Ku v. Bowen et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; adopting 7 Report and Recommendations; (2)Petitioner Kus habeas petition, (Doc. 1), is GRANTED to the extent that it seeks an individualized bond hearing;(3)An individualized bond hearing shall be conduc ted by an immigration judge within thirty (30) days of the date of this order;(4)At the bond hearing, the government shall bear the burden of demonstrating that the petitioners continued detention is still necessary to fulfill the purposes of ensurin g that she attends removal proceedings and that her release will not pose a danger to the community under Diop v. ICE/Homeland Sec., 656 F.3d 221, 231-33 (3d Cir. 2011); and(5)The clerk of court is directed to CLOSE THIS CASE. Signed by Honorable Malachy E Mannion on 7/6/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CHIAO FANG KU,
Petitioner

:
:
CIVIL ACTION NO. 3:17-0760

v.

:
(JUDGE MANNION)

WARDEN DENNIS BOWEN, et al., :
Respondents

:
ORDER

The petitioner, a native and citizen of Taiwan, has resided in the United
States since January 27, 1999. She was convicted of wire fraud in the United
States District Court for the District of Massachusetts on December 12, 2014,
and sentenced to eighteen (18) months of incarceration and one (1) year of
supervised release.
On May 19, 2016, the petitioner was served with a Notice to Appear and
detained by U.S. Immigration and Customs Enforcement, (“ICE”). She is
charged as being removable from the United States pursuant to Section
237(a)(2)(A)(iii) of the Immigration and Nationality Act, (“INA”), for having
been convicted of an aggravated felony. The petitioner was served with
Additional Charges of Inadmissibility/Deportability on June 28, 2016.
The petitioner filed a request for release which was denied on February
2, 2017, on the basis that she was “subject to mandatory custody pursuant to
Section 236(A) of the INA.” However, on March 21, 2017, an immigration
judge granted the petitioner’s Application for Adjustment of Status and Waiver

of Inadmissibility. The Department of Homeland Security filed an appeal of the
immigration judge’s ruling with the Board of Immigration Appeals, (“BIA”),
which was still pending on April 28, 2017, when the petitioner filed the instant
petition for a writ of habeas corpus pursuant to 28 U.S.C. §2241 through
counsel. (Doc. 1).
Presently pending before the court is the June 7, 2017, report of
Magistrate Judge Karoline Mehalchick, (Doc. 7), recommending that the
instant petition be granted to the extent that the petitioner be afforded an
individualized bond hearing at which the immigration judge must make an
individualized inquiry into whether detention is still necessary for the purposes
of ensuring that the petitioner attends removal proceedings and that her
release will not pose a danger to the community. Both the respondents and
the petitioner have indicated that they do no object to the report and
recommendation of Judge Mehalchick. (Doc. 8, Doc. 9).
Where no objection is made to a report and recommendation, 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
Int’l, Inc., 702 F. Supp. 2d 465, 469 (2010) (citing Henderson v. Carlson, 812
F.2d 874, 878 (3d Cir. 1987) (explaining judges should give some review to
every report and recommendation)). Nevertheless, whether timely objections
are made or not, the district court may accept, not accept, or modify, in whole
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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 Mehalchick’s report as well as the
applicable law and concurs with her recommendation. The clear guidance of
Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015)
and Diop v. ICE/Homeland Security, 656 F.3d 222 (3d Cir. 2011) indicate that
the petitioner is entitled to a bond hearing to justify her continued detention
during removal proceedings. Her continued detention will be justified only if
it is determined, on an individualized basis, that it is necessary to achieving
the goals of the immigration statute, particularly, “ensuring participation in the
removal process[] and protecting the community from the danger [s]he . . .
poses.” Chavez-Alvarez, 783 F.3d at 475. It is the government’s burden to
show that the petitioner’s continued detention is necessary to fulfill the abovereferenced purposes of the detention statute. Diop, 659 F.3d at 233.
Thus, the court will ADOPT Judge Mehalchick’s report (Doc. 7) and
GRANT the instant habeas petition (Doc. 1) to the extent that the petitioner
requests an individualized bond hearing, and order that an immigration judge
conduct an individualized bond hearing within 30 days.
NOW, THEREFORE, IT IS HEREBY ORDERED, THAT:
(1)

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

(2)

Petitioner Ku’s habeas petition, (Doc. 1), is GRANTED to the
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extent that it seeks an individualized bond hearing;
(3)

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

(4)

At the bond hearing, the government shall bear the burden of
demonstrating that the petitioner’s continued detention is still
necessary to fulfill the purposes of ensuring that she attends
removal proceedings and that her release will not pose a danger
to the community under Diop v. ICE/Homeland Sec., 656 F.3d
221, 231-33 (3d Cir. 2011); and

(5)

The clerk of court is directed to CLOSE THIS CASE.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: July 6, 2017
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2017 ORDERS\17-0760-01.wpd

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