Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
HUAZHEN DONG,
Petitioner
V.
ANGELA HOOVER,
Respondent 1
CIVIL ACTION NO. 1 :25-82
(JUDGE MANNION)
MEMORANDUM
Pending before the court is a report from United States Magistrate
Judge Susan 	E. 	Schwab which recommends that the petition for writ of
habeas corpus filed in the above-captioned matter be denied. (Doc. 13). The
petitioner filed objections to the report (Doc. 14) to which the government
responded (Doc. 15). After initially reviewing the report and objections, the
court ordered the respondent to file supplemental briefing. 	(Doc. 	16). 	In
response, both 	parties submitted 	supplemental 	briefing. 	(Docs. 	17, 	18).
1 The petitioner named both Angela Hoover, the Warden of the Clinton
County Correctional Facility, 	and Brian McShane, identified as the Acting
Field Director, Enforcement and Removal Operations, of Immigration and
Customs Enforcement, as respondents. As discussed by Judge Schwab in
her report, 	only the warden of the prison where the petitioner is 	held 	is
considered a proper respondent. 	Rumsfeld v. Padilla, 	542 U.S. 426, 442
(2004). As such, Brian McShane will be dismissed as a respondent.
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Upon review of the record, the court will adopt the report in part and decline
to adopt the report in part as further discussed herein.
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de nova those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1 ); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011 ). Although the standard is de nova,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to
the extent it deems proper. Riederv. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which 	no
objection is made, the court should, as a matter of good practice, "Satisfy
itself that there is no clear error on the face of the record in order to accept
the recommendation ." Fed. R. Civ. P. 72(b), advisory committee notes; see
also Univac Dental Co . v. Dentsply Intern ., 	Inc. , 702 F.Supp.2d 465, 469
(M .D. Pa . 2010) (citing Henderson v. 	Carlson, 	812 F.2d 874, 878 (3d Cir.
1987) (explaining judges 	should 	give some 	review to 	every 	report 	and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
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findi ngs 	or recommendations 	made 	by 	the 	magistrate judge. 28 	U.S.C.
§636(b)(1 ); Local Rule 72.31.
The full background and procedural history of this matter have been
summarized by Judge Schwab in her report. (Doc. 1, pp. 	1-4 ). As neither
party raises any challenge to this aspect of the report, the court adopts Judge
Schwab's summarization 	as if fully set forth herein. For purposes of this
memorandum, suffice it to say that the petitioner, an alien in immigration
custody, filed the instant action challenging her continued detention by the
Department 	of 	Homeland 	Security 	("DHS")/lmmigration 	and 	Customs
Enforcement 	("ICE") 	pending 	her 	on-going 	removal 	proceedings. 	The
petitioner raises two challenges to her continued detention : (1) that she is
not subject to mandatory detention under 8 U.S.C. §1226(c) because she
was never taken into criminal custody and therefore was not "released" from
any form of criminal custody 2; and (2) that her continued detention without a
bond hearing has become prolonged and violates her due process rights.
2 Title 8 U.S.C. §1226(c), which provides for mandatory detention of,
among others, aliens convicted of certain crimes, sets forth, in relevant part,
that 	"[t]he 	Attorney 	General 	shall 	take 	into 	custody 	any 	alien 	who 	[is
inadmissible or deportable for certain reasons] when the alien is released,
without regard to whether the alien is released on parole, supervised release,
or probation , and without regard to whether the alien may be arrested or
imprisoned again for the same offense." 8 U.S.C. §1226(c)(1) (emphasis
added). 	The 	petitioner 	believes 	that 	because 	she 	was 	sentenced 	to
(footnote continued on next page)
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In considering the petitioner's claims, Judge Schwab first determined
that the petitioner is, in fact, subject to mandatory detention under §1226(c)
based upon her predicate offense 3 and despite her argument that she had
never been in criminal custody. In so finding, Judge Schwab relied largely
upon the Supreme Court's decision in Nielson v. Preap, 586 U.S. 392 (2019).
In Preap, the Court provided that the scope of the term "the alien" in the when
released clause of §1226(c)(1) is "fixed by the predicate offenses identified"
in §1226(c)(1 )(A)-(D). 4 Id. at 408. The Court further found that anyone who
falls under the description of the predicate offenses identified falls under the
probation and never placed into custody in her criminal case, she was never
"released" from custody and, therefore, she does not fall within the "when
the alien is released" clause of §1226(c)(1 ).
