Shonhai v. Lowe

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KUDZAI SHONHAI, :

Petitioner : CIVIL ACTION NO. 3:24-229

v. : (JUDGE MANNION)

CRAIG LOWE, :

Respondent :

MEMORANDUM

Currently before the Court are pro se Petitioner Kudzai Shonhai

(“Shonhai”)’s petition for a writ of habeas corpus under 28 U.S.C. §2241,

motion to supplement the record, and two motions to expedite. For the

reasons stated below, the Court will (1) grant Shonhai’s habeas petition and

order Respondent to provide him with an individualized bond hearing, (2)

grant his motion to supplement the record, and (3) deny his motions to

expedite as moot.

I. BACKGROUND

Shonhai, a native and citizen of Zimbabwe, is an asylee in the United

States. (Doc. 11 at 7, 8, 54.) Shonhai began the process of seeking asylum

by submitting an I-730 Refugee/Asylee Relative Petition, which was

approved on October 12, 2005. (Id. at 9.) On August 7, 2006, when he was

nineteen (19) years old, Shonhai was admitted as an asylee to the United

States at Chicago, Illinois. (Id. at 8, 54.) At no point after his entry to the

United States did Shonhai adjust his status to that of a lawful permanent

resident. (Id. at 8, 9.)

On May 4, 2011, Shonhai, through a negotiated guilty plea, was

convicted of sexual battery of a fifteen (15)-year-old girl (Ind. Code §35-42-

4-8), a class D felony, in the Hendricks County Superior Court in Danville,

Indiana. (Id. at 9, 17, 23–30, 37.) On the same date, the trial court sentenced

Shonhai to one thousand ninety five (1,095) days’ incarceration; however,

he was given twenty (20) days of jail-time credit, and one thousand seventy

five (1,075) days suspended to probation, with the first one hundred sixty

(160) of those days on home detention. (Id. at 17, 18, 37.)

On October 13, 2013, Shonhai was convicted of operating a motor

vehicle while intoxicated (Ind. Code §9-30-5-1), a class C misdemeanor, in

the Marion County Superior Court in Indianapolis, Indiana. (Id. at 9, 38.) The

trial court sentenced Shonhai to one (1) year of incarceration, gave him four

(4) days of jail-time credit, and three hundred sixty one (361) days

suspended to probation. (Id. at 38.)

On March 16, 2021, a grand jury sitting in the United States District

Court for the Southern District of Indiana issued a three (3)-count indictment

charging Shonhai with (1) false claim of United States citizenship (18 U.S.C.

§911), (2) aggravated identity theft (18 U.S.C. §1028A(a)(1)), and (3)

conspiracy to possess identity documentation with intent to defraud (18

U.S.C. §1028(a)(4)(f)). (Id. at 66–68.) Pursuant to a guilty plea agreement,

Shonhai pleaded guilty to falsely claiming United States citizenship and

conspiracy to possess identity documentation with intent to defraud on

August 24, 2022. (Id. at 11, 69–85.) Shonhai was sentenced to an aggregate

sentence of six (6) months’ incarceration on August 29, 2022. (Id. at 8, 9,

11–16.)

Approximately six (6) months after Shonhai’s sentencing, on February

16, 2023, the United States Citizenship and Immigration Services issued a

notice of intent to terminate asylum status to him while he was still

incarcerated at Federal Correctional Complex Allenwood. (Id. at 9.) The

following day, February 17, 2023, United States Immigration and Customs

Enforcement (“ICE”) served a notice to appear on Shonhai. (Id. at 53.) The

notice to appear alleged that Shonhai was removable pursuant to the

following three (3) charges under the Immigration and Nationality Act (“INA”):

(1) conviction for a crime involving moral turpitude committed within five (5)

years after admissions for which a sentence of one (1) year or longer may

be imposed (8 U.S.C. §1227(a)(2)(A)(i)); (2) convictions for two (2) crimes

involving moral turpitude not arising out of a single scheme of criminal

misconduct, occurring any time after admission (8 U.S.C. §1227(a)(2)(A)(ii));

and (3) falsely representing to be a citizen of the United States for any

purpose or benefit under the INA or a federal or state law (8 U.S.C.

