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Ali v. Sessions

United States District Court, D. Minnesota

January 7, 2018

Farass Ali, Petitioner,
v.
Jefferson Beauregard Sessions, III, Attorney General, et al., Respondents.

          Ian Bratlie, counsel for petitioner.

          Sergio Sarkany, counsel for respondents.

          ORDER

          David S. Doty, Judge

         This matter is before the court upon petitioner Farass Ali's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Based on a review of the file, record, and proceedings herein, and for the following reasons, the petition is granted.[1]

         BACKGROUND

         The underlying facts are not in dispute and will not be discussed except as necessary. On January 16, 2014, Ali, a native and citizen of Iraq, entered the United States as a refugee. Pet. Ex. 1 at 4. On July 28, 2015, Ali's immigration status was adjusted to lawful permanent resident. Id.

         On November 12, 2016, Ali was arrested in Rochester, Minnesota, for Fifth Degree Criminal Sexual Conduct and Disorderly Conduct. Gregg Decl. ¶ 6. Because of this arrest, the United States Department of Homeland Security reviewed Ali's immigration status. Id. ¶ 7. Homeland Security allegedly found that Ali did not disclose military training and service in the Iraqi Republican Guard and an arrest and interrogation in Iraq related to an explosion at a police station. Pet. Ex. 1 at 4.

         On May 10, 2017, federal immigration agents took Ali into custody. Gregg Decl. ¶¶ 11-12. The next day, Ali was charged with being a removable alien who, at the time of entry or adjustment, procured admission into the United States by fraud or willful misrepresentation. Id. ¶ 12.

         On June 2, 2017, Ali was transferred from federal immigration custody to state custody due to the pending criminal charges. Id. ¶ 13. On July 11, 2017, Ali's criminal charges were dismissed and he was transferred back to federal immigration custody, where he remains. Id. ¶ 16; Pet. ¶ 21.

         In June and August 2017, the FBI notified federal immigration officials that Ali would be considered a threat to national security should he be released from immigration custody. Gregg Decl. ¶¶ 14, 15, 19. In addition, the FBI found content on Ali's social media accounts purportedly showing him making, or considering making, assorted weapons purchases and favorably commenting on the Islamic State's military campaigns in the Levant and North Africa. Id. ¶¶ 15, 19.

         On September 19, 2017, a bond hearing was held before Immigration Judge (IJ) Ryan Wood. Id. ¶ 22. Ali called two witnesses, and the information provided by the FBI, as well as other evidence provided by federal immigration officials, was entered into the record. Id. ¶¶ 19, 20, 21. The IJ denied Ali's request to be released on bond pursuant to 8 C.F.R. § 236.1(c). Pet. Ex. 2 at 2. Ali has not appealed the IJ's bond determination.

         In the instant petition, Ali seeks release from federal immigration custody pending resolution of his immigration case. Ali argues that the Fifth Amendment Due Process Clause prohibits indefinite immigration detention pending a removal decision. Ali also argues that even if ordered removed, his removal could not be reasonably accomplished given the state of diplomatic relations between the United States and Republic of Iraq.

         The government argues that Ali's continued detention is constitutional, and that to the extent he believes he should be released from immigration custody pending a removal order, he may pursue such relief, including bond modification, through the available administrative procedures set forth in 8 C.F.R § 236.1(d). The government also argues that ...


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