Shehata v. USICE et al

Filing 14

ORDER DISMISSING PETITIONER'S AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 4 ). Signed by Judge Timothy S. Black on 1/12/2015. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KEMAL SHEHATA,
Petitioner,
vs.
U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,
Respondents.

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Case No. 1:14-cv-616
Judge Timothy S. Black

ORDER DISMISSING PETITIONER’S AMENDED PETITION
FOR WRIT OF HABEAS CORPUS (Doc. 4)
This civil action is before the Court on Petitioner’s Amended Petition for Writ of
Habeas Corpus (Doc. 4) and Respondents’ responsive memoranda (Docs. 10, 13).
I.

STATEMENT OF THE CASE

Petitioner Kemal Sheheta 1 is an Egyptian national currently detained by the U.S.
Immigration and Customs Enforcement (“ICE”) at the Butler County Jail. Respondents
include ICE, Butler County Sheriff Richard K. Jones, Attorney General Eric Holder,
Department of Homeland Security Secretary Jeh Johnson, Principal Deputy Assistant
Secretary for ICE Thomas Winkowski, and the unnamed Assistant Field Office Director,
Enforcement and Removal Operations for the Columbus ICE office. Petitioner alleges
that he is detained pending removal proceedings without the possibility of a bond hearing
in violation of his procedural due process rights.

1

The attached exhibits reflect that Petitioner’s first name is Kamal.

The facts of this case come primarily from the affidavit of John Matz, an
Immigration Services Officer with the U.S. Citizenship and Immigration Services
(“CIS”), a component of the Department of Homeland Security (“DHS”). (Doc. 13, Ex.
A). 2 The record does not indicate when Petitioner first entered the United States or his
immigration status. Petitioner married Donna Marie Bias, a U.S. citizen, on April 13,
2005 in Columbus, Ohio. (Id. at ¶ 4). On June 6, 2005, Petitioner filed a Form I-485,
Application to Register Permanent Residence or Adjust Status and Ms. Bias filed a Form
I-130, Petition for Alien Relative. (Id.)
Pursuant to a Form I-512L, Authorization for Parole of an Alien into the United
States, Petitioner was given advance parole on January 23, 2006, which was subsequently
extended on April 12, 2006 for a period of one year. (Doc. 4, Ex. A; Doc. 13, Ex. A at
¶ 5). Petitioner’s parole was extended again on August 26, 2008 until August 25, 2009.
(Doc. 4, Ex. A; Doc. 13, Ex. A at ¶ 5). Petitioner last entered the United States on August
28, 2008. (Doc. 4 at ¶ 13; Doc. 13, Ex. A at ¶ 3).
Petitioner resumed his application for adjustment of status upon his return and CIS
officials conducted an interview of Petitioner and Bias in early June 2009. (Doc. 13, Ex.
A at ¶ 6). CIS issued Bias a Notice of Intent to Deny (“NOID”) her Form I-130 on June
19, 2009. (Id.) The NOID described discrepancies between their testimonies, cited
evidence that Bias had recently given birth to a child fathered by another man, and noted
that Petitioner’s ex-wife listed her address as the same one on file for Petitioner. (Id.)

