1 On March 3, 2003, the U.S. Bureau of Immigration and Customs Enforcement

[“ICE”] was established as part of the Department of Homeland Security. ICE has assumed

some of the functions of the former INS, including enforcement of immigration laws within the

borders of the United States. See Bagot v. Ashcroft, 398 F.3d 252, 255 n.1 (3d Cir. 2005).

2

In preparing this Report and Recommendation I have reviewed the following

documents: Mr. Olowu’s §2241 petition (with exhibits), the Government’s response (with

exhibits), and Petitioner’s “rebuttal” to the Commonwealth’s response (with exhibits).

Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KING ADE OLOWU : CIVIL ACTION

: 

v. :

:

TOM RIDGE, SECRETARY OF THE :

DEPARTMENT OF HOMELAND :

SECURITY, et. al. : NO. 04-5880

REPORT AND RECOMMENDATION

M. FAITH ANGELL

CHIEF UNITED STATES MAGISTRATE JUDGE July 19, 2005

Presently before this Court is a pro se Petition for Writ of Habeas Corpus filed, pursuant

to 28 U.S.C. §2241, by an individual who is in the custody of the Bureau of Immigration and

Customs Enforcement at Berks County Prison in Leesport, Pennsylvania.1 Petitioner seeks

judicial review of alleged due process and equal protection violations by ICE in denying him

release from detention under the “Intensive Supervision Appearance Program.”

BACKGROUND2

Petitioner, King Ade Olowu, is a native and citizen of Nigeria. He entered the United

States in September 1981 as a non-immigrant and adjusted his status to lawful permanent

Case 2:04-cv-05880-EL Document 8 Filed 07/21/05 Page 1 of 11
3 The indictment charged that Petitioner, as accountant for student records, was

responsible for managing federal loans and grants for students. Refund checks issued to some

students at the end of the academic year sometimes lingered in school bank accounts without the

students’ knowledge. Petitioner issued checks for the amounts owed to students whose addresses

were stale, arranged to have accomplices fraudulently endorse the checks and cash them, and

then shared the proceeds with his accomplices. Id.

Page 2 of 11

resident in January 1989. In 1981, Petitioner attended Bethune-Cookman College in Florida. He

graduated and later became an accountant for the college. Government’s Response to Habeas

Petition [Docket Entry No. 5]:Exhibit 1 (January 23, 2004 Memorandum Opinion) at p. 3.

In November 2000, Mr. Olowu was charged in a forty-six count indictment in the United

States District Court for the Middle District of Florida with bank fraud in violation of 18 U.S.C.

§1344. Id.:Exhibit 1 (January 23, 2004 Memorandum Opinion) at pp. 3-4.3

On February 9, 2001, pursuant to a written plea agreement, Petitioner pled guilty to one

count of bank fraud, and the remaining counts were dismissed. On April 30, 2001, Petitioner

was sentenced to 15 months in prison. Id.: Exhibit 1 (January 23, 2004 Memorandum Opinion)

at pp. 5-6.

On June 18, 2001, the INS sent Petitioner a Notice to Appear for removal proceedings. 

The agency charged Petitioner with being subject to removal under §237(a)(2)(A)(iii) of the

Immigration and Nationality Act, and 8 U. S. C. §1227 (a)(2)(A)(iii), on the basis that his bank

fraud conviction was an aggravated felony. Id.: Exhibit 1 (January 23, 2004 Memorandum

Opinion) at p. 6.

Petitioner was released from prison to INS/ICE custody on July 11, 2003. Habeas

Petition [Docket Entry No. 1]: Exhibit “B” (“DACS Custody Summary Inquiry”).

Case 2:04-cv-05880-EL Document 8 Filed 07/21/05 Page 2 of 11
Page 3 of 11

In July 2002, Petitioner was found removable as charged. He filed for asylum,

withholding of removal, and relief under the Convention Against Torture [“CAT”]. On October

24, 2002, the Immigration Judge found Mr. Olowu removable, denied his request for asylum as

untimely, and denied withholding of removal and relief under the CAT. Government’s

Response: Exhibit 1 (January 23, 2004 Memorandum Opinion) at pp. 6-7.

