Mansaray v. Perry

ALPHA IBRAHIM BAH MANSARAY, Petitioner, v. PAUL PERRY, et al., Respondents.

Civil Action No. ELH-21-1044

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

June 4, 2021

MEMORANDUM OPINION

Alpha Ibrahim Bah Mansaray, Petitioner, a twenty-one-year-old citizen of Denmark, has filed, through counsel, a "First Amended Petition For a Writ of Habeas Corpus," pursuant to 28 U.S.C. § 2241. ECF 21 (the "Amended Petition"). He is the son and the sibling of U.S. citizens.

Since April 22, 2020, Petitioner has been in the custody of Immigrations and Customs Enforcement ("ICE"), which sits within the Department of Homeland Security ("DHS"). ECF 21, ¶¶ 8; 19.¹ Pending his removal from the United States, he remains in ICE custody, pursuant to 8 U.S.C. § 1226(c), which mandates detention for certain noncitizens with criminal convictions pending removal proceedings. In the Amended Petition (ECF 21), Mansaray asserts that he has not received an individualized custody determination and that his detention has been unconstitutionally prolonged, in violation of his right to due process under the Fifth Amendment. Therefore, Mansaray seeks immediate release from custody or, in the alternative, an individualizedbond hearing before an immigration judge, pursuant to an Order of this Court. Id. at 22-23.² The Amended Petition is supported by numerous exhibits.

Mansaray is currently detained at the Caroline Detention Facility ("CDF") in Virginia. But, when the petition was filed (ECF 1), he was detained at the Howard County Detention Center ("HCDC") in Jessup, Maryland. He was transferred to CDF sometime in mid-May 2021, during the pendency of this case. See ECF 18; ECF 21, ¶ 8. Accordingly, venue is proper in this court, pursuant to 28 U.S.C. §§ 1391(b)(2), (e)(1)(B).

The Amended Petition names as respondents Paul Perry, Superintendent of CDF; Joseph Orden, Acting Assistant Field Office Director of the ICE Washington Field Office; Alejandro Mayorkas, Secretary of Homeland Security; Tae Johnson, Acting Director of ICE; Jean King, Acting Director of the Executive Office for Immigration Review; and Merrick Garland, Attorney General of the United States (collectively, "Respondents" or the "government"). Respondents, who have been sued in their official capacities, answered the original petition (ECF 20, the "Opposition") and submitted several exhibits. As explained in my Order of May 20, 2021 (ECF 25), I have construed the Opposition to be directed to the Amended Complaint. Plaintiff has replied. ECF 23.

No hearing is necessary to resolve the Amended Petition. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts (Feb. 1, 2010);³ Local Rule 105.6. For the reasons that follow, I shall grant the Amended Petition.

I. Background⁴

A.

Mansaray was born in July 1999 and is now twenty-one years of age. ECF 21-3 (Declaration of Mansaray), ¶ 1. He is a citizen of Denmark. Petitioner moved with his parents and family to the United States when he was three years old. Id. ¶ 2; ECF 21, ¶ 14; ECF 20 at 3. He entered this country as a non-immigrant visitor on a B-2 visa, with authorization to remain for six months. ECF 21-4 at 1. But, he has remained here ever since, living most if not all of those eighteen-some years in Maryland. ECF 21-3, ¶ 2; see ECF 21-4 at 1.

Within Mansaray's nuclear family, his father, one of his sisters, and his brother are now United States citizens. ECF 21-3, ¶ 2. Another sister obtained Deferred Action for ChildhoodArrivals ("DACA") status. Id. Petitioner obtained DACA status in December 2016, through which he received employment authorization and a Maryland driver's license. ECF 21-6.⁵

Before entering custody, Mansaray was taking courses at Prince George's County Community College and working at a car dealership. ECF 21-4, ¶ 8. He also helped his father sell ice cream from an ice cream truck. Id. In addition to pursuing an education and working, Petitioner was engaged to be married. Id. ¶ 3. However, he and his fiancée broke up sometime during his detention. Id. ¶ 20.

Mansaray underwent serious emergency surgery in 2018. Id. ¶ 10. Following the procedure, he was prescribed the painkiller Percocet, on which he became dependent. Id. ¶ 11. Petitioner avers that this dependency resulted in or contributed to his commission of "several mistakes." Id.

In April 2019, in the Circuit Court for Anne Arundel County, Maryland, Mansaray was convicted, pursuant to an Alford plea, of conspiracy to distribute cocaine. ECF 21-10 at 1.⁶ See No. Carolina v. Alford, 400 U.S. 25 (1970). He was sentenced to four years of incarceration, with all but twenty-six days suspended, and with credit for twenty-six days of time served. Id.

Then, in November 2019, Mansaray pleaded guilty in the Circuit Court for Prince George's County to three counts of possession of cocaine. ECF 21-10 at 14. He received a sentence of oneyear of imprisonment, with all but fifty-nine days suspended, and with credit for fifty-nine days of time served. Id.

