Mbewe v. Doll, 1:20-cv-01556

LOTI MBEWE, Petitioner v. CLAIR DOLL, Respondent

No. 1:20-cv-01556

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

November 30, 2020

(Judge Kane)

MEMORANDUM

On August 28, 2020, pro se Petitioner Loti Mbewe ("Petitioner"), who is currently confined at the York County Prison in York, Pennsylvania, initiated the above-captioned action pursuant to 28 U.S.C. § 2241, challenging the constitutionality of his detention by the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE"). (Doc. No. 1.) Following an Order to show cause (Doc. No. 3), Respondent filed a response, contending that Petitioner's detention is lawful (Doc. No. 6). Petitioner filed his traverse on October 5, 2020. (Doc. No. 7.) Accordingly, Petitioner's § 2241 petition is ripe for disposition.

I. BACKGROUND

Petitioner is a citizen and native of Zambia who entered the United States via New York City on April 26, 2001, as a visitor for pleasure. (Doc. No. 6-1 at 3.) On February 16, 2017, Petitioner was convicted of robbery and conspiracy to commit robbery in the Court of Common Pleas for Allegheny County, Pennsylvania. (Id. at 11.) Petitioner was sentenced to three (3) to six (6) years' incarceration. (Id.) On February 26, 2019, ICE issued a Notice to Appear, charging Petitioner with being removable pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA") because he had been convicted of an aggravated felony after admission to the United States. (Id. at 8.) Petitioner was also charged with being removable pursuant to § 237(a)(1)(B) of the INA because he remained in the United States for a time longer than that permitted. (Id.) Petitioner was released from the State Correctional Institution Mahanoy ("SCI Mahanoy") on August 27, 2019 and has been in ICE custody ever since. (Id. at 11.)

On December 2, 2019, an immigration judge denied Petitioner's applications for asylum, withholding of removal, adjustment of status, and waiver and ordered him removed to Zambia. (Id. at 15.) Petitioner initially filed an appeal to the Board of Immigration Appeals ("BIA"). (Id. at 12.) Petitioner, however, withdrew his appeal, and on February 14, 2020, the BIA returned the record to the Immigration Court without further action, making Petitioner's order of removal final. (Id. at 12, 33.)

Ever since the entry of Petitioner's removal order, ICE's Enforcement and Removal Operations ("ERO") "has taken steps to execute that order." (Id. at 12.) The "Embassy of Zambia has regularly cooperated with ERO/ICE and issues travel documents on a regular basis." (Id.) On February 26, 2020, ERO mailed a travel document request package to the Embassy of Zambia. (Id.) "Assistance in obtaining a travel document was also requested from Removal and International Operations (RIO)." (Id.)

The Embassy of Zambia "prefers to conduct all consulate interviews in person and routinely issues travel documents once this interview takes place." (Id.) On March 12, 2020, RIO advised ICE/ERO that a consulate member would meet with Petitioner at the York County Prison on March 26, 2020. (Id.) On March 25, 2020, ERO received notice that the Embassy of Zambia was cancelling the interviews scheduled for March 26, 2020 because of the COVID-19 pandemic. (Id.) "RIO advised that they would notify ERO when the interview has been rescheduled." (Id.)

On or about April 17, 2020, RIO learned "that in response to the COVID-19 pandemic, the York County Prison was halting face to face, in-person contact or interviews with ICE detainees." (Id.) RIO advised that "an alternate procedure would need to be arranged with the Embassy of Zambia to conduct the interview with [P]etitioner." (Id.) Since then, ERO has followed up with RIO on five (5) occasions. (Id. at 13.) On each occasion, RIO has notified ERO that it "was attempting to arrange for an alternate procedure with the Embassy of Zambia in lieu of an in-person interview with [P]etitioner." (Id.) On August 31, 2020, the "Embassy of Zambia indicated that once their Headquarters approves the use of an alternate method to conduct the interview, they would then be able to proceed." (Id.) "It is anticipated that [P]etitioner's removal from the United States is imminent once a travel document is issued." (Id.)

In the meantime, ICE/ERO has regularly reviewed Petitioner's custody status. (Id.) On May 15, 2020, Petitioner's detention was continued on the basis that his "criminal history supports the conclusion that he poses a danger to society and/or risk of flight and on the expectation that a travel document will be issued." (Id.) On July 28, 2020, an immigration judge denied Petitioner's request for a bond hearing pursuant to Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018), as premature because Petitioner had not yet been detained for 180 days since the date on which his order of removal became final. (Id. at 34.) On August 18, 2020, an immigration judge denied Petitioner's request for a custody redetermination after concluding that he had "not established that he is not a danger to the community." (Id. at 36.)

