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Ndaula v. Hoover

United States District Court, M.D. Pennsylvania

July 10, 2019




         Before the Court is Petitioner Alexander Ndaula (“Petitioner”)'s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. No. 18), challenging his detention by the Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”), at the Clinton County Correctional Facility (“CCCF”) in McElhattan, Pennsylvania.[1] Petitioner has also filed a motion for an evidentiary hearing and to appoint counsel (Doc. No. 30), and a motion for a detention hearing (Doc. No. 34). Following an Order to Show Cause (Doc. No. 36), Respondent filed a response, asserting that Petitioner's detention pursuant to 8 U.S.C. § 1226(c) is lawful and does not violate the Due Process Clause of the Fifth Amendment. (Doc. No. 9.) Petitioner filed a traverse on June 25, 2019. (Doc. No. 39.)

         By Order entered on June 26, 2019, the Court directed Respondent to file a sur-reply addressing the arguments raised in Petitioner's traverse within seven (7) days. (Doc. No. 40.) Respondent filed its sur-reply on July 3, 2019. (Doc. No. 42.) On July 1, 2019, attorney Gerald E. Lynch filed a motion for leave to appear on behalf of Petitioner. (Doc. No. 41.) The Court will grant the motion for leave to appear (Doc. No. 41), but for the reasons set forth below, will deny Petitioner's § 2241 petition (Doc. No. 18) without prejudice to Petitioner filing another petition should his detention become arbitrary or unreasonable. The Court will also deny Petitioner's motions for an evidentiary hearing and detention hearing (Doc. Nos. 30, 34) and deny as moot his motion to appoint counsel (Doc. No. 30).

         I. BACKGROUND

         A. Procedural History

         On June 29, 2018, Petitioner, then a federal prisoner incarcerated at the Moshannon Valley Correctional Center in Philipsburg, Pennsylvania, filed a § 2241 petition in the United States District Court for the Western District of Pennsylvania, challenging the calculation of his federal sentence. (Doc. No. 1.) Petitioner argued that he was entitled to more prior custody credit as well as good time credit. (Id.) During the pendency of his petition, ICE filed a detainer against Petitioner. Petitioner subsequently filed a notice of an amended § 2241 petition, challenging the ICE detainer. (Doc. No. 7.) On September 7, 2018, Petitioner filed a notice of change of address, indicating that he had been transferred to CCCF, located within this district. (Doc. No. 13.)

         On September 19, 2018, Petitioner filed a supplement to the amended petition seeking release from detention. (Doc. No. 18.) In that document, Petitioner clarified that he was no longer challenging the detainer and was instead challenging his continued custody by ICE. (Id.) In an Order entered on January 4, 2019, the Western District of Pennsylvania transferred the matter to this Court. (Doc. No. 28.) Because Petitioner is now only challenging his continued custody by ICE, the Court has deemed his supplement to the amended petition (Doc. No. 18) to be the operative § 2241 petition in this matter. (See Doc. No. 36.)

         B. Relevant Immigration Background

         Petitioner, a native and citizen of Uganda, first entered the United States at an unknown time and place. (Doc. No. 38-1, Ex. 1 at 3; Ex. 3 at 2.) On February 6, 2001, he was convicted of credit card larceny in the Natick District Court in Natick, Massachusetts. (Id., Ex. 2 at 1; Ex. 3 at 2; Ex. 4 at 1.) On August 28, 2001, ICE issued a Notice to Appear, charging Petitioner as being removable from the United States, pursuant to §§ 212(a)(6)(A)(i), (a)(7)(A)(i)(I), and (a)(2)(A)(i)(I) of the Immigration and Nationality Act (“INA”), for being present without having been admitted or paroled, not having valid entry documents, and having been convicted of a crime of moral turpitude. (Id., Ex. 2 at 1.)

         On March 26, 2003, an immigration judge denied Petitioner all forms of relief and ordered him removed to either the United Kingdom or Uganda. (Id., Ex. 3 at 9.) On September 29, 2003, the Board of Immigration Appeals (“BIA”) granted Petitioner withholding of removal to Uganda. (Id., Ex. 5.) On December 29, 2003, ICE determined that Petitioner would remain detained pending his anticipated removal. (Id., Ex. 4.) On May 28, 2004, Petitioner was released on an Order of Supervision because ICE was unable to obtain a travel document for him. (Id., Ex. 9 ¶ 4.)

         DHS took Petitioner into custody again on September 6, 2010, after he was arrested for evading arrest, giving a false name, and various motor vehicle charges. (Id. ¶ 6.) On September 8, 2010, Petitioner was re-released on the Order of Supervision. (Id.) On December 5, 2011, ICE encountered Petitioner at Rikers Island in New York City after Petitioner had been charged with enterprise corruption. (Id. ¶ 7.) Petitioner remained on the Order of Supervision. (Id.)

         On July 28, 2015, Petitioner was convicted of conspiracy to commit wire fraud and two counts of wire fraud in the United States District Court for the District of Massachusetts and was sentenced to twenty-one (21) months of imprisonment. (Id., Ex. 1 at 4; Ex. 6.) Three years later, Petitioner was convicted of criminal possession of a weapon in the Kings County, New York Supreme Court and sentenced to six (6) months of confinement. (Id., Ex. 1 at 4.)

         Prior to Petitioner's release from federal custody, DHS moved for the BIA to reopen Petitioner's immigration proceedings and vacate his grant of withholding of removal based upon his recent criminal conviction. (Id., Ex. 9 ¶ 9; Ex. 10.) Petitioner returned to ICE custody on August 21, 2018, after his Order of Supervision was revoked. (Id., Ex. 9 ¶ 10.) On November 20, 2018, Petitioner was considered for bond pursuant to Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208 (3d Cir. 2018), [2] but his request was deemed withdrawn because he had not been detained for more than six (6) months. (Doc. No. 38-1, Ex. 13.)

         On January 24, 2019, the BIA granted DHS's motion to reopen and remanded Petitioner's proceedings to an immigration judge for a determination of whether Petitioner's most recent criminal conviction would preclude him from relief in the form of withholding of removal and whether Petitioner was entitled to other forms of relief. (Id., Ex. 14.) On February 8, 2019, Petitioner filed a petition for review of removal proceedings in the United States Court of Appeals for the Third Circuit. Ndaula v. Att'y Gen., No. 19-1346 (3d Cir.). On February 13, 2019, the Government filed a motion to dismiss for lack of jurisdiction, arguing that Petitioner's petition for review should be dismissed because he was no longer subject to a final order of removal. Id. On May 2, 2019, the immigration judge scheduled a merits hearing in Petitioner's proceedings for August 9, 2019. (Doc. No. 38-1, Ex. 15.) On June 7, 2019, the Third Circuit granted the Government's motion to dismiss Petitioner's petition for ...

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