Milhouse v. Fasciana et al

Filing 139

ORDER (memorandum filed previously as separate docket entry), RE: Petitioner's motion to enforce. Signed by Honorable Yvette Kane on 5/21/18. (rw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
OLEKSANDR V. OLIYNYK,
Petitioner
v.
WARDEN DOLL,
Respondent

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No. 1:17-cv-02197
(Judge Kane)

MEMORANDUM
Before the Court is Petitioner Oleksandr V. Oliynyk (“Oliynyk”)’s, motion to enforce
(Doc. No. 10), this Court’s February 5, 2018 Order (Doc. No. 9), granting his petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 insofar as this Court ordered that Oliynik should be
afforded an individualized bond hearing before an immigration judge. Respondent has filed a
brief in opposition to Oliynik’s motion (Doc. No. 12), and Olyinik has filed a reply brief (Doc.
No. 14). Accordingly, this matter is ripe for disposition.
I.

BACKGROUND
Oliynyk, a citizen and native of Ukraine, was admitted to the United States by

immigration officials at the Greater Pittsburgh International Airport as a Non-Immigrant student
to attend West Virginia University in Morgantown, West Virginia. (Doc. No. 6, Exs. 1, 2.)
Between 2006 and 2013, Oliynyk’s criminal record included shoplifting, disorderly conduct,
driving under the influence of liquor, various traffic offenses, and larceny. (Id. at Ex. 1.)
Oliynyk was charged and convicted of “theft by deception – false impression” on May 22, 2013,
sentenced to three and a half (3.5) to seven (7) years’ confinement, and ordered to pay
$431,796.36 in victim restitution. (Id. at Ex. 2.)
Oliynyk was taken into ICE custody on May 23, 2017, and charged as being removable
pursuant to Sections 237(a)(2)(A)(iii) and 237(a)(1)(C)(i) of the Immigration and Nationality Act
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(“INA”). (Id. Exs. 2, 3.) On September 8, 2017, an immigration judge ordered that Oliynyk be
removed from the United States to Ukraine and denied his applications for asylum, withholding
of removal, and deferral of removal under the Convention Against Torture Act (“CAT”). (Id.,
Ex. 4.) On September 18, 2017, an immigration judge denied Oliynyk’s request for custody redetermination after holding a hearing on August 22, 2017. (Id., Ex. 5.) Oliynyk appealed the
immigration judge’s removal order to the Board of Immigration Appeals (“BIA”), on September
28, 2017, with briefing due on December 26, 2017. (Id., Ex. 7.)
On November 30, 2017, Oliynyk filed a petition for a writ of habeas corpus seeking an
individualized bond hearing before an immigration judge or release from detention. (Doc. No.
1.) Oliynyk contends that his prolonged detention of over six months is unreasonable. (Id.) The
Court issued an Order on December 12, 2017, directing Respondent to show cause as to why
relief should not be granted. (Doc. No. 4.) On January 2, 2018, Respondent responded to the
petition, conceding that based upon the facts and procedural posture of this case, Petitioner is
entitled to an individualized bond hearing before an immigration judge. (Doc. No. 6.) See
Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469 (3d Cir. 2015); Demore v. Kim, 538
U.S. 510 (2003); Singh v. Sabol, Civ. No. 14-1927, 2015 WL 3519075 (M.D. Pa. June 4, 2015).
Accordingly, the Court granted the petition insofar as it Ordered an individualized bond
hearing before an immigration judge wherein “the immigration judge must make an
individualized inquiry into whether detention is still necessary for purposes of ensuring that
Petitioner attends removal proceedings and that his release will not pose a danger to the
community,” and that “the government bears the burden of demonstrating that Petitioner’s
continued detention is necessary to fulfill the purposes of the detention statute.” (Doc. No. 9.) A
bond hearing was held before an immigration judge on February 13, 2018. (Doc. No. 12-1, Ex.

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1.) At the hearing, both parties presented evidence relating to whether Oliynyk posed a flight
risk or is a danger to the community. (Doc. No 12-1, Ex. 1, 2.) Following consideration of this
evidence as well as arguments by both parties, the immigration judge granted bail and released
Oliynyk from custody under bond of $90,000.00. (Id. at Ex. 2, Track 7.) The immigration judge
set a significant bond due to his determination that Oliynyk is a flight risk and danger to the
community. (Id.) In rendering his decision, the immigration judge correctly articulated the
applicable legal standards, noting that the he must consider two primary factors: (1) risk of flight
and (2) danger to the community. (Id. at Track 1, 7.) The immigration judge also observed that
the burden of proof and persuasion rested on the Government and it had to carry that burden of
proof by clear and convincing evidence. (Id.)
On February 15, 2018, Oliynyk filed a motion to enforce the Court’s February 5, 2018
Order. (Doc. No. 10.) Oliynyk maintains that he was not afforded an individualized hearing and
that his bond was excessively high. (Id.) Oliynik therefore requests that this Court order his
immediate release or order that a new bond hearing be conducted. (Id.)
II.

