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Kamara v. Doll

United States District Court, M.D. Pennsylvania

December 19, 2017



          KANE JUDGE.

         Before the Court for consideration is Petitioner Samba Eric Kondeh Kamara's motion to reopen this case and enforce this Court's August 15, 2017 Order (Doc. No. 7), granting his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, insofar as this Court ordered that Petitioner should be afforded an individualized bond hearing before an immigration judge. (Id.) Respondent has filed a brief in opposition to Petitioner's motion (Doc. No. 9), and Petitioner has filed a reply brief (Doc. No. 11).

         I. BACKGROUND

         On July 5, 2017, Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the constitutionality of his prolonged detention by the United States Department of Homeland Security, Immigration, and Customs Enforcement (“ICE”), at the York County Prison without a bond hearing (Doc. No. 1.) Petitioner is a citizen and native of Sierra Leone who was admitted to the United States as a lawful permanent resident on April 15, 2009. (Doc. No. 5 at 2.) Petitioner was convicted in the United States District Court, District of Minnesota, on April 20, 2016 for the offense of “Aided and Abetted by and Aiding and Abetting Each Other, Bank Fraud, ” in violation of 18 U.S.C. §§ 1344 and 2, and sentenced to ten months' imprisonment. (Id.) A Notice to Appear was issued for Petitioner on July 19, 2016, charging him as removable from the United States pursuant to Section 237(a)(2)(A)(i) of the INA for being convicted of a crime involving moral turpitude. (Id. at 3.) On June 13, 2017, an immigration judge denied Petitioner's applications for asylum, for withholding of removal, and protection under the Convention Against Torture (“CAT”), and ordered Kamara removed from the United States to Sierra Leone. (Id.) There is a pending appeal before the Board of Immigration Appeals (“BIA”). (Id.)

         This Court issued an Order on July 11, 2017, directing Respondent to show cause as to why the relief Petitioner requested-a “bond hearing before an immigration judge”-should not be granted. (Doc. No. 3.) In response, Respondent acknowledged that Petitioner's mandatory detention without bond consideration had reached the presumptively unreasonable duration, thus triggering a right to an individualized bond hearing. (Doc. No. 5.) See Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015); Demore v. Kim, 538 U.S. 510 (2003); Singh v. Sabol, No. 14-CV-1927, 2015 WL 3519075 (M.D. Pa. June 4, 2015). Respondent further agreed to coordinate with the immigration court to schedule a bond hearing as expeditiously as possible. (Doc. No. 5); see 8 C.F.R. § 1003.19(c) (providing that the immigration court has jurisdiction to hold such bond hearings and in light of its expertise in immigration law is the appropriate forum for such hearings).

         Accordingly, the Court granted the petition and ordered an individualized bond hearing before an immigration judge, providing that “the immigration judge must make an individualized inquiry into whether detention is still necessary for purposes of ensuring that Petitioner attends removal proceedings and that his release will not pose a danger to the community, ” and that “the government bears the burden of demonstrating that Petitioner's continued detention is necessary to fulfill the purposes of the detention statute.” (Doc. No. 7.) At the hearing, the parties presented evidence relating to Petitioner's risk of flight and danger to the community. (Doc. No. 10-1.) Following consideration of this evidence, the immigration judge denied Petitioner's application for bond. In rendering his decision, the immigration judge correctly articulated the legal standards, noting that the court must consider two primary factors: (1) risk of flight; and (2) danger to the community. (Id.) The immigration judge also observed that the burden of proof and persuasion rested on the Government and it had to carry that burden of proof by clear and convincing evidence. (Id.)

         The immigration judge found that the Government met its burden of proof with regard to the question of whether Petitioner presented a danger to the community and in the alternative, whether Petitioner is a flight risk. (Id.) The immigration judge cited Petitioner's criminal history that spanned as far back as 2010, encompassing eleven criminal offenses including several convictions for trespass and driving under the influence, as well as a conviction of federal bank fraud as factors which led to the immigration judge to conclude that Petitioner was an ongoing danger to the community. (Id.) With regard to the flight risk, the immigration judge cited to the fact that Petitioner had been ordered removed and denied all relief. (Id.)


