UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AARON JOLO, : CIVIL NO.4:15-CV-1845 

:

Petitioner, : (Judge Brann)

:

v. :

 : (Magistrate Judge Carlson)

ATTORNEY GENERAL, :

:

Respondent. :

MEMORANDUM ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

This federal habeas corpus petition comes before us in an unusual posture, where

the Respondent seeks to appeal a mere scheduling order issued by this court, (Doc. 13),

and stay that order, (Doc. 15), based upon the misapprehension that this scheduling

order somehow constitutes a ruling on the merits of this petition. While we will

GRANT this request for a stay, in part, as described below, we take this opportunity

to clarify the parties’ profound confusion concerning this rather routine scheduling

order.

By way of background, the petitioner, a Liberian national who is facing removal

from the United States, has filed a petition for writ of habeas corpus. That petition

indicates that Jolo came into immigration custody in November 2014, and was ordered

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removed in January, 2015, but remains in immigration detention pending removal. 

With the passage of nearly one year in immigration detention, and some ten months

since Jolo became subject to an administratively final order of removal, the petitioner

has come before this court filing this petition for writ of habeas corpus, and seeking 

individualized bail consideration.

We then entered a simple scheduling order in this case on November 5, 2015.

(Doc. 12.) That order required two things of the Respondent. First, on or before

November 30, 2015, the Respondent was to file a status report with the court indicating

the status of Jolo’s removal and whether the Respondents have elected to have an

Immigration Judge 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. (Id.) The

parties were also directed to report regarding whether they believe that a further

hearing is necessary. 

Second, this scheduling order conditionally set a time and date for further

proceedings in this matter, where the petitioner had been held in immigration custody

for a year, stating that if Jolo remained in detention, was not subject to imminent

removal, had not received individualized bail consideration by November 30, 2015,

and our review of the parties’ status reports revealed that further action was

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appropriate, this court would conduct an oral argument and bail or detention hearing

on December 2, 2015 at 11:00 a.m. in Courtroom 5, United States Courthouse,

Harrisburg, Pennsylvania, where the parties could present argument and evidence

relating to this issues raised by this petition. (Id.) 

The Respondent regrettably never sought further clarification of this scheduling

order. Instead, on November 19, 2015, the Respondent filed an appeal of this order,

along with a motion for stay. (Docs. 13-16.) These pleadings revealed an unfortunate,

and wholly avoidable confusion on the part of the Respondent concerning this

scheduling order, a confusion which we are pleased to clarify and eliminate for the

parties.

First, in these pleadings the Respondents incorrectly construed this scheduling

order, which called for a status report from Respondent and then set a tentative

hearing/oral argument date, as a decision which rendered final habeas corpus relief to

the petitioner. In fact, our November 5, 2015 order does no such thing. Rather, it

simply asks for a status report on the progress of Jolo’s removal, and set a tentative

date for further argument and presentation of evidence to the court. This second court

appearance, however, was only tentatively scheduled, and the necessity of any further

proceeding will depend upon the status report which we receive from the parties,

something that was made plain by the court in its November 5 order which stated that

a court proceeding would be conducted only if “our review of the parties’ status reports

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reveals that further action is appropriate.” (Id.) 

Nothing in the scheduling of these events is, was meant to be, or should be

construed as evincing a view on the ultimate merits of this petition. Quite the contrary,

this order simply scheduled a systematic way of addressing those merits, while

providing all parties the opportunity to argue those merits and present any evidence

relevant to this merits determination. For example, in their appeal and stay filings,

Respondent alleges that Jolo has an extensive criminal record, a factor which would

weigh significantly in any detention decision. Our scheduling order, properly

construed, was intended to allow the Respondent to present precisely this type of

information to us, while affording Jolo a chance to respond to this information. In our

view, there is simply nothing objectionable about adopting such an approach to an

issue that is so important to these litigants.

