determine if
he is properly included within § 1226(c). TAP, ¶ 9, see In re Joseph, 22 I. & N. Dec. 790
(BIA 2011). Nor has Petitioner received any individualized bond hearing. TAP, ¶ 9, see 8
U.S.C. § 1226(c) (precluding any individual detained under § 1226(c) from obtaining any
individualized bond hearing).
Following his arrest by ICE, Petitioner filed an application for cancellation of
removal pursuant to 8 U.S.C. § 1229b(a) (the “Application”), seeking a form of
discretionary relief from removal available to LPRs who meet certain criteria. TAP, ¶ 37.
Both the IJ and the Government have acknowledged that Petitioner is eligible for such
discretionary relief. Id.
The IJ held two hearings on Petitioner’s Application, on March 18, 2013, and July
12, 2013. Id.; Dkt. No. 63 at 1 (Letter from Francois regarding IJ determination). At the
July 12 hearing, the IJ orally ruled on Petitioner’s Application, granting the Application,
cancelling Petitioner’s removal, and terminating the removal proceedings. TAP, ¶ 41;
Dkt. No. 63 at 1; see also 8 U.S.C. § 1229b(a). The IJ further indicated that a written
decision would be forthcoming, four to six weeks following the oral ruling, after which
time the Government would have 30 days to decide whether to appeal the IJ’s ruling to
the Board of Immigration Appeals (the “BIA”). Dkt. No. 63 at 1. Notwithstanding the

3

Like the applicable statutes and regulations, this Opinion uses the terms
“removal” and “deportation” interchangeably to refer to Petitioner’s immigration
proceedings.
3

IJ’s announcement, Petitioner remains mandatorily detained without any hearing to
determine whether Petitioner should be released on bond, and will continue to be so
detained through any appeal taken by either party. TAP, ¶ 42; see 8 U.S.C. § 1226.
In light of the IJ’s announcement that he intends to cancel Petitioner’s removal,
and given that Petitioner continues to implore this Court to grant Petitioner’s claim for
habeas relief as expeditiously as possible,4 the Court issued a Letter Order on July 25,
2013, instructing the parties to address the application of Diop v. ICE/Homeland Security,
656 F.3d 221 (3d Cir. 2011) to Petitioner’s individual habeas claim. Specifically, I
inquired as to whether the length of Petitioner’s mandatory detention without any hearing
– approaching 12 months at that point – coupled with the fact that the IJ planned to
cancel Petitioner’s removal, implicated the concerns raised in Diop regarding the
constitutionality of prolonged mandatory detention. Following the parties’ responses, on
August 1, 2013, the Court issued another Letter Order granting Petitioner leave to file a
Third Amended Petition to assert an individual habeas claim under Diop. See Dkt. No.
70. On August 5, 2013, Petitioners did so, and on August 15, 2013, Respondents filed
their answer and renewed their motion to dismiss the TAP.5 The sole issue addressed in
this Opinion is Francois’s individual habeas claim under Diop.
II.

JURISDICTION

Under 28 U.S.C § 2241(c), habeas jurisdiction “shall not extend to a prisoner
unless … [h]e is in custody in violation of the Constitution or laws or treaties of the

4

Petitioner, since February 13, 2013, has requested that the Court to consider his
request for a hearing immediately.
5
The Government moved to dismiss both Francois’s individual habeas claim and
the class-wide claims; as stated earlier, I only address Francois’s individual claim in this
decision. See supra Footnote 1.
4

United States.” 28 U.S.C. § 2241(c)(3). A federal court has subject matter jurisdiction
under § 2241(c)(3) if two requirements are satisfied: (1) the petitioner is “in custody,”
and (2) the custody is “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). This Court
has subject matter jurisdiction over the Petition under § 2241 because Petitioner was
detained within the Court’s jurisdiction in the custody of DHS/ICE at the time he filed his
petition, see Spencer v. Kenna, 523 U.S. 1, 7 (1998), and because Petitioner asserts that
his mandatory detention is unreasonable and thus not statutorily authorized by 8 U.S.C §
1226(c) or the Constitution. See Diop v. ICE/Homeland Security, 656 F.3d 221.
III.

ANALYSIS

Section 1226 governs the pre-removal detention of an alien. Section 1226(c)
commands that, for certain categories of aliens, the Attorney General “shall take into
custody any alien … 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.”6 8 U.S.C. § 1226(c)(1).