§1227(a)(3)(D)). (Id. at 54–7.) These charges arose out of Shonhai’s

convictions for sexual battery and false claim of United States citizenship.

(Id. at 54, 57.) Later, on March 31, 2023, ICE added Shonhai’s conviction for

conspiracy to possess identity documentation with intent to defraud as

another conviction supporting his charges of violating the INA. (Id. at 86–87.)

On March 14, 2023, Shonhai appeared for a hearing before United

States Immigration Judge Kuyomars Golparvar. (Id. at 88–93.) On the same

date, Shonhai, acting through counsel, filed a motion to terminate the

removal proceedings. (Id. at 94–109.) Shonhai later filed an amended motion

to terminate after ICE added his conspiracy conviction to his notice to

appear. (Id. at 121–56.) In the amended motion, Shonhai argued that none

of his convictions qualified as crimes involving moral turpitude and his

conviction for false claim of citizenship did not violate Section 1227(a)(3)(D).

(Id. at 126–33.)

Shonhai appeared with counsel for a removal hearing with Judge

Golparvar on April 4, 2023. (Id. at 157–71.) During the hearing, Shonhai

admitted to the factual allegations in the notice to appear and in ICE’s

additional charge (I-261 form) (id. at 161–63), but he denied the three (3)

charges of removability in the notice (id. at 163). Judge Golparvar

determined that if Shonhai was found removable, Zimbabwe would be the

removal country. (Id. at 165.)

Judge Golparvar issued a written decision on Shonhai’s motion to

terminate, amended motion to terminate, and the charges of removability on

April 17, 2023. (Id. at 172–87.) In this written decision, Judge Golparvar

sustained ICE’s three (3) charges of removability under the applicable

caselaw in the Third and Fourth Circuit Courts of Appeals. (Id. at 174–86.)

Shonhai appeared for another hearing before Judge Golparvar on April

25, 2023. (Id. at 188–92.) During the hearing, Shonhai requested that his

counsel withdraw from the case. (Id. at 189.) Shonhai’s counsel later

withdrew at a hearing held with Judge Golparvar on May 1, 2023. (Id. at 193–

96.) Additionally, Shonhai represented to Judge Golparvar during the May 1,

2023 hearing that he was in the process of obtaining a new attorney from the

CAIR Coalition. (Id. at 195, 198.)

Judge Golparvar adjourned the hearing twice to allow for the resolution

of Shonhai’s legal representation issue. (Id. at 195–203.) At a hearing on

May 16, 2023, Shonhai indicated to Judge Golparvar that the CAIR Coalition

was unable to represent him in the matter. (Id. at 205–06.) Shonhai again

denied the charges in the notice to appear; however, Judge Golparvar

“resustain[ed] these charges based on [ICE’s] documentary evidence and .

. . the applicable case law that [was] cited” in his prior written decision. (Id.

at 207.) Judge Golparvar then provided Shonhai with an I-589 application for

him to seek asylum, withholding removal, and protection under the United

Nations Convention Against Torture (“CAT”), insofar as Shonhai testified that

he believed he would be targeted for violence if he returned to Zimbabwe.

(Id. at 207–08.) Shonhai was also provided with a 209(c) waiver for asylees.

(Id. at 208–09.) Judge Golparvar admonished Shonhai that if he did not

complete the applications, they would be deemed abandoned, and the Judge

would order Shonhai removed. (Id. at 210.)

Shonhai applied for relief through the I-589 application and the 209(c)

waiver on June 8, 2023. (Id. at 213–14.) Judge Golparvar scheduled a merits

hearing for August 10, 2023, and informed Shonhai about what he needed

to do prior to the hearing. (Id. at 214–24.)

On August 10, 2023, Judge Golparvar held a merits hearing, during

which he denied Shonhai’s applications for relief and ordered him removed

to Zimbabwe. (Id. at 236–79.) Judge Golparvar, despite recognizing that it

was a “close call,” denied Shonhai’s application for an adjustment of status

with a 209(c) waiver “as a matter of discretion” because his “two federal

convictions combined with the sexual battery state conviction” were “just too

great, . . . just too significant negative factors to warrant a favorable exercise

of discretion.” (Id. at 229–33.) Judge Golparvar also determined that Shonhai

was ineligible for asylum and explained that even if Shonhai was eligible, his

application would be denied “as a matter of discretion for the same exact

reason” for denying his 209(c) waiver, i.e., his criminal record. (Id. at 233.)