DISCUSSION
Oliynyk advances the argument that the immigration judge erroneously found that he was

a flight risk and danger to the community and ignored evidence what Oliynyk characterizes as
evidence to the contrary. (Doc. Nos. 10, 14.) For instance, Oliynyk argues that he submitted
almost 250 pages of supporting evidence to the immigration judge prior to his hearing and it
would have been impossible for the immigration judge to have considered all of these pages
prior to rendering a decision. (Doc. No. 10 at 5.) Oliynyk questions whether the immigration
judge considered his evidence of rehabilitation and claims that the immigration judge placed
undue attention on his conviction for theft by deception, which resulted in three-and-a-half to

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seven years’ incarceration and an order to pay restitution in the amount of $431,796.36. (Id.)
Respondent counters that Olyinyk’s motion fails because he must first exhaust his administrative
remedies by filing an appeal with the Board of Immigration Appeals (“BIA”) and that he is not
entitled to further habeas relief. (Doc. No. 12.)
Recently confronted with this narrow issue, the district court in Quinteros v. Sabol, Civ.
No. 15-02098, 2016 WL 6525295 (M.D. Pa. Nov. 3, 2016), addressed whether it retained
jurisdiction after it orders an immigration judge to conduct an individualized bond hearing. The
court posed the following narrative:
When a federal district court orders an immigration judge to conduct an
individualized bond hearing as requested in a habeas petition, is it improper
for the district court to retain jurisdiction for the purpose of conducting its
own determination on the merits, prior to the petitioner exhausting his
administrat[ive] remedies and the agency’s decision becoming final? As a
matter of both federalist principles and common-sense practicality, I
consider it axiomatic that a federal court should not retain jurisdiction postreferral, but to the extent that it must, such review is necessarily limited to
ensuring that the petitioner received the hearing he was owed in the first
place. Accordingly, prior to satisfactory showings of exhaustion and finality,
the district court should not revisit the merits of the immigration judge’s
determination. To do so would be premature and would otherwise disregard
established constitutional bounds.
Quinteros, 2016 WL 6525295, at *1. The court provided that “an immigration judge’s
conducting an individualized bond determination . . . necessarily moot[s] an underlying habeas
petition that solely requests such a hearing be held.” Id.; see Carmil v. Green, Civ. No. 15-8001,
2015 WL 7253968, at *3 (D. N.J. Nov. 16, 2015) (“Petitioner has already received the sole relief
available to him under Diop and Chavez-Alvarez, a bond hearing, and as such his Petition would
be moot and would warrant dismissal for that reason instead.”).
In Pierre v. Sabol, Civ. No. 11-2184, 2012 WL 291794 (M.D. Pa. July 17, 2012), the
court considered a § 2241 Petitioner’s motion under Federal Rule of Civil Procedure 60(b)(6),

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requesting that the district court reopen his §2241 case after it had been closed upon referral to
an immigration judge to conduct a bond hearing, and either require the immigration judge to
reconsider his bail amount or release him from detention. Id. at *1. The court declined to grant
such relief for two reasons. First, the court noted that the petitioner received the relief he
requested, a hearing before an immigration judge, and citied Leonardo v. Crawford, 646 F.3d
1157, 1161 (9th Cir. 2011) for the proposition that a “district court has authority to determine if
there has been compliance with its earlier habeas order but acted properly in refusing to review
the [immigration judge’s] refusal to grant bond when the government complied with the habeas
order by holding a hearing.” Id.
Second, the court concluded that the petitioner failed to exhaust his administrative
remedies, providing that it could not consider his request for relief until he had exhausted his
administrative remedies by appealing the bond decision to the BIA. (Id.); see Leonard, 646 F.3d
at 1160-61 (reasoning that alien failed to exhaust administrative remedies when he did not appeal
the immigration judge’s bond determination to the BIA before seeking habeas relief in district
court); Chajchic v. Rowley, Civ. No. 17-00457, 2017 WL 4401895, at *3 (M.D. Pa. Jul. 25,
2017) (providing that “aliens who receive a bond hearing before the immigration judge” are
required to “exhaust their administrative remedies and raise any issues with the BIA prior to
seeking federal habeas corpus relief”).
Moreover, this rule favoring exhaustion of administrative remedies as a predicate to
consideration of habeas corpus petitions acknowledges the deference that should be afforded
agency decisions and fosters important institutional goals, including: “(1) allowing the
appropriate agency to develop a factual record and apply its expertise facilitates judicial review;
(2) permitting agencies to grant the relief requested conserves judicial resources; and (3)

