Hutton v. Lowe et al
MEMORANDUM A separate Order shall issue.Signed by Honorable Robert D. Mariani on 5/11/17. (jfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ORVILLE M. HUTTON,
Civil No. 3:16-cv-1584
CRAIG LOWE, et a/.,
Petitioner, Orville Hutton, a detainee of the United States Immigration and Customs
Enforcement ("ICE"), currently confined in the Pike County Correctional Facility, Lords
Valley, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. (Doc. 1). Hutton challenges his continued detention by ICE pending
removal. (Id.). He requests, inter alia, immediate release or an individualized bond hearing.
(Id. at p. 26). For the reasons set forth below, the Court will grant a writ of habeas corpus
directing an Immigration Judge to conduct a bond hearing to determine if Hutton is a flight
risk or danger to the community.
Hutton, a native and citizen of Jamaica, became a lawful permanent resident of the
United States on October 31,1972. (Doc. 1; Doc. 5-3, p. 2).
In 2010, a West Virginia grand jury indicted Hutton on four counts of malicious
assault and sexual assault. (Doc. 5-4, pp. 2-3, Indictment). On May 21,2010, Hutton was
convicted in the Harrison County Circuit Court of the felony offense of unlawful assault.
(Doc. 5-4, p. 7). On July 6, 2010, Hutton was sentenced to a one to five year term of
imprisonment. (Doc. 5-4, pp. 7, 12).
On May 28, 2013, ICE served a Notice to Appear on Hutton indicating that he was
subject to removal pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality
Act ("INA") based on his conviction of a "crime of violence" aggravated felony. (Doc. 5-3,
pp. 2-4, Notice to Appear). He was taken into ICE custody on or about May 28,2013. (Id.).
On September 9, 2013, an Immigration Judge ordered Hutton to be removed to
Jamaica. (Doc. 5-6, pp. 2-10, Order of the Immigration Judge).
Hutton filed an appeal with the Board of Immigration Appeals ("BIA"). (Doc. 5-7, pp.
2-6, Decision of the Board of Immigration Appeals). On February 28,2014, the BIA
affirmed the Immigration Judge's decision and declined to delay the case while Hutton
sought post-conviction relief. (Id.).
On March 21,2014, Hutton filed a petition for review of the BIA's final order of
removal with the United States Court of Appeals for the Third Circuit. (Doc. 5-8, pp. 2-7,
Hutton v. Attorney General of the U.S., No. 14-1698 (3d Cir.). Hutton also 'flied a motion for
a stay of his removal. (Id.). The Attorney General opposed the stay of removal and filed a
motion to dismiss. (Id.). On April 17, 2014, the Third Circuit granted the stay of removal
and referred the dispositive motion to a merits panel. (ld.). On October 20, 2014, the Third
Circuit issued an order staying the petition for review pending resolution of Hutton's appeal
by the West Virginia Court of Appeals. (ld.).
Hutton filed a petition for a writ of error coram nobis in the Circuit Court of Harrison
County in order to have his guilty plea conviction for unlawful assault vacated on the
grounds of ineffective assistance of counsel. See State v. Hutton, 235 W. Va. 724, 726
(2015). The Harrison County Circuit Court denied his petition and Hutton appealed to the
Supreme Court of West Virginia. Id. On June 16, 2015, the Supreme Court of West
Virginia issued a decision on the question of whether a writ of error coram nobis existed in
the state. Id. The West Virginia Supreme Court found that the writ existed and remanded
the matter to the Circuit Court of Harrison County. Id. at 743. The matter remains pending
in the Harrison County Circuit Court. (Doc. 5-9, pp. 2- 3; Hutton v. Attorney General of the
U.S., No. 14-1698 (3d Cir.)).
Although Hutton's removal proceedings were final, the Third Circuit entered an order
staying his removal. Because Hutton appealed to the Third Circuit, the final order was
essentially "revoked" and no final order has yet been entered. See 8 U.S.C. §
1231(a)(1)(B)(ii) ("The removal period begins on the latest of the following ... [i]fthe 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, Hutton 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 Pike
County Correctional Facility pending the outcome of his immigration proceedings, or to
order a bond hearing. Respondent does not oppose Hutton's request for a bond hearing,
and asserts that the Court should order an Immigration Judge to conduct an individualized
bond hearing. (Doc. 5, pp. 4-7).
Following Hutton's 2010 conviction, there was a clear legal basis for ICE to detain
him pending the outcome of removal proceedings. See Diop v. ICE, 656 F.3d 221,230 (3d
Cir.2011). 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), (8), (C), or (D) of this title." 8 U.S.C. § 1226(c)(1 )(8). 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, et al., 538 U.S. 510,
532 (2003), helps inform the Diop Court's emphasis 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, lithe 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.
Hutton has now been detained by ICE for nearly four years. 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 (MD. 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 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 Hutton's nearly four
year detention, the Court will direct that Hutton 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.
This Court's decision is entirely consistent with other case law from the Middle
District of Pennsylvania, as well as with the Diop Court's caution that prolonged detention of
an alien (35-month detention in Diop) , absent an individualized bond hearing, can become
presumptively unreasonable. See Bautista v. Sabol, 862 F. Supp. 2d 375 (M.D. Pa. 2012).
Following Diop, the Middle District Court has ruled that a petitioner, detained for
approximately twenty (20) months under § 1226(c), was entitled to release while his appeal
of removal was pending in the immigration court and the Board of Immigration Appeals.
See Gupta v. Sabol, 2011 WL 3897964, *1 (M.D. Pa. 2011). The Gupta Court stated that
such decisions reflect "a growing consensus within this district and throughout the federal
courts  that prolonged detention of aliens under § 1226(c) raises serious constitutional
concerns." Id. at *2. Although this Court declines to grant the outright release of Hutton in
advance of a bond hearing, Hutton's detention does require a bond hearing.
A separate Order shall issue.
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