As for Shonhai’s application for protection under the CAT, Judge Golparvar

concluded that Shonhai failed to establish that “it is more likely than not that

he would be tortured by the government or by individuals the government

cannot or will not control” if he returned to Zimbabwe. (Id. at 234.)

Shonhai reserved his right to appeal from Judge Golparvar’s decision.

(Id. at 239, 276). The Board of Immigration Appeals (“BIA”) received

Shonhai’s appeal on August 28, 2023 (id. at 280), and acknowledged it on

August 31, 2023 (id. at 328). The BIA established a briefing schedule on

October 31, 2023, which set a deadline of November 21, 2023, for the filing

of briefs. (Id. at 330–32.)

Shonhai submitted a request for a copy of the transcript from his merits

hearing, which the BIA received on December 19, 2023. (Id. at 333.) On

January 12, 2024, the BIA issued a notice indicating that it would provide

Shonhai with a copy of the transcript, but it would not reset the briefing

schedule insofar as Shonhai previously filed a brief. (Id. at 334–36.) On

January 31, 2024, Shonhai requested that the BIA correct the transcript

because it contained references to portions of the merits hearing that were

indiscernible. (Id. at 338–42.)

On May 31, 2024, the BIA issued a written decision dismissing

Shonhai’s appeal in part and remanding the record for further proceedings.

(Doc. 19-1.) In this decision, the BIA upheld Judge Golparvar’s

“determination that DHS satisfied its burden to establish by clear and

convincing evidence [Shonhai’s] removability under” Section

1227(a)(2)(A)(i)–(ii). (Id. at 5.) As such, the BIA did not address whether

Shonhai was also removable under Section 1227(a)(3)(D). (Id.)

Regarding Shonhai’s applications for relief from removal, the BIA

concluded that Shonhai was “unable to establish his eligibility for asylum and

withholding of removal under the BIA.” (Id.) Additionally, the BIA found that

Shonhai failed to meet his burden for CAT protection. (Id. at 6.) However,

concerning Shonhai’s application for adjustment of status and 209(c) waiver,

the BIA determined that “further fact-finding and analysis” by the Immigration

Judge was necessary. (Id.) Thus, the BIA remanded the case to the

Immigration Judge to allow the judge to “make sufficient findings of fact as

to the conditions of Zimbabwe, make findings as to both the positive and

negative factors presented in this case, and show how, in balancing such

factors, the Immigration Judge reached a determination as to whether a

favorable exercise of discretion is merited or not.” (Id.)1

While Shonhai’s appeal was pending before the BIA, Shonhai filed the

instant pro se Section 2241 petition, which the Clerk of Court docketed on

February 7, 2024. (Doc. 1.) In the petition, Shonhai indicates that he is

currently detained at the Pike County Correctional Facility (“PCCR”), he has

been detained for an overall period of twelve (12) months, and he

“challeng[es his] continued prolonged detention without a bond hearing” in

violation of the Due Process Clause of the Fifth Amendment to the United

States Constitution. (Id. at 1.) For relief, Shonhai requests that the Court

“order[] a bond hearing at which the Government bears the burden of

establishing that [his] continued detention is justified.” (Id.)

The Court issued an Order on February 15, 2024, which, inter alia,

directed Respondent to file a response to Shonhai’s habeas petition. (Doc.

5.) Respondent filed a response in opposition to the petition along with

supporting exhibits on March 7, 2024. (Docs. 10, 11.) Shonhai filed a reply

1 BIA Appellate Immigration Judge Greer issued an opinion concurring

in part and dissenting in part with the majority’s decision, in which he

explained that he was persuaded by Shonhai’s arguments that his sexual

battery conviction did not qualify as a crime involving moral turpitude. (Id. at

8.)

brief to Respondent’s response on March 18, 2024. (Doc. 12.) Shonhai has

since filed a motion to supplement the record with the BIA’s decision (Doc.

19) as well as two motions to expedite these proceedings (Docs. 18, 20).