         In his instant motion to re-open, Petitioner requests that this Court set aside the bond denial decision by the immigration judge and either order Petitioner's release from imprisonment, or in the alternative, conduct a constitutionally adequate bond hearing. (Doc. No. 8.) In support, Petitioner argues that the immigration judge failed to comply with this Court's August 15, 2017 Order by not conducting an individualized bond hearing. (Doc. No. 8 at 9.) Petitioner advances that the immigration judge erroneously found that he was a flight risk and ignored evidence of Petitioner's familial ties in his home state of Minnesota and evidence that his former employer has offered him employment upon release from ICE custody. (Id. at 9, 10.) Petitioner also argues that the immigration judge's decision that he is a danger to the community was based on prior events and that Petitioner's past criminal history could not have been enough to meet the Government's burden of “clear and convincing evidence.” (Id. at 11.) Respondent counters that Petitioner must first exhaust his administrative remedies by filing an appeal with the Board of Immigration Appeals (“BIA”), and that Petitioner is not entitled to further habeas relief. (Doc. No. 9.)

         This District has previously confronted the narrow issue presently by this motion. In Quinteros v. Sabol, No. 4:15-cv-02098, 2016 WL 6525295 (M.D. Pa. Nov. 3, 2016) (Brann, J.), the court addressed whether it retained jurisdiction after it orders an immigration judge to conduct an individualized bond hearing. The court posed the following narrative:

When a federal district court orders an immigration judge to conduct an individualized bond hearing as requested in a habeas petition, is it improper for the district court to retain jurisdiction for the purpose of conducting its own determination on the merits, prior to the petitioner exhausting his administrat[ive] remedies and the agency's decision becoming final? As a matter of both federalist principles and common-sense practicality, I consider it axiomatic that a federal court should not retain jurisdiction post-referral, but to the extent that it must, such review is necessarily limited to ensuring that the petitioner received the hearing he was owed in the first place. Accordingly, prior to satisfactory showings of exhaustion and finality, the district court should not revisit the merits of the immigration judge's determination. To do so would be premature and would otherwise disregard established constitutional bounds.

Quinteros, 2016 WL 6525295, at * 1. The Court went on to provide that “an immigration judge's conducting an individualized bond determination . . . necessarily moot[s] an underlying habeas petition that solely requests such a hearing be held.” Id.; see Carmil v. Green, No. CV 15-8001 (JLL), 2015 WL 7253968, at *3 (D.N.J. Nov. 16, 2015) (“Petitioner has already received the sole relief available to him under Diop and Chavez-Alvarez, a bond hearing, and as such his Petition would be moot and would warrant dismissal for that reason instead.”).

         In Pierre v. Sabol, No. 1:11-CV-2184, 2012 WL 291794 (M.D. Pa. July 17, 2012) (Caldwell, J.), a case which Respondent cites, the court addressed a motion from the petitioner to reopen his §2241 case after it had been closed upon referral to an immigration judge to conduct a bond hearing, and either require the immigration judge to reconsider his bail amount or release him from detention. Id. 2012 WL 291794, at *1. The court declined on two grounds. First, the court noted that the petitioner received the relief he requested, a hearing before an immigration judge, citing Leonardo v. Crawford, 646 F.3d 1157, 1161 (9th Cir. 2011), for the proposition that a “district court has authority to determine if there has been compliance with its earlier habeas order but acted properly in refusing to review the [immigration judge's] refusal to grant bond when the government complied with the habeas order by holding a hearing.” Id.

         Second, the petitioner failed to exhaust his administrative remedies. The court provided that it could not consider his request for relief until he had exhausted his administrative remedies by appealing the bond decision to the BIA. (Id.); see Leonard, 646 F.3d at 1160-61 (holding that petitioner failed to exhaust administrative remedies when he did not appeal the immigration judge's bond determination to the BIA before seeking habeas relief in district court); German Chajchic v. Rowley, No. 1:17-CV-00457, Report and Recommendation, at 7-8 (M.D. Pa. Jul. 25, 2017) (Carlson, M.J.), Report and Recommendation adopted, German Chajchic v. Rowley, No. 1:17-cv-457, 2017 WL 4387062 (M.D. Pa Oct. 3, 2017) (Conner, C.J.) (providing that ÔÇťaliens who ...

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