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Abdirizak S. v. Secretary Homeland Security

United States District Court, D. Minnesota

February 12, 2019

Abdirizak S., Petitioner,
v.
Secretary of Homeland Security; Matthew Whitaker, Attorney General; Peter Berg, ICE Field Office Director; and Kurt Freitag, Freeborn County Sheriff, Respondents.

          Abdirizak S., Freeborn County Adult Detention Center, pro se

          Ana H. Voss, Ann M. Bildtsen, and Pamela Marentette, United States Attorney's Office, for Respondents Secretary of Homeland Security, Matthew Whitaker, and Peter Berg

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

          REPORT AND RECOMMENDATION

          HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE.

         On November 19, 2018, Petitioner 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 dismissed for lack of jurisdiction in part, denied as moot in part, and denied without prejudice in part.

         I. Background

         A. Petitioner's Personal Background

         Petitioner is a thirty-six year-old native and citizen of Somalia, who was admitted to the United States as a refugee in 2001. (Pet. Ex. 1 at 2 [Doc. No. 2]; Voss Decl. Ex. A at 6, 19 [Doc. No. 8-1].)[1] Petitioner has resided in Minneapolis, Minnesota, since his arrival in the United States, and on March 15, 2005, he became a lawful permanent resident. (Pet. Ex. 1 at 3; Voss Decl. Ex. A at 21.) In 2012, Petitioner applied for naturalization through the United States Citizenship and Immigration Services, but was denied. (Resp. at 2 [Doc. 7].)

         B. Removal Proceedings and Supervised Releases

         After Petitioner's Application for Naturalization was denied, he was taken into ICE custody on September 17, 2012, and ordered removed by an immigration judge on May 2, 2013. (Resp. at 2; Voss Decl. Ex. A at 21.) Petitioner appealed this decision to the Board of Immigration Appeals, which remanded the case to the immigration judge for further proceedings. (Resp. at 2; Voss Decl. Ex. A at 21.) The immigration judge ordered Petitioner removed from the United States, but granted Petitioner's application for withholding of removal to Somalia. (Resp. at 2; Voss Decl. Ex. A at 21.)

         On March 7, 2014, Petitioner was released from ICE custody on an order of supervision. (Voss Decl. Ex. A at 4.)[2] During this period of release, Petitioner was charged and convicted of Simple Robbery in Hennepin County District Court, and was later taken back into ICE custody on February 24, 2017. (Resp. at 3; Voss Decl. Ex. A at 7-8.) Petitioner appealed his Simple Robbery conviction on April 26, 2017, to the Minnesota Court of Appeals. (Voss Decl. Ex. A at 76.) On August 31, 2017, Petitioner was again released from ICE custody, though that release was revoked on December 14, 2017, after Petitioner failed to report to an ICE field office and was arrested for disorderly conduct and providing false information to police. (Voss Decl. Ex. A at 13.) After a brief detention, Petitioner was released from ICE custody with GPS monitoring on January 10, 2018. (Voss Decl. Ex. A at 14-15.) The Minnesota Court of Appeals affirmed Petitioner's Simple Robbery Conviction on March 5, 2018, and Petitioner's release was revoked a final time on March 8, 2018. (Voss Decl. Ex. A at 16-23.) Petitioner has remained in ICE custody since March 8, 2018.

         C. Final Order for Removal and Habeas Petition

         On March 9, 2018, the Department of Homeland Security filed a motion to reopen proceedings and deny withholding of removal in Petitioner's immigration proceedings. (Voss Decl. Ex. A at 24.) The motion was granted on March 26, 2018, and on June 27, 2018, an immigration judge ordered Petitioner removed to Somalia, denying all relief requested. (Voss Decl. Ex. A at 85-87, 88-89.) Petitioner appealed this decision to the Board of Immigration Appeals on July 9, 2018. (Voss Decl. Ex. A at 94-99.)

         On November 19, 2018, Petitioner filed the instant Petition. Petitioner is challenging his detention in the custody of ICE, asserting that his “prolonged and continued detention is unreasonable, and violates [Petitioner's] substantive and due process rights under the Due Process Clause of the Firth Amendment ...


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