2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-19-2012

Neville Leslie v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 11-2442

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Neville Leslie v. Atty Gen USA" (2012). 2012 Decisions. Paper 1202.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/1202
1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2442

_____________

NEVILLE SYLVESTER LESLIE,

 Appellant

v.

ATTORNEY GENERAL OF THE UNITED STATES; 

MARY SAMBOL, Warden of York County Prison; 

THOMAS DECKER, District Director of Pennsylvania Field 

Office for Detention; JANET NAPOLITANO, Secretary of 

the US Department of Homeland Security

_____________

On Petition for Review of an Order of the United

States District Court for the Middle District of Pennsylvania

(D.C. No. 3:11-cv-0249)

District Judge: Honorable Richard P. Conaboy

Argued February 6, 2012

Before: SLOVITER, VANASKIE and GARTH, Circuit 

Judges.

(Filed: March 19, 2012)

Neville Leslie

ID #118592

York County Prison

3400 Concord Road

York, PA 17402

Pro Se Appellant

Tony West

David J. Kline

Victor M. Lawrence

Flor M. Suarez (Argued)
2

Office of Immigration Litigation

United States Department of Justice

P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044

Counsel for Appellee

Valerie Burch 

ACLU Foundation of Pennsylvania

105 N. Front St., Suite 225

Harrisburg, PA 17101

Counsel for Amicus Curiae American Civil Liberties 

Union Foundation of Pennsylvania

Judy Rabinovitz (Argued)

Michael K.T. Tan

ACLU Foundation Immigrants’ Rights Project

125 Broad Street, 18th Floor

New York, NY 10004

Counsel for Amicus Curiae American Civil Liberties 

Union Foundation

____________

OPINION OF THE COURT

____________

GARTH, Circuit Judge.

Petitioner Neville Leslie, a Jamaican alien, has been 

incarcerated since March 28, 2008 without a bond hearing. 

He now seeks a bond hearing as provided by 8 U.S.C. § 1226, 

contending that his continued detention by United States 

Immigration and Customs Enforcement (“ICE”) for four 

years is unconstitutional.1

Leslie’s appeal from the District Court’s denial of his 

petition for a writ of habeas corpus reveals a mixture of 

agency and court rulings (detailed below), all of which seek 

his removal to Jamaica and involve the pre-removal statute (8 

 1 With leave of this court, the American Civil Liberties Union 

Foundation and the American Civil Liberties Union 

Foundation of Pennsylvania (“ACLU”) entered this matter as 

amici curiae.
3

U.S.C. § 1226) and the post-removal statute (8 U.S.C. § 

1231). We now remand to the District Court and reverse the 

denial of Leslie’s petition for a writ of habeas corpus. We 

also order that Leslie be afforded a bond hearing no later than 

ten days from the date this opinion and order are filed.

I.

In 1998, Neville Leslie, a native and citizen of Jamaica 

and a lawful permanent resident of the United States, was 

convicted of a felony offense of conspiracy to possess and 

distribute more than fifty grams of “crack” cocaine in 

violation of 21 U.S.C. § 846. He was subsequently sentenced 

to 168 months imprisonment, which he has served. On 

March 28, 2008, after Leslie’s release from prison, ICE 

issued a warrant for Leslie’s arrest and took Leslie into 

custody. He has been incarcerated under ICE custody since 

that time.

On April 16, 2008, an Immigration Judge (“IJ”) held a 

hearing and found Leslie, who waived his right to counsel at 

the hearing, removable to Jamaica for having committed an 

aggravated felony. Leslie appealed that order to the Board of 

Immigration Appeals (“BIA”). His appeal was dismissed on 

July 11, 2008. On July 21, 2008, Leslie petitioned this court 

for review of the BIA’s decision, and he also moved to stay 

his removal on July 24, 2008. On August 14, 2008, this court 

granted the stay of removal pending the resolution of his 

petition for review.2

On July 8, 2010, this court, holding that the IJ failed to 

inform Leslie of the availability of free legal counsel, granted 

Leslie’s petition for review and remanded the case to the BIA 

for a new hearing. On December 10, 2010, the BIA 

 2 The record reveals that on November 16, 2009, a post order 

custody review was held by DHS, which the government 

represents as a “bond hearing.” Leslie represents, however, 

that he was not present, that a hearing was not held, and that 

he could not pay the $20,000 decreed as bond required. We 

cannot regard a proceeding at which neither Leslie nor 

counsel representing Leslie was present as a bond hearing.
4

remanded the case to the IJ, who scheduled a hearing for 

February 22, 2011.