Respondent has also recently filed a letter in which he, inter alia, informs the

Court that an Immigration Judge denied Shonhai’s requests for relief on

remand, indicates that Shonhai has an appeal pending before the BIA, and

requests a period of thirty (30) days should the Court determine that Shonhai

is entitled to an individualized bond hearing. (Doc. 24 at 1–2.) Shonhai’s

Section 2241 petition and motions are ripe for disposition.

II. LEGAL STANDARD

Section 2241 confers jurisdiction upon the federal district courts to

consider cases challenging the detention of aliens during removal

proceedings. See Demore v. Kim, 538 U.S. 510 (2003); Zadvydas v. Davis,

533 U.S. 678 (2001). Thus, a habeas petition under Section 2241 is the

proper vehicle for an inmate to challenge “the fact or length of confinement,”

Preiser v. Rodriguez, 411 U.S. 475, 494 (1973), or the “execution” of their

confinement. Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241–42 (3d

Cir. 2005). Further, the Court must look to the remedy requested by the

petitioner to determine if they are seeking relief available in a habeas petition.

“When a petitioner seeks immediate release from custody, the ‘sole federal

remedy’ lies in habeas corpus.” Camacho Lopez v. Lowe, 452 F. Supp. 3d

150, 158 (M.D. Pa. 2020) (citing Preiser, 411 U.S. at 500).

III. DISCUSSION

The Court begins with a summary of the INA’s relevant statutory

framework for arresting and detaining aliens already present in the United

States pending their removal. The INA authorizes the Attorney General to

issue a warrant to arrest and detain an alien “pending a decision on whether

the alien is to be removed from the United States.” 8 U.S.C. §1226(a). While

awaiting the removal decision, the Attorney General “may continue to detain

the arrested alien” or “may release the alien” on “bond” or “conditional

parole,” “[e]xcept as provided in [Section 1226(c).]” Id. §1226(a)(1)–(2).

“Section 1226(c) . . . carves out a statutory category of aliens who may not

be released under §1226(a)” if they “fall[] into one of several enumerated

categories involving criminal offenses and terrorist activities.” Jennings v.

Rodriguez, 583 U.S. 281, 289 (2018) (citing 8 U.S.C. §1226(c)). Instead, “the

Attorney General ‘may release’ one of those aliens ‘only if the Attorney

General decides’ both that doing so is necessary for witness-protection

purposes and that the alien will not pose a danger or flight risk.” Id. at 303

(quoting 8 U.S.C. §1226(c)(2)).2 “[T]ogether with §1226(a), §1226(c) makes

2 Subsection (c)(2) was later renumbered as (c)(4).

clear that detention of aliens within its scope must continue ‘pending a

decision on whether the alien is to be removed from the United States.” Id.

(quoting 8 U.S.C. §1226(a)).

With this statutory framework in mind, the Court preliminarily notes that

although the parties disagree about various issues in this case, they appear

to agree about the applicable caselaw for this Court to apply when resolving

Shonhai’s habeas petition. In this regard, they appear to agree that Shonhai

is raising, and can raise, an as-applied constitutional challenge to his

continued detention under 8 U.S.C. §1226(c) pursuant to the Third Circuit

Court of Appeals’ decision in German Santos v. Warden Pike County

Correctional Facility, 965 F.3d 203 (3d Cir. 2020). See (Docs. 1 at 7–8; 10 at

15–16, 24). They also appear to agree that the Due Process Clause of the

Fifth Amendment requires a hearing if Shonhai’s continued detention has

“become[] unreasonable.” German Santos, 965 F.3d at 210; see (Docs. 1 at

6; 10 at 11). Finally, they appear to agree that in assessing the

reasonableness of Shonhai’s continued detention, this Court should apply

the “nonexhaustive list of four factors” identified in German Santos. 965 F.3d

at 210–11. See (Docs. 1 at 7; 10 at 24). Therefore, the Court will now analyze

the German Santos factors to determine whether Shonhai’s continued

detention has become unreasonable for due process purposes. In doing so,

the Court recognizes that “[r]easonableness is a highly fact-specific inquiry.”

German Santos, 965 F.3d at 210 (citation and internal quotation marks

omitted).