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providing agencies the opportunity to correct their own errors fosters administrative autonomy.”
Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir. 1996).
With this precedent in mind, this Court finds that Olyinyk has not exhausted his
administrative remedies, as his appeal to the BIA is currently pending, and the Court could
therefore deny the motion on this ground. However, in the interest of completeness, the Court
will address whether there was compliance with its earlier Order, that is, whether Oliynyk
received an independent and adequate bond hearing before the immigration judge he was owed
in the first place. See Quinteros, 2016 WL 6525295, at *1; Leonard, 646 F.3d at 1161.
When reviewing a bond determination by an immigration judge following an order
referring a case for individualized bond consideration, this Court’s review is limited to three
essential considerations: (1) whether the decision of the immigration judge paid full fidelity to
the law of the case; (2) whether there has been no plain legal error by the immigration judge in
identifying and applying the controlling legal precepts; and (3) whether the exercise of discretion
in denying bond was so arbitrary that it would offend fundamental tenets of due process. See
Chajchic, 2017 WL 4401895, at *4.
As to the first consideration described above, having reviewed the audio recording of the
bond hearing before the immigration judge (Doc. No. 12, Ex. 2), the Court is satisfied that the
hearing was in compliance with the Court’s February 5, 2018 Order and was in accordance with
the law of the case. (Doc. No. 9.) The immigration judge noted that the bond hearing was being
conducted pursuant to this Court’s February 5, 2018 Order to determine whether Oliynyk
constituted a danger to the community or was a flight risk, and properly articulated the legal
standards. (Doc. No. 12, Ex. 2 Track 1.) The immigration judge noted that he had received and
reviewed Oliynyk’s documentary evidence in advance of the hearing, which included “an

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argument on flight risk and danger to society as evidence for bond as well as tax documents.”
(Id. at Track 2.)
The immigration judge also reviewed the Government’s submissions and arguments that
Oliynyk is a flight risk and a danger to the community. (Id. at Track 2, 3, 6, 7.) The
Government introduced records of Oliynyk’s criminal conduct, including his conviction for theft
by deception – false impression, an aggravated felony for which he was ordered to pay
$431,796.36 in restitution. (Id. at Track 6, Ex. 3.) The Government also noted that Oliynyk has
no family in the United States, is not married, does not have children, has at least one conviction
for DUI, an aggravated felony, and that his “support” letters from friends that he submitted to the
immigration judge were over one year old. (Id. at Track 6.)
In considering the documentary evidence and Oliynyk and the Government’s arguments,
the immigration judge granted bail and released Oliynyk from custody under bond of $90,000.00
with the condition that he not drive unless properly licensed to drive. (Doc. No. 12, Ex. 1.) The
immigration judge also noted that he set a significant bond due to his determination that Oliynyk
is a flight risk and danger to community. (Id. at Ex. 2 Track 7.) While Oliynyk “may be
dissatisfied with his individualized assessment, it cannot be said that the immigration judge did
not follow the law of the case, as prescribed by this Court and conduct an individualized bond
hearing.” See Chajchic, 2017 WL 4401895, at *4.
In considering the second component, this Court finds no plain legal error in the
immigration judge’s identification and application of the controlling law. As noted above, the
immigration judge correctly articulated that the Government has the burden, by clear and
convincing evidence, to show two primary factors: (1) danger to the community and (2) flight

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risk. (Doc. No. 11, Ex. 2.) Because the immigration judge properly articulated these legal
standards, the Court finds no legal error in this case.
Finally, in considering the third factor, the Court does not find that the immigration
judge’s exercise of discretion over the bond decision was so arbitrary that it would offend
fundamental tenets of due process. When reviewing a discretionary bond decision, the degree of
arbitrariness necessary to state a constitutional claim is striking and the petitioner “bears the
burden of showing that there is no rational basis in the record for the [bond decision].” Martin v.
Diguglielmo, 664 F. Supp. 2d 612, 621 (W.D. Pa. 2008) (quoting Finetti v. Harris, 609 F.2d 594,
601 (2d Cir. 1979)); Chajchic, 2017 WL 4401895, at *5. Accordingly, “federal courts do not sit
as appellate courts to review the use or abuse of discretion of [other] courts in the granting or
denying of bail,” and the “burden is on [the] petitioner to show that the record is devoid of a
rational basis for the [decision].” Gorton v. Marsteller, 545 F. Supp. 994, 997-98 (D. Kan. 1982)
(internal citations omitted); Chajchic, 2017 WL 4401895, at *5; Colavita v. Pennsylvania, Civ.
No. 08-3557, 2009 WL 616649, at *4 (E.D. Pa. Mar. 6, 2009) (“To sustain a federal claim, a
petitioner must demonstrate the [bond decision] was arbitrary or without any rational basis.”).
In accordance with these standards, the Court concludes that the immigration judge’s
discretionary bond decision was rational and based upon the evidence before the immigration
judge. Accordingly, the Court finds that the immigration judge’s conclusions were rational and
not arbitrary or without a rational basis.
III.

CONCLUSION
For the reasons set forth above, Oliynyk’s motion to enforce (Doc. No. 10), will be

denied and the above-captioned action shall remain closed. An appropriate Order follows.

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