Grant v. United States Attorney General et al

Filing 11

MEMORANDUM re Petition for Writ of Habeas Corpus 1 filed by Astley Anthony Grant (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 8/2/22. (ma)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ASTLEY ANTHONY GRANT,
Petitioner
v.
WARDEN OF CLINTON
COUNTY CORRECTIONAL
FACILITY,
Respondent

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No. 1:22-cv-0331
(Judge Rambo)

MEMORANDUM
Petitioner Astley Anthony Grant is currently being detained in the Clinton
County Correctional Facility (CCCF) in the custody of United States Immigration
and Customs Enforcement (ICE). Grant initiated the above-captioned pro se action
by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc.
No. 1.) Grant alleges that his current civil detention is unconstitutional and seeks an
order from this Court requiring the Government to show that Grant’s removal is
imminent or to establish that he is an “especially dangerous individual” such that his
continued detention is permissible. (See id. at 26.) For the following reasons, the
Court will deny Grant’s Section 2241 petition.
I.

BACKGROUND
The following facts are undisputed by the parties. On March 19, 2000, Grant

was arrested in Texas and charged with possession with intent to distribute
approximately 2,675 kilograms of marijuana. (See Doc. No. 1 at 4); United States

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v. Grant, No. 2:00-CR-00114, Doc. 1 (S.D. Tex. Apr. 12, 2000). Following
conviction by a jury, Grant was sentenced to a term of 151 months’ imprisonment,
which sentence was later reduced to 120 months. Grant, No. 2:00-CR-00114, Docs.
19, 28, 45, 77. Grant completed his sentence on December 3, 2008, and was
thereafter taken into custody by ICE based on an October 6, 2008 final order of
removal citing Grant’s aggravated felony drug conviction. (See Doc. No. 1 at 5;
Doc. 6-3 at 2.)
Grant was removed from the United States to Jamaica on January 29, 2009.
(Doc. No. 1 at 5; Doc. No. 6 at 2; Doc. No. 6-4 at 3.) He was also provided a standard
written notice indicating that, due to his aggravated felony conviction, he was
prohibited from reentering the United States at any time in the future. (See Doc. No.
6-4 at 4.)
Grant, however, did reenter the United States, although when and where that
occurred is unknown. On January 4, 2019, he was arrested by Philadelphia Police
Department officers and charged with aggravated assault, simple assault, reckless
endangerment, and possession of an instrument of crime. (See Doc. No. 6-2 at 3.)
This arrest triggered notification to ICE (via a “Biometric Hit”) that Grant had
reentered the country, likely without authorization.

(See id.)

Grant was

subsequently charged with illegal reentry in violation of 8 U.S.C. § 1326(a) and
(b)(2). See United States v. Grant, No. 2:19-CR-00428, Doc. No. 5 (E.D. Pa. July

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25, 2019). On July 1, 2019, the Department of Homeland Security (DHS) reinstated
Grant’s previous removal order. (See Doc. No. 6-5 at 2.)
Grant eventually pled guilty to the illegal reentry offense and, on August 17,
2021, was sentenced to 37 months’ imprisonment. Grant, No. 2:19-CR-00428, Doc.
Nos. 17, 67. Grant completed this 37-month sentence on August 31, 2021, and was
taken into ICE custody the same day based on the reinstated order of removal. (Doc.
No. 1 at 6; Doc. No. 6-7 ¶ 2.) He remains in ICE custody at CCCF awaiting removal.
(Doc. No. 1 at 6; Doc. No. 6 at 3.)
According to Respondent, a travel document request package was sent to the
Embassy of Jamaica on October 13, 2021, to facilitate Grant’s removal to Jamaica.
(See Doc. 6-7 ¶ 6.) Additionally, ICE Enforcement and Removal Operations has
requested assistance from Removal and International Operations to secure travel
documents for Grant from the Embassy of Jamaica. (Id.)
Grant filed the instant Section 2241 petition in March 2022, when he was
approximately six months into his current ICE detention. (See generally Doc. No.
1.) His petition raises numerous claims attacking his detention and prior convictions.
The petition is fully briefed and ripe for disposition.
II.

DISCUSSION
Grant’s Section 2241 petition is lengthy and difficult to follow. At times he

appears to challenge the legality of his current ICE detention, and at other times he

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attempts to impugn aspects of his former criminal convictions. Although his claim
regarding the constitutionality of his continued detention pending removal is
cognizable in a Section 2241 petition, his collateral attacks on his prior convictions
are not.
Section 1231(a) of Title 8 of the United States Code1 “governs the detention,
release, and removal of individuals ‘ordered removed.’” Johnson v. ArteagaMartinez, 596 U.S. __, __, 142 S. Ct. 1827, 1832 (2022). Section 1231(a)(1)(A)
provides that, following entry of a final order of removal, the United States generally
must effectuate the noncitizen’s removal during a 90-day “removal period.” 8
U.S.C. § 1231(a)(1)(A). That 90-day period begins to run, for noncitizens who are
detained or confined for criminal offenses, on “the date the alien is released from
[non-immigration] detention or confinement.” Id. § 1231(a)(1)(B)(iii). Detention is
mandatory during this first 90 days. Id. § 1231(a)(2) (“During the removal period,
the Attorney General shall detain the alien.” (emphasis added)).
Following expiration of the 90-day removal period, certain noncitizens “may”
be detained if they fall into one of four distinct categories: “(1) those who are
‘inadmissible’ on certain specified grounds; (2) those who are ‘removable’ on
certain specified grounds; (3) those [determined] ‘to be a risk to the community’;

