United States District Court, D. Minnesota
LIBAN M. J., Petitioner,
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY; WILLIAM BARR, United States Attorney General; PETER BERG, ICE Field Office Director; and SHERIFF KURT FREITAG, Respondents.
ORDER ACCEPTING REPORT AND RECOMMENDATION
E. Brasel United States District Judge.
a habeas action brought under 28 U.S.C. § 2241 by
petitioner Liban M.J., a removable alien being held in
custody by Immigration and Customs Enforcement
(“ICE”). In a Report and Recommendation dated
December 10, 2018 [ECF No. 14 (“R&R”)],
United States Magistrate Judge Elizabeth Cowan Wright
recommended that an immigration judge provides Petitioner
with a bond hearing. Respondents Secretary of the Department
of Homeland Security, United States Attorney General
Jefferson Sessions, and Peter Berg, acting ICE Field Office
Director (collectively, the
“government”) object to the R&R. Based on a
de novo review of the R&R, see 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b), the Court
overrules government's objections, adopts the R&R,
and requires that Petitioner be provided with a bond hearing
before an immigration judge no later than April 19, 2019.
undisputed facts are clearly set forth in the R&R and are
incorporated by reference for purposes of the
government's objections. In short, an immigration judge
(“IJ”) ordered Petitioner deported and removed to
Somalia, and Petitioner appealed that decision to the Board
of Immigration Appeals (“BIA”). Petitioner also
filed this Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2241, challenging his ongoing detention under 8
U.S.C. § 1226(c) and seeking release from custody
pending removal. [ECF No. 1.] In the R&R, the Magistrate
Judge concluded that Petitioner's continued detention
without a bond hearing would deprive him of his right to due
process under the Fifth Amendment. (R&R at 16.) The
Magistrate Judge recommended that the § 2241 petition be
granted in part - in that Petitioner be provided with a bond
hearing before an IJ to determine whether his continued
detention is necessary to protect the public or prevent him
from fleeing during the pendency of immigration proceedings.
(Id. at 17.) The Magistrate Judge recommended that
the Petition be denied with respect to Petitioner's
request for immediate release. (Id.)
government filed objections to the R&R on January 2,
2019. [ECF No. 20 (“Resps'
Obj.”).] The government disagrees that Petitioner is
entitled to a bond hearing, but does not object that §
1226(c) applies to Petitioner and ICE had statutory authority
to bring him back into custody. (Id.) On January 16,
2019, Petitioner filed his response to the government's
objections, stating that the R&R should be adopted in
full. [ECF No. 22 at 2.] Because no party has objected to the
R&R's conclusion that § 1226(c) applies to
Petitioner and that the request for immediate release should
be denied, the Court reviews those conclusions for clear
error. See Fed. R. Civ. P. 72(b); Grinder v.
Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam).
Finding no clear error, the Court accepts the R&R's
conclusion that § 1226(c) applies to Petitioner and the
request for immediate release is denied.
the R&R was issued, the Department of Homeland Security
filed a motion to remand Petitioner's case from the BIA
to the IJ to adjudicate the question whether Petitioner is
entitled to reinstatement of his conditional permanent
residence and the filing of new charges of removability by
the Department of Homeland Security. [ECF Nos. 20, 22.]
Neither party has informed the Court of the outcome of the
motion and from the record before the Court it appears that
the removal proceedings are still before the BIA.
under 8 U.S.C. § 1226(c) is mandatory during removal
proceedings for certain criminal aliens such as Petitioner.
The Supreme Court has held that detention under §
1226(c) is consistent with the Due Process Clause for the
“brief period necessary” required to complete
removal proceedings. See Demore v. Kim, 538 U.S.
510, 513 (2003). But constitutional concerns arise when
detention ceases to be brief. See Zadvydas v. Davis,
533 U.S. 678, 682 (2001) (holding that “[a] statute
permitting indefinite detention of an alien would raise a
serious constitutional problem”); Reno v.
Flores, 507 U.S. 292, 306, (1993) (“It is well
established that the Fifth Amendment entitles aliens to due
process of law in deportation proceedings.”) To avoid
due process concerns, courts have construed § 1226(c) to
have a reasonableness limitation on the length of detention.
See, e.g., 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); Diop v. ICE/Homeland
Sec., 656 F.3d 221, 235 (3rd Cir. 2011); Lora v.
Shanahan, 804 F.3d 601, 614 (2nd Cir. 2015), cert.
granted, vacated, Shanahan v. Lora, 138 S.Ct. 1260
(2018). Recently, the Supreme Court has rejected using the
canon of constitutional avoidance to employ an implicit
temporal limitation on pre-removal detention, finding the
plain language of § 1226(c) unambiguously “makes
clear that detention of aliens within its scope must
continue ‘pending a decision' on removal.”
Jennings v. Rodriguez, 138 S.Ct. 830, 835, (2018)
(emphasis in original). Despite reversing the Ninth
Circuit's holding that aliens detained under §
1226(c) were entitled to bond hearings every sixth months,
Jennings did not address whether, at a certain
point, prolonged detention implicates the Due Process Clause.
Id. at 851.
Petitioner and the government agree that due process imposes
some limitations on § 1226(c) detention. The parties
differ, though, on when detention becomes so unreasonably
long as to violate due process. Specifically, the government
contends that only in “extraordinary cases” when
the government causes unreasonable delay should a petitioner
be entitled to a bond hearing. (Resps' Obj. at 1, 5
(quoting and citing Demore, 538 U.S. at 532-33)
(Kennedy, J. concurring) (“were there to be an
unreasonable delay by the [government] in pursuing and
completing deportation proceedings, it could become necessary
then to inquire whether the detention is … to
incarcerate for other reasons.”).) This argument fails
to address that the Supreme Court limited its Demore
holding to a brief period of detention under § 1226(c).