6

Section 1226(c)(1) provides in full:
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in
section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in
section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of
an offense for which the alien has been sentence[d] to a term of
imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable
under section 1227(a)(4)(B) of this title,
5

An alien detained under § 1226(c) must be detained until his removal is final, regardless
of whether he is a flight risk or danger to the community, unless the Attorney General
determines that the alien should be part of the federal witness protection program, and
provided that detention has not become unreasonably prolonged. See id.; Diop v.
ICE/Homeland Sec., 656 F.3d at 232 (“At 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.”).
The Supreme Court has held that mandatory detention under § 1226(c) does not
violate the constitutional rights of a removable alien, including an LPR. Demore v. Kim,
538 U.S. 510 (2003). In reaching this conclusion, the Supreme Court explained that
“detention during deportation proceedings [is] a constitutionally valid aspect of the
deportation process.” Id. at 523. Nevertheless, the Demore court noted that “‘[i]t is well
established that the Fifth Amendment entitles aliens to due process of law in deportation
proceedings,’” id., and that, in general, detention under § 1226(c) is brief, averaging six
months. Id. at 529-31.
Building off of this reasoning, the Third Circuit in Diop addressed a claim that
mandatory detention for a prolonged period of time may become unreasonable, and thus
unconstitutional. The Diop court agreed with the petitioner’s claim, and held that, “§

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.
6

1226(c) contains an implicit limitation of reasonableness: the statute authorizes only
mandatory detention that is reasonable in length.” Diop v. ICE/Homeland Security, 656
F.3d at 233. The court reasoned that Ҥ 1226(c) yields to the constitutional requirement
that there be a further, individualized, inquiry into whether continued detention is
necessary to carry out the statute’s purpose” after a certain period of time.7 Id. The Third
Circuit, however, rejected any per se length of time that would render detention
unreasonable; instead, the court explained that the determination of the reasonableness of
continued detention “must take into account a given individual detainee’s need for more
or less time, as well as the exigencies of a particular case.” Id. at 234.
In a subsequent decision, the Third Circuit further clarified that: “Diop laid out a
two step-process: a reviewing court must first determine that a detention has been
unreasonably long, and following such a determination, must determine whether the
unreasonable detention is necessary to fulfill § 1226’s purposes as outlined in Diop.”
Leslie v. Attorney General, 678 F.3d 265, 269-70 (3d Cir. 2012). Applying this
framework, the Leslie court concluded that the petitioner’s approximately four years of
detention was unreasonable and failed to serve the purposes of § 1226. Id. at 270-71.
Significantly, the Third Circuit rejected the Government’s argument that delays in the
proceedings “caused by [the petitioner’s] pursuit of bona fide legal challenges to his
removal” made the length of petitioner’s detention reasonable. Id. at 271. According to
the Leslie court: “To conclude that [the petitioner’s] voluntary pursuit of such challenges
renders the corresponding increase in time of detention reasonable, would effectively

7

Thus, the Diop court concluded that the petitioner’s detention of 35 months,
without any “hearing inquiry into whether [continued detention] was necessary to
accomplish the purposes of § 1226(c), was unreasonable.” Diop, 656 F.3d at 234.
7

punish [Leslie] for pursuing applicable legal remedies, and we decline the government's
invitation to adopt such a position.” Id. (citations and internal quotation marks omitted).
Given the Third Circuit’s instruction that the determination of what constitutes a
“reasonable” period of detention is a “fact-dependent inquiry,” see Diop, 656 F.3d at 23334, it is hardly surprising that there is no consensus among courts addressing Diop claims
as to any specific period of time that is unreasonable in length. Review of these decisions,
however, reveals that courts largely have found periods of detention up to one year to be
reasonable. See Ricketts v. Holder, CIV. 13-0308 WJM, 2013 WL 3087236, at *3 (D.N.J.
June 12, 2013) (“Based on the relevant case law . . . it appears as if a period of twelve
months or less of pre-removal detention would not necessarily be considered prolonged
and unreasonable under Diop.”); see also Hernandez v. Sabol, 823 F. Supp. 2d 266 (M.D.
Pa. 2011) (seven months); Kot v. Elwood, Civ. No. 12-1720, 2012 WL 1565438, at *3
(D.N.J. May 2, 2012) (nine months); Bete v. Holder, Civ. No. 11-6405 (SRC), 2012 WL
1067747, at *8 (D.N.J. Mar. 29, 2012) (twelve months).8
In contrast, courts generally have been reluctant to accept the reasonableness of
detention exceeding one year. See, e.g., Gupta v. Sabol, Civ. No. 1:11-CV-1081, 2011
WL 3897964, at *3 (M.D. Pa. Sept. 6, 2011) (twenty months); see also Nwozuzu v.
Napolitano, Civ. 12-3963, 2012 WL 3561972, at *3 (D.N.J. Aug. 16, 2012) (“Courts in

