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Hanna v. Lynch

United States District Court, M.D. Georgia, Columbus Division

January 24, 2018

MICHAEL HANNA, Petitioner,
v.
LORETTA LYNCH, et al., Respondents.

         28 U.S.C. § 2241

          ORDER AND REPORT AND RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.

         Presently pending before the Court are Petitioner's application for habeas relief (ECF No. 1) and motion for judgment on the pleadings or evidentiary hearing (ECF No. 14). For the reasons explained below, it is recommended that Petitioner's application for habeas relief be granted and Respondents be given seven days within which to conduct an individualized bond inquiry. Further, it is ordered that Petitioner's motions be dismissed as moot.

         BACKGROUND

         Petitioner is a citizen of the Syrian Arab Republic (“Syria”). Pet. 6, ECF No. 1. He first entered the United States on June 1, 1985, as a non-immigrant visitor. Id. On February 12, 1998, Petitioner became a lawful permanent resident. Id. Since then, he has twice been convicted of crimes in federal court. On July 26, 2004, in the United States District Court for the Southern District of New York, Petitioner pled guilty to trafficking in counterfeit goods in violation of 18 U.S.C. § 2320 and was sentenced to two years probation. Id. at 7. In January 2011, Petitioner was sentenced to five years in prison in the United States District Court for the District of New Jersey after being convicted of conspiring to defraud the United States in violation of 18 U.S.C. § 371. Id.

         On April 13, 2015, the Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”) to Petitioner alleging he was removable under both 8 U.S.C. § 1227(a)(2)(A)(ii) (“Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor . . . [or] the convictions were in a single trial, is deportable”) and 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable”). Pet. 7. On August 15, 2015, he was detained by U.S. Customs and Immigration Enforcement (“ICE”) and has remained in custody at Stewart Detention Center since then. Id. at 8.

         Petitioner's administrative proceedings have been ongoing since his detention began. On October 6, 2015, he appeared before an immigration judge (“IJ”) for a preliminary master calendar hearing. Id. On February 18, 2016, Petitioner appeared for an individual merits hearing where the IJ determined that deferral of removal was the only relief Petitioner was eligible for and granted that relief. Id. DHS appealed the IJ's decision to the Board of Immigration Appeals (“BIA”). Id. The BIA remanded the case to the IJ. Id. Petitioner then appeared for a bond redetermination hearing but his bond motion was denied.[1] Pet. 9. Petitioner appeared for another master calendar hearing on October 12, 2016, and the IJ scheduled a merits hearing for May 7, 2017. Id. at 10. On November 10, 2016, Petitioner appeared for another bond redetermination hearing but his motion was again denied.[2] Pet. 10-11. The IJ issued a written decision granting Petitioner deferral of removal on May 11, 2017. Pet'r's Mot. for J. on the Pleadings 4, ECF No. 14. DHS also appealed that decision to the BIA. Id.

         Meanwhile, Petitioner filed his application for habeas relief on December 2, 2016. He has been detained for twenty-nine consecutive months. His two prior bond hearings were decided on jurisdictional rather than substantive grounds. Petitioner seeks an order directing the immigration court to schedule a bond hearing where his substantive claims would be considered.[3]

         DISCUSSION

         I. Sopo Analysis

         Petitioner asserts that he is entitled to a bond hearing under Sopo v. U.S. Attorney General, 825 F.3d 1199 (11th Cir. 2016). Pet. 17. In Sopo, the Eleventh Circuit construed the mandatory detention provision-8 U.S.C. § 1226(c)-“to contain an implicit temporal limitation” requiring that the government provide “an individualized bond hearing to detained criminal aliens whose removal proceedings have become unreasonably prolonged.” Sopo, 825 F.3d at 1214. The Court “must consult the record and balance the government's interest in continued detention against the criminal alien's liberty interest, always seeking to determine whether the alien's liberty interest has begun to outweigh ‘any justification for using presumptions to detain him without bond.'” Id. at 1218-19 (quoting Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 478 (3d Cir. 2015). A court considers the following factors, inter alia, in balancing these interests: (1) the amount of time the alien has been in civil detention without a bond hearing; (2) the reason(s) for the protracted removal proceedings;

“(3) whether it will be possible to remove the criminal alien after there is a final order of removal; (4) whether the alien's civil immigration detention exceeds the time the alien spent in prison for the crime that rendered him removable; and (5) whether the facility for the civil immigration detention is meaningfully different from a penal institution for criminal detention.”

Id. at 1218.

         Applying the above factors to this case, it is clear that Petitioner is entitled to an individualized bond hearing. Petitioner has been detained for nearly two and a half years. He has not “sought repeated or unnecessary continuances, or filed frivolous claims and appeals.” Sopo 825 F.3d at 1218 (citing Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011). Respondents admit that no aliens have been successfully removed to Syria since 2012, and Petitioner's removal has been deferred by the immigration judge. Resp. to Ct. Order 1, ECF No. 12 (“Due to the state of unrest in Syria, Immigration and Customs Enforcement has not removed any aliens to Syria since 2012.”); Pet'r's ...


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