YVETTE KANE, District Judge.
Before the Court is Petitioner Oleksandr V. Oliynyk ("Oliynyk")'s, motion to enforce (Doc. No. 10), this Court's February 5, 2018 Order (Doc. No. 9), granting his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 insofar as this Court ordered that Oliynik should be afforded an individualized bond hearing before an immigration judge. Respondent has filed a brief in opposition to Oliynik's motion (Doc. No. 12), and Olyinik has filed a reply brief (Doc. No. 14). Accordingly, this matter is ripe for disposition.
Oliynyk, a citizen and native of Ukraine, was admitted to the United States by immigration officials at the Greater Pittsburgh International Airport as a Non-Immigrant student to attend West Virginia University in Morgantown, West Virginia. (Doc. No. 6, Exs. 1, 2.) Between 2006 and 2013, Oliynyk's criminal record included shoplifting, disorderly conduct, driving under the influence of liquor, various traffic offenses, and larceny. (
Oliynyk was taken into ICE custody on May 23, 2017, and charged as being removable pursuant to Sections 237(a)(2)(A)(iii) and 237(a)(1)(C)(i) of the Immigration and Nationality Act ("INA"). (
On November 30, 2017, Oliynyk filed a petition for a writ of habeas corpus seeking an individualized bond hearing before an immigration judge or release from detention. (Doc. No. 1.) Oliynyk contends that his prolonged detention of over six months is unreasonable. (
Accordingly, the Court granted the petition insofar as it Ordered an individualized bond hearing before an immigration judge wherein "the immigration judge must make an individualized inquiry into whether detention is still necessary for purposes of ensuring that Petitioner attends removal proceedings and that his release will not pose a danger to the community," and that "the government bears the burden of demonstrating that Petitioner's continued detention is necessary to fulfill the purposes of the detention statute." (Doc. No. 9.) A bond hearing was held before an immigration judge on February 13, 2018. (Doc. No. 12-1, Ex. 1.) At the hearing, both parties presented evidence relating to whether Oliynyk posed a flight risk or is a danger to the community. (Doc. No 12-1, Ex. 1, 2.) Following consideration of this evidence as well as arguments by both parties, the immigration judge granted bail and released Oliynyk from custody under bond of $90,000.00. (
On February 15, 2018, Oliynyk filed a motion to enforce the Court's February 5, 2018 Order. (Doc. No. 10.) Oliynyk maintains that he was not afforded an individualized hearing and that his bond was excessively high. (
Oliynyk advances the argument that the immigration judge erroneously found that he was a flight risk and danger to the community and ignored evidence what Oliynyk characterizes as evidence to the contrary. (Doc. Nos. 10, 14.) For instance, Oliynyk argues that he submitted almost 250 pages of supporting evidence to the immigration judge prior to his hearing and it would have been impossible for the immigration judge to have considered all of these pages prior to rendering a decision. (Doc. No. 10 at 5.) Oliynyk questions whether the immigration judge considered his evidence of rehabilitation and claims that the immigration judge placed undue attention on his conviction for theft by deception, which resulted in three-and-a-half to seven years' incarceration and an order to pay restitution in the amount of $431,796.36. (
Recently confronted with this narrow issue, the district court in
In
Second, the court concluded that the petitioner failed to exhaust his administrative remedies, providing that it could not consider his request for relief until he had exhausted his administrative remedies by appealing the bond decision to the BIA. (
Moreover, this rule favoring exhaustion of administrative remedies as a predicate to consideration of habeas corpus petitions acknowledges the deference that should be afforded agency decisions and fosters important institutional goals, including: "(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy."
With this precedent in mind, this Court finds that Olyinyk has not exhausted his administrative remedies, as his appeal to the BIA is currently pending, and the Court could therefore deny the motion on this ground. However, in the interest of completeness, the Court will address whether there was compliance with its earlier Order, that is, whether Oliynyk received an independent and adequate bond hearing before the immigration judge he was owed in the first place.
When reviewing a bond determination by an immigration judge following an order referring a case for individualized bond consideration, this Court's review is limited to three essential considerations: (1) whether the decision of the immigration judge paid full fidelity to the law of the case; (2) whether there has been no plain legal error by the immigration judge in identifying and applying the controlling legal precepts; and (3) whether the exercise of discretion in denying bond was so arbitrary that it would offend fundamental tenets of due process.
As to the first consideration described above, having reviewed the audio recording of the bond hearing before the immigration judge (Doc. No. 12, Ex. 2), the Court is satisfied that the hearing was in compliance with the Court's February 5, 2018 Order and was in accordance with the law of the case. (Doc. No. 9.) The immigration judge noted that the bond hearing was being conducted pursuant to this Court's February 5, 2018 Order to determine whether Oliynyk constituted a danger to the community or was a flight risk, and properly articulated the legal standards. (Doc. No. 12, Ex. 2 Track 1.) The immigration judge noted that he had received and reviewed Oliynyk's documentary evidence in advance of the hearing, which included "an argument on flight risk and danger to society as evidence for bond as well as tax documents." (
The immigration judge also reviewed the Government's submissions and arguments that Oliynyk is a flight risk and a danger to the community. (
In considering the documentary evidence and Oliynyk and the Government's arguments, the immigration judge granted bail and released Oliynyk from custody under bond of $90,000.00 with the condition that he not drive unless properly licensed to drive. (Doc. No. 12, Ex. 1.) The immigration judge also noted that he set a significant bond due to his determination that Oliynyk is a flight risk and danger to community. (
In considering the second component, this Court finds no plain legal error in the immigration judge's identification and application of the controlling law. As noted above, the immigration judge correctly articulated that the Government has the burden, by clear and convincing evidence, to show two primary factors: (1) danger to the community and (2) flight risk. (Doc. No. 11, Ex. 2.) Because the immigration judge properly articulated these legal standards, the Court finds no legal error in this case.
Finally, in considering the third factor, the Court does not find that the immigration judge's exercise of discretion over the bond decision was so arbitrary that it would offend fundamental tenets of due process. When reviewing a discretionary bond decision, the degree of arbitrariness necessary to state a constitutional claim is striking and the petitioner "bears the burden of showing that there is no rational basis in the record for the [bond decision]."
In accordance with these standards, the Court concludes that the immigration judge's discretionary bond decision was rational and based upon the evidence before the immigration judge. Accordingly, the Court finds that the immigration judge's conclusions were rational and not arbitrary or without a rational basis.
For the reasons set forth above, Oliynyk's motion to enforce (Doc. No. 10), will be denied and the above-captioned action shall remain closed. An appropriate Order follows.