Dorley v. Normand

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GARSUMO PEE DORLEY, Petitioner, v. T. NORMAND, Respondents.

Civil Action No. 5:22-cv-62

United States District Court, S.D. Georgia, Mapcross Division

May 1, 2023

ORDER

LISA GODBEY WOOD, JUDGE

After an independent and de novo review of the entire record, the undersigned concurs with the Magistrate Judge's Report and Recommendation. Dkt. No. 21. Respondent and Petitioner Garsumo Dorley ("Dorley") filed Objections to this Report and Recommendation. Dkt. Nos. 23, 24.

In his Objections, Respondent asserts the Magistrate Judge misapplied the first factor of Sopo v. U.S. Attorney General, 825 F.3d 1199 (11th Cir. 2016) vacated, 890 F.3d 952 (11th Cir. 2018), which is the amount of time Dorley has been in detention without a bond hearing.^[1] Dkt. No. 23 at 2. Specifically Respondent states the Magistrate Judge improperly determined the date he issued the Report and Recommendation, rather than the date Dorley filed his 28 U.S.C. § 2241 Petition, is the correct measure of Dorley's time in detention without a bond hearing. Id. at 3 (citing Akinwale v Ashcroft, 287 F.3d 1050, 1051 (11th Cir. 2002)).^[2] Because Dorley raises a due process violation in the context of detention under 8 U.S.C. § 1226(c), the entirety of his detention without an individualized bond hearing, i.e., through the date of this Court's decision, appears to be the proper measure of time. Even if the date the Petition was filed is the relevant date, the distinction is immaterial to this factor in Dorley's case. Dorley was detained without a bond hearing for 15 months, when calculated from the beginning of his detention through date of filing Petition, or 20 months, when calculated from the beginning of detention through the date of the Report and Recommendation. Either way, the period exceeds the 12-month presumptively reasonable period found in Sopo. Dkt. No. 21 at 8 (quoting Sopo, 825 F.3d at 1218). The Court overrules Respondent's Objection.

Dorley "agrees with the Magistrate Judge's ultimate conclusion" but does object to the Magistrate Judge: concluding the factor regarding the cause of protracted proceedings is neutral and declining to decide whether the government would have the burden of persuasion in any bond hearing. Dkt. No. 24 at 1. Dorley maintains immigration officials caused delays by filing the original charging document in the wrong jurisdiction and then took no action to prosecute his case for five months' time once his case was in the proper jurisdiction. Dorley concludes the immigration judge's errors resulting in delays should result in a finding in his favor on this Sopo factor. Id. at 2-4. In his Objections, Dorley merely reasserts his arguments made at the hearing before the Magistrate Judge regarding the immigration judge's errors, but he does not show the Magistrate Judge clearly erred or that his finding is contrary to law. Fed.R.Civ.P. 72(a). Dorley does not show either party acted with dilatory motive or in bad faith, nor does he show the Magistrate Judge did not consider the relevant actions or inactions leading to some of the delays in proceedings. Furthermore, any error on this factor would not materially strengthen Dorley's position or lessen the Government's position. The Court overrules Dorley's Objection.

Both parties object to the Magistrate Judge declining to make any recommendation as to which party should bear the burden at an individualized bond hearing. Dkt. No. 23 at 3 (Respondent's Objection to failing to recommend Dorley bear the burden at a bond hearing before an immigration judge); Dkt. No. 24 at 4 (Dorley's Objection to failing to recommend the Government bear the burden of proof at a bond hearing before an immigration judge). In support, Dorley cites non-binding caselaw.^[3] The parties fail to show the Magistrate Judge erred in declining to give a recommendation for which party should bear the burden of proof at Dorley's individualized bond hearing. Dkt. No. 21 at 12. The immigration judge conducting the individualized bond hearing should make any burden determination.

The Court OVERRULES the parties' Objections and ADOPTS the Magistrate Judge's Report and Recommendation as the opinion of the Court. The Court DENIES Respondent's Motion to Dismiss, GRANTS Dorley's 28 U.S.C. § 2241 Petition, and DIRECTS Respondent or other Immigration and Customs Enforcement ("ICE") officials to conduct an individualized bond hearing for Dorley as soon as practicable.

SO ORDERED.

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^[1] Under Sopo, a court should consider, among other things: (1) the amount of time the alien has been in detention without a bond hearing; (2) the cause of the...