Leslie v. Attorney General of United States, 2012 U.S. App. LEXIS 5635

Neville Leslie, a Jamaican national and U.S. permanent resident, was convicted in 1998 of conspiracy to possess and distribute crack cocaine and was sentenced to 168 months.
He was taken into ICE custody on March 28, 2008, after his release from prison, and has been detained without a bond hearing since then.
An IJ held a hearing in 2008 and found removal to Jamaica for an aggravated felony; the BIA dismissed, and this court granted a stay of removal pending review in 2008.
In 2010–2011, this court remanded for new hearings due to ineffective notice of counsel; proceedings continued with further delays and a March 30, 2011 hearing, then remand for missing audio records.
Leslie filed a habeas petition in February 2011 challenging ongoing pre-removal detention and the constitutionality of 8 U.S.C. § 1226.
As of the appeal, Leslie had not been afforded a bond hearing, while removal proceedings were ongoing and his detention continued.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether detention under §1226 remained proper while stay of removal persisted	Leslie: detention under §1226 remains ongoing and reviewable as unreasonable.	Government: stay of removal shifts focus to §1231 period and keeps detention within §1231 framework.	Detention during stay governed by §1226; prolonged detention deemed unreasonable.
Whether Leslie is entitled to an individualized bond hearing under Diop framework	Leslie entitled to bond hearing once detention is unreasonable.	Stay and delays align with ongoing removal; bond hearing not required yet.	Remand for an individualized bond hearing within ten days.

Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011) (two-step reasonableness framework for §1226 detention)
Zadvydas v. Davis, 533 U.S. 678 (S. Ct. 2001) (limits on extended detention under §1231 when removal is reasonably likely)
Demore v. Kim, 538 U.S. 510 (S. Ct. 2003) (pre-removal detention authority distinct from post-removal constraints)
Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) (detention during stay of removal governed by §1226, not §1231)
Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) (detention framework during removal proceedings)
Bejjani v. INS, 271 F.3d 670 (6th Cir. 2001) (initial treatment of detention statutes (abrogated on other grounds))
Akinwale v. Ashcroft, 287 F.3d 1050 (11th Cir. 2002) (assumed §1231 governs detention during a brief judicial stay)
Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003) (delay caused by alien's pursuit of relief not fully compensable by due process)
Oyedeji v. Ashcroft, 332 F. Supp. 2d 747 (M.D. Pa. 2004) (avoid punishing aliens for pursuing legal remedies)