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Precedential or Non-Precedential: Non-Precedential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.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/605


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                                                                   NOT PRECEDENTIAL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, 

, 593 (3d Cir. 1995); Hankins

v. Fulcomer, 

, 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, 

(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



                                             -4-
‘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,

, 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 

. 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.




                                             -5-
                                     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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