While still engaged before the immigration authorities 

and while still awaiting the immigration hearing of February 

22, 2011, on February 2, 2011, Leslie filed a petition for a 

writ of habeas corpus in the District Court for the Middle 

District of Pennsylvania, challenging his continued 

immigration detention without hearing. 

First, Leslie claimed that his original conviction was 

not an “aggravated felony,” and that he therefore was not 

subject to criminal detention under 8 U.S.C. § 1226. Section

1226 concerns the arrest, detention, and release of aliens who 

have not yet been ordered to be removed, and, among other 

things, authorizes a bond hearing. Leslie also argued that his 

detention was unconstitutionally lengthy and that his 

continued detention without a bond hearing violated his 

procedural due process rights under the Fifth Amendment. 

Before Leslie’s habeas corpus petition was ruled on 

by the District Court, the IJ held the scheduled February 22, 

2011 hearing, where Leslie requested a continuance of his 

removal proceedings for “medical reasons.” The IJ continued 

the proceedings until March 30, 2011, at which time another 

hearing was held. At that hearing, Leslie again challenged 

the constitutionality of 8 U.S.C. § 1226 and again argued that 

his prior conviction was not an “aggravated felony.” The IJ

concluded that the prior conviction was an aggravated felony 

and did not decide the constitutional question of unreasonable 

detention. The IJ therefore ordered that Leslie be removed to 

Jamaica. Leslie appealed this decision to the BIA. 

The BIA remanded Leslie’s appeal of the IJ’s order of 

removal to the IJ, noting that the audio recording of the 

March 30, 2011 hearing and the audio recording of the 

immigration judge’s oral decision were missing from the 

record. The BIA therefore ordered the immigration judge to 

prepare a complete transcript of the March 30, 2011 

proceedings and, if necessary, to hold a new hearing. 

Meanwhile, on May 10, 2011, the District Court 

adopted a magistrate judge’s report and recommendation 
5

which recommended denying Leslie’s petition for a writ of 

habeas corpus “without prejudice to future requests when, and 

if, Leslie’s continued detention becomes sufficiently 

prolonged to trigger constitutional concerns.” The District 

Court then held that Leslie had been convicted of an 

aggravated felony and that his detention was not 

unreasonable. Leslie timely appealed the denial of his 

petition to this court, which we address today.

Leslie was ordered removed by the IJ on December 15, 

2011. Leslie appealed this order of removal to the BIA on 

December 22, 2011, and on February 3, 2012, DHS requested 

that the BIA expedite that appeal. As of this time, Leslie’s 

appeal is still pending before the BIA, and Leslie’s detention 

is continuing without Leslie having been afforded a bond 

hearing.

II.

This appeal requires us to resolve a single issue: 

whether the District Court properly determined that Leslie’s 

continued detention is reasonable, and that he is therefore not 

entitled to a bond hearing.3

 3 Leslie also argues that the District Court erred in referring 

his habeas petition to a magistrate judge to prepare a report 

and recommendation. Leslie claims, inter alia, that the 

referral to a magistrate judge for a report and 

recommendation violated his due process rights because he 

did not consent to it and that the District Court abused its 

discretion in adopting that report and recommendation. This 

argument is without merit; Local Rule 73.1(d) for the Middle 

District of Pennsylvania provides that civil cases “may be 

referred to a magistrate judge at the time of the filing of the 

complaint under the rotational assignment plan of the court 

and, at the same time, will be assigned to a district court 

judge. The magistrate judge, independent of the parties’ 

consent, is authorized to exercise all the judicial authority that 

is provided for by law for a magistrate judge.” Further, under 

Local Rule 72.3, after a magistrate judge issues a report and 

recommendation, the parties have an opportunity to file 

objections to it. Thereafter, under Local Rule 72.3, the 

District Court judge to whom the case is assigned must “make 
6

We begin by reviewing the statutory framework under 

which aliens can be detained during and subsequent to 

removal proceedings:

Under the pre-removal statute—8 U.S.C. § 1226(a)—

ICE can detain any alien pending a decision in removal 

proceedings against that alien, and can release on bond any 

alien not otherwise ineligible for such release. Section 1226 

expressly provides for mandatory detention during removal 

proceedings of aliens who are removable on account of their 

commission of certain enumerated offenses, including 

aggravated felonies such as Leslie’s. Once removal 

proceedings terminate in an order of removal, however, the 

alien’s detention is governed by 8 U.S.C. § 1231(a). 

