Fofana v. Albence

• Decision Date: 15 April 2020
• Docket Number: Case No.: 20-10869
• Citation: 454 F.Supp.3d 651
• Parties: Ibrahim FOFANA, et al., Petitioners, v. Matthew ALBENCE, in his official capacity as Acting Director, U.S. Immigration and Customs Enforcement, et al., Respondents.
• Court: U.S. District Court — Eastern District of Michigan

454 F.Supp.3d 651

Ibrahim FOFANA, et al., Petitioners,

v.Matthew ALBENCE, in his official capacity as Acting Director, U.S. Immigration and Customs Enforcement, et al., Respondents.

Case No.: 20-10869

United States District Court, E.D. Michigan, Southern Division.

Signed April 15, 2020

Caridad Pastor, Pastor Assoc., Troy, MI, for Petitioners.

James J. Carty, U.S. Attorney's Office, Detroit, MI, for Respondents.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [#1], REQUIRING RESPONDENT TO RELEASE PETITIONER IBRAHIM FOFANA FROM CUSTODY WITHIN 36 HOURS AND REQUIRING RESPONDENT TO SHOW CAUSE

GERSHWIN A. DRAIN, United States District Judge

I. INTRODUCTION

On April 3, 2020, Petitioners Ibrahim Fofana, Abdulrahman Mawas, Mhdmamdouh Kheshfeh, Emilian Hila and Jurgen Sterbyci filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, along with a request for a temporary restraining order. Petitioners request their immediate release from detention while they await decisions in pending removal or asylum proceedings before the immigration courts. Petitioners are currently detained by the United States Immigration Customs and Enforcement Agency (ICE) at Monroe and Chippewa County Jails. Petitioners argue their continued detention violates the Fifth Amendment because Respondent Rebecca Adducci, the District Director for ICE's Detroit Office¹ and Petitioners’ custodian for purposes of this habeas action, is unable to adequately respond to the COVID-19 pandemic which exposes Petitioners to a substantial risk of serious illness or death.

Respondent opposes Petitioners’ requested relief arguing Petitioners are not among the class of persons considered to be high risk for serious illness or death if exposed to COVID-19, nor are any of the Petitioners housed in locations where a confirmed COVID-19 case has occurred.

For the reasons that follow, the Court will grant in part and deny in part Petitioners’ petition for a writ of habeas corpus and request for a temporary restraining order. The Court will grant Petitioner Fofana a temporary restraining order and writ of habeas corpus releasing him from ICE custody. The Court will deny Petitioners Mawas's, Hila's, Kheshfeh's, and Sterbyci's petition for a writ of habeas corpus and request for a temporary restraining order.

II. FACTUAL BACKGROUND

A. PETITIONERS

1. Ibrahim Fofana

Petitioner Ibrahim Fofana is a 52-year old citizen of Mali, who was admitted to the United States as a non-immigrant entertainer on November 12, 1994, with authorization to remain for a temporary period not to exceed January 20, 1995. Fofana is currently married to a United States citizen and they have three minor children together. He also has custody of another minor child from a previous marriage. Fofana suffers from high blood pressure

, swelling of the hands and legs and shortness of breath. He is currently taking medication for his high blood pressure.

In 2000, Fofana was convicted of immigration fraud for his involvement with arranging marriages between foreign nationals and United States citizens in violation of 8 U.S.C. § 1325(c) and 18 U.S.C. § 1546. In March of 2001, Fofana was placed in removal proceedings based in part on his conviction for immigration fraud, and an Immigration Judge ordered his removal to Mali. However, by October 2, 2001, Fofana was released on an order of supervision after efforts to effectuate his removal were unsuccessful.

In October of 2016, Fofana was placed in the Alternatives to Detention (ATD) program, with monthly telephonic reporting, office visits every 2 weeks, home visits every 4 weeks, and instructions to obtain a passport. In March of 2017, he applied to reopen his removal proceedings for an adjustment of status to lawful permanent resident based on his marriage to a United States citizen. His motion to reopen was granted and an individual hearing on the merits of his application to adjust status is scheduled to occur on June 12, 2020.

On February 19, 2020, ICE detained Fofana pursuant to 8 U.S.C. § 1226(a) due to purported noncompliance with his ATD program requirements, including violations of telephonic reporting rules, a failed home visit on February 18, 2020, and a lack of progress in obtaining a passport as instructed. Fofana argues that he has followed ATD reporting, however on three occasions the voice recognition system was not functioning properly. He also insists that he failed to answer the door on February 18, 2020 because he was asleep, but when he awakened, he contacted ICE to let someone know what had happened.