Mr. Olowu appealed to the Board of Immigration Appeal [“BIA”]. On April 3, 2003, the

BIA affirmed, without opinion, the immigration judge’s decision. Id.: Exhibit 1 (January 23,

2004 Memorandum Opinion) at p. 13.

On April 21, 2003, Petitioner filed a §2241 petition in the Middle District of

Pennsylvania. In this habeas petition, he challenged the immigration judge’s decision on thirteen

grounds. Id.: Exhibit 1 (January 23, 2004 Memorandum Opinion) at pp. 1-2.

On May 29, 2003, the District Court (the Honorable William M. Caldwell) granted

Petitioner’s motion for stay of deportation pending resolution of his habeas petition. Exhibits In

Support Of Petitioner’s Rebuttal [Docket Entry No. 7]: Exhibit “B.”

By Memorandum and Order dated January 23, 2004, Judge Caldwell rejected all thirteen

claims of error and denied habeas relief. At that time, the stay of deportation was vacated. 

Government’s Response: Exhibit 1 (January 23, 2004 Memorandum Opinion) at pp. 37-38. 

On February 4, 2004, Mr. Olowu filed a notice of appeal to the Third Circuit. Petitioner

sought, and was granted by Judge Caldwell, a stay of removal pending disposition of his appeal. 

Olowu v. Dept. of Homeland Security, CA #04-1298: Docket Entries at February 12, 2004.

Case 2:04-cv-05880-EL Document 8 Filed 07/21/05 Page 3 of 11
Page 4 of 11

By letter dated June 30, 2004, ICE informed Petitioner that after review of his file, it had

been determined that Petitioner would not be released from custody at that time. The reasons

given were as follows:

“After carefully weighing the factors pertaining to your case, you will not be

released from the custody of the ICE because you are ready for removal from the

United States, except that on February 12, 2004 you received a stay of removal

from the United States District Court, Middle District of PA. Should your case

be dismissed and your stay lifted, you will be removed immediately.”

Habeas Petition [Docket Entry No. 1]: Exhibit “A” (June 30, 2004 letter).

In an April 22, 2005 Opinion, the Third Circuit affirmed the District Court’s denial of

habeas relief. The Circuit found: (1) Mr. Olowu’s conviction was an aggravated felony under 

8 U.S.C. §1101(a)(43)(M)(I) because the relevant “loss”under the statute is based upon the entire

scheme to defraud, which in this case, totaled more than $70,000.00; (2) Petitioner was not

entitled to statutory withholding of removal and relief under the CAT; (3) Petitioner’s claim that

the Immigration Judge’s denial of a continuance deprived him of his right to counsel was

unexhausted; and (4) all of Petitioner’s remaining claims were meritless. Olowu v. Dept. of

Homeland Security, CA #04-1298, slip op. at pp. 3-6 (3d Cir. April 22, 2005).

By Order dated May 24, 2005, the Third Circuit denied Petitioner’s motion for stay of

mandate and for reinstatement of stay. Olowu v. Dept. of Homeland Security, CA #04-1298:

Docket Entries.

On June 3, 2005, Mr. Olowu filed a petition for rehearing en banc. As of the date of this

Report and Recommendation, that motion is currently pending. Id.

On December 14, 2004, Mr. Olowu filed the instant §2241 petition. In this petition, he

contends that he should be permitted to be released from custody under the “Intensive

Supervision Appearance Program,” instituted by ICE on or about June 21, 2004. According to

Case 2:04-cv-05880-EL Document 8 Filed 07/21/05 Page 4 of 11
4 Hereinafter “Petitioner’s Response.” 

