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Mohamed v. Decker

April 24, 2008

MOUSTAFA A. MOHAMED, PETITIONER,
v.
THOMAS DECKER, ALLAN SWEENY, DAVID O'NEIL, RESPONDENTS.



The opinion of the court was delivered by: Judge McClure

ORDER

BACKGROUND:

On October 22, 2007, Moustafa A. Mohamed, pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Rec. Doc. No. 1.) Mohamed is currently a prisoner detained by United States Immigration and Customs Enforcement (ICE) at Lackawanna County Prison in Scranton, Pennsylvania. In his petition, Mohamed challenges his continued detention by ICE.

On October 23, 2007, we directed the government to respond to Mohamed's petition and denied Mohamed's request for expedited review. (Rec. Doc. No. 6.) On November 13, 2007, the government filed its response. (Rec. Doc. No. 8.) On January 7, 2008, at the direction of the court, the government filed a supplemental response. (Rec. Doc. No. 16.)

On January 9, 2008, we appointed counsel for petitioner. (Rec. Doc. No. 17.) On March 13, 2008, with the permission of the court, petitioner filed a new brief with the assistance of counsel. (Rec. Doc. No. 26.) On March 25, 2008, the government filed its response to that brief. (Rec. Doc. No. 27.)

On April 22, 2008, petitioner filed a reply to the government's second supplemental response (Rec. Doc. No. 34).

Now, for the following reasons, we will order an ICE Immigration Judge to review the custody determination of petitioner.

STATEMENT OF FACTS

Mohamed is a citizen of Egypt who entered the United States on May 6, 2002 as a non-immigrant visitor. (Rec. Doc. No. 1, at 3.) He had authorization to stay until June 5, 2002 but stayed beyond this date. (Id.) At some point, Mohamed was served with a Notice to Appear by the Immigration and Naturalization Service (now Immigration and Customs Enforcement - "ICE") which charged him as being an alien who remained in the United States for longer than permitted. (Id.)

On November 27, 2006, an Immigration Judge ("IJ") granted Mohamed voluntary departure with an alternate order of removal to Egypt. (Rec. Doc. No. 8-2, at 5.) This order directed Mohamed to voluntarily depart by January 26, 2007.

(Id.) Mohamed then appealed the order to the Board of Immigration Appeals ("Board"), which stayed the voluntary departure period. (Id. at 7.)

On December 15, 2006, Mohamed was arrested by the Westchester County Police Department in New York State on a harassment charge. (Rec. Doc. No. 1, at 3.) Upon this arrest, ICE immediately placed a detainer on Mohamed. (Id.) On May 11, 2007, Mohamed pled guilty to the state charge and was sentenced to time served. (Id.) On May 17, 2007, ICE picked up Mohamed from the Westchester County Jail and took him to the Lackawanna County Prison, where many ICE detainees are held. (Id. at 4.) This is where it appears that Mohamed is presently being detained.

On July 27, 2007, the Board affirmed the IJ's order and permitted Mohamed 60 days to voluntarily depart from the United States with an alternate order of removal. (Id. at 8.) Thus, Mohamed had until September 25, 2007 to voluntarily depart.

On August 13, 2007, Mohamed filed a petition for review with the United States Court of Appeals for the Second Circuit. (Id. at ...


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