Enwonwu v. Chertoff

• Decision Date: 12 July 2005
• Docket Number: No. CIV.A. 05-10511-WGY.,CIV.A. 05-10511-WGY.
• Citation: 376 F.Supp.2d 42
• Parties: Frank Igwebuike ENWONWU Petitioner, v. Michael CHERTOFF, Secretary of Department of Homeland Security, Bruce Chadbourne, Interim Field Officer Director for Detention and Removal, Boston Field Office, Bureau of Immigration and Customs Enforcement, Department of Homeland Security, Andrea J. Cabral, Sheriff, Suffolk County House of Correction Respondents.
• Court: U.S. District Court — District of Massachusetts

376 F.Supp.2d 42

Frank Igwebuike ENWONWU Petitioner, v. Michael CHERTOFF, Secretary of Department of Homeland Security, Bruce Chadbourne, Interim Field Officer Director for Detention and Removal, Boston Field Office, Bureau of Immigration and Customs Enforcement, Department of Homeland Security, Andrea J. Cabral, Sheriff, Suffolk County House of Correction Respondents.

No. CIV.A. 05-10511-WGY.

United States District Court, D. Massachusetts.

July 12, 2005.

Robert B. Carmel-Montes, The Carmel Law Group, Boston, MA, for Frank Igwebuike Enwonwu, Petitioner.

Frank Crowley, Immigration and Customs Enforcement, Dept. of Homeland Secur, Boston, MA, for Bruce Chadbourne, Respondent.

ORDER OF TRANSFER REPORT AND RECOMMENDATION

YOUNG, Chief Judge.

Arrested by ICE agents on September 13, 2004, his procedural and substantive due process rights violated, Frank Enwonwu has today endured 303 days of imprisonment even though there are no criminal charges pending against him. He seeks the Great Writ of Habeas Corpus established in clause 39 of Magna Carta (1215) and enshrined in our own United States Constitution. U.S. Const. art. I, § 9, cl. 2. For 217 years, through boom and bust, insurgency, civil war, and terrorist attack, this Court — the oldest United States District Court in America — has carefully and prudentially administered the Writ of Habeas Corpus to secure the rights of the individual against overreaching by the executive.

Mr. Enwonwu commenced his action in this Court on March 17, 2005, had an initial hearing 25 days later, and a full evidentiary hearing two weeks after that. This Court took the matter under advisement and commenced a detailed and reflective analysis of an evidentiary record both complex and deeply disturbing.

Then on May 11, 2005, the Congress stripped this Court of jurisdiction to act in this pending case and all others like it. Though such direct congressional interference in a pending case is virtually unprecedented in all our history, this surprising mandate has gone utterly unnoticed by our people. Evidently, only where an American jury sits to validate the separation of powers among the three branches is trial court jurisdiction immune from such peremptory congressional action.

How can this be in modern day America?

Mr. Enwonwu is an immigrant alien.

He has no right to trial by jury in this type of case and Congress does not much care about immigrant aliens, even those who, after endangering themselves assisting our law enforcement efforts to stem the international drug trade, are deported into the hands of the very drug traders upon whom they have informed.

Does this shock your conscience as an American? If so, read on and dispassionately judge for yourself:

This habeas corpus petition stems from the Board of Immigration Appeals' ("BIA") reversal of the Executive Office for Immigration Review's ("Review Office") grant of deferral of removal under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("Convention Against Torture") to petitioner Frank Enwonwu ("Enwonwu"). Enwonwu challenges the BIA's decision and subsequent denial of his motion to reopen on procedural due process grounds, claiming that he was not given notice of the executive's appeal from the Review Office's decision. Enwonwu also challenges the BIA's order of removal itself on substantive due process grounds.

I. FINDINGS OF FACT

A. Substantially Undisputed Facts

The following facts are not substantially disputed. Where significant disputes exist, the Court has resolved them in subsection B below. Mr. Enwonwu is a 56 year old native and citizen of Nigeria whose immigration history began in 1972 when he was admitted to the United States as a student. Executive's Mem. in Supp. of Mot. to Dismiss ("Exec.Mem.") [Doc. No. 4] at 3. On March 30, 1976, deportation proceedings were initiated against Enwonwu after his student visa expired. Id. Enwonwu left the United States of his own volition following an order of the Review Office permitting his voluntary departure. Id. In 1980, Enwonwu briefly vacationed in the United States for two weeks. Tr. of Hr'g of 4/29/05 ("Tr. of 4/29/05") [Doc. No. 18] at 26. Enwonwu returned to the United States again on January 20, 1986, arriving at Logan International Airport in Boston, Massachusetts with a tourist visa. Pet. for Writ of Habeas Corpus ("Pet'r Mem.") [Doc. No. 1] at 6. Upon his arrival, United States Customs officials interrogated and searched Enwonwu. Id. The search revealed that Enwonwu was concealing approximately five ounces of heroin within his body. Id.

