United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
a former United States Immigration and Customs Enforcement
(ICE) detainee at the Butler County Jail,  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).
reasons stated below, the undersigned recommends that
respondents' motion to dismiss be granted and the
petition, as amended, be dismissed.
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.
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,
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). (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.
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. (See
id., Ex. K at PageID 144). Petitioner was ordered
removed to Nigeria pursuant to INA § 237(a)(2)(A)(iii).
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).
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.
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.
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.
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. 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).
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). 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 ...