Bamba v. Elwood, Civil Action No. 02-8430.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtDuBois
Citation252 F.Supp.2d 195
Decision Date27 March 2003
Docket NumberCivil Action No. 02-8430.
PartiesKarim BAMBA, Petitioner, v. Kenneth ELWOOD, District Director of the Philadelphia Office of the Immigration and Naturalization Service, Respondent.

Page 195

252 F.Supp.2d 195
Karim BAMBA, Petitioner,
v.
Kenneth ELWOOD, District Director of the Philadelphia Office of the Immigration and Naturalization Service, Respondent.
Civil Action No. 02-8430.
United States District Court, E.D. Pennsylvania.
March 27, 2003.

Page 196

Derek Gray, Steel Rudnick & Ruben, Philadelphia, PA, for Petitioner.

Stephen J. Britt, Philadelphia, PA, for Respondent.

MEMORANDUM

DuBOIS, District Judge.


I. INTRODUCTION

Petitioner, Karim Bamba, an alien from the Republic of the Ivory Coast ("Ivory Coast"), is presently detained in the Berks County Prison, Leesport, Pennsylvania. He is subject to a final order of removal as a result of a 1998 conviction for bank fraud in the United States District Court for the Eastern District of Pennsylvania.

Presently before the Court is petitioners Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241. He seeks relief from the removal order on two grounds: first, petitioner claims that, as a person paroled into the United States, he is not "deportable" under the expedited removal proceedings of 8 U.S.C. § 1228(b), and second, even if petitioner is subject to the expedited removal proceedings of 8 U.S.C. § 1228(b), application of the statute in his case violates his due process rights. Upon consideration of the record and applicable law, the Court concludes that petitioner's claims are without merit and denies the Petition.

II. BACKGROUND

The Court first sets forth the relevant facts and procedural history with respect to the removal order underlying the Petition. The facts are taken from the exhibits attached to the Petition and from matters of public record.

On July 1, 1987, petitioner first entered the United States as a visitor. See Matter of Karim Bamba, No. A 93 007 199, at 6 (Immigr. Ct. June 10, 2002) (Transcript of Removal Proceedings, appended to Petition at Exhibit A) ("Immigration Court Transcript"). See id.

Petitioner left the United States for one month in 1993 to visit his family in the Ivory Coast. See id. at 7-10. While there, he was arrested, beaten, and briefly detained by the army. See id. at 10. Petitioner returned to the Ivory Coast in 1995 because of his mother's death. See id. at 12-15. Prior to traveling to the Ivory Coast, petitioner sought and received from the Immigration and Naturalization Service ("INS") advance parole 1 to re-enter

Page 197

the United States upon his return. See Dep't of Justice, INS, Authorization for Parole of an Alien into the United States (Mar. 15, 1996) (appended to Petition at Exhibit C) ("INS Parole Authorization"). While in the Ivory Coast, petitioner claims he was harassed by members of the army and beaten with clubs when he tried to flee. Immigration Court Transcript, supra, at 12, 15-16. On October 25, 1995, he was paroled back into the United States.

On December 24, 1997, petitioner was charged in the United States District Court for the Eastern District of Pennsylvania with one count of bank fraud in violation of 18 U.S.C. § 1344.2 United States v. Bamba, Crim. A. No. 98-86 (E.D. Pa. filed Dec. 24, 1997). He pled guilty to an Information3 on March 16, 1998, and on July 17, 1998, he was sentenced to time served (which amounted to three months), three years of supervised released and a fine of $500.00. See Gov't Mem. of Law at 2.4 He was released from custody in March 1998, and completed his supervised release on June 10, 2001. See Letter from Barry W. Polsky, Chief U.S. Probation Officer, and Marilyn Y. Bradley, U.S. Probation Officer, to Karim Bamba (Jan. 31, 2002) (appended to Petition at Exhibit D).

On March 2, 2001, the INS detained petitioner and placed him in expedited removal proceedings under 8 U.S.C. § 1228(b).5 See Dep't of Justice, INS, Warrant for Arrest of Alien, at 1 (appended to Petition at Exhibit E). On April 23, 2001, the INS issued a Final Administrative Removal Order, in which the INS found petitioner "deportable" by clear and convincing evidence as a nonpermanent resident alien convicted of an aggravated felony. See Final Administrative Removal Order (appended to Petition at Exhibit F).

