Mohamed A. v. Neilsen

          REPORT AND RECOMMENDATION

          ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Mohamed A.'s (“Petitioner”) Petition for a Writ of Habeas Corpus (Dkt. No. 1) (“Petition”) 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. § 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.

         I. BACKGROUND

         A. Petitioner's Immigration Background

         Petitioner is a 27-year-old citizen of Somalia and native of Kenya. (Dkt. No. 6-5, Ex. E^[1] 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. (Id.)

         B. Petitioner's Criminal Record

         Petitioner 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. (Id.)

         C. Petitioner's Removal Proceedings

         On 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.)

         In his 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.)

         On 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 appeal.

         II. LEGAL STANDARD

         A. Detention under Habeas Corpus

         “Writs 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. ...