2

CIS was formerly known as the Immigration and Naturalization Services.
2

CIS ultimately denied Bias’s Form I-130 on July 24, 2009 because it concluded that she
and Petitioner married solely for immigration purposes. (Id.) Bias filed an untimely
appeal, which was dismissed on March 30, 2010. (Id. at ¶¶ 7, 9).
Petitioner’s parole was not extended and it expired on August 25, 2009. (Doc. 13,
Ex. A at ¶ 5). Petitioner was placed in removal proceedings on December 9, 2009 when
DHS issued a Notice to Appear (“NTA”). (Doc. 4, Ex. B; Doc. 13, Ex. A at ¶ 8). The
NTA indicated that Petitioner was subject to removal as an arriving alien not in
possession of valid unexpired entry documents. (Doc. 4, Ex. B at 3).
Petitioner and Bias divorced on November 1, 2010. (Doc. 13, Ex. A at ¶ 10). He
then married Fatima Zahra Laassadi on November 18, 2011 in Columbus. (Id. at ¶ 11).
Laassadi submitted a Form I-130, Petition for Alien Relative on December 19, 2011,
followed by a written notice of withdrawal on December 6, 2013. (Id.) In her notice of
withdrawal, Laassadi wrote that she discovered Petitioner had only married her so that he
could become a permanent resident. (Id. at ¶¶ 12, 14).
Laassadi later submitted a second Form I-130 on May 27, 2014. (Doc. 4, Ex. C;
Doc. 13, Ex. A at ¶ 16). Petitioner and Laassadi appeared for an interview on August 25,
2014 in connection with Laassadi’s second Form I-130. (Doc. 13, Ex. A at ¶ 17).
Laassadi’s petition was denied on October 30, 2014 because she failed to demonstrate the
bona fide nature of her marriage by clear and convincing evidence and because
applicable law prohibited approval of the petition based on the prior finding that
Petitioner married Bias solely for immigration purposes. (Id. at ¶ 19).

3

Petitioner filed his Petition on July 29 and his Amended Petition on August 4,
2014. (Docs. 1, 4). Petitioner is currently detained by ICE at the Butler County Jail, but
the record does not reflect the date he was first detained. (Doc. 10, Ex. A). 3
II.

RELEVANT LAW

The Immigration and Naturalization Act (“INA”) and corresponding regulations
govern the admission of aliens into the United States. An “alien” is “any person not a
citizen of the United States,” while the terms “admission” and “admitted” mean “the
lawful entry of the alien into the United States after inspection and authorization by an
immigration officer.” 8 U.S.C. § 1101(a)(3), (a)(13)(A). An “applicant for admission”
includes any “alien present in the United States who has not been admitted.” 8 U.S.C.
§ 1225(a)(1).
An alien can be present in the United States without having been “admitted”
pursuant to the Secretary of DHS’s discretion to temporarily “parole” an alien into the
United States. 8 U.S.C. § 1182(d)(5)(A). Parole permits an alien applying for admission
to be physically present in the United States for a limited period of time, but such aliens
“have not ‘entered’ the country for the purposes of immigration law.” Rosales-Garcia v.
Holland, 322 F.3d 386, 391 & n.2 (6th Cir. 2003) (en banc). Rather, the law is clear that

3

Respondent Jones attached the DHS Order to Detain, but the information is inconclusive.
(Doc. 10, Ex. A). The date of issuance is not legible and the order is addressed to another
correctional facility. (Id.) Handwritten notes appear to indicate that Petitioner was transferred
three times between June and August 2014, and several crimes and the words “no bond” appear
under the section labeled remarks. (Id.)
4

parole “shall not be regarded as an admission of the alien.” 8 U.S.C. § 1182(d)(5)(A). 4
Advance parole is merely “permission for certain aliens—including those with a pending
application for adjustment of nonimmigrant status and who do not have a valid immigrant
visa—to be readmitted to the United States after traveling abroad.” Tapia v. Gonzales,
192 F. App’x 436, 438 (6th Cir. 2006); 8 C.F.R. § 212.5(f). Parole automatically
terminates at the expiration of the authorized term and the alien is then “restored to the
status that he or she had at the time of parole.” 8 C.F.R. § 212.5(e)(2); see 8 U.S.C.
§ 1182(d)(5)(A).
An “arriving alien” is an “applicant for admission coming or attempting to come
into the United States at a port-of-entry.” 8 C.F.R. § 1001.1(q). “An arriving alien
remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and
even after any such parole is terminated or revoked.” Id.
The INA establishes ten broad categories of aliens deemed “inadmissible.” 8
U.S.C. § 1182(a). Among the categories of inadmissibility are aliens who attempt to
procure an immigration benefit “by fraud or willfully misrepresenting a material fact,”
§ 1182(a)(6)(C)(i), and aliens not in possession of valid unexpired entry documents.
§ 1182(a)(7)(A)(i)(I). Immigration officers must inspect all aliens who are applicants for
admission to determine whether they are admissible. 8 U.S.C. § 1225(a)(3). The
relevant subsection provides that “in the case of an alien who is an applicant for
admission, if the examining immigration officer determines that an alien seeking

