Kalu v. Lowe et al

Filing 9

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 5/3/17. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KALU ORJI KALU,
Petitioner
v.
CRAIG LOWE, ET AL.,
Respondents

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CIVIL NO. 4:17-CV-506
(Judge Brann)

MEMORANDUM
MAY 3, 2017
Background
Kalu Orji Kalu, a detainee of the Department of Homeland Security,
Immigration and Customs Enforcement (“ICE”) presently confined at the Pike
County Prison, Lords Valley, Pennsylvania, filed this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Warden Craig Lowe of the Pike County
Prison has been deemed to be the sole Respondent. Service of the petition was
previously ordered.
It is initially noted that Petitioner has filed a motion requesting that attached,
additional exhibits be considered in support of his request for federal habeas
corpus relief. Kalu’s motion (Doc. 6) will be granted and his additional supporting
exhibits accepted.
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Petitioner states that he is a native and citizen of Nigeria who entered the
United States on or about February 18, 2003.1 See Doc. 1, ¶ 6. He subsequently
married a United States citizen. While in this country, Kalu was convicted on
March 1, 2010 in the United States District Court for the Eastern District of North
Carolina of conspiracy to commit health care fraud, health care fraud, as well as
aiding and abetting. After completing service of his resulting federal criminal
sentence, Petitioner was transferred into ICE custody on September 9, 2016.
An immigration judge ordered Petitioner’s removal from the United States
on December 14, 2016.2 Petitioner appealed that decision to the Board of
Immigration Appeals (BIA) which denied relief shortly after the filing of this
action. However, the record indicates that Petitioner has appealed that adverse
decision to the United States Court of Appeals for the Third Circuit. As such,
Kalu is not yet subject to a final order of removal. It is also noted that the Court of
Appeals recently granted Petitioner’s request for a stay of removal.
Petitioner’s pending action indicates that he has been detained by ICE for a
period of over six (6) months. Kalu’s petition challenges his indefinite mandatory
detention pending removal.

As relief, Petitioner seeks an individualized bond

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The record indicates that on October 24, 2007 Petitioner’s status was adjusted to lawful
permanent resident. See Doc. 1-1, p. 3.
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There was a lengthy history of immigration proceedings which preceded that decision.
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hearing. See Doc. 1, ¶ 37.
Respondent’s response to the petition concludes that “[i]f the court
determines that a discretionary bond hearing is warranted under the facts and
circumstances of this case, respondents will coordinate with the Immigration Court
to schedule a bond hearing before an immigration judges as expeditiously as
possible.” Doc. 7, p. 7. For the reasons set forth below, the Court will grant the
petition and order that an immigration judge conduct an individualized bond
hearing within thirty (30) days.
Discussion
Petitioner contends that he has been detained for an unreasonable amount of
time while his removal proceedings are ongoing in violation of the Due Process
Clause of the Fifth Amendment and Demore v. Kim, 538 U.S. 510, 531 (2003).
Section 1226(c) clearly requires that, prior to a final removal order, an alien may
be detained without being afforded a bond hearing. However, this “mandatory
detention” provision is not without limits.
In Demore, the United States Supreme Court concluded that “[d]etention
during removal proceedings is a constitutionally permissible part of [the
deportation] process.” Id. at 531. The United States Court of Appeals for the
Third Circuit has interpreted Demore and “conclude[d] that [§1226(c)] implicitly
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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 v.
ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir. 2011). Where detention has
become unreasonable, “the 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. at 233.

A determination as to

whether an individual’s detention is no longer reasonable in length is “a
fact-dependent inquiry that will vary depending on individual circumstances.” Id.;
see also Leslie v. Attorney Gen. of U.S., 678 F.3d 265, 269 (3d Cir. 2012). Such
an inquiry must account for delay caused by errors necessitating appeal, as well as
any continuances or delays favorable to the detainee. Diop, 656 F.3d at 233-34.
While declining to establish a bright-line rule for the length of time that would
constitute an unreasonable detention, the Third Circuit noted that “detention under
§1226 lasts roughly a month and a half in the majority of cases in which it is
invoked, and about five months in the minority of cases in which an alien chooses
to appeal,” id., and as a result, “the constitutional case for continued detention
without inquiry into its necessity becomes more and more suspect as detention
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continues past those thresholds.” Id. at 234.
The Third Circuit, in Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d
469, 477 (3d Cir. 2015) characterized the fact-dependent inquiry described in
Diop as a balancing test. It noted that the reasonableness of government conduct
and merit of the petitioner’s challenges are not dispositive standing alone, and are
only relevant when “weigh[ing] the various aspects of [the] case to determine
whether, and when, a tipping point has been reached on the reasonableness of [the]
detention.” Id.
Courts should not find that delay caused by a detainee’s challenges
precludes a finding of unreasonable detention because such a finding essentially
constitutes punishment for pursuing applicable legal remedies. Id. at 475 (citing
Leslie, 678 F.3d at 265). However, under narrow circumstances, when a petitioner
acts in bad faith to delay or stall the proceeding, this tactic may preclude a finding
of unreasonable detention.3 Chavez-Alvarez, 783 F.3d at 476. In ChavezAlvarez, our Court of Appeals found that “beginning sometime after the six-month
timeframe considered by Demore, and certainly by the time Chavez-Alvarez had
been detained for one year, the burdens to Chavez-Alvarez’s liberties outweighed

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Bad faith exists when a petitioner challenges aspects of the government’s case that do not
present bona fide or real issues, or are simply frivolous or meritless arguments. Id.
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any justification for using presumptions to detain him without bond to further the
goals of the statute.” Id. at 478. Respondent recognizes that based upon
Chavez-Alvarez, Kalu may be entitled to an individualized bond hearing based
upon the duration of his ongoing ICE detention. This Court agrees and also notes
that deference is owed to the decision-making agency to oversee matters within its
jurisdiction. See, e.g., Gourzong v. Lowe, No. 3:15-CV-1969, 2016 WL 109851, at
*2 (M.D. Pa. Jan. 11, 2016)(Mariani, J.). Since the Respondent does not oppose
Petitioner’s pending request and because the immigration court has the expertise,
familiarity, and authority to exercise jurisdiction over bond hearings such as those
contemplated under Chavez-Alvarez, the Court orders that an immigration judge
conduct an individualized bond hearing for the Petitioner within thirty (30) days of
the date of this Memorandum.
Conclusion
Pursuant to the above discussion, Petitioner is entitled to a bond hearing
before an immigration judge. Therefore, the Court will grant the instant petition
for writ of habeas corpus, and order that Petitioner be provided an individualized
bond hearing within thirty (30) days of this decision.

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An appropriate Order follows. 4

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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In light of the Court’s disposition herein, Petitioner’s motion to expedite (Doc. 3) will be
dismissed as moot.
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