Singh v. Lowe et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; adopting 7 Report and Recommendations.Obj. overruled. Petnr's habeas petn. is GRANTED IN PART. (See order for details).Signed by Honorable Malachy E Mannion on 3/27/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
GURSAHIB SINGH,

:

Petitioner

:
CIVIL ACTION NO. 3:17-0119

v.

:

CRAIG A. LOWE, Warden, et al.,
Respondents

:

(Mannion, D.J.)
(Carlson, M.J.)

:
ORDER

On January 20, 2017, petitioner Gursahib Singh filed, through counsel,
a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2241. (Doc. 1).
The petitioner, an arriving alien who was mandatorily detained by ICE under
8 U.S.C. §1225(b), claims that he has suffered an unreasonably prolonged
mandatory detention of 16 months during the pendency of his removal
proceedings and, that he has not been afforded the due process protections
required by the United States Constitution. Judge Carlson indicates that on
August 30, 2016, the Immigration Judge ordered Singh removed to India and
denied Singh’s applications for asylum and withholding of removal. He also
indicates that Singh appealed the decisions to the Board of Immigration
Appeals and that his appeal is currently pending. (Doc. 7 at 5-6). As such,
Singh is not yet subject to a final order of removal and he is being detained
under §1225(b)(2)(A). Singh requests his release from custody at Pike County
Prison or a constitutionally adequate bond hearing by an Immigration Judge,
where the respondents must demonstrate that his continued detention is

justified.
Presently pending before the court is Judge Carlson’s March 7, 2017
report, (Doc. 7), recommending that the petition be granted in part to the
extent that an Immigration Judge be directed to conduct an individualized
bond hearing for Singh. Respondent filed objections to the report and a brief
in support. (Doc. 8, Doc. 9). Singh did not respond to either the report or to
respondent’s objections.
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
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recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.
The court has reviewed Judge Carlson’s report and the objections of
respondent as well as the applicable law on the issue presented herein and
concurs with the sound reasoning of Judge Carlson as well as the recent
decision in this district in Ahad v. Lowe, –F.Supp.3d–, 2017 WL 66829
(M.D.Pa. Jan. 6, 2017). In Ahad, the court found that “arriving aliens detained
pre-removal pursuant to §1225(b) have a due process right to an
individualized bond consideration once it is determined that the duration of
their detention has become unreasonable” and, that “the 20 month duration
of Ahad’s detention has reached this presumptively unreasonable length.”
The court agrees with the cases cited in Judge Carlson’s report as well as the
Ahad case, and finds that the pre-removal detention of Singh under §1225(b)
is subject to due process limitations and that he is entitled to an individualized
bond hearing by an Immigration Judge since his more than 16-month
detention is presumptively unreasonable.
Thus, the court will ADOPT Judge Carlson’s report, (Doc. 7), and will
GRANT IN PART Singh’s habeas petition, (Doc. 1), and order that an
Immigration Judge conduct an individualized bond hearing within 30 days.
The court will OVERRULE the objections of respondent, (Doc. 8).
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IT IS HEREBY ORDERED, THAT:
(1)

The report and recommendation of Judge Carlson, (Doc. 7),
is ADOPTED;

(2)

The objections of respondent, (Doc. 8), are
OVERRULED;

(3)

Petitioner Singh’s habeas petition, (Doc. 1), is GRANTED
IN PART to the extent that it seek an individualized bond
hearing;

(4)

An individualized bond hearing shall be conducted
by an immigration judge within thirty (30) days of the
date of this Order;

(5)

At the bond hearing, the government shall bear the
burden of demonstrating that Singh’s continued
detention is still necessary to fulfill the purposes of
ensuring that he attends removal proceedings and that
his release will not pose a danger to the community under
Diop v. ICE/Homeland Sec., 656 F.3d 221,231 (3d Cir. 2011);

(6)

The clerk of court is directed to close this case.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: March 27, 2017
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2017 ORDERS\17-0119-01.wpd

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