The opinion of the court was delivered by: Pisano, District Judge.
This matter comes before the Court raising the reoccurring issue in Section 2241 litigation of challenges to pre-removal order detention. On December 8, 2009, Petitioner Jimmy Rogers Pierre ("Pierre") filed a petition seeking habeas relief for himself and a class of "similarly situated." See Docket Entry No. 1, at 2. On January 11, 2010, Pierre filed his amended petition ("Petition"), superseding the original filing. This pleading was filed solely on Pierre's own behalf and asserted jurisdiction under 28 U.S.C. § 2243, that is, the disposition statute. Pierre's reliance upon which suggests his intent to assert jurisdiction under the "habeas statute" Section 2241. See Munaf v. Geren, 128 S.Ct. 2207, 2221 (2008) ("The habeas statute provides only that a writ of habeas corpus 'may be granted,' § 2241(a), and directs federal courts to 'dispose of [habeas petitions] as law and justice require,' § 2243.") (emphases removed, citation omitted). Being a pre-removal-order detainee, Pierre challenges his current detention by the Department of Homeland Security ("DHS").*fn1
While "[h]abeas corpus petitions must meet heightened pleading requirements," McFarland v. Scott, 512 U.S. 849, 856 (1994), a measure of tolerance is given to pro se litigants. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Att'y Gen., 878 F.2d 714, 721-22 (3d Cir. 1989). Although Pierre's Petition is not of exemplary clarity, the statements made therein, read jointly with the exhibits provided by him, allow the Court to piece together the facts underlying Pierre's challenges as well as the gist of his legal claims without requiring Pierre to re-amend his Petition.
The circumstances at hand do not appear complex. Being a Haiti native, Pierre entered the United States in 1990, at the age of fifteen, as a permanent legal resident ("PLR"), the status known in layperson terms as a "green card holder." See Docket Entry No. 3, at 5. Four years later in 1994, Pierre pled guilty to his first penal offense, menacing in the third degree. See id. at 6; Docket Entry No. 3-2, at 4. Four years passed by and in 1998, Pierre was convicted of his second penal offense, petit larceny. See Docket Entry No. 3-2, at 4, 12. Another five years passed and in 2003, Pierre pled guilty to his third penal offense, menacing in the second degree. See Docket Entry No. 3, at 6; Docket Entry No. 3-2, at 4. Four years later in early 2007, Pierre was convicted of his first felony that resulted in a prison term of two to six years. See Docket Entry No. 3, at 5; Docket Entry No. 3-2, at 8. On October 26, 2007, Pierre was released on parole supervision, see Docket Entry No. 3-2, at 19, but two months later on December 24, 2007, was arrested and kept in custody on charges of sexual assault. See Docket Entry No. 3, at 6. On November 10, 2008, the sexual assault charges were dismissed, but Pierre was not released. See Docket Entry No. 6, at 2. Pierre remained in custody because three months prior to dismissal of the sexual assault charges on August 14, 2008 the DHS served Pierre with notice informing him that removal proceedings were instituted against him on the grounds that Pierre, after entering the United States, was convicted of at least two crimes of moral turpitude that did not arise out of a single scheme of criminal misconduct, i.e., on the basis supplied by 8 U.S.C. § 1226(c). See Docket Entry No. 3-2, at 2.
During his proceedings before the immigration judge ("IJ"), Pierre vigorously opposed his removal by making numerous applications. Specifically, he "applied for [c]ancellation of removal... [and for a]sylum, [and also for deferral and w]ithholding of removal, [plus he sought a remedy] under [A]rticle 3 of [the] Convention against torture."*fn2 See Docket Entry No. 3, at 6. However, on October 5, 2009, the IJ entered an order denying Pierre asylum, withholding of removal, cancellation of removal, deferral of removal, CAT remedy, etc., and ordered Pierre removed back to Haiti. See Docket Entry No. 3, at 6; Docket Entry No. 3-2, at 2. Seven days later, on October 14, 2009, Pierre filed his appeal to the Board of Immigration Appeals ("BIA"), which prevented the IJ's order from becoming final with the simple passage of time. On December 8, 2009, less than two months after filing his BIA appeal, Pierre filed with this Court his original petition, which was superseded by the instant Petition one month later. In his instant Petition, Pierre asserts that he "faces an indeterminate period of future detention," because "[i]t would take months if not years to wait for a decision from the BIA" and, seeking to avoid such "indefinite detention," Pierre requests "immediate release... or, in the alternative, a hearing... at which [the DHS would] bear the burden of establishing that [Pierre's] continued detention is justified." Docket Entry No. 3, at 2, 5 & 6.
