REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, Jr., Magistrate Judge.
On November 7, 2016, the Court received and filed a pro se petition for a writ of habeas corpus submitted pursuant to 28 U.S.C. § 2241, signed and dated by the petitioner, Gurpreet Singh, on November 3, 2016. (Doc. 1). In this petition, Singh, a native and citizen of India, challenged the legality of his extended detention. At the time of filing, Singh was being held in the custody of U.S. Customs and Immigration Enforcement ("ICE") at York County Prison, located in York County, Pennsylvania. He is currently being held in ICE custody at Pike County Correctional Facility, located in Pike County, Pennsylvania.
I. BACKGROUND AND PROCEDURAL HISTORY
Singh is a citizen and native of India who attempted to enter the United States via the Hidalgo, Texas, Port of Entry on November 6, 2015. Singh applied for asylum and admission to the United States, and he was taken into ICE custody. Singh was found to be inadmissible because he lacked a valid entry document. He was therefore continued in ICE custody pursuant to 8 U.S.C. § 1225(b) and issued a Notice and Order of Expedited Removal.
On December 24, 2015, an asylum officer determined that Singh had not shown a credible fear of persecution or torture that would merit asylum. On January 13, 2016, an immigration judge reviewed and vacated the asylum officer's credible fear determination. One week later, on January 20, 2016, a Notice to Appear was issued, charging Singh once again with being removable as an "arriving alien" without proper documentation.
On May 17, 2016, Singh submitted a request for parole, which was denied. On October 7, 2016, a hearing was held before an immigration judge to consider Singh's applications for admission, asylum, and withholding of removal. The immigration judge denied Singh's applications for asylum and for withholding of removal.
Singh timely appealed the immigration judge's decision to the Board of Immigration Appeals ("BIA"). On February 27, 2017, the BIA dismissed Singh's appeal.
Singh timely appealed the BIA's decision to the United States Court of Appeals for the Third Circuit. That appeal remains pending before the Third Circuit. See Singh v. Attorney Gen. United States, No. 17-1563 (3d Cir. filed Mar. 13, 2017).1
Singh constructively filed his pro se § 2241 petition on November 3, 2016. (Doc. 1). We appointed counsel to represent Singh on January 23, 2017. (Doc. 16). Singh filed an amended petition on February 21, 2017. (Doc. 19). The respondent filed her response on March 7, 2017. (Doc. 20). Singh filed a reply on March 20, 2017. (Doc. 21). At this time, Singh has been held in ICE custody, pursuant to 8 U.S.C. § 1225(b), for a period of approximately seventeen months.
II. DISCUSSION
One of the statutory and constitutional duties conferred upon this Court is the responsibility to address federal habeas corpus petitions filed by immigration detainees who challenge their continued detention as unconstitutionally excessive. In recent years, case law in this field has evolved significantly, providing growing clarity regarding the contours of the right of immigration detainees to receive a minimal level of due process protection—an individualized bond hearing when confronted with detention for an indefinite and unreasonable duration.
For aliens awaiting removal, the contours of this right to due process were defined by the Supreme Court of the United States in Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the Supreme Court extended due process protections to aliens who were subject to final removal orders and were detained indefinitely while awaiting removal from the United States. While the Supreme Court sustained the validity of an initial mandatory detention period during the 90-day removal period prescribed by 8 U.S.C. § 1231(a)(1)(A), beyond this initial 90-day period the Court found it "practically necessary to recognize some presumptively reasonable period of detention." Id. at 701. The Supreme Court recognized a 6-month period during which the post-removal alien's continued detention is presumed to be reasonable. Id.
After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink.
Id. As this Court has recently recognized,
Taken together, 8 U.S.C. § 1231(a)(1)(A) and Zadvydas created a statutory and constitutional framework for protecting the rights of aliens who are detained pursuant to administratively final removal orders. Under this framework, such aliens shall be detained for the first 90 days of the removal period and further detention beyond this 90-day period will be presumed reasonable up to a period of 6 months, at which time aliens subject to final removal orders should either be removed, or be given bail consideration.