Page 5 of 11

Petitioner, he requested release under this program and was summarily denied based on the stay

of removal in effect and his pending litigation in the Third Circuit. Petitioner asserts that he

meets the eligibility requirements for release and has been “disparately treated from other aliens

with Stay Orders that were released.” He “seeks recourse to judicial determination of the

violation of his statutory right and violation of his equal right under the constitution.” Petitioner

argues that his substantive and procedural due process rights, and his equal protection rights,

have been violated. Habeas Petition at pp. 7-11.

The Government has responded to Petitioner’s habeas petition, arguing that he is not

entitled to habeas relief because he has not shown “any error of law or abuse of discretion.” 

Government’s Response at pp. 1-3. According to the Government,

“Regardless of whether Mr. Olowu’s action is viewed as tolling the six clear

months that the government has to obtain his removal under the first prong of

Zadvydas, or whether instead it is viewed as precluding Mr. Olowu from meeting

his burden of proving that his deportation is not reasonably foreseeable under the

second prong of Zadvydas, it is clear that ‘[i]n such circumstances, Petitioner has

no cause to complain’ of his continuing detention. See Pelich, 329 F.3d at 1057.”

Id. at pp. 9-10.

Mr. Olowu has filed a response in opposition to the government’s response. In this

pleading, he argues that he has presented a prima facie case of “invidious discrimination,” and

“the Government has not met its burden of coming forward with evidence that could support a

non-‘clearly erroneous’ finding.” “Petitioner’s Response to Government’s Response In

Opposition To Petition For Writ of Habeas Corpus” [Docket Entry No. 6]4 at pp. 2-9. Petitioner

asserts that he has been in INS/ICE custody since June 29, 2002, the stay of removal was granted

on May 7, 2003, and 

Case 2:04-cv-05880-EL Document 8 Filed 07/21/05 Page 5 of 11
5 Pub.L. No. 109-13, 119 Stat. 231 (amending 8 U.S.C. §1252)(2005).

Page 6 of 11

“the record shows that Petitioner was accorded only one perfunctory review

within the three years on June 30, 2004, devoid of all the detail enumerated

factors in Zadvydas, flagrantly violated its own regulation, ‘8 C.F.R. §241.4 et al.’ 

Petitioner was not afforded the rudimentary elements of due process. Perfunctory

reading of his file and review denied base[d] upon stay and past criminal record

that is disavowed of violence and substantial evidence on record that avow of

Petitioner’s compliance with the law and parole regulations while on unsecured

bond during trial, no disciplinary citation on record while incarcerated or while in

the Bureau custody. Petitioner works in the visiting room in federal prison and

was the librarian while in Bureau custody. Petitioner has an extensive family in

United States and substantial equities. Petitioner is an Accountant, own his own

home and establish a Business entity when he was relieved of his accountancy

portfolio. Petitioner has been deprived of a fundamental fairness to a meaningful

custody review. The Bureau has essentially accorded no review as mandated by

their own regulation and essentially impugn the dictates of Zadvydas.”

Id. at pp. 13-14.

DISCUSSION

A. Jurisdiction Under the REAL ID Act.

On May 11, 2005, Congress enacted the REAL ID Act5, which restructured the

framework for aliens seeking judicial review of orders of removal. See Papageorgiou v.

Gonzales, CA No. 04-3135, 2005 WL 1490454 (3d Cir. June 24, 2005). “Under the new judicial

review regime imposed by the REAL ID Act, a petition for review is now the sole means of

judicial review for all orders of removal except those issued pursuant to 8 U.S.C. § 1225(b)(1).” 

Bonhometre v. Gonzalez, BIA No. A91 436 391, slip op. at p. 5 (3d Cir. July 15, 2005). All

challenges to removal orders are now heard in a single forum - the courts of appeal. Id., slip op.

at p. 6 (3d Cir. July 15, 2005). 

The elimination of §2241 jurisdiction of aliens who are challenging orders of removal

does not extend to challenges to the legality of detention, which may still be brought in a habeas

Case 2:04-cv-05880-EL Document 8 Filed 07/21/05 Page 6 of 11
6 Petitioner states: “Since Petitioner has substantial equities in the country as

owning his home, maintaining his own business venture after having been relieved from his

accountancy job after twelve years of service, and his offense is not a violent crime nor does he

posed [sic] a threat to the community. Petitioner submitted a custody review application to the

District Director, the Supervisor of his facility, and his deportation officer. His application was

summarily denied based on the Stay of Removal in effect and the pending litigation at the Court

of Appeals. [. . . ]” Id.

