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Bolus A. D. v. Secretary of Homeland Security

United States District Court, D. Minnesota

February 11, 2019

Bolus A. D., Petitioner,
v.
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.

         Bolus 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 continued detention.

         I. Background

         Mr. D 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, [1] 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.

         An 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.

         On 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.

         Six 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 BIA.[2] Id. ¶ 6. Mr. D remains in ICE custody.

         II. Detention and Limitations

         Mr. D 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 law.[3]

         The Due 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)).

         Courts 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, 2018)).[4]

         III. Application of Multi-Factor Test

         Mr. D 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 ...


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