4

See also 8 U.S.C. § 1101(a)(13)(B) (“An alien who is paroled under section 1182(d)(5) of
this title . . . shall not be considered to have been admitted.”).
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admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be
detained for a proceeding under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A).
Section 1229a governs removal proceedings, which determines whether the alien
is removable based on inadmissibility. 8 U.S.C. § 1229a. ICE is permitted to arrest and
detain an alien pending the conclusion of removal proceedings. 8 U.S.C. § 1226(a). A
designated official has discretion to detain or release the alien on “conditional parole.”
Id. An immigration judge generally has jurisdiction to review these custody and bond
determinations. 8 C.F.R. § 1236.1(d)(1). However, “an immigration judge may not
redetermine conditions of custody” of “arriving aliens in removal proceedings, including
aliens paroled after arrival pursuant to section 212(d)(5) of the Act.” 8 C.F.R.
§ 1003.19(h)(2)(i)(B).
III.

ANALYSIS

Petitioner argues that his current detention without the possibility of a bond
hearing violates his procedural due process rights because the Form I-512L advance
parole document did not provide sufficient notice of the adverse consequences of
departing the United States. Specifically, Petitioner contends that the form failed to
provide notice that traveling on advance parole would make him an arriving alien subject
to mandatory detention without a bond hearing if CIS denied his application for
adjustment of status and initiated removal proceedings. 5 But for his departure on

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The Form provides, in relevant part: “Presentation of this authorization will permit you to
resume your application for adjustment of status upon your return to the United States. If your
adjustment is denied, you will be subject to removal proceeding under section 235(b)(1) or 240
of the Act.” (Doc. 4, Ex. A).
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advance parole, Petitioner asserts that 8 C.F.R. § 1003.19(h)(2)(i)(B) would not apply and
he would have been eligible for a bond hearing before an immigration judge.
Respondents argue that Petitioner was not constitutionally entitled to this warning
and that he is lawfully detained without a bond hearing as an arriving alien in removal
proceedings. 8 U.S.C. §§ 1182(d)(5)(A), 1225(b)(2)(A); 8 C.F.R. 1003.19(h)(2)(i)(B).
Further, Respondents note that Petitioner’s travel on parole did not forfeit his right to a
determination of adjustment status or his right to a removal proceeding, and he had
substantial time to voluntarily leave country between the denial of his application for
adjustment of status and the initiation of removal proceedings.
The Court begins with the Supreme Court’s pronouncement of its “longstanding
view that the Government may constitutionally detain deportable aliens during the
limited period necessary for their removal proceedings” and the rule that “[d]etention
during removal proceedings is a constitutionally permissible part of that process.”
Demore v. Kim, 538 U.S. 510, 526, 531 (2003). This authority is not without limits,
however, as the Constitution does not permit “indefinite” or “potentially permanent”
detention. Id. at 529. The Court of Appeals has held that “the INS [now ICE] may detain
prima facie removable criminal aliens, without bond, for a reasonable period of time
required to initiate and conclude removal proceedings promptly.” Ly v. Hansen, 351 F.3d
263, 273 (6th Cir. 2003). 6 Although Ly involved mandatory pre-removal detention under

6

The Court of Appeals declined to apply a bright-line time limitation for pre-removal detention,
unlike the six-month presumption for post-removal detention established in Zadvydas v. Davis,
533 U.S. 678, 701 (2001).
7

