IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GBEKE MICHAEL AWALA, :

:

Petitioner :

: CIVIL NO. 4:09-CV-2462

:

v. : (Judge McClure)

:

 : 

MARY SABOL :

:

Respondent :

------------------------------------------------------------------------------------------------

GBEKE MICHAEL AWALA, :

:

Petitioner :

: CIVIL NO. 4:10-CV-0638

:

v. : (Judge McClure)

:

UNITED STATES :

ATTORNEY GENERAL, et al., :

:

Respondents :

MEMORANDUM

 June 10, 2010

 Petitioner Gbeke Michael Awala, a detainee of the United States Immigration

and Customs Enforcement (“ICE”) Office, who is confined at the York County Prison

in York, Pennsylvania, has filed multiple petitions for writ of habeas corpus under the

provisions of 28 U.S.C. § 2241 in several courts. The two actions referenced above,

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1

Awala filed additional documents after the petition became ripe raising objections to the

response to the petition and seeking to re-open the Immigration Court’s prior order of removal. (See

Rec. Doc. Nos. 12, 13.) Inasmuch as Awala did not seek leave to supplement the record in this case,

and thus no further filings were permitted after the petition became ripe upon his filing of a reply

brief, we did not consider these additional documents in disposing of the instant petition. 

2

which were initiated by nearly identical petitions, are the remaining actions in this

Court and are disposed of below. 

I. PROCEDURAL BACKGROUND

A. Awala v. Sabol, Civil No. 4:09-CV-2462

Awala filed the petition for writ of habeas corpus in the above action in this

Court on December 17, 2009. Although the petition is not a model of clarity, Awala

appears, at least in part, to be challenging the lawfulness of his detention pending his

removal from the United States to Nigeria, as evidenced by the fact that he filed a

motion to order his immediate release (Rec. Doc. No. 6) after initiating the action. 

Accordingly, by Order dated February 17, 2010, we directed Respondent to answer

the petition within twenty-one (21) days. (See Rec. Doc. No. 7.) On March 10, 2010,

a response (Rec. Doc. No. 9) and supporting exhibits (Rec. Doc. No. 9-2) were filed. 

Awala filed a reply brief on March 16, 2010.1

 (Rec. Doc. No. 10.) Accordingly, the

petition is fully briefed and ripe for review. 

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B. Awala v. Attorney General of the United States, et al., Civil No. 4:09-

CV-2501

On December 18, 2009, one day after Awala’s petition was filed at Civil No.

4:09-CV-2462, a second action filed by Awala was opened in this Court pursuant to a

December 16, 2009 Order entered by the Clerk of Court for the Third Circuit Court of

Appeals. (See Awala v. Attorney General of the United States, et al., Civil No. 4:09-

CV-2501.) In initiating his action in the Third Circuit, Awala did not file an actual

petition for writ of habeas corpus, but filed solely an application to proceed in forma

pauperis in which he stated that he sought a writ of habeas corpus from the Court of

Appeals. (See id., Rec. Doc. No. 1.) However, Awala did file a habeas petition in the

action opened in this Court on December 17. Therefore, by Order dated January 5,

2010, the action that had been transferred from the Third Circuit was consolidated

into the action that had been filed in this Court on December 17. (See Awala v. Sabol,

Civil No. 4:09-CV-2462, Rec. Doc. No. 3.) 

C. Awala v. Immigration Judge, et al., Civil No. 4:10-CV-0498

Awala v. United States Attorney General, et al., Civil No. 4:10-CV0638

 Awala also filed petitions in other courts that were identical or nearly identical 

to the petition that already was pending in this Court at Civil No. 4:09-CV-2462, and

that were transferred to this Court because Awala is confined in this District. The

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first of these actions, Awala v. Immigration Judge, et al., Civil No. 4:10-CV-0498,

was opened in this Court on March 4, 2010 pursuant to a January 27, 2010 Order

entered by the United States District Court for the Middle District of Florida directing

the transfer of the action. Because the petition transferred from the Middle District of

Florida was identical to the petition in the instant action, the Clerk of Court was

directed to close the case. (See Awala v. Immigration Judge, et al., Civil No. 4:10-

CV-0498, Rec. Doc. No. 8.) 

