Elanany v. Lowe et al

Filing 14

MEMORANDUM (Order to follow as separate docket entry) re: 1 Petition for Writ of Habeas Corpus filed by Hassan Elanany. (See memo for complete details.)Signed by Chief Judge Christopher C. Conner on 5/2/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HASSAN ELANANY,

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Petitioner
v.
CRAIG A. LOWE, et al.,
Respondents

CIVIL NO. 1:16-CV-1989
(Chief Judge Conner)

MEMORANDUM
Petitioner, Hassan Elanany, a detainee of the United States Immigration and
Customs Enforcement (“ICE”), currently confined in the York County Prison, York,
Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. (Doc. 1). Elanany challenges his continued detention by ICE pending
removal. (Id.) He requests a hearing before an Immigration Judge or release
pursuant to an order of supervision. (Id. at 10). For the reasons set forth below, the
court will grant the petition and order that an Immigration Judge conduct an
individualized bond hearing within fourteen (14) days of the accompanying order.
I.

Immigration Proceedings
Elanany, a native and citizen of Egypt, entered the United States as a lawful

permanent resident on September 19, 2006. (Doc. 1; Doc. 7-1, at 5).
On January 29, 2015, ICE served a Notice to Appear on Elanany indicating
that he was subject to removal pursuant to sections 237(a)(2)(A)(ii), 237(a)(2)(B)(i),

and 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”) based on his
convictions for possession of a controlled substance, two crimes involving moral
turpitude, and a crime of stalking. (Doc. 7-1, at 3-5). He was taken into ICE custody
on January 29, 2015. (Doc. 7-1, at 3).
On September 29, 2015, an Immigration Judge ordered Elanany to be
removed to Egypt and denied his application for withholding of removal. (Doc. 7-1,
at 8, Order of the Immigration Judge). On October 28, 2015, Elanany filed a Notice
of Appeal with the Board of Immigration Appeals (“BIA”). (Doc. 7-1, at 27). On
June 14, 2016, the BIA affirmed the Immigration Judge’s decision to deny
cancellation of removal. (Doc. 7-1, at 27-28, BIA Order dated June 14, 2016).
Elanany then filed a motion for reconsideration of the June 14, 2016 Order of the
BIA. (Doc. 7-1, at 31). On August 18, 2016, the BIA issued a decision granting
Elanany’s motion for reconsideration of the June 2016 Order for the limited purpose
of addressing the Immigration Judge’s determination that Elanany was not entitled
to cancellation of removal on discretionary grounds. (Doc. 7-1, at 29-32, BIA Order
dated August 18, 2016). The BIA ultimately dismissed the appeal. (Id.)
Elanany filed a petition for review and a stay of removal with the Third
Circuit Court of Appeals. On August 5, 2015, the Third Circuit issued a temporary
stay of removal. (Doc. 7-1, at 33-35, Order of Third Circuit).

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On September 13, 2016, ICE officials conducted a file custody review and
determined that Elanany should remain in custody because he is considered a
danger to the community based on his criminal history. (Doc. 7-1, at 36-37, Decision
to Continue Detention).
The instant petition was filed on September 30, 2016. (Doc. 1).
II.

Discussion
Although Elanany’s removal proceedings were final, the Third Circuit

entered an order staying his removal. Because Elanany appealed to the Third
Circuit, the final order was essentially revoked and no final order has yet been
entered due to Elanany’s current pending petition for review. See 8 U.S.C. §
1231(a)(1)(B)(ii) (“The removal period begins on the latest of the following . . . [i]f the
removal order is judicially reviewed and if a court orders a stay of the removal of
the alien, the date of the court’s final order.”); see also Leslie v. Attorney General of
U.S., 678 F.3d 265, 270 (3d Cir. 2012). Thus, Elanany is subject to pre-final order
detention, and the court must determine whether he is entitled to habeas relief in
the nature of his release from the York County Prison pending the outcome of his
immigration proceedings, or to order a bond hearing. Elanany requests a bond
hearing and argues that he has been detained under 8 U.S.C. § 1226(c) for an
unreasonable amount of time in violation of the Due Process Clause of the Fifth
Amendment and Diop v. ICE/Homeland Sec., 656 F.3d 221, 231-35 (3d Cir. 2011).
(Doc. 1, at 5-6). Respondents do not oppose Elanany’s request for a bond hearing.
(Doc. 7, pp. 4-7).

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Following Elanany’s criminal convictions, there was a clear legal basis for
ICE to detain him pending the outcome of removal proceedings. Pursuant to 8
U.S.C. § 1226(c), the Attorney General must take into custody any alien who “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.” 8 U.S.C. § 1226(c)(1)(B). Prior
to a final removal order, an alien must be detained without being afforded a bond
hearing. 8 U.S.C. § 1226(c). However, this “mandatory detention” provision has
limits. See Diop, 656 F.3d at 232. Although mandatory detention for some classes of
aliens under § 1226(c) is constitutional, Justice Kennedy’s concurring opinion in
Demore v. Kim, 538 U.S. 510, 532 (2003), emphasizes that continued detention can
become unconstitutional unless the government justifies its actions at a hearing
designed to ascertain whether continued detention of the alien is necessary to
achieve the law’s stated purposes of preventing flight and minimizing potential
dangers to the community. Diop, 656 F.3d at 233. Where detention has become
unreasonable, “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.
Elanany has been detained by ICE since January 29, 2015. Although the
statutory law does seemingly dictate mandatory custody, “[w]e do not believe that
Congress intended to authorize prolonged, unreasonable, detention without a bond
hearing.” Hernandez v. Sabol, 823 F. Supp. 2d 266, 272 (M.D. Pa. 2011). As stated
supra, section 1226(c) authorizes detention for a reasonable amount of time, after
which the authorities must make an individualized inquiry into whether detention
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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.
See Diop, 656 F.3d at 231. Given Elanany’s twenty-seven month detention, the
court will direct that Elanany be granted a bond hearing to ascertain whether the
immigration court considers him a flight risk or a danger to the community if he
were released pending the outcome of his immigration proceedings. Although the
court declines to grant the outright release of Elanany in advance of a bond hearing,
Elanany’s detention does require a bond hearing.
A separate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

May 2, 2017