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Ikharo v. Attorney General of United States

United States District Court, S.D. Ohio, Western Division

July 17, 2019

MUSA IKHARO, Petitioner,

          Black, J.


          Stephanie K. Bowman United States Magistrate Judge.

         Petitioner, a former United States Immigration and Customs Enforcement (ICE) detainee at the Butler County Jail, [1] has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (See Doc. 1). Respondents have filed an answer and motion to dismiss. (Doc. 17). As indicated below, petitioner has filed a second habeas corpus petition, which has been consolidated with this action (Doc. 26) and construed as an amended petition (Doc. 27).

         For the reasons stated below, the undersigned recommends that respondents' motion to dismiss be granted and the petition, as amended, be dismissed.

         I. BACKGROUND

         Petitioner is a native and citizen of Nigeria. (Doc. 17-2, Hinman Decl. at PageID 85). On or about November 3, 1995, petitioner became a lawful permanent resident of the United States, after an Immigration Judge granted him a suspension of deportation. On or about December 16, 1994, petitioner was convicted of gross sexual imposition of a minor and disseminating harmful matter to a juvenile in violation Ohio Rev. Code §§ 2907.05 and 2907.31.

         On October 18, 2002, a notice to appear was issued, charging petitioner as removable from the United States pursuant to Immigration and Nationality Act (INA) §§ 237(a)(2)(A)(ii) and (iii), based on his convictions of a crime involving moral turpitude and an aggravated felony. (Id. at PageID 86). Petitioner was ordered removed on July 18, 2007. In issuing its decision the Immigration Judge found him statutorily ineligible for a waiver of inadmissibility under INA § 212(c). (Id. at Ex. 4 at PageID 107-08). Petitioner appealed the decision of the Immigration Judge to the Board of Immigration Appeals (BIA). (Id. at PageID 86). On August 18, 2008 his appeal was denied. On August 2, 2010, his petition for review of the BIA's decision was denied by the Sixth Circuit Court of Appeals. Petitioner was removed to Nigeria on October 26, 2010.

         On January 10, 2012, the United States Supreme Court vacated the Sixth Circuit's decision. (Id. at PageID 87). Petitioner's case was remanded to the Sixth Circuit for further consideration in light of the Supreme Court's holding in Judulang v. Holder, 565 U.S. 42 (2011), which determined that BIA's application of INA § 212(c) in the deportation context was arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).[2] (See Hinman Decl., Ex. I at PageID 138). By Order issued February 16, 2012, the Sixth Circuit remanded the case to the BIA for reconsideration in light of Judulang. (Id. at PageID 87). On June 12, 2014, the BIA remanded the proceedings back to an Immigration Judge for consideration of a waiver of inadmissibility. Petitioner was returned to the United States on February 16, 2018 and was detained by ICE during the course of his removal proceedings.

         On May 16, 2018, on remand, the Immigration Court held an individual hearing. The Immigration Judge again sustained the aggravated felony charge under INA § 237(a)(2)(A)(iii) and denied petitioner a waiver of inadmissibility.[3] (See id., Ex. K at PageID 144). Petitioner was ordered removed to Nigeria pursuant to INA § 237(a)(2)(A)(iii).

         Petitioner appealed the removal order to the BIA. On February 25, 2019, petitioner submitted a second habeas corpus petition in this Court, indicating that the BIA affirmed the Immigration Judge's decision on November 5, 2018. See Ikharo v. Attorney General, No. 1:19-cv-227 (SJD; SKB) (S.D. Ohio Feb. 25, 2019) (Doc. 1 at PageID 32-34). Petitioner has sought review of the decision in the Sixth Circuit Court of Appeals and currently has two cases pending in the Sixth Circuit challenging the denial of his waiver of inadmissibility and his motion to reopen, in which petitioner alleges his attorney provided him with ineffective assistance of counsel in his immigration proceedings. See Ikharo v. Barr, Nos. 18-4153, 19-3367 (6th Cir. 2019). The undersigned has ordered that the habeas corpus cases in this Court be consolidated-as requested by petitioner -and construed the petition filed in No. 1:19-cv-227 as an amended petition in this action. (Doc. 27).

         In the original petition, petitioner seeks an Order compelling ICE to comply with ICE policy directive 11061.1, to return him to the status he had prior to his October 26, 2010 removal, and to remedy his alleged unlawful detention. (Doc. 1). According to petitioner, he should not have been taken into custody upon his return to the United States because he was a lawful permanent resident prior to his removal.

         Respondents have moved to dismiss the petition. (Doc. 17). According to respondents, there is no need for the Court to enforce ICE policy directive 11061.1 because petitioner remains a lawful permanent resident and the policy authorized petitioner's detention upon his return to the United States. Respondents otherwise contend that petitioner's detention is lawful pending his removal proceedings.

         In the amended petition, petitioner claims that the decisions of the Immigration Judge and the BIA on remand are void and unlawful. (Doc. 27). Petitioner claims that because he was paroled into the United States under 8 U.S.C. § 1182(d)(5)(A), he was never lawfully admitted and was ineligible for 212(c) relief or bond. On this basis, he claims that the immigration court and BIA exceeded their authority and that their decisions are void. Petitioner also includes a claim of ineffective assistance of counsel in the amended petition. For relief, he asks this Court to vacate his removal order and to be released from custody.

         On April 22, 2019, petitioner submitted a notice of change of address, listing an address in Westerville, Ohio. As of this date, neither the Butler County Jail nor the ICE Online Detainee Locator list petitioner as being in custody.[4] The undersigned notes that petitioner filed two subsequent habeas corpus petitions in this Court, which have also been consolidated in No. 1:19-cv-175. On June 10, 2019, in that case, the respondents filed a return of writ supported by an affidavit from Jason Edmister, an ICE Official familiar with petitioner's removal proceedings. Edmister attests that petitioner was removed to Nigeria on or about April 23, 2019. See Ikharo v. Barr, No. 1:19-cv-175 (S.D. Ohio June 10, 2019) (Doc. 11-1, Edmister Decl. at PageID 95-96).

         II. OPINION

         Petitioner is not entitled to federal habeas relief. First, as noted above, petitioner requests that the Court order respondents to follow ICE policy directive 11061.1, which states:

Absent extraordinary circumstances, if an alien who prevails before the U.S. Supreme Court or a U.S. court of appeals was removed while his or her PFR was pending, ICE will facilitate the alien's return to the United States if either the court's decision restores the alien to lawful permanent resident (LPR) status, or the alien's presence is necessary for continued administrative removal proceedings. ICE will regard the returned alien as having reverted to the immigration status he or she held, if any, prior to the entry of the removal order and may detain the alien upon his or her return to the United States.

(Doc. 17-1, Ex. 1 at PageID 82).[5] However, as argued by respondents, ICE does not dispute that petitioner's status reverted to that of a lawful permanent resident upon his return to the United States. Timothy Hinman, a deportation officer familiar with the immigration proceedings against petitioner, attests that “[p]ursuant to ICE policy on facilitated return, Ikharo is regarded as having reverted to the ...

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