 The second action is one of the remaining actions referenced in the caption 

above. This action was transferred to this Court and opened on March 23, 2010 

pursuant to a March 16, 2010 Order entered by the United States District Court for

the Southern District of New York. (See Awala v. United States Attorney General, et

al., Civil No. 4:10-CV-0638.) Awala initiated his case in the Southern District of

New York by filing a petition nearly identical to the petition that already was pending

in this Court. (See id., Rec. Doc. No. 1.) The petition, which was dated December 30,

2009, and thus was prepared shortly after Awala filed his other remaining petition in

this Court on December 17, is identical to the other remaining petition in its form and

substance, but for the inclusion of additional argument. Because the arguments do

not relate to the lawfulness of Awala’s detention during removal proceedings, but

rather challenge his removal itself, as observed in the Discussion section, infra, they

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are not properly raised through a habeas petition in any event. Accordingly, to the

extent the petition challenges his detention pending removal, in light of our

determination that the other remaining petition should be denied, we will deny the

petition that was transferred here from the Southern District of New York as moot.

II. FACTUAL BACKGROUND

Awala is a native and citizen of Nigeria who originally entered the United 

States on an unknown date and at an unknown place. (See Rec. Doc. No. 9-2 at 3,

Record of Deportable/Inadmissible Alien.) His criminal and arrest records date back

to 1996 when Awala was arrested in Yonkers, New York, for the offense of

Falsified/Altered Records. (See id. at 4.) On October 21, 1997, Awala was convicted

in the United States District Court for the Southern District of New York for the

offense of Conspiracy to Commit Bank, Mail, and Credit Fraud in violation of 18

U.S.C. § 371. (See id.) He was sentenced to a term of imprisonment of eighteen (18)

months. (See id.) 

On November 17, 1997, Awala was convicted in the New York State Superior

Court Westchester County for the offense of Forgery (Second Degree) and Criminal

Possession of a Forged Instrument. (See id.) He was sentenced to a term of

imprisonment of one (1) to three (3) years. (See id.)

On June 16, 1999, ICE issued a Notice to Appear charging Awala with being

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deportable under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act

(INA), 8 U.S.C. § 1227(a)(2)(A)(iii), because he was convicted of an aggravated

felony as defined in section 101(a)(43)(M) and (U), 8 U.S.C. § 1101(a)(43)(M) and

(U). (See Rec. Doc. No. 9-2 at 7-9, Notice to Appear.) On September 20, 1999, an

Immigration Judge entered an order directing that Awala be removed from the United

States. (See id. at 10, Order of the Immigration Judge.) Awala waived his right to

appeal at the time the order of removal was entered. (See id.)

On September 15, 1999, Awala filed an Inmate Request to Staff indicating that

he had decided to withdraw his application for “Torture Convention” and requested

that he be deported as quickly as possible. (See id. at 11, Inmate Request to Staff.) 

Prior to his removal, Awala made a sworn statement on September 24, 1999. (See id.

at 14-16.) In that sworn statement, he stated that he was born in Lagos Nigeria. (See

id. at 15.) Awala was removed from the United States on November 13, 1999. (See

id. at 4, Record of Deportable/Inadmissible Alien.) 

On or about July 18, 2004, Awala illegally re-entered the United States. (See

id.) On August 12, 2004, Awala was encountered by the Delaware River and Bay

Authority Police Department when they initiated a vehicle stop of Awala’s truck. 

(See id.) On August 13, 2004, a detainer was lodged against Awala. (See id. at 17,

Immigration Detainer.) A Notice of Intent to reinstate the prior order of removal

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entered on September 21, 1999 was issued on August 23, 2004. (See id. at 18, Notice

of Intent/Decision to Reinstate Prior Order.) 

On May 15, 2006, Awala was convicted in the United States District Court for

the District of Delaware of Re-entry after Deportation Following a Conviction for an

Aggravated Felony. (See id. at 19, Judgment in a Criminal Case.) He was sentenced

to a term of imprisonment of fifty-one (51) months. (See id. at 20.) 

On November 26, 2008, Awala filed an I-589 Application for Asylum and for

Withholding of Removal. (See id. at 26, Record of Sworn Statement.) On March 10,

2009, a one (1) week emergency travel certificate was issued for Awala to Nigeria. 

(See id. at 25.) 

On May 5, 2009, Awala gave a sworn statement to Allan Boffio, AO, Newark

Asylum Officer. (See id. at 26.) On June 15, 2009, Mr. Boffio determined that

Awala’s testimony was “not credible in material respects” and found Awala had

“failed to establish a reasonable fear of persecution or torture.” (See id. at 32-33,

Reasonable Fear Determination.) On the same date, Awala was served with a Notice

of Referral to Immigration Judge. (See id. at 37, Notice of Referral to IJ.) 