8

It is worth noting, however, that the Bete court distinguished the twelve month
detention in that case from the detentions in Diop and Leslie as follows: “Bete is
responsible for 21 days of his 12-month detention, since he requested a 21-day
continuance of the removal hearing and, unlike Diop and Leslie, none of the time in
excess of the six months found constitutional in Demore was a result of any appeals in
which Bete has prevailed.” Bete v. Holder, 2012 WL 1067747, at *8 (emphasis added).
Thus, Bete is of questionable relevance to Petitioner’s Diop claim because, as addressed
in more detain infra, the length of Petitioner’s detention is directly related to his
seemingly successful challenge to removal.
8

this circuit have held that detentions exceeding 20 months are unreasonably long, and
have granted petitioners’ writs of habeas corpus asserting Diop claims on this basis.”).
But see Maynard v. Hendrix, Civ. No. 11-0605 (WJM), 2011 WL 6176202, at *4 (D.N.J.
Dec. 12, 2011) (finding eighteen months detention to be reasonable).9
Applying Diop and Leslie to the present case, and cognizant of the relevant
decisions of district courts in this circuit, I conclude that, under the circumstances of this
case, Francois’s continued detention under § 1226(c) is unreasonable. At the time of this
Opinion, Francois will have been held in mandatory detention, without any bond hearing,
for more than one year. This length of time already well exceeds the presumptively
reasonable six-month period of detention referenced by the Supreme Court in Demore
and identified by the Third Circuit in Diop.
The Government, however, contends that Francois’s detention remains justified
because Francois’s “removal proceedings have been adjourned five times to allow him
the opportunity to seek relief from removal,” and relies on other district court decisions
finding detention of twelve months to be reasonable, particularly where the petitioner
requested numerous continuances. See Dkt. No. 67 at 3 (Gov’t letter response) (citing
Espinoza-Loor v. Holder, Civ. No. 11-6993 (FSH), 2012 WL 2951642, at *7 (D.N.J. July
2, 2012), and Maynard v. Hendrix, Civ. No. 11-0605 (WJM), 2011 WL 6176202, at *4
9

The Maynard court rejected the petitioner’s Diop claim because the petitioner
requested several unknown continuances in his removal proceedings, causing the delay.
Maynard v. Hendrix, 2011 WL 6176202, at *4 (“Petitioner has provided this Court with
no explanation of the reasons for the repeated requests for continuances. Petitioner cannot
repeatedly request continuances and then complain that the resultant prolonged detention
is unconstitutionally unreasonable.”). The Maynard court accordingly was unable to
determine on this incomplete record whether, like in Diop, “the proceedings had been
prolonged also because of numerous errors by the immigration judge, necessitating
appeals, combined with the government's failure timely to secure evidence that bore
directly on the issue of whether the petitioner was properly detained.” Id. at *3.
9

(D.N.J. Dec. 12, 2011)); see also Dkt. No 67-1 (Cert. of ICE Deportation Officer
Yolanda Harris) at ¶¶ 7-8, 10, 12-15; Dkt. No. 75-1 at 38 (Gov’t Answer to TAP). The
Government’s position is not persuasive under the circumstances of this case.
With respect to the numerous adjournments, Petitioner alleges, and the
Government has certified, the following. The IJ first continued Francois’s proceedings
when Francois appeared pro se at his first hearing in late August 2012, in order for
Francois to obtain legal representation. TAP, ¶ 40, Dkt. No 67-1 (Cert. of ICE
Deportation Officer Yolanda Harris) at ¶ 7. Slightly more than one month later, in early
October 2012, Francois and his recently retained counsel appeared before the IJ and
requested a continuance to prepare and file applications for relief from removal. Dkt. No
67-1 at ¶ 8. The IJ granted a continuance until December 2012, with Francois’s
Application filed in advance of that continued hearing date. Id. at ¶ 8-9. At the December
2012 hearing, Francois admitted in part his removability but also signed and swore to his
Application for cancellation of removal. Id. at ¶ 10. The Government requested an
expedited hearing schedule at that time, but the IJ continued the hearing for a month to
allow Francois to file supporting documents to his Application. Id. The IJ subsequently
continued the January hearing to allow counsel for Francois to gather additional evidence
in support of Francois’s Application. Id. at ¶ 12. On March 18, 2013, the IJ held a hearing
on the merits of Francois’s Application, and then continued the proceeding until May 30,
2013 for additional evidence. Id. at ¶ 13; TAP, ¶ 39. Prior to the May 30 hearing,
Francois filed an adjournment request, and the hearing was rescheduled to July 12,

