Isan Contant v. Attorney General Eric H. Holder Jr.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1659
ISAN CONTANT,
Appellant
v.
*ATTORNEY GENERAL ERIC H. HOLDER JR.;
IMMIGRATION & CUSTOMS ENFORCEMENT (I.C.E.);
DEPARTMENT OF HOMELAND SECURITY (D.H.S.)
*(Pursuant to Rule 43(c), FRAP)
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 08-cv-01852)
District Judge: Honorable William W. Caldwell
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 14, 2009
Before: SLOVITER, AMBRO and GREENBERG, Circuit Judges
(Opinion filed November 20, 2009)
OPINION
PER CURIAM
Isan Contant appeals from an order of the United States District Court for the

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The latest information in the record is that the conviction is still on direct appeal.1
Contant’s visa petition apparently alleged that he had been subjected to battery or2
extreme cruelty by his U.S.-citizen spouse.
2
Middle District of Pennsylvania, which denied his petition for a writ of habeas corpus.
Contant is a citizen of Trinidad and Tobago. He entered the United States in 2004
on a tourist visa, and stayed longer than permitted. In October 2007, he was convicted
and sentenced to one year imprisonment and two years probation for criminal possession
of cocaine in New York. In December 2007, the Department of Homeland Security1
charged Contant with being removable because he had overstayed his visa. Contant was
taken into custody on March 7, 2008 and was ordered detained without bond.
On May 20, 2008, an Immigration Judge (IJ) conducted a redetermination hearing
and denied Contant release on bond. Contant appealed, and the BIA affirmed on July 16,
2008, finding that Contant had failed to demonstrate that he was not a danger to the
community.
Contant filed an I-360 visa self-petition under the Violence Against Women Act,
and was issued a notice on June 27, 2008 that he was prima facie eligible for relief under
the Act. However, the Acting Director of the Vermont Service Center also informed him2
by letter of the same date that “a decision on your petition has been delayed” and that it
could give him “no definite time frame for when your petition will be adjudicated.”
Contant filed the instant habeas petition pursuant to 28 U.S.C. § 2241 in October
2008, claiming that his indefinite detention without review was unreasonable and violated

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Contant also filed a motion for reconsideration in the District Court, which was3
denied on April 27, 2009. As Contant did not file a notice of appeal of that decision, it is
not before us. Fed. R. App. P. 4(a)(4)(B)(ii).
3
his right to due process. Contant then had a removal hearing on November 18, 2008, but
the IJ continued the hearing pending a decision on the I-360 petition. While the habeas
petition was pending, the IJ, in a December 2, 2008 decision, again reiterated that Contant
was a danger to the community, and observed that the pending I-360 petition did not
represent a changed circumstance warranting redetermination of bond. The District Court
denied Contant’s habeas petition on February 20, 2009, and Contant filed a timely notice
of appeal.3
Where the district court denied habeas relief without an evidentiary hearing, our
review is plenary. Bakhtriger v. Elwood, 360 F.3d 414, 417 (3d Cir. 2002). The District
Court held, and the parties agree, that the authority for Contant’s detention is 8 U.S.C.
§ 1226(a). That statute provides that “an alien may be arrested and detained pending a
decision on whether the alien is to be removed from the United States,” and authorizes the
Attorney General to continue to detain the alien, release the alien on bond, or release the
alien on parole. Id.
As the District Court noted, neither Zadvydas v. Davis, 533 U.S. 678 (2001), nor
Demore v. Kim, 538 U.S. 510 (2003), directly applies here. Zadvydas concerned the
prolonged detention of aliens subject to a final order of removal. Those aliens are
detained pursuant to 8 U.S.C. § 1231(a)(6), which authorizes post-removal-period

