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Patrick H. v. Secretary of Department of Homeland Security

United States District Court, D. Minnesota

November 6, 2018

Patrick H., Petitioner,
v.
Secretary of Department of Homeland Security; Jefferson Sessions, Attorney General; Scott Baniecke, ICE Field Office Director; and Kurt Freitag Freeborn County Sheriff, Respondents.

          Patrick H., Kandiyohi County Jail, pro se

          Ana H. Voss, Ann M. Bildtsen, and Friedrich A.P. Siekert, United States Attorney's Office, for Respondents Secretary of Department of Homeland Security, Atty General Jefferson Sessions, and Scott Baniecke

          David John Walker, Freeborn County Attorney's Office, for Respondent Kurt Freitag

          REPORT AND RECOMMENDATION

          HILDY BOWBEER UNITED STATES MAGISTRATE JUDGE

         On July 2, 2018, Petitioner Patrick H. filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, challenging his custody by U.S. Immigration and Customs Enforcement (“ICE”). (See Pet. [Doc. No. 1].) For the reasons set forth below, the Court recommends that the Petition be denied in part, denied without prejudice in part, dismissed as moot in part, and dismissed for lack of jurisdiction in part.

         I. Background

         A. Petitioner's Personal Background

         Petitioner is a sixty-year-old native and citizen of Trinidad and Tobago, who was admitted to the United States as a lawful permanent resident in 1980. (Pet'r's Ex. 1 at 2 [Doc. No. 1-1]; First Van Der Vaart Decl. ¶ 5 [Doc. No. 14], Ex. F at 3 [Doc. No. 14-6].)[1] Prior to 2014, Petitioner had several convictions in New York and Florida for various theft and controlled substance offenses. (First Van Der Vaart Decl. ¶ 6, Ex. A at 2-4 [Doc. No. 14-1].) Relevant to these proceedings, on November 19, 2014, a federal grand jury returned an indictment charging Petitioner with: (1) Possession of a Firearm by a Prohibited Person under 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (2) Possession of a Stolen Firearm under 18 U.S.C. §§ 922(j) and 924(a)(2). (Pet'r's Ex. 2 at 8.) Petitioner was tried by a jury in the United States District Court for the District of South Dakota and convicted on both counts. (Resp. to Pet. at 2; First Van Der Vaart Decl. ¶ 7, Ex. B at 10 [Doc. No. 14-2].) On direct appeal, the Eighth Circuit affirmed Petitioner's criminal convictions. United States v. Harding, 864 F.3d 961, 965 (8th Cir. 2017).

         B. The Removal and Habeas Proceedings

         On January 24, 2018, the DHS arrested Petitioner and initiated removal proceedings against him. (First Van Der Vaart Decl., Ex. A.) Specifically, the DHS alleged that Petitioner's two federal firearms convictions rendered him removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”) as an alien convicted of an aggravated felony, as that term is defined in 8 U.S.C. § 1101(a)(43)(E). (First Van Der Vaart Decl., Ex. A at 5.) On April 5, 2018, an Immigration Judge (“IJ”) denied Petitioner's request for a continuation of his visa and ordered him removed to Trinidad and Tobago. (First Van Der Vaart Decl. ¶ 10, Ex. E at 1 [Doc. No. 14-5].) Petitioner appealed the IJ's decision on May 4, 2018, to the Board of Immigration Appeals (“BIA”). (First Van Der Vaart Decl. ¶ 11, Ex. F [Doc. No. 14-6].)

         Meanwhile, on July 2, 2018, Petitioner filed his federal habeas Petition in this Court, raising the following challenges to the constitutionality of his detention: (1) his conviction “lack[ed] aggravating factors to render him removed”; and (2) his detention is “prolonged” and violates due process. (Pet. Ex. 1 at 2 [Doc. No. 1-1].) He requests immediate release on supervision. (Id.) On the date he filed the Petition, Petitioner was deemed a criminal alien awaiting a final removal order, and thus subject to mandatory detention pursuant to 8 U.S.C. § 1226(c).

         This Court issued an Order on July 5, 2018, directing Respondents to address three questions in their response to the Petition: (1) whether Petitioner was ordered removable for having committed an “aggravated felony, ” pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), and, if so, whether that classification was called into doubt by Sessions v. Dimaya, 138 S.Ct. 1204 (2018); (2) if Petitioner's aggravated felony classification no longer applied, whether the Attorney General adequately considered waiver of deportation pursuant to 8 U.S.C. § 1229(b); and (3) whether the duration of Petitioner's detention comported with Zadvydas v. Davis, 533 U.S. 678 (2001). (Order at 2, July 5, 2018 [Doc. No. 3].) On August 10, 2018, Respondents filed their response to the Petition, but they did not address two of the three questions posed by the Court in the July 5 Order. (See Resp. to Pet. [Doc. No. 13].) Therefore, on October 9, 2018, this Court issued an additional order directing the Respondents to file a supplemental response addressing the two unanswered questions. (Order at 2, Oct. 9, 2018 [Doc. No. 23].) Respondents filed their supplemental response on October 17, 2018. (Suppl. Resp. to Pet. [Doc. No. 24].)

         In the supplemental response, Respondents advised the Court that on September 26, 2018, the BIA dismissed Petitioner's appeal, thus rendering his removal order final. (Second Van Der Vaart Decl., Ex. H [Doc. No. 25-1].) Because Petitioner is now subject to a final removal order, his detention is mandated by 8 U.S.C. § 1231(a)(2), not § 1226(c). Petitioner appealed the BIA's dismissal to the Eighth Circuit Court of Appeals and filed a motion for an emergency stay of removal. (Second Van Der Vaart Decl. ¶ 10, Ex. I [Doc. Nos. 25, 25-2].) The Eighth Circuit denied the motion for emergency stay of removal on October 23, 2018. Harding v. Sessions, No. 18-3181, slip op. at 1 (8th Cir. Oct. 23, 2018). The petition for review remains pending.

         II. ...


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