Swarray v. Lowe et al

Filing 12

MEMORANDUM (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 8/18/17. (pw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALIE SWARRAY,
Plaintiff,
v.
CRAIG LOWE, et al.,
Defendant.

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Civil No. 1:17-cv-0970

Judge Rambo
Magistrate Judge Carlson

MEMORANDUM
Before the court is a report and recommendation filed by the magistrate
judge in which he recommends that Alie Swarray’s petition for a writ of habeas
corpus be granted. In his petition, Swarray seeks immediate release from the
custody of the Bureau of Immigration and Custody Enforcement (“ICE”). The
magistrate judge recommends that Swarray be granted an individualized bond
hearing. The government objects to the recommendation.
I.

Background
Swarray is a citizen of Sierra Leone who was admitted to the United

States as a lawful permanent resident alien under the Diversity Visa Program in
July 2001. (Doc. 5-1, p. 11.) On November 28, 2007, Swarray pled guilty to
fleeing or eluding a policy officer. (Id. at p. 7.) At some point in time, Swarray left
the United States and, on September 23, 2014, returned to the United States and
applied for admission as a returning lawful permanent resident alien. (Id.)

Homeland Security officials at the point of entry learned that there were
outstanding state warrants pending against him for two counts of access device
fraud and one count of identity theft. (Id.) Swarray was turned over to the local
authorities for adjudication of the warrants.
On March 15, 2016, following the state court proceedings at which
Swarray pled guilty and was sentenced, Swarray was taken into immigration
custody. On March 17, 2016, the Department of Homeland Security (“DHS”)
issued a notice to appear charging Swarray as an inadmissible alien due to his
convictions. An immigration judge granted Swarray’s application for cancellation
of removal citing the fact that he was a lawful permanent resident. (Id. at Ex. 3.)
On September 27, 2016, the Board of Immigration Appeals (“BIA”) vacated the
immigration judge’s decision and remanded the case to determine if Swarray was
eligible for any other form of relief. (Id. at Ex. 4.) On July 20, 2017, a hearing was
held to decide if Swarray was entitled to seek a stand-alone waiver under INA §
212(h).1
II.

Discussion
It is the government’s position that when Swarray presented himself for

admission to the border on September 23, 2014, he was properly classified as an
arriving alien under 8 U.S.C. § 1225(b). The government argues that it possesses
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By email dated August 15, 2017, this court was informed by the government that Swarray was
granted relief but that DHS has appealed that decision.
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the authority to detain Swarray for an indefinite and prolonged period without any
bond consideration pursuant to 8 U.S.C. §1225(b)(2)(A) and that Swarray is
therefore not entitled to any statutory or constitutional due process consideration.
Both parties have thoroughly reviewed the extensive case law on the
issue of indefinite detention of aliens. Upon review, the court notes that many of
the cases concluded that due process protection for a § 1225(b)(2)(A) detainee is
subject to consideration of reasonableness of the length of detention of that alien.
See, e.g., Singh v. Lowe, Civ. No. 3:17-cv-119, 2017 WL 1157899, *8 (M.D. Pa.
March 7, 2017); Damus v. Tsoukaris, Civ. No. 16-933, 2016 WL 4203816, *4 (D.
N.J. Aug. 8, 2016); Gregorio-Chacon v. Lynch, Civ. No. 16-2768, 2016 WL
6208264, *4 (D. N.J. Oct. 24, 2016); and Viknesrajah v. Koson, 09-cv-6442, 2011
WL 147901, *6 (W.D. N.Y. Jan. 18, 2011).
III.

Conclusion
Swarray has now been held since March 15, 2016 – a period of almost a

year and a half. This period of time appears to be unreasonable and therefore the
court will adopt the report and recommendation.
An appropriate order will follow.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: August 18, 2017
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