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detention. The Supreme Court held that this statute, when “read in light of the
Constitution’s demands, limits an alien’s post-removal-period detention to a period
reasonably necessary to bring about that alien’s removal from the United States,” and thus
does not “permit indefinite detention.” Zadvydas, 533 U.S. at 689. The Supreme Court
determined that six months was a presumptively reasonable period of detention, and held
that an alien must be released after that time if he could show that there was no significant
likelihood of his removal in the reasonably foreseeable future. Id. at 701.
Unlike the petitioners in Zadvydas, Contant is being detained “pending a decision
on whether [he] is to be removed from the United States,” 8 U.S.C. § 1226(a). See
Zadvydas, 533 U.S. at 697 (noting that “post-removal-period detention, unlike detention
pending a determination of removability . . . has no obvious termination point”).
Moreover, there is no indication that Contant cannot be deported to Trinidad and Tobago
following an unfavorable removability decision. See id. at 699 (removal was not
reasonably foreseeable because the United States lacked an extradition treaty with the
deportees’ home countries, and no other country would accept them). Rather, Contant’s
removal proceedings were continued—at his own request—while his visa petition was
pending. According to the Government, Contant’s visa petition has now been denied and
his removal proceedings can proceed. Accordingly, although we cannot say exactly when
Contant’s removal proceedings will be completed, Contant does not find himself in a
“removable-but-unremovable limbo” similar to the petitioners in Zadvydas. Jama v.

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Immigration and Customs Enforcement, 543 U.S. 335, 347 (2005).
As the District Court correctly noted, Contant’s situation is more similar to that
faced by the petitioner in Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), who was
detained for over three years while seeking administrative and judicial review of his
removal order. The Ninth Circuit determined that the detention was authorized by
§ 1226(a), which the Court construed, consistent with Zadvydas, as limiting the Attorney
General’s detention authority to the period “reasonably necessary” to effectuate the alien’s
removal. Id. at 1063. Although it acknowledged there was “some degree of uncertainty as
to when [the] detention [would] conclude” and that the petitioner’s “removal ha[d]
certainly been delayed by his pursuit of judicial review,” the Court held that the detention
was not indefinite because the petitioner “remain[ed] capable of being removed—even if
it ha[d] not yet finally been determined that he should be removed.” Id. at 1065 (emphasis
in original). Similarly, although Contant has been detained for a lengthy period of
time—as of this writing, approximately nineteen months—he remains capable of being
removed, and a decision on his removability appears likely in the reasonably foreseeable
future.
Kim involved an alien detained during the pendency of removal proceedings
pursuant to 8 U.S.C. § 1226(c), which provides for mandatory detention of certain criminal
aliens. The petitioner in Kim argued that § 1226(c) violated his due process rights because
it did not require the INS to determine that he posed either a danger to society or a flight

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risk. Id. at 514. The Supreme Court held that the mandatory detention without an
individualized determination was constitutionally permissible. 538 U.S. at 531. In
reaching that conclusion, the Court emphasized the short period of time that most aliens
are detained pursuant to § 1226(c), noting that in 85% of cases the alien’s removal
proceedings were completed in an average time of 47 days. Id. at 529.
To the extent Contant relies on Kim to contrast his lengthy detention with the
average detention period for persons detained pursuant to § 1226(c), that comparison is
inapposite. Unlike the mandatory detention statute at issue in Kim, § 1226(a) provides for
individualized detention determinations. Aliens detained pursuant to § 1226(a) may be
released if they demonstrate they would not pose a danger to property or persons and they
are likely to appear for any future proceedings. 8 C.F.R. § 236.1(c)(8). The alien may
request a bond redetermination hearing before an IJ. 8 C.F.R. § 236.1(d)(1). An IJ may
grant an alien’s request for bond redetermination where the alien has shown that his
“circumstances have changed materially since the prior bond redetermination.” 8 C.F.R.
§ 1003.19(e). The alien may appeal the IJ’s bond decision to the BIA. 8 C.F.R.
§ 236.1(d)(3). Contant was afforded the review provided by these regulations. Moreover,
like the petitioner in Kim, Contant’s unusually lengthy period of detention pending a
decision on his removability is attributable to his own request for a continuance. See Kim,
538 U.S. at 530 (noting that petitioner’s detention period of 6 months, which was longer
than the average period of 47 days, was due to his own request for a continuance of his

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Contant’s motion to expedite is granted; his motion for release on bail pending4
appeal is denied.
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removal hearing).
In sum, Contant’s detention is not “indefinite,” as there is no indication that he
could not be removed to Trinidad and Tobago if he is ordered removed, and the end of his
detention is reasonably foreseeable; i.e., at the conclusion of his removal proceedings. We
will therefore affirm the District Court’s judgment.4

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