United States District Court, E.D. Virginia, Alexandria Division
Ellis, III United States District Judge
a citizen of Sierra Leone who is subject to an
administratively final but judicially stayed removal order,
has been detained in U.S. Immigration and Customs Enforcement
("ICE") custody for over two years without a bond
hearing. In his petition, he challenges his detention without
a bond hearing as a violation of the Due Process Clause of
the Fifth Amendment. Respondents argue that petitioner is
subject to mandatory detention under 8 U.S.C. § 1231 and
argues that his lengthy detention without bond does not
violate Due Process.
have moved for summary judgment, and this motion has been
fully briefed and argued and is now ripe for disposition. For
the reasons that follow, the respondents' motion must be
denied, and petitioner's habeas petition must be granted
in part to require a reasonably prompt bond hearing
consistent with Due Process.
judgment is appropriate only where there are no genuine
disputes of material fact. Rule 56, Fed.R.Civ.P. Accordingly,
the material facts as to which no genuine dispute exists must
first be identified. The following undisputed material facts
are derived from respondents' motion for summary
Petitioner is a citizen of the Republic of Sierra Leone who
entered the United States in October 1999 on a now-expired
B-2 visa authorization.
On December 14, 2015, petitioner was indicted by a grand jury
in the Circuit Court for the City of Alexandria on two
counts: felony possession of a controlled substance and
unlawful possession of marijuana.
On April 5, 2016, the Circuit Court for the City of
Alexandria issued a conviction order finding petitioner
guilty of the first count, felony possession of a controlled
On July 12, 2016, the Circuit Court for the City of
Alexandria sentenced petitioner to a twelve month term of
incarceration that was suspended for all twelve months.
On July 17, 2017, ICE detained petitioner and served him with
a Form 1-862 Notice to Appear, placing him in removal
proceedings under 8 U.S.C. § l227(a)(2)(B)(i) for his
conviction "of a violation of (or a conspiracy or
attempt to violate) any law or regulation of a State, the
United States, or a foreign country relating to a controlled
substance (as defined in section 802 of Title 21), other than
a single offense involving possession for one's own use
of 30 grams or less of marijuana" and under 8 U.S.C.
§ 1227(a)(1) for overstaying his B-2 visa.
On August 16, 2017, petitioner appeared pro se for a
master calendar hearing where he requested and was granted
additional time to obtain counsel.
On September 21, 2017, petitioner appeared pro se at
a master calendar hearing, but with counsel acting as friend
of the court. The Immigration Judge ("IJ")
sustained both charges of removability despite
petitioner's denial of the controlled substance charge.
Friend of the court counsel was granted a continuance to
obtain representation for petitioner and explore relief from
On November 2, 2017, petitioner appeared for a master
calendar hearing with counsel. petitioner's counsel
requested and was granted a continuance for petitioner.
On January 11, 2018, the IJ found that petitioner's
conviction made him removable under 8 U.S.C. §
On January 18, 2018, petitioner appeared with counsel for a
master calendar hearing. Petitioner's counsel requested
and was granted a continuance to explore relief from removal.
On February 22, 2018, the IJ ordered petitioner's
On March 7, 2018, petitioner appealed his removal order to
the Board of Immigration Appeals ("BIA").
On April 4, 2018, the BIA issued a briefing schedule making
briefs for both parties due on April 25, 2018. On April 10,
2018, petitioner requested and was granted an extension of
the briefing deadline to May 16, 2018.
On July 17, 2018, the BIA affirmed the LPs decision.
On August 2, 2018, petitioner filed his petition for review
with the Fourth Circuit, contesting his ...