The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DWIGHT GEORGE MUNDLE,
Petitioner, NO. 1:17-CV-1460
v.
(JUDGE CAPUTO)
CRAIG LOWE, et al.,
Respondents.
MEMORANDUM
Presently before me are a Rule 60(b) Motion for Relief from Judgment/Motion
to Enforce (Doc. 16) and a Supplemental Motion to Enforce Court’s Prior Order (Doc.
23) both filed by Petitioner Dwight George Mundle (“Mr. Mundle” or “Petitioner”).
For the reasons that follow, the motions will be denied.
I. Background
The pertinent factual background, as set forth in my January 29, 2018 opinion
granting in part and denying in part Petitioner’s Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241, is as follows:
Mr. Mundle, a native and citizen of Jamaica, last
entered the United States at New York, New York, on July
13, 2000, as a non-immigrant visitor. Although Mr. Mundle
claimed previous entry to the United States on a student visa
in 1999, immigrations officials could not verify this claim.
He has never been a Lawful Permanent Resident of the
United States.
[Immigration and Customs Enforcement (“ICE”)]
officials encountered Mr. Mundle at FCI-Allenwood while
he was serving a twenty-seven month sentence following a
July 13, 2016 conviction in the United States District Court,
Southern District of New York, for transmitting a threat in
interstate commerce in violation of 18 U.S.C. § 875(c). In
addition to the conviction he was serving, Mr. Mundle had
compiled several other criminal convictions including
conspiracy to distribute and possess with intent to distribute
controlled substances (marijuana) and aiding and abetting
the discharge of a firearm. A 41 month term of
imprisonment was imposed by the United States District
Court, Southern District of New York.
On January 5, 2017, the same day Mr. Mundle was
taken into ICE custody, ICE officials issued a Notice of
Intent to Issue a Final Administrative Removal Order
charging Mr. Mundle as removable from the United States
pursuant to Section 237(a)(2)(A)(iii) of the INA based on his
conviction for an aggravated felony as defined in Section
101(a)(43) of the INA. On January 30, 2017, Mr. Mundle
was served with a Final Administrative Removal Order. In
relevant part, the Order states:
I find that you are not a citizen or national of the United
States and that you are not lawfully admitted for
permanent residence. I further find that you have a final
conviction for an aggravated felony as defined in
section 101(a)(43)(B+U) of the Immigration and
Nationality Act (Act) as amended, 8 U.S.C.
1101(a)(43)(B+U), and are ineligible for any relief
from removal that the Secretary of Homeland Security,
may grant in an exercise of discretion. I further find
that the administrative record established by clear,
convincing, and unequivocal evidence that you are
deportable as an alien convicted of an aggravated felon
pursuant to section 237(a)(2)(A)(iii) of the Act, 8
U.S.C. 1227(a)(2)(A)(iii) . . . I find you deportable as
charged and order that you be removed from the United
States to Jamaica or to any alternative country
prescribed in section 241 of the Act.
On May 16, 2017, noting that Mr. Mundle was “IN
WITHHOLDING-ONLY PROCEEDINGS,” an IJ denied
Petitioner’s application for deferral of removal under the
Convention Against Torture. Petitioner appealed the IJ’s
decision to the Board of Immigration Appeals (BIA). On
October 20, 2017, the BIA dismissed Petitioner’s appeal.
On October 27, 2017, Mr. Mundle filed a Petition for
Review with the United States Court of Appeals for the
Third Circuit and requested a stay of his removal order. The
same day the Third Circuit Court of Appeals granted Mr.
Mundle a temporary stay of removal until the Court could
“consider [Mr. Mundle’s] motion for a stay of removal.” . .
.
(Doc. 14, 2-5 (internal citations and footnotes omitted)).
After being taken into ICE custody, Petitioner filed a § 2241 petition on August
16, 2017. (See Doc. 1, generally). On January 29, 2018, I granted the petition insofar
as Petitioner requested an individualized bond hearing, but the petition was denied to
the extent Petitioner sought immediate release from detention. (See Doc. 14, ¶¶ 1-2).
In so doing, I noted that Petitioner had been convicted of an aggravated felony as
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defined by 8 U.S.C. § 1227(a)(2)(A)(iii), so his pre-final order detention was governed
by 8 U.S.C. § 1226(c). (See Doc. 13, 5). And, finding Petitioner at that time had been
subject to mandatory detention for over a year, I concluded that Petitioner was entitled
to an individualized bond hearing before an Immigration Judge (“IJ”) in accordance
with Diop v. ICE/Homeland Security, 656 F.3d 221, 233 (3d Cir. 2011). (See id. at
7).1
A bond hearing was held before an IJ on February 8, 2018. (See Doc. 18, Ex.
“1”). The IJ denied bond to Petitioner, explaining that “the fact that [Petitioner] has
already exhausted one level of appeals, coupled with his outstanding order of removal,
gives the Court considerable pause regarding Respondent’s willingness to wait out the
Third Circuit’s ruling and appear for any future proceedings.” (Id. at 4).
Petitioner then filed the instant Rule 60(b) motion/motion to enforce. (See Doc.
16, generally). Specifically, Petitioner contends that the IJ applied the incorrect
standard when determining that he was a flight risk. (See id. at 2). As a result,
Petitioner requests that I hold a new bail hearing and thereafter release him under
appropriate conditions of supervision. (See id. at 18).
