United States District Court, D. Minnesota
D. Willmar, MN 56201 (pro se Petitioner);
Voss, Ann M. Bildtsen, and Gregory G. Booker, Assistant
United States Attorneys, United States Attorney's Office,
(for Secretary of the Department of Homeland Security,
William P. Barr, and Scott Baniecke); and
John Walker, Freeborn County Attorney's Office, Freeborn
County Government Center (for Respondent Kurt Freitag);
REPORT AND RECOMMENDATION
N. LEUNG UNITED STATES MAGISTRATE JUDGE.
matter is before the Court, United States Magistrate Judge
Tony N. Leung, on Petitioner Victor D.'s Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241. (Pet., ECF
No. 1). This action has been referred to the undersigned
magistrate judge for a Report and Recommendation to the
Honorable Nancy E. Brasel, United States District Judge for
the District of Minnesota, under 28 U.S.C. § 636 and
Local Rule 72.1. For the reasons set forth below, this Court
recommends that the petition be denied.
FACTUAL AND PROCEDURAL BACKGROUND
is a native and citizen of Liberia. (ECF No. 8, p. 2).
Petitioner entered the United States as a lawful permanent
resident and recipient of a DV3 visa in 2004. (Id.).
In 2017, following his arrest and conviction for multiple
theft-related offenses, Immigrations and Custom Enforcement
(“ICE”) detained and commenced removal
proceedings against him. (Id. at 3-4). An
immigration judge found Petitioner ineligible for bond.
January 10, 2018, an immigration judge ordered Petitioner
removed to Liberia, but granted him a deferral of removal
under the Convention Against Torture. (ECF No. 8-13). The
Department of Homeland Security appealed to the Board of
Immigration Appeals, which remanded back to the immigration
judge for further proceedings. (ECF No. 8-14). On August 14,
2018, following remand, the immigration judge ordered
Petitioner removed, concluding that Petitioner had not
demonstrated that he was eligible for relief under the
Convention Against Torture and that Petitioner was removable
under Sections 237(a)(2)(A)(ii) and 237(a)(2)(A)(III) of the
Immigration and Nationality Act. (ECF No. 8-15). Petitioner
waived his right to appeal on August 27, 2018. (ECF No. 8, p.
next day, ICE requested travel documents from the Liberian
Embassy on behalf of Petitioner. (ECF No. 8, p. 5).
Approximately two months later, ICE completed a custody
review of Petitioner and “determined that a substantial
likelihood of [Petitioner's] removal in the reasonably
foreseeable future existed.” (ECF No. 8, p. 6). A few
weeks later, Petitioner filed this petition for a writ of
habeas corpus. He argued that his “prolonged and
continued detention is unreasonable, and violates [his]
substantive rights to due process under the Due Process
Clause of the Fifth Amendment.” (Pet. at 7). Petitioner
sought immediate release from custody because “[t]he
Government has been unable to effectuate [his] removal and
there is no likelihood of [his] removal in the reasonably
foreseeable future.” (Pet. at 7).
Liberian Embassy interviewed Petitioner on January 16, 2019;
Respondents believe the travel document request is likely to
be complete “in the reasonably foreseeable
future” and that a “substantial likelihood of
[Petitioner's] removal to Liberia in the reasonably
foreseeable future exists.” (ECF No. 8, p. 6). In
making this assertion, Respondents note that removals to
Liberia are on-going and orderly. (ECF No. 8, p. 6).
person detained by the government may file a writ of habeas
corpus to challenge the legality of his or her confinement
and, if successful, obtain his or her release. See
Preiser v. Rodriguez, 411 U.S. 475, 485 (1973). Federal
courts have jurisdiction to hear habeas challenges to the
lawfulness of immigration-related detentions. 28 U.S.C.
§ 2241; see also Zadvydas v. Davis, 533 U.S.
678, 687 (2001). The Court's jurisdiction to hear such
challenges, however, is somewhat limited. Federal courts may
consider whether the Government's “authority under
the post-removal-period detention statute;” they may
not review discretionary decisions made by the immigration
authorities. Id. at 688; see also 8 U.S.C.
final order of removal has been issued against an alien who
has been found to be unlawfully present in the United States,
the Government is required to remove the alien from the
United States within 90-days. 8 U.S.C. § 1231(a)(1)(A).
The 90-day “removal period” begins on the later
of: (1) the day the order of removal becomes administratively
final; (2) the date of any final court order reviewing the
removal order, provided that the court ordered a stay of
removal; or (3) if the alien is detained or confined (except
as provided for by an immigration process) the date the alien
is released from detention or confinement. 8 U.S.C. §
1231(a)(1)(B)(i)-(iii). Typically, the Government holds the
alien in custody during the removal period.
Zadvydas, 533 U.S. at 682. An alien not removed
during the removal period shall be subject to supervision
under regulations prescribed by the Government. 8 U.S.C.
§ 1231(a)(3). If the alien is removable for, among other
reasons, committing an aggravated felony or a crime involving
moral turpitude, then the Government may detain the alien
beyond the initial removal period or impose conditions of
supervision under Section 1231(a)(3). Id. at §
1231(a)(6) (citing 8 U.S.C. § 1227). Petitioner is one
1231(a)(6) does not, however, authorize indefinite detention.
See Zadvyas, 533 U.S. at 690 (noting that a
“statute permitting indefinite detention of an alien
would raise a serious constitutional problem”).
Indefinite detention violates the Due Process Clause of the
Fifth Amendment unless: (1) “ordered in a criminal
proceeding with adequate procedural protections” or (2)
“in certain special and narrow nonpunitive
circumstances . . . where a special justification, such as
harm-threatening mental illness, outweighs the
“individual's constitutionally protected interest
in avoiding physical restraint.” Id.
(citations and ...