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Abshir H. A. v. Barr

United States District Court, D. Minnesota

May 6, 2019

Abshir H. A., Petitioner,
v.
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

          Ana H. 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

          Tony N. Leung United States Magistrate Judge.

         I. INTRODUCTION

         This 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. 23.)

         A 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.

         Based upon the record, memoranda, and proceedings herein, IT IS HEREBY RECOMMENDED that Petitioner's motion be DENIED.

         II. BACKGROUND

         Petitioner 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, [1] ECF No. 1-2.[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.)

         In 2010, Petitioner was convicted of aggravated first-degree witness tampering-a felony-in violation of Minn. Stat. § 609.498, subd. 1b(a)(1).[3] (Warrant of Commitment at 1, ECF No. 20-2; IJ Decision at 1.)

         In 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 reached”).

         From 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)[4] 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”).

         On 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.[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.

         On 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. ยง 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 ...


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