Respondent opposes the Rule 60(b) motion/motion to enforce, arguing, inter
alia, that the motion should be denied because Petitioner failed to exhaust his
administrative remedies. (See Doc. 18, 3-7). Respondent is of the view that “after a
district court’s order to hold a bond hearing before the immigration judge, the habeas
petitioner may not then shortcut the administrative remedy process by receiving
another bond hearing before the district court. Exhaustion requires the alien to first
appeal the immigration judge’s decision denying bond to the BIA, and then file a new
1 In Diop, the Third Circuit construed § 1226(c) to contain an implicit “reasonable”
time limit on the period for which detention without a bond hearing was
statutorily authorized. See 656 F.3d at 231. The Supreme Court abrogated that
holding in Jennings v. Rodriguez, - - - U.S. - - -, 138 S. Ct. 830, 846-47, 200 L.
Ed. 2d 122 (2018). See Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d
208, 222 n.11 (3d Cir. 2018).
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habeas matter seeking review of the BIA decision, if necessary.” (Id. at 6). Petitioner
filed a reply, disputing that he needed to exhaust his request for review of the IJ’s
bond determination because the hearing “was legally insufficient under the standards
set forth in prevailing case law and under the constitutional due process requirement,”
which rendered the relief granted by the habeas writ “meaningless.” (Doc. 20, 2).
Most recently, Petitioner filed a supplemental motion to enforce my prior order
on December 14, 2018. (See Doc. 23, generally). Therein, Petitioner indicates that
on September 4, 2018, the Third Circuit granted his motion for a stay of removal is
granted. (See id. at 3); see also Mundle v. Att'y Gen. of United States, 17-3360 (3d Cir.
Sept. 4, 2018) (docket sheet, available at https://ecf.ca3.uscourts.gov) (last visited Oct.
18, 2019). In light of the Third Circuit’s order, Petitioner requested a change of
custody status and that bond be reconsidered. (See Doc. 20, 3). The request for
change of custody status was denied on October 25, 2018. (See Doc. 24, Ex. “1”).
Additionally, on December 17, 2018, the Immigration Court again considered
whether Petitioner was entitled to bond. (See Doc. 24, Ex. “2"”). Bond was denied
at that time as well based on the IJ’s finding that danger to the community and flight
risk were established by clear and convincing evidence. (See id.).
II. Discussion
Both of Petitioner’s motions will be denied. The Rule 60(b) motion/motion to
enforce fails for two reasons as explained by this Court in Pierre v. Sabol, No. 11-
2184, 2012 WL 2921794, at *1 (M.D. Pa. July 17, 2012) (Caldwell, J.). First,
Petitioner has not demonstrated extraordinary circumstances as required to obtain
relief under Rule 60(b). See id. Indeed, Petitioner received the relief previously
ordered - a bond hearing. See id. Second, Petitioner is required to appeal that bond
determination to the BIA, and his request cannot be considered until he has done so.
See id. While Respondent argues that Petitioner failed to appeal this determination to
the BIA, (see Doc. 15,6), Petitioner in a subsequent filing claims that he appealed that
bond determination to the BIA, but the appeal was denied. (See Doc. 23, 3).
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Petitioner’s avenue for relief is not by way of Rule 60(b), but instead it is to file
another § 2241 petition seeking review of the decision of the BIA. See Pierre, 2012
WL 2921794, at *2.
Petitioner’s supplemental motion to enforce fails as well. Pursuant to the Third
Circuit’s decision in Leslie v. Attorney Gen. of United States, 678 F.3d 265, 270 (3d
Cir.2012), abrogated in part and on other grounds by Jennings, - - - U.S. - - -, 138 S.
Ct. at 847, Petitioner’s detention is governed by § 1226 since the Third Circuit has
stayed his removal. See Leslie, 678 F.3d at 270 (“§ 1226, not § 1231, governs
detention during a stay of removal.”). Nonetheless, ICE considered Petitioner for a
change of custody on October 25, 2018 on motion of Petitioner, and on December 17,
2018 based on its own internal procedures. Both times, the IJ denied Petitioner bond.
Nothing in the record, however, indicates that Petitioner exhausted the necessary
appeals process for these denials by appealing to the BIA. As such, Petitioner has not
exhausted his administrative remedies with respect to the second and third bond
determinations by the IJ. See, e.g., Saravia v. Green, No. 17-34559, 2017 WL
6513345, at *3 (D.N.J. Dec. 15, 2017) (adverse decision of bond hearing must be
appealed to the BIA); Nepomuceno v. Holder, No. 11-6825, 2012 WL 715266, at *2
(D.N.J. Mar. 5, 2012); see also Matue-Vazquez v. Green, No. 16-9169, at2018 WL
401786, at *2 (D.N.J. Jan. 9, 2018) (“any claim for a bond hearing based on changed
circumstances should not be brought in this Court; rather, it must be brought in the
immigration court, and any adverse decision must be appealed to the BIA.”); Hlali v.
Doll, No. 17-1371, 2017 WL 6508811, at *4 (M.D. Pa. Dec. 20, 2017) (“The record
does not indicate, nor does Hlali state, that he filed an appeal of the bond
redetermination to the BIA. The court thus finds that Hlali failed to exhaust his
available administrative remedies.”).
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III. Conclusion
For the above stated reasons, Petitioner’s motion seeking relief from
judgment/to enforce prior order and supplemental motion to enforce prior order will
be denied.
An appropriate order follows.
October 23, 2019 /s/ A. Richard Caputo
Date A. Richard Caputo
United States District Judge
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