Although Pierre's legal claims consume eleven of the eighteen pages of his Petition, these contentions could be summarized in just a few points. First, Pierre contends that the holding of Demore v. Kim, 538 U.S. 510 (2003), must be read extra-narrowly as limited to the facts of Kim. This means the holding would apply only if (i) the detention of the alien corresponds, in time-frame, to the average period of detention represented by the Kim respondents in 2003; and (ii) the alien, same as the Kim petitioner, does not challenge his/her removability. Since Pierre believes that he has been detained "too long" and, in addition, because he is challenging his removability, he claims that the holding of Kim is inapplicable to him. Second, since Pierre believes that the so-read Demore v. Kim is inapplicable to his circumstances, Pierre argues that the Court must import the presumptively reasonable period announced in Zadvydas v. Davis, 533 U.S. 678 (2001), into Pierre's circumstances and order Pierre's release and/or re-characterize Pierre as an alien held under § 1226(a) (rather than under § 1226 (c)) and, upon such re-characterization, require the DHS to provide Pierre with bond hearings that are built into the scheme of § 1226(a). See generally id. at 7-17.
Asking this Court not to find § 1226(c) facially unconstitutional, Pierre invites the Court to employ the canon of constitutional avoidance by merely finding the DHS's application of § 1226(c) as to Pierre unconstitutional in light of the fact that Pierre has not been released and has not received a bond hearing while awaiting the outcome of his deportation battle. See id. at 2, 11-12. In support of his position, Pierre offers his reading of Demore and Zadvydas, and relies upon Casas-Castrillon v. Dep't of Homeland Security, 535 F.3d 942 (9th Cir. 2008), Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), Gonzales v. O'Connell, 355 F.3d 1010 (7th Cir. 2004), Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003), Alli v. Decker, 644 F. Supp. 2d 535 (M.D. Pa. 2009), D'Alessandro v. Mukasey, 628 F. Supp. 2d 368 (W.D.N.Y. 2009), Bourguignon v. Macdonald, No. 08-30068, 2009 U.S. Dist. LEXIS 102298 (D. Mass. Oct. 30, 2009), Occelin v. ICE, No. 09-164, 2009 U.S. Dist. LEXIS 51444 (M.D. Pa. June 17, 2009), Victor v. Mukasey, No. 08-1914, 2008 U.S. Dist. LEXIS 96187 (M.D. Pa. Nov. 25, 2008), Wilks v. DHS, No. 07-2171, 2008 U.S. Dist. LEXIS 88587 (M.D. Pa. Nov. 3, 2008), Nunez-Pimentel v. DHS, No. 07-1915, 2008 U.S. Dist. LEXIS 49926 (M.D. Pa. June 27, 2008), Madrane v. Hogan, 520 F. Supp. 2d 654 (M.D. Pa. 2007), Fuller v. Gonzales, No. 04-2039, 2005 U.S. Dist. LEXIS 5828 (D. Conn. Apr. 8, 2005), Parlak v. Baker, 374 F. Supp. 2d 551 (E.D. Mich. 2005), and Uritsky v. Ridge, 286 F. Supp. 2d 842 (E.D. Mich. 2003).
A. Relevant Provisions and the Rationale of Zadvydas
The relevant provisions of Title VIII state: § 1226. Apprehension and detention of aliens (a) Arrest, detention, and release. On a warrant issued by the Attorney General, an alien may be... detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General--
(1) may continue to detain the arrested alien; [or]
(2) may release the alien on--
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or