CHRISTOPHER C. CONNER, District Judge.
AND NOW, this 19th day of April, 2011, upon consideration of the Report and Recommendation of United States Magistrate Judge Martin C. Carlson (Doc. 5), recommending that Petitioner's Petition for Writ of Habeas Corpus be granted, and, following an independent review of the record, it appearing that neither party has objected to the magistrate judge's report and recommendation, and that there is no clear error on the face of the record,
MARTIN C. CARLSON, United States Magistrate Judge.
This case involves a habeas corpus petition filed by an immigration detainee,
For the reasons set forth below, we believe on the unique facts of this case that this extended period of pre-removal detention warrants habeas relief, in the form of an order directing the immigration judge to promptly provide Tkochenko with a full custody review.
Yana Tkochenko is a 34 year-old woman who is a native and citizen of Ukraine. (Doc. 4, Record of Deportable/Inadmissible Alien Ex. A at 1.) In 1999, Tkochenko entered the United States at an unknown place and date without having been inspected, admitted or paroled into the United States. (Doc. 4, Notice to Appear Ex. B at 3.)
According to the carefully detailed findings made by an immigration judge in February 2010, Tkochenko is also a woman who has spent the past two decades trapped in a brutal assaultive domestic relationship with a notorious criminal figure in the Ukraine. (Doc. 4, Ex. F.) In the course of this relationship, the immigration judge found that Tkochenko has been beaten, assaulted, abused, raped and threatened with death. (Id.) The immigration judge further found that this unrelenting pattern of abuse has taken place against a backdrop of official indifference in the Ukraine, and has specifically concluded that there is a significant likelihood that Tkochenko would be harmed, or killed, with impunity if she was returned to the Ukraine. (Id.)
It is against this stark social background that Tkochenko is alleged to have chosen to remain in this country after her spouse was arrested in the United States for extradition to the Ukraine. (Id.) In the United States, Tkochenko has apparently lived a marginal existence, which has included a series of law enforcement encounters, arrests and convictions for minor offenses, such as prostitution, retail theft and drug possession. (Id. Ex. A at 3.)
Following the last of these law enforcement encounters, immigration officials issued a warrant for Tkochenko's arrest on April 3, 2009. (Doc. 4, Warrant for Arrest of Alien Ex. C.) In conjunction with this arrest warrant, a notice to appear was also issued to Tkochenko on April 3, 2009, by the United States Bureau of Immigration and Customs Enforcement. In this notice to appear, immigration officials advised Tkochenko that she was subject to removal from the United States both, as an alien present in the United States without being lawfully admitted or paroled into this country
After being taken into custody on April 3, 2009, a custody determination was made by immigration officials and Tkochenko was informed that she would be detained pending a final removal determination by the immigration judge. (Doc. 4, Ex. D.) Taken into immigration custody in April 2009, Tkochenko has remained in a legal limbo, neither free nor removed from this country, for the past twenty-four months. Tkochenko's legal journey through the immigration system, a journey that has resulted in her prolonged confinement, began when removal proceedings were scheduled for Tkochenko for July 20, 2009. (Doc. 4, Application for Asylum and Withholding of Removal Ex. E at 1.) As this hearing approached, on July 17, 2009, Tkochenko conceded that she was subject to removal but applied for asylum and for withholding of removal. (Id.; Respondent's Brief in Opposition to Appeal Ex. G at 3.) A hearing on the merits of Tkochenko's application for asylum was held on October 19, 2009. (Doc. 4, Ex. F at 1 n. 1.) Following this hearing on February 25, 2010, the immigration judge ordered that Tkochenko be removed; however, the immigration judge also directed that Tkochenko's removal be withheld pursuant to section 241(b)(3) of the Immigration and Nationality Act, which provides that "the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life of freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group or political opinion." 8 U.S.C. § 1231(b)(3)(A). (Id. at 10.)
In its ruling concluding that Tkochenko should have her removal withheld, the immigration judge made a series of carefully reasoned factual findings. Thus, in this ruling the immigration judge detailed a decades-long pattern of physical, sexual and psychological abuse that Tkochenko claimed to have endured. The immigration judge further specifically found that Tkochenko's claims of this on-going abuse, including threats, assaults and rapes, were credible. The immigration judge also found that there was "little doubt" in Ukrainian society that the return of Tkochenko to her homeland would result in further threats, abuse, and harm at the hands of her spouse in a culture of official indifference to domestic violence which permits such violence "largely with impunity." (Id. at 6.)
