United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Katherine Menendez United States Magistrate Judge.
October 31, 2018, Hector R. (hereafter “Mr. R”)
filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C.
§ 2241. Mr. R alleges that he is being held in custody
at the Kandiyohi County Jail in Willmar, Minnesota, in
connection with deportation proceedings. Mr. R seeks
immediate release, claiming that his detention has been
unreasonably prolonged. [ECF No. 1.]
became a lawful permanent resident of the United States in
January 1999. [Van Der Vaart Decl., Ex. C at 3, ECF No. 12.]
Mr. R has a lengthy criminal history, including charges and
convictions for burglary, armed robbery, aggravated assault,
domestic assault, drug crimes, and other offenses. [Van Der
Vaart Decl. ¶¶ 5-96.] In particular, Mr. R was
convicted of possession of marijuana and drug paraphernalia
on April 4, 2017 in North Dakota and was sentenced to one
year in jail. [Van Der Vaart Decl. ¶ 94, Ex. A.] Six
days later, on April 10, 2017, Mr. R was convicted of 5th
degree possession of marijuana and sentenced to three years
of probation. [Van Der Vaart Decl. ¶ 95, Ex. B.]
and Customs Enforcement (“ICE”) took Mr. R into
custody on April 24, 2018 after being notified by U.S. Border
Patrol that he had been arrested by the Red Lake Tribal
Police for a probation violation. [Van Der Vaart Decl. ¶
96.] Mr. R was served with a notice to appear in removal
proceedings, and an immigration judge ordered him to be
removed to Mexico on July 18, 2018. [Van Der Vaart Decl.
¶ 97, Exs. C & D.] Mr. R appealed the immigration
judge's decision to the Board of Immigration Appeals
(“BIA”) on July 25, 2018. [Van Der Vaart Decl.,
Ex. E; see also Pet. at 3, ¶ 7 (indicating BIA
appeal was filed on July 18, 2018).] The BIA had not issued a
decision on the appeal at the time Mr. R filed the habeas
petition that initiated this case. However, on November 29,
2018, the BIA dismissed Mr. R's appeal, which made the
removal order final. [Van Der Vaart Decl., Ex. F.]
Mr. R filed his habeas petition, because he was not yet
subject to a final order of removal, he was being detained
pursuant to 8 U.S.C. § 1226. Pursuant to § 1226(c),
the Attorney General was required to take Mr. R into custody.
See, e.g., 8 U.S.C. § 1226(c)(1)(C) (requiring
custody where a person is deportable under 8 U.S.C. §
1227(a)(2)(A)(i) “on the basis of an offense for which
the alien has been sentence[d] to a term of imprisonment of
at least 1 year”). Mr. R was in pre-final-removal-order
custody under § 1226(c) for just over seven months, from
April 24, 2018 through November 29, 2018. Some courts,
including this one, have concluded that prolonged mandatory
detention under 8 U.S.C. § 1226(c) raises due process
concerns. See, e.g., Bolus A.D. v. Secretary of Homeland
Security, No. 0:18-cv-1557 (WMW/KMM), Doc. No. 33 (D.
Minn. Feb. 11, 2019) (report and recommendation concluding
that an alien detained pursuant to § 1226(c) for over 13
months was entitled to a bond hearing); Muse v.
Sessions, No. 18-cv-0054 (PJS/LIB), 2018 WL 4466052 (D.
Minn. Sept. 18, 2018).
as noted above, Mr. R is no longer in custody under 8 U.S.C.
§ 1226(c) because the immigration judge's order of
removal became administratively final on November 29, 2018,
when the BIA dismissed Mr. R's appeal. Mr. R is now in
the custody of immigration authorities pursuant to 8 U.S.C.
§ 1231, which governs detention of removable aliens who
are subject to final orders of removal. See Chuol v.
Sessions, No. 17-cv-4700 (JNE/TNL), 2018 WL 1598624, at
*3 (D. Minn. Feb. 27, 2018) (“While 8 U.S.C. §
1226(c) governs detention prior to the entry of a final order
of removal, 8 U.S.C. § 1231 governs the detention of an
alien subject to a final order of removal.”),
R&R adopted, No. 17-cv-4700 (JNE/TNL, 2018 WL
1587611 (D. Minn. Apr. 2, 2018). Under these circumstances,
to the extent Mr. R challenges his pre-final-removal-order
detention under § 1226, such a claim is moot. Alier
D. v. Secretary of Dep't of Homeland Security, 2018
WL 5847244, at *2 (D. Minn. Nov. 8, 2018) (“The shift
of the government's authority to detain the petitioner
from § 1226 to § 1231 renders moot his claim based
on pre-removal detention.”) (citing Oyelude v.
Chertoff, 170 Fed. App'x 366, 367 & n.4 (5th
Cir. 2006); Chuol, 2018 WL 1598624, at *3; and
Gahamanyi v. Baniecke, No. 07-cv-4007 (RHK/RLE),
2008 WL 5071098, at *11 (D. Minn. Nov. 30, 2012)).
alien has received an order of removal, the Attorney General
is required to remove him from the United States within a
90-day “removal period.” 8 U.S.C. §
1231(a)(1)(A). Under the circumstances of this case, Mr.
R's removal period began when his removal order became
administratively final. Id. §
1231(a)(1)(B)(i). The Attorney General is required to detain
an alien during the 90-day removal period and is not
permitted to release aliens who have been found deportable
for certain criminal offenses. Id. § 1231(a)(2)
(“During the removal period, the Attorney General shall
detain the alien. Under no circumstance during the removal
period shall the Attorney General release an alien who has
been found ... deportable under [8 U.S.C. §]
1227(a)(2)....”). Mr. R's 90-day removal period
began on November 29, 2018 and concluded on February 27,
February 27, 2019, Mr. R has remained in custody. However,
his continued detention beyond the statutory 90-day removal
period does not mean that his continued detention is
necessarily unlawful. In Zadvydas v. Davis, 533 U.S.
678 (2001), the Supreme Court held that an alien's
post-removal-period detention may not exceed “a period
reasonably necessary to bring about that alien's removal
from the United States.” Id. at 689. The Court
further held that it is presumptively reasonable for the
government to detain an alien for six months after the
beginning of the statutory removal period. Id. at
701. After that six month period ends, the validity of
continued detention depends on whether there is a
“significant likelihood of removal in the reasonably
foreseeable future.” Id.
R's post-removal-order detention has lasted just over
four months at the time of this decision. Accordingly, his
ongoing detention is presumptively reasonable under the
Zadvydas framework and he is not entitled to habeas
relief under 28 U.S.C. § 2241. See Martinez-Senan v.
Tritten, No. 17-cv-5080 (WMW/BRT), 2018 WL 1226110, at
*1 (D. Minn. Mar. 9, 2018) (finding detention reasonable
because the six-month post-removal period had yet to expire).
on the foregoing, the Court makes the following
1. The Petition for a Writ of Habeas Corpus [ECF No. 1]
should be DISMISSED ...