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Oliynyk v. Doll

United States District Court, M.D. Pennsylvania

May 21, 2018

OLEKSANDR V. OLIYNYK, Petitioner
v.
WARDEN DOLL, Respondent

          MEMORANDUM

          Kane Judge

         Before the Court is Petitioner Oleksandr V. Oliynyk (“Oliynyk”)'s, motion to enforce (Doc. No. 10), this Court's February 5, 2018 Order (Doc. No. 9), granting his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 insofar as this Court ordered that Oliynik should be afforded an individualized bond hearing before an immigration judge. Respondent has filed a brief in opposition to Oliynik's motion (Doc. No. 12), and Olyinik has filed a reply brief (Doc. No. 14). Accordingly, this matter is ripe for disposition.

         I. BACKGROUND

         Oliynyk, a citizen and native of Ukraine, was admitted to the United States by immigration officials at the Greater Pittsburgh International Airport as a Non-Immigrant student to attend West Virginia University in Morgantown, West Virginia. (Doc. No. 6, Exs. 1, 2.) Between 2006 and 2013, Oliynyk's criminal record included shoplifting, disorderly conduct, driving under the influence of liquor, various traffic offenses, and larceny. (Id. at Ex. 1.) Oliynyk was charged and convicted of “theft by deception - false impression” on May 22, 2013, sentenced to three and a half (3.5) to seven (7) years' confinement, and ordered to pay $431, 796.36 in victim restitution. (Id. at Ex. 2.)

         Oliynyk was taken into ICE custody on May 23, 2017, and charged as being removable pursuant to Sections 237(a)(2)(A)(iii) and 237(a)(1)(C)(i) of the Immigration and Nationality Act “INA”). (Id. Exs. 2, 3.) On September 8, 2017, an immigration judge ordered that Oliynyk be removed from the United States to Ukraine and denied his applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture Act (“CAT”). (Id., Ex. 4.) On September 18, 2017, an immigration judge denied Oliynyk's request for custody re-determination after holding a hearing on August 22, 2017. (Id., Ex. 5.) Oliynyk appealed the immigration judge's removal order to the Board of Immigration Appeals (“BIA”), on September 28, 2017, with briefing due on December 26, 2017. (Id., Ex. 7.)

         On November 30, 2017, Oliynyk filed a petition for a writ of habeas corpus seeking an individualized bond hearing before an immigration judge or release from detention. (Doc. No. 1.) Oliynyk contends that his prolonged detention of over six months is unreasonable. (Id.) The Court issued an Order on December 12, 2017, directing Respondent to show cause as to why relief should not be granted. (Doc. No. 4.) On January 2, 2018, Respondent responded to the petition, conceding that based upon the facts and procedural posture of this case, Petitioner is entitled to an individualized bond hearing before an immigration judge. (Doc. No. 6.) 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, the Court granted the petition insofar as it Ordered an individualized bond hearing before an immigration judge wherein “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. 9.) A bond hearing was held before an immigration judge on February 13, 2018. (Doc. No. 12-1, Ex. 1.) At the hearing, both parties presented evidence relating to whether Oliynyk posed a flight risk or is a danger to the community. (Doc. No. 12-1, Ex. 1, 2.) Following consideration of this evidence as well as arguments by both parties, the immigration judge granted bail and released Oliynyk from custody under bond of $90, 000.00. (Id. at Ex. 2, Track 7.) The immigration judge set a significant bond due to his determination that Oliynyk is a flight risk and danger to the community. (Id.) In rendering his decision, the immigration judge correctly articulated the applicable legal standards, noting that the he must consider two primary factors: (1) risk of flight and (2) danger to the community. (Id. at Track 1, 7.) 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.)

         On February 15, 2018, Oliynyk filed a motion to enforce the Court's February 5, 2018 Order. (Doc. No. 10.) Oliynyk maintains that he was not afforded an individualized hearing and that his bond was excessively high. (Id.) Oliynik therefore requests that this Court order his immediate release or order that a new bond hearing be conducted. (Id.)

         II. DISCUSSION

         Oliynyk advances the argument that the immigration judge erroneously found that he was a flight risk and danger to the community and ignored evidence what Oliynyk characterizes as evidence to the contrary. (Doc. Nos. 10, 14.) For instance, Oliynyk argues that he submitted almost 250 pages of supporting evidence to the immigration judge prior to his hearing and it would have been impossible for the immigration judge to have considered all of these pages prior to rendering a decision. (Doc. No. 10 at 5.) Oliynyk questions whether the immigration judge considered his evidence of rehabilitation and claims that the immigration judge placed undue attention on his conviction for theft by deception, which resulted in three-and-a-half to seven years' incarceration and an order to pay restitution in the amount of $431, 796.36. (Id.)

         Respondent counters that Olyinyk's motion fails because he must first exhaust his administrative remedies by filing an appeal with the Board of Immigration Appeals (“BIA”) and that he is not entitled to further habeas relief. (Doc. No. 12.)

         Recently confronted with this narrow issue, the district court in Quinteros v. Sabol, Civ. No. 15-02098, 2016 WL 6525295 (M.D. Pa. Nov. 3, 2016), 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 provided 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, Civ. No. 15-8001, 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 ...


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