Page 7 of 11

petition in the district court. Id., slip op. at p. 5 n.4 (3d Cir. July 15, 2005). See Sisay v.

Gonzalez, No.1:05CV0799, 2005 WL 1541085 at *1 (E.D.Cal. June 29, 2005)(nothing in the

REAL ID Act precludes a district court from deciding a challenge brought by an alien to the

legality of his continued confinement pending removal under Zadvydas v. Davis, 533 U.S. 678,

121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)).

Mr. Olowu is not seeking judicial review of an underlying removal order. Rather, he is

challenging the decision to detain him pending removal. This court has jurisdiction over his

habeas claim. 

The scope of habeas review is limited to “constitutional issues and errors of law,

including both statutory interpretations and application of law to undisputed facts or adjudicated

facts, but does not include review of administrative fact findings or the exercise of discretion.” 

Auguste v. Ridge, 395 F.3d 123, 138 (3d Cir. 2005)(citing Bakhtriger v. Elwood, 360 F.3d 414,

425 (3d Cir. 2004)). The proper inquiry in this case is whether the government denied

Petitioner’s constitutional and/or statutory rights by detaining him longer than six months, and

not the sufficiency of evidence supporting the Government’s exercise of its discretion. 

Therefore, to the extent that Petitioner argues that “substantial equities” support his request for

release, the court lacks jurisdiction over that issue. Habeas Petition at p. 8.6

B. Standards of Law.

Case 2:04-cv-05880-EL Document 8 Filed 07/21/05 Page 7 of 11
Page 8 of 11

Detention, release and removal of aliens ordered removed is governed by the provisions

of 8 U.S.C. §1231. 

After an order of removal is issued, the Attorney General shall remove the alien from the

United States within ninety (90) days. 8 U.S.C. §1231(a)(1)(A). During this ninety day removal

period, detention of the alien is mandatory. 8 U.S.C. §1231(a)(2). 

The start of the removal period is the latest of three dates:

(1) “the date the order of removal becomes administratively final.”

(2) “if the removal order is judicially reviewed and if a court orders a stay of the removal

of the alien, the date of the court’s final order.”

(3) “if the alien is detained or confined (except under an immigration process), the date

the alien is released from detention or confinement.”

8 U.S.C. §1231(a)(1)(B). See Derevianko v, Ashcroft, 78 Fed.Appx. 795, 796 n. 2 (3d Cir.

2003)(“Under Section 241(a) of the INA, 8 U.S.C. §1231(a), detention is mandatory for 90 days

following the final order of removal or ‘if the removal order is judicially reviewed and if the

court orders a stay of the removal of the alien, the date of the court’s final order.’”).

 At the conclusion of the removal period, the alien may be released under the Attorney

General’s supervision. 8 U.S.C. §1231(a)(3). Detention of an alien beyond the 90-day period is

permitted where the alien is determined to be an inadmissible alien under 8 U.S.C. §1182, has

violated criminal laws, threatens national security, or is deemed by the Attorney General to be a

“risk to the community or unlikely to comply with the order for removal.” Nma v. Ridge, 286

F.Supp.2d 469, 474 (E.D. Pa. 2003)(citing 8 U.S.C. §1231(a)(6)). See 8 U.S.C. §1231(a)(3).

In Zadvydas v. Davis, the Supreme Court addressed the constitutionality of INS

detention beyond the 90 day removal period. The Supreme Court interpreted 8 U.S.C.