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Grant does not dispute that his detention falls under Section 1231(a)(6). (See Doc. No. 1 at 9
(citing Section 1231(a)(6) and Zadvydas v. Davis, 533 U.S. 678 (2001)); id. at 10 (“Petitioner is
detained pursuant to 8 U.S.C. § 1231(a)(6)”).)
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and (4) those [determined] to be ‘unlikely to comply with the order of removal.’”
Arteaga-Martinez, 596 U.S. at __, 142 S. Ct. at 1832 (quoting 8 U.S.C. §
1231(a)(6)). How long a noncitizen may be detained pursuant to Section 1231(a)(6)
following the 90-day removal period has been the subject of considerable litigation.
In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that
Section 1231(a)(6) “does not permit indefinite detention,” but rather “limits an
alien’s post-removal-period detention to a period reasonably necessary to bring
about that alien’s removal from the United States.” Zadvydas, 533 U.S. at 689. Of
course, the phrase “a period reasonably necessary to bring about that alien’s
removal” provides no easily ascertainable guidelines. See Arteaga-Martinez, 596
U.S. at __, 142 S. Ct. at 1836 (Thomas, J., dissenting); see also Guerrero-Sanchez
v. Warden York Cnty. Prison, 905 F.3d 208, 223-24 (3d Cir. 2018), abrogated on
other grounds by Johnson v. Arteaga-Martinez, 596 U.S. __, __, 142 S. Ct. 1827
(2022).2

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In Johnson v. Arteaga-Martinez, the Supreme Court abrogated the Third Circuit’s holding in
Guerrero Sanchez that Section 1231(a)(6) presumptively “requires the Government to offer
detained noncitizens bond hearings after six months of detention in which the Government bears
the burden of proving by clear and convincing evidence that a noncitizen poses a flight risk or a
danger to the community.” Arteaga-Martinez, 596 U.S. at __, 142 S. Ct. at 1830. The Court did
not address the merits of the petitioner’s individualized Due Process Clause challenge or hold
that such a claim could not be pursued. See id. at 1834-35. Moreover, the United States
reassured the Arteaga-Martinez Court that “as-applied constitutional challenges” to prolonged
detention under Section 1231(a)(6) “remain available.” Id. at 1835.
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Thus, noncitizens detained under Section 1231(a)(6) past the six-month
presumptively constitutional period may bring an as-applied Due Process Clause
challenge to their continued detention should that detention become prolonged and
potentially unlawful. See Zadvydas, 533 U.S. at 699-701; Guerrero-Sanchez, 905
F.3d at 225; see also Johnson v. Guzman Chavez, 594 U.S. __, __, 141 S. Ct. 2271,
2281-82 (2021) (citing Zadvydas, 533 U.S. at 678, 689, 701). If the noncitizen
“provides good reason to believe that there is no significant likelihood of removal in
the reasonably foreseeable future, the Government must either rebut that showing or
release the [noncitizen].” Guzman Chavez, 594 U.S. at __, 141 S. Ct. at 2282
(internal quotation marks omitted); see also 8 C.F.R. §§ 241.4, 241.13 (establishing
agency procedures for determining whether noncitizens detained under 1231(a) past
90-day removal period should be released on supervision or remain in detention).
Grant argues that there is “good reason to believe” that his removal will not
occur in the reasonably foreseeable future because “the Government (Respondent)
has too many constitutional violations to overcome.” (Doc. No. 1 at 11.) Grant
proceeds to attempt to collaterally attack his prior convictions and to question
whether the Government has proven that he is an “alien.” (See id. at 12, 18-20, 2223.) This contention—that the United States has never properly established that
Grant is a citizen of Jamaica or a noncitizen of the United States—appears

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throughout Grant’s petition and is weaved into nearly all his claims. (See id. at 8,
11, 12, 13, 16, 17-18, 19, 20, 21, 23, 25.)
Respondent asserts that Grant has not made a showing that his detention has
become unconstitutionally prolonged or unreasonable. Respondent notes that, on
March 11, 2022, ICE reviewed Grant’s detention pursuant to 8 C.F.R. § 241.4(e),
(f), and (g). (See Doc. No. 6-8 at 2.) The reviewing Unit Chief found that, as the
United States was working with the Government of Jamaica to secure a travel
document for Grant, his removal was reasonably foreseeable and thus denied Grant
release from ICE custody. (See id.) Six days later, Grant was provided a bond
hearing, pursuant to the then-controlling requirements of Guerrero-Sanchez, in front
of an immigration judge at the request of the Government. (See Doc. No. 6-9 at 2.)
At this hearing, Grant “knowingly and voluntarily requested no bond” and sought
time to consult an attorney. (Id.) According to Respondent, Grant has not requested
another bond hearing to date.
Under the facts of this case, it is plainly evident that Grant’s detention under
Section 1231(a)(6)—which now stands at approximately 11 months—has not
become unconstitutionally prolonged. The United States is actively working to
obtain travel documents to effectuate Grant’s removal to Jamaica. Grant has
received both agency review under 8 C.F.R. § 241.4 and the opportunity to challenge
his continued detention before a neutral Immigration Judge. Grant may seek review