10

2013.10 Dkt. No 67-1 at ¶ 14. Finally, the IJ held the most recent scheduled hearing on
July 12, taking testimony, closing the record, and orally indicating that he would grant
Francois’s Application. Id. at ¶ 16; see also TAP, ¶¶ 38-40.
As the foregoing indicates, every continuance but one arose from Francois’s
attempt to secure informed counsel and to pursue his Application or from the IJ’s own
scheduling issues. Indeed, the record reveals that Francois and his counsel have been
prompt and diligent in pursuing a bona fide claim challenging Petitioner’s removal – a
claim that appears likely to be granted. The Third Circuit has made clear that
continuances related to a petitioner’s attempts to secure counsel and to pursue bona fide
challenges to removal should not count against the reasonableness of the length of that
petitioner’s detention. Leslie v. Attorney Gen., 678 F.3d at 271. Thus, I reject the
Government’s contention that twelve months of detention is reasonable simply because
the delays are attributable to Francois’s (seemingly successful) application to the IJ for
cancellation of removal.11
Furthermore, the Government’s reliance on other decisions concluding that twelve
months or more of mandatory detention is not unreasonable is not a valid basis for
concluding that Francois’s similar length of detention in this case is also not

10

Although not set forth in the Government’s certification, Francois alleges that the
adjournment was necessary because of a scheduling conflict of his attorney. See TAP, ¶
40.
11
For the same reason, I disagree with the Government’s interpretation of EspinozaLoor v. Holder, No. 11-6993, 2012 WL 2951642, at *7 (D.N.J. July 2, 2012), as
establishing a blanket rule that any and all continuances sought by a detainee support the
reasonableness of continued detention.
11

unreasonable.12 Diop instructs that the reasonableness determination “will necessarily be
a fact-dependent inquiry that will vary depending on individual circumstances,” which
“must take into account a given individual detainee’s need for more or less time, as well
as the exigencies of a particular case.” Diop, 656 F.3d at 233-34; id. at 233 (explaining
that there is no “universal point at which detention will always be considered
unreasonable”).
Further supporting the conclusion that Petitioner’s mandatory detention has
become unreasonable is the IJ announcement last month that he intends to grant
Petitioner’s Application for cancellation of removal. In other words, the IJ has
determined that Petitioner is not the type of alien who should be removed, even in light of
Petitioner’s criminal history. Given the IJ’s decision, the Court is unwilling to accept the
Government’s position that Petitioner’s continued mandatory detention is reasonable.
With the IJ’s conclusion that Petitioner is not so dangerous as to require removal, it is
unclear how his continued mandatory detention for that same reason is reasonable. See
12

Indeed, the Government concedes that the reasonableness determination is a
“fact-dependent” inquiry specific to the circumstances of each case. See Dkt. No. 75-1 at
37-38 (Gov’t Answer to TAP).
Moreover, those cases cited by the Government in its letter brief, Dkt. No. 67, are
easily distinguished from the present one. See supra, Footnote 8 (discussing
inapplicability of Bete v. Holder). For example, in Maynard, the court concluded that
eighteen months of detention was not unreasonable because it was largely the result of
continuances that the petitioner had received for unknown reasons. See Maynard v.
Hendrix, 2011 WL 6176202, at *4. Thus, the Maynard court grounded its decision on the
fact that it did not know why the petitioner in that case had requested so many
continuances leading to delays in the proceeding and his lengthy detention. In other
words, the court had no basis to conclude that the continuances arose from “bona fide
challenges” to removal. At most, then, Maynard simply stands for the proposition that the
petitioner must first meet his burden of showing why his detention has been unreasonably
prolonged – not that 18 months of mandatory detention is reasonable. More importantly,
Maynard was decided prior to the Third Circuit’s decision in Leslie that delays arising
from a petitioner’s good faith challenges to removal should not be used to justified
prolonged detention.
12

