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Keywords

defendanthearingmotionsummary judgmenthabeas corpusdue processvisajudicial reviewmotion for summary judgment
defendantmotionsummary judgmenthabeas corpusdue processvisajudicial reviewmotion for summary judgment

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Khan v. Byers

Facts

Hanif Khan, a native of Pakistan, came to the U.S. on a student visa in 2015, which was later terminated. He was arrested in 2018 for sexual battery and subsequently detained by ICE, challenging his removal proceedings. Khan has been held in custody since October 23, 2018, and has sought bond hearings, which were denied based on his criminal conviction. His removal order became final in July 2021, but he has been granted a stay of removal by the Fourth Circuit.

Mr. Khan came to the United States on a student visa in August 2015. His student visa was later terminated, but he remained in the United States. See Dkt. 1 at 6; Dkt. 15 at 6. Mr. Khan states that 'he has significant ties to the community, including [previously] stable employment history at an Exxon gas station and regular participation at the Islamic Center of Henrico.' Dkt. 1 at 6.

Issue

Does 8 U.S.C. 1226(a) or 8 U.S.C. 1231 apply to Mr. Khan's detention, and if 1226(a) applies, have the procedural due process requirements under the Fifth Amendment been met?

There are two legal questions at issue here. First, does 8 U.S.C. 1226(a) or 8 U.S.C. 1231 apply to Mr. Khan's detention? Second, if 1226(a) applies, have the procedural due process requirements under the Fifth Amendment to the United States Constitution, and as set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) been met?

Rule

Under 8 U.S.C. 1226(a), the United States may detain a non-citizen pending a decision on removal. The Fifth Amendment requires that due process is afforded, which includes a bond hearing when detention is prolonged.

Under that provision, the United States 'may' detain a non-citizen 'pending a decision on whether [he] is to be removed from the United States.' 8 U.S.C. 1226(a)(1).

Analysis

The court determined that Mr. Khan is subject to detention under 8 U.S.C. 1226(a) because his removal order is stayed pending judicial review. The court applied the three-part framework from Mathews v. Eldridge to assess due process, concluding that Khan's prolonged detention of over three years necessitates a current bond hearing to evaluate the appropriateness of his continued detention.

The Court finds that Mr. Khan is subject to detention under 8 U.S.C. 1226(a). 'A careful review of the applicable INA statutory language makes clear that where, as here, a court stays an administratively final removal order pending judicial review, it is 1226, not 1231, that is applicable.' Bah v. Barr, 409 F. Supp. 3d. 464, 467 (E.D. Va. 2019).

Conclusion

The court granted in part Khan's petition for a writ of habeas corpus, ruling that he is entitled to a current bond hearing. The defendants' motion for summary judgment was denied.

Based on the following analysis, Mr. Khan's Petition for a Writ of Habeas Corpus, Dkt. 1, is GRANTED IN PART and DENIED IN PART. Defendants' Motion for Summary Judgment, Dkt. 14, is DENIED.

Who won?

Hanif Khan prevailed in part because the court recognized his right to a bond hearing due to the prolonged nature of his detention.

Mr. Khan is now 36-years old. ICE detained Mr. Khan on October 23, 2018 and has incarcerated him since then at the Farmville Detention Facility in Farmville, Virginia. Dkt. 1 at 3.

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