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Bah v. Barr

United States District Court, E.D. Virginia, Alexandria Division

September 6, 2019

Hassan Bah, Petitioner,
v.
William P. Barr, et al., Respondents.

          MEMORANDUM OPINION

          T. S. Ellis, III United States District Judge

         Petitioner, 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[1] 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.

         Respondents 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.

         I.

         Summary 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 judgment.[2]

         • 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 substance.

         • 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 removal.

         • 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. § l227(a)(2)(B)(i).

         • 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 removal.

         • 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 ...


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