# Ikharo v. Attorney General of U.S.

> District Court, S.D. Ohio · January 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10374559

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** January 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10374559

## How later opinions describe it (automated extraction)

- finding that the removal of a petitioner challenging her detention pending removal deprived the district court of jurisdiction to consider the habeas petition

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MUSA IKHARO, Case No. 1:19-cv-175
Petitioner,
Dlott, J.
VS. Litkovitz, M.J.
ATTORNEY GENERAL OF REPORT AND
THE UNITED STATES, RECOMMENDATION
Respondent.
Petitioner, a former United States Immigration and Customs Enforcement (ICE) detainee,
has filed a pro se petition and amended petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (See Doc. 1, 8).! Respondent has filed a return of writ in opposition to the petition.
(Doc. 11). Petitioner has filed a response and “Motion Against Immigration Court and ‘BIA’
Corrupt and Unlawful Practices.” (Doc. 15).
For the reasons stated below, the undersigned recommends that petitioner’s motion and
the petition, as amended, be denied.
I. BACKGROUND
As discussed further below, this is not the first habeas corpus petition filed by petitioner
in this Court. In /kharo v. U.S. Attorney General, Case No. 1:18-cv-385 (Black, J.; Bowman,
M.J.) (S.D. Ohio, July 17, 2019) (Doe. 28), the Court provided the following background of
facts:
Petitioner is a native and citizen of Nigeria. (Doc. 17-2, Hinman Decl. at PageID
85). On or about November 3, 1995, petitioner became a lawful permanent resident
of the United States, after an Immigration Judge granted him a suspension of
deportation. On or about December 16, 1994, petitioner was convicted of gross

' The petition was originally filed in the Southern District of New York before being transferred to this Court. (See
Doc. 2), A second petition filed by petitioner was also transferred to this Court from the Southern District of New
York in Case No. 1:19-cv-270. The Court construed the second petition filed in Case No. 1:19-cv-270 as an
amended petition in this action (See Doc. 8) and consolidated the two cases.

sexual imposition of a minor and disseminating harmful matter to a juvenile in
violation Ohio Rev. Code §§ 2907.05 and 2907.31.
On October 18, 2002, a notice to appear was issued, charging petitioner as
removable from the United States pursuant to Immigration and Nationality Act
(INA) §§ 237(a)(2)(A)(ii) and (iii), based on his convictions of a crime involving
moral turpitude and an aggravated felony. (/d. at PageID 86). Petitioner was
ordered removed on July 18, 2007. In issuing its decision the Immigration Judge
found him statutorily ineligible for a waiver of inadmissibility under INA § 212(c).
(Id. at Ex. 4 at PageID 107-08). Petitioner appealed the decision of the Immigration
Judge to the Board of Immigration Appeals (BIA). (/d. at PageID 86). On August
18, 2008 his appeal was denied. On August 2, 2010, his petition for review of the
BIA’s decision was denied by the Sixth Circuit Court of Appeals. Petitioner was
removed to Nigeria on October 26, 2010.
On January 10, 2012, the United States Supreme Court vacated the Sixth Circuit’s
decision. (/d. at PagelD 87). Petitioner’s case was remanded to the Sixth Circuit
for further consideration in light of the Supreme Court’s holding in Judulang vy.
Holder, 565 U.S. 42 (2011), which determined that BIA’s application of INA §
212(c) in the deportation context was arbitrary and capricious under the
Administrative Procedure Act, 5 U.S.C. § 706(2)(A).? (See Hinman Decl., Ex. I at
PageID 138). By Order issued February 16, 2012, the Sixth Circuit remanded the
case to the BIA for reconsideration in light of Judulang. (ld. at PagelD 87). On
June 12, 2014, the BIA remanded the proceedings back to an Immigration Judge
for consideration of a waiver of inadmissibility. Petitioner was returned to the
United States on February 16, 2018 and was detained by ICE during the course of
his removal proceedings.
On May 16, 2018, on remand, the Immigration Court held an individual hearing.
The Immigration Judge again sustained the aggravated felony charge under INA §
237(a)(2)(A)(iii) and denied petitioner a waiver of inadmissibility.? (See id., Ex. K
at PageID 144). Petitioner was ordered removed to Nigeria pursuant to INA §
237(a)(2)(A)(iii).

