United States District Court, D. Minnesota
Nduri Tindi, Freeborn County Adult Detention Center, Pro Se
Voss, Esq. and Ann M. Bildtsen, Esq., Assistant U.S.
Attorneys, United States Attorney's Office, for
REPORT AND RECOMMENDATION
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
Wilson Nduri Tindi (“Tindi”) has been detained by
United States Immigration and Customs Enforcement
(“ICE”) for some 15 months pending removal to
Kenya. Despite the issuance of the requisite travel document,
Tindi asserts his detention is indefinite and unreasonable,
and therefore seeks a Writ of Habeas Corpus securing his
immediate release. For the reasons outlined below, it is
recommended that the Petition be granted.
Tindi's Initial Immigration Proceedings
is a native and citizen of Kenya who entered the United
States on November 25, 2005 under a B2 Visitor Visa that
allowed him to remain here for six months, but Tindi remained
in the United States beyond that date without authorization.
Lee Decl., Ex. 1 p. 7, Docket No. 13. Though he
applied to become a permanent resident, Tindi's
application was rejected on September 1, 2007. Id.
On November 14, 2008 ICE initiated removal proceedings
against Tindi, which culminated in a March 10, 2009 order for
removal. Id. Tindi was taken into custody in October
2009. Id. p. 8. He then filed a successful motion to
reopen his immigration proceedings, which prompted his
release from custody on November 17, 2009. Id. p.
46. Tindi remained out on bond under threat of removal for
the next two years while his immigration status was under
consideration. Lee Decl. ¶¶ 9-10, Docket No. 13. On
September 21, 2011, an immigration judge reversed the
previous removal order, and on April 15, 2014 Tindi's
status was changed to lawful permanent resident. Id.
Tindi's Criminal Conviction And Resulting Removal
December 2014, Tindi was charged with first degree burglary
and fourth degree sexual assault for entering his
neighbor's apartment without permission and attempting to
sexually assault a woman who was asleep there. Lee Decl., Ex.
1 pp. 16-18, Docket No. 13. Tindi pleaded guilty to the
assault; the burglary charge was dismissed as part of his
plea agreement. Id. p. 20. Tindi was sentenced to 24
months, the execution of which was stayed for five years, and
he was ordered to serve 210 days in the Hennepin County Adult
Corrections Facility, which he began serving on April 4,
2016. Id. pp. 10, 12, 14.
took Tindi into custody directly from the Hennepin County
Jail on August 16, 2016. Lee Decl. ¶ 13, Docket No. 13.
Pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), on December
9, 2016, an immigration judge ordered Tindi's removal to
Kenya, which Order was affirmed by the Board of Immigration
Appeals (“BIA”) on April 27, 2017. Lee Decl., Ex.
1 pp. 23-30, 36-40, Docket No. 13. A final warrant of removal
was issued on May 4, 2017. Lee Decl. ¶ 17, Docket No.
13. On July 27, 2017, Tindi was informed he would remain in
ICE detention beyond the 90-day removal period because he
appeared to be a threat to the community and that there was a
significant likelihood of removal in the reasonable
foreseeable future. Id. ¶ 21. On September 19,
2017 ICE received a travel document for Tindi from the Kenyan
Embassy. Id. ¶ 22.
days after Tindi's final warrant of removal was issued,
on May 8, 2017, Tindi appealed his state criminal conviction,
arguing his counsel failed to inform him that pleading guilty
would result in his deportation. Wilson Nduri Tindi v.
State of Minnesota, No. A17-0724. This appeal was argued
October 26, 2017.
16, 2017 Tindi also filed a Petition for Review of his final
removal order to the Eighth Circuit. Tindi v. Jeff B.
Sessions, et al., No. 17-2086 (8th Cir. 2017). The
Eighth Circuit stayed Tindi's removal pending resolution
of his Petition for Review, which appeal was then stayed in
its entirety pending the United States Supreme Court's
decision in Sessions v. Dimaya, which was argued on
October 2, 2017. Tindi v. Jeff B. Sessions, et al.,
No. 17-2086 (Order Jun. 1, 2017). The issue before the
Supreme Court in Dimaya is whether the definition of
“a crime of violence” in 18 U.S.C. § 16(b),
as incorporated into the removal statute at issue in this
case, 8 U.S.C. § 1227(a)(2)(A)(iii), is
unconstitutionally vague. Sessions v. Dimaya, No.
15-1498 (Argued Oct. 2, 2017).