The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUSTIN ABANUKAM, )
A# xxx-xx9-516, )
)
Petitioner, )
)
vs. ) Case No. 21-cv-545-JPG
)
DAMON ACUFF, Warden of Pulaski )
County Detention Center, )
MERRICK GARRAND, Attorney General, )
ALEJANDRO MAYORKAS, Secretary, )
U.S. Department of Homeland Security, )
MATTEW ALBENCE, Acting Director, )
U.S. ICE, )
and )
ROBERT GUADIAN, U.S. ICE Director, )
Chicago Field Office, )
)
)
Respondents. )
MEMORANDUM AND ORDER
GILBERT, District Judge:
Petitioner Justin Abanukam is currently in the custody of U.S. Immigration and Customs
Enforcement (“ICE”) and is being detained at the Pulaski County Detention Center in Ullin,
Illinois (Doc. 1). He filed his Emergency Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 on June 6, 2021. Among other claims, Abanukam asserts that his prolonged detention of
20 months violates his Fifth Amendment due process rights. (Doc. 1, pp. 2, 12-16). He seeks
immediate release or, in the alternative, an immediate bond hearing at which the government has
the burden to justify his ongoing detention. (Doc. 1, p. 22).
Abanukam makes the following allegations in the Petition: He is a 46-year-old citizen of
Nigeria who has resided in the United States for 11 years. He lawfully entered the U.S. in January
2009 and soon thereafter applied for adjustment of status (Form I-485). (Doc. 1, pp. 5-6). At the
time, he was married to a U.S. Citizen, but they subsequently divorced. He has three young U.S.
Citizen children, and he has a brother who is a naturalized U.S. Citizen. (Doc. 1, p. 5). In January
2012, while Abanukam’s I-485 application was still pending, he applied for VAWA1 status (Form
I-360) based on abuse inflicted on him by his ex-wife and her brothers. His VAWA application
was granted on August 14, 2013. (Doc. 1, pp. 6-7).
Meanwhile, in June 2012, Abanukam was convicted of a family violence Class A
misdemeanor in Texas, resulting in a sentence of 18 months’ probation. Immigration authorities
did not detain him at the time, and Abanukam asserts the offense did not qualify in 2012 as an
“aggravated felony” for deportation purposes under immigration law. (Doc. 1, p. 7).
In September 2018, Abanukam was arrested and charged with rape in Louisville,
Kentucky, where he resided. (Doc. 1 p. 8). Trial was set for October 7, 2019, but the case was
ultimately dismissed on the prosecution’s motion. (Doc. 1-1, pp. 39, 41). Abanukam was taken
into immigration custody on October 17, 2019 and has been in detention ever since. (Doc. 1, p. 9).
Abanukam was placed in removal proceedings. He appeared before Immigration Judges
(“IJ”) in July and November 2020 seeking cancellation of removal. (Doc. 1, p. 9). His VAWA
approval was revoked in December 20202 and the IJ issued a removal order in March 2021.
Abanukam appealed to the Board of Immigration Appeals (“BIA”) where his appeal remains
pending. (Doc. 1, p. 10). He estimates that it will take 6-18 months for the BIA to issue a decision.
(Doc. 1, p. 21). If the BIA affirms the IJ’s removal order, Abanukam will seek review from the
U.S. Court of Appeals, Seventh Circuit, which is likely to take another 1-2 years to resolve. His
immigration detention is thus expected to continue into 2022. Id.
1 Violence Against Women Act.
2 The Petition gives this date as December 2021 which is clearly a typographical error.
Abanukam further argues that he is entitled to relief because his ulcer, major depressive
disorder, and post-COVID-19 symptoms place his health at risk while he remains in custody,
where medical care is inadequate and he is unable to exercise to maintain his health. (Doc. 1, pp.
10-11). He claims the conditions of his confinement amount to punishment and violate his due
process rights (Doc. 1, pp. 11-12, 16-20) and notes that the duration of his immigration detention
has far exceeded the length of his sentence for the domestic violence conviction on which the
removal case is premised. (Doc. 1, p. 19).
This matter is now before the Court for a preliminary review of the Petition. Rule 4 of the
Rules Governing Section 2254 Cases in the United States District Courts provides that, upon
preliminary review of the Petition by the district court judge, “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to notify the petitioner.” Rule 1(b) gives the
Court the authority to apply the Rules to other habeas corpus proceedings, such as this action.
Without commenting on the merits of Abanukam’s claims, the Court concludes that the Petition
survives preliminary review under Rule 4 and a response shall be ordered.
Ordinarily, the only proper Respondent in a habeas petition is the petitioner’s immediate
custodian – in this case, Warden Acuff. See Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004);
Kholyavskiy v. Achim, 443 F.3d 946, 952-53 (7th Cir. 2006). Given the relief sought by Abanukam,
however, the Court deems it appropriate to retain the additional federal government Respondents
as parties to the action, at least at this early stage.
Respondents are ORDERED to answer the Petition or otherwise plead within twenty (20)
days of the date this order is entered (on or before June 30, 2021).3 This preliminary Order to
3 The response date ordered here is controlling. Any date that CM/ECF should generate in the course of this
litigation is a guideline only.
respond does not preclude Respondents from raising any objection or defense they may wish to
present. Service upon Acuff, Warden of the Pulaski County Detention Center, 20 Justice Drive,
Ullin, Illinois, 62992 shall constitute sufficient service on him as the immediate custodian.
IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 4(i), the
CLERK is DIRECTED to send the letter constituting service, Petition, and this Order via
registered or certified mail to Merrick Garland, Attorney General of the United States (in his
official capacity); to Alejandro Mayorkas, Secretary of the United States Department of Homeland
Security (in his official capacity); to Mattew Albence, Acting Director of U.S. Immigration &
Customs Enforcement (or his successor, in his/her official capacity); and to Director of the Chicago
Field Office of Immigrations & Customs Enforcement Robert Guadian (or his successor, in his/her
official capacity).
IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 4(i), the
CLERK is DIRECTED to send a copy of the letter constituting service, the Petition, and this
Order to the United States Attorney for the Southern District of Illinois, and to send a copy of the
letter constituting service, Petition, and this Order via registered or certified mail to the United
States Immigration & Customs Enforcement.
Abanukam is ADVISED of his continuing obligation to keep the Clerk (and Respondents)
informed of any change in his whereabouts during the pendency of this action. This notification
shall be done in writing and not later than seven (7) days after a transfer or other change in address
occurs. Failure to provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).
IT IS SO ORDERED.
DATED: 6/10/2021
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge