United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
Rasel Ahmed, a detainee of the United States Immigration and
Customs Enforcement ("ICE"), currently confined in
the Pike County Correctional Facility, Lords Valley,
Pennsylvania, filed the above-captioned petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Ahmed
challenges his continued detention by ICE pending removal.
(Doc. 1). Ahmed seeks release pursuant to an order of
supervision or an individualized bond hearing. (Id.
at p. 16), Respondents contend that Ahmed is an
"arriving alien" who is lawfully detained under 8
U.S.C. § 1225(b) and is not entitled to release or a
bond hearing. (Doc. 7). For the reasons set forth below, the
Court will grant a writ of habeas corpus directing the
Immigration Judge to conduct a bond hearing to determine if
Ahmed is a flight risk or danger to the community.
is a native and citizen of Bangladesh. (Doc. 7-1, pp. 3-5,
Record of Deportable/Inadmissible Alien). On March 1, 2015,
Ahmed applied for admission to the United States at the
Hidalgo, Texas Port of Entry, and was apprehended by the
United States Customs and Border Control. (Id.). He
indicated that he sought admission to the United States, but
had no valid entry documents, (id.). Ahmed requested
political asylum into the United States because he feared for
his life in Bangladesh. (Id.). On March 2, 2015,
Ahmed was taken into ICE custody and his case was forwarded
to an asylum officer for adjudication. (Doc. 7-1, pp. 30,
32). The asylum officer found that Ahmed had a credible fear
of persecution or torture. (Id.).
April 21, 2015, Ahmed was served with a Notice to Appear
informing him that he was an "arriving alien."
(Doc. 7-1, p. 6, Notice to Appear). He was charged as being
subject to removal from the United States under §
2l2(a)(7)(A)(i)(1) of the Immigration and Nationality Act as
an alien with no valid entry documents. (Id.).
February 19, 2016, the Immigration Judge ordered Ahmed
removed from the United States, but granted his application
for deferral of removal under the Convention Against Torture.
(Doc. 7-1, pp. 7-26, Order of Removal). The Immigration Judge
found that Ahmed was barred from asylum and withholding of
removal, because he was a member of, and provided material
support to, an undesignated terrorist organization, the
Bangladesh National Party. (Id.). The Immigration
Judge explained that a grant of deferral still allows the
United States to remove Ahmed to "Bangladesh or to a
third country, provided the United States Government obtain
assurances from the country of removal that he would not be
subjected to torture in that country." (id. at
parties appealed the Immigration Judge's decision. (Doc.
7-1, p. 27). On April 7, 2016, the Assistant Field Office
Director recommended continued detention pending the outcome
of the appeal because Ahmed is affiliated with and supported
a terrorist group, removal would be expeditious after the
appeal was decided, and Ahmed would likely abscond if
released. (Doc. 7-1, pp. 30-31, Memorandum of Assistant Field
Office Director). On April 20, 2016, a Decision to Continue
Detention was issued and Ahmed was ordered to remain in ICE
custody pending the outcome of the appeal before the BIA.
(Doc. 7-1, pp. 32-33, Decision to Continue Detention).
October 28, 2016, the BIA remanded the case to the
Immigration Judge, stating that "the Immigration Judge
did not first conclude whether the respondent would be
entitled to asylum or withholding of removal but for the
terrorist bar in section 2O8(b)(2)(A)(v) of the Act."
(Doc. 7-1, p. 36, Decision of the BIA). Therefore, the BIA
ordered that the Immigration Judge first address Ahmed's
eligibility for relief, absent the terrorism bar.
[Id.). Based on this information, it appears that
Ahmed remains in removal proceedings and is not yet subject
to a final order of removal.
October 17, 2016, Ahmed filed the instant petition. (Doc. 1).
Statutory Basis for Petitioner's Detention
the Court can determine whether Ahmed is entitled to relief,
the Court must determine whether Ahmed's detention arises
out of 8 U.S.C. § 1226(c) or 8 U.S.C. §
1225(b)(2)(A). The parties disagree as to the statutory basis
for Ahmed's detention. Ahmed contends that he is detained
under 8 U.S.C. § 1226 and is entitled to release or a
bond hearing. (Doc. 1). Respondents counter that Ahmed is
detained pursuant to 8 U.S.C. § 1225 and is not entitled
to release or a bond hearing. (Doc. 7, pp. 4-11).
1226(c) would apply to Ahmed's detention if, prior to
being taken into custody, he was admitted into the United
States and was thereafter being removed because of his
criminal convictions. See, e.g., Leslie v. Attorney Gen.
of United States, 678 F.3d 265, 269-70 (3d Cir. 2012).
This undoubtedly is not the circumstance of this case, as
Ahmed was never admitted into the United States.
U.S.C. § 1225(b) applies to "arriving aliens"
such as Ahmed. Under § 1225(b), arriving aliens are
inspected immediately upon arrival in the United States by an
officer of the United States Customs and Border Control. If
the immigration officer determines that the alien is
inadmissible because the alien cannot produce valid entry
documents, see 8 U.S.C. § 1182(a)(7), "the
officer shall order the alien removed from the United States
without further hearing or review." 8 C.F.R. §
1235.3(b)(1)(1), (b)(2)(ii) (providing that arriving aliens
subject to expedited removal are not entitled to a hearing or
appeal of this decision). However, if the alien
"indicates an intention to apply for asylum ... or a
fear of persecution, the officer shall refer the alien for an
interview by an asylum officer." 8 U.S.C. §
1225(b)(1)(A)(ii); see 8 C.F.R. § 235.3(b)(4)
("If an alien subject to the expedited removal
provisions indicates an intention to apply for asylum, or