3 The 	petitioner was 	convicted 	under 	8 	U.S.C . §1324(a)(1 )(A)(iii)
(providing criminal penalties for any person who "knowing or in 	reckless
disregard of the fact than an alien has come to, entered, or remains in the
United States in violation of law, conceals, harbors, or shields from detection,
or attempts to conceal, harbor, or shield from detection, such alien in any
place, including any building or any means of transportation"). She does not
argue that her conviction is not one of the predicate convictions that could
subject her to mandatory detention under §1226(c)(4). She argues only that
because she was never in custody 	in 	her criminal case, 	she was never
released from that custody, 	and therefore she does not come within the
"when the alien is released" clause of § 1226(c )( 1 ).
4 As noted by Judge Schwab, at the time of Preap, §1226(c) had only
two paragraphs. The Laken Riley Act, signed into law on January 29, 2025,
amended §1226(c), adding additional paragraphs. See Laken Riley Act, Pub.
L. No. 119-1 , 139 Stat. 3 (Jan. 29, 2025).
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detention mandate even if the Secretary did not arrest them immediately
when they were released. Id. Of import here, the Court found that the "when
the alien is released" language applies only in those cases where the alien
was once in criminal custody. In other situations, when the alien had not been
in criminal custody, the Court found the phrase was irrelevant. 5 In this regard,
the Court concluded "[i]t follows that both of subsection (c)'s mandates - for
arrest and for release - 	apply to any alien linked with a predicate offense
identified in subparagraphs 	(A)-(0), regardless of exactly when 	or even
whether the alien was released from criminal custody." Id. at 418.
Assuming the petitioner was never in criminal custody , Judge Schwab
found that it follows she was not arrested by immigration authorities under
§1226(c)(1). However, Judge Schwab found that does not mean that the
petitioner is not subject to mandatory detention under §1226(c)(4), as Preap
held 	that 	what 	determines 	whether 	someone 	is 	subject 	to 	mandatory
detention 	is 	whether 	they 	fall 	within 	any 	of the 	predicate 	offenses 	of
§1226(c)(1 ), not when - or even whether-they were arrested by immigration
authorities 	after 	being 	released 	from 	criminal 	custody. As 	such , Judge
Schwab found that the petition should be denied on this basis.
5 Judge Schwab provides a thorough discussion of the reasons the
Court came to this conclusion in her report. For the sake of brevity, the court
simply incorporates that discussion herein by reference.
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The petitioner has filed objections asking this court to reject Judge
Schwab's finding that she is subject to mandatory detention under §1226(c).
In doing so, she does not dispute that she has a requisite conviction identified
by the mandatory detention provision , but she continues to argue that she
cannot be subject to mandatory detention because she was never "released"
from any form of criminal custody. The petitioner does so acknowledging that
the 	Board 	of 	Immigration 	Appeals 	has 	interpreted 	Preap, 	albeit 	in 	an
unpublished decision , to mean that the mandatory detention provisions apply
even without any criminal custody whatsoever. (Doc. 1, Ex . E).
The court has carefully reviewed Judge Schwab's analysis of the issue.
Considering that analysis, including the discussion of Preap , the court finds
Judge Schwab's determination that the petitioner is subject to mandatory
detention under §1226(c), despite the fact that she was never "released"
from any form of custody, to be sound. Therefore, the court will overrule the
petitioner's objections and adopt Judge Schwab's report in this regard.
Next, Judge Schwab considered the petitioner's argument that her
continued detention violates her due process rights. 	In 	doing 	so, 	Judge
Schwab looked to the Third Circuit's decisions in Diop v. ICE/Homeland Sec.,
656 F.3d 	221 	(3d Cir. 	2011 ), 	and 	Chavez-Alvarez 	v. 	Warden 	York 	Cty.
Prison , 783 F. 3d 469 (3d Cir. 2015), wherein the Third Circuit addressed the
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prolonged 	detention 	of aliens 	under §1226(c). 	As 	discussed 	by 	Judge
Schwab:
In Diop, applying the cannon of constitutional avoidance,
the 	Third 	Circuit 	held 	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." 656 F.3d at
231 . The court reasoned that "[a]t a certain 	point, 	continued
detention becomes unreasonable and the Executive Branch's
implementation of §1226(c) becomes unconstitutional unless the
Government has justified its actions at a hearing inquiring into
whether 	continued 	detention 	is 	consistent 	with 	the 	law's
purposes of preventing flight and dangers to the community." Id.
at 232. Thus, the court concluded that when detention becomes
unreasonable, 	which 	determination 	is 	based 	on 	a 	"fact-
dependent 	inquiry ," 	"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.
