United States District Court, D. Minnesota
Bratlie, counsel for petitioner.
Sarkany, counsel for respondents.
S. Doty, Judge
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.
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.
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.
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.
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.
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.
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
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
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 ...