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Georges v. Doll

United States District Court, M.D. Pennsylvania

May 21, 2018

FRENEL GEORGES, Petitioner
v.
CLAIR DOLL, Respondent

          MEMORANDUM

          SYLVIA H. RAMBO United States District Judge

         Before the Court is Petitioner Frenel Georges' motion to enforce (Doc. No. 8), this Court's October 31, 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. 11.)

         I. BACKGROUND

         Petitioner is a citizen and native of Haiti who entered the United States around May 24, 1991, at Miami, Florida possessing a B2 visa with permission to remain in the United States for a temporary period not to exceed November 23, 1991. (Doc. No. 6. at 3.) Petitioner filed an application for asylum on August 27, 1991, which immigration officials denied on August 8, 1994. (Id.) On June 7, 1995, an immigration judge granted voluntary departure until June 19, 1995. (Id.) Petitioner filed an appeal with the Board of Immigration Appeals (“BIA”), which reopened and remanded the proceedings in order for Petitioner to apply for adjustment of his immigration status. (Id.) Petitioner's immigration status was adjusted on January 20, 2000 to that of legal permanent resident. (Id.)

         Between 2004 and 2017, Petitioner was convicted of making terroristic threats, public order crimes, possessing a schedule I controlled dangerous substance, driving under the influence (on two separate occasions), aggravated harassment by prisoner, and possession of a small amount of marijuana. (Id. at 4.) Petitioner was charged by immigration officials on February 2, 2017 with being removable pursuant to Section 237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”). (Id.) Immigration officials subsequently took Petitioner into custody and on February 28, 2017, an immigration judge denied Petitioner's application for a change in custody status. (Id.)

         On June 29, 2017, an immigration judge ordered that Petitioner be removed from the United States to Haiti and denied all of his pending applications. (Id.) Petitioner then filed an appeal to the BIA on July 26, 2017. (Id.) On October 3, 2017, the BIA granted Petitioner's request for an extension as to the BIA briefing deadline, which was due on November 3, 2017. (Id.)

         On September 19, 2017, Petitioner filed a petition for writ of habeas corpus seeking either release or an individualized bond hearing. (Doc. No. 1.) Petitioner contends that his eight-month detention pending removal is unreasonable. (Id.) The Court issued an Order on October 5, 2017 directing Respondent to show cause as to why the relief sought should not be granted. (Doc. No. 4.) On October 25, 2017, Respondent filed a response to the petition (Doc. No. 6), conceding that Petitioner is entitled to an individualized bond hearing before an immigration judge due to the prolonged length of his detention. See Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469 (3d Cir. 2015); Demore v. Kim, 538 U.S. 510 (2003); Singh v. Sabol, Civ. No. 14-1927, 2015 WL 3519075 (M.D. Pa. June 4, 2015).

         Accordingly, this Court granted the petition and ordered an individualized bond hearing before an immigration judge, and in doing so, provided 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.) A bond hearing was held before an immigration judge on November 7, 2017 (Doc. No. 11, Ex. 2), in which Petitioner was represented by counsel (Id.). At the hearing, the immigration judge denied Petitioner's bond on the basis that Petitioner demonstrated a danger to the community and was a flight risk due to his lengthy criminal history, recent conviction of terroristic threats, and lack of family members in his home country of Haiti. (Id., Bond Hearing Track 3, at 3:48, 4:51; Track 4, at 1:14, 1:38.)

         On December 11, 2017, Petitioner filed a motion to enforce this Court's October 31, 2017, Order. (Doc. No. 8.) While Petitioner acknowledges that he received a bond hearing before an immigration judge, he alleges that he should not have been denied bail. (Id. at 1.) Petitioner therefore requests that the Court order his immediate release. (Id. at 5.)

         II. DISCUSSION

         Petitioner's instant motion requests that this Court immediately release him from the United States Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) custody. (Doc. No. 8.) While it appears that Petitioner is dissatisfied with the immigration judge's determination as to bail, he neither points to any facts or evidence nor provides any substantive argument that the immigration judge failed to comply with this Court's August 15, 2017 Order in conducting the individualized bond hearing. (Id.) Respondent argues that the Court must deny Petitioner's motion to enforce because Petitioner must first exhaust his administrative remedies by filing an appeal with the Board of Immigration Appeals (“BIA”), and then file a new habeas matter seeking review of the BIA decision, if necessary. (Doc. No. 11.)

         Other courts within this district have previously confronted the issue presented by Petitioner's request. In Quinteros v. Sabol, Civ. No. 15-02098, 2016 WL 6525295 (M.D. Pa. Nov. 3, 2016), 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.

Id. 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 also Carmil v. Green, Civ. No. 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, ...


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