2. Emilian Hila

Petitioner Emilian Hila is a 29-year-old citizen of Albania, who was admitted to the United States as a nonimmigrant visitor on January 24, 2018, with authorization to remain for a temporary period until July 24, 2018. On September 29, 2018, Hila filed an application to adjust status based on his marriage to a United States citizen. On November 7, 2019, removal proceedings were initiated based on Hila having obtained admission to the United States by willful misrepresentation of a material fact on a tourist visa application–namely, that he had claimed to be a priest and was attending a religious conference in Michigan. The Immigration Judge denied Hila's request for custody redetermination concluding that Hila was a flight risk with no guarantee that he "will appear for future proceedings if granted bond." On March 11, 2020, the Immigration Judge ordered Hila's removal to Albania. Hila appealed this decision to the BIA, and his appeal remains pending.

3. Abdulrahman Mawas

Petitioner Abdulrahman Mawas is a 20-year-old citizen of Syria, who was admitted to the United States as a nonimmigrant visitor on April 16, 2016, with authorization to remain for a temporary period until October 15, 2016. On September 6, 2016, Mawas filed an application for temporary protected status. This application was denied on April 26, 2019.

On February 13, 2017, Mawas applied for asylum and for withholding of removal which remained pending when removal proceedings were initiated and he was taken into custody on February 19, 2020. Mawas was charged as removable for having overstayed his authorized period of admission under 8 U.S.C. § 1227(a)(1)(B).

On November 24, 2019, Mawas was arrested for shooting BB guns from his apartment balcony. He pled guilty to an amended charge of disorderly person in violation of MICH. COMP. LAWS § 750.167 in the 47^th Judicial District Court in Farmington Hills, Michigan. He has not been sentenced on this offense. Mawas also has prior convictions for operating a vehicle on a suspended license in September of 2018 and December of 2019.

At a hearing on March 20, 2020, the Immigration Judge denied his request for a custody redetermination, finding that he was a danger to persons and property based on his recent criminal activity. Mawas has until April 20, 2020 to appeal this decision. Mawas has a hearing on his application for asylum scheduled for June 11, 2020.

4. Mhdmamdouh Kheshfeh

Petitioner Mhdmamdouh Kheshfeh is a 22-year-old citizen of Syria, who was admitted to the United States on a nonimmigrant visitor visa as part of a robotics team on April 16, 2016, with authorization to remain for a temporary period until October 15, 2016. On August 24, 2016, Kheshfeh filed an application for protected status, which may still be pending. In February of 2017, he filed an application for asylum and withholding of removal, which remained pending when removal proceedings were initiated. Kheshfeh was taken into custody on February 19, 2020.

On November 24, 2019, Kheshfeh was also arrested for shooting BB guns from his apartment balcony. Kheshfeh and Mawas are roommates. He likewise pled guilty to an amended charge of disorderly person in violation of MICH. COMP. LAWS § 750.167 in the 47^th Judicial District Court in Farmington Hills, Michigan. He has also not been sentenced on this offense.

At a hearing on March 20, 2020, the Immigration Judge denied Kheshfeh's request for custody redetermination finding that he was a flight risk and a danger to persons and property evidenced by his recent criminal activity. Kheshfeh has until April 20, 2020 to appeal this decision. Kheshfeh has an individual hearing scheduled on his asylum application in June of 2020.

5. Jurgen Sterbyci

Sterbyci is a 30-year-old citizen of Albania who was admitted to the United States as a visa waiver program tourist under 8 U.S.C. § 1187, on August 3, 2014. Sterbyci gained admission by using a fraudulent Italian passport in the name of Massimo Romanelli. On July 29, 2015, he applied for asylum and withholding of removal. On December 19, 2019, the Immigration Judge ordered him removed and he was arrested at his Macomb, Michigan residence on February 11, 2020. Sterbyci's individual hearing for asylum and relief from removal is scheduled for May 20, 2020.

Sterbyci is the sole breadwinner in his family and he has a 3-month old child who is taken care of by his mother, who has also applied for immigration relief.

B. COVID-19

COVID-19 is an abbreviation for the novel coronavirus disease of 2019, a respiratory illness that spreads easily and sustainably in the community through respiratory droplets produced when an infected person coughs

or sneezes. See Centers for Disease Control and Prevention Coronavirus Disease 2019 Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019-ncov/faq.html#How-COVID-19-Spreads (last visited April 11, 2020). The novel coronavirus of 2019 "is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions." ECF No. 7, PageID.121. While it is thought that people are most contagious when symptoms are present, the virus has also been detected in asymptomatic persons See id., Centers for Disease Control and Prevention Coronavirus Disease 2019 Frequently Asked...