Asolo v. Prim

BASARU ASOLO, Petitioner, v. BILL PRIM, et al., Respondents.

No. 21 CV 50059

United States District Court, N.D. Illinois, Western Division

August 6, 2021

MEMORANDUM OPINION AND ORDER

Iain D. Johnston United States District Judge

Petitioner Basaru Asolo is a noncitizen who since September 2020 has been detained by U.S. Immigration and Customs Enforcement (ICE). Mr. Asolo contends he is being held in violation of his due process rights under the U.S. Constitution as well as in violation of the Full Faith and Credit Act, see 28 U.S.C. § 1738. For the reasons explained below, Mr Asolo's detention violates neither, and so his petition [1] and motion for a preliminary injunction [3] are denied.

BACKGROUND

Mr Asolo is a citizen of Nigeria who entered the United States in 2014 on a tourist visa. Petition [1] at 5. The visa allowed Mr. Asolo to legally remain in the country until January 19, 2015, Response [17] at 27, but he has remained in the country continuously since entering, Petition [1] at 6.

The events that led to Mr. Asolo's detention began on September 26, 2020, when shots rang out in a parking lot next to a club in Indianapolis. Id. at 6. Mr. Asolo fled from the scene in a car, but police chased after him. Id. at 6-7. They eventually stopped him, arrested him, and during a search incident to arrest found on his person bags containing marijuana and cocaine. Id. at 7. According to police, they also found a handgun near where Mr. Asolo was apprehended and live .40 cal rounds both near where he was apprehended and in the vehicle he was driving. Id., Ex. 6 at 1. He was initially charged in Indiana state court with possession of a narcotic drug, resisting law enforcement, and leaving the scene of an accident. Id. at 7.

The Indiana court approved releasing Mr. Asolo on $500 bond. Id., Ex. 2. But before he could be released, on September 27, 2020, he was taken into custody by ICE. Id. at 7. He has been placed into removal proceedings under a Notice to Appear, which charges him with remaining in the United States longer than permitted in violation of 8 U.S.C. § 1227(a)(1)(B). Dkt. 17, Ex. B ¶¶ 8-9. He first appeared before an immigration judge on October 19, 2020, who ordered him detained under 8 U.S.C. § 1226(a) after concluding that he posed a danger to the community based on his criminal history. Id. ¶12. He requested a bond redetermination on two occasions, November 17, 2020, and December 17, 2020, but on each occasion his requests were denied after the judge found no materially changed circumstances since his first bond determination. Id. ¶¶ 13-14. Mr. Asolo appealed the most recent denial of his request for a new bond hearing to the Board of Immigration Appeals. Response [17] Ex. B § 14. At last report, that appeal remained pending. Id.

On January 11, 2021, Mr. Asolo submitted a Form I-589 applying for asylum and withholding of removal under 8 U.S.C. § 1231(b)(3)(A) based on fear of harm or mistreatment if he returns to Nigeria. Petition [1], Ex. 4. Specifically, he contends that political enemies of his father kidnapped him in October 2013, and although he escaped and moved to a different state within Nigeria, his father's political enemies found and attacked him again, this time shooting his car during which his body caught on fire. A hearing on the merits of his application was scheduled for February 22 2021, but on that day he sought and obtained a continuance to allow time to file an I-130 visa petition based on his recent marriage to a U.S. citizen. Response [17], Ex. B ¶ 19. His wife filed the I-130 visa petition that same day, February 22, 2021, seeking legal permanent resident status for Mr. Asolo under 8 U.S.C. § 1255(a). Reply [18], Ex. 1. The immigration court has scheduled a status hearing for August 30, 2021. https://portal.eoir.justice.gov/InfoSystem/CourtInfo (A-Number 216-656-257) (last visited August 4, 2021).

Mr. Asolo remains in ICE custody at the McHenry County Jail. In his Indiana criminal proceeding he now also faces an additional charge, possessing a handgun without a license, and his bond was raised to $25, 000. Petition [1] at 8.

