Bah v. Barr

• Decision Date: 06 September 2019
• Docket Number: Civil No. 1:19-cv-641
• Citation: 409 F.Supp.3d 464
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Hassan BAH, Petitioner, v. William P. BARR, et al., Respondents.

409 F.Supp.3d 464

Hassan BAH, Petitioner,

v.William P. BARR, et al., Respondents.

Civil No. 1:19-cv-641

United States District Court, E.D. Virginia, Alexandria Division.

Signed September 6, 2019

Adina Bassin Appelbaum, Rodney Fred Page, Bryan Cave Leighton Paisner LLP, Washington, DC, for Petitioner.

Andrew Han, US Attorney's Office, Alexandria, VA, for Respondents.

MEMORANDUM OPINION

T. S. Ellis, III, United States District Judge

Petitioner, a citizen of Sierra Leone who is subject to an administratively final but judicially stayed removal order, has been detained in U.S. Immigration and Customs Enforcement ("ICE") custody for over two years without a bond hearing. In his petition, he challenges his detention without a bond hearing as a violation of the Due Process Clause of the Fifth Amendment. Respondents¹ argue that petitioner is subject to mandatory detention under 8 U.S.C. § 1231 and argues that his lengthy detention without bond does not violate Due Process.

Respondents have moved for summary judgment, and this motion has been fully briefed and argued and is now ripe for disposition. For the reasons that follow, the respondents' motion must be denied, and petitioner's habeas petition must be granted in part to require a reasonably prompt bond hearing consistent with Due Process.

I.

Summary judgment is appropriate only where there are no genuine disputes of material fact. Rule 56, Fed. R. Civ. P. Accordingly, the material facts as to which no genuine dispute exists must first be identified. The following undisputed material facts are derived from respondents' motion for summary judgment.²

• Petitioner is a citizen of the Republic of Sierra Leone who entered the United States in October 1999 on a now-expired B-2 visa authorization.

• On December 14, 2015, petitioner was indicted by a grand jury in the Circuit Court for the City of Alexandria on two counts: felony possession of a controlled substance and unlawful possession of marijuana.

• On April 5, 2016, the Circuit Court for the City of Alexandria issued a conviction order finding petitioner guilty of the first count, felony possession of a controlled substance.

• On July 12, 2016, the Circuit Court for the City of Alexandria sentenced petitioner to a twelve month term of incarceration that was suspended for all twelve months.

• On July 17, 2017, ICE detained petitioner and served him with a Form I-862 Notice to Appear, placing him in removal proceedings under 8 U.S.C. § 1227(a)(2)(B)(i) for his conviction "of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana" and under 8 U.S.C. § 1227(a)(1) for overstaying his B-2 visa.

• On August 16, 2017, petitioner appeared pro se for a master calendar hearing where he requested and was granted additional time to obtain counsel.

• On September 21, 2017, petitioner appeared pro se at a master calendar hearing, but with counsel acting as friend of the court. The Immigration Judge ("IJ") sustained both charges of removability despite petitioner's denial of the controlled substance charge. Friend of the court counsel was granted a continuance to obtain representation for petitioner and explore relief from removal.

• On November 2, 2017, petitioner appeared for a master calendar hearing with counsel. petitioner's counsel requested and was granted a continuance for petitioner.

• On January 11, 2018, the IJ found that petitioner's conviction made him removable under 8 U.S.C. § 1227(a)(2)(B)(i).

• On January 18, 2018, petitioner appeared with counsel for a master calendar hearing. Petitioner's counsel requested and was granted a continuance to explore relief from removal.

• On February 22, 2018, the IJ ordered petitioner's removal.

• On March 7, 2018, petitioner appealed his removal order to the Board of Immigration Appeals ("BIA").

• On April 4, 2018, the BIA issued a briefing schedule making briefs for both parties due on April 25, 2018. On April 10, 2018, petitioner requested and was granted an extension of the briefing deadline to May 16, 2018.

• On July 17, 2018, the BIA affirmed the IJ's decision.

• On August 2, 2018, petitioner filed his petition for review with the Fourth Circuit, contesting his removability based on his conviction.

• On August 29, 2018, petitioner filed a motion to stay his removal pending resolution of his petition for review. The Fourth Circuit granted petitioner's motion on September 14, 2018.

