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Codner v. Johnson

United States District Court, M.D. Pennsylvania

March 6, 2015

GARY L. CODNER, Petitioner
v.
JEH JOHNSON, ET AL., Respondents.

MEMORANDUM

WILLIAM J. NEALON, District Judge.

On October 23, 2014, Petitioner, Gary L. Codner, a detainee of Immigration and Customs Enforcement ("ICE"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). He challenges the underlying finding of removability by an immigration judge ("IJ"), as well as his continued detention by ICE pending removal from the United States. (Id.). For the reasons set forth below, the petition is dismissed in part and granted in part.

Background

Petitioner, a native and citizen of Jamaica, entered the United States from Jamaica on May 24, 1997, on a non-immigrant B-2 visa with authorization to remain in the United States for six (6) months. (Doc. 7, Ex. 1). Petitioner never departed the United States, and on August 9, 2002, he was placed in removal proceedings for overstaying his visa. (Id.). These proceedings were administratively closed in 2006 when Petitioner's United States citizen wife filed an I-130 petition to adjust the status of his visa. (Doc. 1, Ex. 4). Thereafter, his removal case was reopened, but proceedings were closed again in June 2010 after Petitioner was imprisoned in Pennsylvania and later convicted for possession with intent to distribute marijuana. (Id. at Ex. 2, pp. 4-5).

On July 19, 2012, ICE amended the charges of removability to include removability under 8 U.S.C. § 1227(a)(2)(B)(i) based upon Petitioner's conviction for possession with intent to distribute marijuana. (Id. at Ex. 11). On September 19, 2012, Petitioner was ordered removed to Jamaica, but an IJ delayed removal to allow him an opportunity to seek cancellation of removal under, inter alia, the Convention Against Torture ("CAT"). (Id. at Ex. 2, pp. 16-17). A hearing was held on October 15, 2012, where the IJ explained Petitioner's evidentiary rights. (Id. at pp. 26-27). The IJ continued the hearing until December 6, 2012. (Id.). Petitioner requested an earlier hearing, which the IJ could not grant due to a full calendar. (Id. at p. 27).

On December 6, 2012, the IJ conducted a hearing and ultimately denied Petitioner's CAT claim. (Id. at pp. 98-99). Petitioner appealed that decision to the Board of Immigration Appeals ("BIA"), which dismissed the appeal on April 5, 2013. (Id. at Ex. 14). On April 29, 2013, Petitioner filed a motion to reconsider, which the BIA denied on June 10, 2013. Codner v. Attorney Gen. of U.S., 550 F.Appx. 124, 127-28 (3d Cir. 2014). He then filed a petition for review with the United States Court of Appeals for the Third Circuit, which granted the petition on January 10, 2014. Codner, 550 F.Appx. at 129. The Third Circuit concluded that the IJ and BIA had failed to adequately explain why they had discounted certain evidence presented by Petitioner, and therefore remanded the case to consider that evidence. Id. at 128-29.

Approximately six (6) months later, on July 11, 2014, the BIA remanded the case to the IJ to consider all relevant evidence in accordance with the Third Circuit's decision. (Doc. 7, Ex. 16). More than three months later, on October 20, 2014, after considering the evidence presented, the IJ again denied Petitioner's CAT claim. (Id. at Ex. 17). On November 17, 2014, Petitioner filed an appeal of that decision with the BIA. (Id. at ¶ 11). A telephone call to ICE reveals that the BIA dismissed his appeal on January 21, 2015. Petitioner thereafter filed a motion to reopen BIA jurisdiction, which is still pending motion before the BIA.

Discussion

Petitioner presents two (2) distinct arguments in his petition for writ of habeas corpus. First, he contends that the underlying finding of removability by the IJ is flawed. (Doc. 1). Specifically, he argues that he was "unduly" convicted of a crime, and because there was no evidence of intentionality on his part, his state criminal conviction is null and void. (Id.). Therefore, he argues that the finding that he is removable based upon that conviction is likewise null and void. (Id.). Second, Petitioner argues that he is entitled to an individualized bond hearing. (Doc. 1).

1. Removability Pursuant to Petitioner's State Court Conviction

First, Petitioner argues that the IJ's underlying finding of removability is flawed, and, therefore, he should be released from ICE custody. (Doc. 1). In turn, Respondents assert that this Court lacks jurisdiction to consider such a claim. (Doc. 7).

Under 8 U.S.C. § 1252, as amended by the REAL ID Act, "a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal." 8 U.S.C. § 1252(a)(5). This applies to "all questions of law and fact... arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter[.]" Id. at (b)(9). Consequently, this section of the statute "divests [a district court] of jurisdiction to review" a habeas petition brought in challenge of a finding of removability. Chuva v. Attorney Gen. of U.S., 432 F.Appx. 176, 177 (3d Cir. 2011).

Here, Petitioner directly challenges the IJ's determination that he was removable based upon a state court conviction. (Doc. 1). As the REAL ID Act divested this Court of jurisdiction to consider such a claim, that portion of the habeas petition must be dismissed with prejudice for lack of jurisdiction. See, ...


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