Petitioner filed the instant § 2241 petition on August 28, 2020. (Doc. No. 1.) In his § 2241 petition, Petitioner asserts that his continued detention violates the Fifth Amendment's Due Process Clause as well as the Immigration and Nationality Act ("INA"). (Id. at 6-10.) As relief, Petitioner requests that the Court hold a bond hearing or, in the alternative, direct his release "under appropriate condition[s] of supervision." (Id. at 10.)

II. LEGAL STANDARD

Under 28 U.S.C. § 2241(c), a prisoner or detainee may receive habeas relief only if he "is in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2241(c)(3); see also Maleng v. Cook, 490 U.S. 488, 490 (1989). Because Petitioner is currently detained within the jurisdiction of this Court and asserts that his continued detention violates due process, this Court has jurisdiction over his § 2241 petition. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001); Spencer v. Kemna, 523 U.S. 1, 7 (1998).

III. DISCUSSION

In the instant case, the parties do not dispute that Petitioner is currently detained pursuant to 8 U.S.C. § 1231(a), which provides for the detention of individuals who are subject to a final order of removal. See 8 U.S.C. § 1231(a). That section provides that "[e]xcept as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days." See 8 U.S.C. § 1231(a)(1)(A). During this ninety (90)-day period, "the Attorney General shall detain the alien. Under no circumstance during the removal period shall the Attorney General release an alien who has been found . . . deportable under section 1227(a)(2)." See id. § 1231(a)(2). After the ninety (90)-day period expires, the alien's detention may continue, or he may be released on supervision. See id. § 1231(a)(3), (6).

The Supreme Court has concluded, however, that § 1231 "limits an alien's post-removal-period detention to a period reasonably necessary to bring about the alien's removal from the United States. It does not permit indefinite detention." See Zadvydas, 533 U.S. at 698. Thus, "[o]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." See id. at 699. To establish a uniform baseline, the Supreme Court concluded that a period of six (6) months is a "presumptively reasonable period of detention." See id. at 701. Moreover, the United States Court of Appeals for the Third Circuit has concluded that "an alien detained under § 1231(a)(6) is generally entitled to a bond hearing after six months (i.e., 180 days) of custody." See Guerrero-Sanchez, 905 F.3d at 226. Following such a hearing, the alien "is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community." See id. at 224 (quoting Diouf v. Napolitano, 634 F.3d 1081, 1092 (9th Cir. 2011)). "The Government must meet its burden in such bond hearings by clear and convincing evidence." See id. at 224 n.12.

Petitioner has been detained pursuant to § 1231(a) since February 14, 2020, the date on which his order of removal became administratively final. As of the date of this Memorandum, therefore, Petitioner has been detained for over seven (7) months, which is beyond the presumptively reasonable six (6)-month period set forth in Zadvydas and Guerrero-Sanchez. The parties do not dispute that on August 18, 2020, an immigration judge conducted a bond hearing pursuant to Guerrero-Sanchez and concluded that Petitioner should remain detained because he had "not established that he is not a danger to the community." (Doc. No. 6-1 at 36.) Petitioner now asserts that he is entitled to habeas relief because he is not a flight risk, is willing to comply with any conditions of release, and anticipates a lengthy period of detention pending removal that violates his due process rights. (Doc. No. 1 at 6-10.) The Court considers each argument in turn.

A. Review of Petitioner's August 18, 2020 Custody Determination

The parties do not dispute that on August 18, 2020, an immigration judge conducted a bond hearing pursuant to Guerrero-Sanchez and concluded that Petitioner should remain detained because he had "not established that he is not a danger to the community." (Doc. No. 6-1 at 36.) Petitioner appears to assert that the immigration judge erred in making that determination. (Doc. No. 1 at 6-10.) Respondent asserts that Petitioner failed to exhaust his administrative remedies to the extent he challenges the immigration judge's Guerrero-Sanchez determination. (Doc. No. 6 at 8-9.) For the reasons discussed below, the Court agrees with Respondent.

The Third Circuit has noted that requiring exhaustion of administrative remedies for habeas petitions fosters...