Despite her success on this claim more than one year ago, Tkochenko remains in custody. Her continued custody is largely a result of litigation choices made by the Respondents. On March 1, 2010, immigration officials filed an appeal of the February 25, 2010, order of the immigration judge. (Doc. 4, Ex. H). Presently, this case remains pending before the Board of Immigration Appeals. (Id.) Moreover, immigration officials concede that there is no foreseeable end to Tkochenko's continued custody in this legal netherworld, neither free nor removed. Indeed, on January 12, 2011, the Board of Immigration Appeals notified the parties that the appeal was still pending and that "[b]ecause of the Board's heavy caseload, it cannot be predicted when a decision will be rendered." (Doc. 4, Ex. I.) This notice effectively informed Tkochenko that there was no identifiable end to her current legal dilemma, or detention.
Presented with this notice, on March 9, 2011, Tkochenko filed the instant habeas corpus petition seeking a review of her continuing custody. (Doc. 1.) In this petition Tkochenko asserts that the two-year duration of this mandatory, pre-removal
This petition invites the Court to consider issues relating to the constitutionality of pre-removal detention of an immigration detainee on an unusual, and unusually compelling, set of facts. The Petitioner, Yana Tkochenko, is a Ukrainian national who has been found to have credibly asserted that she has been the victim of decades of brutal domestic abuse in a culture that condones such abuse. Moreover, Tkochenko has already once prevailed on the merits of a claim that this sincere and well-founded fear of abuse and persecution justifies some relief from removal, but remains detained while the government further litigates issues relating to this claim. Further, Tkochenko is told by the government that holds her in pre-removal detention that there is no identifiable time when its appeal of the decision entered in her favor will be resolved. While this litigation is ongoing, litigation whose duration cannot even be estimated by the government, Tkochenko, who has been described by the immigration judge as a credible victim who experienced extensive, brutal domestic violence, has remained in mandatory detention for the past two years. Tkochenko's petition challenges the duration of this continuing pre-removal detention under the mandatory detention provisions of 8 U.S.C. § 1226(c)(1)(B), arguing that her continued detention now offends constitutional due process considerations. On the unique facts of this case, we concur.
In addressing this petition, we must determine two legal issues: first, whether Tkochenko's detention is permitted by statute, and second, whether the duration of this detention pending the entry of a final removal order offends constitutional due process considerations. In this case, for the reasons set forth below, we find that Tkochenko's initial detention was mandated by statute, but now has become unreasonable in its duration, compelling habeas relief in the form of a bail hearing.
At the outset, we will examine the period of pre-removal detention experienced by Tkochenko, carefully scrutinizing that period of detention to ensure both that it was legally appropriate at the outset, and assessing whether the duration of that detention has become so excessive that it violates Tkochenko's due process rights. In assessing this initial detention decision, we begin by noting that this detention appears to be compelled by statute. Section 1226 of Title 8, United States Code, directs the Attorney General to detain certain aliens pending removal, stating in clear and precise terms as follows:
8 U.S.C. § 1226(c)(1)(B) (emphasis added).
By enacting this mandatory detention requirement for a sub-class of aliens, including aliens like Tkochenko convicted of drug possession, awaiting removal from
Demore v. Kim, 538 U.S. 510, 518, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).
Recognizing these concerns, Congress mandated the detention of several classes of aliens, including aliens, like Tkochenko, who are convicted of drug-related offenses. The immigration laws define these excludable, inadmissible aliens in the following terms:
8 U.S.C. § 1182(a)(2).
Those laws then describe a group of aliens, like Tkochenko, who are convicted of drug possession offenses, and may now be deported as a consequence of those drug convictions. Section 1227(a)(2)(B) of Title 8, United States Code, defines this class of in the following terms:
8 U.S.C. § 1227(a)(2)(B) (emphasis added.)
In this case, it appears that Tkochenko falls within this class of aliens convicted of possessing small quantities of drugs who are subject to the mandatory detention provisions of 8 U.S.C. § 1226(c). However, this finding does not end our inquiry.