(Doc. 13 , pp .17-18).
The Diop court provided that the case for continued detention without
a heari ng into its necessity becomes "suspect" when detention continues
past the five-month period identified in Demore v. 	Kim, 538 U.S. 510, 531
(2003), as the time it generally takes to decide a case in which the alien
chooses to appea l. Diop, 656 F.3d at 234.
In Chavez-Alvarez, the Third Circuit further discussed at what point
continued detention without a bond hearing violates due process:
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[D]ue process requires us to recognize that, at a certain
point - which may differ case by case - the burden to an alien's
liberty outweighs a mere presumption that the alien will flee
and/or is dangerous. At this tipping point, the Government can
no longer defend the detention against claims that it is arbitrary
or capricious by presuming flight and dangerousness: more is
needed to justify the detention as necessary to achieve the goals
of the statute. As we said 	in 	Diop, 	section 	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." Id. at 231. In
Diop's case, we weighed the goals of the statute against the
personal 	costs 	to 	his 	liberty 	resulting 	from 	his 	detention 	of
roughly two years, eleven months, 	and 	concluded that Diop's
detention was unconstitutional. Id.
Chavez-Alvarez, 783 F.3d at 474-75. As discussed by Judge Schwab, the
Third Circuit concluded in Chavez-Alvarez that "beginning sometime after
the six-month timeframe considered by Demore, and certainly by the time
Chavez-Alvarez 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.
Subsequently, in German Santos v. Warden Pike Cnty. Corr. Facility,
965 F.3d 203 (3d Cir. 2020), the Third Circuit identified a non-exhaustive list
of factors 	to 	consider 	in 	determining 	whether 	an 	alien's 	detention 	has
become unreasonable. Id. at 210. That list includes: (1) the duration of the
alien's detention; (2) whether the alien's detention is likely to continue; (3)
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the reasons for any delay; and (4) whether the conditions under which the
alien is confined are '" meaningfully different' from criminal punishment" Id. at
211 (quoti ng Chavez-Alvarez , 783 F.3d at 478).
In considering those factors in this case, Judge Schwab first looked at
the duration of the petitioner's detention, which the Third Circuit has identified
as the "most important factor." Id. At the time of Judge Schwab's report, the
petitioner had been detained a little over nine months. Considering a plethora
of cases from this district considering at what point continued confinement
without a hearing becomes unreasonable, Judge Schwab found that the
petitioner's detention for a little more than nine months had not yet reached
the tipping point when the length of detention would weigh in favor of a bond
hearing.
As to the second German Santos factor, whether the alien's detention
is likely to continue, Judge Schwab found that the petitioner's detention will
likely continue for some time and exactly how long could not be determined.
Thus, Judge Schwab found that this factor weighs in favor of a finding of
unreasonableness.
With 	respect to the third 	factor, the reasons for the delay, Judge
Schwab determined that this factor is neutral. In doing so , she found that
there is no evidence of bad faith on the part of the government. Moreover,
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despite 	the 	respondent's 	argument that 	the 	court 	should 	find 	that 	the
petitioner has delayed her own proceedings by filing various motions in her
case, Judge Schwab found that the time it takes for the petitioner to file and
litigate her applications and motions should not be held against her. German
Santos, 965 F.3d at 212. Further, Judge Schwab found that there was no
evidence to 	indicate 	that the 	petitioner was 	doing 	anything 	other than
presenting good faith claims and was not trying to purposefully delay her
removal.