Under the post-removal statute—8 U.S.C. § 1231—

ICE must remove the alien within 90 days of a final order of 

removal, and must detain the alien during that period. Certain 

removable aliens, including aliens who, like Leslie, are 

removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having 

committed an aggravated felony “may be detained beyond the 

removal period” pursuant to 8 U.S.C. § 1231(a)(6).

 

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.” 

In this case, Leslie’s petition was assigned to Judge 

Conaboy and referred to Magistrate Judge Martin C. Carlson. 

After Magistrate Judge Carlson issued his report and 

recommendation, Leslie made objections to it, and Judge 

Conaboy properly considered de novo those portions of the 

recommendation to which those objections pertained. All of 

the procedural requirements for referral to a magistrate judge 

were properly followed below; no consent from Leslie was 

required to allow the magistrate judge to prepare his report 

and recommendation, nor did Judge Conaboy abuse his 

discretion in adopting Magistrate Judge Carlson’s report and 

recommendation.
7

Because detention under § 1231(a) serves to detain for 

removal an alien who will in fact be subjected to removal, the 

Supreme Court has held that the extended mandatory 

detention provided for by § 1231(a)(6) is constitutional only 

if it is not indefinite and when a “significant likelihood of 

removal in the reasonably foreseeable future” exists. 

Zadvydas v. Davis, 533 U.S. 678, 701 (2001). In contrast, the 

Supreme Court did not expressly place any limits on ICE’s 

authority to detain aliens prior to a final order under § 1226. 

Demore v. Kim, 538 U.S. 510, 520-21 (2003).

This court, however, in considering Zadvydas, has 

determined that § 1226 “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 v. ICE/Homeland Sec., 

656 F.3d 221, 231 (3d Cir. 2011).4

 The court in Diop further 

noted that determining the point at which the length of 

detention is no longer reasonable is “a fact-dependent inquiry 

that will vary depending on individual circumstances. We 

decline to establish a universal point at which detention will 

always be considered unreasonable.” Id. at 233. The factdependent inquiry must take into account delay caused by 

errors which necessitated appeals as well as the extent to 

which continuances or other delays favorable to the alien 

have lengthened the period of detention. Id. at 233-34. 

The Diop court began its “reasonableness” analysis 

with the observation that “detention under § 1226 lasts 

roughly a month and a half in the vast 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. (Internal 

quotation marks and internal citations omitted). The court 

then observed that Diop had been detained for 35 months, and 

concluded that such a period of time, approximately six times 

longer than the regular period of detention, was unreasonable. 

 4 Diop v. ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir. 

2011) was not filed until after the District Court judge in this 

case had rendered his opinion, so that he could not have 

known about our analysis.
8

Furthermore, as here, the government in Diop argued that the 

alien was responsible for a significant portion of that delay 

because he had requested continuances and filed several 

appeals. The Diop court concluded that as a general principle 

“the reasonableness determination must take into account a 

given individual detainee’s need for more or less time, as well 

as the exigencies of a particular case,” id. at 234, even though 

Diop concluded that the government and the courts were 

primarily responsible for the delay in Diop’s case.

In other words, 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 as outlined in Diop, supra.

Because detention under the two statutes is governed 

by different standards, we must determine which statute has 

provided the authority for Leslie’s detention at a given time. 

The government argues that the two years for which Leslie 

was detained while this court stayed his removal were 

governed under the post-removal statute (§ 1231), and 

accordingly, that in assessing the reasonableness of Leslie’s 

detention, that time should not be considered. Leslie and the 

amici contend that his detention during that time was 

governed by the pre-removal statute, § 1226. We agree with 

Leslie and amici.

