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Victor D v. Secretary of Department of Homeland Security

United States District Court, D. Minnesota

April 11, 2019

Victor D., Petitioner,
v.
Secretary of the Department of Homeland Security, William P. Barr, Attorney General of the United States, Scott Baniecke, ICE Field Office Director, and Kurt Freitag, Freeborn County Sheriff, Respondents.

          Victor D. Willmar, MN 56201 (pro se Petitioner);

          Ana H. 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

          David John Walker, Freeborn County Attorney's Office, Freeborn County Government Center (for Respondent Kurt Freitag);

          REPORT AND RECOMMENDATION

          TONY N. LEUNG UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner 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. (Id.).

         On 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. 5).

         The 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).

         The 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).

         II. ANALYSIS

         A 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. § 1226(e).

         When a 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 such person.

         Section 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 ...


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