Okorafor v Lowe

Filing 11

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Robert D. Mariani on 8/18/17. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HEANYI JOSEPH OKORAFOR,
Petitioner,

v.

3:17-CV-716
(JUDGE MARIANI)

CRAIG A. LOWE,
Respondent.

MEMORANDUM
On April 23, 2017, Heanyi Joseph Okorafor filed an "Emergency Petition for a Writ of
Habeas Corpus" (Doc. 1) "seeking emergency relief from this Court, in the issuance of a
Writ of Habeas Corpus, pursuant to Section 2241 (c)(3), Title 28 of the United States Code."
Petitioner's prayer for relief requests, among other relief, that this Court "[i]ssue a Writ of
Habeas Corpus ordering Petitioner [sic] to release Petitioner immediately on his own
recognizance or under parole, bond, or reasonable conditions of supervision, or, in the
alternative, ordering a constitutionally adequate, individualized hearing before this Court."
(Doc. 1, at 15).
Following the filing of briefs by counsel for Petitioner and Respondent Craig Lowe,
the Warden of Pike County Correctional Facility, Magistrate Judge Carlson issued a Report
and Recommendation (''R&R") (Doc. 10) on July 26, 2017, wherein he recommended that
the Court deny Okorafor's habeas corpus petition. No objections were filed to the R&R.

Although the Court will adopt the Magistrate Judge's conclusions, it does so for the reasons
set forth below, as well as those set forth in the R&R.
As explained by the Magistrate Judge,
In this case the petitioner, Heanyi Okorafor, received a bond hearing pursuant
to 8 U.S.C. § 1226(a) in December of 2016, but the Immigration Judge denied
Okorafor release on bond, citing in part the fact that Okorafor had been
convicted of sexually assaulting a child under the age of 13, criminal conduct
which involved the exploitation of a child and led to the initiation of these
removal proceedings.
(Doc. 10, at 2-3). On March 17, 2017, the Board of Immigration Appeals affirmed the
Immigration Court's bond determination, finding that "considering the totality of the record,
we conclude that [Okorafor] did not meet his burden of establishing that he does not present
a danger to the community." (Doc. 1-2, Ex. B, at 2).
Pursuant to 8 U.S.C. § 1226(a), "an alien may be arrested and detained pending a
decision on whether the alien is to be removed from the United States." The statute further
authorizes the Attorney General to continue to detain the arrested alien, release the alien on
bond, or release the alien on conditional parole. Id. at§ 1226(a)(1)-(2). The Attorney
General's discretionary judgment regarding the application § 1226 is not subject to review
and "[n]o court may set aside any action or decision by the Attorney General under [§ 1226]
regarding the detention or release of any alien or the grant, revocation, or denial of bond or
parole." Id. at 1226(e). Nonetheless, "Section 1226(e) contains no explicit provision barring
habeas review". Demore v. Kim, 538 U.S. 510, 517 (2003). See a/so, Parra v. Perryman,
172 F.3d 954, 957 (7th Cir. 1999) ("Section 1226(e) likewise deals with challenges to
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operational decisions, rather than to the legislation establishing the framework for those
decisions. The district court therefore had jurisdiction under§ 2241 ... .");Al-Siddiqi v.
Achim, 531 F.3d 490, 494 (7th Cir. 2008) (Section 1226(e) "strips us of our jurisdiction to
review judgments designated as discretionary but does not deprive us of our authority to
review statutory and constitutional challenges. Because this provision contains no explicit
bar to constitutional challenges or habeas review, the Supreme Court has held that habeas
review survives.").
Here, Petitioner argues that his "continued, indefinite detention is guided by the
principles set forth in the Third Circuit's holding in" Diop v. ICE/Homeland Sec., 656 F.3d
221 (3d Cir. 2011 ). (Doc. 1, at 11 ). In Diop, the Third Circuit concluded that§ 1226(c)
"implicitly authorizes detention for a reasonable amount of time, after which the authorities
must make an individualized inquiry into whether detention is still necessary to fulfill the
statute's purposes of ensuring that an alien attends removal proceedings and that his
release will not pose a danger to the community." Diop, 656 F.3d at 231. However, this
Court agrees with Magistrate Judge Carlson's finding that:
Diop is legally and factually distinguishable from the instant case on two
crucial scores. First, Diop, which dealt with mandatory detention of certain
aliens pursuant to 8 U.S.C. §1226(c), proceeds on a different legal footing
than this case, which entails review of a discretionary decision under a
separate provision of the law, §1226(a), to deny bond to an alien who was
convicted of sexually assaulting a child. Second, this case is factually
distinguishable from Diop, in that Diop mandated an individualized bond
consideration for aliens held in mandatory detention for prolonged periods
without any bond hearing whatsoever. In contrast, in this case Okorafor
received an individualized bond hearing, but is simply dissatisfied with the
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outcome of that hearing, which denied him bond due to his conviction for
sexually abusing a child.
(Doc. 10, at 13-14).
Rather, this Court finds Okorafor's situation to be more analogous to the Third
Circuit's decision in Contant v. Holder, 352 F.App'x 692 (3d Cir. 2009). In that case,
Contant was taken into custody by the Department of Homeland Security and ordered
detained without bond. An Immigration Judge subsequently conducted a redetermination
hearing and denied Constant release on bond. On appeal, the BIA affirmed the Immigration
Judge's decision, finding that Contant had failed to demonstrate that he was not a danger to
the community. Contant then filed a habeas petition in the District Court pursuant to 28
U.S.C. § 2241 claiming that his indefinite detention without review was unreasonable and
violated his right to due process. While the habeas petition was pending, an immigration
Judge again found that Contant was a danger to the community, and that there was no
changed circumstance warranting redetermination of bond. The District Court held that the
authority for Contant's detention was § 1226(a) and, differentiating the case from Zadvydas

