United States District Court, M.D. Pennsylvania
D. Mariani, United States District Judge
Mohammad Munir Anwari ("Petitioner"), a detainee of
the United States Immigration and Customs Enforcement
("ICE"), currently confined in the Pike County
Correctional Facility, Lords Valley, Pennsylvania, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Doc. 1). Petitioner challenged his continued
detention by ICE pending removal. (Id.). On October
10, 2017, the Court granted the habeas petition in part and
ordered that Petitioner be afforded an individualized bond
hearing before an immigration judge. (Doc. 6). Presently
pending before the Court are Petitioner's motions (Docs.
8, 11) to enforce this Court's October 10, 2017 Order.
For the reasons set forth below, the Court will deny
Petitioner's motions to enforce.
a native and citizen of Afghanistan, last entered the United
States on April 5, 2006 as a refugee. (Doc. 3-1, p. 5, Notice
August 15, 2008, Petitioner was convicted of conspiracy to
import and distribute, and conspiracy to possess with intent
to distribute, one (1) kilogram or more of heroin, in
violation of 21 U.S.C. §§ 846, 952(a), 959 and 963.
(Doc. 3-1, p. 5, Notice to Appear). Petitioner was sentenced
to one hundred fifty-one (151) months' imprisonment.
November 21, 2016, based on Petitioner's conviction, ICE
commenced removal proceedings against him charging him as
removable from the United States pursuant sections
237(a)(2)(B)(i) and 237(a)(2)(A)(iii) of the Immigration and
Nationality Act ("INA") for his violation of a
controlled substance law and as an aggravated felon. (Doc.
3-1, p. 5, Notice to Appear). On January 4, 2017, the Bureau
of Prisons released Petitioner into ICE custody. See
26, 2017, an immigration judge ordered Petitioner removed
from the United States to Afghanistan. (Doc. 3-1, p. 6, Order
of the Immigration Judge). The June 26, 2017 order also
denied Petitioner's application for deferral of removal
under Article III of the Convention Against Torture.
21, 2017, Petitioner appealed the immigration judge's
decision to the Board of Immigration Appeals
("BIA"). (Doc. 3-1, p. 7, Filing Receipt for
Appeal). At the time Petitioner filed the habeas petition,
the appeal was pending before the BIA. (Id.).
August 27, 2017, the immigration judge denied
Petitioner's request for a change in custody status due
to lack of jurisdiction based on Petitioner's mandatory
detention status. (Doc. 3-1, p. 8, Custody Decision).
Court issued an Order on September 5, 2017, directing
Respondent to show cause as to why the relief Petitioner
requested should not be granted. (Doc. 2). In response,
Respondent indicated that if the Court entered an order
directing an individualized bond hearing before an
immigration judge, Respondent would coordinate with the
Immigration Court to schedule a bond hearing as expeditiously
as possible. (Doc. 3, p. 1); 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
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 presenting evidence and proving that continued
detention is necessary to fulfill the purposes of the
detention statute." (Doc. 6). On October 23, 2017, an
immigration judge held a bond hearing. (Doc. 7-1). Following
consideration of the evidence, the immigration judge denied
Petitioner's request for a change in custody status.
(Id.). In rendering his decision, the immigration
judge 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 or, in the alternative,
whether Petitioner is a flight risk. (Id.). The
immigration judge ultimately found that Petitioner posed a
significant flight risk, and denied his application for bond.
instant motions, 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. (Docs. 8, 11). In support, Petitioner argues that
the immigration judge failed to comply with this Court's
October 10, 2017 Order by not conducting an individualized
bond hearing. (Id.). Petitioner advances that the
immigration judge erroneously found that he was a flight
risk. (Id.). Respondent counters that Petitioner
must first exhaust his administrative remedies by filing an
appeal with the BIA, and that Petitioner is not entitled to
further habeas relief. (Doc. 9).
Middle District of Pennsylvania has previously confronted the
narrow issue presented by Petitioner's motions to
enforce. In Quinteros v. Sabol, No. 4:15-cv-02098,
2016 WL ...