5

The government’s position on Leslie’s habeas petition 

is out of step with other jurisdictions and with the reasoning 

of Diop. Our review indicates that every circuit to consider 

the issue has held that § 1226, not § 1231, governs detention 

during a stay of removal. See Prieto-Romero v. Clark, 534 

F.3d 1053 (9th Cir. 2008); Wang v. Ashcroft, 320 F.3d 130 

(2d Cir. 2003); Beijani v. INS, 271 F.3d 670 (6th Cir. 2001) 

(abrogated on other grounds by Fernandez-Vargas v. 

Gonzales, 548 U.S. 30 (2006)). But see also Akinwale v. 

Ashcroft, 287 F.3d 1050 (11th Cir. 2002) (assuming that § 

 5 Judge Sloviter concurs in the result of the majority opinion 

and states: “I note with concern the failure of the Attorney 

General to cite 8 U.S.C. § 1252 (b)(8) or to discuss its 

applicability, if any, to the issues before us.”
9

1231 governs detention during a four month judicial stay of 

removal without analysis or discussion). Furthermore, insofar 

as the purpose of § 1231 detention is to secure an alien 

pending the alien’s certain removal, § 1231 cannot explain

nor authorize detention during a stay of removal pending 

further judicial review.

Moreover, the express language of § 1231 refers only 

to detention “during” and “beyond” “the removal period.” 

The removal period refers to the 90 day period between a 

statutorily specified event that begins the period and the time 

that the alien must in fact be removed. Section

1231(a)(1)(b)(ii) enumerates the events that can begin a 

“removal period,” a list that includes: “If the removal order is 

judicially reviewed and if a court orders a stay of the removal 

of the alien, [the date that begins the removal period is] the 

date of the court’s final order.” With this language in place, 

there can be little doubt that an alien, subject to and within a

stay of removal, cannot yet be in the “removal period” for 

§1231 purposes.

Leslie is currently detained “pre-removal” pursuant to 

§ 1226. Having determined that Leslie was also detained 

under § 1226 during the stay of his removal, Leslie has been 

continually detained pursuant to § 1226 since March 28, 

2008, a period of nearly four full years. The Diop framework 

guides our inquiry into whether detention under that statute is 

reasonable.

A comparison of Leslie’s detention to Diop’s makes 

clear that Leslie’s detention is unreasonable. In the present 

case, Leslie has been detained over a year longer than Diop 

had been. Although Leslie has requested and received a 

single continuance during that time, that continuance lasted 

for approximately five weeks, and cannot credibly be 

considered as a factor in the length of his detention. To the 

extent that his detention has exceeded the expected five 

month period for an appealed removal case, that extra time 

has been the result of appeals in which Leslie has prevailed; 

his initial appeal to this court was pending for nearly two 

years. Following this court’s order in that appeal, Leslie’s 

next hearing was not scheduled for almost seven months, and 

following that hearing, approximately six months passed 
10

during the pendency of Leslie’s appeal to the BIA, which was 

delayed and ultimately remanded for further proceedings, due 

entirely to clerical errors made by the immigration judge. 

“Although an alien may be responsible for seeking relief, he 

is not responsible for the amount of time that such 

determinations may take.” Ly v. Hansen, 351 F.3d 263, 272 

(6th Cir. 2003).

In short, over the course of his nearly four year 

detention, Leslie is responsible for a five week delay for 

unspecified medical reasons, and for the delay caused by his 

pursuit of bona fide legal challenges to his removal. To 

conclude that Leslie’s voluntary pursuit of such challenges 

renders the corresponding increase in time of detention 

reasonable, would “effectively punish [Leslie] for pursuing 

applicable legal remedies,” Oyedeji v. Ashcroft, 332 F. Supp. 

2d 747, 753 (M.D. Pa. 2004), and we decline the 

government’s invitation to adopt such a position.

We therefore hold that Leslie’s detention is 

unreasonably long, and he is therefore entitled to “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 231.6

III.

For the foregoing reasons, the District Court’s order 

denying Leslie’s petition for a Writ of Habeas Corpus will be 

reversed, and Leslie’s appeal will be remanded to the District 

Court with instructions to conduct an individualized bond 

hearing as required by Diop within ten days of the date when 

this opinion and order are filed.

 6 See footnote 4 of this opinion.