IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

CESAR HILARIO LLANOS :

PLACENCIA, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-16-1898

:

CRAIG LOWE, ET AL., : (Judge Brann)

:

Respondents :

MEMORANDUM

November 7, 2016

Background

Cesar Hilario Llanos Placencia, 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 was previously deemed to be the sole Respondent. 

Petitioner states that he is a native and citizen of Ecuador who entered the

United States on or about November 27, 2002 without inspection. He

subsequently married a United States citizen. While in this country, Placencia was

convicted of simple assault on May 8, 2014 in the Court of Common Pleas of

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Lehigh County , Pennsylvania.

Petitioner was taken into ICE custody on December 16, 2014 based upon

his illegal entry into the United States and his aforementioned criminal conviction. 

An immigration judge ordered Petitioner’s removal from the United States on

February 23, 2015. An appeal of that decision is presently pending before the

Board of Immigration Appeals (BIA). As such, Placencia is not yet subject to a

final order of removal. 

The pending § 2241 petition challenges Petitioner’s indefinite detention

pending removal. Respondent concedes that “[t]he Court should order that a

bond hearing be held before an immigration judge.” Doc. 6, p. 1. As relief,

Placencia seeks a bond hearing before an Immigration Judge or his release under

supervision. 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 Diop v. ICE/Homeland Sec., 656 F.3d 221,

231-35 (3d Cir. 2011). 

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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 v. Kim, 538

U.S. 510, 531 (2003), the United States Supreme Court concluded that “[d]etention

during removal proceedings is a constitutionally permissible part of [the

deportation] process.” The United States Court of Appeals for the Third Circuit

has interpreted Demore and “conclude[d] that [§1226(c)] 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.” Diop, 656 F.3d at 231. 

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

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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 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

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of unreasonable detention.1

 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 ChavezAlvarez had been detained for one year, the burdens to Chavez-Alvarez’s liberties

outweighed any justification for using presumptions to detain him without bond to

further the goals of the statute.” Id. at 478. Respondent acknowledges that based

upon Chavez-Alvarez, Placencia is entitled to an individualized bond hearing

since he has been detained for approximately twenty-two (22) months. This Court

agrees and also recognizes 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.). 

Based upon the Respondent’s concurrence and since 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 

1

 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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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. An appropriate Order shall

follow. 

BY THE COURT

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

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