• On September 18, 2018, the BIA issued, sua sponte , a decision vacating its order from July 17, 2018 and reaffirming the IJ's ruling with a new order addressing an argument Petitioner raised in a reply brief.

• ICE is routinely able to obtain travel documents from Sierra Leone's government, and there are no structural or diplomatic barriers to removing an alien to Sierra Leone.

• On or about August 8, 2018, ICE submitted a travel document request to Sierra Leone. On August 25, Petitioner attended an interview at Sierra Leone's consulate in support of the travel document request.

• The Fourth Circuit has scheduled oral argument in the appeal for September 2019.

II.

Analysis properly begins with the parties' dispute over which section of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , governs petitioner's detention while the Fourth Circuit Court of Appeals reviews his administratively final but judicially stayed removal order. Respondents argue that 8 U.S.C. § 1231 applies because petitioner is subject to an administratively final removal order. Petitioner disagrees, arguing that § 1226 applies to his ICE detention because the Fourth Circuit stayed his administratively final removal order pending judicial review of its legality.

Nor is the parties' dispute inconsequential; if petitioner is correct that § 1226 applies, the path to a bond hearing is quite clear. For it is well-established that aliens detained under § 1226 must receive bond hearings if their lengthy detentions violate Due Process. See, e.g., Diop v. ICE/Homeland Security , 656 F.3d 221, 232–33 (3d Cir. 2011). By contrast, if respondent is correct that § 1231 applies, the path to a bond hearing is more problematical; in that event, petitioner's eligibility for a bond hearing would depend on whether he could show that there is no significant likelihood of removal in the foreseeable future. See Zadvydas v. Davis , 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). This requirement—no significant likelihood of removal in the foreseeable future—poses a formidable obstacle where, as in the case of Sierra Leone, no apparent obstacles impede removal to a country.

A careful review of the applicable INA statutory language makes clear that where, as here, a court stays an administratively final removal order pending judicial review, it is § 1226, not § 1231, that is applicable. As § 1226's plain language makes clear, that section applies where an alien may be detained "pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226. Petitioner's case fits this section. He is an alien whose administratively final removal order has been stayed pending judicial review and he is awaiting the Fourth Circuit's decision on whether his removal is legal. In petitioner's case, therefore, there is no final decision on petitioner's removal and there will be none unless and until the Fourth Circuit completes its review and issues its decision. Although the BIA's decision made petitioner's removal order administratively final, the Fourth Circuit's issuance of a stay pending judicial review and the ongoing judicial review deprives that administratively final order, at least temporarily, of effect. In sum, § 1226 by its terms applies to petitioner's situation.

By contrast, § 1231 does not govern petitioner's detention unless and until the Fourth Circuit lifts the stay and issues its final order. Specifically, § 1231 mandates an alien's detention "during the removal period" and specifies circumstances in which an alien "may be detained beyond the removal period." 8 U.S.C. §§ 1231(a)(2), 1231(a)(6). Section 1231 by its terms defines when the removal period commences, stating that the removal period does not begin until the "latest of" three possible dates:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay of removal of the alien, the date of the court's final order.

(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.

8 U.S.C. § 1231(a)(1)(B) (emphasis added). Section 1231 (a)(l)(B)(ii) precisely addresses petitioner's circumstances. Thus, petitioner's removal period does not begin before the Fourth Circuit's final order, and it follows, therefore, that petitioner is currently detained pursuant to § 1226, not § 1231.

Although there is no published Fourth Circuit precedent in point, pertinent authority from other circuits confirms the applicability in this case of § 1226. Every circuit court of appeals to have addressed that issue has concluded that § 1226 governs an alien's detention while an administratively final removal order is stayed pending review. See Hechavarria v. Sessions , 891 F.3d 49, 54–57 (2d Cir. 2018) ; Leslie v. Att'y Gen. , 678 F.3d 265, 270 (3d Cir. 2012), abrogated in part and on other grounds by Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 847, 200 L.Ed.2d 122 (2018) ; Prieto-Romero v. Clark , 534 F.3d 1053, 1059 (9th Cir. 2008) ; Bejjani v. INS , 271 F.3d 670, 689 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales , 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). District courts have reached the same result. See Singh v. Sessions , 2018 WL...