Okonkwo v. INS , 69 F. App'x 57 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
4-29-2003
Okonkwo v. INS
Precedential or Non-Precedential: Non-Precedential
Docket 02-3519
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Recommended Citation
"Okonkwo v. INS" (2003). 2003 Decisions. Paper 605.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-3519
___________
IGNATIUS OKONKWO,
Appellant
v.
IMMIGRATION & NATURALIZATION SERVICE.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court Judge: The Honorable Malcolm Muir
(D.C. Civil No. 00-cv-02057)
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
April 11, 2003
Before: ALITO, FUENTES, Circuit Judges,
and PISANO,* District Judge.
(Opinion Filed: April 29, 2003)
________________________
OPINION OF THE COURT
________________________
*
Honorable Joel A. Pisano, U.S. District Judge for the District of New Jersey,
sitting by designation.
FUENTES, Circuit Judge:
On November 27, 2000, Ignatius Okonkwo filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241 in the Middle D istrict of Pennsylvania. On July 19, 2002, the
District Court denied Okonkwo’s Petition. On appeal, Okonkwo argues that the District
Court erred in denying his Petition because he has been detained by the Immigration and
Naturalization Service (“INS”) for over two years without the required bail review in
violation of due process and INS regulations. We disagree with Okonkwo’s argument and
will, therefore, affirm.
I. Background
Okonkwo is a native and citizen of Nigeria. He arrived in the United States in
November 1995, and at that time was paroled into the country until November 1996. On
March 14, 1995, he was convicted of larceny in the sixth degree in state court in
Connecticut. On June 2, 2000, the INS issued and served a Warrant for Arrest of Alien and
Notice to Appear on Okonkwo, charging him as an arriving alien who is inadmissible.
Okonkwo was taken into INS custody on that date. On August 25, 2000, an Immigration
Judge ordered Okonkwo’s removal to Nigeria on two grounds: 1) he came into the United
States without the proper documentation; and 2) he had been convicted of a crime of moral
turpitude.
On October 20, 2000, Okonkwo’s Connecticut felony conviction was vacated.
Okonkwo repeatedly sought to have his removal proceedings reopened due to the vacation
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of his Connecticut conviction. That request was granted on November 8, 2001, when the
Board of Immigration Appeals remanded his case to the Immigration Judge to consider the
effect of the vacation of his criminal conviction and to determine whether Okonkwo was
eligible for relief from removal.
On November 27, 2000, Okonkwo initiated this action by filing an “Emergency Stay
of Removal” motion, which the District Court construed as a Petition for Writ of Habeas
Corpus. The relief sought by Okonkwo in the Petition was limited to an order preventing the
INS from deporting him until his removal proceedings were reopened. Action on the habeas
corpus petition was stayed pending disposition of a Petition for Review filed in this Court.
After this Court disposed of the Petition for Review, the District Court removed the stay and
held a hearing on July 11, 2002. During the hearing, Okonkwo requested an order requiring
the INS to release him from custody unless he was granted an individualized bail hearing
within thirty days of the order.
On July 19, 2002, the District Court denied the Petition because the emergency stay
of removal request was moot, and Okonkwo had failed to exhaust his administrative
remedies before seeking court review on his unconstitutional detention claim. Okonkwo
appeals the denial of the Petition only on the detention issue.
II. Analysis
The District Court had jurisdiction over this Petition for Writ of Habeas Corpus under
28 U.S.C. § 2241. We have jurisdiction over this appeal from the District Court’s final order
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denying the Petition under 28 U.S.C. §§ 1291, 2253(a). We exercise plenary review over the
District Court’s decision. See Carter v. Vaughn, 62 F.3d 591, 593 (3d Cir. 1995); Hankins
v. Fulcomer, 941 F.2d 246, 249 (3d Cir. 1991).
Okonkwo argues that the District Court erred in denying his Petition given that he was
in INS custody for over two years without having the bail review guaranteed by the due
process clause and INS regulations. Okonkwo bases his argument on this Court’s holding
in Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001), and 8 C.F.R. § 236.1(c)(8). Okonkwo’s
argument is unavailing and his reliance on these authorities is misplaced.
First, 8 C.F.R. § 236.1(c)(8) does not provide for bond review for aliens in
Okonkwo’s situation. Part 236 of the INS regulations addresses the apprehension, custody,
and detention of aliens arrested in the United States. Okonkwo is classified as an arriving
alien because he attempted to enter the United States without valid documents in 1995, and
was then paroled into the country for a period of one year. Part 235 of the INS regulations
addresses arriving aliens. See 8 U.S.C. § 1225; 8 C.F.R. § 235.
Under 8 C.F.R. § 235.3(c):
Except as otherwise provided in this chapter, any arriving alien who
appears to the inspecting officer to be inadmissible, and who is placed
in removal proceedings pursuant to section 240 of the Act shall be
detained in accordance with section 235(b) of the Act. Parole of such
alien shall only be considered in accordance with § 212.5(b) of this
chapter. This paragraph shall also apply to any alien who arrived
before April 1, 1997, and who was placed in exclusion proceedings.
Section 212.5(b) provides for release through parole of aliens “on a case-by case basis for
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‘urgent humanitarian reasons’ or ‘significant public benefit,’ provided the aliens present
neither a security risk nor a risk of absconding . . .” 8 C.F.R. § 212.5(b). According to the
regulation, Okonkwo may be eligible for parole.
The District Court found, however, that at the time of the hearing, Okonkwo had not
exhausted the available administrative remedies in seeking parole. Okonkwo does not
dispute that finding. Because Okonkwo has not exhausted the available administrative
remedies in seeking parole, no relief is available to him in federal court. See Yi v. Maugans,
24 F.3d 500, 503-504 (3d Cir. 1994).
Okonkwo relies on Patel in arguing that his continued detention by the INS violates
his right to substantive due process. In Patel, this Court held unconstitutional the mandatory
detention provision of Section 236(c). 275 F.3d at 314. As we explained above, however,
at the time of Okonkwo’s hearing before the District Court, he was not being detained
pursuant to Section 236(c), and thus that section’s mandatory detention provision was not
applicable. Rather, Okonkwo was being detained as an arriving alien under Section 235, and
was eligible to seek parole, but had not yet done so. Okonkwo’s reliance on Patel is,
therefore, misplaced.
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III. Conclusion
The District Court properly denied Okonkwo’s Petition on the ground that Okonkwo
had not exhausted the administrative remedies available to him. We will, therefore, affirm.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge
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