The “nonexhaustive list of four factors” for consideration are: (1) “the

duration of detention”; (2) “whether the detention is likely to continue”; (3)

“the reasons for the delay”; and (4) “whether the alien’s conditions of

confinement are meaningfully different from criminal punishment.” German

Santos, 965 F.3d at 211 (citation, internal quotation marks, and alteration

omitted). As explained below, after considering these factors, the Court

concludes that Shonhai’s continued detention has become unreasonable,

and he is entitled to a “bond hearing to gauge whether he still needs to be

detained to keep him from fleeing or committing more crimes.” Id. at 213.

A. The Duration of Detention

Respondent points out in his opposition brief that Shonhai had been

detained for approximately twelve-and-a-half (12 ½) months at the time he

filed the brief on March 7, 2024. (Doc. 10 at 25.) Respondent argues that the

Court should not “simply total[] the months that Shonhai has been detained”;

instead, the Court “should consider the reasons for the length of detention.”

(Id. at 26.) Respondent contends that the reasons for Shonhai’s continued

detention include the process he is receiving as he litigates his removal

proceedings, which has been proceeding at a “reasonable pace.” (Id. at 21–

22 (quoting Crooks v. Lowe, No. 18-cv-47, 2018 WL 6649945, at *2 (M.D.

Pa. Dec. 19, 2018))). Respondent also asserts that even if the Court would

focus on the total length of Shonhai’s detention, several Judges in this

District have found that the length of Shonhai’s detention or even lengthier

periods of detention do not warrant an individualized bond hearing. (Id. at

26–27.)

The problem with Respondent’s argument, through no fault of his own,

is that Shonhai’s length of detention is considerably longer now than it was

when he filed his petition in this case. If the Court uses Respondent’s

representation that Shonhai had been detained for approximately twelve-

and-a-half (12½) months at the time Respondent filed his brief on March 7,

2024, to calculate the time Shonhai has spent detained to date, it appears

that Shonhai has been detained for approximately two (2) years without an

individualized bond hearing. As far as this Court is aware, no Judge in this

District has determined that such a length of time in detention was

reasonable. See, e.g., Elyardo v. Lechleitner, No. 23-cv-1089, 2023 WL

8259252, at *2–3 (M.D. Pa. Nov. 29, 2023) (finding that approximately

nineteen (19) months in detention was unreasonable); Vega v. Doll, No. 17-

cv-1440, 2018 WL 3756755, at *5 (M.D. Pa. Aug. 8, 2018) (determining that

twenty-one (21) months in detention was unreasonable).

Even though there is no “bright-line threshold” for a term of detention

to definitively weigh in favor of a petitioner-alien, Shonhai’s approximately

two (2) years in detention is approaching the two-and-a-half (2½)-year period

that the Third Circuit determined “weigh[ed] strongly” in the petitioner’s favor

in German Santos. 965 F.3d at 212. Accordingly, the Court finds that

Shonhai’s length of detention, which is “[t]he most important factor,” weighs

strongly in his favor. Id. at 210.

B. The Likelihood of Continued Detention

Shonhai argues that his detention is likely to continue insofar as there

is a possibility that the BIA will remand his case to the immigration judge,

and even if the BIA denied his appeal, he would petition for a review of his

removal order with the appropriate circuit court of appeals. (Doc. 1 at 10.) As

such, he contends that this factor weighs in his favor. (Id. at 10–11.) On the

other hand, Respondent asserts that this factor should be neutral because it

“relies on unhelpful hypothesizing of future events, and improperly requires

litigants to argue to this Court the merits of their position at the administrative

level.” (Doc. 10 at 28.)

The Court agrees with Respondent insofar as he asserts that

consideration of this second factor requires hypothesizing. It is impossible

for anyone to predict how much longer Shonhai could remain detained.

Nevertheless, the Court must attempt to do so here.

As to Shonhai’s removal proceedings, Respondent represents that

Shonhai currently has a pending appeal with the BIA from the Immigration

Judge’s denial of relief on remand. (Doc. 24.) Although Shonhai’s avenues

for relief appear to be limited at this stage, his BIA appeal remains pending,

and Shonhai has indicated that he will pursue a petition for review with the

appropriate court of appeals if his BIA appeal is unsuccessful. Therefore,

“there is no end in sight” to Shonhai’s removal proceedings. German Santos,

965 F.3d at 213. Accordingly, this second factor also weighs in favor of

Shonhai.

