Contant v. Attorney General of the United States et al

Filing 7

MEMORANDUM re ptf's mtns for Recusal 3 and to Appoint Counsel 5 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 10/11/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ISAN CONTANT,
Plaintiff
vs.
ATTORNEY GENERAL OF THE
UNITED STATES, LORETTA LYNCH,
Defendant

:
:
:
:
:
:
:
:
:
:
:

CIVIL NO. 1:CV-16-1908
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Isan Contant, a citizen and resident of Trinidad and Tobago, filed this

Complaint seeking relief against the Board of Immigration Appeals (BIA) under the
Administrative Procedure Act (APA) asking the BIA to clarify its October 25, 2013, decision.
(ECF No. 1, Compl.)
Presently before us are Contant’s motion for recusal and motion for counsel.
For the reasons that follow, both motions will be denied.
II.

Abbreviated Statement of Contant’s Immigrations Proceedings
Isan Contant entered the United States in 2004 on a tourist visa, and stayed

longer than permitted. On October 3, 2007, pursuant to a guilty plea, Contant was
convicted and sentenced to one year of imprisonment and two years of probation for
criminal possession of cocaine in New York. See People v. Contant, 77 A.D.3d 967, 910

N.Y.S.2d 482, 2010 WL 4243191 *1, (N.Y.A.D. 2 Dept., Oct. 26, 2010). The New York
appellate court affirmed the conviction on direct appeal on October 26, 2010. (Id.) In
December 2007, the Department of Homeland Security charged Contant with being
removable because he overstayed his visa. He was taken into custody on March 7, 2008,
and ordered detained without bond. The BIA upheld that decision on appeal, and the Third
Circuit affirmed. See Contant v. Att’y Gen., 441 F. App’x 105 (3d Cir. 2011)
(nonprecedential).
In October 2008, Contant filed a petition pursuant to 28 U.S.C. § 2241 in this
court claiming that his indefinite detention violated his right to due process. We denied that
petition. Contant v. Mukasey, No. 1:CV-08-1852, 2009 WL 427244 (M.D. Pa. 2009)
(Caldwell, J.). Our decision was affirmed on appeal. Contant v. Holder, 352 F. App’x 692
(3d Cir. 2009)(nonprecedential). Contant’s petition for writ of certiorari was denied on June
14, 2010. Contant v. Holder, 560 U.S. 971, 130 S.Ct. 3424, 177 L.Ed.2d 335 (2010).
Approximately two years later, Contant filed another habeas petition
challenging his continued detention by Immigration and Customs Enforcement (ICE).
Contant v. Holder, No. 10-CV-0001 (M.D. Pa.) (Caldwell, J.). We dismissed that petition as
moot as he was no longer in ICE custody when we resolved the petition.

Contant did not

appeal the order. On or about December 15, 2010, Contant was released from ICE
custody and was a federal pre-trial detainee after being indicted on charges for preventing
or hampering his removal. (Id., ECF No. 29, Order of Feb. 11, 2011).

-2-

On September 10, 2010, Contant received a final order of removal. Contant
v. Sabol, 987 F. Supp. 2d 323 (S.D.N.Y. 2013). ICE officials then made numerous
attempts to remove him from the United States, but Contant thwarted those efforts. In
February 2011, following a non-jury trial before the Honorable Yvette Kane of this district,
Contant was found guilty of hindering his own removal from the United States in violation of
8 U.S.C. § 1253(a)(1)(c). United States v. Contant, 467 F. App’x 141 (3d Cir. 2012)
(nonprecedential).
In October 2013, “[n]ot withstanding [Contant’s] current absence from the
United States,” the BIA reopened his immigration case pursuant to its authority to do so sua
sponte and remanded the matter to the immigration judge “to allow the parties to present
evidence regarding the respondent’s eligibility for a visa petition and, if necessary, for
consideration of his application for adjustment of status.” (ECF No. 1, p. 8). The BIA
remanded the record “to the Immigration Court for further proceedings consistent with the
forgoing decision.” (Id.)
Contant then filed a pro se coram nobis petition in this district before Judge
Kane, arguing “inter alia, that [his] conviction could not stand because the BIA’s [2013]
grant of reopening meant that there was no longer a final order of removal outstanding
against him.” United States v. Contant, 638 F. App’x 146, 147 (3d Cir.
2016)(nonprecedential). On September 12, 2014, Contant’s coram nobis petition was
denied. (Id.) Judge Kane found that “the reopening of Contant’s removal proceedings
‘does not automatically and retroactively overturn his conviction under a then-valid and

-3-

administratively final order of removal.” Id. at 148. On appeal, the Third Circuit affirmed
the District Court’s denial of his coram nobis petition. Id.
On December 16, 2013, the immigration judge granted the Department of
Homeland Security’s motion to administrative close proceedings. On January 16, 2014, the
immigration judge terminated Contant’s proceedings. (ECF No. 1, p. 9). At some point
Contant asked the BIA to clarify it’s October 25, 2013, decision. (Id.) The BIA, noting that
his “proceedings have been terminated and nothing remains before [the BIA] to consider,”
denied Contant’s request “for lack of jurisdiction.” (Id.)
III.

Discussion

A.