Before the Court is Mr. Asolo's petition under 28 U.S.C. § 2241 seeking his immediate release from ICE detention or, alternatively, a new bond hearing. In support of his petition, Mr. Asolo offers two arguments. First, he contends that the Indiana criminal court already determined that he was not a danger to the community when it approved his release on bond, and so the immigration judge violated the Full Faith and Credit Act by reaching a contrary conclusion when denying him bond. Second, he contends that the statute that allows his detention pending removal proceedings, 8 U.S.C. § 1226(a), is subject to “constitutional restraints, ” including that he be afforded a bond hearing at which the government must prove by clear and convincing evidence that he should remain detained, as opposed to the hearing he received which placed the burden on him to justify his release. Mr. Asolo's petition also included a claim that the defendants denied him the right to marry, but he dropped that claim after he got married. See Dkt. 6. The government responded to his petition, Mr. Asolo replied, the petition is now fully briefed, and the Court has reviewed all of the parties' submissions. Because the Court's ruling does not turn on any facts that are in dispute, no evidentiary hearing is needed and the Court rules on the filings. See Rules Governing Section 2254 Cases Rules 1(b), 8.

ANALYSIS

Under the Immigration and Nationality Act, the government may “issue a warrant for the arrest and detention of an alien ‘pending a decision on whether the alien is to be removed from the United States.'” Jennings v Rodriguez, 138 S.Ct. 830, 837 (2018) (quoting 8 U.S.C. § 1226(a)). The government “may release [an] alien on bond of at least $1, 500 . . . or conditional parole, ” except those detained pursuant to § 1226(c). 8 U.S.C. § 1226(a)(2). Under § 1226(a), the burden falls on the “alien [to satisfy] the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.” As opposed to § 1226(a), 8 U.S.C. § 1226(c) requires the government to detain “any alien who is inadmissible by reason of having committed” certain offenses such as drug offenses. An immigration judge's “discretionary judgment regarding the application of this section shall not be subject to review, ” and “no court may set aside any action or decision . . . regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” 8 U.S.C. § 1226(e). However, the statute does not bar this Court from exercising jurisdiction over an attack to the statutory framework itself, such as Mr. Asolo's argument that the statute is unconstitutional. See Jennings, 138 S.Ct. at 841. The proper means of attack is a petition for habeas relief under 28 U.S.C. § 2241, and so this Court has jurisdiction to proceed with Mr. Asolo's habeas petition.^[1] See Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999).

I. Full Faith and Credit Act

First, Mr. Asolo argues that the defendants' refusal to release him on bond violates the Full Faith and Credit Act. See 28 U.S.C. § 1738. According to Mr. Asolo, his Indiana criminal court has already determined that he is not a danger to the community when it approved releasing him on bond. Mr. Asolo contends that because the Indiana court already determined that he is not a danger to the community, the immigration judge was required to honor that determination, rather than order him detained for being a danger to the community based on his criminal history.

Under the Full Faith and Credit Act, the “Acts, records and judicial proceedings” of any “State, Territory, or Possession of the United States . . . shall have the same full faith and credit in every court within the United States and its Territories and Possession as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” Id. In other words, the Act “requires federal courts to give the same preclusive effect to state court judgments that those judgment would be given in the courts of the State from which the judgments emerged.” Kremer v. Chem. Const. Corp., 456 U.S. 461, 466 (1982). To determine what preclusive effect the issuing state would give, a federal court applies the preclusion rules of that state. See Walczak v. Chicago Bd. of Educ., 739 F.3d 1013, 1016 (7th Cir. 2014).

To begin, it is not clear that the Court has jurisdiction to decide this argument. Although 8 U.S.C. § 1226(e) does not bar attacks to the framework of the detention statute itself, it does deny jurisdiction to set aside an immigration judge's discretionary decision whether to release a detainee. The parties have not addressed whether an immigration judge's allegedly erroneous decision that a detainee is a danger to the community falls within § 1226(e). But even assuming jurisdiction, Mr. Asolo's argument is unavailing. He has offered no analysis of what preclusive effect, if any, one Indiana criminal court would give to the bond determinations of a different Indiana criminal court. In response to the government's brief noting that Mr. Asolo's argument was unsupported by any citation to authority, he stated that he relies on the text of the statute itself. But the text of the Act does not address what preclusive effect Indiana courts give to each other's bond determinations. Indiana courts place limits on preclusion. For instance, a court must determine whether the party in the prior action had a full and fair opportunity to litigate the issue, whether preclusion would be unfair and must consider factors...