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Monue F.G. v. Ice

United States District Court, D. Minnesota

April 12, 2019

Monue F.G., Petitioner,
v.
ICE, Respondent.

          REPORT & RECOMMENDATION

          ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Monue F.G.'s (“Petitioner”) Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Dkt. No. 1) (“Petition”) and Petitioner's Motions for Immediate Release (Dkt. Nos. 13, 14). The Petition asks the Court to release him from immigration detention or to order a bond hearing to determine if he is a danger to the public or a flight risk. In his Motions for Immediate Release, Petitioner provided evidence to the Court of his marriage to a U.S. citizen and of a modification of one of Petitioner's criminal sentences, and he asks the Court to immediately and unconditionally release him from custody. (See Dkt. Nos. 13, 14.) The case has been referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court recommends that the Motions for Immediate Release be denied and the Petition be denied as moot.

         I. BACKGROUND

         Petitioner was born in Liberia on November 27, 1987 and remains a citizen of Liberia. (Dkt. No. 6-1, Ex A at 6.) Petitioner entered the United States on an F-22 visa (child of alien residents under 21) in Chicago, IL on June 1, 2010. (Id.) Petitioner's father entered the United States in 2003 along with Petitioner's three half-brothers. (Id. at 84.) Petitioner has two half-sisters who were born in the United States. (Id.)

         Over the last few years, Petitioner has had several relevant encounters with the criminal justice system. On June 29, 2015, an Iowa state court issued a Temporary Protective Order against Petitioner after allegations of domestic abuse were filed against Petitioner. (Id. at 49-58.) By order dated July 17, 2015, Petitioner admitted violation of the Temporary Protective Order, but reached an agreement with the prosecutor to amend the charge to a general contempt charge. (Id. at 43-44.) Petitioner was ordered to serve seven days for the violation. (Id.)

         In January 2016, Petitioner was arrested and charged with violation of Theft in the Third Degree in Poweshiek County, IA. (Id. at 24-26.) The criminal complaint alleged that Petitioner deposited three checks with insufficient funds with a community credit union and received $841.00 in cash. (Id.) Petitioner pled guilty to the lesser-included offense of Theft in the Fourth Degree. (Id. at 17-19.) On January 5, 2017, the court entered judgment against Petitioner and ordered him to serve one year in jail. (Id. at 12-14.) The judgment was later set aside and amended. (Id. at 59-61.)

         On February 14, 2017, Petitioner was found guilty of another theft violation- Theft in the Fifth Degree-in Iowa state court. (Id. at 29-32.) The court found that Petitioner had stolen four books recently purchased from a school book store, returned them to the book store, and kept the $102.00 he received. (Id.) Petitioner was ordered to pay a fine for the violation. (Id.)

         On April 10, 2018, the Department of Homeland Security (“DHS”) took Petitioner into custody and charged him with removal based on three sections of the Immigration and Nationality Act (“INA”). (Id. at 2-4.) First, under INA § 237(a)(2)(A)(ii), DHS alleged that Petitioner had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. (Id.) Second, under INA § 237(a)(2)(E)(ii), DHS alleged that Petitioner had been enjoined under a protection order and been determined to have engaged in conduct in violation of that order. (Id.) Third, under INA § 237(a)(2)(A)(iii), DHS alleged that Petitioner was convicted of an offense with a sentence of one year or more. (Id.)

         Immigration Judge (“IJ”) Sarah B. Mazzie took pleadings on the removal matter on May 9, 2018. (Dkt. No. 6-1, Ex. A at 71.) Petitioner admitted the predicate allegations for the first and second charges, but submitted to the IJ the order setting aside and amending the conviction of the Theft in the Fourth Degree. (Id.) The IJ sustained the first and second charges, but did not sustain the third because the order setting aside and amending judgment indicates that Petitioner was not sentenced to a term of imprisonment for one year. (Id. at 71-72.)

         The IJ held a hearing on May 23, 2018. (Id. at 72.) At the hearing, the IJ ruled that Petitioner is not statutorily eligible for cancellation of removal because she determined that the two theft convictions constitute crimes involving moral turpitude and they were both committed within seven years of Petitioner's admission to the United States. (Id.) The IJ determined that Petitioner's residence clock was “cut off after the commission of the second [theft] offense.” (Id.) Accordingly, the IJ determined that the only relief from removal was to apply for asylum. (Id.)

         The IJ held a hearing regarding Petitioner's asylum request on June 28, 2018. (Id. at 71-92.) The IJ determined that Petitioner is removable under the first and second charges, specifically finding that both of his theft convictions involved moral turpitude. (Id. at 76-83.) The IJ then determined that Petitioner had not met his burden of establishing eligibility for asylum. (Id. at 83-89.) Accordingly, the IJ ordered Petitioner removed from the United States to Liberia. (Id. at 92.) Petitioner timely appealed to the Board of Immigration Appeals (“BIA”) and briefing was due September 19, 2018. (Id. at 94.)

         Petitioner has been detained at Freeborn County Detention Center in Albert Lea, Minnesota since April 10, 2018. (Dkt. No. 1-1, Ex. A at 7.) Petitioner filed a pro se writ of habeas corpus on July 11, 2018. (Dkt. No. 1.) Petitioner makes numerous challenges in his Petition, including that he was not properly served a notice to appear (Dkt. No. 10 at 2), that his theft convictions do not constitute crimes involving moral turpitude (id. at 3), that he never was given a bond hearing to determine if he is a flight risk or a threat to public safety (id. at 5), that he is not subject to mandatory detention because he has a substantial argument against removability (id. at 6), and that the IJ made errors regarding Petitioner's removability (id. at 22-28).

         Petitioner was married to a U.S. citizen on October 26, 2018, who filed a Form I-130 on Petitioner's behalf. (Dkt. No. 16; Dkt. No. 16-2 at 2.) In November, Petitioner filed motions for immediate release from custody based on his marriage to a citizen and his amended judgment in the fourth-degree theft case. (Dkt. Nos. 13, 14.)

         On December 6, 2018, the BIA dismissed Petitioner's appeal (Dkt. No. 20-1 at 1-8), thus rendering his removal order final under 8 C.F.R. § 1241.1(a). Because Petitioner is now subject to a final removal order, his detention is mandated by 8 U.S.C. § 1231(a)(2). Petitioner filed a Motion to Reopen/Reconsider before the BIA (Dkt. No. 20-1 at 9-27), which was rejected for failure to pay the required fee (id. at 33-34). On January 31, 2019, Petitioner refiled the Motion to Reopen/Reconsider with a fee waiver. (Dkt. No. 20-1 at 41.) On the same date, Petitioner filed a Motion for “Emergency Stay of Removal” with the BIA (Dkt. No. 20-1 at 35-40), and on March 8, 2019, Petitioner appears to have filed a second Motion for “Emergency Stay of Removal” with the BIA (Dkt. No. 23 at 4-9). Neither Petitioner nor Respondent have provided the Court with any documents indicating the disposition or status of Petitioner's Motion to Reopen/Reconsider or Motions for “Emergency Stay of Removal, ” although Petitioner ...


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