Ahad v. Lowe, ___ F. Supp. 3d ____, 2017 WL 66829 (M.D. Pa. Jan. 6, 2017) (unpaginated), appeal filed, No. 17-1492 (3d Cir. Mar. 3, 2017); Singh v. Lowe, Civil No. 3:17-CV-119, 2017 WL 1157899, at *4 (M.D. Pa. Mar. 7, 2017) (U.S. Magis. J. report), adopted by 2017 WL 1134413 (M.D. Pa. Mar. 27, 2017). Subsequently, the Supreme Court explicitly extended its holding in Zadvydas to cover inadmissible aliens as well. Clark v. Martinez, 543 U.S. 371, 378, 386 (2005). "Thus, when construing the post-final removal order detention statute, 8 U.S.C. § 1231, we are now enjoined to afford the same fundamental due process protections to all aliens, regardless of whether they were admitted to the United States or denied admission." Ahad, ___ F. Supp. 3d at ____, 2017 WL 66829; Singh, 2017 WL 1157899, at *4.
For aliens being held as they await removal proceedings, subsequent case law has extended these protections to them as well. In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court addressed whether § 1226(c)(1)(B)'s mandatory pre-removal detention provision, standing alone, violated due process, and held that it did not. But in doing so, the Court reiterated the fundamental idea that aliens, even those in pre-removal confinement, are protected by constitutional due process. See id. at 523. In reaching its conclusion, it also emphasized the brief duration of most removal proceedings, which seldom exceeded five months. See id. at 530.
In Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), the Third Circuit read Demore as implicitly recognizing that "the constitutionality of [mandatory detention] is a function of the length of the detention. At a certain point, continued detention becomes unreasonable . . . unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community." Id. at 232. "Diop laid out a two-step process: a reviewing court must first determine that a detention has been unreasonably long, and following such a determination, must determine whether the unreasonable detention is necessary to fulfill 1226's purposes." Leslie v. Attorney Gen. U.S., 678 F.3d 265, 269-70 (3d Cir. 2012).
More recently, in Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015), the Third Circuit provided us with clear guidance in assessing the reasonableness of the duration of mandatory pre-removal immigration detention under § 1226(c). In a case where an alien is prosecuting a good-faith challenge to his or her removal from the United States, the Third Circuit held that:
beginning sometime after the six-month time frame considered by Demore, and certainly by the time [the alien] had been detained for one year, the burdens to [the petitioner's] liberties outweigh[] any justification for using presumptions to detain him without bond to further the goals of the statute. . . . [T]he underlying goals of the statute would not have been, and will not now be undermined by requiring the Government to produce individualized evidence that [the petitioner's] continued detention was or is necessary.
Id. at 478.
In prescribing this one-year time frame beyond which the presumption of detention is sufficiently eroded that an individualized bail consideration is necessary, the Third Circuit also defined what showing the government must make to justify the continued detention of the petitioner. According to that court, the immigration statute "`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.'" Id. at 475. Further, once "detention becomes 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." Diop, 656 F.3d at 233 (emphasis added).
Our petitioner, however, is not a pre-removal detainee under § 1226(c). He presented himself to an immigration official at the Hidalgo Port of Entry as an applicant for asylum and admission to the United States. He was deemed inadmissible pursuant to 8 U.S.C. § 1182(a)(7) and held in custody pending asylum and removal proceedings pursuant to §1225(b). Proceedings on his application remain pending on appeal to the Third Circuit. At this point, he has been held by ICE in pre-removal custody for approximately 17 months.
