Sillah v. Davis

• Decision Date: 17 March 2003
• Docket Number: No. 02-2692-D/V.,02-2692-D/V.
• Citation: 252 F.Supp.2d 589
• Parties: Mahamadou SILLAH, Petitioner, v. Christine G. DAVIS, et al., Respondents.
• Court: U.S. District Court — Western District of Tennessee

252 F.Supp.2d 589

Mahamadou SILLAH, Petitioner, v. Christine G. DAVIS, et al., Respondents.

No. 02-2692-D/V.

United States District Court, W.D. Tennessee, Western Division.

March 17, 2003.

Mahamadou Sillah, WTDF-Mason, West Tennessee Detention Facility, Mason, TN, pro se.

ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2241 ORDER DENYING APPOINTMENT OF COUNSEL AND ORDER CERTFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH

DONALD, District Judge.

On September 5, 2002, the petitioner, Mahamadou Sillah, a detainee at the West Tennessee Detention Facility in Mason, Tennessee ("WTDF"), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner paid the habeas filing fee. On September 10, 2002, this Court issued an order directing the respondents to file a response to the petition. On October 2, 2002, respondents filed a motion to dismiss the petition, accompanied by a legal memorandum. Thereafter, on October 16, 2002 and on November 18, 2002, petitioner filed motions seeking appointment of counsel.

In his habeas petition, Sillah makes the following factual allegations:

3. The plaintiff herein SILLAH, Mahamadou[,] is an alien and Native and Citizen of Gambia, who came to the U.S. on/about November 1994 with B2 visa.

4. The petitioner got married to U.S. Citizen on 1996, and filed for adjustment of status.

5. The plaintiff left the U.S. on 1999 with INS travel document, and came back within one month.

6. The plaintiff meet [sic] with the INS on June 2001.

7. On August 1, 2002[,] the plaintiff was driving to OHIO on 1-75, and was pulled by state police[.][T]he officer asked if he plaintiff was driving 89 miles per hour? The plaintiff informed the officer that he was going 69 miles per hour.

8. The officer DID NOT GIVE THE PLAINTIFF the reason for pulling him over, yet he questioned him for his license, and asked him for his RACE and background.

9. The plaintiff complied with the officer, but within minutes, the FBI, and the INS were called along with 4 other police cars.

10. The plaintiff was taken in INS custody for no reason after getting pulled over for no reason.

11. The plaintiff has been in custody since 8-1-2002 without paper work, or court appearance.

12. The plaintiff was served with NOTICE TO APPEAR which have wrong information.

13. The plaintiff wrote INS but no respond [sic] came back.

14. The plaintiff is held without bond.

15. The plaintiff is held without court date.

16. The plaintiff has been in custody over one week without court appearance or due process.

The petitioner further contends that the initial stop of his car was made without probable cause, the officer asked his race in violation of his right to Equal Protection, and the officer illegally searched his car without his consent. He seeks an order directing that he be released from custody, directing the Immigration and Naturalization Service ("INS") to provide him with legal status in the United States and to credit the entire time he has been present in the United States toward his eventual citizenship, to correct the INS records in unspecified ways, and "to treat this as a class action for aliens in detention without reason."

Respondents contend that Sillah, a native of Gambia, entered the United States at New York City on a nonimmigrant visitor's visa on November 27, 1994. Response to Petition for Writ of Habeas Corpus, Motion to Dismiss Petition; and Supporting Memorandum, filed Oct. 2, 2002 ("G.Br."), Ex. 1. That visa authorized Sillah to remain in the United States until February 26, 1995. On April 11, 1996, Sillah married Patricia Dantzler, who purports to be a United States citizen. Id., Ex. 2. On or about January 14, 1998, Sillah applied for adjustment of status to that of a lawful permanent resident of the United States, based on his alleged marriage to a U.S. citizen. As part of that process, Ms. Dantzler (who was then known by the name of Patricia Sillah) filed a Form 1-30, Petition for Alien Relative, id., Ex. 3, and Sillah filed a Form 485, Application for Adjustment of Status, id., Ex. 4. On March 8, 1999, the Immigration and Naturalization Service ("INS") approved an application for advance parole to permit Sillah to leave the United States temporarily and to then return to his immigration parole, id., Ex. 5, and issued a Form 1-512, Authorization for Parole of an Alien into the United States, id., Ex. 6.¹ Sillah returned to the United States pursuant to the grant of advance parole on or about April 25, 1999. See G. Br., Ex. 7. On August 2, 1999, the INS denied the Petition for Alien Relative filed by Ms. Sillah, id., Ex. 9,² and also denied Sillah's Application for Adjustment of Status, id., Ex. 10.

