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Mohamed v. Sessions

United States District Court, D. Minnesota

September 14, 2017

Abdirahman Abdi Mohamed, Petitioner,
v.
Jefferson Sessions, Attorney General; John Kelly, Secretary of Department of Homeland Security; Jason Sieving; U.S. ICE Field Office; and Warden of Immigration Detention Facility Respondents.

          Abdirahman Abdi Mohamed, pro se.

          Ana H. Voss, Esq., and D. Gerald Wilhelm, Esq., United States Attorney's Office, counsel for respondents.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON UNITED STATES MAGISTRATE JUDGE

         Petitioner Abdirahman Abdi Mohamed was previously detained on an order of removal by U.S. Immigration and Customs Enforcement (“ICE”) awaiting deportation to Somalia. After sitting in jail for five months, Mohamed filed a petition for a writ of habeas corpus claiming that there was not a significant likelihood of removal in the reasonably foreseeable future and that, pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001), his continued detention was therefore unlawful. In its initial response, the government argued that Mohamed's removal was “far from impossible, ” but “likely” after the conclusion of Somali elections, and thus that his detention was justified. (Doc. No. 4, Gov't Resp. 11.) Elections in Somalia came and passed, however, with no change in Mohamed's custody status for over three months.

         On May 22, 2017, this Court ordered the government to file a supplemental memorandum providing an update on Mohamed's whereabouts, including whether a travel document had been issued for his departure and whether a definite timeframe had been established for his return to Somalia. (Doc. No. 8.) Three days later, Mohamed was released from ICE custody. (Doc. No. 10, Declaration of Ana H. Voss (“Voss Decl.”) ¶ 3; Doc. No. 10-1, Exhibit to Voss Decl. (“Voss Ex.”).) The following day, the government submitted a memorandum setting forth its position that the habeas corpus petition had become moot on account of their release of Mohamed.

         Mohamed's habeas corpus petition was referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. After review, this Court concludes that habeas corpus relief is no longer available to Mohamed, as he has already been released from detention. Accordingly, it is recommended that this matter be dismissed without prejudice as moot.

         I. Background

         Mohamed is a citizen of Somalia. (Doc. No. 1, Habeas Pet. ¶ 11.) On July 5, 2001, Mohamed was admitted to the United States as a refugee. (Doc. No. 5, Declaration of Robert Tremont (“Tremont Decl.”) ¶ 1; Doc. No. 5-1, Exhibit to Tremont Decl. (“Tremont Ex.”) at 4.) His status was adjusted to that of a lawful permanent resident on October 27, 2008. (Tremont Decl ¶ 2; Tremont Ex. at 4.)

         In 2012, Mohamed pleaded guilty to aggravated robbery in state court and was sentenced to a 58-month term of imprisonment. See State of Minnesota v. Mohamed, No. 55-CR-12-3124 (Minn. Dist. Ct.); Tremont Decl. ¶ 3; Tremont Ex. at 6-11. On account of the conviction, Mohamed was ordered removed from the United States by Immigration Judge Kristin W. Olmanson on April 11, 2014. (Tremont Ex. at 21.) The Board of Immigration Appeals affirmed the order of removal on September 11, 2014. (Tremont Ex. at 24-27.) ICE took Mohamed into custody on August 13, 2015, immediately after he had completed his term of imprisonment with the Minnesota Department of Corrections. (Tremont Decl. ¶ 8.) About three months later, Mohamed was released on the finding that there was no significant likelihood of removal in the reasonably foreseeable future and that he was not a flight risk or a threat to the community. (Tremont Decl. ¶ 9; Habeas Pet. ¶ 6.)[1]

         On March 22, 2016, Mohamed was found to have violated the terms of his supervised release in state court. (Tremont Decl. ¶ 10.) After serving a term of imprisonment for that violation, Mohamed was returned to ICE custody on June 8, 2016 - not on the basis that he had violated the order of supervision imposed when he was first released from ICE custody (which required, among other things, that Mohamed not violate any criminal laws), but on the grounds that there was once again a significant likelihood of removal in the reasonably foreseeable future. (Tremont Decl. ¶ 11; Tremont Ex. at 29.) Travel documents were requested from the Somali embassy a few days later. (Tremont Decl. ¶ 12.) Three months passed without procurement of the necessary travel documents, but ICE elected to keep Mohamed in custody, not only on the finding that there remained a significant likelihood of removal in the reasonably foreseeable future, but also on the new finding, based on the prior criminal proceedings, that Mohamed “appear[ed] to be a threat to the community.” (Tremont Ex. at 30.) Three months later, ICE once again refused to release Mohamed, this time solely on the basis that his removal from the United States was likely in the near future. See Tremont Ex. at 31 (“A travel document from the Government of Somalia is expected, therefore you are to remain in ICE custody at this time.”)

         In the interim, Mohamed filed his habeas petition, alleging that he was entitled to release from custody because the aggregated terms of detention imposed upon him by ICE-that is, the period of detention from August-November 2015, along with the period of detention beginning on June 8, 2016 and continuing through the date the habeas petition was filed-exceeded the 6-month presumptively reasonable period proscribed in Zadvydas. (Habeas Pet. ¶ 17.)[2] In response, the government argued that Mohamed's release was delayed due to the postponement of the Somali elections. (Tremont Decl. ¶ 16.) Mohamed maintained in his reply that this removal was not reasonably foreseeable because his request for travel documents had been pending for over six months with no response from the Somali embassy, and the government's evidence that removal was imminent consisted largely of the say-so of a single ICE officer.

         The long-postponed Somali elections were finally held on February 8, 2017. See Somalia's Mohamed Abdullahi Farmajo Chosen as President, BBC News, http://www.bbc.com/news/world-africa-38904663 (last visited June 5, 2017). Travel documents were not forthcoming, however, because Mohamed remained in ICE custody as of May 22, 2017. That day, this Court ordered the government to provide an update within four days as to Mohamed's status in light of the long-since-passed elections in Somalia. (Doc. No. 8.) One day before this Court's deadline for response, Mohamed was released from ICE custody on an order of supervision. (Voss Ex. at 1-2, 6-8.)

         II. Analysis

         A. Zadvy ...


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