United States District Court, D. Minnesota
ORDER ADOPTING REPORT AND RECOMMENDATION
Wilhelmina M. Wright United States District Judge
matter is before the Court on the December 7, 2017 Report and
Recommendation (R&R) of United States Magistrate Becky R.
Thorson. (Dkt. 17.) The R&R recommends dismissing without
prejudice Petitioners Drian Martinez-Senan and Sarah
Martinez's petition for a writ of habeas corpus and
denying Petitioners' motions for injunctive relief.
Petitioners timely objected to the R&R. For the reasons
that follow, the Court overrules Petitioners' objections
and adopts the R&R.
is a citizen of Cuba who became a lawful permanent resident
of the United States on September 25, 2013. Martinez-Senan
was convicted of rape on March 15, 2017, in South Dakota.
United States Immigration and Customs Enforcement
subsequently arrested Martinez-Senan and initiated removal
proceedings, charging him with being an alien convicted of an
aggravated felony after his admission into the United States.
8 U.S.C. § 1227(a)(2)(A)(iii). On June 15, 2017, an
immigration judge ordered Martinez-Senan removable to Cuba.
Martinez-Senan appealed to the Board of Immigration Appeals.
Petitioners married during the pendency of
Martinez-Senan's appeal, and Martinez filed a Form I-130
with the United States Citizenship and Immigration Services
seeking classification of Martinez-Senan as an immediate
relative of Martinez. A ruling on Martinez's Form I-130
November 3, 2017, the Board of Immigration Appeals dismissed
Martinez-Senan's appeal, which initiated
Martinez-Senan's removal period. See 8 U.S.C.
§ 1231(a)(1)(B)(i)-(iii). Petitioners filed this
petition for a writ of habeas corpus on November 10, 2017,
and two days later filed motions for expedited injunctive
relief. Petitioners seek an order releasing Martinez-Senan
pending the completion of his removal proceedings and an
order compelling the adjudication of Martinez's Form
R&R recommends dismissing without prejudice as premature
the petition for a writ of habeas corpus and denying the
motions for expedited injunctive relief because Petitioners
cannot establish an unreasonable delay in the processing of
Martinez's Form I-130. Because Petitioners filed
objections to the R&R, this Court conducts a de novo
review. See 28 U.S.C. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b)(3); LR 72.2(b)(3); Grinder v.
Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam).
removal period commenced when the Board of Immigration
Appeals dismissed Martinez-Senan's appeal on November 3,
2017. See 8 U.S.C. § 1231(a)(1)(B)(i);
Giraldo v. Holder, 654 F.3d 609, 611 (6th Cir. 2011)
(explaining that orders of removal are administratively final
when affirmed by the Board of Immigration Appeals). The
Immigration and Nationality Act requires the detention and
removal of an alien within 90 days of the commencement of a
removal period. Id. § 1231(a)(1)-(2). But when,
as here, an alien convicted of an aggravated felony cannot be
removed within that 90-day window, continued detention may be
warranted until removal is secured. Id. §
1231(a)(6). In Zadvydas v. Davis, the Supreme Court
of United States held that “an alien's
post-removal-period detention” cannot exceed “a
period reasonably necessary to bring about that alien's
removal.” 533 U.S. 678, 689 (2001). The
Zadvydas Court determined that a post-removal-period
lasting six months is “presumptively reasonable,
” and a longer detention may be appropriate depending
on the likelihood of removal in the near future. Id.
at 701. Because Martinez-Senan's removal period commenced
on November 3, 2017, his current detention remains
“presumptively reasonable.” Id. The
petition for a writ of habeas corpus at issue here,
therefore, is premature.
also seek expedited injunctive relief requiring an
adjudication of Martinez's Form I-130. To obtain such
relief, a petitioner must establish that the delay in
processing is unreasonable. See, e.g., Ali v.
Frazier, 575 F.Supp.2d 1084, 1090 (D. Minn. 2008). The
R&R determines, based on publicly available information,
that an average processing time for a Form I-130-as of
September 20, 2017-is 8.5 months. Martinez filed her Form
I-130 approximately eight months ago. Petitioners have not
established that a delay in processing Martinez's Form
I-130, if any, is unreasonable.
contend that Miah v. Mukasey, 519 F.3d 784 (8th Cir.
2008), controls under these circumstances and requires
granting the relief they seek. This argument is unavailing.
Miah does not address the post-removal-detention of
an alien convicted of an aggravated felony or the timeline in
which immigration filings must be adjudicated. See
519 F.3d at 786-89 (rejecting argument that removal was
unwarranted because appellant should be granted asylum or
protection under the Convention Against Torture). In sum,
Miah is inapposite.
also assert that Martinez “has done everything to
assist in a speedy adjudication” and that Respondents
“may delay for as long as [they] choose.” But
Petitioners' arguments do not address the holding of
Zadvydas or the fact that Martinez's Form I-130
falls within an average processing time for adjudication. The
R&R does not recommend, nor would the law support, a
perennial delay in Martinez-Senan's removal or in the
adjudication of Martinez's Form I-130. Presently, the
timeliness of both Martinez-Senan's
post-removal-detention and the processing of Martinez's
Form I-130 remains reasonable. For this reason, the Court
overrules Petitioners' objections.
Petitioners do not object to any other aspect of the R&R,
the Court reviews the remainder of the R&R for clear
error. See Grinder, 73 F.3d at 795; see
also Fed. R. Civ. P. 72(b) advisory committee's note
(“When no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.”).
Having carefully performed this review, the Court finds no
clear error and adopts the recommendations.
on the foregoing analysis, the Report and Recommendation, and
all the files, records and ...