On July 16, 2009, following a review of Awala’s custody status, ICE issued a

Decision to Continue Detention. (See id. at 40, Decision to Continue Detention.) In

the Decision, the ICE Acting Field Office Director explained that continued detention

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8

was warranted based upon Awala’s failure to submit evidence to demonstrate that he

would not pose a flight risk if released from custody; his criminal history; and his

own statement made in front of ICE officers, that demonstrated he would pose a

threat to society if released from custody. (See id.)

On December 10, 2009, and again on January 11, 2010, the Board of

Immigration Appeals (“BIA”) notified Awala that his appeal was rejected because it

was not properly filed each time. (See id. at 41-43.) On January 22, 2010, Awala

filed an interlocutory appeal with the BIA. (See id. at 44, BIA Acknowledgement.) 

 Following a Motion for Continuance filed by Awala’s attorney, Megan Bremer,

Esquire, Awala was served with a Notice of Hearing in Withholding Proceedings,

which rescheduled his merits hearing for February 19, 2010. (See id. at 46, Notice of

Hearing in Withholding Proceedings.) 

On February 8, 2010, Attorney Bremer filed a Motion for Continuance of

Awala’s February 19 hearing in which she indicated that another detainee was willing

to switch his hearing date of April 21, 2010 with Awala’s date. (See id. at 47-50,

Amended Motion for Continuance.) 

 In reviewing the record to prepare to dispose of the instant petition, the Court 

checked the Immigration Court Information System, provided by the Executive Office

for Immigration Review (“EOIR”) for information regarding the outcome of the April

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2

The REAL ID Act of 2005 provides that “a petition for review filed with an

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 the Act. 8 U.S.C. § 1252(a)(5). Accordingly, “the [habeas corpus]

process is no longer available to any alien, criminal or otherwise, seeking to challenge

his or her removal.” Kolkevich v. Attorney General of the United States, 501 F.3d

323, 329 (3d Cir. 2007). 

9

21 hearing. While the System indicated that a proceeding took place in Immigration

Court in Petitioner’s case on April 21, 2010, it did not state what the outcome was. 

Accordingly, by Order dated May 27, we directed Respondent to notify the Court

within fourteen (14) days as to the outcome of that proceeding. (See Rec. Doc. No.

14.) On June 3, 2010, Respondent filed a notice indicating that, on April 21, 2010,

the Immigration Judge denied Awala’s Application for Withholding of Removal

under INA § 241(b)(3) and application for withholding of removal under the

Convention Against Torture. (See Rec. Doc. No. 15.) 

III. DISCUSSION

In his petitions filed at the above-referenced docket numbers, Awala presents

arguments for relief from removal itself. This Court cannot entertain those

arguments.2

 Nevertheless, it appears that Awala recognized this fact inasmuch as he

was pursuing an application for withholding of removal in the Immigration Court at

the same time his petitions were pending in this Court. 

To the extent Awala is challenging his detention pending his removal, his

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10

challenge is properly pursued in this Court. Because Awala previously was ordered

removed from the United States, and therefore is subject to a reinstated order of

removal, his detention is governed by the post-final order removal regulations. (See

Rec. Doc. No. 9-2 at 40, Decision to Continue Detention.) Pursuant to section

241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5), ICE may reinstate a prior order of

removal against an alien who has illegally re-entered the United States. That statute

provides as follows:

If the Attorney General finds that an alien has reentered the United States

illegally after having been removed or having departed voluntarily, under

an order of removal, the prior order of removal is reinstated from its

original date and is not subject to being reopened or reviewed, the alien

is not eligible and may not apply for any relief under this chapter, and the

alien shall be removed under the prior order at any time after reentry.

8 U.S.C. § 1231(a)(5). ICE also has developed a regulation to be applied in this

situation, which recently was summarized by the Third Circuit as follows:

Under the regulation, the immigration officer is required to determine 

whether (1) the alien was subject to a prior order of removal; (2) the

alien is the same person as the one named in the prior order and; (3) the

alien unlawfully reentered the country. 

See Ponta-Garcia v. Attorney General of U.S., 557 F.3d 158, 163 (3d Cir. 2009)

(citing 8 C.F.R. § 241.8(a)(1)-(3)). In Ponta-Garcia, the Third Circuit determined

that an alien’s due process rights were not violated by the provision within 8 C.F.R. 

§ 241.8 allowing for an immigration officer, rather than an immigration judge, to

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reinstate a prior order of removal where the alien had illegally reentered the United

States. See id. In particular, the Court found that the regulation provides “more than

just minimal procedural protections” and that there was “no constitutional concern” in

light of the fact that this regulation only would apply to aliens who already had

received the pre- and post- order protections that accompanied their prior orders of

removal. See id.

