ALD-143 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 21-1448 ___________ IN RE: EUPHREM KIOS DOHOU, Petitioner ____________________________________ On a Petition for Writ of Mandamus from the United States District Court for the Middle District of Pennsylvania (Related to 3:16-cr-00065-001) ____________________________________ Submitted Pursuant to Rule 21, Fed. R. App. P. April 8, 2020 Before: MCKEE, GREENAWAY, JR., and BIBAS, Circuit Judges (Opinion filed: May 21, 2021) _________ OPINION* _________ PER CURIAM Euphrem Kios Dohou filed a pro se petition for a writ of mandamus seeking to compel the United States District Court for the Middle District of Pennsylvania to * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. comply with our decision in United States v. Dohou, 948 F.3d 621 (3d Cir 2020). For the following reasons, we will deny the mandamus petition. In September 2015, an Immigration Judge ordered Dohou removed to Benin based on an aggravated felony conviction. He did not appeal to the Board of Immigration Appeals or file a petition for review in a court of appeals. Dohou repeatedly resisted federal agents’ efforts to take him to the airport for removal. Consequently, a grand jury indicted him for hindering his removal. Dohou moved to dismiss the indictment, arguing that the notice to appear failed to include a date and time for his removal hearing and that the attorney who represented him in the removal hearing provided ineffective assistance of counsel. The District Court denied the motion, holding that, because Dohou had been convicted of an aggravated felony, 8 U.S.C. § 1252(a)(2)(C) deprived it of jurisdiction over his collateral attack on the removal order. Following a bench trial in November 2018, Dohou was found guilty and sentenced to time served. Dohou appealed.1 We held that the District Court had jurisdiction over Dohou’s collateral attack, vacated the District Court’s judgment, and remanded for factfinding on Dohou’s ineffective assistance claim.2 See Dohou, 948 F.3d at 625-29. In particular, we directed the District Court to “find facts and decide whether Dohou’s immigration lawyer 1 While the appeal was pending, Dohou was removed to Benin. 2 We also concluded, however, that Dohou’s challenge to the notice to appear was foreclosed by our decision in Nkomo v. Attorney General, 930 F.3d 129 (3d Cir. 2019). See Dohou, 948 F.3d at 627. 2 provided ineffective assistance, making his removal order (and thus his criminal prosecution based on it) fundamentally unfair. It must also consider whether the statute requires exhaustion, whether prudentially to require exhaustion, and if so whether that violation was clear enough to excuse prudential exhaustion.” Id. at 629. On remand, the District Court ordered the parties to file written submissions “setting forth their respective positions on how this action should proceed ….” (ECF 118.) In response, the Government filed a motion to dismiss the indictment under Federal Rule of Criminal Procedure 48(a), citing as grounds for dismissal Dohou’s removal, “the reasons underlying [his] applicability …
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