Diop, 656 F.3d at 231 (noting that, in enacting § 1226(c), “Congress was concerned with
the immigration authorities’ ‘wholesale failure’ to ‘deal with the increasing rates of
criminal activity by aliens.’ § 1226(c) was intended to remedy this perceived problem by
ensuring that aliens convicted of certain crimes would be present in their removal
proceedings and not on the loose in their communities, where they might pose a danger.”
(Emphasis added.)).13
In sum, the length of Petitioner’s detention, now exceeding one year, coupled
with the unique circumstances of this case – particularly the IJ’s indication that he intends
to cancel Petitioner’s removal – lead to the conclusion that Petitioner’s mandatory
13

The Government seeks to minimize the importance of the IJ’s intention to cancel
Petitioner’s removal by explaining that (1) the IJ has not issued a final decision
cancelling Petitioner’s removal, and (2) based on the alleged contents of a conversation
between Francois and another detainee during transport that was overheard by an
Immigration Enforcement Agent, the Government has filed a motion to reopen Francois’s
case that is still pending before the IJ. As to the latter, the Government contends that
during the overheard conversation, Francois admitted he had not been truthful in his
testimony before the IJ in regards to his Application. See Dkt. No. 75-1 (Gov’t Response
to TAP) at 36-37; see also Dkt. No 67-1 (Cert. of ICE Deportation Officer Yolanda
Harris) at ¶¶ 17-18.
I find that neither of these circumstances affects the reasonableness of Petitioner’s
continued detention. Indeed, if anything, that the IJ has yet to issue a written decision and
that the Government has prolonged Petitioner’s proceedings by filing a motion to reopen
further demonstrates that Petitioner will be subject to mandatory detention for even more
time. Moreover, regardless of IJ’s ultimate decision on the motion to reopen or
Petitioner’s Application, it appears that the losing party will appeal, during which time
Petitioner will remain detained even if he prevailed before the IJ. This Court, like several
other courts presented with the same issue, considers the prolonged likelihood of future
detention as relevant to whether Petitioner’s continued detention is reasonable. E.g., Alli
v. Decker, 644 F. Supp. 2d 535, 544 (M.D. Pa. 2009) (“[W]here it can be foreseen that
proceedings will continue for a prolonged period of time, continued detention may be less
likely to be reasonable.”), rev’d in part, vacated in part, on other grounds, 650 F.3d 1007
(3d Cir. 2011). In this case, the likelihood of Petitioner facing prolonged additional
detention militates against finding that his detention, now already exceeding one year, is
reasonable. Finally, I note that my decision today to grant Petitioner a bond hearing will
not unduly prejudice the Government’s motion to reopen, as the Government will
certainly have an opportunity to raise its concerns of Petitioner’s truthfulness at that
hearing in connection with his risk of flight or danger to the community.
13

detention under § 1226(c) is no longer reasonable. Diop, 656 F.3d at 233-34. The IJ is
therefore directed to provide Petitioner with an individualized bond hearing, pursuant to 8
U.S.C. § 1226(a)(2), to determine if he is a flight risk or danger to the community that
would necessitate his continued mandatory detention; at this hearing, the Government
will bear the burden of establishing why continued detention is necessary. Diop, 656 F.3d
at 235 (“[T]he Government must justify its continued authority to detain [Petitioner] at a
hearing at which it bears the burden of proof.”); see also supra Footnote13.
CONCLUSION
For the foregoing reasons, the Court holds that Petitioner’s continued mandatory
detention, pursuant to 8 U.S.C. § 1226(c), is no longer reasonable under the
circumstances of this case. Accordingly, the Court grants the Writ of Habeas Corpus and
directs that an Immigration Judge provide Petitioner with an individualized bond hearing
to determine with an “whether detention is still necessary to fulfill the statute’s [§
1226(c)] purposes,” Leslie v. Attorney Gen., 678 F.3d at 270-71 (internal quotation marks
omitted), within 10 days of the date of the entry of the Order accompanying this Opinion.

August 23, 2013

/s/ Freda L.Wolfson
Freda L. Wolfson, U.S.D.J.

14