United States District Court, D. Minnesota
Bolus A. D., Petitioner,
Secretary of Homeland Security; Jefferson Session, Attorney General; Scott Baniecke, ICE Field Director; Kurt Freitag, Freeborn County Sheriff; Respondents.
REPORT AND RECOMMENDATION
Katherine Menendez, United States Magistrate Judge.
A. D. (“Mr. D.”) brings this habeas corpus action
under 28 U.S.C. § 2241 to challenge his ongoing
detention by immigration authorities pending the completion
of administrative proceedings to remove him from the United
States. Pet., ECF No. 1. Mr. D has now been in the custody of
Immigration and Customs Enforcement (“ICE”) for
over 13 months. For the reasons that follow, the Court
recommends that his habeas petition be granted and an
immigration judge be required to hold a bond hearing to make
an individualized determination regarding Mr. D's
is a native and citizen of Sudan. He originally came to the
United States as a refugee in 2012. Decl. of John Ligon
(“Ligon Decl.”) ¶ 4, Ex. 1, ECF No. 20. In
January 2016, Mr. D was convicted of motor-vehicle theft,
id. ¶ 5, Ex. 2,  and in December 2017, he was
convicted of second-degree assault with a dangerous weapon,
id. ¶ 14, Ex. 4. Because of the latter
conviction, he was taken into ICE custody on December 22,
2017, and removal proceedings were commenced. See
Ligon Decl. ¶ 15.
immigration judge held removal hearings for Mr. D on January
16, 2018, Ligon Decl. ¶ 16, and April 12, 2018,
id. ¶ 19. On June 18, 2018, the immigration
judge ordered Mr. D removed to Sudan, or in the alternative,
to South Sudan. Ligon Decl. ¶¶ 21, 23, Ex. 7. Mr. D
appealed the immigration judge's removal decision to the
Board of Immigration Appeals (“BIA”) on July 9,
2018. Ligon Decl. ¶ 24.
December 6, 2018, the BIA ruled in Mr. D favor on his appeal
and remanded the case back to the immigration judge. Decl. of
John Bruning (“Bruning Decl.”) ¶ 3 & Ex.
1 ECF No. 31. Specifically, the BIA agreed with Mr. D's
argument that the immigration judge erred in determining that
his conviction for motor-vehicle theft under Minn. Stat.
§ 609.52, subd. 2(a)(17), constituted an aggravated
felony theft offense. Bruning Decl., Ex. 1 at 2-4. The
BIA's remand indicated that the Department of Homeland
Security would have the opportunity on remand to “lodge
any additional charges of removability.” Id.,
Ex. 1 at 4.
days after the BIA's decision, immigration authorities
filed an additional charge of removability against Mr. D
based on his December 2017 conviction for second-degree
assault with a dangerous weapon. Bruning Decl. ¶ 4, Ex.
2. The additional charge asserts that the assault conviction
constitutes both a crime of violence and a crime involving
moral turpitude. Id. A new immigration judge held
hearings in Mr. D's case on January 2, 2019 and on
January 22, 2019. Bruning Decl. ¶ 5. The immigration
judge “sustained the new charges of removability and
closed the case for a written decision.” Id.
If Mr. D is in fact denied relief and again ordered removed,
he anticipates filing another appeal with the
Id. ¶ 6. Mr. D remains in ICE custody.
Detention and Limitations
is being detained pursuant to 8 U.S.C. § 1226(c) pending
the completion of removal proceedings against him. Section
1226(c) provides that “[t]he Attorney General shall
take into custody any alien who- ... is deportable by reason
of having committed [crimes of moral turpitude, aggravated
felonies, controlled-substance crimes, and certain firearm
offenses].” 8 U.S.C. § 1226(c)(1)(B) (cross
referencing 8 U.S.C. §§ 1227(a)(2)(A)(ii),
(A)(iii), (B), (C), or (D)). Mr. D claims that his continued
detention under this statute for, at this point more than 13
months, violates his constitutional right to due process of
Process Clause imposes limitations on the length of §
1226(c) detention. Muse v. Sessions, No. 18-cv-0054
(PJS/LIB), 2018 WL 4466052 (D. Minn. Sept. 18, 2018);
Mohamed v. Sec'y, Dep't of Homeland Sec.,
No. 17-cv-5055 (DWF/DTS), 2018 WL 2392205, at *5 (D. Minn.
Mar. 26, 2018), report and recommendation adopted,
No. 17-cv-5055 (DWF/DTS), 2018 WL 2390132 (D. Minn. May 25,
2018); Tindi v. Sec'y, Dep't of Homeland
Sec., No. 17-cv-3663 (DSD/DTS), 2018 WL 7043414, at *3
(D. Minn. Feb. 5, 2018). Although the government urges the
Court to find that the Constitution imposes no such restraint
on the permissible duration of detention under §
1226(c), the Court finds the reasoning of Judge Schiltz and
others to be eminently persuasive in this matter.
Muse, 2018 WL 4466052, at *2 (“The Supreme
Court has long recognized that the Due Process Clause
protects aliens who are present within the United States,
including those who are subject to removal.... Every federal
court of appeals to have addressed the issue after
Demore [v. Kim, 538 U.S. 410 (2003)] has
recognized that the Due Process Clause restricts how long the
government may detain an alien under § 1226(c).”);
see also Sajous v. Decker, No. 18-cv-2447 (AJN),
2018 WL 2357266, at *9 (S.D.N.Y. May 23, 2018) (“The
Court likewise concludes based on the text of the Fifth
Amendment, the Supreme Court's decisions in
Zadvydas and Demore, as well as the
persuasive interpretation of these cases offered by other
federal courts and the Government's concessions in this
case, that prolonged mandatory detention under §
1226(c), under certain circumstances discussed below, can
become unreasonable such that an alien is ‘entitled to
an individualized determination as to his risk of flight and
dangerousness.'”) (quoting Demore, 538
U.S. at 532 (Kennedy, J., concurring)).
analyzing whether § 1226(c) detention has exceeded such
limitations “closely examin[e] the facts of the
particular case to determine whether the detention is
reasonable.” Muse, 2018 WL 4466052, at *3.
They do so by looking at the following factors to determine
whether continued detention has become unreasonable:
(1) the total length of detention to date; (2) the likely
duration of future detention; (3) the conditions of
detention; (4) delays of the removal proceedings caused by
the detainee; (5) delays of the removal proceedings caused by
the government; and (6) the likelihood that the removal
proceedings will result in a final order of removal.
Id. (citing Reid v. Donelan, 819 F.3d 486
(1st Cir. 2016), withdrawn, Reid v.
Donelan, No. 14-1270, 2018 WL 4000993 (1st Cir. May 11,
Application of Multi-Factor Test
has been detained beyond the “brief” period
envisioned by the Supreme Court in Demore v. Kim,
538 U.S. 510, 513 (2003), as necessary for the completion of
removal proceedings. As his ongoing detention pursuant to
§ 1226(c) has grown longer, its necessity has become
more suspect. See Muse, 2018 WL 4466052, at *4
(citing Diop v. ICE/Homeland Sec., 656 F.3d 221, 234
(3d Cir. 2011)). Weighing the relevant factors under the
applicable caselaw, the Court ...