§1231(a)(6) as authorizing continued detention beyond the statutory removal period, but

only as long as “reasonably necessary” to effectuate removal from the country. “Once

Case 2:04-cv-05880-EL Document 8 Filed 07/21/05 Page 8 of 11
Page 9 of 11

removal is no longer reasonably foreseeable, continued detention is no longer

authorized.” The presumptive period during which post-removal order detention is

reasonably necessary to effectuate removal is six months. After that, the alien is eligible

for conditional release if he can demonstrate that there is “no significant likelihood of

removal in the reasonably foreseeable future.” Sanchez v. Attorney General, United

States, CA No. 04-2740, 2005 WL 1634307 at * 1 (3d Cir. July 13, 2005)(quoting

Zadvydas v. Davis, 533 U.S. 678, 689, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)).

C. Analysis.

In the instant case, Mr. Olowu’s removal period began on April 22, 2005, the date

that the Third Circuit affirmed the denial of habeas relief, rejected Petitioner’s challenge

to his order of removal, and lifted the stay of removal. As of the date of this Report and

Recommendation, the ninety day removal period, during which Petitioner’s detention is

mandatory, has not yet expired. As such, Petitioner’s claim for habeas relief is

premature. See Hendricks v. Ridge, No. 3: CV-04-1956, 2005 WL 1500979 at *1 (M.D.

Pa. June 23, 2005)(denying habeas petition without prejudice to file after petitioner’s

removal order became final).

Mr. Olowu’s removal period will end on or about July 22, 2005, therefore, I will

address his claim that he is entitled to release under Zadvydas. Petitioner’s continued

detention for six months beyond July 22, 2005 to effectuate his removal will, under

Zadvydas, be presumptively reasonable. After this six-month period, Petitioner may

continue to be held in confinement, unless he “provides good reason to believe that there

is no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas,

533 U.S. at 701 (2001). 

Case 2:04-cv-05880-EL Document 8 Filed 07/21/05 Page 9 of 11
7 Petitioner cites to Lawson v. Gerkinski, 332 F.Supp.2d 735 (M.D. Pa. 2004), in

support of the challenge to his continued detention. Habeas Petition at pp. 14-15. While

Petitioner is correct in noting that Judge Vanaskie granted habeas relief in the form of Lawson’s

release subject to reasonable conditions of supervision, the Lawson case is not “distinctly

textually similar” to Petitioner’s scenario. Mr. Olowu’s detention has not been prolonged,

consideration of his status after the Zadvydas six month period has not yet occurred, and because

the Third Circuit has rejected Mr. Olowu’s challenge to his final removal order, he cannot be said

to be “continu[ing] to pursue a non-frivolous claim based upon an asserted substantial risk of

harm.” Lawson, 332 F.Supp.2d at 745-46 (M.D. Pa. 2004). Thus, I conclude that Lawson,

which is not binding authority on this court, is distinguishable.

Page 10 of 11

In its response to the habeas petition, the government represents that Mr. Olowu’s

native country of Nigeria has conveyed its willingness to accept him. Government’s

Response at p. 6. At this point, Petitioner’s challenge to his continued detention is neither

ripe, nor has he met his initial burden of establishing that his removal in the reasonably

foreseeable future is unlikely. Thus, Petitioner is not entitled to habeas relief at this time. 

Nothing precludes Mr. Olowu from filing another §2241 habeas petition in the District

Court if, at the conclusion of the six month Zadvydas period, he can establish that his

removal to Nigeria is no longer reasonably foreseeable. See Joseph v. United States, 127

Fed.Appx. 79, 82 (3d Cir. 2005).7 

Case 2:04-cv-05880-EL Document 8 Filed 07/21/05 Page 10 of 11
Page 11 of 11

RECOMMENDATION

For the reasons stated above, it is recommended that the Petition for Writ of

Habeas Corpus, filed pursuant to 28 U.S.C. §2241, be DENIED AND DISMISSED

WITHOUT AN EVIDENTIARY HEARING.

BY THE COURT:

__________________________________________

M. FAITH ANGELL

CHIEF UNITED STATES MAGISTRATE JUDGE

Case 2:04-cv-05880-EL Document 8 Filed 07/21/05 Page 11 of 11