As discussed above, it is well-settled that aliens in the post-removal context possess the same fundamental due process protections whether they were admitted to the United States or denied admission. In the related context of mandatory pre-removal detention of aliens pursuant to 8 U.S.C. § 1226(c), the Third Circuit has recognized a due process right to an individualized bond hearing after pre-removal detention reaches a presumptively unreasonable duration—one year. While neither the Supreme Court nor the Third Circuit has yet extended the application of this body of case law to the context of mandatory pre-removal detention of arriving aliens pursuant to 8 U.S.C. § 1225(b),2 this Court has recently considered the question and held that "aliens detained pursuant to § 1225(b) enjoy the same due process right afforded to many other classes of detained aliens: the right to an individualized bond determination once the length of their pre-removal detention has become unreasonable." Ahad, ___ F. Supp. 3d at ____, 2017 WL 66829; Singh, 2017 WL 1157899, at *8; see also Bautista v. Sabol, 862 F.Supp.2d 375, 380-81 (M.D. Pa. 2012) (applying Diop to pre-removal detention of an alien under § 1225(b) for 26 months). Other courts have reached the same conclusion. See Rodriguez v. Robbins, 804 F.3d 1060, 1081-84 (9th Cir. 2015), cert. granted sub nom. Jennings v. Rodriguez, 136 S.Ct. 2489 (2016); Nadarajah v. Gonzales, 443 F.3d 1069, 1078 (9th Cir. 2006); Gregorio-Chacon v. Lynch, Civil Action No. 16-2768 (SDW), 2016 WL 6208264, at *4 (D.N.J. Oct. 24, 2016); Damus v. Tsoukaris, Civil Action No. 16-933 (JLL), 2016 WL 4203816, at *3-*4 (D.N.J. Aug. 8, 2016); Maldonado v. Macias, 150 F.Supp.3d 788, 805-08 (W.D. Tex. 2015).
We find these decisions persuasive. We find 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. See Ahad, ___ F. Supp. 3d at ____, 2017 WL 66829; Singh, 2017 WL 1157899, at *8. We further find that the 17-month duration of Singh's detention has clearly reached this presumptively unreasonable length. Compare Ahad, ___ F. Supp. 3d at ____, 2017 WL 66829 (20 months unreasonable); Singh, 2017 WL 1157899, at *8 (16 months unreasonable); and Maldonado, 150 F. Supp. 3d at 809-10 (26 months unreasonable); with Gregorio-Chacon, 2016 WL 6208264, at *5 (6 months not unreasonable); and Damus, 2016 WL 4203816, at *4 (11 months not unreasonable).
Finding that an individualized bond hearing is appropriate in this case, we recommend that the Court defer to the immigration judge in the first instance for a prompt individualized bond determination, applying the constitutional benchmarks outlined in Diop and its progeny. See Chavez-Alvarez, 783 F.3d at 478 n.12; Ahad, ___ F. Supp. 3d at ____, 2017 WL 66829; Singh, 2017 WL 1157899, at *9; Bautista, 862 F. Supp. 2d at 382. In the event that Singh is denied a hearing, or is denied the rudiments of due process in that hearing, the petitioner is free to return to this Court by filing another petition for a writ of habeas corpus seeking further relief. See Leslie v. Holder, 865 F.Supp.2d 627, 629 (M.D. Pa. 2012); see also Ahad, ___ F. Supp. 3d at ____, 2017 WL 66829; Singh, 2017 WL 1157899, at *9.
III. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. The amended petition for a writ of habeas corpus (Doc. 19) be GRANTED.
2. An immigration judge be directed to afford the petitioner with an individualized bond hearing within thirty (30) days after the adoption of this report and recommendation. At this hearing, the immigration judge must make an individualized inquiry into whether detention is still necessary to fulfill the purposes of ensuring that the petitioner attends removal proceedings and that his release will not pose a danger to the community, in accordance with Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015). Further, the Government shall bear the burden of presenting evidence and proving the petitioner's continued detention is necessary to fulfill the purposes of the detention statute, in accordance with Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011).
3. The parties should report to this Court on the outcome of this individualized bond determination by an immigration judge within seven (7) days after the date of the hearing.
4. The petitioner's motion for a preliminary injunction (Doc. 3) be DENIED as MOOT.
5. The Clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated April 6, 2017. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