With its view of this order perhaps clouded by this initial misapprehension that

this scheduling order in some way covertly ruled upon the merits, the Respondent then

expressed confusion on a second, fundamental aspect of this order, which we are also

pleased to clarify. In these pleadings the Respondent suggests that we have applied an

erroneous standard of review in granting Jolo habeas relief and contends that this

petition should be examined in light of the Supreme Court’s decision in Zadvydas v.

Davis, 533 U.S. 678 (2001), which defined due process standards for aliens like Jolo

who are subject to final orders of deportation.

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This argument reflects basic confusion on two scores. First, it erroneously

conflates a scheduling order with a final merits decision. Our November 5 order never

ruled on the merits of this petition, and therefore never applied any legal standard,

sound or erroneous, to any merits determination.

 Second, this argument mistakenly suggests that we have not considered this

case in light of Zadvydas. The confusion on this latter point is somewhat puzzling,

since our November 5 order actually discussed Zadvydas at length, (Doc. 12, pp. 5-7),

and explained that in this case, it appears that Jolo has been the subject of a final

removal for the past 11 months since January of 2015. We also noted that, as an alien

subject to an administratively final order of removal, Jolo’s detention is governed by

a rigorous set of statutory and constitutional rules, rules designed to avoid undue

delay. First, by statute, once an alien is subject to a final removal order, he may be

detained under 8 U.S.C. § 1231(a), which directs the Attorney General to remove such

aliens within 90 days of the entry of a removal order. 8 U.S.C. § 1231(a)(1)(A). The

statute then commands that “[d]uring the removal period the Attorney General shall

detain the alien”, 8 U.S.C. § 1231(a)(2), and with respect to criminal recidivist aliens

like Jolo specifically provides that: “Under no circumstance during the removal period

shall the Attorney General release an alien who has been found ...deportable under

section 1227(a)(2) ... of this title.” 8 U.S.C. § 1231(a)(2). For purposes of our analysis

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of any post-final order period of detention, this statutory ninety-day “removal period”

during which detention is mandatory begins on the date the order of removal becomes

administratively final; that is, the date of the BIA decision affirming the removal order.

See 8 U.S.C. § 1231(a)(1)(B)(I). 

Furthermore, upon the entry of this final order, an alien will also have further

constitutional protections against undue delay and detention. For aliens awaiting

removal, the contours of those rights are now defined by the United States Supreme

Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the United

States Supreme Court extended due process protections to aliens awaiting removal

from the United States, while generally sustaining the validity of the initial mandatory

detention period for such aliens during the ninety-day removal period prescribed by 

8 U.S.C. § 1231(a)(1)(A). Beyond this initial 90-day period the Court concluded that:

“we think it practically necessary to recognize some presumptively reasonable period

of detention.” Id. at 701. 

The Court then observed that:

While an argument can be made for confining any presumption to 90

days, we doubt that when Congress shortened the removal period to 90

days in 1996 it believed that all reasonably foreseeable removals could be

accomplished in that time. We do have reason to believe, however, that

Congress previously doubted the constitutionality of detention for more

than six months . . . . Consequently, for the sake of uniform

administration in the federal courts, we recognize that period. 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

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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. This 6-month

presumption, of course, does not mean that every alien not removed must

be released after six months. To the contrary, an alien may be held in

confinement until it has been determined that there is no significant

likelihood of removal in the reasonably foreseeable future.

Id. at 701.

Taken together, 8 U.S.C. § 1231(a)(1)(A) and Zadvydas create 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. But, as we

previously noted, in our November 5 order we also observed that, according to the

Supreme Court: “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. This 6-month presumption, of course, does not mean that every alien not

removed must be released after six months. To the contrary, an alien may be held in

confinement until it has been determined that there is no significant likelihood of

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removal in the reasonably foreseeable future.” Id.

Given the undisputed fact that Jolo’s post final order of removal now well

exceeds the presumptively reasonable period defined by the Supreme Court, we elected

to schedule these proceedings, consistent with Zadvydas, to explore the legal and

factual issues relevant to this determination. Such hearings have in the past been

scheduled by trial courts when examining post-removal detention petitions which

involve claims of detention beyond the presumptively reasonable period defined by

Zadvydas. Barenboy v. Attorney Gen. of U.S., 160 F. App'x 258, 260 (3d Cir.

