Diallo v. Doll et al

Filing 5

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MOHAMED DEM DIALLO,
Petitioner,
v.
CLAIR DOLL, WARDEN, YORK
COUNTY PRISON,
Respondent.

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1:17-cv-1378
Hon. John E. Jones III

MEMORANDUM
September 18, 2017
Mohamed Dem Diallo (“Diallo”), presently a detainee of the Bureau of
Immigration and Customs Enforcement (“ICE”), incarcerated at the York County
Prison, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to
28 U.S.C. §2241, on August 3, 2017, seeking release from mandatory detention.
(Doc. 1).
He seeks to proceed in forma pauperis. (Doc. 4). Preliminary review of the
petition has been undertaken, see R. GOVERNING § 2254 CASES R.4, and, for the
reasons set forth below, the petition will be denied.
I.

Factual Background
Diallo, a native and citizen of Guinea, “presented himself at the United

States border on or around December 24, 2016 to request Asylum.” (Doc. 1, p. 3).
On May 17, 2017, he appeared before an Immigration Judge (“IJ”) and, on June

29, 2017, his Application for Asylum, Withholding of Removal was denied and he
was ordered removed from the United States. (Id.) Thereafter, Diallo filed an
appeal with the Board of Immigration Appeals (“BIA). (Id.) The appeal is
currently pending. (Id.)
II.

Discussion
The apprehension and detention of aliens, pending removal decisions, are

governed by the provisions of 8 U.S.C. § 1226. Under § 1226(a), the Attorney
General may issue a warrant for arrest and detention of an alien, pending a decision
on whether the alien is to be removed from the United States. Although § 1226(a)
permits discretionary release of aliens on bond, § 1226 (c)(1) states that “[t]he
Attorney General shall take into custody any alien who– (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 . . . 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). Aggravated felonies fall under §
1226(a)(2)(A)(iii).
Because Diallo was taken into ICE custody December 24, 2016, he cannot
assert a claim of unreasonably prolonged detention in violation of the Due Process
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Clause under Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011) (finding
that Diop’s nearly three year detention was unconstitutionally unreasonable and,
therefore, a violation of due process). In Diop, the Third Circuit concluded that the
mandatory detention statute, § 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. Diop, 656 F.3d at 231.
In the matter sub judice, Diallo has been mandatorily detained for less than
nine months. Based on the appeal pending before the BIA, it is clear that the June
29, 2017 order of removal is not administratively final and that Diallo’s detention
is authorized by 8 U.S.C. § 1226(c). Diallo alleges no facts to show that his
continued detention, is or will become unreasonably prolonged or indefinite. At
this juncture, his detention is both mandatory and constitutionally permissible, and
his petition for release from custody will be denied.
An appropriate order will enter.

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