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Anwari v. Lowe

United States District Court, M.D. Pennsylvania

May 7, 2018

MOHAMMAD MUNIR ANWARI, Petitioner
v.
CRAIG A. LOWE, Respondent

          MEMORANDUM

          Robert D. Mariani, United States District Judge

         Petitioner 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.

         I. Background

         Petitioner, a native and citizen of Afghanistan, last entered the United States on April 5, 2006 as a refugee. (Doc. 3-1, p. 5, Notice to Appear).

         On 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. (Id.).

         On 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 https://www.bop.gov/inmateloc/.

         On June 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. (Id.).

         On July 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.).

         On 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).

         This 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 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 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. (Id.).

         II. Discussion

         In his 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).

         The 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 ...


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