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Debowale v. Lowe

United States District Court, M.D. Pennsylvania

August 14, 2017

SEGUN DEBOWALE, Petitioner
v.
CRAIG A. LOWE, Respondent

          MEMORANDUM

          ROBERT D. MARIANI, UNITED STATES DISTRICT JUDGE

         Petitioner, Segun Debowale, 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. (Doc. 1). Debowale claims that: (1) his 1999 deportation proceedings did not afford him due process; (2) he is eligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h); and (3) the length of his detention violates the Due Process Clause of the Fifth Amendment. (Id.). Debowale seeks immediate release or an individualized bond hearing. (Id. at p. 14). Respondent argues that the Court lacks jurisdiction to review Debowale's first two claims because they relate to the merits of his removal, and that he is not entitled to release or a bond hearing because his detention has not been unconstitutionally lengthy. (Doc. 10, pp. 11-21).

         For the reasons set forth below, the Court will dismiss Debowale's procedural due process challenges to his removal proceedings and request for a waiver of inadmissibility for lack of jurisdiction. The Court will further grant a writ of habeas corpus directing an Immigration Judge to conduct a bond hearing to determine if Debowale is a flight risk or danger to the community.

         I. Background

         Debowale, a native and citizen of Nigeria, initially entered the United States in 1984 under a non-immigrant visa. (Doc. 1, p. 2). On August 16, 1989, he became a lawful permanent resident. (Id.).

         On June 17, 1993, Debowale was convicted by a jury of conspiracy to commit wire fraud, money laundering, and use of unauthorized access devices. (Doc. 10-1, 1993 Judgment in a Criminal Case); see also United States v. Debowale, reported as United States v. Ismoila, 100 F.3d 380, 385 (5th Cir. 1996). Debowale was sentenced to a total of eighty-seven months imprisonment followed by five years of supervised release, and was ordered to pay $360, 689.00 in restitution. (Id.).

         On January 25, 1998, based on Debowale's conviction, the Immigration and Naturalization Service ("INS")[1] commenced removal proceedings against him charging him as removable from the United States pursuant to sections 237(a)(2)(A)(i), (ii), and (iii) of the Immigration and Nationality Act ("INA") because his crimes involved moral turpitude or constituted aggravated felonies. (Doc. 10-2, Notice to Appear). On March 9, 1999, Debowale was ordered removed from the United States. (Doc. 10-4). On June 21, 2000, INS deported Debowale to Nigeria. (Doc. 1, p. 3; Doc. 10-4).

         Debowale reentered the United States without inspection in 2001. (Doc. 1, p. 3). On September 22, 2011, Debowale pleaded guilty to a federal charge of conspiracy to commit wire fraud. (Doc. 10-3, 2011 Judgment in a Criminal Case). He was sentenced to a seventy-eight month term of imprisonment. (Id.).

         ICE then reinstated Debowale's prior order of removal. (Doc. 10-4, Notice of Intent/Decision to Reinstate Prior Order). The immigration judge subsequently granted a motion to reopen the proceedings. (Doc. 10-5, Order of the Immigration Judge Reopening Proceedings). Upon reopening of Debowale's case, ICE withdrew the prior charges of removability and lodged new charges. The amended charges of removability charged Debowale as removable from the United States pursuant to sections 2l2(a)(2)(A)(i)(1), 212(A)(2)(B), and 2l2(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182, for committing crimes involving moral turpitude, being convicted of two offenses with an aggregate sentence of five years of imprisonment, and entering the United States without admission or parole. (Doc. 10-6, Additional Charges of Inadmissibility/Deportability).

         On May 20, 2016, Debowale was taken into ICE custody. (Doc. 10-7, p. 8, Appeal Brief to the Board of Immigration Appeals). ICE has detained him without a bond hearing during the pendency of his removal proceedings. (Id. at p. 7).

         On June 6, 2016, Debowale appeared before the immigration court in York, Pennsylvania, for the first hearing in his removal proceedings. (Doc. 10- 8, Adjournment History). Debowale argued that he was not subject to § 1226(c) mandatory detention. (Doc. 10-9, Order of the Immigration Judge with Respect to Custody). The immigration judge denied his request. (Id.). The master calendar hearing was continued to July 11, 2016 to allow Debowale the opportunity to obtain legal counsel. (Id.). The immigration judge set an individual hearing for September 27, 2016 to allow ICE needed additional time to provide records and a fingerprint check. (Id.).

         On June 20, 2016, Debowale appealed the immigration judge's determination that he was subject to mandatory detention and was not entitled to an individualized bond hearing. (Doc. 10-7, p. 1). ICE did not file a brief in opposition. (Doc. 10-10, Decision of the Board of Immigration Appeals). On September 6, 2016, the Board of Immigration Appeals ("BIA") affirmed the immigration judge's decision. (Id.).

         The immigration judge continued the September 27, 2016 hearing to October 25, 2016. On October 25, 2016, the immigration judge found Debowale inadmissible as charged and ordered him removed to Nigeria. (Doc. 10-11, Order of the Immigration Judge). The immigration judge also denied Debowale's applications for relief, including a request for a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h). (Id.). On November 8, 2016, Debowale appealed the immigration judge's decision to the Board of Immigration Appeals. (Doc. 1, p. 4). On April 6, 2017, the BIA remanded the record to the immigration judge to clarify the basis for removability. (Doc. 12).

         On July 7, 2017, the immigration judge issued an order dismissing Debowale's charges of removability and granting his ...


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