* In Judulang, the Supreme Court summarized the BIA’s method of applying § 212(c) as follows:
The BIA’s approach, known as the “comparable-grounds” rule, evaluates whether the charged deportation
ground has a close analogue in the statute’s list of exclusion grounds. If the deportation ground consists of
a set of crimes “substantially equivalent” to the set making up an exclusion ground, the alien can seek §
212(c) relief. But if the deportation ground covers different or more or fewer offenses than any exclusion
ground, the alien is ineligible for relief, even if the alien’s particular offense falls within an exclusion
ground.
Judulang, at *477.
3 The charge that petitioner was removable for having committed a crime of moral turpitude was withdrawn. (See
Doc. 17-2, Hinman Decl., Ex. K at PageID 144),

Id. at PageID 281-283, Petitioner subsequently appealed the Immigration Judge’s decision to
the BIA. On November 5, 2018, the BIA affirmed the Immigration Judge’s decision. (Doc. 11-
1, Edmister Decl. at PageID 95). Petitioner filed a motion to reopen with the BIA, which was
denied on April 3, 2019. (/d. at PageID 96).
Petitioner has sought review of the decision in the Sixth Circuit Court of Appeals and
currently has two cases pending in the Sixth Circuit challenging the denial of his waiver of
inadmissibility and his motion to reopen, in which petitioner alleges his attorney provided him
with ineffective assistance of counsel in his immigration proceedings. See Ikharo v. Barr, Case
Nos. 18-4153, 19-3367 (6th Cir. 2019). The Sixth Circuit denied petitioner a stay of removal on
March 22, 2019. (/d.). Petitioner was removed to Nigeria on or about April 23, 2019. (/d.).
II. FEDERAL HABEAS CORPUS PETITIONS
In the instant petition, as amended, petitioner asks this Court to review and vacate the
decisions of the Immigration Judge and BIA. According to petitioner, he was improperly
returned to the United States as a parolee under 8 U.S.C. § 1 182(d)(5)(A), treated as an “arriving
alien,” and detained during his remanded removal proceedings. Petitioner claims that by virtue
of being paroled under § 1182, he was ineligible for relief under INA § 212(c), and the
Immigration Judge and BIA exceeded their authority and rendered void judgments.’ Petitioner
also appears to raise ineffective assistance of counsel claims in the petition and “Motion Against
Immigration Court and ‘BIA’ Corrupt and Unlawful Practices,” which reiterates the claims
raised in the petition. (See Doc. 15). Finally, petitioner seeks an Order from this Court releasing
him from ICE custody. (See Doc. 8 at PageID 52).

‘ Specifically, petitioner argues that because a parolee under § 1182 is not deemed “admitted” into the United States,
he was unable to satisfy INA § 212(c)’s requirement that he be lawfully present in the United States. On this basis,
petitioner argues that “the immigration court and BIA were. . . prohibited from conducting removal proceedings
against him and 212(c) hearing therein.” (Doc. 8 at PageID 58).

As noted above, this is not petitioner’s first habeas corpus petition filed in this Court. In
Case No. 18-385 petitioner also challenged the decisions of the Immigration Judge and BIA,
claimed that his counsel was ineffective in his immigration proceedings, and asked this Court to
vacate his removal order. In a Report and Recommendation issued in that case, the Court
determined that it is without jurisdiction over petitioner’s claims raising the ineffective assistance
of counsel in his immigration proceedings and challenging the decisions of the Immigration
Judge and/or BIA. See /kharo v. U.S. Attorney General, Case No. 1:18-cv-385 (Black, J.;
Bowman, M.J.) (S.D. Ohio, July 17, 2019) (Doc. 28).
The undersigned agrees that this Court does not have jurisdiction over these claims.
Petitioner states that “Case No. 1:19-cv-00175 is a judicial challenge to BIA removal order date
November 5, 2018.” (Doc. 14 at PageID 132). However, 8 U.S.C. § 1252(a)(5) provides that “a
petition for review filed with the appropriate court of appeals in accordance with this section
shall be the sole and exclusive means for judicial review of an order of removal entered or issued
under any provision of this chapter.” Tota-Maharaj v. Holder, 416 F. App’x 558, 559 (6th Cir.
Mar. 25, 2011) (“Congress provides this court with exclusive jurisdiction to review a final order
of removal.”); Krninova v. Holder, No. 2:09-cv-577, 2010 WL 1253972, at *1 (S.D. Ohio Mar.
23, 2010) (“jurisdiction to consider any order of removal is vested exclusively in the appropriate
court of appeals”). The Sixth Circuit Court of Appeals is also the proper avenue for petitioner to
seek relief on his ineffective assistance of counsel claims. See Sswajje v. Ashcroft, 350 F.3d 528,
533 (6th Cir. 2003) (“The proper avenue for raising ineffective assistance of counsel is by filing