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with ICE again if he believes that there is a “change in circumstances” that warrants
review of his detention before the scheduled annual review that will take place in
early 2023. See 8 C.F.R. § 241.49(k)(2)(iii). Grant, in fact, does not seek immediate
release from detention as habeas relief. Rather, he requests that this Court enter an
order requiring the Government to show that he is an alien whose removal is
imminent or that he is “an especially dangerous individual.” (Doc. No. 1 at 26.)
This is the type of review explicitly provided by 8 C.F.R. § 241.4.
The crux of Grant’s argument involves his repeated assertion that the United
States has never established that he is a citizen of Jamaica or an alien. He specifically
points to correspondence from the “Registrar General & Deputy Keeper of the
Records,” which appears to be a Jamaican agency, indicating that a search of the
country’s relevant database could not find a birth certificate for Grant. (See Doc.
No. 1-4 at 2.) Notably, however, Grant never states what country he is a citizen of.
He merely claims that the United States has not carried its burden to establish that
he is a citizen of Jamaica or an alien. Moreover, it does not appear that Grant ever
raised an alienage challenge at the time of his first deportation to Jamaica or during
his criminal proceedings for violating 8 U.S.C. § 1326. He further avers that, during
a withholding of removal credible-fear interview, he denied having any fear of
returning to Jamaica. (Doc. No. 1 at 6-7.)

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If Grant is attempting to challenge his prior convictions or his order of
removal on the basis that the Government has not established that he is an alien, he
cannot do so in a Section 2241 petition. A collateral attack on his previous
conviction under 8 U.S.C. § 1326 must be made through a motion pursuant to 28
U.S.C. § 2255 in the district court where he was convicted and sentenced. See
Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (explaining that a Section
2255 motion is “the presumptive means” to challenge a federal conviction or
sentence that allegedly violates the constitution). However, such a collateral attack
would be severely circumscribed by 8 U.S.C. § 1326(d), which codified United
States v. Mendoza-Lopez, 481 U.S. 828 (1987), and sets forth three criteria for
challenging an underlying removal order in a Section 1326 criminal proceeding. See
8 U.S.C. § 1326(d); United States v. Charleswell, 456 F.3d 347, 351 (3d Cir. 2006).
As to Grant’s 2008 final order of removal, any challenge to this order can be
raised only in the appropriate court of appeals. See 8 U.S.C. § 1252(a)(5). This
would include a claim that Grant is not removable because he is a United States
citizen (although Grant has never explicitly made this claim). See id. § 1252(b)(5).
However, a petition for review of a final order of removal must be filed “not later
than 30 days after the date of” that order, id. § 1252(b)(1), making any challenge to
Grant’s 2008 final order of removal (or reinstatement of that order) untimely.

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Finally, should Grant be found to argue that his removal is not reasonably
foreseeable based on his newfound alienage challenge or other collateral attacks, the
Court disagrees. The likelihood of success on a collateral attack on either his Section
1326 conviction or his underlying 2008 order of removal is extremely low for many
reasons, not the least of which is that (1) these attacks are likely time-barred and (2)
Grant has proffered no evidence (or even an allegation) regarding where his
citizenship lies to counter the Government’s determination that he is a citizen of
Jamaica.3
In sum, Grant’s claim that his continued detention under Section 1231(a)(6)
has become unconstitutionally prolonged is meritless. Additionally, any collateral
challenge he is attempting to raise based on alienage or some other defect 4 with his
prior convictions is not cognizable in a Section 2241 petition in this Court. The
Court will therefore deny Grant’s habeas petition.

3

See, e.g., Doc. No. 6-1 at 3 (indicating that Grant entered the United States with a fraudulent
passport in 1993 on a flight from Kingston, Jamaica, and that both of Grant’s parents are citizens
of Jamaica).
4

Grant attempts to raise claims sounding in lack of probable cause, warrantless arrest, equal
protection, and substantive due process to attack his previous convictions. (See Doc. No. 1 at 11,
15-17, 18-20, 21-23.) The Court will not address these claims because, as noted above, Grant’s
collateral attacks on his prior federal convictions are not cognizable in the instant Section 2241
petition.
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III.

CONCLUSION
Based on the foregoing, the Court will deny Grant’s petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241. An appropriate Order follows.

s/ Sylvia H. Rambo
United States District Judge
Dated: August 2, 2022

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