Between May and June 2001 petitioner filed an application for withholding of removal and for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985) ("Convention Against Torture").6 In his application, petitioner

Page 198

claimed that he feared persecution and torture based on his religion and tribe membership if returned to the Ivory Coast. An INS asylum officer denied his request. An Immigration Judge reviewed that decision and found that petitioner had a reasonable fear of persecution and therefore could pursue an application for withholding of removal and for relief under the Convention Against Torture. See Matter of Karim Bamba, No. A 93 007 199, at 1-2 (Immigr. Ct. June 10, 2002) (Oral Decision of the Immigration Judge, appended to Petition at Exhibit A) ("Oral Decision of Immigration Judge"). Accordingly, the Immigration Judge scheduled a hearing on petitioner's application for withholding of removal and for relief under the Convention Against Torture.

At the hearing on June 10, 2002, the Immigration Judge found petitioner ineligible for withholding of removal or for relief under the Convention Against Torture. See id. at 4-8. Before rendering her decision, the Immigration Judge noted that petitioner was placed in expedited removal proceedings because of his conviction for bank fraud in which the loss was over $10,000. See id. at 2. The Immigration Judge then determined that petitioner's conviction for bank fraud constituted an "aggravated felony"7 and that withholding of removal under § 1231(b)(3) normally is not available to an alien who has committed "a particularly serious crime" that makes the alien "a danger to the community." See id.; see also 8 U.S.C. § 1231(b)(3)(B)(ii). However, the Immigration Judge concluded that bank fraud, the offense for which petitioner had been convicted, did not make him ineligible to apply for withholding of removal. See Oral Decision of Immigration Judge, supra, at 4.

In determining that petitioner was ineligible for removal, the Immigration Judge relied on a report from the U.S. Department of State which stated that although members of petitioner's tribe had suffered discrimination, relations between the tribes generally were amicable. See id. at 5. She concluded that petitioner's testimony was weak and did not contradict the facts set forth in the State Department report. See id, at 6. Specifically, the Immigration Judge ruled that petitioner had not met his burden of establishing eligibility for withholding of removal or protection pursuant to the Convention Against Torture because he (1) did not produce any corroborating evidence except for several newspaper articles, and (2) did not demonstrate a specific danger to his family. See id. at 6-8. Petitioner appealed the Immigration Judge's decision to the Board of Immigration Appeals ("BIA"), which summarily affirmed the Immigration Judge's decision on November 6, 2002. See In re

Page 199

Karim Bamba, No. A93-007-199 (BIA Nov. 6, 2002) (appended to Petition at Exhibit I) ("BIA Decision").

On November 12, 2002, petitioner filed the instant Petition pursuant to 28 U.S.C. § 2241. As will be explained in § III.A of this Memorandum, infra, this Court does not have jurisdiction over factual determinations made by the Immigration Judge and the BIA regarding the reasonableness of petitioner's fear of persecution upon his return to the Ivory Coast. It does, however, have jurisdiction to address any claims that his removal violated the Constitution or federal law.

Petitioner raises two such claims in the Petition: (1) as a person paroled into the United States, he is not "deportable" under the expedited removal proceedings of 8 U.S.C. § 1228(b), and (2) even if petitioner is subject to 8 U.S.C. § 1228(b), application of the statute in his case violates his procedural due process rights.

In addition to the Petition, petitioner filed a Motion for Stay of Removal/Deportation. See Petitioner's Motion for Stay of Removal/Deportation (appended to Petition at Exhibit J). In that Motion, petitioner argued that a stay should be granted so as to enable the Court to consider the Petition on its merits. See id. The Court granted petitioner's Motion for Stay of Removal/ Deportation by Order dated November 15, 2002.

As discussed below, the Court concludes that neither of petitioner's claims for relief are meritorious. Accordingly, the Court denies the Petition.

III. APPLICABLE LAW

A. FEDERAL COURT REVIEW OF ADMINISTRATIVE DECISIONS OF THE IMMIGRATION AND NATURALIZATION SERVICE

Despite the limitations on federal court review of executive branch deportation and removal decisions set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C, 110 Stat. 3009-506 ("IIRIRA"), it is well established that federal courts retain jurisdiction under 28 U.S.C. § 2241(c) to decide habeas petitions filed by criminal aliens subject to deportation or removal. See Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir.2001) ("Both the Supreme Court and this Court have determined that notwithstanding the provisions of AEDPA or IIRIRA, district courts retain jurisdiction to hear habeas petitions filed by aliens subject to deportation for having committed certain criminal offenses." (citing Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001))). The scope of review of such claims is, however, limited to questions of law. Catney v. INS, 178 F.3d 190, 195 (3d Cir.1999) ("[F]allowing passage of AEDPA and...

