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Ademiju v. Lowe

United States District Court, M.D. Pennsylvania

August 27, 2019

JAMES ADEMIJU, Petitioner
v.
CRAIG LOWE, Warden, Respondent

          MEMORANDUM

          MALACHY E. MANNION United States District Judge.

         James Ademiju, a detainee of the Immigration and Customs Enforcement (“ICE”), housed at the Pike County Correctional Facility, Lords Valley, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. §2241. (Doc. 1, petition). Petitioner requests this Court “grant his motion for stay of removal/restraint order.” Id. For the reasons that follow, the Court will summarily dismiss the petition for lack of jurisdiction.

         I. Background

         Petitioner, was placed in removal proceedings under INA 212(a) 96) (c) (i) which was administratively closed on October 25, 2016. (Doc. 1, petition). On September 10, 2018 he was charged removable pursuant to INA §237(a)(2)(A)(iii) as an aggravated felony as defined in section 101(a)(43)(M). Id. He requested relief under the United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment as adopted by and subject to the provision of section 2242 of the foreign affairs reform and restructuring act of 1998, pub L. 105-277, 112 stat. 2681. Id.

         On January 3, 2019, the immigration judge denied Ademiju's applications for asylum, withholding of removal, and protection under the Convention against Torture, and ordered him removed to Nigeria. Id. Petitioner filed a timely appeal to the Board of Immigration Appeals (“BIA”). Id.

         In a decision dated June 6, 2019, the BIA dismissed Ademiju's appeal and denied his motion to remand. Id.

         On June 13, 2019, Petitioner filed a motion to stay removal in the United States Court of Appeal for the Third Circuit. Ademiju v. Barr, C.A. No. 19-2383.

         By Order dated August 7, 2019, the Immigration Judge, after considering Petitioner's custody redetermination pursuant to 8 C.F.R. §1236, granted Ademiju's request for change in status and order him released from custody under bond of $30, 000. (Doc. 1 at 11, Order). Both parties waived appeal. Id.

         By Order dated August 9, 2019, the United States Court of Appeals denied Petitioner's motion for stay of removal, finding the following:

Petitioner's motion for a stay of removal is denied. See Nken v. Holder, 556 U.S. 418, 434 (2009). The temporary administrative stay entered by the Clerk on June 13, 2019, is vacated. Petitioner's motion to adduce additional evidence is referred to the merits panel.
In denying petitioner's motion for a stay of removal, we conclude that petitioner has not shown a sufficient likelihood of success on the merits or that the relevant factors overall warrant a stay. We express no opinion on the ultimate merits of petitioner's petition for review. For purposes of petitioner's stay motion, however, we conclude that petitioner has not shown a sufficient likelihood of prevailing on the arguments that he has raised in his brief on the merits. Those arguments include petitioner's arguments that the agency erred in determining that his offense was not a “particularly serious crime, ” that the agency erred in denying his application under the Convention Against Torture, that the Immigration Judge deprived him of due process by questioning him about his assets in Nigeria and by not providing an opportunity to contest the INA §237(a)(1)(A) charge, or that the Board of Immigration Appeals should have remanded on the ground of ineffective assistance of counsel or new evidence.
We reach that conclusion partially because petitioner's conviction of an aggravated felony likely limits this Court's jurisdiction to constitutional claims and questions of law (though that issue will be finally determined by the panel that reviews this petition for review on the merits). See 8 U.S.C. §1252(a)(2)(C), (D). Petitioner has not shown a likelihood of prevailing on any argument that the Immigration Judge or Board of Immigration Appeals committed legal or constitutional error in connection with any of the issues referenced above. Among other things, petitioner has not shown a likelihood of prevailing on his arguments that the agency legally erred in its assessment of his claims for relief or deprived him of the right to meaningfully present his case. Petitioner has not otherwise shown that the relevant factors warrant a stay. For these reasons, petitioner's motion for a stay of removal is denied.
As for petitioner's motion to adduce additional evidence, we have considered that motion and petitioner's new evidence in connection with petitioner's request for a stay of removal and have concluded that it does not warrant a stay. Among other things, the new evidence does not show a likelihood of success on the merits because the merits panel likely will consider only the administrative record on which petitioner's order of removal is based. See 8 U.S.C. §§1252(a)(1), (b)(4)(A). The new evidence also does not show that petitioner faces irreparable harm if removed to Nigeria. Thus, petitioner's new evidence does not warrant a stay. To the extent that ...

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