And, in March 2020, Mansaray pleaded guilty in the Circuit Court for Howard County to attempted distribution of cocaine. ECF 21, ¶ 18; ECF 20 at 3. For that offense, he was sentenced to five years' imprisonment, with eighteen months suspended. ECF 21, ¶ 18; ECF 20 at 3. But, on April 21, 2020, after 210 days in State custody for that offense, the sentence was reduced to time served. ECF 21-8 at 4-5.

The government asserts that at the time Mansaray entered ICE custody, he also had pending assault charges in Prince George's County. ECF 20 at 3. In addition, according to the government, Mansaray "was arrested in 2019 for attempted first degree murder and attempted second degree murder." Id. But, the government does not provide any facts underlying either the assault charges or the arrest for attempted murder. It cites a form issued by DHS in April 2021, an I-286 "Notice of Custody Determination," discussed, infra. That form obliquely references Petitioner's "violent criminal history," "active warrant for Assault 1st Degree," and "his previous arrest in 2019 for Attempted 1st Degree Murder and Attempted 2nd Degree Murder," but does not elaborate. ECF 21-15 at 9.

On April 22, 2020, ICE issued a "Notice to Appear" to Mansaray (ECF 21-4), alleging that he was in the United States without authorization and that both his unlawful presence and his Prince George's County convictions rendered him subject to removal. He was taken into ICE custody that day, pursuant to 8 U.S.C. § 1226(c), and detained at HCDC. ECF 21, ¶ 19; ECF 20-1. Section 1226(c) "provides for mandatory detention of non-U.S. citizens deemed deportable because of their convictions for certain crimes." Duncan v. Kavanagh, 439 F. Supp. 3d 576, 580 (D. Md. 2020). Since April 22, 2020, Petitioner's removal proceedings in the immigration systemhave involved several developments. He has also pursued postconviction relief on all of his criminal convictions in the State system.

B.

Before describing the chronology of Mansaray's immigration proceedings, it is helpful to address his pursuit of lawful permanent residence through the so-called adjustment of status process, which figured importantly in his immigration court proceedings.

On April 30, 2020, Mansaray's father filed an I-130 Petition with U.S. Citizenship and Immigration Services ("USCIS") on his son's behalf. An I-130 Petition is a mechanism through which a U.S. citizen or lawful permanent resident may enable "an eligible relative" to apply to become a lawful permanent resident. I-130, Petition for Alien Relative, U.S. Citizenship and Immigration Services, https://www.uscis.gov/i-130 (last updated May 4, 2021). USCIS approved the I-130 Petition on March 25, 2021. ECF 21-1 at 1. Approval is merely the first step in the process toward becoming a lawful permanent resident. The eligible relative must then complete a separate application process by submitting a Form I-485 for so-called adjustment of status. See I-130, Petition for Alien Relative, supra.

Conviction for various controlled substance violations, such as those underlying Mansaray's convictions, render an alien "inadmissible" for immigration purposes, as discussed, infra. An inadmissible alien is ineligible for adjustment of status. Throughout his proceedings, Mansaray pursued postconviction relief in State court so that he might establish his eligibility for adjustment of status. See, e.g., ECF 21 ¶¶ 2, 24; ECF 20 at 5, 8; ECF 23 at 7-8.

C.

Mansaray was represented by counsel throughout his immigration proceedings. His first hearing before an immigration judge ("IJ") took place on May 11, 2020. ECF 20 at 4; see ECF21, ¶ 21. Mansaray disputed the grounds for his removal and indicated his intent to pursue postconviction relief in State court. ECF 20-2 at 11. The IJ ordered Petitioner to remain in custody, noting that he was subject to mandatory detention. Id. at 2. Thereafter, Petitioner conceded that his unlawful presence rendered him subject to removal. Id. at 11. But, he continued to pursue postconviction relief.

On July 6, 2020, Mansaray filed a motion to continue, i.e., to postpone, a hearing on the merits of his removal charges, scheduled for July 10, 2020. ECF 20; ECF 20-3 at 3; see ECF 21, ¶ 21. The IJ denied the request. ECF 20-2 at 4. But, during the hearing on July 10, 2020, Petitioner's counsel again requested a continuance, asserting that she was unable to prepare adequately because of defendant's apparent mental health condition and HCDC policies related to COVID-19, which prevented her from meeting with Petitioner. ECF 20-2 at 11. The IJ granted a continuance to permit Petitioner's counsel additional time to prepare and to schedule a mental competency evaluation for Petitioner. Id.

A competency hearing was held on August 21, 2020. ECF 20-2 at 5. That day, the IJ issued a decision (id. at 5-9) ruling that Mansaray was "competent for purposes of his immigration court proceedings." Id. at 9. In addition, the IJ issued a...