United States District Court, D. Minnesota
ORDER ON REPORT AND RECOMMENDATION
C. Tostrud United States District Judge
Melie I., a native and citizen of Nigeria who has been held
in detention since December 13, 2017, pending the outcome of
his removal proceedings, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. See Am. Pet.
¶¶ 15, 30 [ECF No. 35]; see generally Id.
On January 7, 2019, United States Magistrate Judge Hildy
Bowbeer issued a Report and Recommendation that recommended
granting in part and denying in part Melie I.'s Amended
Petition for Writ of Habeas Corpus [ECF No. 35], and also
recommended denying Melie I.'s Motion for Emergency
Preliminary Injunction [ECF No. 17] and his Motion to
Expedite Order to Show Cause [ECF No. 18]. ECF No. 40 at
Party objected to the Report and Recommendation insofar as it
recommended denying Melie I.'s motions, and the Court
therefore reviews those aspects of the Report and
Recommendation for clear error. See Fed. R. Civ. P.
72(b); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.
1996) (per curiam). Finding no clear error, the Report and
Recommendation will be accepted with respect to its treatment
of Melie I.'s motions for an emergency preliminary
injunction and to expedite an order to show cause, and those
motions will be denied for the reasons explained by
Magistrate Judge Bowbeer.
have filed objections to the Report and Recommendation in one
respect, though. See generally Obj. [ECF No. 41].
They object to its conclusion that Melie I.'s continued
detention violates his due-process rights; the Report and
Recommendation concluded that the immigration judge who
conducted his bond hearing pursuant to 8 U.S.C. §
1226(a) erred in placing the burden on him to prove he was
not a danger to the community, rather than requiring the
Government to make that showing by clear and convincing
evidence. See Obj. at 1, 4-5; R&R at 15. This
objection requires the Court to review de novo “those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); see also Local Rule 72.2(b)(3).
de novo review reveals that the Report and Recommendation,
and Respondents' objections to it, implicate
constitutional questions that may now be irrelevant to Melie
I.'s habeas petition due to a change in his
circumstances. Specifically, the Report and Recommendation
focuses on due-process issues raised by the immigration
judge's analysis under § 1226(a), which concerns
discretionary detention. See R&R at 8-15. But
shortly after the time for filing objections to the Report
and Recommendation expired, Melie I.'s state-court
conviction for a sex offense appears to have become final for
immigration purposes, and as a result he may now arguably be
subject to mandatory detention under § 1226(c). Because
of the timing of these events, the immigration judge has not
yet had the opportunity to address the effect of these
changed circumstances on the basis for Melie I.'s
detention, nor have the Parties had the opportunity to
develop their arguments on that subject or to present those
arguments to the magistrate judge for consideration.
“[A] ‘longstanding principle of judicial
restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding
them.'” Camreta v. Greene, 563 U.S. 692,
705 (2011) (quoting Lyng v. Nw. Indian Cemetery
Protective Ass'n, 485 U.S. 439, 445 (1988)).
Prudential concerns therefore impel the Court to reject the
Report and Recommendation in light of Melie I.'s changed
circumstances and remand this matter to the immigration judge
for a determination of whether Melie I. is now subject to
the relevant events are described more fully in the Report
and Recommendation and are summarized only briefly here.
See R&R at 1-4. On April 11, 2018, following
Melie I.'s first bond hearing, the immigration judge
determined that he was subject to mandatory detention under
§ 1226(c) because, among other reasons,  he had been
convicted of the aggravated felony of rape when he pleaded
guilty in Minnesota district court to third-degree criminal
sexual conduct with a victim who was mentally impaired or
helpless. See Am. Pet. Ex. C at 1-2, 4-5 [ECF No.
35-2 at 20-28]; 8 U.S.C. § 1227(a)(2)(A)(iii) (providing
that an alien convicted of an aggravated felony following his
admission is deportable); 8 U.S.C. § 1101(a)(43)(A)
(defining “aggravated felony” to include
“murder, rape, or sexual abuse of a minor”). The
immigration judge found that even if Melie I. was not subject
to mandatory detention, his detention nevertheless was
appropriate as a discretionary matter under § 1226(a)
because he presented a danger to the community. Am. Pet. Ex.
C at 8 n.4 (citing § 236(a) of the Immigration and
Nationality Act, codified at § 1226(a), and 8 C.F.R.
months later, on August 29, 2018, the Board of Immigration
Appeals (“BIA”) issued Matter of Acosta,
which determined that “a conviction does not attain a
sufficient degree of finality for immigration purposes until
the right to direct appellate review on the merits of the
conviction has been exhausted or waived.” 27 I. &
N. Dec. 420, 432 (BIA 2018) (footnote omitted). At the time
Matter of Acosta was issued, Melie I.'s
conviction was pending on direct appeal to the Minnesota
Court of Appeals, and thus was not sufficiently final under
Matter of Acosta to support a mandatory-detention
determination. See State v. Ilogu, No. A17-1602,
2018 WL 4394965 (Minn.Ct.App. Sept. 17, 2018).
after Matter of Acosta was issued, Melie I. filed a
motion for a hearing and redetermination of custody. Second
Ligon Decl. ¶ 10 [ECF No. 37]. The immigration judge
granted Melie I. a second bond hearing, but on October 11,
2018, she denied his request for a change in custody status,
finding pursuant to § 1226(a) that he was dangerous.
Id. ¶¶ 11-12; Am. Pet. Ex. I [ECF No. 35-2
at 54]. It is that second determination, made pursuant to
§ 1226(a) exclusively, that is at issue in the Report
and Recommendation currently before the Court.
time Magistrate Judge Bowbeer issued the Report and
Recommendation, and throughout the period during which the
Parties could file objections to that Report and
Recommendation and responses to such objections, Melie
I.'s state-court conviction remained not yet final under
Matter of Acosta. After the Minnesota Court of
Appeals affirmed his conviction on September 17, 2018, Melie
I. filed a petition for review by the Minnesota Supreme
Court, which was summarily denied on November 27, 2018.
