Worku v. Cole, CIVIL ACTION NO. 1:12-CV-01808
| Decision Date | 16 July 2012 |
| Docket Number | CIVIL ACTION NO. 1:12-CV-01808 |
| Parties | MULUGETA ANDEBET WORKU, Petitioner v. DAVID COLE, et al., Respondent |
| Court | U.S. District Court — Western District of Louisiana |
Mulugeta Andebet Worku ("Worku"), a citizen of Ethiopia and a lawful permanent resident of the United States who is being detained by Immigration and Customs Enforcement ("ICE"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on July 1, 2012, contesting his continued detention, pending completion of his administrative proceedings, pursuant to Demore v. Kim, 538 U.S. 510, 513, 123 S. Ct. 1708 (2003), and Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001).1 Worku is presentlyconfined in the LaSalle Detention Facility in Jena, Louisiana.
Worku was convicted, in Virginia in 2010, of possession with intent to distribute marijuana and possession with intent to distribute marijuana as an accommodation. Removal proceedings were subsequently instituted against him and Worku alleges he conceded removability, but requested asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). An immigration judge found Worku was ineligible for withholding of removal because his convictions constituted "particularly serious crimes," and granted Worku relief under the CAT, deferring his removal to Ethiopia.
Worku appealed the ruling that he was ineligible for withholding of removal, and the Board of Immigration Appeals remanded the case to the Immigration Judge for further consideration as to whether Worku's crimes constituted "particularly serious crimes." On remand, on June 18, 2012, the Immigration Judge again found that Worku's convictions constituted particularly serious crimes, and set another hearing for August 13, 2012 to again consider Worku's application for withholding of removal.
The DHS appealed the Immigration Judge's grant of relief under the CAT, and that appeal is still pending.
Worku did not request a "Joseph hearing,"2 but instead filed this habeas petition requesting release from detention pending a final order of removal. Worku contends his case will not end within a reasonable time, that he is not a danger to the community or flight risk, and that he has not received a bail hearing. Worku contends his request to be released was denied by ICE solely because the Department of Homeland Security disagrees with the immigration judge's finding that he is entitled to relief under the CAT and has appealed that ruling. Worku argues that his eighteen month detention is not reasonable and, therefore, not authorized by 8 U.S.C. § 1226. For relief, Worku asks this court to order the respondents to show cause why a writ of habeas corpus should not be granted and Worku released pending completion of his ICE administrative proceedings.3
First, it is noted that Worku contends he is entitled to a court hearing within three days of filing his petition, pursuant to 28 U.S.S. § 2243.4 However, Section 2243 states that the writ ororder to show cause shall be returned within three days, and the hearing set within five days after the return, unless good cause is shown to grant additional time, not to exceed 20 days. The statute also provides that the habeas petition may be dismissed upon review prior to service on the Respondents.
Therefore, Section 2243 does not entitle Worku to a hearing within three days of filing his petition.
Next, Worku contends he is not subject to mandatory detention under Section 1226(c) because he has "substantial defenses" to removal, through the CAT.5 Since Worku has not mentioned it in hisbrief, it appears that Worku has not requested a Joseph hearing before the Immigration Judge. In many cases in which a person is mandatorily detained, the detainee may request a Joseph hearing. In re Joseph, 22 I. & N. Dec. 799 (BIA 1999). At such a hearing, the detainee may raise any nonfrivolous argument available to demonstrate that he was not properly included in a mandatory detention category. See 8 U.S.C. § 1003.19(h) (2) (ii) ; Demore v. Kim, 538 U.S. 510, 514, 123 S. Ct. 1708 (2003). Worku has not alleged or shown that he requested and received a Joseph hearing.6
Worku has not cited any statutory or jurisprudential authority creating an exception to the applicability of Section 1226(c) (mandatory detention) based on a finding that he is entitled to relief under the CAT. Instead, Worku argues that application of Section 1226(c) to him is unconstitutional due to the Immigration Judge's finding that he is entitled to relief under the CAT. However, since the government has appealed that ruling, Worku does not yet have a final judgment in his favor on that issue. Therefore, it is clear that Worku's claim is not yet ripe.
This ground for relief is not properly before the court at this time.
Next, Worku contends the Respondents have violated his right to a bail hearing.
Under the pre-removal-order statute, 8 U.S.C. § 1226, ICE can detain any alien pending a decision in removal proceedings against that alien, and can release on bond any alien not otherwise ineligible for such release. Section 1226 expressly provides for mandatory detention during removal proceedings of aliens who are removable on account of their commission of certain enumerated offenses, including aggravated felonies. Once removal proceedings terminate in an order of removal, however, the alien's detention is governed by 8 U.S.C. § 1231(a).
Worku was convicted in Virginia of possession with intent to distribute marijuana and possession with intent to distribute marijuana as an accommodation; he was sentenced to less than one year imprisonment on each count. Worku's convictions caused him to be deportable under 8 U.S.C. § 1227(a), which provides in pertinent part:
Worku's notice from ICE and the Decision and Order of the Immigration Judge both indicate he is being charged with convictions for drug trafficking offenses (Doc. 1, Exs.) and, thus, subject to mandatory detention during his removal proceedings pursuant to Section 1226(c). Section 1226(c) provides, in pertinent part:
Congress, justifiably concerned that deportable criminal aliens who were not detained would continue to engage in crime and would fail to appear for their removal hearings in large numbers, found that such aliens could be detained for the brief period necessary for their removal proceedings without providing forindividualized determinations as to whether aliens presented flight risk. Demore v. Kim, 538 U.S. at 513. In Demore v. Kim, the Supreme Court held that mandatory detention of criminal aliens (including lawful permanent resident aliens) during removal proceedings under 8 U.S.C. § 1226(c) is constitutionally valid even where there has been no individualized finding that the alien is unlikely to appear for his deportation hearing. In Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011), the court held that ICE can detain an alien when it has some level of suspicion, but has not reached a definitive legal conclusion, that the alien's conviction is covered by Section 1226(c). Thus, Worku's detention pursuant to a no-bail provision of the Immigration and Nationality Act (INA), does not violate Worku's due process rights under the Fifth Amendment.
This ground for relief is meritless.
3.
Worku also complains his pre-removal-order detention for eighteen months is unreasonable.
Mandatory detention of a permanent resident alien does not violate due process. Oyelude v. Chertoff, 125 Fed. Appx. 543, 546 (5th Cir. 2005). Also, Kim v. Demore, 538 U.S. at 531, 123 S. Ct. at 1722. In the case at bar, Worku states in his brief that he conceded he is deportable in his removal proceedings.
The Fifth Circuit held in Ovelude. 125 Fed. Appx. at 546,7 citing Demore v. Kim, that courts retain jurisdiction to review an alien's pre-removal-order detention insofar as that detention presents constitutional issues, such as those raised in a habeas petition. Also, Wilson v. Mukasey, 2010 wl 456777 (W.D.La. 2010); Garza-Garcia v. Moore, 539 F.Supp.2d 899 (S.D.Tex. 2007) ().
Some courts have held that mandatory detention under Section 1226(c) can be unreasonably long, entitling the detainee to a detention hearing and possible release. The court in Diop, 656 F.3d at 233, held (consistent with Justice Kennedy's concurrence in Demore v. Kim) that Section 1226(c) is unconstitutional when it is applied to detain someone for an...
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