The starting point of this analysis is the United States Supreme Court's decision in Demore v. Kim, 538 U.S.510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). In Demore, the Supreme Court found that § 1226(c)(1)(B)'s mandatory detention provision does not, by itself, violate due process, holding that: "Detention during removal proceedings is a constitutionally permissible part of that process." Demore, 538 U.S. at 531, 123 S.Ct. 1708 (citations omitted). Yet, while reaching the conclusion that mandatory detention of certain criminal aliens did not violate due process, the Supreme Court emphasized the very brief duration of most removal proceedings which rarely exceeded five months, id. at 530, 123 S.Ct. 1708, and noted that the six-month delay experienced by the alien in that case was a product of his own actions which delayed the entry of a final removal order. Id. at 531, n. 15, 123 S.Ct. 1708. Given the fixed and finite term of any pre-removal detention, the Court held that the fact of this mandatory detention did not violate due process.
Thus, Demore held that mandatory detention of certain criminal aliens pending removal proceedings does not, by itself, offend due process. However, the Demore Court based this ruling upon its understanding of the short, fixed and finite term of any detention prior to removal. Therefore, while Demore addressed the due process issues that arise from the mere fact that, for certain aliens, detention pending removal is mandatory, courts still have an independent responsibility to assess whether the duration of any mandatory detention is so extended and unreasonable as to violate due process. Moreover, in those instances where the period of detention has become excessive courts are obliged to grant habeas corpus relief to detained aliens. See, e.g., Tijani v. Willis, 430 F.3d 1241 (9th Cir.2005); Ly v. Hansen, 351 F.3d 263 (6th Cir.2004); Alli v. Decker, 644 F.Supp.2d 535 (M.D.Pa.2009); Occelin v. District Director, No. 09-164, 2009 WL 1743742 (M.D.Pa. June 17, 2009); Victor v. Mukasey, No. 08-1914, 2008 WL 5061810 (M.D.Pa. Nov. 25, 2008); Wilks v. U.S. Dep't of Homeland Security, No. 07-2171, 2008 WL 4820654 (M.D.Pa. Nov. 3, 2008); Nunez-Pimentel v. U.S. Dep't of Homeland Security, No. 07-1915, 2008 WL 2593806 (M.D.Pa. June 27, 2008); Prince v. Mukasey, 593 F.Supp.2d 727 (M.D.Pa.2008); Madrane v. Hogan, 520 F.Supp.2d 654 (M.D.Pa.2007).
Several key benchmarks have emerged defining the contours of this constitutional protection against excessive detention pending removal hearings. First, in assessing these claims, we must look to the duration of the detention. Thus, in general, pre-removal detentions spanning a period of months do not present substantial constitutional issues. See e.g., Demore, 538 U.S. at 531, 123 S.Ct. 1708 (6 months); Rodrigques v. Holder, No. 09-1764, 2010 WL 830929, *3 (M.D.Pa. March 4, 2010) (one-year detention); Slebo v. District Director, No. 09-1335, 2009 WL 2151347 (M.D.Pa. July 17, 2009) (Munley, J.) (8 months); Rodney v. Mukasey, No. 08-1386, 2009 WL 427171 (M.D.Pa. Feb. 20, 2009) (Muir, J.) (18 months); Wright v. Bureau of Immigration and Customs Enforcement, No. 06-2278, 2007 WL 89263 (M.D.Pa. Jan. 9, 2007) (Conner, J.) (7 months). In contrast, periods of detention which exceed one year, like the detention currently endured by Tkochenko, trigger substantial constitutional concerns and often may warrant relief. See, e.g., Tijani v.
