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Ogunbeken v. Sabol

October 6, 2009

OLUSEYI OGUNBEKEN, PETITIONER,
v.
MARY SABOL, IN HER OFFICIAL CAPACITY AS WARDEN OF THE YORK COUNTY PRISON, YORK, PENNSYLVANIA; THOMAS R. DECKER, IN HIS OFFICIAL CAPACITY AS PHILADELPHIA FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL, U.S. DEPARTMENT OF HOMELAND SECURITY, IMMIGRATION AND CUSTOMS ENFORCEMENT; AND ERIC HOLDER, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENTS.



The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania

(Chief Judge Kane)

(Magistrate Judge Smyser)

MEMORANDUM

Before the Court are Petitioner Oluseyi Ogunbeken's petition for a writ of habeas corpus and complaint for declaratory and injunctive relief (Doc. No. 1), Magistrate Judge Smyser's Report and Recommendation (Doc. No. 11), and Petitioner's objections to the Report and Recommendation (Doc. No. 12).*fn1 Petitioner claims that the mandatory detention provision found at § 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c), does not apply to him and he is seeking an individualized bond hearing. Petitioner also claims that if the mandatory detention provision of 8 U.S.C. § 1226(c) applies to him, the provision violates his substantive and procedural due process rights. In the Report and Recommendation, Judge Smyser recommended (1) that Thomas R. Decker and Attorney General Eric Holder be dismissed as respondents and (2) that the petition be denied and that the case file be closed. For the reasons that follow, the Court will adopt Judge Smyser's Report and Recommendation in part and reject it in part.

Because the Court holds that the mandatory detention provision does not apply to petitioner, the habeas petition will be granted insofar as the matter will be remanded to Immigration Control and Enforcement ("ICE") to conduct an individualized bond hearing. The Court declines to adopt that portion of the Report and Recommendation that recommends that such relief be denied. However, the portion of the Report that recommended dismissing Thomas Decker and Eric Holder as improper respondents will be adopted. The Court will not reach Petitioner's arguments concerning the constitutionality of the mandatory detention statute.

I. BACKGROUND

The factual background of this case is not in dispute and is set forth in Judge Smyser's Report and Recommendation. (Doc. No. 11.) Petitioner is a native and citizen of Nigeria, and became a lawful permanent resident of the United States on October 31, 1991. (Id. at 3.) On April 16, 1993, Petitioner was convicted in the United States District Court for the Eastern District of New York for the sale of counterfeit securities in violation of 18 U.S.C. § 513. (Id.) He was sentenced to twelve months imprisonment and three years of supervised release. (Id.) He was released from custody in May 1994. (Id.)

On June 23, 2008, Petitioner was arrested in Delaware County, Pennsylvania, and convicted of driving under the influence of alcohol or a controlled substance. (Id.) He was sentenced to a term of 3 to 23 months imprisonment. (Id.)

On January 26, 2009, following his release for driving under the influence, Petitioner was taken into ICE custody and served with a Notice to Appear. (Id. at 4.) The Notice to Appear, dated December 13, 2008, charged Petitioner with being subject to removal from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony and 8 U.S.C. § 1227(a)(2)(A)(i) because, within five years after his admission into the United States, he had been convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed. (Id.) Both charges are based on Petitioner's 1993 conviction. (Id.)

On January 26, 2009, Petitioner requested a redetermination of his custody by an immigration judge. (Id.) By an order dated February 19, 2009, an immigration judge denied Petitioner's request. (Id.) On February 26, 2009, Petitioner filed a petition for a writ of habeas corpus and complaint for declaratory and injunctive relief with this Court. (Doc. No. 1.) Judge Smyser issued his Report and Recommendation on April 8, 2009. The Court received Petitioner's objections on September 14, 2009.

II. STANDARD OF REVIEW

When a party objects to a report and recommendation of a magistrate judge, this Court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). The Court may also "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

III. DISCUSSION

Petitioner is being detained by ICE pursuant to the mandatory detention provision contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). The mandatory detention ...


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