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Tindi v. Secretary, Department of Homeland Security

United States District Court, D. Minnesota

February 5, 2018

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.

          ORDER

          David S. Doty, Judge

         This matter is before the court upon the objection of respondents Kirstjen M. Nielsen, Secretary of the Department of Homeland Security; Jefferson Sessions, Attorney General; and Peter Berg, [1] Acting Field Office Director of United States Immigration and Customs Enforcement to the December 8, 2017, report and recommendation (R&R) of Magistrate Judge David T. Schultz. In his report, the magistrate judge recommended that the court grant pro se petitioner Wilson Nduri Tindi's petition for writ of habeas corpus. After a de novo review, the court overrules the objection and grants the writ of habeas corpus.

         BACKGROUND

         The underlying facts are not in dispute and will not be repeated except as necessary. Tindi, a native and citizen of Kenya, entered the United States in 2005 under a B2 Visitor Visa that authorized him to remain in the country for six months. Tindi, however, overstayed his visa, and his application to become a permanent resident was denied in 2007.

         On November 14, 2008, Immigration and Customs Enforcement (ICE) initiated removal proceedings against Tindi, and an immigration judge ordered that Tindi be removed on March 10, 2009. ICE took Tindi into custody in October 2009. Tindi then successfully reopened his removal proceedings, and ICE released him on bond in November 2009. On September 21, 2011, an immigration judge reversed the removal order. On April 15, 2014, Tindi became a lawful permanent resident.

         In December 2014, Tindi was charged with first-degree burglary and fourth-degree sexual assault. He pleaded guilty to the assault charge, and the prosecutor dismissed the burglary charge pursuant to a plea agreement. Tindi was sentenced to twenty-four months' imprisonment stayed for five years and 210 days in the Hennepin County Adult Corrections Facility.

         On August 16, 2016, ICE took Tindi into custody from the Hennepin County jail. On December 9, 2016, an immigration judge ordered that Tindi be removed to Kenya, finding that Tindi was a removable alien under 8 U.S.C. § 1227(a)(2)(A)(iii), because he had committed an aggravated felony. Tindi appealed, and on April 27, 2017, the Board of Immigration Appeals (BIA) affirmed the decision. A final order of removal was issued on May 4, 2017.

         On May 8, 2017, Tindi appealed his state court conviction, arguing that his counsel had not advised him that pleading guilty could lead to his removal. A decision on the appeal is still pending. On May 16, 2017, Tindi filed a petition for review of his final removal order with the Eighth Circuit Court of Appeals. The Eighth Circuit stayed Tindi's removal pending its decision on the petition for review and stayed the entire proceeding pending the Supreme Court's decision in Sessions v. Dimaya, No. 15-1498 (2017). The Supreme Court has yet to issue its decision in Dimaya.

         On August 10, 2017, Tindi filed a writ for habeas corpus pursuant to 28 U.S.C. § 2241. The magistrate judge recommended that the court grant the petition, and respondents now object.

         DISCUSSION

         I. Detention of Aliens

         Generally, two statutes authorize the detention of aliens. Under 8 U.S.C. § 1226(a), the government may arrest and detain an alien “pending a decision on whether the alien is to be removed from the United States.” If a final order of removal is issued against the alien, the government may continue to detain the alien pursuant to 8 U.S.C. § 1231. Under this statute, the government must remove the alien within a period of ninety days, the beginning of which begins on the latest of the following:

(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of ...

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