C. Reasons for the Delay

Shonhai contends that this factor should weigh in his favor because he

has not unreasonably delayed his removal proceedings; rather, he has

“consistently contested the removal charges and diligently pursued relief.”

(Doc. 1 at 11.) To the extent that there has been any unnecessary delay,

Shonhai argues that it was the result of the Government’s carelessness

when his detention location changed from the Clinton County Correctional

Facility to PCCF in October 2023. (Id. at 12.) Shonhai indicates that the BIA

seemingly did not get notice of his address change, despite Shonhai being

told that it would, which resulted in the transcript he requested being sent to

the wrong facility. (Id.) Additionally, he did not timely receive a copy of a

motion for summary affirmance that the Government filed with the BIA even

though the Government filed a certificate of service with the motion

representing that he was served. (Id. at 12–13.)

Respondent argues that the Government has not intentionally delayed

or unreasonably prolonged Shonhai’s removal proceedings, and those

proceedings “have moved forward at the normal rate for aliens who contest

removability and apply for relief.” (Doc. 10 at 23–24.) Respondent also

maintains that “[i]f there was a delay in the proceedings, it [was] attributable

to Shonhai’s decision to change counsel on two occasions,” which required

Judge Golparvar to continue the proceedings to allow for the resolution of

Shonhai’s legal representation issue. (Id. at 24.)

After considering the parties’ arguments, the Court finds that this third

factor is neutral. There does not appear to be any unreasonable delay in the

case due to actions by either party. Even though Shonhai changed counsel

twice, and there was a delay while the CAIR Coalition investigated whether

it would assign an attorney to Shonhai’s case, the removal proceedings

largely moved forward during this period. Thus, any delays relating to

Shonhai’s decision to change counsel were relatively minor.

The Court also does not find that the Government was responsible for

delays. While Shonhai accuses the Government of acting carelessly and in

bad faith relating to providing (or not timely providing) certain documents to

him, there is no indication that these acts caused his removal proceedings

to be delayed in any respect. (Doc. 1 at 12–13.) Contrary to Shonhai’s

arguments, this third factor is focused on a delay in his removal proceedings

and not on conduct that he believes prejudiced him relating to the merits of

his case while it was on appeal with the BIA. Accordingly, the Court finds the

third factor to be neutral.

D. Conditions of Confinement

Respondent concedes that this factor weighs in favor of Shonhai in

large part because the Third Circuit has already determined that “the

conditions at PCCF were punitive as to immigration detainees.” (Doc. 10 at

29 (citing German Santos, 965 F.3d at 213)).3 As such, this Court finds that

this factor weighs in favor of Shonhai.

3 Respondent notes that out of Shonhai’s overall period of detention,

only five (5) of those months had been at PCCF. (Doc. 10 at 11.) While

seemingly true at the time Respondent filed his brief, Shonhai has now been

detained at PCCF for approximately seventeen (17) months.

E. Whether Shonhai’s Detention Under Section 1226(c) Has

Become Unreasonable

After considering the aforementioned factors, the Court concludes that

Shonhai’s detention has become unreasonable due to him spending

approximately two (2) years in detention, the likelihood that he will continue

to be detained for the foreseeable future, and the conditions of his

confinement at PCCF. Therefore, Shonhai’s continued detention without an

individualized bond hearing violates his right to due process. Accordingly,

the Court will grant Shonhai’s Section 2241 petition and direct Respondent

to provide him with an individualized bond hearing within twenty-one (21)

days,4 at which the Government shall bear the burden of proof to justify his

continued detention by clear and convincing evidence. See German Santos,

965 F.3d at 213–14 (establishing Government’s burden of proof at bond

hearing).

IV. CONCLUSION

For the foregoing reasons, the Court will grant Shonhai’s Section 2241

petition and order Respondent to provide Shonhai with an individualized

4 Although Respondent requested a period of thirty (30) days to

arrange for an individualized bond hearing in his recent letter (Doc. 24 at 2),

considering the length of Shonhai’s detainment so far, the Court concludes

that a period of twenty-one (21) days allows Respondent sufficient time to

schedule Shonhai’s hearing.

bond hearing within twenty-one (21) days. The Court will also grant

Shonhai’s motion to supplement the record with the BIA’s May 31, 2024

decision and deny his motions to expedite as moot.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: February 14, 2025

24-229-01