8 U.S.C. § 1226(c) based on a criminal conviction, id. at 267, a district court in the Sixth
Circuit has expanded the holding in Ly to mandatory detention under 8 U.S.C.
§ 1225(b)(2)(A). Kasneci v. Dir., Bur. of Immigration & Customs Enforcement, No. 1212349, 2012 WL 3639112 (E.D. Mich. Aug. 23, 2012).
Petitioner cites Shahwan v. Chertoff, No. C-05-4218, 2005 WL 3369991 (N.D.
Cal. Dec. 12, 2005), for the proposition that the Form I-512L provides insufficient notice
to an alien traveling on advance parole of the possibility of detention without the
possibility of a bond hearing. Crucial to the holding in Shahwan that 8 C.F.R.
§ 1003.19(h)(2)(i)(B) violated the alien’s procedural due process rights was the fact that
the alien was legally admitted to the United States on a student visa on his first arrival.
Id. at 3. Because he was legally admitted, he was entitled to due process rights. Id.
Under a Ninth Circuit rule discussed in Navarro-Aispura v. INS, 53 F.3d 233 (9th Cir.
1995), the government must provide an alien with sufficient notice of the adverse
consequences of accepting advance parole if leaving the country will deprive that alien of
substantive and procedural rights that were otherwise available prior to leaving the
country. Id. at 236.
Petitioner has not established that this rule governs here. First, Petitioner has not
presented evidence of his immigration status before his grant of advance parole on
January 23, 2006. Accordingly, Petitioner has not established that traveling on advance
parole deprived him of a right previously available to him.
Second, the Court of Appeals for the Sixth Circuit has not adopted the notice
requirement from Navarro-Aispura. The Court of Appeals for the Seventh and Eleventh
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Circuits have expressly rejected the Navarro-Aispura rule on the basis that CIS is not
required to provide legal advice to aliens and the courts also noted the lack analytical
support for the holding. Balogun v. U.S. Att’y Gen., 304 F.3d 1303, 1312 (11th Cir.
2002); Dimemski v. INS, 275 F.3d 574, 578-79 (7th Cir. 2001). The Court of Appeals for
the Sixth Circuit came closest to addressing the issue in Tapia v. Gonzales, 192 F. App’x
436 (6th Cir. 2006). In Tapia, the Court of Appeals quoted the notice to applicant printed
on advance parole form that Petitioner raises here. Id. at 438. However, the issue in
Tapia involved the third sentence, which warns aliens that they may be found
inadmissible if they were unlawfully present in the United States for more than 180 days
before applying for adjustment of status. Id. The court rejected the alien’s argument that
DHS violated his due process rights because DHS “has no duty, constitutional or
otherwise, to provide legal advice to aliens who petition the agency for a grant of advance
parole.” Id. at 440 (quoting Balogun, 304 F.3d at 1312). Further, the Court noted that it
was “only after he left the country without regard for the negative consequences that were
specified on the second page of the advance parole authorization that he was harmed.”
Id.
Here, Petitioner has not met of his burden of demonstrating that Respondents are
violating his procedural due process rights by applying 8 C.F.R. § 1003.19(h)(2)(i)(B).
The Court agrees that DHS “has no duty, constitutional or otherwise, to provide legal
advice to aliens who petition the agency for a grant of advance parole.” Tapia, 192 F.
App’x at 440. Petitioner’s detention pursuant to the INA and regulations promulgated
thereto does not violate his procedural due process rights. Additionally, the INA provides
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the Secretary of DHS and his designated officials with discretion to release an alien in
removal proceedings on conditional parole. 8 U.S.C. § 1226(a)(2)(B). This Court lacks
jurisdiction to review an exercise of this discretionary act. 8 U.S.C. § 1226(e). Finally,
Petitioner also has not provided any basis for the Court to conclude that his detention has
lasted for an unreasonable period of time. Ly, 351 F.3d at 273.
Accordingly, Petitioner is not entitled to a writ of habeas corpus. 7
IV.

CONCLUSION

For these reasons, Petitioner’s Amended Petition (Doc. 4) is DISMISSED without
prejudice. The Clerk shall enter judgment accordingly, whereupon this case shall be
CLOSED in this Court.
IT IS SO ORDERED.
Date:

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1/12/2015

/s/ Timothy S. Black
Timothy S. Black
United States District Judge

To the extent the Petitioner’s removal proceedings are final, his petition is moot.
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