United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Mohamed A.'s (âPetitionerâ)
Petition for a Writ of Habeas Corpus (Dkt. No. 1)
(âPetitionâ) and Petitioner's Motion for Extension of
Time (Dkt. No. 14). The case has been referred to the
undersigned United States Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. Â§ 636 and Local Rule
72.1. For the reasons stated below, the Court recommends that
Petition be granted in part and denied in part, and the Court
denies the Motion for Extension as moot.
Petitioner's Immigration Background
is a 27-year-old citizen of Somalia and native of Kenya.
(Dkt. No. 6-5, Ex. E at 6; Dkt. No. 6 ¶ 4.) Petitioner was
born and raised in Kenya and has never been to Somalia. (Dkt.
No. 6-5, Ex. E at 6.) Petitioner entered the United States in
September 2005 as an asylee and adjusted his status to legal
permanent resident in 2008. (Id.; Dkt. No. 6
¶¶ 5-6.) Petitioner is single and has no children.
(Dkt. No. 6-5, Ex. E at 6.) Petitioner's parents and
three siblings are all naturalized U.S. citizens.
Petitioner's Criminal Record
was convicted of burglary on January 25, 2012 in the Superior
Court of California, County of San Diego and sentenced to one
day. (Dkt. No. 6 ¶ 7; Dkt. No. 6-1, Ex. A.) On April 12,
2012, Petitioner was convicted of two counts of burglary and
sentenced to 150 days by the same court. (Dkt. No. 6 ¶
8; Dkt. No. 6-2, Ex. B.) In 2016, Petitioner was convicted of
four offenses in Hennepin County, Minnesota, including
careless driving, tampering with a motor vehicle, and twice
giving a peace officer a false name. (Dkt. No. 6 ¶¶
9-12.) On February 15, 2017, Petitioner was convicted of
disorderly conduct in Rice County, Minnesota. (Id.
¶ 14.) On March 9, 2017, Petitioner was convicted of
felony aiding and abetting simple robbery in Rice County,
Minnesota and sentenced to 364 days. (Dkt. No. 6 ¶ 13;
Dkt. No. 6-3, Ex. C.) On May 11, 2017, Petitioner was
convicted of giving a peace officer a false name in Dakota
County, Minnesota and sentenced to 3 days. (Id.
¶ 15.) On December 12, 2017, Petitioner was re-sentenced
to 10 days for not completing his sentence to service.
Petitioner's Removal Proceedings
December 13, 2017, Immigration and Customs Enforcement
(“ICE”) encountered Petitioner at the Dakota
County Jail after his re-sentencing. (Dkt. No. 6 ¶ 16.)
ICE lodged a detainer request with the jail. (Id.)
On December 18, 2017, ICE served Petitioner with a Notice to
Appear based on his having been convicted of two crimes
involving moral turpitude not arising out of a single scheme
of criminal misconduct. (Dkt. No. 6-4, Ex. D; Dkt. No. 13 at
2-3.) The same day, the Dakota County Jail released
Petitioner to ICE custody. (Dkt. No. 6 ¶ 17.)
removal proceedings, Petitioner conceded removability based
on the convictions of two crimes of moral turpitude, but
requested asylum, withholding of removal, or deferral of
removal under the Convention Against Torture. (Dkt. No. 13 at
3; Dkt. No. 6-5 at 1-2.) On March 21, 2018, Immigration Judge
(“IJ”) Ryan R. Wood granted Petitioner's
requests for withholding of removal, denied Petitioner's
request for asylum, and ordered Petitioner removed to any
country other than Somalia. (Dkt. No. 6-5, Ex. E at 13.) The
Government appealed the IJ's decision to the Board of
Immigration Appeals (“BIA”), which remanded the
proceedings and directed the IJ to fully evaluate the
evidence regarding Petitioner's alleged risk of
persecution in Somalia and alternatively Petitioner's
eligibility under the Convention Against Torture. (Dkt. No.
6-6, Ex. F.)
November 20, 2018, the IJ issued an order on remand and again
granted Petitioner application for withholding of removal.
(Dkt. No. 1-1, IJ Order at 17.) The IJ ordered Petitioner
removed to any country other than Somalia that will accept
him. (Id.) The Government appealed the second IJ
order to the BIA on December 10, 2018. (Dkt. No. 6 ¶ 24;
Dkt. No. 6-8, Ex. H; Dkt. No. 13 at 3.) The Court has not
been informed of any orders issued by the BIA in the second
Detention under Habeas Corpus
of habeas corpus may be granted by the Supreme Court, . . .
the district courts and any circuit judge within their
respective jurisdictions.” 28 U.S.C. § 2241(a).
“The writ of habeas corpus shall not extend to a
prisoner unless . . . [h]e is in custody in violation of the
Constitution or laws or treaties of the United States.”
Id. § 2241(c)(3). Congress has imposed
statutory limits on habeas corpus petitions in immigration
proceedings. For example, a petition for review from an order
of removal cannot be brought under the habeas statute and
must go directly to the circuit courts of appeals.
See 8 U.S.C. § 1252(a)(5). While § 2241
confers jurisdiction upon federal courts to hear habeas
challenges to the lawfulness of immigration-related
detentions, Zadvydas v. Davis, 533 U.S. 678, 687
(2001), judicial review of detention decisions made under 8
U.S.C. § 1226 is limited by the following provision:
The Attorney General's discretionary judgment regarding
the application of this section shall not be subject to
review. No. court may set aside any action or decision by the
Attorney General under this section regarding the detention
or release of any alien or the grant, revocation, or denial
of bond or parole.
Id. § 1226(e); see also Demore v. Kim,
538 U.S. 510, 517 (2003). However, the Supreme Court has
determined that § 1226(e) does not bar a constitutional
challenge to the length of pre-removal detention. See
Demore, 538 U.S. at 517; Zadvydas, 533 U.S. at
688; seealso Davies v. Tritten, No.