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Souleman v. Sabol

March 16, 2010

HAMADI SOULEMAN PETITIONER,
v.
WARDEN MARY E. SABOL, ET AL., RESPONDENTS.



The opinion of the court was delivered by: (judge Caputo)

(MAGISTRATE JUDGE BLEWITT)

MEMORANDUM

Presently before the Court is Magistrate Blewitt's Report and Recommendation ("R & R") of February 18, 2010 (Doc. 20), Petitioner's Objections to the Magistrate Judge's R&R (Doc. 21), Petitioner's supplement to his Objections (Doc. 22), and Respondents' Brief in Opposition to the Objections (Doc. 23). Magistrate Judge Blewitt recommended that Petitioner's Petition for a Writ of Habeas Corpus be denied. This Court will adopt Judge Blewitt's recommendation that the petition be denied for the reasons set forth more fully below.

BACKGROUND

1. Factual Background

Petitioner Hamadi Souleman is a native and citizen of the Central African Republic. (Doc. 12, Ex. A.) On October 29, 2001, he was admitted to the United States as a non-immigrant B2 visitor and authorized to stay in the country until April 28, 2002; Petitioner remained in the country beyond April 28, 2002. (Doc. 12, Ex. A.) As a result, a Notice to Appear was issued stating that Petitioner was subject to removal pursuant to Section 237(a)(1)(B) of the Immigration and Nationality Act ("INA").*fn1 (Doc. 12, Ex. A.) Petitioner did not appear at his scheduled hearing and his case was administratively close on July 3, 2003. (Doc. 12, Ex. C.)

On March 10, 2004, a Criminal Complaint was issued by the Commonwealth of Pennsylvania, charging Petitioner with attempted murder, robbery, aggravated assault, and other related charges stemming from an incident where Petitioner was accused of attempting to rob a woman while she was making a drive-through deposit at a bank. (Doc. 12, Ex. D.) On November 12, 2004, these charges were dismissed. (Doc 12, Ex. D.) Petitioner was transferred to ICE custody pursuant to an immigration detainer; his motion to change the venue of his case to York, Pennsylvania was granted on November 17, 2004. (Doc. 12, Ex. C.) Petitioner filed a request for a continuance of his case, which was granted on December 9, 2004. (Doc. 12, Ex. J.) On January 4, 2005, Petitioner was released from custody under a $10,000 bond. (Doc. 12, Ex. L.)

On July 16, 2007, Petitioner was arrested following a domestic dispute with his wife.*fn2 (Doc. 12, Ex. G.) The charges stemming from this incident were dismissed on July 1, 2009, after Petitioner's wife, who was the complaining witness in the case, failed to appear at trial. (Doc. 12, Ex. G.)

On September 23, 2007, Petitioner was arrested on aggravated assault and related charges. (Doc. 12, Ex. H.) A hearing regarding removal proceedings against Petitioner was scheduled for July 1, 2008; the Department of Homeland Security ("DHS") and Petitioner jointly moved for a continuance of his removal proceedings until the underlying criminal charges were resolved. (Doc. 12, Ex. N.) On September 11, 2008, the criminal charges against Petitioner were nolle prossed and the case was closed. (Doc. 12, Ex. H.)

On January 14, 2009, Petitioner's motion for a continuance was granted by the immigration judge, but his motion for release on bond was denied. (Doc. 12, Exs. M, O.) Petitioner then made a request for a change in his custody status; on February 25, 2009, this request was granted and Petitioner was ordered to be released from custody under bond of $4,500. Petitioner, however, was not released from ICE custody due to failure to post his bond. (Doc. 12, Ex. M.) On March 19, 2009, DHS filed a Notice of Appeal with the Board of Immigration Appeals ("BIA"), challenging the immigration judge's order setting the bond at $4,500. (Doc. 12, Ex. R.) The immigration judge, sua sponte, raised the custody bond to $15,000 on March 24, 2009. (Doc. 12, Ex. M.) The immigration judge explained that he has previously been "under the impression that the first bond amount was set at $4,500 on January 4, 2005." (Doc. 12, Ex. M.) Because the first bond amount was actually $10,000 and "to ensure [Petitioner's] continued presence at his future court hearings," the immigration judge held that it was appropriate to raise the bond amount. (Doc. 12, Ex. M.) As a result, DHS withdrew its appeal (Doc. 12, Ex. R); Petitioner has not appealed the bond amount to the BIA.

A hearing on the merits of Petitioner's removal case was scheduled for October 2, 2009. (Doc. 12, Ex. T.) On September 25, 2009, Petitioner's immigration attorney filed an evidence packet; DHS indicated to Petitioner's immigration attorney that it would object to the evidence packet because an investigation regarding the evidence was necessary. (Doc. 12, Ex. U.) Due to the late filing of this evidence, Petitioner's immigration attorney elected to seek a continuance of the case. (Doc. 12, Ex. U.)

The merits hearing was re-scheduled for November 19, 2009. (Doc. 12, Ex. V.) At this hearing, DHS submitted police reports corroborating Petitioner's arrests for domestic abuse, but the immigration judge expressed concern over some of the vagueness of the language in the police reports. (Doc. 19.) In light of these concerns, DHS requested the opportunity to present the testimony of the police officers who authored the reports. (Doc. 19.) This request was granted, and the case was continued to January 5, 2010. (Doc. 19.) At the January 5, 2010 hearing, Petitioner objected to the testimony of the police officers, arguing that the government had not provided a witness list or affidavits from the officers. (Doc. 19.) The case was continued by the immigration judge, who directed DHS to provide a witness list and affidavits from all police officers who DHS intended to call as witnesses; the hearing was rescheduled for March 2, 2010. (Doc. 19.)

2. Procedural Background

On October 13, 2009, Petitioner filed for Writ of Habeas Corpus, pursuant to 28 U.S.C. ยง 2241. (Doc. 1.) Petitioner contends that his detention is a violation of the Due Process Clause of the Fifth Amendment due to the prolonged detention that bears no reasonable relation to its purpose, violation of Due Process because Petitioner has been detained without an adequate hearing, and that his $15,000 bond is unreasonable and unaffordable. On October 15, 2009, a show cause order was signed by Magistrate Judge Blewitt. (Doc. 5.) Respondents ...


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