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Davies v. Tritten

United States District Court, D. Minnesota

September 25, 2017

Mark Lawrence Davies, Petitioner,
v.
Leslie D. Tritten, Field Office Director SPM; Christopher Wray, Director of the FBI; Elaine Duke, Acting Secretary of U.S. Department of Homeland Security; and Jeff. B. Sessions, United States Attorney General, Respondents.

          Marcus A. Jarvis, Marcus-Jarvis Law Limited, for Petitioner.

          Ana H. Voss, United States Attorney's Office, for Respondents.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This matter is before the Court on Petitioner Mark Lawrence Davies's Petition for Writ of Habeas Corpus [Doc. No. 1] (“Habeas Pet.”) and Motion seeking declaratory and injunctive relief [Doc. No. 4] (“Motion for Preliminary Injunction”). For the reasons stated below, Petitioner's Motion for Preliminary Injunction is denied and his Habeas Petition is dismissed without prejudice.

         II. BACKGROUND

         Petitioner is a citizen and national of Liberia who entered the United States in 2006, as a derivative to his mother's Diversity Visa. (Ligon Decl., Ex. 1 [Doc. No. 15-1], at 4; Habeas Pet., at 4.) Petitioner subsequently adjusted his status to lawful permanent resident. (Habeas Pet., at 3; Resp. to Pet. for Writ of Habeas Corpus [Doc. No. 14] (“Resp.”), at 2.)

         On April 5, 2016, Petitioner pleaded guilty to one count of domestic violence assault under North Dakota law. (Ligon Decl., Ex. 1, at 15.) A North Dakota District Court sentenced him to time-served and probation, and placed him under a no-contact order. (Id. at 10, 17.) On April 13, 2016, Petitioner pleaded guilty to violating the no-contact order. (Id. at 17.) Again he was sentenced to time-served and probation. (Id.)

         On the basis of these crimes, the Government began removal proceedings in January, 2017. Petitioner has been detained pending removal proceedings since January 20, 2017. (Id. at 5-8.) Initially, bond was set at $10, 000, and Petitioner moved for a bond redetermination. (Id. at 35.) The immigration judge denied the motion, finding that Petitioner was detainable under 8 U.S.C. § 1226(a), which provides for nonmandatory detention during removal proceedings. (Id.) The judge revoked the $10, 000 bond. (Id.) Petitioner did not appeal that determination.

         Several months later, Petitioner obtained new counsel and again moved for bond redetermination. (Id.) On August 9, 2017, an immigration judge determined that Petitioner was subject to mandatory detention under 8 U.S.C. § 1226(c), because of two convictions involving controlled substances on his record. (Id. at 34-36.) The judge held that Petitioner was ineligible for bond under 8 U.S.C. § 1226(c). (Id.) Petitioner appealed to the Board of Immigration Appeals, and that appeal is pending. (Habeas Pet., at 6.)

         Meanwhile, Petitioner underwent removal proceedings. On April 12, 2017, an immigration judge ordered him removed to Liberia. (Ligon Decl., Ex. 1, at 19.) Petitioner filed an appeal to the Board of Immigration Appeals. (Id. at 20-22.) In an order dated June 27, 2017, the Board determined that a portion of the transcript from the merits hearing was missing and remanded the case for further proceedings. (Id. at 25.) On remand, Petitioner was again adjudicated removable. (Id. at 26.) Petitioner filed an appeal with the Board of Immigration Appeals on August 22, 2017. (Id. at 28-31.)

         After his second motion for bond redetermination was denied, Petitioner filed this Petition for Writ of Habeas Corpus and Motion for Preliminary Injunction. He asserts that his continued detention is unreasonable and violates his due process rights, and that the immigration judge applied the wrong legal standard to decide that he was subject to mandatory detention under 8 U.S.C. § 1226(c).

         III. DISCUSSION

         A. Judicial Review of Immigration Detention ...


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