IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NELSON QUINTEROS, : 4:15-cv-2098

Petitioner, :

:

v. : (Judge Brann)

: (Magistrate Judge Saporito)

WARDEN MARY SABOL, :

Respondent. :

REPORT AND RECOMMENDATION

This is a habeas corpus action brought by the petitioner, Nelson

Quinteros, under 28 U.S.C. §2241. We have determined thatthe petitioner

has been placed in removal proceedings, and has been detained preremoval, pursuant to 8 U.S.C. §1126(c) for more than 30 months while

these immigration proceedings have progressed. Both the Government

and the petitioner have agreed that the petitioner is entitled to a bond

hearing before an immigration judge. (Docs. 21, 22). For the reasons set

forth herein and based upon the parties’ mutual positions that the

petitioner is entitled to a hearing, we will recommend that this matter be

referred to an Immigration Judge to afford the petitioner an

individualized bail hearing under Chavez-Alvarez v. Warden York County

Prison, 783 F.3d 469 (3d Cir. 2015).

Case 4:15-cv-02098-MWB Document 32 Filed 10/14/16 Page 1 of 7
I. Background

The petitioner is a native and a citizen of El Salvador who entered

the United States with his mother without inspection near Eagle Pass,

Texas on February 13, 2001. (Doc 6-1 at 4). On October 16, 2013, the

petitioner was convicted of conspiracy to assault with a dangerous weapon

in aid of racketeering in the United States District Court for the Eastern

District of New York. (Id.). He was sentenced to incarceration for 30

months. (Id.). After he was released by the Federal Bureau of Prisons on

April 4, 2014, the petitioner was taken into custody by immigration

officials and was served with a Notice of Intent to Issue a Final

Administrative Removal Order and a Final Administrative Removal

Order. (Doc. 1 at 4). The removal order concluded that the petitioner was

“deportable as charged” and ordered that he be removed to El Salvador.

(Doc. 6-1 at 19). Thereafter, the matter was referred to an Immigration

Judge on July 1, 2014, because an asylum officer concluded that the

petitioner expressed a reasonable fear of persecution or torture if removed

to El Salvador. (Id. at 20). The matter had significant delays attributable

to, in part, the petitioner, the reassignment of the matter to a different

detail judge, and the motions for continuance filed by the petitioner’s

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counsel. Despite the delay and for whatever reason, the petitioner

remained detained.

II. Discussion

The parties’ submissions reflect that they agree that the petitioner

is entitled to a bond hearing before an immigration judge. Further, they

agree thatthe hearing should be conducted under the guidance of ChavezAlvarez, 743 F. 3d 469 and Diop v. ICE/Homeland Security, 656 F.3d 222,

223 (3d Cir. 2011) where the Government bears the burden of proving that

continued detention is necessary to fulfill the purposes of the detention

statute.

III. Recommendation

For the foregoing reasons, and by mutual request of the parties, it

is recommended that this matter be referred to an Immigration Judge to

afford the petitioner an individualized bail hearing consistent with the

legal benchmarks outlined above. We further recommend that the

Referral Order explicitly provide that:

1. The individualized bail hearing before an Immigration 

Judge shall be conducted within thirty (30) days of the date of the

Referral Order;

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2. At this hearing, the Immigration Judge shall 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, see ChavezAlvarez v. Warden York County Prison, 783 F.3d 469, 475 (3d Cir. 2015);

3. At this hearing, the Government shall bear the burden of 

presenting evidence and proving that continued detention is necessary to

fulfill the purposes of the detention statute, see Diop v. ICE/Homeland

Sec., 656 F.3d 221, 233 (3d Cir. 2011);

4. At this hearing, the proceedings shall be recorded by audio,

audiovisual, or stenographic means;

5. The parties shall report to this court on the outcome of this 

individualized bail determination by an Immigration Judge within seven

(7) days after the date of the hearing;

6. This court retains jurisdiction to conduct its own bail review,

if necessary, under the standards governing bail in habeas corpus

proceedings; and

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7. This matter be remanded to the undersigned United States

Magistrate Judge for further proceedings, including scheduling and

holding, if necessary, a bail determination hearing under the standards

governing bail in habeas corpus proceedings.

s/ Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge

Dated: October 14, 2016

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Case 4:15-cv-02098-MWB Document 32 Filed 10/14/16 Page 5 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NELSON QUINTEROS, : 4:15-cv-2098

Petitioner, :

:

v. : (Judge Brann)

: (Magistrate Judge Saporito)

WARDEN MARY SABOL, :

Respondent. :

NOTICE IS HEREBY GIVEN that the undersigned has entered 

the foregoing Report and Recommendation dated October 14, 2016.

Any party may obtain a review of the Report and 

Recommendation pursuant to Rule 72.3, which provides:

Any party may objectto 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

Case 4:15-cv-02098-MWB Document 32 Filed 10/14/16 Page 6 of 7
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 wavier of any appellate rights.

s/ Joseph F. Saporito, Jr. 

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge

Dated: October 14, 2016

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