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Espinosa-Almonte v. Sabol

United States District Court, Third Circuit

July 24, 2013

JOSE LUIS ESPINOSA-ALMONTE, Petitioner,
v.
MARY SABOL, et al., Respondents.

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, Magistrate Judge.

I. Procedural Background.

On December 17, 2012, the Petitioner, Jose Luis Espinosa-Almonte, a detainee of the Bureau of Immigration and Customs Enforcement ("ICE") confined at York County Prison, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Petitioner, proceeding pro se, names as Respondents: the Department of Homeland Security; Janet Napolitano, Secretary of the Department of Homeland Security; John Morton, Assistant Secretary for ICE; Thomas L. Decker, District Director of the Pennsylvania Field Office for Detention; and Mary Sabol, Warden of the York County Prison ("YCP") (collectively, "Respondents")[1], where Petitioner is currently confined.[2] (Doc. 1). Petitioner paid the filing fee.

The Court issued an Order to Show Cause on December 19, 2012, and directed Respondents to answer the habeas petition. (Doc. 3). After being granted an extension of time, Respondents filed a Response to the Habeas Petition with attached Exhibits on January 10, 2013. (Docs. 6 & 6-1). Petitioner did not file a Traverse. On April 24, 2013, Respondents filed a Notice of Supplemental Authority indicating that the Third Circuit Court of Appeals recently issued a precedential decision in Sylvain v. Attoreny General of the United States, ___ F.3d ___, 2013 WL 1715304 (3d Cir. April 22, 2013), which is directly on point with the main issue in the instant case, namely, whether Petitioner is subject to mandatory detention under 8 U.S.C. §1226(c) since he was not immediately taken into custody by ICE "when released" from custody of his removable offense. Respondents also attached a copy of the Third Circuit's opinion to their filing. (Doc. 8). We agree with Respondents, based on Sylvain v. Attoreny General of the United States, that Petitioner's claim he is not subject to mandatory detention is without merit.

The habeas petition is now ripe for disposition.

II. Factual Background.

Petitioner is a citizen and native of the Dominican Republic. (Docs. 1 and 6). He entered the United States on a P1 Visa, as a nonimmigrant member of an internationally recognized entertainment group, on November 30, 1994. (Ex. 1). The P1 Visa authorized him to remain in the United States no later than December 19, 1994. (Id.).

On July 21, 2001, Petitioner was convicted in the Court of Common Pleas, Montgomery County, Pennsylvania, of Possession of a Controlled Substance, namely, cocaine. (Doc. 6-1, Ex. 3). As a result of that conviction, Petitioner was sentenced to six months to a year in prison, and one year probation. (Doc. 6-1, Ex. 2). Also, as a result of that conviction, on April 10, 2006, ICE issued a Notice to Appear, stating that Petitioner Esipnosa-Almonte was removable pursuant to Section 237(a)(1)(B) of the Immigration and Naturalization Act ("INA"), as he had remained in the United States for a period of time longer than his Visa permitted. Further, ICE alleged that he was removable pursuant to Section 237(a)(2)(B)(i) of the INA as he had been convicted of a violation of any law or regulation of a State, or a foreign country relating to a controlled substance other than a single offense involving possession for one's own use of 30 grams of or less of marijuana. (Doc. 6-1, Ex. 1).

Petitioner first came before the immigration court on May 25, 2006, in Newark, New Jersey. (Doc. 6-1, Ex. 11). After a series of appearances and continuances, Petitioner filed a motion to change venue to Philadelphia, which was granted by the IJ on March 6, 2009. (Id.). As such, Petitioner first appeared before the Philadelphia immigration court on April 13, 2009, at which time he contested ICE's removal charges on the grounds that he had never committed an aggravated felony, as the ICE ostensibly charged. (Id.).

On September 2, 2011, the Philadelphia Police Department arrested Petitioner for forgery, identity theft, tampering with public records, and unsworn falsification to law enforcement charges. (Doc. 6-1, Ex. 2a). At that time, ICE filed a detainer against Petitioner to take him into custody based on the new charges against him. (Id.). On September 16, 2011, ICE filed a motion to change venue of Petitioner's removal proceedings to York County, PA, and motion was granted on October 3, 2011. (Id.).

On September 20, 2011, Petitioner had a bond hearing before the immigration court, which was adjourned to gather more information on Petitioner's criminal history. (Doc. 6-1, Ex. 11). On September 21, 2011, the hearing did not resume because of an error in scheduling. (Id.).

At a master calender hearing on November 2, 2011, Petitioner admitted to the noncriminal allegations, but disputed the drug-related conviction, asserting that his conviction involved marijuana and not cocaine. (Id.). At that time, the IJ found Petitioner's conviction was for cocaine, and the IJ found Petitioner ineligible for a 212(h) waiver, which he would need to change his status to lawful permanent resident. Further, the IJ found that Petitioner was ineligible for bond. (Id. ).

Again, on December 13, 2011, Petitioner appeared before the immigration court at a master calender hearing, at which point the court found him ineligible for both bond and 212(h) waiver to adjust his status. (Id.). Petitioner also was allowed to discuss his voluntarily departure from the United States. (Id.).

Petitioner appeared before the immigration court with his new attorney on January 31, 2012, however, his new attorney requested a continuance in order to prepare more adeuqately. (Id.). On February 27, 2012, the court granted the new attorney's motion to withdraw and substitute counsel, and since that point, Petitioner's counsel in his removal proceedings has remained Attorney Kevin Santos. (Id.). Attorney Santos attempted to argue against ICE's removal charges once again at a hearing before the immigration court on February 28, 2012, and successfully argued for a continuance for further preparation, until April 2, 2012. (Id.). At that April 2, 2012 hearing, Petitioner did not successfully dispute his drug conviction, and thus he was not eligible for adjustment of status and cancellation of removal. As a result, the hearing was adjourned for Petitioner to file an application for asylum. (Id.).

On April 24, 2012, Petitioner's file was requested by the United States Citizenship and Immigration Service Center, which was attempting to adjudicate a U-Visa that the Petitioner had submitted, in which he claimed he was the victim of a crime. (Id.). Based on that proceeding, the Philadelphia immigration court continued his master calender hearing to June 6, 2012, pending the adjudication of the Petitioner's application for a U-Visa. (Id.).

On May 22, 2012, Petitioner was released to the custody of Philadelphia law enforcement for criminal prosecution, and, as a result, on June 4, 2012, the ICE filed a motion to close Petitioner's immigration case, as he was no longer in ICE custody. (Doc. 6-1, Ex. 5). Petitioner was returned to ICE custody, however, on July 17, 2012. (Doc. 6-1, Ex. 11). Eventually, on September 25, 2012, Petitioner again came before the immigration court at a master calender hearing, however his counsel sought, and was granted, continuance until October 31, 2012. (Doc. 6-1, Ex. 7). The hearing was continued further to ...


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