Enwonwu was transporting the heroin for a Nigerian military officer named Lieutenant Charles ("Charles"). Tr. of 4/29/05 at 27. Enwownu agreed to smuggle the heroin into the United States and deliver it in exchange for a payment of $5,000. Tr. of Hr'g of 5/2/05 ("Tr. of 5/2/05") [Doc. No. 19] at 12. Enwonwu claims he received the heroin two hours before his flight out of Nigeria when he and approximately ten other individuals were given small packages. Aff. of Frank I. Enwonwu ("Enwonwu Aff.") [Doc. No. 9] ¶¶ 20-21. Upon receiving his package, Enwonwu was instructed by Charles to insert it into his rectum. Id. at ¶ 22. Enwonwu complied. Id. at ¶ 25.

After Enwonwu successfully concealed the package, Charles handed him $300 and a telephone number he was to call when he arrived in the United States. Id. at ¶ 26. Charles then transported Enwonwu to the airport where they were waived through by customs agents and police officers who were participants in the drug trafficking organization. Tr. of 5/2/05 at 12; Hr'g of 4/29/05, Ex. 6, Tr. of Review Office Hr'g ("Ex.6") at 122.¹ Prior to his departure, Charles took Enwonwu's car as collateral to be returned following the successful delivery of the heroin. Tr. of 5/2/05 at 12. Although Enwonwu wanted to leave the car with his cousin, Charles insisted on keeping it as "ransom" until Enwonwu returned. Ex. 6 at 122. Several of Enwonwu's possessions, including his driver's license, were in his car. Id.

Following the discovery of heroin, Special Agent Herbert Lemon ("Agent Lemon" or "Lemon") of the Drug Enforcement Administration ("DEA") was called to the scene. Pet'r Mem. at 6. Agent Lemon informed Enwonwu that he had run a criminal background check on him and noted that he did not appear to have a criminal record. Tr. of 4/29/05 at 27. Agent Lemon then asked Enwonwu how he had found himself in the present situation. Id. Enwonwu explained to Lemon that he had become involved with drug traffickers in Nigeria and had reluctantly agreed to serve as a courier for Charles. Id. Agent Lemon then inquired as to whether Enwonwu was willing to help convict Charles noting that the DEA was "really looking for the big guys who sent [Enwonwu] on this trip." Id.; Tr. of 5/2/05 at 14 (indicating that Lemon asked Enwonwu whether he was "ready to help [him] convict Mr. Charles"). Further, according to Enwonwu, Lemon stated that if his story turned out to be true and he cooperated, Enwonwu would avoid prosecution and receive protection from Charles and his confederates. Enwonwu Aff. ¶ 42, 44.

Enwonwu also claims that Agent Lemon promised that in exchange for his cooperation he would not be sent back to Nigeria. Id. at ¶ 42. But see infra section I(B). Lemon cautioned, however, that if Enwonwu was lying and wasting everyone's time there would be no deal. Id. at ¶ 43. According to Enwonwu, he accepted the offer and, to prove to Lemon that he was telling the truth, produced the telephone number given to him by Charles which number he was to call upon his arrival. Tr. of 4/29/05 at 28; Tr. of 5/2/05 at 15. Agent Lemon subsequently arranged for Enwonwu to place a call to that number which connected to Charles' room at a Lagos, Nigeria hotel. Tr. of 4/29/05 at 28.

As instructed by Agent Lemon, Enwonwu informed Charles that he had "arrived [in] Boston safely." Enwonwu Aff. ¶ 46; Tr. of 4/29/05 at 28. An "excited" Charles ordered Enwonwu to call him the next morning for precise instructions on how to complete the delivery. Id. at 28-29. Agent Lemon and another DEA agent who had recording equipment and listening devices connected to the telephone listened to the call Enwonwu made to Charles. Id. Following the phone call, Enwonwu was taken to a detention facility and told by DEA agents that he would be picked up the following day. Id. at 29.

The next morning, Agent Lemon retrieved Enwonwu and brought him to a Holiday Inn in Boston where he was checked into a room with several DEA agents. Id. At the scheduled time, Enwonwu placed another telephone call to Charles which the DEA agents again recorded. Id. at 30. Charles informed Enwonwu that two individuals were being sent from New York to receive the heroin. Id. Enwonwu then provided Charles with a contact telephone number (given to him by Agent Lemon) that the New York individuals were to call when they arrived in Boston. Id.

When the individuals from New York later called Enwonwu, they informed him that they would be in Boston the following day. Id. at 31. Enwonwu spent that evening at the Holiday Inn under DEA protection. Ex. 6 at 124. The following morning, the New York individuals called Enwonwu again to tell him the time and place of their rendezvous. Tr. of 4/29/05 at 31. The individual with whom Enwonwu spoke informed him that they were to meet at a coffee shop near the Holiday Inn at noon. Enwonwu Aff. ¶ 56. Enwownu briefly described what he was wearing so that they would be able to recognize him. Id. After Enwonwu completed the call, Agent Lemon introduced him to a female DEA agent who would be posing as Enwonwu's companion. Tr. of 4/29/05 at 31. Lemon instructed Enwonwu that upon meeting the individuals he was to lure them to the car being driven by the undercover agent in order to complete the putative transaction. Id.

When Enwonwu entered the coffee shop later that day, two men gestured for...