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Mundle v. Lowe

United States District Court, M.D. Pennsylvania

October 23, 2019

DWIGHT GEORGE MUNDLE, Petitioner,
v.
CRAIG LOWE, et al., Respondents.

          MEMORANDUM

          A. Richard Caputo United States District Judge.

         Presently before me are a Rule 60(b) Motion for Relief from Judgment/Motion to Enforce (Doc. 16) and a Supplemental Motion to Enforce Court's Prior Order (Doc. 23) both filed by Petitioner Dwight George Mundle (“Mr. Mundle” or “Petitioner”). For the reasons that follow, the motions will be denied.

         I. Background

         The pertinent factual background, as set forth in my January 29, 2018 opinion granting in part and denying in part Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, is as follows:

Mr. Mundle, a native and citizen of Jamaica, last entered the United States at New York, New York, on July 13, 2000, as a non-immigrant visitor. Although Mr. Mundle claimed previous entry to the United States on a student visa in 1999, immigrations officials could not verify this claim. He has never been a Lawful Permanent Resident of the United States.
[Immigration and Customs Enforcement (“ICE”)] officials encountered Mr. Mundle at FCI-Allenwood while he was serving a twenty-seven month sentence following a July 13, 2016 conviction in the United States District Court, Southern District of New York, for transmitting a threat in interstate commerce in violation of 18 U.S.C. § 875(c). In addition to the conviction he was serving, Mr. Mundle had compiled several other criminal convictions including conspiracy to distribute and possess with intent to distribute controlled substances (marijuana) and aiding and abetting the discharge of a firearm. A 41 month term of imprisonment was imposed by the United States District Court, Southern District of New York.
On January 5, 2017, the same day Mr. Mundle was taken into ICE custody, ICE officials issued a Notice of Intent to Issue a Final Administrative Removal Order charging Mr. Mundle as removable from the United States pursuant to Section 237(a)(2)(A)(iii) of the INA based on his conviction for an aggravated felony as defined in Section 101(a)(43) of the INA. On January 30, 2017, Mr. Mundle was served with a Final Administrative Removal Order. In relevant part, the Order states:
I find that you are not a citizen or national of the United States and that you are not lawfully admitted for permanent residence. I further find that you have a final conviction for an aggravated felony as defined in section 101(a)(43)(B) of the Immigration and Nationality Act (Act) as amended, 8 U.S.C. 1101(a)(43)(B), and are ineligible for any relief from removal that the Secretary of Homeland Security, may grant in an exercise of discretion. I further find that the administrative record established by clear, convincing, and unequivocal evidence that you are deportable as an alien convicted of an aggravated felon pursuant to section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii) . . . I find you deportable as charged and order that you be removed from the United States to Jamaica or to any alternative country prescribed in section 241 of the Act.
On May 16, 2017, noting that Mr. Mundle was “IN WITHHOLDING-ONLY PROCEEDINGS, ” an IJ denied Petitioner's application for deferral of removal under the Convention Against Torture. Petitioner appealed the IJ's decision to the Board of Immigration Appeals (BIA). On October 20, 2017, the BIA dismissed Petitioner's appeal.
On October 27, 2017, Mr. Mundle filed a Petition for Review with the United States Court of Appeals for the Third Circuit and requested a stay of his removal order. The same day the Third Circuit Court of Appeals granted Mr. Mundle a temporary stay of removal until the Court could “consider [Mr. Mundle's] motion for a stay of removal.” . . .

(Doc. 14, 2-5 (internal citations and footnotes omitted)).

         After being taken into ICE custody, Petitioner filed a § 2241 petition on August 16, 2017. (See Doc. 1, generally). On January 29, 2018, I granted the petition insofar as Petitioner requested an individualized bond hearing, but the petition was denied to the extent Petitioner sought immediate release from detention. (See Doc. 14, ¶¶ 1-2). In so doing, I noted that Petitioner had been convicted of an aggravated felony as defined by 8 U.S.C. § 1227(a)(2)(A)(iii), so his pre-final order detention was governed by 8 U.S.C. § 1226(c). (See Doc. 13, 5). And, finding Petitioner at that time had been subject to mandatory detention for over a year, I concluded that Petitioner was entitled to an individualized bond hearing before an Immigration Judge (“IJ”) in accordance with Diop v. ICE/Homeland Security, 656 F.3d 221, 233 (3d Cir. 2011). (See id. at 7).[1]

         A bond hearing was held before an IJ on February 8, 2018. (See Doc. 18, Ex. “1”). The IJ denied bond to Petitioner, explaining that “the fact that [Petitioner] has already exhausted one level of appeals, coupled with his outstanding order of removal, gives the Court considerable pause regarding Respondent's willingness to wait out the Third Circuit's ruling and appear for any future proceedings.” (Id. at 4).

         Petitioner then filed the instant Rule 60(b) motion/motion to enforce. (See Doc. 16, generally). Specifically, Petitioner contends that the IJ applied the incorrect standard when determining that he was a flight risk. (See id. at 2). As a result, Petitioner requests that I hold a new bail hearing and ...


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