United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
a former United States Immigration and Customs Enforcement
(ICE) detainee, has filed a pro se petition and amended
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (See Doc. 1, 8). Respondent has
filed a return of writ in opposition to the petition. (Doc.
11). Petitioner has filed a response and "Motion Against
Immigration Court and 'BIA' Corrupt and Unlawful
Practices." (Doc. 15).
reasons stated below, the undersigned recommends that
petitioner's motion and the petition, as amended, be
discussed further below, this is not the first habeas corpus
petition filed by petitioner in this Court. In Ikharo v.
U.S. Attorney General, No. 1:18-cv-385 (Black, J.;
Bowman, M.J.) (S.D. Ohio, July 17, 2019) (Doc. 28), the Court
provided the following background of facts:
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,
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 Judutang 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
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. (See id., Ex. K at PageID 144).
Petitioner was ordered removed to Nigeria pursuant to INA
Id. at PageID 281-283. Petitioner subsequently
appealed the Immigration Judge's decision to the BIA. On
November 5, 2018, the BIA affirmed the Immigration
Judge's decision. (Doc. 11 -1, Edmister Decl. at PageID
95). Petitioner filed a motion to reopen with the BIA, which
was denied on April 3, 2019. (Id. at PageID 96).
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 Sixth
Circuit denied petitioner a stay of removal on March 22,
2019. (Id.). Petitioner was removed to Nigeria on or
about April 23, 2019. (Id.).
FEDERAL HABEAS CORPUS PETITIONS
instant petition, as amended, petitioner asks this Court to
review and vacate the decisions of the Immigration Judge and
BIA. According to petitioner, he was improperly returned to
the United States as a parolee under 8 U.S.C. §
1182(d)(5)(A), treated as an "arriving alien," and
detained during his remanded removal proceedings. Petitioner
claims that by virtue of being paroled under § 1182, he
was ineligible for relief under INA § 212(c), and the
Immigration Judge and BIA exceeded their authority and
rendered void judgments. Petitioner also appears to raise
ineffective assistance of counsel claims in the petition and
"Motion Against Immigration Court and 'BIA'
Corrupt and Unlawful Practices," ...