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Ahmed v. Lowe

United States District Court, M.D. Pennsylvania

May 31, 2017

RASEL AHMED, Petitioner
CRAIG A. LOWE, et at, Respondents


          Robert D. Mariani United States District Judge

         Petitioner, 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.

         I. Background

         Ahmed 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.).

         On 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.).

         On 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 p. 9).

         Both 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).

         On 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.

         On October 17, 2016, Ahmed filed the instant petition. (Doc. 1).

         II. Discussion

         A. The Statutory Basis for Petitioner's Detention

         Before 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).

         Section 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.

         8 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. ยง 235.3(b)(4) ("If an alien subject to the expedited removal provisions indicates an intention to apply for asylum, or expresses ...

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