State v. Ilogu, No. A17-1602, 2018 WL 4394965
(Minn.Ct.App. Sept. 17, 2018), review denied (Minn.
Nov. 27, 2018). Rule 13 of the Rules of the Supreme Court of
the United States gives a prospective petitioner ninety days
from the date on which a state court of last resort denied
discretionary review. “It is settled that ‘the
conclusion of direct review' includes the ninety days a
state court defendant has to petition the Supreme Court of
the United States for a writ of certiorari.” Jihad
v. Hvass, 267 F.3d 803, 804 (8th Cir. 2001) (citation
omitted). Accordingly, Melie I.'s state-court conviction
became final on February 25, 2019, unless he filed a petition
on or before that date.
March 18, 2019, recognizing that “the finality of
Petitioner's state-court proceeding ha[d] the potential
to affect the statutory basis for the detention he challenges
in this habeas action, ” the Court ordered the Parties
to file a joint letter “informing the Court whether
Petitioner timely filed with the United States Supreme Court
a petition for a writ of habeas corpus seeking review of his
state-court conviction, and whether they now understand
Petitioner's state-court conviction to have become final
under Matter of Acosta.” Order at 2 [ECF No.
43]. In response, the Government stated that its searches of
the Supreme Court's docket system “returned no
results” for Melie I.'s name. Joint Ltr. at 1 [ECF
No. 44]. According to Melie I.'s counsel, however, Melie
I. had informed his counsel by phone that he had filed a pro
se petition for a writ of certiorari “on February 25 or
26, 2019, ” when he “deposit[ed] the petition in
the jail's internal mail system, ” but counsel had
not been able to independently confirm that fact.
Id. Neither Party has provided the Court with any
subsequent updates about the status of any such petition, and
the Court's own review of the Supreme Court's docket
indicates that, more three months after the ninety-day
deadline expired, no petition has been filed by Melie I. or
on his behalf. At this point, therefore, it seems clear that,
notwithstanding Melie I.'s position to the contrary,
see Joint Ltr. at 2, the state-court conviction is
now final under Matter of Acosta.
Parties dispute the effect of the finality of that conviction
on the basis for Melie I.'s detention. In their
objections, Respondents contend that such finality renders
him subject to mandatory detention under § 1226(c). Obj.
at 4 n.1. Melie I. disagrees; he points out that when the
immigration judge determined after his first, pre-Matter
of Acosta bond hearing that he was subject to mandatory
detention because he had been convicted of the aggravated
felony of rape, that determination relied heavily on the
BIA's application of an arguably analogous Ohio statute
of conviction in Matter of Keeley. See
Resp. to Obj. at 2 n.2 [ECF No. 42]; Am. Pet. Ex. C at 4-5
(discussing Matter of Keeley, 27 I. & N. Dec.
146 (BIA 2017)). That BIA decision has since been reversed by
the Sixth Circuit, which held that a rape conviction under
Ohio law does not constitute an aggravated felony for
immigration purposes. Keeley v. Whitaker, 910 F.3d
878, 886 (6th Cir. 2018). Melie I. plainly intends to argue
that his conviction under Minnesota law, like the one in
Keeley that arose under Ohio law, is not covered by
the mandatory-detention statute. The Court expresses no
opinion one way or the other which side is correct; neither
side has had a fair opportunity to develop the record or
present argument on that question. Despite their disagreement
over whether the mandatory-detention statute covers Melie I.,
both sides seem to want the Court to rule on the
constitutional question of whether due process requires Melie
I. or the Government to bear the burden of proof under §
1226(a). See Joint Ltr. at 1.
the nonfrivolous and potentially dispositive question of
whether Melie I. is subject to mandatory detention-a question
that is, at root, one of statutory construction- it would be
premature to decide the constitutional question raised in the
Report and Recommendation and in Respondents' objections.
Even if the Court were to conclude that the Constitution does
in fact require the Government, and not Melie I., to bear the
burden under § 1226(a), the relief available to Melie I.
is remand for another custody determination. It is a near
certainty that in that new proceeding, the Government would
argue for mandatory detention under § 1226(c) in
addition to arguing that he should be detained under §
1226(a) on the grounds that he is dangerous. Depending on how
the case develops from there, it is entirely possible that
this Court will never have a need to adjudicate Melie
I.'s habeas petition on constitutional grounds. Further
proceedings may make clear that he is subject to mandatory
detention under § 1226(c), in which case the question of
where the Constitution places the burden in a hearing
proceeding under § 1226(a) would be irrelevant.
is a foundational principle in our legal system . . . that
courts must make every effort to avoid deciding novel
constitutional questions.” Wallace v. ConAgra
Foods, Inc., 747 F.3d 1025, 1029 (8th Cir. 2014) (citing
Ashwander v. TVA, 297 U.S. 288, 345-47 (1936)
(Brandeis, J., concurring)). Rather than allowing the manner
in which this case has developed to “force a decision
on a constitutional question that might be unnecessary,
” the better approach is to remand the matter so the
immigration judge may consider in the first instance whether
Melie I. is subject to mandatory detention under §
1226(c) on the basis of his state-court conviction for
criminal sexual conduct. Xiong v. Lynch, 836 F.3d
948, 949- 50 (8th Cir. 2016) (remanding to BIA for
determination of whether petitioner's state-court
conviction for burglary rendered him ineligible for
cancellation of removal under burglary-specific statutory
provision rather than decide the question presented by the
parties of whether the BIA's reliance on statute's