Finally, in considering the fourth factor, whether the conditions under
which the alien 	is confined differ meaningfully from criminal punishment,
Judge Schwab found that the petitioner is detained at the Clinton County
Correctional Facility where she is being held with individuals being punished
criminally. As such, Judge Schwab found the fourth factor weighs in favor of
a finding 	of unreasonableness. 	See 	German 	Santos, 	965 	F.3d 	at 	213
(confinement at Pike County Correctional facility was indistinguishable from
criminal punishment). See also Chavez-Alvarez, 783 F.3d at 478 (although
termed "civil detention," confinement at the York County Correctional Facility
with those imprisoned for criminal offenses cannot be differentiated from
penal measures).
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Although 	some 	factors 	weighed 	in 	favor 	of 	a 	finding 	of
unreasonableness, Judge Schwab found that others were either neutral or
weighed against a finding of unreasonableness. Considering that what has
been termed the "most important factor," i.e., the length of confinement,
weighed against a finding of unreasonableness, Judge Schwab concluded
that due process did not demand a bond hearing in the petitioner's case.
The 	court 	has 	given 	careful 	consideration 	to 	the 	report 	of Judge
Schwab. While the reasoning for recommending that a bond hearing 	be
denied was sound at the time of the report, circumstances have changed. In
this regard, since the filing of the report and supplemental briefing in this
matter, the petitioner has now been detained for a period of approximately
twenty months without an individualized bond hearing. Further, it appears
that the 	petitioner faces 	being 	detained 	for 	several 	months 	more. 	The
Executive 	Office for 	Immigration 	Review's Automated 	Case 	Information
System reflects that, on 	August 20, 	2025, the petitioner's adjustment of
status application was denied by the immigration judge. 6 The petitioner filed
an appeal of that decision to the Board of Immigration Appeals (BIA) on
September 10, 2025. A timely brief in support of that appeal was filed on
6 https://acis.eoir.justice.gov/en/caseinformation (last visited March 10,
2026).
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February 23, 2026. With the briefing schedule having expired, no brief was
received from OHS . At this stage, it is unknown exactly how long it will take
the BIA to decide the petitioner's appeal. However, the potential is for many
more months.
At the current time, the petitioner's detention is now comparable to the
detention at issue in Chavez-Alvarez wherein the Third Circuit granted the
habeas petition finding that the petitioner's right to due process was violated
by detaining him under §1226(c) fo r more than a year and a half at the time
of the court's decision without a bond hearing. Further, as outlined by Judge
Schwab, decisions from this district support a finding that the length of the
petitioner's 	current 	detention 	without 	an 	individualized 	bond 	hearing 	is
unreasonable. See, e.g ., Baptista v. Lowe, 2024 WL 3410587, at *1 	(M . D.
Pa . May 7, 2024) (granting habeas petition 	of an 	alien 	detained for 	19
months); Clarke v. Doll, 481 	F.Supp.3d 394, 397 (M .D. Pa. 2020) (granting
habeas petition of an alien detained for 20 months); Elyardo v. Lechleitner,
2023 WL 8259252, at *2 (M .D. Pa . Nov. 29 , 2023) (granting habeas petition
of an alien detained for approximately 19 months); Malede v. 	Lowe, 2022
WL 3084304, at *5 (M .D.Pa. Aug. 3, 2022) (granting habeas petition of an
alien detained for nearly 18 months); Bah v. Doll, 2018 WL 5829668 , at *1
(M .D. Pa . Nov. 7, 2018) (granting habeas petition where the petitioner had
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been 	in 	custody 	in 	excess of 14 months without an 	individualized bond
heari ng).
Given the lengthy duration of the petitioner's detention to this point and
the likelihood that her detention will continue for many more months while
the 	BIA considers 	her appeal, the court 	concludes that the 	petitioner's
continued detention without an individualized bond hearing violates her right
to due process. As such, the Court will decline to adopt the report in this
respect, 	grant 	the 	petition 	for 	writ 	of 	habeas 	corpus, 	and 	direct 	the
respondent to provide the petitioner with 	an 	individualized bond hearing
within twenty-one (21) days, at which the government shall bear the burden
of proof. See, e.g ., Barbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d
274, 279 ( 3d Cir. 2018) (noting that the government bears the burden of proof
in bond hearings conducted under Section 1226(c)).
An appropriate order shall issue.
United S ates District Judge
DATE: 	3/1)/2.v
25-82-01
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