United States District Court, D. Minnesota
Abshir H. A., Petitioner,
William Barr, U.S. Attorney General, Kevin McAleenan, Acting Secretary, Department of Homeland Security, Ronald D. Vitiello, Acting Director, Immigration and Customs Enforcement, Peter Berg, Director, St. Paul Field Office, Immigration and Customs Enforcement, and Jason Kamerud, Sheriff, Carver County, Respondents.
Benjamin Casper Sanchez, Federal Immigration Litigation
Clinic, University of Minnesota Law School, Mondale Hall,
John R. Bruning, Kim Hunter Law, PLLC, St. Paul, Kathleen A.
Moccio; and Michael D. Reif and Rajin Olson, Robins Kaplan
LLP, (for Petitioner); and
Voss, Ann M. Bildtsen, and Pamela Marentette, Assistant
United States Attorneys, United States Attorney's Office,
(for Respondents Barr, McAleenan, Vitiello, and Berg).
REPORT & RECOMMENDATION
N. Leung United States Magistrate Judge.
matter comes before the Court on Petitioner Abshir H.
A.'s Emergency Motion for Temporary Restraining Order
(ECF No. 10). This motion has been referred to the
undersigned for a report and recommendation to the district
court, the Honorable Paul A. Magnuson, District Judge for the
United States District Court for the District of Minnesota,
under 28 U.S.C. § 636 and D. Minn. LR 72.1. (ECF No.
hearing was held on May 2, 2019. Attorney Benjamin Casper
Sanchez and student attorneys Rachel Lochner and Paul Dimick
appeared on behalf of Petitioner. (See ECF Nos. 5,
24, 24-1.) Assistant United States Attorney Pamela Marentette
appeared on behalf of Respondents William Barr, Kevin
McAleenan, Ronald D. Vitiello, and Peter Berg.
upon the record, memoranda, and proceedings herein,
IT IS HEREBY RECOMMENDED that
Petitioner's motion be DENIED.
is a native and citizen of Somalia. (Pet. ¶¶ 11,
21, ECF No. 1; Decision & Order of the Immigration Judge
(“IJ Decision”) at 1, Mar. 25, 2019,
No. 1-2.) Petitioner entered the United States in
2005 as a refugee and, in 2008, became a lawful permanent
resident. (Pet. ¶¶ 11, 21; IJ Decision at 1.)
2010, Petitioner was convicted of aggravated first-degree
witness tampering-a felony-in violation of Minn. Stat. §
609.498, subd. 1b(a)(1). (Warrant of Commitment at 1, ECF No.
20-2; IJ Decision at 1.)
February 2018, Immigration and Customs Enforcement
(“ICE”) arrested Petitioner and commenced removal
proceedings based on his 2010 conviction. (Pet. ¶ 27; IJ
Decision at 1; see generally Ex. A to Decl. of
Christopher A. Campbell, ECF No. 20-1.) It is undisputed that
Petitioner has been detained under the mandatory detention
provisions of 8 U.S.C. § 1226(c) since that time. (Pet.
¶¶ 1, 2, 27; Pet'r's Mem. in Supp. at 5,
11, ECF No. 11; Resp'ts' Mem. in Opp'n at 2, 7-8,
ECF No. 19.) See, e.g., Denmore v. Kim, 538
U.S. 510, 517-18 (2003) (“Section 1226(c) mandates
detention during removal proceedings for a limited class of
deportable aliens-including those convicted of an aggravated
felony.”); Ali v. Brott, No. 19-1244, ___ F.
App'x ___, 2019 WL 1748712, at *4 (8th Cir. Apr. 16,
2019) (noting “the Supreme Court has found unambiguous
the language of § 1226(c), which requires mandatory
detention until a decision regarding removal is
late February 2018 until March 2019, Petitioner has been in
removal proceedings. (See Pet. ¶¶ 27,
29-31; Pet'r's Mem. in Supp. at 5-8; Decl. of
Christopher A. Campbell ¶¶ 4-21, ECF No. 20.) As
part of these proceedings, Petitioner “admitted the
factual allegations and conceded the charges of
removability.” (IJ Decision at 2.) The issue was
whether Petitioner was eligible for a waiver under 8 U.S.C.
§ 1182(h) based on hardship to his wife, a United
States citizen, should his admission be denied. (IJ Decision
at 2.) See 8 U.S.C. § 1182(h)(1)(B) (allowing
for waiver of inadmissibility “in the case of an
immigrant who is the spouse, parent, son, or daughter of a
citizen of the United States . . . if it is established to
the satisfaction of the Attorney General that the alien's
denial of admission would result in extreme hardship to the
United States citizen”).
March 25, 2019, the Immigration Judge found that Petitioner
was eligible for a waiver under 8 U.S.C. § 1182(h) and
granted Petitioner's application for adjustment of
status. (IJ Decision at 2-5.) On April 2, 2019, ICE appealed
the Immigration Judge's determination that Petitioner was
eligible for a waiver under 8 U.S.C. § 1182(h) to the
Board of Immigration Appeals. (Notice of Appeal at 1-2, ECF
No. 1-2.) The appeal remains pending.
April 15, 2019, Petitioner filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, challenging
his ongoing detention. (See generally Pet.)
Petitioner asserts that his continued detention under 8
U.S.C. § 1226(c) violates his right to due process under
the Fifth Amendment and is in violation of the Eighth
Amendment. Petitioner requests that he be immediately
released. In the alternative, Petitioner requests that he be
released within ...