5 Section 1252(b)(9) further states “Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove
an alien from the United States under this subchapter shall be available only in judicial review of a final order under
this section.”

a motion to reopen proceedings with the BIA.”).° Because this Court does not have Jurisdiction
over challenges to the rulings of the immigration courts, petitioner is not entitled to federal
habeas relief based on these claims.
Finally, as to petitioner’s remaining request for an order releasing him from ICE custody,
petitioner’s April 23, 2019 removal renders this action moot and deprives the Court of
jurisdiction. Article III, § 2 of the United States Constitution limits the federal judicial power to
the adjudication of cases and controversies. In the context of a habeas corpus petition, a district
court generally lacks jurisdiction over the petition if the petitioner is not in government custody.
Therefore, except in limited circumstances not applicable to the case-at-hand,’ a petitioner’s
release from custody generally moots a habeas petition. See Lane v. Williams, 455 U.S. 624,
631-32 (1982). See also Novikova v. Prendes, Case No. 3:06-cv-0039, 2006 WL 1424255, at *2
(N.D. Texas May 24, 2006) (finding that the removal of a petitioner challenging her detention
pending removal deprived the district court of jurisdiction to consider the habeas petition).
Because petitioner was removed to Nigeria on April 23, 2019 and is no longer in ICE custody,
his challenge to his detention pending removal and request for the Court to release him from ICE
custody are moot.

® As indicated above, petitioner filed a motion to reopen, which was denied by the BIA. Petitioner has appealed the
decision to the Sixth Circuit, which remains pending in Case No. 19-3367.
7 Petitioner has not established nor is the undersigned aware of any basis to find that petitioner will suffer future
collateral consequences as a result of his detention or that the case is “capable of repetition, yet evading review.”
See Spencer v. Kemna, 523 U.S. 1, 7-8, 17-18 (1998). Petitioner cites several cases for the proposition that a bar on
readmission of a removed alien is a collateral consequence that preserves a live controversy even after a petitioner is
deported. (See Doc. 14 at PageID 133). However, these cases involved challenges to final orders of removal and do
not alter the undersigned’s opinion that petitioner’s challenge to his physical custody is rendered moot by his
removal to Nigeria. Furthermore, these cases all predated the enactment of 8 U.S.C. § 1252(a)(5), which provides
that a petition for review filed in the court of appeals is the exclusive means for judicial review of an order of
removal. See, e.g., Meleance v. Bd. of Immigration Appeals, 363 F. App’x 765, 766 (2nd Cir. 2010) (“The REAL
ID Act of 2005, enacted May 11, 2005, amended federal law to provide that ‘[n]otwithstanding any other provision
of law (statutory or nonstatutory), including section 2241 of title 28, United States Code... a petition for review
filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of
removal entered or issued under any provision of this Act[.]’”) (quoting 8 U.S.C. § 1252(a)(5)).

Accordingly, in sum, having found that petitioner is not entitled to federal habeas corpus
relief based on the claims presented in the petition, as amended, the undersigned
RECOMMENDS that the petition for habeas corpus be DENIED. Petitioner’s “Motion Against
Immigration Court and ‘BIA’ Corrupt and Unlawful Practices” (Doc. 15) should also be
DENIED.
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner’s pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and
“Motion Against Immigration Court and ‘BIA’ Corrupt and Unlawful Practices” (Doc. 15) be
DENIED.
2. A certificate of appealability should not issue because petitioner has not stated a “viable
claim of the denial of a constitutional right,” nor are the issues presented “adequate to deserve
encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing
Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R. App.
P. 22(b).
3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in “good faith,” and, therefore, should
DENY petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See
Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

pate:_~/e/20 Zatte
Karen L. Litkovitz
United States Magistrate Judge

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MUSA IKHARO, Case No. 1:19-cv-175
Petitioner,
Dlott, J.
vs. Litkovitz, M.J.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10374559. Public record. Not legal advice.