Motion for Recusal
Contant requests that I recuse myself from this action because I previously

denied his two habeas petitions requesting release from ICE detention. He claims that
despite his presentation of facts in those cases, I “did not release [him] from slavery.” (ECF
No. 4, p. 2). He believes my actions in those cases “create[ ] the appearance in a
reasonable mind that there exist (sic) an improper, unethical motivation on [my] part” which
requires recusal. (Id.)
Pursuant to 28 U.S.C. § 455(a), “[a]ny justice, judge or magistrate judge of
the United States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” The test is “whether a reasonable person, with knowledge of all
the facts, would conclude that the judge's impartiality might reasonably be questioned.” In

-4-

re: Kensington Int’l Ltd., 368 F.3d 289, 301 (3d Cir. 2004). “Under subsection (a),
questions of impartiality must be viewed on ‘an objective basis, so that what matters is not
the reality of bias or prejudice but its appearance.’” United States v. King,
,

F. App’x

, 2016 WL 5403629, at *2 (3d Cir. 2016)(nonprecedential) (quoting Liteky v.

United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 1154, 127 L.Ed.2d 474 (1994)).
The Third Circuit has made it clear that “adverse rulings — even if they are
erroneous — are not in themselves proof of prejudice or bias.” Arrowpoint Capital Corp. V.
Arrowpoint Asset Management, LLC, 793 F.3d 313, 330 (3d Cir. 2015); see also
Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000) (“[A]
party’s displeasure with legal rulings does not form an adequate basis for recusal.”).
Rulings and orders “can only in the rarest circumstances evidence the degree of favoritism
or antagonism required . . . when no extrajudicial source is involved. Almost invariably,
they are proper grounds for appeal, not for recusal.” Liteky, 510 U.S. at 555, 114 S.Ct. at
1157. Additionally, “opinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings, do not constitute
a basis for a bias or partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Id., 114 S.Ct. at 1157.
Under this standard, the undersigned need not recuse himself. Contant’s
motion for recusal is premised exclusively on the prior unfavorable rulings concerning his
continued ICE detention. The one case he did appeal to the Third Circuit was affirmed.
See Contant v. Holder, 352 F. App’x 692 (3d Cir. 2009)(nonprecedential). His

-5-

dissatisfaction with these decisions is not a proper basis for recusal. His motion for recusal
will therefore be denied.
B.

Motion for Counsel

This is a civil action, not a criminal one. Hence the plaintiff has no constitutional or
statutory right to appointed counsel. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.
2002). Nor can the court compel a lawyer to represent an indigent plaintiff. Tabron v.
Grace, 6 F.3d 147, 153 n.1 (3d Cir. 1993). Rather, representation for an indigent is
governed by 28 U.S.C. § 1915(e)(1) which only provides that the court "may request an
attorney to represent any person unable to afford counsel." (emphasis added).
A district court has broad discretion under 28 U.S.C. § 1915(e)(1) in deciding
whether to seek counsel, Montgomery, 294 F.3d at 498, and the decision can be made at
any point of the litigation. Id. at 503-04 (“Either the Magistrate Judge or the District Court
should have recognized Montgomery's difficulties as they became increasingly apparent
and, in light of them, reconsidered Montgomery's motion for appointment of counsel.”).
The Third Circuit has provided guidance for the exercise of the district court’s
discretion. At the threshold, the court must decide whether the plaintiff’s case “has some
arguable merit in fact and law.” Id. at 499 (quoting Parham v. Johnson, 126 F.3d 454, 457
(3d Cir. 1997)). A court need not appoint counsel “if the indigent’s chances of success on
the merits are extremely slim.” Id. at 500 (quoting Hodge v. Police Officers, 802 F.2d 58,
60 (2d Cir. 1986))(internal quotation marks and brackets omitted). If the threshold
requirement is met, the court then considers a number of factors established by the Third
-6-

Circuit to determine whether it is appropriate to request counsel for an indigent party.
These factors include: (1) the plaintiff’s ability to present his own case; (2) the difficulty of
the particular legal issues; (3) the degree to which factual investigation will be necessary
and the ability of the plaintiff to pursue investigation; (4) the plaintiff’s capacity to retain
counsel on his own behalf; (5) the extent to which a case is likely to turn on credibility
determinations; and (6) whether the case will require testimony from expert witnesses.
Tabron, 6 F.3d at 155-57.
“[V]olunteer lawyer time is a precious commodity, Montgomery, supra, 294
F.3d at 499, so the district court’s “broad statutory discretion” should be exercised
“discerningly.” Id. at 505 n.10. However, if the case “appears to have merit” and “most of
the . . . Tabron factors have been met, the Third Circuit “instruct[s]” that the district court
“should make every attempt to obtain counsel.” Id. at 505 (quoting Parham, 126 F.3d at
461)(internal quotation marks omitted).
Here, Contant seeks court-appointed counsel on the basis of his indigency
and the alleged complexities of this case. We have recently ordered that the Complaint be
served on Defendant. Until a response is received, the court will not be able to fully assess
the threshold question of the arguable factual and legal merit of Plaintiff’s claims for the
purpose of appointing him counsel. Moreover, we note Contant’s extensive experience
litigating his criminal and removal matters before this and other courts. His filings are
clearly worded and present logical concise arguments, including citation to case law. To
the extent that Contant’s request for counsel is based on his indigency, this does not

-7-

warrant the appointment of counsel given this court's liberal construction of pro se
pleadings. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). At this
point in the litigation, there is no evidence that any prejudice will befall Contant in the
absence of court-appointed counsel. Consequently, his request for counsel will be denied.
We will issue an appropriate order.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: October 11, 2016

-8-