2005)(denying petition after a hearing). We trust that this order further clarifies our

understanding of the scope and nature of any further proceedings, and eliminates the

wholly unwarranted concern that this scheduling order constituted a ruling on the

merits of this petition since clearly it did not.1

Having provided this further clarification to the parties, we turn to the motion

for stay filed by the Respondent. As the Respondent is doubtless aware, in the normal

1

We also understand that the Respondent may have been concerned that our

scheduling order invited the parties to address factors that it deemed inappropriate

in a post-removal setting, such as those enumerated by the court of appeals in

Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 470 (3d Cir. 2015). To

the extent that this concern has animated the instant appeal, and stay request, it

may be more productive to address these issues in conjunction with the

proceedings scheduled in this case by the court rather than engaging in somewhat

speculative piecemeal appeals of scheduling orders. Towards that goal, we are

scheduling further submissions by the parties.

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course of proceedings, a motion for a stay of an order pending an appeal of that order

should in the first instance be directed to the judge who issued the initial order. See

Rule 8, Fed. R. App. Proc. Further, “we note that, . . . , ‘motions to stay litigation ...,

are non-dispositive motions under Rule 72(a). See, e.g., Gonzalez v. GE Group Adm'rs,

Inc., 321 F.Supp.2d 165, 166 (D.Mass.2004); Torrance v. Aames Funding Corp., 242

F.Supp.2d 862, 865 (D.Or.2002); All Saint's Brands, Inc. v. Brewery Group Den., A/S,

57 F.Supp.2d 825, 833 (D.Minn.1999); Herko v. Metro. Life Ins. Co., 978 F.Supp.

141, 142 n. 1 (W.D.N.Y.1997).’ PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st

Cir.2010). Therefore, the decision to grant, deny or lift a stay rests within the

jurisdiction and sound discretion of a United States Magistrate Judge under 28 U.S.C.

§ 636(b)(1)(A), subject to appeal to the district court for an abuse of that discretion.

Touton, S.A. v. M.V. Rizcun Trader, 30 F.Supp.2d 508, 510 (E.D.Pa.1998) (‘[T]he

Court finds that neither the grant of the stay of proceedings ..., nor the lift of said stay,

constituted “injunctive relief” in excess of the Magistrate Judge’s authority under §

636(b)(1)(A).’).” Stewart v. Wetzel, No. 1:13-CV-1707, 2013 WL 3353492, at *3

(M.D. Pa. July 2, 2013).

Accordingly, we will address this motion to stay in the first instance. In

considering this stay request, and recognizing the unfortunate confusion which

animated both the request for stay, and this appeal, we believe that an extension of

some of these deadlines is appropriate, and therefore we will GRANT the request, in

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part, as follows: 

First, on or before Monday, December 7, 2015, the Respondents shall file a

status report with the court indicating the status of Jolo’s removal and whether the

Respondents have elected to have an Immigration Judge make an individualized bail

determination. The parties shall also report on this date regarding whether they believe

that a further hearing is necessary. Aside from enlarging the deadline for the filing of

this status report, this aspect of our prior scheduling order shall remain unchanged. By

requesting this information of the parties, we invite all parties to address, both legally

and factually, the question of whether a further hearing is necessary.

Second, if our review of the parties’ status reports reveals that further action

is appropriate, this court will conduct an oral argument and bail or detention hearing

on December 18, 2015 at 11:00 a.m. in Courtroom 5, United States Courthouse,

Harrisburg, Pennsylvania, where the parties can present argument and evidence

relating to this issues raised by this petition. No party should construe the scheduling

of a hearing as a ruling on the merits, and if a hearing is conducted all parties should

file supplemental memoranda discussing the appropriate scope of a hearing or oral

argument, as well as the proper standard of review for this habeas petition, on or before

December 15, 2015.

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So ordered this 24th day of November, 2015.

S/Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

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