JOSIAH v. ODDO et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONTE JOSIAH, 	)
)
Petitioner, 	) 	Case No. 3:25-cv-350
)
v. 	) 	Judge Stephanie L. Haines
) 	Magistrate Judge Patricia L. Dodge
LEONARD ODDO, in his official capacity 	)
Warden of Moshannon Valley Processing 	)
Center, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
I. 	Recommendation
It is respectfully recommended that the Petition for a Writ of Habeas Corpus (ECF No. 1)
filed by Donte Josiah (“Petitioner”) pursuant to 28 U.S.C. § 2241, be denied.
II. 	Report
A. 	Background
Petitioner is a citizen of Antigua and Barbuda. He was admitted to the United States on a
tourist visa in 2011, when he was 13 years old. He was authorized to remain for a period not to
exceed January 28, 2012, but remained beyond that period.
On August 2, 2024, the United States Department of Homeland Security (“DHS”) issued a
Notice 	to 	Appear 	to 	Petitioner, 	alleging 	that 	he 	was 	removable 	pursuant 	to 	8 	U.S.C.
§ 1227(a)(1)(B), based on his unauthorized stay in the United States. He was detained pursuant to
8 U.S.C. § 1226(a).
Petitioner requested an adjustment of status and a cancellation of removal. Following a
January 3, 2025, hearing, the Immigration Judge (“IJ”) granted the adjustment of status, changing
Petitioner’s status to Lawful Permanent Resident. The IJ did not reach a decision on the
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cancellation of removal. DHS appealed, and the Board of Immigration Appeals (“BIA”) remanded
the case. On August 29, 2025, the IJ again granted the adjustment of status but denied the
cancellation of removal. DHS again appealed and its appeal is pending.
Petitioner appeared for a bond hearing on March 10, 2025. The IJ denied bond after finding
that Petitioner failed to prove he was not a danger to the community.
Petitioner filed the instant petition on October 10, 2025, in which he challenges the
adequacy of the bond hearing. (ECF No. 1.) At the time of filing, he was detained at the Moshannon
Valley Processing Center.1 Respondents filed an Answer on November 12, 2025. (ECF No. 7.)
Petitioner filed a Reply on November 19, 2025. (ECF No. 8.)
B. 	Legal Standard
The purpose of a writ of habeas corpus is to challenge the legal authority under which an
individual is being held in custody. See, e.g., Keitel v. Mazurkiewicz, 729 F.3d 278, 280 (3d Cir.
2013). The general habeas statute at 28 U.S.C. § 2241 confers jurisdiction on this Court to hear
both statutory and constitutional challenges to Petitioner’s detention. Zadvydas v. Davis, 533 U.S.
678, 687-88 (2001).
A federal habeas court lacks jurisdiction “to review any discretionary determinations
underlying 	the IJ’s 	bond 	decision,” but 	it “may 	review 	whether 	the bond 	hearing 	was
fundamentally unfair.” Ghanem v. Warden Essex County Correctional Facility, Civ. A. No. 21-
1908, 2022 WL 574624, at *2 (3d Cir. Feb. 25, 2022).
1 Petitioner represents that he has since been transferred to the Miami Correctional Facility in
Bunker Hill, Indiana. (ECF No. 8 at 2.)
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C. 	Discussion
Petitioner asserts that his Fifth Amendment right to procedural due process was violated at
the bond hearing by requiring him to bear the burden to prove he was neither a danger to the
community nor a flight risk. He further asserts that the applied burden of proof violates the
Immigration and Nationality Act (“INA”) and that the failure to provide him with a constitutionally
adequate bond hearing violated the Administrative Procedure Act (“APA”). He requests
immediate release from custody or an order requiring a bond hearing at which, inter alia, the
government bears the burden of demonstration that he a danger to the community or a flight risk
by clear and convincing evidence.
Respondents first argue that Petitioner failed to exhaust his administrative remedies by
appealing the decision of the IJ to the BIA. Petitioner asserts that he is not required to do so where
it would be futile. He argues that in this case, the BIA cannot resolve the constitutional issue he
raises. Further, the BIA is bound by precedent that places the relevant burden on the noncitizen.
Petitioner’s argument has a basis in caselaw, see Qatanani v. AG United States, 144 F.4 th 485, 499-
500 (3d Cir. 2025) (holding that the petitioner was not required to exhaust administrative remedies
where BIA lacked jurisdiction to address the due process claim raised); further, exhaustion in this
context is not mandatory, but prudential, and may be excused. Chajchic v. Rowley, Civ. A. No.
1:17-CV-457, 2017 WL 4401895, at *4 (M.D. Pa. July 25, 2017), report and recommendation
adopted, 2017 WL 4387062 (M.D. Pa. Oct. 3, 2017). Accordingly, this Court will address
Petitioner’s claim.
The procedural due process issue Petitioner raises is one that courts across the country are
facing. Courts in this circuit have not yet squarely addressed it. Although Respondents argue that
the United States Court of Appeals for the Third Circuit did so in Borbot v. Warden Hudson Cty.
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Corr. Facility, 906 F.3d 274 (3d Cir. 2018), it did not. In Borbot, the Court noted that, “under
§ 1226(a) the burden remains on the detainee at all times,” id. at 279, but the due process challenge
addressed in that case concerned only the duration of Burbot’s detention. Id. at 276.
Nonetheless, this case is not an appropriate one in which to undertake this complex
constitutional question. As the Third Circuit has explained, in order “to prevail on a procedural
due process challenge, an alien must make an initial showing of substantial prejudice by the alleged
procedural error.” Jacome v. Atty. Gen. United States, 39 F.4 th 111, 125 (3d Cir. 2022). In this
case, there is no reason to conclude that Petitioner could establish prejudice. Petitioner was
convicted in 2019 and 2020 of disorderly conduct; in 2022, he was convicted of possession of an
instrument of crime. In 2024, Petitioner was arrested for charges in New Jersey of aggravated
assault, terroristic threats, false imprisonment, and sexual assault of a minor. These charges were
pending at the time of the hearing, and apparently, are still pending. Based on these serious charges
alone, Petitioner cannot show that a shift in the burden of proof would not have changed the
outcome of the hearing.
D. 	Conclusion
For these reasons, it is respectfully recommended that the petition be denied.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2
of the Local Civil Rules, the parties may, within fourteen (14) days, file objections to this Report
and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637
F.3d 187, 193 n.7 (3d Cir. 2011).
Dated: December 16, 2025 	/s/ Patricia L. Dodge
PATRICIA L. DODGE
UNITED STATES MAGISTRATE JUDGE
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