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Ikharo v. Attorney General of United States

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

January 6, 2020

MUSA IKHARO, Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

          Dlott, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz United States Magistrate Judge.

         Petitioner, 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).[1] 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).

         For the reasons stated below, the undersigned recommends that petitioner's motion and the petition, as amended, be denied.

         I. BACKGROUND

         As 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, 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 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).[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).

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).

         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 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.).

         II. FEDERAL HABEAS CORPUS PETITIONS

         In the 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.[4] Petitioner also appears to raise ineffective assistance of counsel claims in the petition and "Motion Against Immigration Court and 'BIA' Corrupt and Unlawful Practices," ...


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