United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
BOWBEER, UNITED STATES MAGISTRATE JUDGE.
January 24, 2019, Petitioner filed a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2241, challenging his
detention by U.S. Immigration and Customs Enforcement
(“ICE”). (See Pet. at 7 [Doc. No. 1].)
For the reasons set forth below, the Court recommends that
the Petition be dismissed without prejudice.
is a native and citizen of Burundi. (Pet. at 3, ¶ 1
[Doc. No. 1]; Kresser Decl. ¶ 7 [Doc. No. 7].) On April
27, 2018, Petitioner was served with a Notice to Appear in
Removal Proceedings upon a charge of being removable under 8
U.S.C. § 1227(a)(2)(B)(i) for having been convicted of
violating (or conspiring or attempting to violate) a law
relating to a controlled substance other than a single
offense involving possession for one's own use of 30
grams or less of marijuana. (Kresser Decl. ¶ 10 &
Ex. A.) Petitioner was detained without bond pursuant to 8
U.S.C. § 1226(c)(1)(B). (Kresser Decl. ¶ 12 &
Ex. A.) Petitioner requested review of his custody
determination by an Immigration Judge (“IJ”).
(Kresser Decl. ¶ 12 & Ex. A.) A hearing before an IJ
was held on June 5, 2018, and the IJ informed Petitioner that
he was not eligible for humanitarian or conditional parole
because his detention was mandatory. (Kresser Decl. ¶ 13
& Ex. B at 10.) The IJ issued an order of removal on
September 6, 2018, ordering Petitioner removed to Burundi.
(Kresser Decl. ¶ 14 & Ex. C.) Petitioner appealed to
the Board of Immigration Appeals (“BIA”), which
dismissed the appeal on February 1, 2019. (Kresser Decl.
¶¶ 15-16 & Ex. D.)
of habeas corpus enables a person detained by the government
to challenge the legality of his confinement and, if
successful, obtain his release. Preiser v.
Rodriguez, 411 U.S. 475, 485 (1973). The right to
petition for habeas relief is a foundational legal principle
in the United States, see U.S. Const. art. 1, §
9, cl. 2, and has been recognized as “an integral part
of our common-law heritage, ” Preiser, 411
U.S. at 485. Relevant here, 28 U.S.C. § 2241 confers
jurisdiction on federal courts to hear certain habeas
challenges to the lawfulness of immigration-related
detentions. Zadvydas v. Davis, 533 U.S. 678, 687
(2001). A district court may review immigration-related
detentions to determine if they comport with the demands of
the Constitution, id. at 688, but a court may not
review a discretionary decision made by immigration
authorities such as the decision to order that a noncitizen
be removed to another country, see 8 U.S.C. §
1252(a)(5), (g). Accordingly, the Court may not second-guess
decisions made within the discretion of an immigration
authority but may assess the constitutional permissibility of
the detention itself. See Davies v. Tritten, No.
17-cv-3710 (SRN/SER), 2017 WL 4277145, at *2 (D. Minn. Sept.
time Petitioner filed his Petition on January 24, 2019, he
was in “pre-removal detention” and subject to
mandatory detention under 8 U.S.C. § 1226(c)(1). When
the Board of Immigration Appeals (“BIA”)
dismissed Petitioner's appeal, however, Petitioner's
removal order became administratively final, and the
statutory basis for his detention shifted from §
1226(c)(1) to § 1231(a). Under § 1231(a), which
applies to “post-removal detention, ” the
Attorney General is required to detain aliens subject to a
final removal order for a ninety-day period. 8 U.S.C. §
1231(a)(1)(A), (2). Petitioner is currently detained under
the post-removal detention statute, and the length of his
post-removal detention has not exceeded ninety days.
change in the statutory basis for Petitioner's detention
moots his challenge to the length of his § 1226(c)
detention. See, e.g., Oyelude v. Chertoff,
170 Fed.Appx. 366, 367 n.4 (5th Cir. 2006)
(“Oyelude's challenge to his § 1226 detention
was mooted on June 23, 2004, when his final removal order was
entered and the Attorney General's authority to detain
him shifted to § 1231.”); Chuol v.
Sessions, No. 17-cv-4700 (JNE/TNL), 2018 WL 1598624, at
*3 (D. Minn. Feb. 27, 2018) (“When Petitioner's
order of removal became final on March 10, 2017, ICE's
authority to detain Petitioner shifted from § 1226 to
§ 1231, thereby rendering moot Petitioner's claim
challenging his detention under § 1226.”), R.
& R. adopted, 2018 WL 1587611 (D. Minn. Apr. 2,
2018). Accordingly, Petitioner's challenge to his
detention under § 1226(c) is moot, and the only
remaining question is whether the length of Petitioner's
detention pursuant to § 1231(a) is unconstitutional.
See Oyelude, 170 Fed.Appx. at 367-68.
the Board of Immigration Appeals dismissed Petitioner's
appeal on February 1, 2019, his order of removal became
final. See 8 C.F.R. § 1241.1(a). The government
is expressly authorized to detain Petitioner for a
“removal period” of ninety days. See 8
U.S.C. § 1231(a)(1)(A), (2). The removal period begins
on the latest of:
(i) The date the order of removal becomes administratively
(ii) If the removal order is judicially reviewed and if a
court orders a stay of the removal of the alien, the date of
the court's final order.
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.
8 U.S.C. § 1231(a)(1)(B). An alien must be detained
during the ninety-day removal period. Zadvydas, 533
U.S. at 683. Because Petitioner's current detention falls
within the ninety-day removal period, he is not entitled to
release on the basis that his detention is unconstitutionally
even when the initial, ninety-day removal period ends, the
government may continue detaining Petitioner if certain
criteria are established. See 8 U.S.C. §
1231(a)(1)(C). Indeed, under Zadvydas, “[o]nce
a person is finally ordered removed from the United States,
it is presumptively constitutional for the government to
detain him for a 6-month period.” Sokpa-Anku v.
Paget, No. 17-cv-1107 (DWF/KMM), 2018 WL 3130681, at *3
(D. Minn. June 8, 2018), R. & R. adopted, 2018
WL 3129002 (D. Minn. June 26, 2018); Bah v. Cangemi,
489 F.Supp.2d 905, 916 (D. Minn. 2007). Thus, for a habeas
claim to be viable after Zadvydas, the six-month
period considered “presumptively reasonable” must
have expired before the petition is filed. See Akinwale
v. Ashcroft, 287 F.3d 1050, 1052 ...