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5 practice notes
  • Bamba v. Riley, No. 03-2275.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 27, 2004
    ...convicted of an aggravated felony who are not lawfully admitted for permanent residence, including parolees. See Bamba v. Elwood, 252 F.Supp.2d 195, 2003 WL 1563235, at 11 (E.D.Pa. Mar. 31, 2003). The plain language of 8 U.S.C. § 1228(b) does appear to support this interpretation. Section 1......
  • Ogundipe v. U.S. Dept. of Homeland Security, No. 01-CV-4261.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 24, 2003
    ...expedited removal process as constitutional. United States v. Benitez-Villafuerte, 186 F.3d 651, 657-8 (5th Cir.1999); Bamba v. Elwood, 252 F.Supp.2d 195, 204 (E.D.Pa.2003); Marcelus v. INS, 2002 WL 80301, at *1 (E.D.Pa. Jan. 16, 2002). Petitioner argues that his own expedited removal proce......
  • Sackie v. Ashcroft, No. CIV.A. 02-3705.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • June 18, 2003
    ...F.Supp.2d 1005 (E.D.Pa.2003); Edwards v. INS, Civ. A. No. 03-286, 2003 U.S. Dist. LEXIS 6594 (E.D.Pa. March 31, 2003); Bamba v. Elwood, 252 F.Supp.2d 195, 199 (E.D.Pa. 2003); Builes v. Nye, 239 F.Supp.2d 518, 523 (M.D.Pa.2003); U.S. ex. rel. Zhelyatdinov v. Ashcroft, Civ. A. No. 02-4318, 20......
  • Ogundipe v. U.S. Department of Homeland Security, No. 01-CV-4261 (E.D. Pa. 2003), No. 01-CV-4261.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 1, 2003
    ...removal process as constitutional. United States v. Benitez-Villafuerte, 186 F.3d 651, 657-8 (5th Cir. 1999); Bamba v. Elwood, 252 F. Supp.2d 195, 204 (E.D.Pa. 2003); Marcelus v. INS, 2002 WL 80301, at *1 (E.D.Pa. Jan. 16, 2002). Petitioner argues that his own expedited removal process can ......
  • Request a trial to view additional results
5 cases
  • Bamba v. Riley, No. 03-2275.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 27, 2004
    ...convicted of an aggravated felony who are not lawfully admitted for permanent residence, including parolees. See Bamba v. Elwood, 252 F.Supp.2d 195, 2003 WL 1563235, at 11 (E.D.Pa. Mar. 31, 2003). The plain language of 8 U.S.C. § 1228(b) does appear to support this interpretation. Section 1......
  • Ogundipe v. U.S. Dept. of Homeland Security, No. 01-CV-4261.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 24, 2003
    ...expedited removal process as constitutional. United States v. Benitez-Villafuerte, 186 F.3d 651, 657-8 (5th Cir.1999); Bamba v. Elwood, 252 F.Supp.2d 195, 204 (E.D.Pa.2003); Marcelus v. INS, 2002 WL 80301, at *1 (E.D.Pa. Jan. 16, 2002). Petitioner argues that his own expedited removal proce......
  • Sackie v. Ashcroft, No. CIV.A. 02-3705.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • June 18, 2003
    ...F.Supp.2d 1005 (E.D.Pa.2003); Edwards v. INS, Civ. A. No. 03-286, 2003 U.S. Dist. LEXIS 6594 (E.D.Pa. March 31, 2003); Bamba v. Elwood, 252 F.Supp.2d 195, 199 (E.D.Pa. 2003); Builes v. Nye, 239 F.Supp.2d 518, 523 (M.D.Pa.2003); U.S. ex. rel. Zhelyatdinov v. Ashcroft, Civ. A. No. 02-4318, 20......
  • Ogundipe v. U.S. Department of Homeland Security, No. 01-CV-4261 (E.D. Pa. 2003), No. 01-CV-4261.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 1, 2003
    ...removal process as constitutional. United States v. Benitez-Villafuerte, 186 F.3d 651, 657-8 (5th Cir. 1999); Bamba v. Elwood, 252 F. Supp.2d 195, 204 (E.D.Pa. 2003); Marcelus v. INS, 2002 WL 80301, at *1 (E.D.Pa. Jan. 16, 2002). Petitioner argues that his own expedited removal process can ......
  • Request a trial to view additional results

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