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Kwasi A. v. Edwards

United States District Court, D. New Jersey

July 17, 2019

EMELI KWASI A., Petitioner,
v.
RONALD P. EDWARDS, et al., Respondents.

          OPINION

          STANLEY R. CHESLER U.S.D.J.

         I. INTRODUCTION

         This matter has been opened to the Court by Petitioner's filing of a habeas petition challenging his prolonged detention. For the reasons explained in this Opinion, the Court finds that due process requires that Petitioner be provided an individualized bond hearing at which the Government bears the burden of proving that continued detention is necessary to fulfill the purposes of 8 U.S.C. 1226(c).

         II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Petitioner is a native and citizen of Ghana. (See Ex. A, Notice to Appear.) He was admitted to the United States on July 17, 1998 as a legal permanent resident. See id.

         Petitioner was detained on August 6, 2015 by the New York Fugitive Operations Team during a field operation. (See Ex. C, Form 1-213 Record of Deportable/Inadmissible Alien.) His detention was authorized pursuant to 8 U.S.C. § 1226(c) due to his criminal history. (See Ex. D, Form 1-830.) The same day Petitioner was served with a Notice to Appear ("NTA") charging him with removability pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act. (See Ex. A.) The NTA was later amended to include an additional charge under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act and included additional factual allegations. (See Ex. E, March 16, 2016 DHS Proffer of Evidence.)

         On January 26, 2016, Petitioner received a bond hearing pursuant to the Second Circuit's decision in Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015) ("the Lora Hearing"). At the conclusion of the Lora Hearing, the immigration judge found that ICE had met its burden of proof that Petitioner is both a danger to the community and a flight risk. The immigration judge's decision was memorialized in a memorandum decision issued on March 1, 2016. (See Ex. F, March 1, 2016 Memorandum Decision of the Immigration Judge.) Petitioner appealed the immigration judge's denial of bond to the Board of Immigration Appeals ("BLA"). On June 7, 2016, the BIA dismissed Petitioner's appeal and affirmed the immigration judge's decision. (See Ex. G, June 7, 2016 BIA Decision.)

         On June 30, 2016, the immigration court held an individual hearing on Petitioner's withholding of removal, protection under the U.N. Convention Against Torture, and cancellation of removal applications for relief. At the conclusion of testimony, the immigration court denied Petitioner's applications for relief. (See Ex. H, June 30, 2016 Immigration Judge Decision.)

         Petitioner filed an untimely appeal of the immigration judge's decision to the BIA and requested a stay of removal proceedings during the pendency of his appeal. On October 31, 2016, the BIA denied Petitioner's request for a stay of removal. (See Ex. I, October 31, 2016 BIA Decision.) On January 18, 2018, the BIA issued a decision dismissing Petitioner's appeal and affirmed the immigration judge's denial of Petitioner's applications for relief. (See Ex. J, January 18, 2018 BIA Decision.) At that time, the authority for Petitioner's custody changed from 8 U.S.C. § 1226(c) to 8 U.S.C. § 1231 as his removal became administratively final upon BIA's dismissal. Petitioner subsequently filed a motion to reopen his proceedings before the immigration court. On May 3, 2018, an immigration judge issued a decision dismissing Petitioner's motion to reopen. (See Ex. K, May 3, 2018 Immigration Judge Decision).

         Petitioner filed a Petition for Review in the Second Circuit under docket number 18-204. Petitioner also filed a motion for a stay with the Second Circuit on September 3, 2018.

         Petitioner filed the instant habeas petition on October 16, 2018, arguing that he is entitled to a bond hearing under the Third Circuit's decision in Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 226 (3d Cir. 2018) in light of the fact that he has been subject to detention pursuant to 8 U.S.C. § 1231 (a)(6) and has been detained for more than six months. Petitioner additionally asserts that his continued detention under § 1226(c) without a bond hearing, in the event he would be granted a stay, violates his due process rights. (ECF No. 1.) On November 2, 2018, the Court directed the government to answer the Petition. (ECF No. 3.)

         Prior to the Answer, on November 29, 2018, Petitioner was afforded a bond hearing ("the Guerrero-Sanchez Hearing"). The Immigration Judge found that Petitioner was a danger to the community. (See Ex. M, Audio Transcription of November 29, 2018 Bond Hearing at 55:56:4.) Petitioner's counsel reserved appeal of the Immigration Judge's decision. (See Id. at 56:3-9.)

         On December 17, 2018, the government sought summary dismissal of the instant habeas matter in lieu of an answer because Petitioner had been provided with a bond hearing pursuant to Guerrero-Sanchez. Petitioner's counsel opposed dismissal, arguing that the hearing had not provided Petitioner with the constitutional protections required by Guerrero-Sanchez. (ECF Nos. 10-12.)

         On January 4, 2019, the Second Circuit granted Petitioner a stay of removal. ...


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