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Tindi v. Secretary, Department of Homeland Security

United States District Court, D. Minnesota

December 8, 2017

WILSON NDURI TINDI, Petitioner,
v.
SECRETARY, Department of Homeland Security; JEFFERSON SESSIONS, Attorney General; SCOTT BANIECKE, ICE Field Office Director; and KURT FREITAG, Freeborn County Sheriff, Respondents.

          Wilson Nduri Tindi, Freeborn County Adult Detention Center, Pro Se Petitioner;

          Ana H. Voss, Esq. and Ann M. Bildtsen, Esq., Assistant U.S. Attorneys, United States Attorney's Office, for Respondents

          REPORT AND RECOMMENDATION

          DAVID T. SCHULTZ UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION [1]

         Petitioner 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.

         FINDINGS OF FACT

         1. Tindi's Initial Immigration Proceedings

         Tindi 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. ¶¶ 10-11.

         2. Tindi's Criminal Conviction And Resulting Removal Proceedings

         In 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.

         ICE 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.

         3. Tindi's Appeals

         Four 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.

         On May 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).

         4. The ...


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