However, as these cases reveal, the legal analysis here does not involve simple arithmetic. A qualitative assessment must also be made of the reasons for the delay in removal, and who bears responsibility for that delay. Therefore, when weighing claims of excessive delay made by immigration detainees challenging mandatory pre-removal detention, courts must also carefully assess the reasons for the delay. In this regard, delays attributable to the government weigh heavily against the respondents in conducting this analysis. See Victor v. Mukasey, No. 08-1914, 2008 WL 5061810 (M.D.Pa. Nov. 25, 2008) (16 months due to government litigation decisions, release ordered). In contrast, where the delay is attributable to actions taken by the alien in the course of litigating the removal proceedings, courts typically will not hold the government accountable for that delay when conducting a due process analysis. See, e.g., Demore, 538 U.S. at 531, n. 15, 123 S.Ct. 1708; Castellanos v. Holder, 337 Fed.Appx. 263 (3d Cir.2009) (delay caused by alien's litigation tactics); Jah v. Attorney General, 258 Fed.Appx. 394 (3d Cir. 2007) (17-months detention); Tavares v. Attorney General, 211 Fed.Appx. 127 (3d Cir.2007) (24-months detention); Rodrigques v. Holder, No. 09-1764, 2010 WL 830929, *3 (M.D.Pa. March 4, 2010) (one-year detention held attributable to alien's litigation tactics); Contant v. Mukasey, No. 08-1852, 2009 WL 427244 (M.D.Pa. Feb. 20, 2009) (15-months detention); Prince v. Mukasey, 593 F.Supp.2d 727 (M.D.Pa.2008).
Further, any consideration of an excessive delay claim brought by an alien who is pending removal from the United States should take into account the fact that, upon entry of a final removal order, different statutory and due process protections come into play, protections designed to ensure that aliens who have been ordered removed are not held in custody for an unreasonable period of time. Thus, once a final order of removal is entered, the due process protections afforded to aliens by Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) apply. See Matthias v. Hogan, No. 07-1987, 2008 WL 913522 (M.D.Pa. March 31, 2008). Under Zadvydas aliens subject to
In this case, our review of these fundamental due process considerations leads us to conclude that the pre-removal delay experienced by Tkochenko offends due process. An assessment of the considerations which govern our due process analysis of Tkochenko's pre-removal detention reveals a constellation of factors which strongly favor consideration of bail for Tkochenko. At the outset, the duration of this detention has been protracted, spanning two years. This is almost five times the typical 5-month length of the detention acknowledged as presumptively reasonable by the Supreme Court in Demore. Therefore, in terms of the duration of this detention, Tkochenko's case falls squarely within that array of cases where prolonged detention, spanning a year or more, has inspired profound constitutional concerns justifying habeas relief. See, e.g., Tijani v. Willis, 430 F.3d 1241 (9th Cir.2005) (2 years 8 months); Ly v. Hansen, 351 F.3d 263 (6th Cir.2004) (500 days); Alli v. Decker, 644 F.Supp.2d 535 (M.D.Pa.2009) (9 and 20 months); Occelin v. District Director, No. 09-164, 2009 WL 1743742 (M.D.Pa. June 17, 2009) (2 years) Victor v. Mukasey, No. 08-1914, 2008 WL 5061810 (M.D.Pa. Nov. 25, 2008) (16 months); Wilks v. U.S. Dep't of Homeland Security, No. 07-2171, 2008 WL 4820654 (M.D.Pa. Nov. 3, 2008) (2 years); Prince v. Mukasey, 593 F.Supp.2d 727 (M.D.Pa.2008) (16 months); Madrane v. Hogan, 520 F.Supp.2d 654 (M.D.Pa. 2007) (3 years).
Furthermore, this lengthy period of pre-removal detention is largely attributable to litigation decisions made by the government. After her arrest, Tkochenko promptly acknowledged that she was subject to removal but sought relief from removal to the Ukraine citing what the immigration judge found to be a credible, sincere, genuine and real fear that she will be brutalized, raped, threatened assaulted and perhaps even killed if she is returned to the Ukraine. Since February 2010, the delay in this litigation has been a function of litigation decisions made by immigration officials, who have contested the finding this February 2010 immigration judge decision. Thus, for the past year the government has been the principle agent of delay in this case. While the government can, and should, exercise its litigative prerogatives in these cases, it must remain alert to the impact of those decisions on the lives of the people it detains. In such instances, where immigration officials have made litigation choices that prolonged and delayed removal proceedings, the release of the alien pending completion of this protracted litigation is both necessary and appropriate. Victor v. Mukasey, No. 08-1914, 2008 WL 5061810 (M.D.Pa. Nov. 25, 2008) (16 months due to government litigation decisions, release ordered).