See Muse v. Sessions, No. 18-CV- 0054 (PJS/LIB),
2018 WL 4466052, at *2 (D. Minn. Sept. 18, 2018) (discussing
and citing the “repeated references to the brevity of
detention under § 1226(c)”in Demore).
Moreover, as noted by other courts, Jennings
remanded the issue of the constitutionality of prolonged
detention under § 1226(c), and thus it did not abrogate
previous circuit court holdings “that detention under
§ 1226(c) may violate due process if unreasonably
long.” Oscar C. L. v. Green, No. CV 18-9330
(KM), 2019 WL 1056032, at *2 (D.N.J. Mar. 6, 2019) (citing
and quoting Borbot v. Warden Hudson Cty. Corr.
Facility, 906 F.3d 274, 278 (3d Cir. 2018) and
Dryden v. Green, 321 F.Supp.3d 496, 502 (D.N.J.
2018)). The Court therefore is unpersuaded that the detention
can become unconstitutionally prolonged only in the instance
where the government is engaging in dilatory tactics.
correctly discussed by the Magistrate Judge, the Eighth
Circuit has not addressed the issue of prolonged detention
under § 1226(c) post-Jennings, but other courts
have adopted a fact-based inquiry when determining whether
detention is reasonable. (R&R at 9 (citing Muse v.
Sessions, 2018 WL 4466052, at *2 (D. Minn. Sept. 18,
2018).) In assessing due process challenges to § 1226(c)
detentions, courts consider several factors to determine when
“continued detention becomes unreasonable and the
Executive Branch's implementation of § 1226(c)
becomes unconstitutional unless” a bond hearing is
provided. Muse, 2018 WL 4466052, at *3 (citation and
quotation omitted). These factors include: (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.
first factor evaluates the length of detention to date. This
inquiry “contemplates how long th[e] deprivation has
lasted…” and is critical of detention that can
no longer be categorized as “brief.” Id.
at *4; 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) (providing that the longer detention
continues, the harder it is to justify continued detention),
Report and Recommendation adopted, No. 17-CV-5055
(DWF/DTS), 2018 WL 2390132 (D. Minn. May 25, 2018).
Petitioner has been detained since March 29, 2018, or for
about 12 months.Although there is no bright-line rule for
what constitutes a reasonable length of detention,
Petitioner's detention has lasted beyond the
“brief” period assumed in Demore.
See Demore, 538 U.S. at 526, 529 (noting “in
the majority of cases [detention] lasts for less than 90
days”). Other courts have required bond hearings for
detentions of similar and much shorter lengths. See
Muse, 2018 WL 4466052, at *4 (collecting cases). The
length of Petitioner's detention thus weighs in favor of
second factor considered is the likely duration of future
detention in the absence of judicial relief. The government
rejects the R&R's and Muse's approach of
considering the anticipated duration of all removal
proceedings, including administrative and judicial appeals.
(See Resps' Obj. at 6.) According to the
government, this approach requires speculation and improperly
considers the length of an appeal to the Eighth Circuit,
which would be under a different statute, 8 U.S.C. §
1231. (Id.) Regardless of whether the Court
considers the time frame during a possible appeal to the
Eighth Circuit, removal proceedings here are certain to
continue for many more months and are not “in their
final stage.” (Resps' Obj. at 8.) The IJ denied
Petitioner's claims for relief and ordered him removed on
June 8, 2018. [ECF No. 7-1, Ex. A at 46.] Petitioner appealed
the IJ's decision to the BIA on June 18, 2018. [ECF No.
1-1, Ex. 1 at 1-5.] In December 2018, the BIA requested
supplemental briefing. [ECF Nos. 20 at 4; 22 at 1-2.] The
Department of Homeland Security agrees that Petitioner's
appeal should be remanded for adjudication on whether
Petitioner is entitled to reinstatement of his conditional
permanent residence and the filing of new charges of
removability. (Id.) Petitioner has opposed the
remand. [ECF No. 22 at 2.] Assuming the appeal is remanded,
will likely take many months for the IJ to make a
determination, which will likely be appealed to the BIA.
Accordingly, because Petitioner may be detained for many
months before removal proceeds are complete, this factor
supports granting relief.
third factor considers the conditions of the petitioner's
detention. “Aliens held under § 1226(c) are
subject to civil detention rather than criminal
incarceration.” Muse, 2018 WL 4466052, at *5
(citation and quotation omitted). Whether the conditions of
civil immigration detention are meaningfully different from
those of criminal detention factors into the reasonableness
of Petitioner's detention. Jamal A. v. Whitaker,
No. 18-CV- 1228 (PJS/BRT), 2019 WL 549722, at *4 (D. Minn.
Jan. 22, 2019) (citation and quotation omitted). The
government does not dispute that Petitioner is being held at
a criminal correctional facility (Resps' Obj. at 8.) and,
thus, this factor weighs in Petitioner's favor.
fourth factor weighs whether the detainee has caused any
delays in the removal proceedings. The government concedes
that Petitioner has not caused any delays, (Resps' Obj.
at 8.), and the Court agrees Petitioner has not engaged in
dilatory tactics and finds this factor favors granting
relief. See Ly v. Hansen,351 F.3d 263, 272 (6th
Cir. 2003) (balancing petitioner's right to
“explore avenues of relief” against engaging in
dilatory tactics to stall deportation and compel release from
detention). Petitioner is entitled to raise legitimate
defenses to removal, including filing a petition for
conditional residence, and such challenges to his removal
cannot undermine his claim that detention has become
unreasonable. See Hernandez v. Decker, No.
18-CV-5026 (ALC), 2018 WL 3579108, at *9 (S.D.N.Y. July 25,
2018) (“the mere fact ...