United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.
reasons stated below, the habeas petition is dismissed
without prejudice to petitioner filing a renewed petition for
a writ of habeas corpus if he is not removed by May 2, 2017.
Enoch Oppong, an alien now confined to the Bristol County
House of Correction, seeks a writ of habeas corpus pursuant
to 28 U.S.C. § 2241, directing respondent to release him
from custody. Oppong is a citizen of Ghana. In 2010, he was
arrested at his apartment in Worcester on an accusation of
rape. Because he was found to have entered the United States
under a false name, he was deported from the United States to
Ghana on December 7, 2010. On July 25, 2012, a grand jury
returned an indictment charging Oppong with two counts of
rape and one count of indecent assault and battery over a
person fourteen years old or over. In 2014, while legally
residing in Germany with his daughter and her mother (both
German citizens), he was extradited from Germany to the
United States to face criminal charges. Oppong complains that
he never appeared in a German court, having been extradited
to the United States on February 27, 2014, before a scheduled
court appearance in a German court in March 2014. After the
conclusion of his criminal proceedings, where he was found
not guilty of any crimes, Oppong was transferred to
immigration custody on November 2, 2016.
instant petition, Oppong seeks to challenge his extradition,
detention, and loss of legal status in Germany. Oppong
describes his extradition from Germany to the United States
as “kidnapping” and contends that his presence in
the United States is illegal. He complains that he was
arrested in Germany under false pretenses and brought into
the United States without extradition papers, identification
documents, travel documents or passport. He complains that
before his extradition, his legal residency in Germany was
due for renewal on June 26, 2014. But for his extradition to
the United States, Oppong contends that his legal residency
in Germany would have been renewed on June 26, 2014. Finally,
in an affidavit in support of his petition, Oppong states
that he never sought asylum and that it was a
misunderstanding between him and a border patrol officer.
government opposes and answers the petition. Oppong filed an
opposition to the government's response and also filed
two letters stating that he never asked to be paroled into
the United States and complaining that he has been
incarcerated since 2014 when he was brought to the United
States for prosecution. With Oppong's most recent letter,
he attached a copy of a government “Decision to
Continue Detention” dated January 19, 2017, stating
that if Oppong has not been released or removed from the
United States by May 1, 2017, jurisdiction of the custody
decision in his case with be transferred to the Headquarters
Removal and International Operations Unit (HQRIO) in
Washington D.C. for a final custody determination.
BASIS FOR PETITIONER'S DETENTION
government states that Oppong was temporarily paroled into
the United States to face criminal charges pursuant to 8
U.S.C. § 1182(d)(5)(A) (significant public benefit
parole). Once his criminal trial concluded and the purpose of
parole served, Oppong, pursuant to 8 U.S.C. §
1182(d)(5)(A), was treated in the same manner as that of any
other applicant for admission to the United States. Although
Oppong was paroled into the United States for the purpose of
prosecution, he is treated as an arriving alien. This is the
“entry fiction” under which many non-citizens may
be treated as seeking admission. See Rodriguez v.
Robbins, 804 F.3d 1060, 1082 (9th Cir. 2015), cert.
granted sub nom. Jennings v. Rodriguez, 136 S.Ct. 2489,
195 L.Ed.2d 821 (2016).
Oppong had indicated concern to a Customs and Border
Protection Enforcement Officer about being returned to his
home country, Oppong's case was referred for a credible
fear interview pursuant to 8 U.S.C. § 1225(b)(1)(A)(ii).
On December 14, 2016, an immigration judge affirmed the
negative credible fear finding of the asylum officer and
returned the matter to DHS for removal of Oppong to Ghana.
government argues that Oppong was lawfully detained under 8
U.S.C. § 1225(b)(1)(B)(iii)(IV), requiring the detention
of certain inadmissible arriving aliens who have expressed a
credible fear of persecution upon return to their home
country. The government states that it is promptly seeking
Oppong's removal to Ghana.
“in custody in violation of the Constitution or laws or
treaties of the United States” may challenge their
detention by seeking a writ of habeas corpus. 28 U.S.C.
§ 2241(c)(3). The Fifth Amendment protects all persons
who have entered the United States “from deprivation of
life, liberty, or property without due process of law.”
Mathews v. Diaz, 426 U.S. 67, 77 (1976) (internal
citations omitted). The Due Process Clause applies to all
‘persons' within the United States, including
aliens, “whether their presence here is lawful,
unlawful, temporary, or permanent.” Zadvydas v.
Davis, 533 U.S. 678, 693 (2001) (internal citations
Oppong was paroled into the United States and is detained
under 8 U.S.C. § 1225(b). The government argues, in
footnote 2, that the prolonged detention cases of
Zadvydas and Reid v. Donelan, 819 F.3d 486
(2016), do not apply to Oppong. The government notes that
Oppong has been detained for less than six months.
order for Oppong's detention to be reasonable, like
mandatory detention under § 1226(c) for the
Reid class, it cannot be indeterminate. Although the
First Circuit has yet to decide this issue, several courts
reviewing the detention of aliens under Section 1225(b) have
found that they are entitled to the same due process right
afforded to many other classes of detained aliens. See
Ahad v. Lowe, C.A. No. 16-1864, 2017 WL 66829, at *2
(M.D. Pa. Jan. 6, 2017) (collecting cases). Without deciding
the exact nature of the protections afforded Oppong under the
United States ...