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Mario A. B. v. Secretary Homeland Security

United States District Court, D. Minnesota

January 4, 2019

Mario A. B., Petitioner,
v.
Secretary of Homeland Security, et al., Respondents.

          Mario A. B., pro se Petitioner.

          Gregory Brooker, Esq., Assistant United States Attorney, counsel for Respondents.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON, UNITED STATES MAGISTRATE JUDGE.

         Petitioner requests release from custody pending his removal to Honduras. (Doc. No. 1, Habeas Pet.) Petitioner argues that his prolonged detention, beginning in September 2017, is unreasonable and violates due process. (See id.) As explained below, however, Petitioner was ordered removed on August 10, 2018, and the subsequent length of his post-removal-order detention is not unreasonable. Therefore, this Court recommends that Petitioner's petition for a writ of habeas corpus be denied.

         I. Background

         Petitioner, a native and citizen of Honduras, entered the United States illegally on or about August 2, 1993. (Doc. No. 7, Declaration of Sean E. Wright (“Wright Decl.”)¶ 4.) Petitioner was never admitted into the United States and remains an Inadmissible Alien. (Id.)

         On January 31, 2017, Petitioner was convicted of criminal sexual conduct in South Dakota and sentenced to 364 days incarceration and eleven months probation. (Wright Decl. ¶ 5.) On September 8, 2017, Petitioner was served with a Notice to Appear in Removal Proceedings, charging Petitioner as removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I) for violating a crime involving moral turpitude. (Wright Decl. ¶ 7.) On September 8, 2017, the day Petitioner's removal proceedings commenced, immigration officials placed Petitioner into custody as a criminal alien subject to mandatory detention. (Wright Decl. ¶ 8); 8 U.S.C. § 1226(c).

         On October 12, 2017, Petitioner appeared with counsel before an Immigration Judge and conceded his removability on two grounds: (1) as having been convicted of a crime of moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I); and (2) as being present in the United States without being admitted or paroled under 8 U.S.C. § 1182(a)(6)(A)(i). (Wright Decl. ¶ 9.) At the hearing, Petitioner moved for relief from removal by filing applications for asylum, suspension of removal, withholding of removal, and relief under the Convention Against Torture (“CAT”). (Id.)

         Following a full hearing on the merits, on March 7, 2018, an Immigration Judge denied all relief from removal and ordered Petitioner removed from the United States. (Wright Decl. ¶ 10.) Petitioner reserved his right to file an appeal with the Board of Immigration Appeals, and he filed a timely appeal on April 9, 2018. (Wright Decl. ¶ 11.) On August 10, 2018, the BIA dismissed Petitioner's appeal and upheld the Immigration Judge's order that Petitioner be removed to Honduras. (Wright Decl. ¶ 12.) On August 24, 2018, Petitioner appealed the BIA decision to the Eighth Circuit Court of Appeals and moved for a stay of removal. (Id. ¶ 13.) The Eighth Circuit denied Petitioner's motion for a stay on August 29, 2018. (Id. ¶ 14.)

         II. Analysis

         A. Habeas Jurisdiction

         Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A federal court has subject-matter jurisdiction under § 2241(c)(3) if two requirements are satisfied: (1) the petitioner is “in custody, ” and (2) the custody is “in violation of the Constitution or laws or treaties of the United States.” Id.; Maleng v. Cook, 490 U.S. 488, 490 (1989). The Court has subject-matter jurisdiction under § 2241 because Petitioner was detained within this jurisdiction in the custody of DHS at the time he filed this Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his mandatory detention is not statutorily authorized and violates due process. See Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (“[Section] 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.”).

         B. ...


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