Asemani v. U.S. Department of Homeland Security

Filing 9

MEMORANDUM. Signed by Judge Deborah L. Boardman on 2/12/2024. (c/m 2/12/2024)(kk5s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BILLY G. ASEMANI,

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Petitioner

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v.

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U.S. DEPARTMENT OF HOMELAND
SECURITY,

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Civ. No. DLB-23-3275

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Respondent
MEMORANDUM
Petitioner Billy G. Asemani is currently incarcerated at Roxbury Correctional Institution
in Hagerstown, Maryland. ECF 1. On November 20, 2023, he filed an “Emergency Pro Se Petition
(Life and Death Situation) and Motion for Appointment of Counsel” in the U.S. District Court for
the Middle District of Pennsylvania; the Court construed his filing as a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. ECF 1. He simultaneously filed a Motion to Seal and Motion
to Appoint Counsel. ECF 2, 3. On November 27, 2023, the Pennsylvania court transferred the
case to this Court because a § 2241 petition “must be filed in the district of confinement, which is
the only district with jurisdiction to hear the challenge.” See United States v. Craft, 514 F. App’x
91, 93 (3d Cir. 2013).
Asemani, who is currently awaiting removal from this country, asks the Court “to stay” the
final order of removal against him because, he contends, the decision of final removal is improper.
ECF 1, at 3. Under 8 U.S.C. § 1252(a)(5), the exclusive means of judicial review of an order of
removal is only available through the appropriate court of appeals. Although Asemani argues that
this Court has jurisdiction to stay his removal even if it lacks jurisdiction to review the removal
order, he has not identified the basis for this Court’s jurisdiction. Accordingly, Asemani’s petition

is dismissed without prejudice. Asemani must file his claims in the U.S. Court of Appeals for the
Fourth Circuit.
Also pending is Asemani’s motion to seal this case. ECF 2. “When parties ‘call on the
courts, they must accept the openness that goes with subsidized dispute resolution by public (and
publicly accountable) officials.’” Doe v. Public Citizen, 749 F.3d 246, 271 (4th Cir. 2014)
(quoting Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000)). The public has a
right of access to documents filed in this Court, either under the common law or the First
Amendment. Id. at 266. If the right of access to the documents at issue stems from the common
law, the “presumption [of right of access] can be rebutted only by showing that ‘countervailing
interests heavily outweigh the public interests in access.’” Id. (quoting Rushford v. New Yorker
Mag., Inc., 846 F.2d 249, 253 (4th Cir. 1988)). If the First Amendment applies, “access may be
restricted only if closure is ‘necessitated by a compelling government interest,’ and denial of access
is ‘narrowly tailored to serve that interest.’” Id. (quoting In re Wash. Post Co., 807 F.2d 383, 390
(4th Cir. 1986)). To protect these rights, Local Rule 105.11 (D. Md. 2023), which governs the
sealing of all documents filed in the record, states in relevant part that “[a]ny motion seeking the
sealing of pleadings, motions, exhibits or other documents to be filed in the Court record shall
include (a) proposed reasons supported by specific factual representations to justify the sealing
and (b) an explanation why alternatives to sealing would not provide sufficient protection.”
Asemani broadly requests to seal this entire case. ECF 1, 2. He does not clearly provide
reasons the entire case should be sealed, and instead baldly claims that he is in “imminent danger.”
ECF 1, at 1, 2. These unsupported assertions, without more, cannot outweigh the public’s
common-law right of access to the case. Asemani’s motion to seal this case is denied. As for his
petition and motion to seal specifically, ECF 1 and 2, Asemani has shown that they contain

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confidential information that he has a significant interest in maintaining under seal, an interest that
greatly outweighs any public interest in their contents. Therefore, the motion is granted as to those
two documents only.
Asemani also seeks the appointment of counsel. ECF 1, 3. A federal district court judge’s
power to appoint counsel under 28 U.S.C. § 1915(e)(1) is a discretionary one and may be
considered where an indigent claimant presents exceptional circumstances. See Cook v. Bounds,
518 F.2d 779, 780 (4th Cir. 1975). The court considers “the type and complexity of the case,”
whether the plaintiff has a colorable claim, and the plaintiff’s ability to prosecute the claim. See
Whisenant v. Yuam, 739 F.2d 160,163 (4th Cir. 1984) (internal citations omitted), abrogated on
other grounds by Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989).
Exceptional circumstances include a litigant who “is barely able to read and write,” id. at 162, or
clearly “has a colorable claim but lacks the capacity to present it,” Berry v. Gutierrez, 587 F. Supp.
2d 717, 723 (E.D. Va. 2008). Asemani has not demonstrated the exceptional circumstances needed
for the court to appoint counsel because his case is being dismissed without prejudice. His motion
for appointment of counsel is denied without prejudice. If he pursues his claims in the United
States Court of Appeals for the Fourth Circuit, he may request appointment of counsel there.
Finally, Asemani filed correspondence seeking a copy of the docket sheet for this case,
which was construed as a Motion for a Copy. ECF 8. Inasmuch as this correspondence seeks a
copy of the docket sheet, it is granted, and the Clerk will provide Asemani with a copy of the
docket sheet along with a copy of this memorandum and the corresponding Order.

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A separate Order follows.

February 12, 2024
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Date

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Deborah L. Boardman
United States District Judge

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