Furthermore, the Court has no confidence that this is a case in which the period of continued detention pending removal has any fixed, finite or identifiable
Furthermore, once the BIA eventually rules, given the stakes involved in this litigation for the parties which is described as a matter of life or death for the Petitioner, it can readily be expected that any ruling, whether favorable or adverse to Tkochenko, will inspire further immigration proceedings, and compel what this Court has previously described as a "maze of removal proceedings," see Victor v. Mukasey, No. 08-1914, 2008 WL 5061810, *5 (M.D.Pa. Nov. 25, 2008), which may span many months. In such instances, release of the alien pending completion of these proceedings is fully justified. See, e.g., Madrane v. Hogan, 520 F.Supp.2d 654 (M.D.Pa.2007); Victor v. Mukasey, No. 08-1914, 2008 WL 5061810 (M.D.Pa. Nov. 25, 2008); Wilks v. U.S. Dep't of Homeland Security, No. 07-2171, 2008 WL 4820654 (M.D.Pa. Nov. 3, 2008).
Indeed, granting this relief is particularly appropriate here, where it is evident that Tkochenko has made a substantial showing that she may prevail on the merits; where an immigration judge has found her fears of harm to be credible; and where Tkochenko has remained in a legal limbo-neither free nor removed-for two years. Since Tkochenko's continued detention is now of an excessive duration, and is largely the product of governmental delays stemming from efforts by immigration officials to contest a finding that Tkochenko has a sincere, well-grounded fear that she will be assaulted, threatened, raped or killed with impunity if she is removed to the Ukraine, an issue which may entail further protracted litigation, this Petitioner is now entitled to habeas corpus relief.
In framing this relief we recognize that, in the past, the courts have used various means to ensure that immigration detainees have their removal claims reviewed promptly. In some instances the court has directed immigration officials to re-consider their detention decisions. See, e.g., Prince v. Mukasey, 593 F.Supp.2d 727 (M.D.Pa.2008) (16 months detention, agency instructed to review case); Wilks v. U.S. Dep't of Homeland Security, No. 07-2171, 2008 WL 4820654 (M.D.Pa. Nov. 3, 2008); Thomas v. Hogan, No. 08-417, 2008 WL 4793739 (M.D.Pa. Oct. 31, 2008.) In other instances, the district court has conducted the bail review itself. Occelin v. District Director, No. 09-164, 2009 WL 1743742 (M.D.Pa. June 17, 2009) (two years detention, court schedules hearing to review case). In still other instances, the remedy imposed by the court has been an order directing the outright release of the alien. See, e.g., Madrane v. Hogan, 520 F.Supp.2d 654 (M.D.Pa.2007); Victor v. Mukasey, No. 08-1914, 2008 WL 5061810 (M.D.Pa. Nov. 25, 2008); Nunez-Pimentel v. U.S. Dep't of Homeland Security, No. 07-1915, 2008 WL 2593806 (M.D.Pa. June 27, 2008.)
In this case it is recommended that the relief ordered by the Court initially be narrowly tailored in order to allow the agency to re-consider its rulings in light of this opinion. Accordingly, it is recommended, consistent with prior case law, that this petition be granted and that,
Adopting this proposed course fulfills our constitutional obligations, while remaining mindful of the need for the agency to make independent judgments in this field. See Ogunbeken v. Sabol, No. 09-368, 2009 WL 3245828 (M.D.Pa. Oct. 6, 2009). It also permits the United States to make a full record of any agency bail or detention decisions, a record which would facilitate informed review of those decisions by the Court, if such review becomes necessary.
For the foregoing reasons, upon consideration of this Petition for Writ of Habeas Corpus, IT IS RECOMMENDED that the Petition be GRANTED and that within 15 days of the date of an order adopting this Report and Recommendation, Respondents should be ordered to provide Petitioner with a hearing before an immigration judge where, if the government wishes to detain Petitioner during the course of her removal proceedings, it shall have the burden of proving that Petitioner is a flight risk or a danger to the community. Wilks v. U.S. Dep't of Homeland Security, No. 07-2171, 2008 WL 4820654 (M.D.Pa. Nov. 3, 2008).
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Submitted this 1st day of April, 2011.
