Kamara v. Doll
Filing
6
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 8/15/17. (rw)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SAMBA ERIC KONDEH KAMARA,
Petitioner
v.
WARDEN CLAIRE DOLL,
Respondent
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No. 1:17-CV-01176
(Judge Kane)
MEMORANDUM
Before the Court is Petitioner Samba Eric Kondeh Kamara’s petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241, challenging the constitutionality of his prolonged detention
by the United States Immigration and Customs Enforcement (“ICE”), at the York County Prison
without a bond hearing (Doc. No. 1.) For the reasons stated herein, Kamara’s petition will be
granted insofar as he seeks an individualized bond hearing.
I.
BACKGROUND
Kamara is a citizen and native of Sierra Leone who was admitted to the United States as a
lawful permanent resident on April 15, 2009. (Doc. No. 5 at 2.) Petitioner was convicted in the
United States District Court for the District of Minnesota on April 20, 2016, of aiding and
abetting in violation of 18 U.S.C. § 2, and bank fraud in violation of 18 U.S.C. § 1344, and was
sentenced to ten months’ imprisonment. (Id.) Petitioner was issued a Notice to Appear on July
19, 2016, charging him as removable pursuant to Section 237(a)(2)(A)(i) of the Immigration and
Nationality Act (“INA”), due to his conviction of a crime involving moral turpitude. (Id. at 3.)
On June 13, 2017, an immigration judge denied Petitioner’s applications for asylum, withholding
of removal, and protection under the Convention Against Torture (“CAT”), and ordered
Petitioner removed from the United States to Sierra Leone. (Id.) There is a pending appeal
before the Board of Immigration Appeals (“BIA”). (Id.)
On July 5, 2017, Kamara filed the instant petition for writ of habeas corpus seeking
release under supervision or an individualized bond hearing, since he has been in the custody of
ICE since September 7, 2016. (Doc. No. 1.) The Court issued an Order on July 11, 2017,
directing Respondent to show cause as to why relief should not be granted. (Doc. No. 3.) The
Government has responded to the petition (Doc. No. 5), conceding that Petitioner is entitled to an
individualized bond hearing before an immigration judge due to the prolonged length of his
detention. See Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015);
Demore v. Kim, 538 U.S. 510 (2003); Singh v. Sabol, No. 14-CV-1927, 2015 WL 3519075
(M.D. Pa. June 4, 2015). The time to file a traverse has passed. Accordingly, the petition is now
ripe for disposition.
II.
DISCUSSION
In the instant petition, Petitioner challenges the constitutionality of his continued
detention without a bond hearing prior to the entry of a final order of removal. (Doc. No. 1.)
Petitioner’s detention is authorized pursuant to 8 U.S.C. § 1226(c), which requires the Attorney
General to “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).1 Section 1226(c) requires mandatory pre-removal detention without bond of
aliens convicted of certain enumerated offenses, including aggravated felonies.
The United States Court of Appeals for the Third Circuit in Diop v. ICE/Homeland
Security, 656 F.3d 221 (3d Cir. 2011), and more recently in Chavez-Alvarez v. Warden York
1
There is no dispute that a final order of removal has not yet been entered with respect to
Petitioner’s deportation proceedings, as his appeal before the BIA remains pending. (Doc. No. 5,
Ex. 4); see 8 U.S.C. § 1231(B) (providing that the removal period begins on the date the order of
removal becomes administratively final). Accordingly, Kamara’s detention falls within the
ambit of § 1226(c).
County Prison, 783 F.3d 469, 475 (3d Cir. 2015), examined the constitutionality of prolonged
detention under Section 1226(c) pending a final order of removal. In Diop, the Third Circuit
recognized that 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, ” and found that the petitioner’s
thirty-five month detention pending a final order of removal was unreasonably prolonged. 656
F.3d at 235. In Chavez-Alvarez, the Third Circuit expounded on the reasonableness approach,
holding that in cases where a petitioner brings a good-faith challenge to his removal from the
United States:
[B]eginning sometime after the six-month timeframe . . . , and certainly by the
time [a petitioner] had been detained for one year, the burdens to [the petitioner]’s
liberties outweigh [] any justification for using presumptions to detain him
without bond to further the goals of the statute. We conclude that the underlying
goals of the statute would not have been, and will not now be undermined by
requiring the Government to produce individualized evidence that [the
petitioner]’s continued detention was or is necessary.
783 F.3d at 478.
Accordingly, where a petitioner’s detention extends beyond the six-month to oneyear time frame, the reviewing court should order an individualized bond hearing to
determine “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.” Diop, 656 F.3d at 231; Chavez-Alvarez, 783 F.3d at 475. Moreover, at
the individualized bond hearing, the “Government bears the burden of proving that
continued detention is necessary to fulfill the purposes of the detention statute.” Diop,
656 F.3d at 233.
With the above framework in mind, it is evident that Petitioner has shown that he
is entitled to an individualized bond hearing. The Court has no reason to suspect that
Petitioner’s legal challenge to this case is not presented in good faith. See ChavezAlvarez, 783 F.3d at 478. Also, Petitioner’s prolonged mandatory detention without a
bond hearing is just shy of one year, at which point mandatory detention is presumed
excessive. Id. at 478. Therefore, the Court concludes that Petitioner is entitled to an
individualized bond hearing where the government will have the burden of demonstrating
that continued detention is necessary to fulfill the purposes of Section 1226(c).2
III.
CONCLUSION
For the reasons set forth above, Petitioner Samba Eric Kondeh Kamara’s petition for writ
of habeas corpus filed pursuant to 28 U.S.C. § 2241 (Doc. No. 1), will be granted to the extent
that Petitioner will be afforded an individualized bond hearing before an immigration judge. An
appropriate Order follows.
2
Both parties suggest that the bond hearing should be conducted before an immigration judge, as
opposed to this Court. (Doc. No. 1, at 6; Doc. No. 5, at 2.) The Third Circuit noted that an
immigration judge can, and often should, make an initial bond determination. Chavez-Alvarez,
783 F.3d at 478 n.12; see also Leslie v. Holder, 865 F. Supp. 2d 627, 631 (M.D. Pa. 2012)
(providing that “deference . . . should be accorded in the first instance to agency decision-making
processes”). Federal courts frequently defer to immigration judges under these circumstances,
rather than conducting their own bond hearing. See, e.g., Casas-Castrillon v. Dep’t of Homeland
Sec., 535 F.3d 942 (9th Cir. 2008); Singh v. Sabol, No. 1:14-CV-1927, 2015 WL 3519075, at *6
(M.D. Pa. June 4, 2015). Accordingly, the Court will direct that Petitioner’s individual bond
hearing will be before an immigration judge, at which time the government will bear the burden
of proving that Petitioner’s continued detention is necessary.
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