On August 1, 2002, an officer with the Tennessee Highway Patrol stopped Sillah near Athens, Tennessee. According to a Form 1-213, Record of Deportable/Inadmissible Alien, id., Ex. 11, that was apparently prepared by an INS officer who was called to the scene, Sillah was stopped for speeding and, upon being given permission to search the car, the officer found approximately one thousand (1000) "bootleg" compact disks. The officer also determined that the license plate was not registered to the car, which Sillah claimed to own. Sillah also had no driver's license, although he did produce an Ohio state identification card. Upon learning that Sillah was from Gambia, the officer contacted the INS. The INS officer determined that Sillah was in the country illegally and took him into custody. Id. That same day, Sillah was notified that he would remain in custody pending removal proceedings before a U.S. Immigration Court. See id., Ex. 32.

On or about August 11, 2002, Sillah requested a custody redetermination hearing before the U.S. Immigration Court in Memphis. See id., Ex. 8. The Immigration Court scheduled a hearing on Sillah's motion to be held at 1:30 p.m. on August 15, 2002. Id., Ex. 13. On August 15, 2002, the District Director of the INS's New York District issued an order revoking Sillah's immigration parole. Id., Ex. 14.³ Also, at the August 15, 2002 redetermination hearing, the Immigration Judge denied the motion for a determination of Sillah's custody status. G. Br., Ex. 15.⁴ Sillah did not appeal this decision.

On August 19, 2002, a Notice to Appear was served on Sillah and was filed with the Immigration Court. G. Br., Ex. 17.⁵ The effect of this notice was to formally commence removal proceedings against Sillah.⁶ The notice alleged that Sillah is an arriving alien; that he is not a citizen or national of the United States; that he is a native of Gambia and a citizen of Gambia; and that he arrived in the United States at or near New York City, New York on or about November 27, 1994 as a B-l Nonimmigrant. The legal basis for Sillah's removal from the United States was alleged to be the following:

Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (Act), as amended, as an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Act, and a valid unexpired passport or other suitable travel document, or document of identity and nationality as required under the regulations issued by the Attorney General under section 211(a) of the Act.

G. Br., Ex. 17.

On August 29, 2002, a Form 1-261, Additional Charges of Inadmissibility/Deportability, was filed that contained the additional factual allegations that Sillah departed the United States and last arrived in the United States at New York, New York on or about April 25, 1999, pursuant to a grant of advance parole; and that he is an intending immigrant not in possession of a valid immigrant visa. Id., Ex. 18.

Sillah was afforded a master calendar hearing before the U.S. Immigration Court on August 29, 2002, see id., Ex. 19, at which time the respondent contends that Sillah admitted the allegations against him and he was found removable by the U.S. Immigration Court.⁷ The respondent contends that Sillah's case was continued until September 5, 2002 for consideration of possible avenues of relief from removal. See id., Ex. 20. On September 5, 2002, respondent contends that petitioner requested additional time from the Immigration Court to consider his options. The hearing was rescheduled for September 19, 2002. Id., Ex. 21.⁸ On or about September 10, 2002, Sillah filed a motion seeking a change of venue to New York City. Id., Ex. 22. That motion was denied on September 16, 2002 because "[n]o valid purpose has been alleged for a change of venue" and "[t]his case is close to completion." Id, Ex. 23. Sillah also filed an application for asylum, id., Ex. 26, and the Immigration Court conducted as asylum hearing on September 30, 2002, id., Ex. 25.

As a threshold matter, this Court must first consider whether it has subjectmatter jurisdiction over Sillah's challenge to the revocation of his immigration parole. In order to put this issue in context, it is necessary briefly to review the statutory provisions and regulations applicable to Sillah's detention. Sillah has been detained as an arriving alien.⁹ Once his immigration parole was revoked, he was restored to the status he had at the time of the grant of parole, 8 C.F.R. § 212.5(e)(2)(i), which, in Sillah's case, meant that he re-assumed the status of an arriving alien. See also INA § 101(a)(13)(B), 8 U.S.C. § 1101(a)(13)(B) ("An alien who is paroled under section 212(d)(5) ... shall not be considered to have been admitted."). Thus, notwithstanding the fact that he has been physically present in the United States for some time, Sillah stands in the position of an alien applying for admission to the United States.¹⁰

Detention of arriving aliens is generally mandatory. Section 235(b)(2)(A) of the Act, 8 U.S.C. § 1225(b)(2)(A), provides that, "in the case of an alien who is an applicant for admission, if the examining immigration...