Joaquin Pacheco Tum v. Paul G. Perry, et al.

Summary

The United States District Court for the Eastern District of Virginia grants Joaquin Pacheco Tum’s petition for a writ of habeas corpus under 28 U.S.C. § 2241. The court holds that his detention is governed by the discretionary detention framework of 8 U.S.C. § 1226(a), rather than the mandatory detention provisions of § 1225(b)(2), and that he is entitled to a bond hearing. The court orders Respondents to provide a bond hearing at which they must establish danger or flight risk by clear and convincing evidence.

Holdings

1. The court had jurisdiction to consider Pacheco Tum’s habeas petition because 8 U.S.C. §§ 1252(b)(9) and 1252(g) did not divest the court of jurisdiction over a challenge to detention and the denial of a bond hearing that did not seek review of a removal order or involve the commencement, adjudication, or execution of an immigration order.
2. Because Pacheco Tum had been present in the United States for at least ten years and was not actively seeking admission, his detention was governed by the discretionary detention framework in 8 U.S.C. § 1226(a), rather than the mandatory detention framework in § 1225(b)(2)(A).
3. Continued detention without a bond hearing violated Pacheco Tum’s Fifth Amendment right to due process.
4. The proper remedy was a bond hearing before an Immigration Judge, not immediate release, and Respondents must prove by clear and convincing evidence that continued detention is justified because Pacheco Tum presents a danger to the community or a flight risk.

Questions Presented

1. Whether the court had jurisdiction under 28 U.S.C. § 2241 notwithstanding the jurisdiction-stripping provisions in 8 U.S.C. §§ 1252(b)(9) and 1252(g).
2. Whether Pacheco Tum’s detention was governed by the discretionary detention provisions of 8 U.S.C. § 1226(a) or the mandatory detention provisions of 8 U.S.C. § 1225(b)(2)(A).
3. Whether detention without a bond hearing violated Pacheco Tum’s Fifth Amendment right to due process.
4. Whether the proper remedy was a bond hearing rather than immediate release, and which party should bear the burden of proof at that hearing.

Disposition

writ_granted