In the instant case, Awala met each of the three requirements set forth in 8

C.F.R. § 241.8(a)(1) through (3) that allowed for the reinstatement of his prior order

of removal. First, he was ordered removed from the United States on September 20,

1999. (See Rec. Doc. No. 9-2 at 10, Order of the Immigration Judge.) He

subsequently was removed from the United States on November 13, 1999. (See id. at

4, Record of Deportable/Inadmissible Alien.) 

Second, it is apparent that Awala is the same person who was named in the

prior order of removal inasmuch as, at the time he was encountered by the Delaware

River and Bay Authority Police Department on August 12, 2004, his name and date of

birth were queried in the National Crime Information Center, and it was revealed that

he was a previously deported felon. (See id. at 6.) Furthermore, Awala admitted

during an interview with ICE officials that he previously was deported from the

United States. (See id.) 

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Title 8 U.S.C. § 1231(b)(3)(A) provides, in relevant part, that, “the Attorney

General may not remove an alien to a country if the Attorney General decides that the

alien’s life or freedom would be threatened in that country, because of the alien’s

race, religion, nationality, membership in a particular social group, or political

opinion.” 

12

Third, it is evident from Awala’s own admission that he illegally re-entered the

United States (see id.), as well as his conviction on May 15, 2006 for Re-entry after

Deportation (see id. at 19, Judgment in a Criminal Case), that he unlawfully reentered

the United States. 

In Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006), the United States

Supreme Court observed that, while the language in § 1231(a)(5) “generally

forecloses discretionary relief from the terms of the reinstated order [of removal],” an

alien still may seek withholding of removal under 1231(b)(3)(A)3

. 548 U.S. at 35 &

n.4. In the case at hand, Awala sought withholding from removal. However, his

testimony was found not credible, and the Immigration Court ultimately denied his

petition for withholding on April 21, 2010. (See Rec. Doc. No. 9-2 at 32-33; Rec.

Doc. No. 15.) As of May 28, 2010, Awala had not filed an appeal to the BIA from

the Immigration Court’s decision. (See Rec. Doc. No. 15 at 2.) Accordingly, he may

be removed at any time to Nigeria. 

Moreover, Awala has not demonstrated that his continued detention pending

removal violates due process. He has not shown that there is no significant likelihood

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13

of his removal in the reasonably foreseeable future. To the contrary, Nigeria already

has demonstrated cooperation as shown by its issuance of a travel document for

Awala as recently as March 10, 2009. (See Rec. Doc. No. 9-2 at 25.) Further, Awala

does not present any reason to suggest that ICE will not continue to review his

detention under its post final order custody regulations, and the dismissal of the

instant petition will not prevent Awala from requesting review by ICE if necessary

under those regulations. See 8 C.F.R. § 241 et seq. 

IV. CONCLUSION

For the reasons set forth above, the petition for writ of habeas corpus will be

denied. In light of this disposition, Awala’s “Motion to Order Immediate Release”

(Rec. Doc. No. 6) will be denied as moot. In addition, Awala’s petition that was

transferred here from the Southern District of New York and docketed at Civil No.

4:10-CV-0638 will be denied as moot. An appropriate Order follows.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

Case 4:10-cv-00638-JFM-SF Document 5 Filed 06/10/10 Page 13 of 15
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GBEKE MICHAEL AWALA, :

:

Petitioner :

: CIVIL NO. 4:09-CV-2462

:

v. : (Judge McClure)

:

 : 

MARY SABOL :

:

Respondent :

------------------------------------------------------------------------------------------------

GBEKE MICHAEL AWALA, :

:

Petitioner :

: CIVIL NO. 4:10-CV-0638

:

v. : (Judge McClure)

:

UNITED STATES :

ATTORNEY GENERAL, et al., :

:

Respondents :

ORDER

 June 10, 2010

In accordance with the foregoing Memorandum, IT IS HEREBY ORDERED

AS FOLLOWS:

Case 4:10-cv-00638-JFM-SF Document 5 Filed 06/10/10 Page 14 of 15
1. The petition for writ of habeas corpus filed at Civil No. 4:09-CV-2462 

(Rec. Doc. No. 1) is DENIED.

2. Petitioner’s motion for immediate release filed at Civil No. 4:09-CV2462 (Rec. Doc. No. 6) is DENIED as moot.

3. The petition for writ of habeas corpus filed at Civil No. 4:10-CV-0638 

(Rec. Doc. No. 1) is DENIED as moot.

4. The Clerk of Court is directed to CLOSE the actions filed at Civil No. 

4:09-CV-2462 and Civil No. 4:10-CV-0638.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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