v. Davis, 533 U.S. 678 (2001) and Demore v. Kim, 538 U.S. 510 (2003), 1 both cases upon
which Okorafor relies on in the present action, denied the habeas petition.

1 The

District Court noted that "unlike the aliens in Zadvydas, petitioner is not under a final order of
removal[; h]e is currently being held pending his removal proceedings" and that "Petitioner is being held
pursuant to a different statute than at issue in Zadvydas [and p]ursuant to 1226(a), he has had a
determination by an independent decision maker that determined him to be a flight risk and a danger to
society", a decision that was affirmed by the BIA. Constant v. Mukasey, 2009 WL 427244, *2 (M.D.Pa.
2009).
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The Third Circuit in Contant affirmed the District Court's denial of the habeas
petition. The Circuit agreed with the District Court that neither Zadvydas nor Kim were
directly applicable in that case. Contant, 352 F.App'x at 694. In so finding, the Circuit
explained:
Unlike the mandatory detention statute at issue in Kim, § 1226(a) provides for
individualized detention determinations. Aliens detained pursuant to § 1226(a)
may be released if they demonstrate they would not pose a danger to
property or persons and they are likely to appear for any future proceedings.
8 C.F.R. § 236.1(c)(8). The alien may request a bond redetermination hearing
before an IJ. 8 C.F.R. § 236.1(d)(1). An IJ may grant an alien's request for
bond redetermination where the alien has shown that his "circumstances
have changed materially since the prior bond redetermination." 8 C.F.R. §
1003.19(e). The alien may appeal the IJ's bond decision to the BIA. 8 C.F.R.
§ 236.1(d)(3). Contant was afforded the review provided by these regulations.
Moreover, like the petitioner in Kim, Contant's unusually lengthy period of
detention pending a decision on his removability is attributable to his own
request for a continuance. See Kim, 538 U.S. at 530, 123 S.Ct. 1708 (noting
that petitioner's detention period of 6 months, which was longer than the
average period of 47 days, was due to his own request for a continuance of
his removal hearing).
In sum, Contant's detention is not "indefinite," as there is no indication that he
could not be removed to Trinidad and Tobago if he is ordered removed, and
the end of his detention is reasonably foreseeable; i.e., at the conclusion of
his removal proceedings.
Id. at 695-696.
Here, just as in Contant, Okorafor is a pre-final order detainee held pursuant to §
1226(a), was afforded a bond hearing, and was able to appeal the Immigration Judge's
determination to the BIA. He was thus afforded the review provided by the applicable
regulations. The Immigration Judge and the BIA both took the relevant factors into
consideration and found that Okorafor failed to demonstrate that he would not pose a
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danger to other persons.2 Similarly, as in Contant, Okorafor is "being detained pending a
decision on whether he is to be removed from the United States", Contant, 352 F.App'x at
694 (internal quotation marks and brackets omitted). As Respondent properly notes, "the
current delay in [Okorafor's] proceedings is to permit his pursuit of judicial relief as to his
removal [and h]is detention is not indefinite and there is no indication that he cannot be
removed to Nigeria should the BIA deny his appeal of the order of removal." (Doc. 7, at 11 ).
Accordingly, upon consideration of Magistrate Judge Carlson's Report and
Recommendation (Doc. 10) for clear error or manifest injustice, the Court will adopt the
Report and Recommendation for the reasons set forth therein as well as for those stated in
this Memorandum, and Petitioner Okorafor's "Emergency Petition for a Writ of Habeas
Corpus" (Doc. 1) will be denied. A separate Order will follow.

2 To

the extent that Okarafor disagrees with the Immigration Judge and BIA's decision with respect
to the denial of his bond, the Court is without jurisdiction to disturb this discretionary finding.
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